Pratibha Syntex Ltd. Through Its ... vs Munnalal Sahni
2021 Latest Caselaw 6225 MP

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                        M.P. No.2489/2019
     (Pratibha Syntex Limited Vs. Munnalal Sahani and others)
                                                                    -1-
Indore, dated 30/09/2021
       Shri S.C. Bagadiya, learned Senior Counsel with Ms. Kirti
Patwardhan, learned counsel for the petitioner.

       Shri Vijay Sharma and Shri Abhishek Tiwari, learned counsel
for the respondents.

       I.A. No.166/2021, I.A. No.2231/2021, I.A. No.2234/2021 and
I.A. No.2432/2021 filed under Section 17-B of Industrial Disputes
Act, 1947 are taken up.

2)     Shri Vijay Sharma, learned counsel for the respondents, who
filed those applications urges that in support of these applications, the
affidavits of concerned workmen have already been filed stating that
they are not gainfully employed anywhere.

3)     Learned counsel for respondents submits that an industrial
dispute was referred by State Government to the Industrial Tribunal
by reference dated 20.07.2018 (Annexure P-2). Since, there exists no
registered trade union in the industry, as per Section 36(1)(c) of
Industrial Disputes Act, 1947 (for short 'ID Act'), the workers
authorised Munnalal Sahani and others to raise the industrial dispute
on their behalf.

4)     The validity of this reference was unsuccessfully challenged by
the employer before said Court in W.P. No.21886/2018, which was
dismissed. Writ Appeal No.158/2019 assailing the order of Single
Judge was also dismissed. The employer terminated a sizable number
of workmen because of which an interim application dated 14.07.2018
supported by an affidavit was filed before the Industrial Tribunal
seeking protection flowing from Section 33 of ID Act, 1947. The
tribunal heard the parties on this application and passed the impugned
 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                        M.P. No.2489/2019
     (Pratibha Syntex Limited Vs. Munnalal Sahani and others)
                                                                     -2-
order on 03.05.2019. The workmen were directed to be reinstated.

5)     By taking this Court to the operative portion of the order
impugned passed by Industrial Tribunal, Shri Sharma submits that
there are four necessary ingredients for the purpose of grant of benefit
under Section 17-B of the ID Act, 1947. These are namely:- (i) There
must be an award directing reinstatement of workmen (ii) employer
filed appropriate proceeding before the High Court challenging the
said award (iii) the workman has filed an affidavit stating that he his
not gainful employed (iv) Court is satisfied that the said conditions are
fulfilled.

6)     It is submitted that all necessary ingredients are satisfied by the
workmen by filing aforesaid IAs supported by affidavits. The
impugned award in specific words directs reinstatement of the
workman. He placed reliance on the following judgments:-

       (1)   Bharat Coking Coal Limited and another Vs.Presiding
             Officer, Central Government Industrial Tribunal cum
             Labour Court, Assansol and another, (2014) SCC
             OnLine Cal 6268
       (2)   Delhi Transport Corporation Vs. Jagdish Chander,
             2005 SCC OnLine Del 116
       (3)   Bata India Ltd. Vs. Seventh Industrial Tribunal, West
             Bengal and another, 1994-II L.L.N. 791
       (4)   Workmen represented by Hindustan V.O. Corp. Ltd. Vs.
             Hindustan Vegetable Oil Corporation Ltd. And others,
             (2000) 9 SCC 534.
       (5)   Anil Jain Vs. Jagdish Chander (1999) 8 SLR 764.
       (6)   Dena Bank Vs. Kirti Kumar T. Patel (1999) 2 SCC 106
       (7)   Dena Bank Vs. Ghanshyam, Appeal (Civil) 3731 of
             2001
7)     Shri Sharma, learned counsel for the petitioner has taken pains
to contend that legislative intention behind Section 17-B of ID Act,
 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                         M.P. No.2489/2019
      (Pratibha Syntex Limited Vs. Munnalal Sahani and others)
                                                                     -3-
1947 must be seen. It is a beneficiary provision to ensure that when
employer drags the poor workmen to litigation before higher courts,
Section 17-B is, in fact, a protection, which helps the workman to
keep his body and soul together and enables him to resist the litigation
initiated by the mighty employer.

8)      In catena of judgments, the Apex Court and High Courts have
taken note of this legislative intent and have given a liberal
interpretation to the said provision. Heavy reliance is placed on the
judgment of Delhi High Court delivered in the case of Delhi
Transportation Corporation (supra), wherein Swatantra Kumar, J.

(as His Lordship then was) opined that the emphasis of legislature is on the expression "Reinstatement" rather than on an "Award". Thus, employer has no right of hearing unless the mandatory provision of Section 17-B is complied with.

9) Per contra, Shri Bagadiya, learned Senior Counsel assisted by Ms. Keerti Patwardhan, learned counsel submits that the order impugned of the industrial tribunal is bad in law. It is arising out of a reference dated 20.07.2018, which has nothing to do with the termination of employees. The reference is confined to 18 persons and while dealing with this kind of reference, there was no occasions for the industrial tribunal to pass the impugned order directing reinstatement of sizable number of employees.

10) As per employer's stand, the workmen were not terminated. Since, there exists no termination, the question of reinstatement does not arise. No terminated workmen approached the industrial tribunal. The terminated workmen had a remedy under the industrial law to approach the industrial tribunal independently. Section 33 of ID Act, 1947 is not applicable in the facts and circumstances of the case. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P. No.2489/2019 (Pratibha Syntex Limited Vs. Munnalal Sahani and others)

11) In alternatively, Shri Bagadiya, learned Senior Counsel submits that in the event this Court deems it proper to entertain the present IAs and directs payments flowing from Section 17-B of ID Act, 1947, the said reliefs should be confined to those workmen, who have filed applications before the industrial tribunal and filed affidavits before this Court.

12) Parties confined their arguments to the extent indicated above.

13) We have bestowed our anxious consideration on rival contentions and perused the record.

14) The directions contained in the impugned order dated 03/05/2019 reads as under:-

10- mDr nLrkostksa ls izFke n`"V;k ;g izdV gS fd laLFkku } kjk ih&2 ,oa ih&4 ;wfuV ds dkecanh djus dh dk;Zokgh fcuk fdlh oS/kkfud izko/kku dk ikyu fd;s] rFkk dsoy mUgha deZpkfj;ksa dks dk;Z ij fy;k tk jgk gS] tks [email protected] dk vkosnu i= ,oa [email protected] dk 'kiFk i= Hkjus dks rS;kj gSA izFke n`"V;k ;g Hkh izdV gS fd ubZ HkrhZ dk lwpuk i= yxk fn;k x;k gS tks [email protected] gSA ;g fufoZokfnr gS fd dksbZ gM+rky ugha gqbZ gS] u gh gM+rky dks voS/k ?kksf"kr fd;k x;k gS ;k le{k vf/kdkjh }kjk gM+rky dks fu"ksf/kr fd;k x;k gSA ,slh fLFkfr esa ,slk vkosnu i= fy[kokuk fd os vukf/kd`r :i ls vuqifLFkr jgsa vkSj ,slh vuqifLFkfr xaHkhj nqjkpj.k dh Js.kh esa vkrh gS ,oa ,sls Lohdkj.k ds vk/kkj ij fu;kstd] lacaf/kr deZpkjh dks dM+h ls dM+h ltk ;k lsok eqDr dj ldrk gS] fof/k vuqlkj ugha dgk tk ldrk gSA mDr dk;Zokgh lajk/ku] dk;Zokgh rFkk yafcr lanHkZ izdj.k ds nkSjku gqbZ gS] ;fn dksbZ dk;Zokgh dks fujarj j[kk x;k rks fuf'pr :i ls deZpkfj;ksa }kjk lanHkZ izdj.k esa n'kkZ;s x;s iz'u fuf'pr :i ls izHkkfor gksaxsa] blfy;s ;g rF; izdj.k ds yfEcr voLFkk esa izFke n`f"V;k lsok esa ifjorZu ds Lo:i dk gS] blfy, izFkei{[email protected] ds i{k esa varfje lgk;rk gsrq izdj.k izFke n`"V;k izdV gksrk gSA tgka rd vifjfer {kfr dk iz'u gS deZpkjhx.k dks lsok ls i`Fkd j[kk x;k rks mudh ,oa muds ifjokj dh mnj iwfrZ izHkkfor gksxh] bl izdkj mUgsa vifjfer {kfr gksxhA tgka rd lqfo/kk ds larqyu dk iz'u gS] ;fn nqjkpj.k ls lacaf/kr vkosnu i= ds fcuk mUgsa lsok esa fy;k tkrk gS] f}rh; i{k dks dksbZ gksuh gksxh] mudh laLFkku esa mRiknu gh gksxk vkSj dk;Z HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P. No.2489/2019 (Pratibha Syntex Limited Vs. Munnalal Sahani and others)

ij ugh fy;s tkus ls deZpkfjx.k dks vlqfo/kkx.k dk lkeuk djuk iM+sxk mDr fLFkfr esa izFke i+{[email protected] dk varfjr lgk;rk ls lacaf/kr vkosnu i= Lohdkj fd;s tkus ;ksX; gSA tgka rd la[;k dk iz'u gS mlesa 1820 ds LFkku ij la'kksf/kr 793 deZpkjh cryk, x;s gS] vr& ;g varfje vkns'k dsoy 793 deZpkfj;ksa ds lEcU/k esa izHkko'khy ekuk tkosxkA

11- vr% vUroZrhZ vkosnu i= Øekad 1 Lohdkj fd;k tkrk gS rFkk f}rh; i{k laLFkku dks funsZf'kr fd;k tkrk gS fd mlds }kjk 793 deZpkfj;ksa dks Åij mYysf[kr dk;Z ij ysus dh vuqefr ckcn [email protected] dk vkosnu Hkjok, fcuk dk;Z ij ysosaA tgka rd 'kiFk i= [email protected] dk iz'u gS] mlesa ,slh dksbZ 'krZ ugh gS tks fo/kh ds foifjr ekuh tk lds vr% [email protected] dk 'kiFk i= deZpkfj;ksa ls Hkjok;k tk ldrk gSA izFkei{[email protected] bl izdj.k ds fujkdj.k rd dksbZ xSjdkuwuh xfrfof/k;ksa esa lafyIr ugh gksxs vkSj laLFkku ds mRiknu esa lg;ksx djssxsA f}rh;i{k laLFkku dks ;g Hkh funsZf'kr fd;k tkrk gS fd izFkei{[email protected] dks fnukad 07-07-2018 ls okil dk;Z ij ysus ds fnukad rd dk osru o vU; fgrykHk dk fo/kh vuqlkj Hkwxrku djsA

15) A plain reading of the order shows that a specific direction has been given by the learned Tribunal to reinstate 793 workmen. Section 17-B of I.D. Act makes it clear that when a Labour Court/Tribunal by its award directs reinstatement of any workman and employer prefers any proceeding against such award before the High Court or the Supreme Court, the employer is bound to pay such workman during the pendency of such proceedings in the High Court or the Supreme Court full wages last drawn by him inclusive of maintenance allowance etc. The workman is required to file an affidavit to show that he is not in any gainful employment. Section 2(b) of ID Act defines the 'award' which includes an interim or final determination of any industrial dispute or any question relating thereto by Labour Court/Tribunal. In the instant case, in our view, the order dated 03.05.2019 (Annexure P/15) falls within the definition of award albeit it is an interim award. Pertinently, no amount of argument is advanced by employer that the impugned order is not an award and, HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P. No.2489/2019 (Pratibha Syntex Limited Vs. Munnalal Sahani and others)

therefore, Section 17-B is not attracted. In Delhi Transport Corporation's case (supra), the Court held as under:-

"10. The emphasis of Legislature is on the expression "reinstatement" rather than on an "award". Where the workman is reinstated and the management prefers any proceedings before the High Court or Supreme Court, the object appears to be that the workman if he was not gainfully employed during the relevant period should not starve and should be able to contest the proceedings before the Court meaningfully and without being deprived of the wages which he was entitled to receive under the terms of the award."

(Emphasis Supplied)

16) In view of catena of judgments, it can be safely held that intention of legislature in bringing S.17-B in the statute book was to provide a specific protection to the workman so that he can combat the litigation filed by the employer before higher forums. The Apex Court in 1999(2) SCC 106 (Dena Bank vs. Kirti Kumar) opined that payment given to the workmen under Section 17-B of ID Act is in the nature of 'subsistence allowance'. The said payment is made so that he can subsist and contest the litigation before the High Court/Supreme Court. Since it is in the nature of 'subsistence allowance', even if award is set aside, the amount of Section 17-B to the extent it falls within the ambit of last wages drawn is not recoverable. If it is paid beyond more than the last wages drawn, the amount to the extent it is more than last wages drawn, can be recovered.

17) Shri Bagadiya, learned Senior Counsel for the petitioner criticized the award on the merits of the case. However, in our opinion, at this stage, while considering the applications filed under Section 17-B of ID Act, this Court is not required to enter into the merits of the case. At this stage, what is required to be seen is whether

1) there exists an award directing reinstatement of workmen, 2) the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P. No.2489/2019 (Pratibha Syntex Limited Vs. Munnalal Sahani and others)

award which contains direction of reinstatement is questioned before this Court, 3) the workmen have filed affidavit regarding their unemployment. As noticed above, there exists an award which contains a direction of reinstatement. Indisputably, said award is called in question in this petition filed under Article 227 of the Constitution of India. The workmen have filed their affidavits as required under Section 17-B of ID Act.

18) In all the judgments cited by learned counsel for the respondents, the Courts emphasized the need of complying with the requirement of Section 17-B of the I.D. Act. In Kirti Kumar (supra), the Apex Court reproduced the aim and object for enacting the said provision which reads thus:-

"When Labour Courts pass award of reinstatement, these are often contested by an employer in the Supreme Court or High Court. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, therefore, proposed to provide the payment of wages last drawn by the workman concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or High Courts."

It would thus appear that the object underlying the enacting of the provisions contained in Section 17-B is to give relief to the workman in whose favour an award of reinstatement has been passed by the Labour Court and the said award is under challenge in the high Court or this Court. The said relief has been given with a view to relieve the hardship that would be caused to a workman on account of delay in implementation of the award as a result of the pendency of the proceedings in the High Court or this Court......."

(Emphasis Supplied)

19) In Kedia Distilleries Ltd., Indore & Another vs. Chhatisgarh Chemical Mill Mazdoor Sangh & Ors. reported in 2000-II-LLJ 1177 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P. No.2489/2019 (Pratibha Syntex Limited Vs. Munnalal Sahani and others)

an argument was advanced by counsel for the employer that award passed by Tribunal directing reinstatement is on the face of it is untenable, grossly erroneous and perverse and as such employer may not be compelled to suffer the rigours of Section 65(3) of MPIR Act, 1965 (pari-materia to Section 17-B of ID Act) and employer cannot be compelled to pay last wages drawn to the employees. A specific question No.(IV) was framed by this Court and it was answered as under:-

"17. Having appreciated the rival submission, I find no substance in the submission of Shri Mathur. The very assumption of Shri Mathur that Section 65(3) of the Act puts restriction on powers of the High Court under Article 226 of the Constitution of India is absolutely misconceived. It is relevant here to state that provisions of Section 65(3) of the Act is akin to Section 17B of the Industrial Disputes Act as the object of both the provisions are one and the same. The power of the High Court under Article 226 of the Constitution of India with reference to Section 17B of the I.D. Act came up for consideration before the Division Bench of the Bombay High Court in case of International Limited v. K.B. Joshi and Ors., (1987-II-LLJ-210 at 225) wherein it has been held as follows:

"8. So far as the challenge to Section 17B of the Act passed on the ground that it either interferes or encroaches upon the constitutional powers of the High Courts or the Supreme Court is concerned, from the bare reading of this section, it is clear that it does not even remotely refer to the powers of the Courts under Article 136 or 226, much less of restricting the said powers. This section only guarantees to the workman the payment of wages by the employer during the pendency of the proceedings before the High Court or the Supreme Court, and that too subject to the conditions laid down by the said section and the proviso irrespective of the result of the proceedings. It also imposes an obligation upon the workman concerned to file an affidavit before the Court stating that he has not been employed in any HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P. No.2489/2019 (Pratibha Syntex Limited Vs. Munnalal Sahani and others)

establishment during the pendency of the proceedings. It also absolves the employer of his obligation to pay such wages, if he is able to prove to the satisfaction of the Court that the workman had been otherwise employed and had been receiving adequate remuneration. As already observed Section 17B operates within a limited sphere. Its operation is subject to the conditions laid down by the section itself. Section nowhere lays down that in extreme cases where it is demonstrated that the award passed is either without jurisdiction or is otherwise a nullity, or grossly erroneous or perverse, the High Court or the Supreme Court is debarred from exercising its powers under Articles 226 and 136 of the Constitution.

Therefore, it is not possible for us to accept the contention that Section 17B is void as it encroaches upon or overrides the powers of the High Courts or the Supreme Court of India under Articles 226 and 136 of the Constitution. The powers of the High Courts or the Supreme Court under Articles 226 & 136 of the Constitution are paramount and Section 17B does not interfere with nor restrict the said constitutional powers."

(Italicisation mine)

The judgment of the Bombay High Court in case of Elpro International Ltd. (supra) was considered by the Supreme Court in case of Dena Bank v. Kiritikumar T. Patel, 1999 (2) SCC 106 : (1998-I-LLJ-1) in which it has been held as follows at p. 8 of LLJ:

"24. As regards the powers of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution, it may be stated that Section 17B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass an order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be dehors the provisions contained in Section 17B and while giving the direction, the Court HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P. No.2489/2019 (Pratibha Syntex Limited Vs. Munnalal Sahani and others)

- 10 -

may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High Court in Eipro International Ltd. that in exercise of the power under Articles 226 and 136 of the Constitution, an order can be passed denying the workman the benefit granted under Section 17B. The conferment of such a right under Section 17B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Articles 226 and 136 of the Constitution."

Again in the case of C.M. Saraiah v. E.E., Panchayat Raj Department and Anr., (2000-I-LLJ-23) (SC) wherein when a challenge was made to an award passed by the Labour Court directing reinstatement of work-men with back-wages, the Supreme Court has held that this Court has no jurisdiction to direct non-compliance of the provisions of Section 17B of the Industrial Disputes Act. In the said case, it has been held as follows (2000-I-LLJ- 23 at 24) :

"3. Having examined the provisions of Section 17B of the Industrial Disputes Act, we are of the considered view that the Court has no jurisdiction to direct non- compliance with the same when the condition precedent for passing an order in terms of Section 17B of the Act is satisfied, and this being the legislative mandate, the Division Bench of the High Court committed serious error in interfering with the direction of the learned single judge. We accordingly set aside the impugned order passed by the Division Bench and direct that the order of the learned Single Judge requiring compliance with Section 17B of the Industrial Disputes Act shall be complied with by the employer. This appeal is accordingly allowed. There shall be no order as to costs."

(Emphasis Supplied)

20) In the case of Kedia Distilleries Limited (supra), it was further held that:-

"This Court while exercising its power under Articles 226 & 227 of the Constitution of India, has to give respect to the legislative mandate. Legislative HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P. No.2489/2019 (Pratibha Syntex Limited Vs. Munnalal Sahani and others)

- 11 -

mandate being clear and unequivocal, any person not obeying its mandate cannot be allowed to invoke the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. Doors of this Court is closed for such a person. The view which I have taken finds support from the judgment of this Court in case of Madhya Pradesh Dugdh Mahasangh v. Gangadhar Sharma and another, 1996 MPLJ 138 paragraph 4 of the said judgment........".

21) C.K. Prasad, J, (as his Lordship then was), while deciding the case of Kedia Distilleries Limited (supra) considered various judgments of Supreme Court's and came to hold that Section 17-B of the ID Act is a legislative mandate which must be respected, and therefore, directed payment of last wages drawn. We find no reason to take a different view in view of authoritative pronouncement of Supreme Court on this point.

22) Accordingly, we direct that as per the award / order dated 03.05.2019, 793 workmen are entitled to get benefit of Section 17- B of the ID Act from the date of passing of award provided they have filed affidavits before this Court. Pertinently, the specific argument of learned counsel for the respondents that all 793 employees have filed affidavits before this Court has not been rebutted by learned counsel for the employer during the course of arguments. So far the contention of Shri S.C. Bagadia, learned Senior Counsel that in the event direction to pay benefit of Section 17-B of the ID Act is to be given, it should be confined to only such workmen who were applicants before the Tribunal cannot be accepted at this stage because presently there is no reason to go beyond or behind the finding mentioned in the award relating to reinstatement of 793 employees. This aspect can be gone into at the time of hearing of matter on merits.

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

M.P. No.2489/2019 (Pratibha Syntex Limited Vs. Munnalal Sahani and others)

- 12 -

23) Resultantly, I.As. are allowed. The respondents shall forthwith pay the benefit of Section 17-B of the ID Act to 793 employees from the date of award.

24) List this matter for further consideration / final disposal in the month of November, 2021.

(Sujoy Paul)                                    (Anil Verma)
   Judge                                           Judge


Soumya
              Digitally signed by
              SOUMYA RANJAN
              DALAI
              Date: 2021.10.01
              16:44:09 +05'30'