Madhya Pradesh High Court
Narendra Talkies vs Ramchandra on 24 March, 2022
Author: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH AT
INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 24TH OF MARCH, 2022
WRIT PET. (SERVICE) No. 1617 of 2005
Case Number W.P. (S) No.1617/2005
Parties Name NARENDRA TALKIES KOTWALI ROAD,
UJJAIN THROUGHT; ITS PARTNER, MR.
ANIL SABOO
Vs
1. RAMCHANDRA S/O SHRI ARJUNDAS EX-
GATE-KEEPER, NARENDRA TALKIES,
UJJAIN RESIDENT OF- HOUSE NO.8/5 ARYA
SAMAJ ROAD, UJJAIN
2.INDUSTRIAL COURT OF MADHYA
PRADESH, MOTI BUNGALOW, M.G. ROAD,
INDORE
Date of Order 24/03/22
Bench Division Bench:
Justice Vivek Rusia
Justice Amar Nath (Kesharwani)
Judgment delivered by Justice Vivek Rusia
Whether approved for Yes
reporting
Name of counsel for Shri Kuldeep Bhargava, learned counsel for the
parties petitioner.
None for the respondents.
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Law laid down For the recovery of the back wages granted by
the appellate Authority under the Shop and
Establishment, 1958 or any other labour laws
'the workman' can file an application before the
Labour Court under section 15 of the Payment of
wages Act. Section 2(27) of the Shop and
Establishment Act,1958 defines the word
"wages" it means wages as defined under the
Payment of Wages Act, 1936. The definition of
'wages' under section 2(vi) (a) of the Payment of
Wages Act, 1936 says that any remuneration is
payable under any award or settlement between
the parties or order of a Court.
Under section 15 of the Payment of Wages
Act,1936 the competent authority or Labour
Court may hear and decide for any specified area
all claims arising out of deductions from the
wages, or delay in payment of the wages of
persons employed or paid in that area, including
all matters incidental to such claims.
Significant paragraph 5 to 9
numbers
ORDER
******
The petitioner/ employer has filed the present petition
against the order dated 02.02.2005 passed by the Industrial Court
of Madhya Pradesh in C.A. No.1191/2003.
The facts of the case in short are as under:
1/ Respondent No.1 was appointed on the post of Gate Keeper
in the establishment of the petitioner on 01.01.1991. His services
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were terminated on 16.09.1993 by an oral order. He challenged the
aforesaid action of the petitioner by raising a dispute under section
58 of the M.P. Shops and Establishment Act, 1958 before the
Appellate Authority. Vide award dated 30.05.1997, the learned
Appellate Authority had directed to the petitioner to reinstate
respondent No.1 into the service and pay him the wages from
16.09.1993 till the date of reinstatement. Being aggrieved by the
aforesaid order, a review was filed by the petitioner before the
same authority which was allowed and proceedings were restored.
Against the said order dated 22.09.1997, respondent No.1
approached this Court by way of W.P. No.1109/1999. Vide order
dated 17.08.2000, this Court finally disposed of the writ petition by
restoring the order dated 30.05.1997 passed by Appellate Authority
with a modification that respondent No. 1 would be entitled only
for 50% of the back wages that has been directed by the appellate
authority.
2/ After the aforesaid order, the petitioner has calculated the
amount payable to respondent No. 1 on the basis of last wages
drawn at the time of termination i.e. Rs. 360 and deposited
Rs.20282.40 vide receipt No.1647 before the Labour Court.
3/ Respondent no. 1 approached the learned Authority under
section 15 of the Payment of Wages Act,1936 claiming back wages
(50%) at the rate of 1320/- per month and also bonus. The learned
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authority has rejected the claim, against which he approached the
Industrial Court Indore by way of C.A. No.1191/2003. Vide order
dated 02.02.2005, the learned Industrial Court has held that the
language used by the appellant authority is not very clear. It does
not lead to the inference that the applicant was entitled to the back
wages only at the rate he was drawing on the date of the
termination of his service. Accordingly, directed that the petitioner
to furnish the details of the wages which the other employees of the
category of the respondent were getting during the period from
16.09.1993 to 23.11.2000 and also directed Labour Court to pass
afresh order within a period of two months after furnishing the
detail by the petitioner/employer.
4/ Being aggrieved by the order dated 02.02.2005, the
petitioner has filed the present petition before this Court. Vide
order dated 07.04.2005, this Court has stayed the execution of the
impugned order, hence, the Labour Court could not undertake the
procedure as directed by the Industrial Court.
5/ Shri Bhargav learned counsel submits that the appellate
authority while passing the order of reinstatement directed for
payment of wages from 16.09.1993 till the date of reinstatement. It
means last wages drawn at the time of termination. Although the
aforesaid order has been partly modified by this Court by directing
to pay 50% as awarded by the appellate authority and accordingly,
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the petitioner has rightly calculated the wages payable to the
respondent and deposited before the Labour Court. The claim of
respondent No.1 at the rate of Rs.1320 per month under the head of
back wages is unreasonable, unsustainable and contrary to the
award passed by the appellate authority. Learned counsel further
submits that respondent No. 1 has wrongly approached the
authority under the Payment of Wages Act claiming recovery of
back wages instead of filing an execution proceeding before the
appellate authority under the M.P. Shops and Establishment Act,
1958. The Industrial Court has travelled beyond its jurisdiction by
modifying the award passed by the appellate Authority, hence, the
impugned order is per se illegal, beyond authority and liable to be
set aside.
We have heard Shri Bhargav, learned counsel for the
petitioner.
5/ The appellate authority while passing the order under section
58 (2)(b) of the Shop & Establishment Act, 1958 has ordered for
reinstatement with wages for the period during which he was kept
out of employment i.e. wages payable from 16.09.1993 till the date
of joining. This relief has been granted under the head of back
wages.
Section 58 of the Shop & Establishment Act, 1958 is
reproduced below:-
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(b) The Appellate Authority may, after giving notice in the
prescribed manner to the employer and the employee, dismiss
the appeal or direct the reinstatement of the employee with or
without wages for the period during which he was kept out of
employment or direct payment of compensation without
reinstatement or grant such other relief as it deems fit in the
circumstances of the case.
6. The appellate authority has granted relief of reinstatement
with 100% back wages. The High court has modified the order by
reducing 100% back wages into 50% back wages. The petitioner is
wrongly giving the meaning of a word (fnukad rd fd vof/k ds fy;s )
as last wages drawn.
7. The 'last wages drawn' is used only in section 17(b) of the
Industrial Dispute Act,1947 which is payable to the workman in
proceeding initiated by the employer against the award of
reinstatement in favour of the workman . By way of final relief, the
Labour Court or the authorities under the other Industrial law is
competent to grant the relief of reinstatement with back wages.
There may be a lack of expression while granting relief of back
wages but the learned Industrial Court has rightly held that it does
not lead to the inference that the respondent was entitled to the
back wages only at the rate he was drawing on the date of the
termination of his service. Back wages are always granted when
the termination is held to be illegal, meaning thereby had the
employee been in service, he would have got entire wages in his
service, therefore, it cannot be termed as he would be entitled only
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for the wages which he was getting at the time of termination.
8. At last Shri Bhargava learned counsel has argued that
respondent No. 1 ought to have filed an application for execution
before the appellate authority under the Shop and Establishment
Act instead of approaching labour court under the Payment of
Wages Act. This contention is also liable to be rejected. section
2(27) of the Shop and Establishment Act,1958 defines the word
"wages" it means wages as defined under the Payment of Wages
Act, 1936. The definition of "wages"as defined under section 2(vi)
of the Payment of Wages Act, 1936 is as under "-
2(vi) "wages" means all remuneration (whether by way of
salary, allowances or otherwise) expressed in terms of money
or capable of being so expressed which would, if the terms of
employment, express or implied, were fulfilled, be payable to a
person employed in respect of his employment or of work done
in such employment, and includes-
(a) any remuneration payable under any award or settlement
between the parties or order of a Court;
(b) any remuneration to which the person employed is entitled
in respect of overtime work or holidays or any leave period;
(c) any additional remuneration payable under the terms of
employment (whether called a bonus or by any other name);
(d) any sum which by reason of the termination of employment
of the person employed is payable under any law, contract or
instrument which provides for the payment of such sum,
whether with or without deductions but does not provide for
the time within which the payment is to be made;
(e) any sum to which the person employed is entitled under any
scheme framed under any law for the time being in force; but
does not include.......
9. Under section 15 of the Payment of Wages Act,1936 the
competent authority or Labour Court may hear and decide for any
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specified area all claims arising out of deductions from the wages,
or delay in payment of the wages of persons employed or paid in
that area, including all matters incidental to such claims. In view of
the above section 2(vi) (a) of respondent No.1 has rightly
approached under section 15 before the Labour Court to claim back
wages from the petitioner.
10. Therefore, the petitioner has wrongly understood the order
passed by the Appellate authority that the respondent has been
granted relief of the payment of last wages drawn instead of back
wages. This fact has been rightly clarified by the learned Industrial
Court vide order dated 02.02.2005. The petition is utterly
misconceived and the same is accordingly, dismissed.
Record be sent back. The petitioner is at liberty to approach
the Labour Court seeking implementation of order dated
02.02.2005 as directed by the learned Industrial Court.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
praveen/-
Digitally signed by PRAVEEN
NAYAK
Date: 2022.03.29 11:12:08
+05'30'
