Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 438 (GAU)

Indian Oil Corporation v. Krishna Kanta Bhuyan

2004-07-02

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. Both the writ petitions are on same set of facts and raise the common questions of law and thus were heard analogously and are being disposed of by this common judgment and order. 2. The Writ Petition being W.P. (C) No. 5331 of 2000 has been filed by the Indian Oil Corporation Ltd. (Refinery & Pipeline Division), Guwahati Oil Refinery, Noonmati, Guwahati assailing the legality and validity of direction contained in the award dated 30.3.2000 passed by the Industrial Tribunal, Assam, Guwahati in Reference Case No. 3(C)/89. By the said direction, the respondent-workman was directed to be allowed to join his service from which he was released without, however, any pay from the date of release from service to the date of reinstatement. The said period was directed to be treated as leave without pay. The period was also directed to be treated for all other financial benefits like pension, gratuity, etc. 3. The writ petition being W.P. (C) No. 7359/2002 has been filed by the respondent-workman in W.P. (C) No. 5331/2000 assailing the legality and validity of the same very award so far as the findings recorded therein are concerned. 4. The brief facts leading to the filling of the instant writ petitions by both the Management of Indian Oil Corporation Ltd. and Workman Shri Krishna Kanta Bhuyan are as follows :- 5. The workman - writ petitioner in W.P. (C) No. 7359/2002 was in the employment of the Indian Oil Corporation, Gauhati Oil Refinery as Chemical Operator, Group - C at the relevant time. He was first appointed as Staff Institute Attendant on 5.3.1965 and thereafter was promoted as Chemical Operator (D) in the year 1972 and was further promoted as Chemical Operator (C) in which post he continued till 29.5.1986. He offered to resign from the service and submitted an application dated 27.5.1986 before the competent authority. In the said letter of resignation he assigned the reason there for to be his house-hold affairs and as such being not in a position to continue in his service. The English version of the letter of resignation dated 27.5.1986 (Annexure-Al to W.P.(C) No. 5331/2000) is reproduced below : To The Senior Personnel & Administrative Manager, Gauhati Refinery, Noonmati-20. In the said letter of resignation he assigned the reason there for to be his house-hold affairs and as such being not in a position to continue in his service. The English version of the letter of resignation dated 27.5.1986 (Annexure-Al to W.P.(C) No. 5331/2000) is reproduced below : To The Senior Personnel & Administrative Manager, Gauhati Refinery, Noonmati-20. Respected Sir, With due respect I would like to put down in writing that I would like to be released from work today the 27th May, 86 due to household problems. I am not capable of work and therefore, I had requested for my release and offered my resignation earlier but since it was not accepted I would once again request you to kindly accept this resignation letter and release me after giving my dues. Yours faithfully, Sd/- Shri Krishna Kanta Bhuyan 'C Operator (Production) OMS Division, Gauhati Refinery P.T. No. 021/1033. 6. The resignation tendered by the workman-writ petitioner in W.P.(C) No. 7359/2002 was accepted by the Management by office order dated 2/3-6-1986 w.e.f. 29.5.1986. The said office order reads as follows : OFFICE ORDER Resignation tendered by Shri Bhuyan, 'C Operator, Production Department has been accepted by the Management and he has been relieved from the services of the Corporation w.e.f. 29.5.1986 (AN). Shri Bhuyan is hereby requested to contact our Finance Department for payment of dues if any." Sd/- P.P. Dutta Personnel & Admn. Manager, 7. After about two years of such acceptance of the offer of resignation, the workman-writ petitioner raised an Industrial dispute before the Assistant Labour Commissioner (C) under Section 2A of the Industrial Dispute Act, 1947 claiming that he had not been allowed by the Management to resume his duties. The Management raised objection before the authority that since the Workman had resigned from his service and the same had been accepted, he could not raise an Industrial Dispute within the meaning of Section 2A of the Act. On failure of the conciliation proceeding the matter was referred to the Central Government and the Central Government by its order dated 21.12.1988 referred the dispute to the Industrial Tribunal for adjudication on the following issue :- "Whether the demand of Shri Krishna Kanta Bhuyan for reinstatement by the Management of Guwahati Refinery, Guwahati w.e.f. 29.5.1986 in justified. If so, what relief is the Workman entitled to ?" 8. If so, what relief is the Workman entitled to ?" 8. On receipt of the reference, the Tribunal registered Reference Case No. 3(C)/89 and issued notice to the respective parties directing them to appear and to file their respective written statement etc. After observing the due formalities and taking evidence, the Tribunal by the impugned award dated 30.3.2000 while rejecting the claim of the Workman that the letter of resignation was submitted by him as he was suffering from mental disorder due to unhealthy working condition of the Refinery and as a result of which he was not in a position to judge as to what he did, ordered for his rejoining the service on the ground that the workman had ability to work as per qualification, but out of mental frustration he had resigned from the job. 9. It is the case of the Management in its writ petition that the Tribunal upon evaluation of the evidence on record having rejected the plea of the petitioner, could not have ordered for allowing him to rejoin has duties on the grounds specified in the award which according to the Management are extraneous. On the other hand it is the case of the workman-writ petitioner that although the operative part of the award is legally valid, but the findings recorded by the Tribunal towards rejection of the aforesaid plea of the Workman is illegal and not based on the evidence on record. 10. I have heard Mr. S.N. Sarma, learned senior counsel appearing for the Management - writ petitioner and Mr. R.P. Sarma, learned counsel appearing for the workman-writ petitioner. 11. Placing reliance on the following decisions, Mr. S.N. Sarma, learned senior counsel argued that the Tribunal could not have gone beyond the issue raised before it so as to issue a direction to all the Workman to join his duties. He further submitted that after the acceptance of the offer of resignation made by the Workman, the employer-employee relationship having been severed, there could not have been any occasion for raising a dispute by the Workman as envisaged under Section 2A of the Industrial Disputes Act, 1947. He also referred to the evidence on record and submitted that in spite of the clear findings recorded by the Tribunal against the Workman, the Tribunal could not have reached the conclusion so as to allow the Workman to resume his duties. He also referred to the evidence on record and submitted that in spite of the clear findings recorded by the Tribunal against the Workman, the Tribunal could not have reached the conclusion so as to allow the Workman to resume his duties. He also referred to the relevant dates relating to the offer and acceptance of the resignation tendered by the Workman and the purported prayer for withdrawal of the same in reference to the date of the certificate issued by the Doctor. The decision relied on by Mr. Sarma are as follows :- (i) AIR 1959 SC 1191 - (The Calcutta Electrical Supply Corporation Ltd. v. The Calcutta Electric Supply Workers' Union and Ors.). (ii) AIR 1964 SC 752 - (The Bombay Gas Co. Ltd. v. Gopal Bhiva and Ors.). (iii) (1978) 3 SCC 119 - (Workman of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Anr.). (iv) (1993)2 SCC 725 - (Moti Ram v. Poran Dev). (v) (1990) 4 SCC 27 - (J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of U.P. and Ors.). (vi) AIR 1999 SC 558 - (Nand Keshor Pd. v. Indian Farmers Fertilizer Co-operative Ltd.). 12. On the other hand Mr. R.P. Sarma, learned counsel appearing for the workman-writ petitioner extensively argued in reference to the evidence on record. He submitted that evidences are overwhelming to sustain the plea of the Workman that he was suffering from mental disorder at the time of offering to resign and that the conditions at the place of working were not conducive which rendered the Workman mentally sick. He submitted that the findings recorded by the Tribunal would have been different, had there been any discussion on the evidence available records. Referring to the provision of the Mental Health Act, 1987 and the Indian Luncy Act, 1912, on the definition of lunatic, Mr. R.P. Sarma, learned counsel submitted that it was the failure on the part of the Workman in his understanding which gave rise to the situation in which unknowingly he submitted his resignation which cannot be said to be a voluntary act and the Management being aware of the state of affairs with the Workman at the relevant point of time, ought not to have accepted such a resignation. Mr. Mr. R.P. Sarma also referred to the judgment dated 2.3.1988 passed by the learned Judicial Magistrate, 1st Class, Guwahati in G.R. Case No. 774/86 under Section 325 IPC and the judgment dated 30.6.1992 passed by the Family Court, Guwahati in FC (Civil) Case No. 25/92 and DTS 25/91, in support of the plea of the Workman relating to his mental ill health. In both the judgments there is reference to the mental condition of the Workman. In the Criminal Case, the Workman was acquitted from the charge of assailing his wife with blunt weapon. In the case before the Family Court, the Workman claimed maintenance from his wife who in the meantime was appointed by the Management. He also prayed for custody of the children. The wife of the Workman did not respond to the notice issued by the Family Court and thus the proceeding proceeded exparte. A decree of divorce was granted exparte rejecting the other prayer. 13. I have considered the submission exhaustively made by the learned counsel for the parties. I have also considered the materials available on records. There is no dispute that the petitioner offered to resign by his letter dated 27.5.1986 which was accepted on 29.5.1986 by the Management and the same was communicated to him by letter dated 2.6.1986. On 18.6.1986, the petitioner submitted application praying for withdrawal of the resignation. Such withdrawal was prayed for much after the acceptance of the resignation. Thus there was no question of acting on such a letter of withdrawal by which time the employer-employee relationship had already served. Solely based on this aspect of the matter, there is no question of agitating any grievance by the Workman. However, the problem arose in view of the plea raised by the Workman that the resignation tendered by him was not voluntarily act on his part, but was prompted by mental state of affairs in which he was allegedly in. The Workman has attributed his such a mental condition to the working condition at the place of work which according to him was not at all conducive. It is in this context, the Workman adduced evidence in support of his claim including the evidence of Doctor who had issued the certificate in his favour. The Workman has attributed his such a mental condition to the working condition at the place of work which according to him was not at all conducive. It is in this context, the Workman adduced evidence in support of his claim including the evidence of Doctor who had issued the certificate in his favour. It is also in this context, the Workman referred to the aforesaid judgment of the Criminal Court and the Family Court wherein certain observations were made relating to the mental condition of the Workman at the relevant point of time. 14. The Tribunal considered in detail every aspect of the matter, taking into account the evidence on record and came to the definite finding that the pleas raised by the Workman were not acceptable. In this connection, the findings recorded by the Tribunal in the impugned award upon formulation of the point for decision "whether the Workman had voluntarily resigned his service with sound mind having capacity to understand the consequence of that act done by him or he has submitted the same due to any insanity having failed to understand the consequences of the act" are quoted below:- "But none of the witnesses including doctor has ever stated that Workman was mentally abnormal at the relevant time and was not in a position to understand the consequence of the act done by him. The evidence of PW- 3 doctor also not conclusively established that Workman was mentally unsound. From his opinion that Workman has suffered from mental depression with poor initiative to work lack of interest with suicidal tendency, it can not be held that the workman was completely a man of unsound mind at the relevant time without any capacity to understand the consequence of the act done by him. The other PWs have also not stated specifically that workman was completely made at the relevant time without any sense of understanding. Moreover, it appears from the evidence on record that he was mentally upset due to his family affairs. That he has suffered from family trouble has been aggravated from the application submitted by his wife Smt. Anu Bhuyan before the management after submission of his resignation and said application has been exhibited as ext. 30 in this case. Moreover, it appears from the evidence on record that he was mentally upset due to his family affairs. That he has suffered from family trouble has been aggravated from the application submitted by his wife Smt. Anu Bhuyan before the management after submission of his resignation and said application has been exhibited as ext. 30 in this case. In said document it has been written by his wife that workman K. Bhuyan her husband caused both physical and mental torture on her leading to filing of divorce suit which was settled earlier at the intervention of R.P. Dutta, Personnel Manager. It is also mentioned that her husband submitted resignation with the intent to put herself and her children in the state of starvation and hence financial benefit payable to the workman shall be sheared with her for her safety. In the said application his wife has never mentioned that workman was mentally unsound and out of mental unsoundness, he has submitted resignation. Moreover, to prove the lunacy of conduct, behaviour of the workman at the relevant time, the workman should have adduced the evidence of his wife in this case she is the best witness to speak in this regard. Withholding of the evidence of his wife who on the contrary has stated nothing about his unsoundness is Ext. 30, has left me no other alternative but to draw adverse inference as to genuineness of his plea of insanity. Moreover, from the other materials on record, it is established that the wife of the workman has filed criminal case against him because of torture cause on her. In the Ext. 24, resignation letter which I have already held to be genuine, the workman has specifically stated that he has submitted resignation letter earlier also, but same was not accepted by the Management and hence this time he has requested the Management to accept the same and release him accordingly. The concern department has made proposal to the management on the basis of Ext. 24 for acceptance of the same, although same was not filed giving one month notice to Management as per Company rules. The workman being a permanent employee has neither served one month notice before filing of resignation nor requested the management to pay one month salary before filing the same as per rule. The management at the request of the workman in Ext. The workman being a permanent employee has neither served one month notice before filing of resignation nor requested the management to pay one month salary before filing the same as per rule. The management at the request of the workman in Ext. 24 has accepted the same vide Ext. 28 on the basis of the proposal Ext. 26. In Ext. 28, order of acceptance, the management has released the workman from duty w.e.f. 29.5.1986 with a direction to contact the finance department of the Company for necessary payment. But on 18.6.1986 the workman has requested the management to allow him to withdraw his resignation and to allow him to join in his service as he is mentally fit to join in service. The management version is that the workman has voluntarily submitted resignation and same was accepted and he was released from the service. In view of this he was no longer in Company's service and there is no question of allowing him to join in the service. From the conciliation proceeding Ext. 36 it appears that attempt was made to settle the matter amicably, but management did not agree. In the conciliation proceeding, I find that the wife of the workman was given employment by the management after his resignation." 15. As regards the plea of the workman about the unhealthy atmosphere at the place of work, the findings recorded by the Tribunal are also in the negative. The findings recorded are quoted below : "So far as the other aspects of the case are concerned, I find that though the workman has pleaded strongly in his written statement about unhealthy atmosphere at the Refinery part where he was working due to stoppage of supply of neutralising medicine of poisonous reaction of the Refinery product which have been specifically denied by the management in the written statement, but the workman is not in a position to establish such a situation by adducing any evidence of expert in this field. The law in this aspect is that when a particular thing is pleaded by any party in any case, proceeding or reference burden lies on that party to prove the same adducing convincing evidence to that effect. The law in this aspect is that when a particular thing is pleaded by any party in any case, proceeding or reference burden lies on that party to prove the same adducing convincing evidence to that effect. Although 1 or 2 witnesses from the side of workman have stated that they also felt mentally illness, during working period, but they also felt mentally illness during working period, but they have not stated specifically that such a situation has compelled them to submit resignation. Be it what it may, the evidence of the workman himself is contradictory to the written statement. For example, in his evidence he denied filing any application like Ext. 24 which had led to sending his signature on Ext. 24 along with his admitted signature to the hand writing expert for necessary prove analysis, in his letter dated 18.6.1986 he prayed for allowing him to withdraw said letter. If he did not file any application on 27.5.1986, there is no question of allowing him in withdraw the same. Again in written statement he has stated that he filed an application on 27.5.1986 seeking leave on the ground of mental illness. On the other hand, his wife by his application Ext. 30 did not support his case of illness, but has stated that he has submitted the resignation just to put herself and her children in the state of starvation. MW-2 personnel officer of management has also started specifically that they have no information about the mental illness of the Workman. The Workman also could not adduce satisfactory evidence as to his mental disorder. The management, on the other hand after accepting his resignation employed his wife on humanitarian ground. All these factors have led me to believe that workman K. Bhuyan voluntarily submitted his resignation due to mental frustration and lack of initiative interest for work due to his family trouble. As has been establish from the materials on record and evidence of other witness adduced by the workman that he suffered from family trouble. This being the position of materials on record, I am of opinion that the management can not be held responsible for not allowing him join in his service after acceptance of resignation." 16. As has been establish from the materials on record and evidence of other witness adduced by the workman that he suffered from family trouble. This being the position of materials on record, I am of opinion that the management can not be held responsible for not allowing him join in his service after acceptance of resignation." 16. From the aforesaid findings recorded by the Tribunal on the basis of the evidence on record it is clear that none of the pleas raised on behalf of the workman found favour with the Tribunal. The question for determination now is as to whether such findings recorded by the Tribunal could be said to be perverse or based on no evidence and if not, as to whether the Tribunal with such findings recorded by it could have ordered for allowing the workman to resume his duties treating the period of absence as leave without pay, but permitting the same to be counted for all other benefits like pension and gratuity. 17. Before answering the question I first proceed to examine the decisions on which Mr. S.N. Sarma, learned senior counsel appearing for the Management placed reliance. The first three cases on which Mr. Sarma placed reliance are all relating to the jurisdiction of the Tribunal in answering a reference made to it. The Tribunal is only entitled to deal with the dispute referred to it, but it cannot travel outside the term of reference and deal with matters not included in the reference, subject of course, to incidental matters which fall within its jurisdiction. 18. The decision in the case of Moti Ram (supra) was relied upon on the question of principles governing resignation. The Apex Court in that case reiterated that in the matter of resignation from service, the services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and that in the absence of any law or rule governing the condition of his service to the contrary it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. 19. 19. In the case of J.K. Cotton Spinning (supra), the Apex Court while dealing with the same question and principle held that where a contract of service is determined on the employee exercising his right to quit, such termination cannot be said to be at the instance of the employer to fall within the first part of the definition on retrenchment in Section 2(S) of the Act in question. 20. In the case of Nand Kesho Prasad (supra), the Apex Court reiterated the same very principle relating to resignation. As in the instant case, that was also a case in which the workman agitated that he had not tendered resignation voluntarily and the letter of voluntary resignation was obtained under coercion and by giving out threat of disciplinary proceeding. The Labour Court, however, upon evaluation of the evidence on record found the resignation to be voluntary and on that basis the Apex Court held that there was no intention on the part of the workman to withdraw the letter of resignation before expiry of the date from which the resignation was to take effect. As in the instant case, the Apex Court in that case noticed that the workman did not return the salary received by him from the employer for the entire period namely form the date of submission of the letter of retirement up to the period from which resignation was to be effective. 21. The above decisions on which the learned counsel for the Management placed reliance are on twin issues viz. (i) the jurisdiction of the Tribunal to travel beyond the reference made to it and (ii) the severance of employer-employee relationship voluntarily incurred by the workman by way of offering to resign and the acceptance thereof. The whole stretch made on behalf of the workman is in respect of the second issue. While supporting the conclusion arrived at by the Tribunal in respect of the first issue raised on behalf of the Management, it is the case of the workman that there being evidence on record to establish that the resignation offered by the workman was not a voluntary act on his part, the Tribunal could not have held that there is no evidence and/or the evidences are lacking so as accept the plea raised on behalf of the workman. On the other hand, it is the case of the Management, that the Tribunal-upon elaborate discussion of the evidence on record having rejected the plea of the workman could not have arrived at the conclusion so as to issue the impugned direction to allow the workman to resume his duties which according to the Management is beyond the scope and jurisdiction of the Tribunal in terms of the reference made to it. 22. The terms of reference made to the Tribunal has been quoted above. The Tribunal was asked to answer the reference made to it as to whether the demand of the workman for reinstatement in service was justified. The Tribunal was to answer that reference either in the positive or in the negative. It is true that while answering the dispute raised, the Tribunal was also entitled to make reference to the matter incidental to the main issue, but the question for determination is as to whether the matters, it took into consideration towards ordering resumption of duty by the workman can be said to be the matters incidental to the reference. The Tribunal conclusively held that the pleas raised on behalf of the workman are not tenable and that the Management cannot be held responsible for not allowing him to join in his service after acceptance of resignation. However, even after such a conclusion, it ordered for resumption of duty by the workman on matters extraneous to the issue/reference/dispute which was beyond its jurisdiction as has been pointed out by the Apex Court in the aforesaid first three decisions relied upon by the learned counsel on behalf of the Management. Applying the ratio laid down by the Apex Court and the well known principle of law in such matters that the Tribunal cannot go beyond the reference, there cannot be any second opinion that in the instant case, the Tribunal travelled beyond its jurisdiction which is writ large on the face of the conclusion on the basis of which the impugned direction for resumption of duty by the workman has been ordered. The observations of the Tribunal towards issuance of such a direction is quoted below :- "Be it what it may, the workman is a B.Sc. and was holding a technical post in the Refinery. He obtained two promotions within a period of 10 years. The observations of the Tribunal towards issuance of such a direction is quoted below :- "Be it what it may, the workman is a B.Sc. and was holding a technical post in the Refinery. He obtained two promotions within a period of 10 years. This aspect of the case shows that the workman has ability to work as per his qualification, but out of mental frustration he has resigned the job. Although he has claimed the same to be an application for leave. It is also true that the workman was not mentally happy at the relevant time though it was not established that he was completely mad. The workman has yet to attain the age of retirement. Considering all these aspects and also considering future life of the workman I hereby direct the Management to allow him to join in his service immediately and the period from date of releasing him from the service on the basis of application dated 27.5.1986 till the date of his joining may be treated as leave period without pay. During these period the workman shall not be entitled to any financial benefit from the Company. But since the date of joining till retirement he will get all financial benefit of an employee of the Management of his grade and status. It is also ordered that the workman shall be entitled to all financial benefit after retirement like pension, gratuity etc. as per Company rule, which in my considered view, would meet the end of justice." 23. The above direction of the Tribunal on the basis of the matters extraneous to the issue raised fully support the case of the Management that the Tribunal travelled beyond its jurisdiction in issuing the direction for resumption of duty by the workman and the first three decisions relied upon fully operate in favour of the Management. However, leaving aside the extraneous consideration and or the consideration of issues/matters not related to the dispute/reference, the direction of the Tribunal for resumption of duty by the workman will have to be tested in the touchtone of the case of the workman as noticed above that the Tribunal has committed a wrong in holding that there is no evidence so as to sustain the pleas of the workman that the resignation tendered by him was not an act voluntarily incurred by him. 24. 24. I have carefully gone through the award of the Tribunal in reference to the evidence on record. The Tribunal has elaborately dealt with the evidence on record. Upon such evaluation it has held that none of the pleas raised by the workman is acceptable. Sitting in writ Court under Article 226 of the Constitution of India in exercise of power of judicial review, can it be said that such power can even extend to re-appreciation of the evidence on record or sitting on appeal over the findings recorded by the Tribunal? The scope of judicial review in such matters is by now well settled. Judicial review confines itself with the decision making process and not the decision. It is the settled law that the writ court is not a court of appeal to re-appreciate the evidence on record and sit on appeal over the findings recorded by the Tribunal. Even if a different view is possible, yet it being in the realm of appreciation of evidence. Writ Court cannot embark upon appreciation of evidence so as to reach its own conclusion on the sufficiency of evidence or on the correctness of the conclusion which is based on some evidence. 25. The Tribunal has meticulously gone through the evidence on record and upon evaluation of the same returned the findings in respect to the dispute raised against the workman. I do not find any infirmity in the reasoning arrived at by the Tribunal on the basis of such evidence. If the plea raised on behalf of the workman that the evidences are available to suggest that the resignation tendered by the workman was not out of his own volition or that the same was under a particular state of mind is to be accepted same will require fresh and de-novo enquiry into the matter re-appreciating the evidence on record and to sit on appeal over the findings recorded by the Tribunal. Even if two views are possible, it cannot be said that the view accepted by the Tribunal is erroneous and that the other view should have been accepted by it. The findings recorded by the Tribunal cannot be said to be perverse or based upon a view of facts which could never be reasonably entertained. 26. Learned counsel appearing for the workman emphatically submitted that considering the plight of the workman he deserve sympathy of this court. The findings recorded by the Tribunal cannot be said to be perverse or based upon a view of facts which could never be reasonably entertained. 26. Learned counsel appearing for the workman emphatically submitted that considering the plight of the workman he deserve sympathy of this court. I am afraid, there is no scope for any benevolence under Article 226 of the Constitution of India. In exercise of its power under Article 226 the Court cannot depart from law and enter the arena of benevolence. 27. In the instant case, the Tribunal even after recording its findings and conclusion that the pleas raised on behalf of the workman are not tenable on all counts ordered for his resumption of duties in a complete over turn of such findings which on the face of it is in direct conflict with the said findings which have been quoted above. 28. In view of the above, I do not find any infirmity in the findings recorded by the Tribunal so as to interfere with the same as has been prayed for by the workman in W.P. (C) No. 7359/2002 and consequently the same stands dismissed. The writ petition filed by the Management being W.P. (C) No. 5331/2000 deserves to be allowed since the direction contained in the award ordering resumption of duty in favour of the workman is utterly perverse, beyond the scope and jurisdiction of the reference and being not in conformity with the findings recorded by the Tribunal against the workman. Accordingly, the said writ petition being W.P. (C) No. 5331/2000 stands allowed. 29. This now leads us to Misc. Case No. 1754/2002 filed by the workman in WP(C) No. 5331/2000. By this application he has prayed for a direction to the Management to pay and continue to pay the salary in terms of Section 17(B) of the Industrial Disputes Act, 1947. Section 17(B) is quoted below :- 17B. 29. This now leads us to Misc. Case No. 1754/2002 filed by the workman in WP(C) No. 5331/2000. By this application he has prayed for a direction to the Management to pay and continue to pay the salary in terms of Section 17(B) of the Industrial Disputes Act, 1947. Section 17(B) is quoted below :- 17B. Payment of full wages to workman pending proceedings in higher court - Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court: Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period of part, as the case may." 30. The management/respondents have filed an affidavit-in-opposition opposing the claim of the petitioner. Their twofold grounds are - (a) On earlier occasion also such prayer made by the workman was rejected. (b) Section 17(B) comes into operation only when there is an order for reinstatement, but in the instant case, the direction issued by the Tribunal is for re-appointment of the workman and not reinstatement as such. 31. The workman has filed an affidavit-in-reply controverting the aforesaid two grounds. His contentions are that the issue relating to Section 17(B) has never been decided and that the earlier application filed by him was for vacating the stay order passed in favour of the Management in their writ petition being WP(C) no. 5331/2000 and the matter was decided to be heard finally. As regards the second ground, his plea is that the direction of the Tribunal in fact is for his reinstatement in service and not for reappointment. 32. 5331/2000 and the matter was decided to be heard finally. As regards the second ground, his plea is that the direction of the Tribunal in fact is for his reinstatement in service and not for reappointment. 32. In WP(C) No. 5331/2000 filed by the Management, an interim order was passed on 22.9.2000 staying the direction of the Tribunal. The workman filed Misc. Case No. 1536/2001 under Article226(3) of the Constitution of India praying for vacation of the said interim order. However, by order dated 28.1.2002 the application was disposed of as not pressed and the main writ petition was ordered to be listed for hearing in the following month. Thus it will be seen that no prayer was made for compliance of Section 17(B) of the Industrial Dispute Act, 1947. It is only the Misc. Case No. 1754/2002 the workman has prayed for payment of salary as contemplated under Section 17(B). Merely because the impugned direction of the Tribunal was stayed by this Court and the application for vacating the stay order was withdrawn cannot be said to be decision on the prayer for compliance of Section 17(B). The present Miscellaneous Application was specifically filed for the purpose and this Court as noticed above passed an order on 11.3.2003 providing disposal of the same along with the main writ petition as agreed to by the learned counsel for the parties. Even otherwise also the interim order is always subject to the result of outcome of the final adjudication. This Court having provided for final adjudication of the instant Miscellaneous Application along with the main writ petition, necessarily a decision will have to be arrived at in the same. 33. There is no dispute that the provisions of Section 17(B) mandatorily mandate the liability of the employer to pay to the workman who has been ordered to be reinstated by the Tribunal to pay the workman during the period of pendency of proceedings in the High Court or Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule, subject, however, filing of an affidavit by the workman that he has not been employed in any establishment during such period. 34. 34. In paragraph 8 of the Miscellaneous application, the workman has made a specific averment that after termination of his service and during pendency of the proceeding he has not been engaged/employed in any establishment. The application filed by the workman is duly supported by an affidavit. Thus the condition precedent for granting the benefits under Section 17(B) has been complied with by the workman. However, the question for determination and as has been urged by the Management is as to whether the direction of the Tribunal can be said to be an order of reinstatement of the workman. The impugned direction as contained in the award of the Tribunal is quoted below :- "I hereby direct the management to allow him to join in his service immediately and the period from date of releasing him from the service on the basis of application 27.5.1986 till the date of his joining may be treated as leave period without pay. During these period the workman shall not be entitled to any financial benefit from the Company. But since the date of joining till retirement he will get all financial benefits of an employee of the management of his grade and status. It is also ordered that he workman shall be entitled to all financial benefits after retirement like pension, gratuity, etc. as per company rule, which is my considered view, would meet the end of justice." 35. A bare perusal of the aforesaid direction would go to show that except the word "reinstatement", all other ingredients and factors which necessarily entail in the event of reinstatement of a workman are present. The Tribunal while directing the Management to allow the workman to join in his service granted him all other service benefits including the benefits of pension, gratuity, etc. for the intervening period, except back wages. Unlike the case of re-appointment, the workman was granted all service benefits including the past service benefits. The period of absence was also ordered to be regularised by treating the same to be on leave without pay. Thus, it is a clear case of reinstatement in service and not a case of re-appointment as contended by the Management and if that be so there is no earthly reason as to why the mandatory requirement of the provisions of the Section 17(B)shall not be complied with. 36. Thus, it is a clear case of reinstatement in service and not a case of re-appointment as contended by the Management and if that be so there is no earthly reason as to why the mandatory requirement of the provisions of the Section 17(B)shall not be complied with. 36. In view of the above the prayer made in Misc. Case No. 1754/2002 stands allowed and the Management is directed to pay the workman his entitled full wages inclusive of any maintenance allowance as may be admissible to him as per provisions of Section 17(B) of the Industrial Disputes Act, 1947 for the period of pendency of the present writ proceeding initiated by the Management. 37. Subject to the above, the writ petition in WP(C) No. 7359/2002 stands dismissed and the writ petition in WP(C) No. 5331/2000 stands allowed. There shall be no order as to costs.