Debabrata Sen v. State of West Bengal — 1998 DIGILAW 259 (CAL)

JUDGMENT S. Banerjea, J.: Is an Industrial Tribunal powerless to enforce its order passed under section 15B of the Industrial Disputes Act for payment of interim relief to the workman by the employer when despite the order of the tribunal directing payment of such interim relief, the same is not paid? Can the Industrial Tribunal in such a situation direct payment of such interim relief as condition precedent for the employer to participate in the industrial dispute? Can the writ court in exercise of its jurisdiction under Article 226 of the Constitution of India direct the employer immediately to pay the interim relief directed to be paid by the Industrial Tribunal in favour of the workman when the employer despite such order does not pay such amount, but successfully creates obstruction in the matter of such payment resorting to lengthy litigations? 2. All these questions have arisen in the present writ application as despite an order passed by the Industrial Tribunal directing the employer to pay the workman interim relief, the same was not paid by the employer and the prayer of the workman for making such payment as condition precedent to participation in the Industrial Dispute by the employee has been rejected by the Tribunal. 3. Admittedly the petitioner who was appointed by the respondent No.3 as a head office staff and later was transferred to Santoshpore factory of the respondent No. 3 company was dismissed from service from September 21, 1994 after holding a disciplinary enquiry. 4. Thereafter the petitioner raised a dispute with the Assistant Labour Commissioner, West Bengal, but the conciliation proceeding having failed, a failure report was sent to the respondent No. 1 under section, 12(4) of the Industrial Disputes Act and thereafter the respondent No. 1 referred the dispute, namely, whether the dismissal of service of the petitioner is justified and- to what relief, if any, the workman is entitled to, to the 8th Industrial Tribunal, West Bengal. 5. 5. After filing of the written statement the workman made an application for interim relief in terms of section 15(2)(b) of the Industrial Disputes Act being in a serious and critical financial condition and the aforesaid application of the petitioner after contested hearing was allowed by the tribunal directing the respondent No.3, company to pay interim relief to the workman at the rate of 50% for the first 90 days from the date of reference of his last drawn salary of Rs. 3030/- and thereafter 75% of his last drawn salary till the disposal of the reference. Thereafter the petitioner as per the order of the tribunal filed an undertaking by an affidavit that he would refund the entire amount of interim relief within a fortnight if the decision ultimately goes against him. Although in course of hearing the respondent No. 3 sought to argue that such undertaking was not filed by the petitioner, it appears that such undertaking has been filed by the petitioner before the tribunal. 6. Notwithstanding such order passed by the said tribunal on February 23, 1996 directing payment of interim relief and compliance by the workman of the order of the tribunal by filing the undertaking in the manner aforesaid, the respondent No.3 company did not pay such interim relief as directed. 7. The petitioner thereafter on April 96 made an application before the said tribunal drawing its attention to the fact that the employer is not paying the amount of interim relief despite such order of the tribunal and unless such payments is enforced by the tribunal the employer will not pay such amount. 8. It was, therefore, prayed that the tribunal may pass an order making payment of interim relief as condition precedent for the employer to participate in the further hearing of the case. 10. The aforesaid application was objected to by the respondent company, inter alia, on the ground that such an application is not maintainable as the same is beyond the scope of ambit of the provisions of the Industrial Disputes Act, 1947, and the West Bengal Industrial Disputes Rules, 1958, and the adjudication upon the application for interim relief arising out of the reference is absolutely a separate proceeding which terminated upon the determination thereof. Such prayer was also objected to on the ground that the tribunal has no power to travel beyond the issue under reference. 11. Such prayer was also objected to on the ground that the tribunal has no power to travel beyond the issue under reference. 11. By order 19 dated April 23, 1996, the tribunal rejected the prayer of the workman. Such prayer of the petitioner, however, was not rejected on the ground the tribunal is powerless to enforce its order making such payment as condition precedent for participation to the hearing of the case as contended by the employer; such prayer was rejected on the ground that the order of payment of interim relief having been made by the predecessor in office of the present presiding officer of the tribunal who himself not having made such payment such a condition precedent, the present presiding officer who is successor in office cannot enforce or modify such order nor can sit as an appellate authority and the application not having been made within 15 days the original order cannot also be reviewed. It is the aforesaid order of the tribunal which has been challenged by the workman in the present writ application. 12. Before going into the merits of the case it may, however, be recorded that in course of hearing of the present writ application although the employer contested the writ petition and submitted, inter alia, the remedy of the writ petitioner, if any, is to apply before the labour court under section 33(C)(2) of the Industrial Disputes Act and the tribunal has no power to enforce its order in the manner aforesaid, ultimately on query of this court whether the company is ready and willing to pay the arrears, the employer company has paid the arrear amount of interim relief. 13. Despite such a position it was submitted by the ld. Advocate appearing for the petitioner workman that since the question of law arising in the present writ application is indeed important and may come up again and again before the industrial tribunal and there is no pronouncement of any court on such a question, the matter should be decided by this court. 14. For the reasons aforesaid and also for the reason that the workman will be entitled to payment of such interim relief month by month till disposal of the reference before the Industrial Tribunal, I have decided to determine and adjudicate the issues raised in the present writ petition on merits. 15. Mr. Parthasarathi Sengupta Ld. 14. For the reasons aforesaid and also for the reason that the workman will be entitled to payment of such interim relief month by month till disposal of the reference before the Industrial Tribunal, I have decided to determine and adjudicate the issues raised in the present writ petition on merits. 15. Mr. Parthasarathi Sengupta Ld. Counsel appearing for the petitioner workman has submitted; inter alia, that the provision of the interim relief under section 15(2)(b) of the Industrial Disputes Act having been introduced to the Industrial Disputes Act by West Bengal Amendment obviously for the purpose of giving such interim relief to a dismissed workman during the pendency of the adjudication of dispute by the tribunal, such provisions which were introduced for the benefit of the workman cannot allowed to be defeated and be made nugatory by an employer, not with standing such order for payment, refusing to make the payment. It has been submitted that such enactment having been introduced for the benefit and welfare of the workman, a liberal and purposive interpretation is to be made by the court of the relevant provisions of the Industrial Disputes Act even assuming the provisions of the Act does not empower the tribunal to enforce its order in the manner aforesaid. 16. It has been further submitted the tribunal having wide power to regulate its procedure such power of enforcement of its order must also be read in section 11 of the Industrial Disputes Act. 17. It has been further submitted that even though it is not for the court to usurp the jurisdiction of the legislature and to legislate, in the event of a gap in the legislation, it is certainly open to the court to fill up such gap by making a purposive interpretation of the relevant provisions of the Act specially relating to the beneficial piece of legislation so that the purpose of the beneficial piece of legislation is not frustrated. It has further been submitted as per the preamble to the Constitution this country being a socialist republic and the judiciary being equally committed as the executive and the legislature under the preamble of the Constitution, being an organ of the State, to ensure justice, social and economic and political and it is therefore inconceivable that the court will be a silent spectator when the very purpose and object of beneficial piece of legislation is sought to be defeated by the employer by violating a legal and valid order of a tribunal instead of making an attempt for enforcement of such order. 18. It has also been submitted by Mr. Sengupta that even if it is held the tribunal cannot enforce such order in the manner aforesaid, nonpayment of such interim relief by the employer despite direction by the said tribunal for payment of interim relief, affects the right to life of the petitioner as guaranteed under Article 21 of the Constitution of India which includes the right to livelihood and in such a situation in exercise of its writ jurisdiction, the High Court is certainly not powerless to issue a mandate even upon the employer company for payment of such amount of interim relief as directed by the tribunal. 19. The Ld. Counsel appearing for the respondent employer on the other hand has submitted, inter alia, that the provisions of the Industrial Disputes Act do not empower an Industrial Tribunal to enforce its order and therefore, the tribunal cannot pass an order making payment of such interim relief as condition precedent for the employer to participate in the adjudication before the tribunal. It has also been submitted that the High Court in exercise of its jurisdication under Article 226 of the Constitution cannot issue a mandate upon the company which is neither a State nor an authority within the meaning of Article 12 of the Constitution. 20. The provisions for grant of interim relief to the workman during the pendency of a dispute before the Industrial Tribunal, has been introduced by West Bengal Amendment of the Act. The very expression 'interim relief will indicate the aforesaid provisions has been introduced by the said amending Act for the purpose of giving interim relief to the workman. 20. The provisions for grant of interim relief to the workman during the pendency of a dispute before the Industrial Tribunal, has been introduced by West Bengal Amendment of the Act. The very expression 'interim relief will indicate the aforesaid provisions has been introduced by the said amending Act for the purpose of giving interim relief to the workman. Such enactment, therefore, is a beneficial piece of legislation introduced for the welfare of the workman, who are weaker section of-the community and for their subsistence during the pendency of adjudication of dispute. The provisions in the said section that the quantum of interim relief in case of termination of service of a workman shall be equivalent to subsistence allowance as may be admissible under the West Bengal Payment and Subsistence Allowance Act, further make such position clear. 21. Under such a situation it is inconceivable that an industrial tribunal although passes an order for grant of such relief after hearing both the parties, such an order will be allowed to be defeated and frustrated by the employer on the ground that a tribunal is powerless to enforce such order. 22. To give real meaning to such beneficial piece of legislation introduced for the welfare of weaker section of the community, namely, the workman, a liberal and purposive interpretation is required to be made of the relevant provisions of the Industrial Disputes Act. 23. The order passed by the Industrial Tribunal directing payment of such interim relief under section 15(2)(b) of the Industrial Disputes Act, is not an award and not even an interim award. It is really in the nature of an interlocutory order in terms of the aforesaid provision of the Act, for giving some relief to the workman during the pendency of the adjudication of the dispute between the parties. When the tribunal after adjudication of dispute passes an award, no doubt it becomes functous officio and, therefore, may not pass any order for enforcing such award, no provision of the Act having empowered the tribunal in respect thereof. But the position in case of grant of interim relief is different. After passing of an order under section 15(2)(b) of the Act directing payment of interim relief, the tribunal does not become functous officio as the adjudication of the dispute between the parties is still pending. But the position in case of grant of interim relief is different. After passing of an order under section 15(2)(b) of the Act directing payment of interim relief, the tribunal does not become functous officio as the adjudication of the dispute between the parties is still pending. By such an order, only the prayer for grant of such interim relief under the aforesaid provisions of the Act is disposed of. Such order therefore, is clearly in the nature of an interlocutory order pending adjudication of the main dispute between the parties. The power of the tribunal, therefore, to enforce such an order pending adjudication of dispute can certainly be read in section 11 of the Industrial Disputes Act, if a liberal and purposive interpretation of the said section is made. 24. Section 11 empowers the tribunal to regulate its own procedure. In exercise of such power, therefore, the tribunal can certainly evolve a procedure for enforcement of an order directing payment of interim relief to the workman, the same being in the nature of an interlocutory order but for which the very object and purpose of such a welfare legislation will be frustrated. 25. Under such circumstances when an employer violates the order of the tribunal directing payment of interim relief by not paying of such amount, even if such order of the tribunal has not been set aside or stayed by the higher court, it will certainly be open to the Industrial Tribunal to enforce compliance of such order of the tribunal by making payment of interim relief as condition precedent for the employer to participate in the adjudication proceedings before the tribunal and to defend itself. 26. Such an interpretation of section 11 of the Industrial Disputes Act will be quite in consonance with the principle of giving liberal and purposive interpretation of the welfare legislation so that the benefit it seeks to achieve is not frustrated. In this connection the decision of the Supreme Court in the case of Bharat Singh vs. Management of New Delhi Tuberculosis Centre, New Delhi & Others. In this connection the decision of the Supreme Court in the case of Bharat Singh vs. Management of New Delhi Tuberculosis Centre, New Delhi & Others. reported in AIR 1986 SC page 842, may be referred to where the Supreme Court held thus:- "In interpretation of statutes, Courts have steered clear of the rigid stand of looking into the words of the section alone but have attempted to make the object of the enactment effective and to render its benefits into the person in whose favour it is made. The legislators are entrusted with the task of only making laws. Interpretation has to come from the Courts........................ We share the view that where the words of a statute are plain and unambiguous effect must be given to them. Plain words have to be accepted as such but where the intention of the legislature is not clear from the words or where two construction are possible, it is the Court's duty to discern the intention in the context of the background in which a particular section is enacted. Once such an intention is ascertained the Courts have necessarily to give the statute a purpose or a functional interpretation. Now, it is trite to say that acts aimed at social amelioration giving benefits for the have-nots should receive liberal construction. It is always the duty of the Court to give such a construction to a statute as would promote the purpose or object of the Act. A construction that promotes the purpose of the legislation should be preferred to a literal construction. A construction which would defeat the rights of the have-nots and the underdog and which would lead to injustice should always be avoided...............”. 27. It is also necessary to keep it in mind while interpreting the provision of Industrial Disputes Act that one of the object and purpose of the said Act is to ensure industrial peace by settlement of disputes between the parties. If during the pendency of adjudication of disputes between the parties before the industrial tribunal, the employer is allowed to violate the order of the tribunal directing payment of interim relief with impunity and thereby to frustrate the very object and purpose of such legislation for payment of interim relief, the faith and confidence of the workman upon the machineries and functionaries under the Industrial Disputes Act are like to be eroded affecting industrial peace. Such a purposive and liberal interpretation of section 11 of the Act as aforesaid will certainly be in consonance with the object and purpose of Industrial Disputes Act. 28. The ld. Judge of the Tribunal fell into error in rejecting the prayer of the workman on the ground that his predecessor in office not having made such payment of interim relief as condition precedent for participation of the employer in the proceedings, he as a successor not being the appellate authority cannot pass such order or modify the order. As pointed out hereinbefore with the passing of the order directing payment of interim relief, the tribunal does not become a functous officio but merely the application under section 15(2)(b) of the Act is disposed of. Despite such order when the same is not complied with by the employer and such payment is not made and a prayer is made before the tribunal for enforcement of such order, the question before the tribunal is how to enforce such order and not whether such order for payment has been made by the previous presiding officer. The tribunal does not cease to exist with the change of the presiding officer nor the main proceeding before the tribunal terminates with change of such officer but the tribunal remains as such and the proceeding continues. Such order of payment, as pointed out hereinbefore being in the nature of an interlocutory order in exercise of its power under section 11 of the Industrial Disputes Act such order can be enforced in the manner aforesaid even by successor in office of the tribunal even though the original order has been made by his predecessor in office. 29. Our country is a Socialist Democratic Republic and as held by the Supreme Court in the case of D. S. Nakara vs. Union of India reported in AIR 1982 SC 130 the principal aim of a Socialist State as envisaged in the preamble is to eliminate inequality of income and status and standard of life. The basic framework of socialism is to provide a decent standard of life to the working people and specially to provide security from cradle to grave. It is also the constitutional duty of the State, as envisaged in the preamble of the Constitution, to secure to its citizens justice, social, economic and political. 30. The basic framework of socialism is to provide a decent standard of life to the working people and specially to provide security from cradle to grave. It is also the constitutional duty of the State, as envisaged in the preamble of the Constitution, to secure to its citizens justice, social, economic and political. 30. Under the Constitution, therefore, judiciary like the other two wings of the State, namely, the executive and the legislature, is equally committed to secure such social and economic justice to the people. In the matter of interpretation of welfare legislation which have been enacted for the welfare of the weaker sections of the community like workman it is. therefore, necessary for the court to give such an interpretation to an enactment to ensure that social and economic justice is secured to a citizen and not frustrated. 31. In consonance with such principle, therefore, unless, while interpreting the provisions of Industrial Disputes Act and the power of the tribunal to grant interim relief under section 15(2)(b) of the Act, the power of the tribunal to enforce its order under the provisions of the Act is read in section 11 of the Act, the very purpose and object of such enactment for payment of interim relief will be frustrated and the very purpose of such enactment to give some relief to the workman during the pendency of the adjudication of the dispute before the tribunal so that he can subsist will be defeated. It will be a mockery of justice to ask the workman to invoke the provision of section 33(C)(2)(b) of the Industrial Disputes Act for realisation of such amount and thereby encouraging a defaulting employer to prevent the workman to enjoy the benefit of such interim relief by tiring him out with lengthy litigations. 32. For the same reason the High Court while exercising its jurisdiction under Article 226 of the Constitution will not be powerless to issue a mandate upon the employer, even if the said employer is not an authority or State within the meaning of Article 12 of the Constitution to carry out the order of the tribunal for payment of interim relief. 33. It has been sought to be argued by the respondents that such mandate cannot be issued to such a person when no public element is involved and when no statutory duty is imposed upon such a private person. 34. 33. It has been sought to be argued by the respondents that such mandate cannot be issued to such a person when no public element is involved and when no statutory duty is imposed upon such a private person. 34. When an Industrial Tribunal after contested hearing passes an order for payment of interim relief to the workman under section 15(2)(b) of the Act, but employer does not comply with the order of the tribunal and does not pay such amount, the right to life of workman which includes the right of livelihood as guaranteed under Article 226 of the Constitution of India is certainly seriously affected. It is the legal obligation of every party before the tribunal to comply with the legal and valid order of the tribunal. When the tribunal passes an order directing payment of interim relief under section 15(2)(b), which was enacted for the welfare of the workman, the employer is certainly legally obliged to carry out such order of the tribunal unless the same is set aside or stayed by higher forum. 35. The writ court, therefore, cannot be a silent spectator while exercising its jurisdiction under Article 226 of the Constitution in such a situation where the employer violates the order of the tribunal directing payment of such interim relief with impunity and thus does not conform to its legal obligation and duty to carry out the valid order of the tribunal the result of which would be to defeat the very purpose of the enactment for grant of interim relief and affectation of the right to life of the workman. It will, therefore, certainly be open to High Court under Article 226 of the Constitution in such a situation where the employer violates the order of the tribunal affecting the right to life of the workman and defeating the very purpose of enactment introduced for the welfare of the workman, to issue a mandate upon the employer even if the same is a person or a juristic person to perform its legal obligation of complying with the order of the tribunal. 36. It is the fundamental duty of every citizen also under Article 51(a) of the Constitution of abide by the Constitution and respect its ideal. All courts and tribunals function under the Constitution and its orders are required to be complied with. 36. It is the fundamental duty of every citizen also under Article 51(a) of the Constitution of abide by the Constitution and respect its ideal. All courts and tribunals function under the Constitution and its orders are required to be complied with. It is also the Constitution goal of the State to ensure social and economic justice to a citizen specially the weaker sections of the community. 37. It will, therefore, not only be the duty of every citizen to strive towards such goal, it will also be the legal duty and obligation of every citizen to obey the order of the courts and tribunal functioning under the Constitution to dispense justice between the parties. 38. For the reasons stated above, in the present case this court is certainly empowered to issue a mandate in exercise of its jurisdiction under Article 226 of the Constitution upon the respondent employer to comply with the order of the tribunal by paying the interim relief. 39. The writ application, therefore, succeeds. The impugned order of the tribunal being No. 19 dated 24.4.96 is hereby set aside. The respondent is directed to comply with the order of the tribunal being No. 14 dated 23.2.96 directing payment of interim relief. The arrear of such relief up to December, 1997 already having been paid by the employer during the pendency of the present proceedings, the balance amount of arrear shall be paid within three weeks. The respondent employer is further directed to go on paying the interim relief month by month by the 5th of succeeding month, and such payment of monthly interim relief shall be made by the Tribunal a condition precedent for the employer to participate at the proceedings before the tribunal for adjudication of the disputes between the parties. The tribunal will pass an appropriate order in that respect accordingly. 40. The tribunal, however, shall dispose of the main proceeding as expeditiously as possible preferably within six months from the communication of the order. 41. The writ application is thus disposed of. 42. There will be no order as to costs. 43. Xerox certified copy of this order, if applied for be granted as expeditiously as possible to both the parties. Writ application disposed of.