ANIL JAIN v. JAGDISH CHANDER — 1999 DIGILAW 516 (DEL)

CYRIAC JOSEPH, J ( 1 ) THE petitioner-management of Nutan Arts Printers - has filed Writ Petition C. W. P. No. 82/97 challenging the award dated 15. 3. 1995 passed by respondent No. 2 labour court directing reinstatement of the workman Shri Jagdish Chander (respondent No. 1 ) with full back wages. Notice of the writ petition was ordered to the respondents on 9. 1. 1997. This Court also passed an interim order on 9. 1. 1997 staying the operation of the impugned award subject to the petitioner s depositing Rs. 25. 000. 00 with the Registrar of this Court within four weeks. The petitioner deposited the amount of Rs. 25,000. 00 in terms of the order dated 9. 1. 1997. The interim order passed on 9. 1. 1997 has since been extended till the disposal of the writ petition. Thepresent two applications are filed by respondent No. 1 - workman. The prayer in C. M. No. 6158/97 is for release of the sum of Rs. 25,000. 00 deposited by the petitioner to respondent No. 1 the prayer-in C. M. No. 6159/97 filed undersection 17b of the I. D. Act is for a direction to the petitioner-employer to pay Rs. 2208. 00 per month to the respondent-workman during the pendency of the writ petition. ( 2 ) SINCE the operation of the impugned award stands stayed till the disposal of thewrit petition and since the application of the workman undersection 17b of the I. DAct is being separately considered, I am not inclined to allow C. M. No. 6158/97hence the said application is liable to be dismissed. ( 3 ) C. M. No. 6159/97 is filed under Section 17b of the Industrial Disputes Actsection 17b of the 1. ( 3 ) C. M. No. 6159/97 is filed under Section 17b of the Industrial Disputes Actsection 17b of the 1. D. Act reads thus: "17-B. Payment of full wages to workman pending proceedings inhigher Courts.- Where in any case a Labour Court, Tribunal or Nationaltribunal by its award directs reinstatement of any workman and the employerprefers any proceedings against such award in a High Court or the Supremecourt, the employer shall be liable to pay such workman, during the period ofpendency of such proceedings in the High Court or the Supreme Court, fullwages last drawn by him, inclusive of any maintenance allowance admissibleto him under any rule if the workman had riot been employed in anyestablishment during such period and an affidavit by such workman hadbeen filed to that effect in such court :provided that where it is proved to the satisfaction of the High Court or thesupreme Court that such workman had been employed and had beenreceiving adequate remuneration during any such period or part thereof, thecourt shall order that no wages halt be payable under this section tor suchperiod or part, as the case may be. "it is clear from the above provision that a workman will be entitled to the benefit undersection 17b of the I. D. Act only if the following requirements are satisfied:- (A) There is an award of the Labour Court/tribunal/national Tribunal directingreinstatement of the workman. (b) The employer has preferred proceedings against such award in a Highcourt or Supreme Court. (c) The workman had not been employed in any establishment during theperiod of pendency of such proceedings. (d) The workman has filed an affidavit to the effect that he had not beenemployed in any establishment during the period of pendency of suchproceedings. If all the above requirements are satisfied, the employer will be liable to pay tothe workman full wages last drawn by him, inclusive of any maintenanceallowance admissible to him under any rule, during the period of pendency ofthe proceedings in the High Court or the Supreme Court. However, where it isproved to the satisfaction of the High Court or the Supreme Court that suchworkman had been employed and had been receiving adequate remunerationduring any such period or part thereof, the Court shall order that no wagesshall be payable under Section 17b of the 1. D. Act for such period or part asthe case may be. However, where it isproved to the satisfaction of the High Court or the Supreme Court that suchworkman had been employed and had been receiving adequate remunerationduring any such period or part thereof, the Court shall order that no wagesshall be payable under Section 17b of the 1. D. Act for such period or part asthe case may be. ( 4 ) IN the present case there is an award of the labour court directing reinstatementof respondent No. 1 workman. The employer has preferred C. W. P. No. 82/97 in thehigh Court against the said award. The said award is pending in this Court since9. 1. 1997. Respondent No. 1 workman has filed an application dated 23. 7. 1997 (C. M. No. 6159/97) stating that he had not been employed in any establishmentduring the pendency of the writ petition and claiming the benefit under Section 17b ofthe I. D. Act. Along with the said application the respondent workman has also filed anaffidavit dated 23. 7. 1997 stating that he is unemployed since the date of institution ofthe writ petition till the filing of the said affidavit. In the said affidavit the workman hasreiterated that he is unemployed since 8. 1. 1997, the date of filing the writ petition tillthe date of the affidavit i. e. 23. 7. 1997. The writ petitioner has filed a reply to theapplication undersection 17b of the I. D. Act. Apart from a general denial of paragraph3 of the application, the petitioner has not stated anything about the employment orunemployment of respondent No. 1. The Petitioner has not even alleged thatrespondent No. 1 had been employed in any establishment during the pendency ofthe writ petition. There is not even an attempt by the petitioner to prove that theworkman had been employed during the pendency of the writ petition. In thesecircumstances, I do not find any reason or circumstance to disbelieve and reject thestatement in the affidavit of respondent No. 1 that he has not been employed in anyestablishment during the pendency of the writ petition. Hence respondent No. 1 isentitled to the benefit under Section 17-B of the I. D. Act and the petitioner is liable topay such benefits to respondent No. 1. ( 5 ) IN the application under Section 17b of the I. D. Act the applicant has claimedwages at the rate of Rs. 2208. Hence respondent No. 1 isentitled to the benefit under Section 17-B of the I. D. Act and the petitioner is liable topay such benefits to respondent No. 1. ( 5 ) IN the application under Section 17b of the I. D. Act the applicant has claimedwages at the rate of Rs. 2208. 00 per month which is stated to be the present minimumwage for a skilled workman. But under Section 17b of the I. D. Act, the workman isonly entitled to full wages last drawn by him, inclusive of any maintenance allowanceadmissible to him under any rule. There is no reference to minimum wage in the saidsection. In the judgment in Dena Bank Vs. Kritikumar T. Patel reported in JT 1997 (9) S. C. 167, the Hon ble Supreme Court has held that the words "full wages lastdrawn" must be given their plain and material meaning and that they cannot be givenany extended meaning as given by the Karnataka High Court in Vishveswarayairon and Steel Ltd. Vs. M. Chandrappa and Anr. or by the Bombay High Court incarona Sahu Co. Ltd. Vs. A. K. Munakhan and Ors. The Karnataka High Court hadheld that the words "full wages last drawn" take into their fold wages drawn on thedate of termination of the services plus the yearly increments and the D. A. to beworked out till the date of the award. The Bombay High Court had laid down that theexpression "full wages last drawn" means the full wages which the workman wasentitled to draw in pursuance of the award the implementation of which is suspendedduring the pendency of the proceedings. The Bombay High Court had also observedthat the proper construction of the Section is that the workman is entitled to the fullwages which the workman would have been entitled to draw but for the pendency ofthe proceedings in the High Court or the Supreme Court. According to the Bombayhigh Court every component of wages payable on the date of the award must betaken into consideration while determining what were the wages payable to theworkman on the date of the award. According to the Bombayhigh Court every component of wages payable on the date of the award must betaken into consideration while determining what were the wages payable to theworkman on the date of the award. Overruling the above mentioned views of thekarnataka and Bombay High Courts, the Hon ble Supreme Court held that thepayment which is required to be made by the employer to the workman under Section17b is in the nature of subsistence allowance which would not be refundable orrecoverable from the workman even if the award is set aside by the High Court or thesupreme Court. It was further held that since the payment is of such a character,parliament thought it proper to limit it to the extent of the wages which were drawn bythe workman when he was in service and when his services were terminated andtherefore used the words "full wages last drawn. " For convenience, paragraphs 20,21 and 22 of the said judgment of the Hon ble Supreme Court are extracted hereunder "20. As per the decisions of the High Courts referred to above the expression"full wages last drawn" in Section 17b can mean as under : (i) Wages only at the rate last drawn and not at the same rate at whichthe wages are being paid to the workmen who are actually working. (Daladdi Cooperative Agriculture Service Society Ltd. Vsgurcharan Singh) (ii) Wages drawn on the date of termination of the services plus theyearly increment and the Dearness Allowance to be worked out till thedate of the Award (Vesheswaraya Iron and Steel Ltd. Vs. M. Chandrappa and Anr. and Kirtiben B. Amin Vs. Mafatlal Apparels ). (iii) Full wages which the workman was entitled to draw in pursuanceof the award and the implementation of which is suspended duringthe pendency of the proceedings (Carona Sahu Co. Ltd. Vs. A. K. Munakhan and Ors. , Macneil and Magor Ltd. Vs. 1st Additionallabour Court and Anr. and P. Channaiah Vs. deputy Ex. Eng. ). 21. The first construction gives to the words "full wages last drawn" their plainand material meaning. The second as well as the third construction readsomething more than their plan and material meaning in those words. Insubstance these constructions read the words "full wages last drawn" as "fullwages which would have been drawn". Such an extended meaning to thewords "full wages last drawn" does not find support in the language of Section17b. The second as well as the third construction readsomething more than their plan and material meaning in those words. Insubstance these constructions read the words "full wages last drawn" as "fullwages which would have been drawn". Such an extended meaning to thewords "full wages last drawn" does not find support in the language of Section17b. Nor can this extended meaning be based on the object underlying theenactment of Section, 17-B. 22. As indicated earlier Section 17b has been enacted by Parliament with aview to give relief to a workman who has been ordered to be reinstated underthe award of a Labour Court or the Industrial Tribunal during the pendency ofproceedings in which the said award is under challenge betore the Highcourt or the Supreme Court. The object underlying the provisions is torelieve to a certain extent the hardship that is caused to the workman due todelay in the implementation of the award. The payment which is required tobe made by the employer to the workman is in the nature of subsistenceallowance which would not be refundable or recoverable from the workmaneven if the award is set aside by the High Court or this Court. Since thepayment is of such a character Parliament thought it proper to limit it to theextent of wages which were drawn by the workman when he was in serviceand when his services were terminated and therefore used the words "fullwages last drawn". To read these words to mean wages which would havebeen drawn by the workman if he had continued in service if the orderterminating his services had not passed since it has been set aside by theaward of the Labour Court or Industrial Tribunal would result in so enlargingthe benefit as to comprehend the relief that has been granted under theaward that is under challenge. Since the amount is not refundable orrecoverable in the event of the award being set aside it would result in theemployer being required to give effect to the award during the pendency ofthe proceedings challenging the award before the High Court or the Supremecourt without his being able to recover the said amount in the event of theaward being set aside. We are unable to construe the provisions contained insection 17b to cast such a burden on the employer. We are unable to construe the provisions contained insection 17b to cast such a burden on the employer. In our opinion therefore,the words "full wages last drawn" must be given their plain and materialmeaning and they cannot be given the extended meaning as given by thekarnataka High Court in Visveswaraya Iron and Steel Ltd. , (supra) or thebombay High Court in Carona Sahu Co. Ltd. , (supra)"in the light of the clear provisions in Section 17-B of the I. D. Act and in the light of the above mentioned judgment of the Hon ble Supreme Court, respondent No. 1 workman is entitled only "to full wages last drawn" by him and he is not entitled to wages at the present rate of minimum wage. ( 6 ) I have noticed that in the above mentioned judgment the Hon ble Supreme Courtalso held that Section 17b of the I. D. Act does not in anyway preclude the High Courtor the Supreme Court from passing an order under Articles 226 and 136 of theconstitution of India to direct payment of a higher amount to the workman if suchhigher amount is considered necessary in the interest of justice. Such a directionwould be dehors the provisions contained in Section 17b and while giving thedirection the Court may also give directions regarding refund or recovery of theexcess amount in the event of the award being set aside. At the same time thehon ble Supreme Court further held that in exercise of the powers under Articles 226and 136 of the Constitution of India the High Court or the Supreme Court cannot passan order denying the workman the benefit granted under Section 17b. In paragraph24 the judgment of the Hon ble Supreme Court held thus: "24. At the same time thehon ble Supreme Court further held that in exercise of the powers under Articles 226and 136 of the Constitution of India the High Court or the Supreme Court cannot passan order denying the workman the benefit granted under Section 17b. In paragraph24 the judgment of the Hon ble Supreme Court held thus: "24. As regards the powers of the High Court and the Supreme Court underarticles 226 and 136 of the Constitution it may be stated that Section 17b, byconferring a right on the workman to be paid the amount of full wages lastdrawn by him during the pendency of the proceedings involving challenge tothe award of the Labour Court, Industrial Tribunal or National Tribunal in thehigh Court or the Supreme Court which amount is not refundable orrecoverable in the event of the award being set aside, does not in any waypreclude the High Court or the Supreme Court to pass a order directingpayment of a higher amount to the workman if such higher amount isconsidered necessary in the interest of justice. Such a direction would bedehors the provisions contained in Section 17-B and while giving the directionthe Court may also give directions regarding refund or recovery of the excessamount in the event of the award being set aside. But we are unable to agreewith the view of the Bombay High Court in Elpro International Ltd. (supra)that in exercise of the power under Articles 226 and 136 of the Constitutionan order can be passed denying the workman the benefit granted undersection 17-B. The conferment of such a right under Section 17b cannot beregarded as a restriction on the powers of the High Court or the Supremecourt under Articles 226 and 136 of the Constitution. "in the present case all the requirements under Section 17-B of the I. D. Act have been satisfied. Hence the workman is entitled to the benefit granted under Section 17b. The employer is liable to discharge his liability under Section 17-B. At the same time I do not consider it necessary in the circumstances of this case or in the interest of justice to direct payment of a higher amount than what is stated in Section 17b. Hence the workman is entitled to the benefit granted under Section 17b. The employer is liable to discharge his liability under Section 17-B. At the same time I do not consider it necessary in the circumstances of this case or in the interest of justice to direct payment of a higher amount than what is stated in Section 17b. ( 7 ) LEARNED counsel for the petitioner submitted that respondent was never employedby the petitioner, that there was no employer-employee relationship between them,that the management was proceeded ex parte in the labour court due to the fault of itscounsel, that the petitioner was a victim of some fraud and that the petitioner has avery good case in the writ petition and therefore the petitioner should not be directedto pay wages payable under Section 17-B. But while considering an applicationunder Section 17-B of the I. D. Act this Court cannot go into the merits of the case inthe writ petition. The application has to be considered strictly in terms of Section 17-B, irrespective of the merit of the writ petition. This Court can only consider whetherthe requirements mentioned in Section 17-B have been satisfied or not. If thoserequirements have been satisfied and if it has not been proved to the satisfaction ofthe Court that the workman had been employed and had been receiving adequateremuneration during the period of pendency of the writ petition, this Court has nooption but to direct the employer to pay wages to the workman in terms of Section17b, irrespective of the merit of the writ petition. As pointed out by the Hon blesupreme Court in Dena Bank Vs. Kritikumar T. Patel (supra) this Court cannotpass an order in exercise of the power under Article 226 of the Constitution of India todeny to the workman the benefit granted under Section 17b of the I. D. Act, if he isentitled to such benefit in terms of the said section. The only favour that the employercan ask for is to expedite the disposal of the writ petition. ( 8 ) LEARNED counsel for the petitioner further contended that since the operation ofaward stood stayed by this Court, respondent No. 1 was not entitled to the benefitundersection 17-B. There is no merit in this contention. The stay of operation of theaward cannot disentitle the workman to the benefit under section 17b. Section 17bwas inserted in the 1. ( 8 ) LEARNED counsel for the petitioner further contended that since the operation ofaward stood stayed by this Court, respondent No. 1 was not entitled to the benefitundersection 17-B. There is no merit in this contention. The stay of operation of theaward cannot disentitle the workman to the benefit under section 17b. Section 17bwas inserted in the 1. D. Act in order to extend some relief and solace to the workmanwhen the implementation of the award is delayed on account of the pendency of theproceedings in the High Court or the Supreme Court. Hence the stay of operation orimplementation of the award can only strengthen and support the demand for thebenefit under Section 17b. It is to be noted that in the absence of stay of operation ofthe award the employer has to reinstate the workman in service and the workman willnaturally get the wages for the period he worked and there is no need for direction topay wages. When there is stay of operation or implementation of the award isdelayed and it causes hardship to the workman concerned. It is to prevent and avoidsuch hardship to the workman that Section 17b was inserted in the Industrial Disputedact by the Industrial Disputes (Amendment) Act, 1982. The object of enacting theprovisions contained in Section 17b is to give relief to the workman when the awarddirecting reinstatement of the workman is under challenge in the High Court or thesupreme Court. The said relief is given with a view to relieve the hardship that maybe caused to a workman on account of the delay in the implementation of the awardas a result of the pendency of the proceedings in the High Court or the Supremecourt. Hence the provisions of section 17b of the I. D. Act are very much attracted in acase where the operation or implementation of the award is stayed by the High Courtor the Supreme Court. If the benefit under Section 17b is denied on the ground thatthe impugned award stood stayed by the High Court or the Supreme Court, it willviolate the letter and the spirit of the Section 17b and will defeat the very objectbehind the legislation. If the benefit under Section 17b is denied on the ground thatthe impugned award stood stayed by the High Court or the Supreme Court, it willviolate the letter and the spirit of the Section 17b and will defeat the very objectbehind the legislation. ( 9 ) HENCE the application C. M. No. 6159/1997 is allowed to the extent of directingthe writ petitioner to pay to respondent No. 1 wages due to him in terms of Section17b of the I. D. Act for the period from 9. 1. 1997 to 23. 7. 1997 within a period of fourweeks from today. Any claim under Section 17b of the I. D. Act for the period after23. 7. 1997. cannot be considered in this application since there is no affidavit asrequired under Section 17b in respect of the said period. Any such claim can beconsidered only after the workman files necessary affidavit as required under Section17b. Thus application C. M. No. 6159/97 stands disposed, of in the above terms andapplication C. M. No. 6158/97 stands dismissed. Let the writ petition be listed for directions before the Regular Bench on 30. 7. 1999.