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2000 DIGILAW 376 (CAL)

MARY MENDES v. LYTTON HOTEL

2000-08-02

HRISHIKESH BANERJI, S.B.SINHA

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S. B. SINHA, J. ( 1 ) THIS appeal is directed against the judgement and order dated April 4, 2000 passed by a learned single Judge of this Court in W. P. No. 145 of 2000, whereby and whereundcr the writ petition filed by the respondent herein had been allowed. However, as against certain findings the writ petitioner/ responcnt has also filed a cross-objection. ( 2 ) THE appellant herein, was an employee working in the respondent's hotel. Her services were terminated on May 2, 1995. A reference was made by the Appropriate Government to the respondent Tribunal on November 16, 1995. An application for maintenance and interim relief in terms of Section 15 (2) (b) of the Industrial Disputes Act, 1947 was filed by the appellant herein on January 22, 1997 after the parties had filed their respective written-statements. The said application was allowed by the learned Tribunal in terms of his order dated November 10, 1997 whereby and whereunder the respondent was directed to pay 50% of the salary of the appellant herein at the rate of Rs. 1800/- per month for the first three months from May 2, 1994 and thereafter 75 per cent of Rs. 1800/- per month with further direction that the current monthly sums of interim relief should be given by the respondent to the appellant within 10th day of each subsequent month in Court and the arrear sum of interim relief on calculation be paid to the appellant by the respondent in six equal monthly instalments. ( 3 ) ON or about November 20, 1998 two witnesses were examined on behalf of the appellant. Witnesses on behalf of the respondents were also examined on March 11, 1999, April 8, 1999, April 16, 1999 and April 7, 1999. By an order dated July 7, 1999 the respondent was directed to pay atleast 50% of the total arrear amount of interim relief by August 3, 1999. But by order dated August 3, 1999 the respondent was directed to make payment of amount of arrears of interim relief uptp July 31, 1999 by August 20, 1999 in default whereof it was directed that the respondent would be debarred from taking part in the proceeding. Allegedly on the ground of non-payment of interim relief, by an order dated August 20, 1999 the question was directed to be heard ex parte. Allegedly on the ground of non-payment of interim relief, by an order dated August 20, 1999 the question was directed to be heard ex parte. On or about August 20, 1999, the appellant agreed to pay the arrears at the rate of Rs. 7000/- per month. On September 8, 1999 they prayed for adjournment as they wanted to move this Court against the said order. But the said prayer was not only refused, but on that day the evidence was closed and the records were put up in the second half for disposal and on the next day, i. e. September 9, 1999, the impugned award was passed. ( 4 ) THE learned Trial Judge, in terms of his aforementioned judgement, although, inter alia, held that the conduct of the appellant was not fair, allowed the appeal only on the ground that an order under Section 15 (2) (b) was not enforceable. It was held :"the determination of the amount admissible is, therefore, not an empty formality. The words in Section 15 (2) (b) are not otiose but they serve a useful purpose, if not some useful purposes. But quite clearly the intention of the Legislature was not to compel a quick disposal of the industrial dispute by compelling the employer to make payments of large amounts of interim relief and thus get the matter disposed of as quickly as possible. Before ending this judgement a comparison between Section 15 (2) (b) and Section 17-B is to be made. Under Section 17-B the words expressly make the employer liable to make payment. Under Section 15 (2) (b) such liability of the employer is not specifically mentioned. Moreover Section 17-B is now well known to be a subsistence allowance, which is not recoverable by the employer even if the employer wins the matter before the High Court or the Supreme Court. Section 15 (2) (b) is, however, on a totally different footing. Any payment made by the employer voluntarily, on the amount determined as admissible under Section 15 (2) (b) is not unrecoverable. Even in our case the Industrial Tribunal directed the workman to file an undertaking to return the interim relief if the award goes against the workman. This additionally emphasizes the voluntary nature of payment by the employer of amounts determined in Section 15 (2) (b ). Even in our case the Industrial Tribunal directed the workman to file an undertaking to return the interim relief if the award goes against the workman. This additionally emphasizes the voluntary nature of payment by the employer of amounts determined in Section 15 (2) (b ). If the employer considered his case to be comparatively weak, he might go on making payments and reduce his total liability at the end. If, however, the employer considers that it has a strong case, it might well choose to pay any amount determined under Section 15 (2) (b), as it will be faced with recovery problems even if the industrial legal battle is ultimately won by the employer. " ( 5 ) COMPARING the provision of Section 15 (2) (b) to Section 17-B, the learned Trial Judge held that the Parliament deliberately had made the payment for an order under Section 17-B of the Industrial Disputes Act as recoverable. It appears that before the learned Trial Judge, a decision of a Division Bench of this Court in Raibahadur Bissessurlal Motilal Haluwasiya Trust v. Presiding Officer, reported in 2000-I-LLJ-104 (Cal-DB), was cited, but the learned Trial Judge apparently has not discussed the effect thereof, nor arrived at a finding as to whether the ratio thereof was applicable in the case at hand or not. A Full Bench of this Court in B. G. Sampat (Babulal Gobardhandas Sampat) v. State of West Bengal and Ors. reported in 2000-I-LLJ- 565 (Cal-FB) has discussed various aspects of the import and effect of the provisions contained in Section 15 (2) (b) of the Industrial Disputes Act and in that view of the matter it is not necessary to burden this judgement with the interpretation of the said provision. Suffice it to point out that Section 15 (2) (b) of the Industrial Disputes Act has been held to be a benevolent legislation. An interim relief, when granted, is meant to be complied with. How and in what manner the same would be complied with is a question which, having regard to the facts situation of this case, need not be answered. It must, however, be pointed out that the learned Trial Judge has proceeded wholly on a wrong premise. An interim relief, when granted, is meant to be complied with. How and in what manner the same would be complied with is a question which, having regard to the facts situation of this case, need not be answered. It must, however, be pointed out that the learned Trial Judge has proceeded wholly on a wrong premise. Payments made under Section 15 (2) (b) of the Act by the employer is neither voluntary nor such amount is paid by the employer for the purposes mentioned by the learned Trial Judge. ( 6 ) THE fact remains that an order under Section 15 (2) (b) had been passed as far back as on January 22, 1997. The respondent did not question the legality of the said order. In fact, as indicated hereinbefore, it, when orders dated April 16, 1999 and July 7, 1999 were passed, agreed to pay the arrears at the rate of Rs. 7000/-per month. There is absolutely no reason as to why the respondent should not be held to be bound thereby. ( 7 ) IT is a well settled principle of law that normally the principles of interpretation of statute, to the effect that when an order is passed by the Court, the same is meant to be implemented, should be followed. The Legislature cannot be held to have the intention while legislating the said provision that such orders made thereunder may not be implemented. The learned Trial Judge, therefore, was not correct in holding that the orders made under Section 15 (2) (b) of the Industrial Disputes Act was not enforceable at all. Such construction of the aforementioned provision, in our opinion, would make the entire provision otiose and the intention of the Legislature, wherefor such provision has been enacted, would be totally frustrated. In Rai Bahadur's case (supra), although this Court has held that there should be a substantive provision for striking off the defence, it did not rule out such a consequence of non-observance of repeated orders passed by the learned Industrial Tribunal or the Labour Court, as the case may be. ( 8 ) IN the fact situation of that case it was held that the management could not be debarred from raising any jurisdictional issue. ( 8 ) IN the fact situation of that case it was held that the management could not be debarred from raising any jurisdictional issue. This Court in that case further observed that such a power may be held to be discretionary wherefor conduct of the parties and other relevant factors may have to be taken into consideration. In fact, in that case itself this Court had remitted the matter back to the Industrial Tribunal with certain directions. ( 9 ) MR. Anindya Mitra, learned senior counsel appearing on behalf of the respondent, however, submits that an order passed under Section 15 (2) (b) of the Industrial Disputes Act can be enforced only by taking recourse to Section 33-C (2) of the Industrial Disputes Act. That may be one of the provisions which may be taken recourse to, for enforcing the order based under Section 15 (2) (b) of the Act although the said question need not be finally answered. But having regard to the conduct of the respondent herein, we are of the opinion that the respondent should not be permitted to examine any witness further or further cross-examine the witnesses appearing on behalf of the appellant unless it pays off the entire arrears. ( 10 ) THE learned Tribunal, however, in our opinion, was not correct in dealing with the matter in the manner in which it has been done. The orders impugned in the writ application read thus:"order No. 58, dated August 20, 1999. The workman is present alongwith her representative. But none has appeared on behalf of the Hotel upto 12. 00 hrs. The arrear amount of Interim Relief has not been paid by the Hotel. Hence, in view of the earlier order the Hotel authority is debarred from taking part in the further proceedings. Fix September 8, 1999 for another hearing of the reference on merit ex parte. Order No. 59 (Later) dated August 20, 1999. On behalf of the Hotel one petition has been filed with the prayer for allowing the Management to liquidate the total arrear amount of interim Relief paying Rs. 7000/-per month. It is considered that there is no bona fide intention of the Hotel for making payment of interim relief to the workman. And that the Hotel authority has only mala fide intention depriving the workman from her legitimate dues. Hence, the petition is considered and rejected. 7000/-per month. It is considered that there is no bona fide intention of the Hotel for making payment of interim relief to the workman. And that the Hotel authority has only mala fide intention depriving the workman from her legitimate dues. Hence, the petition is considered and rejected. The same be kept on record. Order No. 60, dated September 8, 1999. A petition has been filed on behalf of the Hotel stating therein that the Hotel is going to move the High Court against the orders of this Tribunal. Heard. The other side made serious objection stating the Hotel Authority has not yet paid arrear amount of interim relief inspite of repeated directions. As such there is no sufficient ground for this Tribunal for allowing the Hotel authority's prayer as there is no bona fide intention of the Hotel authority for the interest of justice. Hence, the petition is rejected. On behalf of the Hotel no further time will be allowed and evidence is closed. Put up the record in second half today for disposal of the case ex parte. " ( 11 ) HAVING regard to the fact that the respondent had volunteered to make payment at the rate of Rs. 7000/- per month, the matter ought to have been, in our opinion, considered in its own merit. Furthermore, when on September 8, 1999 the respondent had prayed for an adjournment to move this Court against the order dated August 20, 1999, the same ought to have been allowed. The Tribunal, which has all the trappings of the Court and exercises judicial functions, must apply its mind and having regard to the well settled judicial norms, ought to have granted one opportunity to the appellant to move this Court. In any event having regard to the fact that the parties had already adduced evidence, the award ought to have been passed on merit. ( 12 ) AS indicated in Rai Bahadur's (supra) case, even if a defence is struck off, the management is not debarred from raising the question of jurisdiction which goes to the root of the matter. Striking off the defence would only mean, such defences which lead to issues on merit and not to the issues of jurisdiction. ( 12 ) AS indicated in Rai Bahadur's (supra) case, even if a defence is struck off, the management is not debarred from raising the question of jurisdiction which goes to the root of the matter. Striking off the defence would only mean, such defences which lead to issues on merit and not to the issues of jurisdiction. We are, therefore, of tie opinion that the interest of justice would be subserved, if the writ application filed by the respondent herein is allowed subject to the following directions. (1) The respondent shall, within two weeks from this day, pay to the appellant a sum of Rs. one lakh; (2) The balance arrears upto August, 2000 shall be paid by September 30,2000; (3) Until the matter is disposed of by the learned Tribunal, he shall go on paying the payment unto the respondent, the monthly interim relief in terms of the direction of the learned Tribunal dated November 10; 1997 by the 15th of next month for which the payment falls due. ( 13 ) IF the respondent complies with the aforementioned directions, the learned Tribunal shall hear them on merits of the matter, failing which he can proceed as if the respondent has no defence on merit of the matter. However, having regard to the Division Bench decision of this Court, it is directed that the respondent shall be entitled to raise jurisdictional issues, if any. For the reasons aforementioned, this appeal is allowed. The impugned judgement as also the orders impugned in the writ application passed by the learned Tribunal are set aside and the appeal, as also the cross-objections are disposed of with the aforementioned directions. Having regard to the facts and circumstances of this case, however, there shall be no order as to costs.