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2006 DIGILAW 50 (PNJ)

Bal Krishan Sareen v. Bank of India

2006-01-06

D.K.JAIN, HEMANT GUPTA

body2006
JUDGMENT HEMANT GUPTA, J. 1. The present appeal by the workman under Clause X of the Letters Patent is directed against the order passed by the learned Single Judge on August 19, 2004, whereby the management was directed to pay last drawn wages to the workman from the date of filing of the writ petition. The entire arrears from the date of filing of the writ petition were also ordered to be paid to the workman within a period of one month from the date of said order. 2. The learned Labour Court vide its award dated 30.01.2004 found that the order of terminating the services of the appellant is illegal. The appellant was ordered to be reinstated with continuity of service and full back wages. The said award is subject matter of challenge by the management in Civil Writ Petition No.7375 of 2004. In the said writ petition, a prayer was made for stay of the said award. The writ petition was admitted for hearing on 13.05.2004 by a Division Bench of this Court but no ad interim order was granted. Subsequently, the management filed a Civil Miscellaneous application No.10450 of 2004 for stay of the award which was dismissed by the learned Single Judge of this Court on 10.06.2004 when the following order was passed:- “ Even though prayer for stay was not granted by the Motion Bench when writ was admitted. No occasion, thus, arises to stay operation of the award dated 30.01.2004, Annexure P-15. Dismissed.” 3. The management filed a Special Leave Petition before the Hon’ble Supreme Court challenging the order dated 13.05.2004 and 10.06.2004 and for stay of the award dated 30.01.2004. The said Special Leave Petition was dismissed on 19.07.2004 when the following order was passed:- “The main grievance of the learned counsel appearing for the petitioner in this case is that the court below has not secured the interest of the company while refusing the interim order. If that be so, it is open to the petitioner to make suitable application before the High Court to protect its interest by seeking directions against the respondent to furnish security or putting him on terms as the court deems fit. The special Leave Petitions are dismissed.” 4. If that be so, it is open to the petitioner to make suitable application before the High Court to protect its interest by seeking directions against the respondent to furnish security or putting him on terms as the court deems fit. The special Leave Petitions are dismissed.” 4. Thereafter, the management filed Civil Miscellaneous No.13722 of 2004 wherein the management pleaded that in the absence of an interim order protecting the interest of the bank, the respondent would be required to be paid full back wages and all service benefit which he would not be entitled to receive in the event his termination is upheld by this Court. On the basis of said averments, the management sought an appropriate direction to the workman to furnish an unconditional and irrevocable bank guarantee from a nationalized bank till the final decision in the present writ petition. The management in the alternative prayed for stay of the operation of the impugned award subject to the provisions of Section 17-B of the Industrial Disputes Act, 1947. It was on this application, impugned order was passed on 19.08.2004. 5. Learned counsel for the appellant has vehemently argued that the only argument raised by the management before the Hon’ble Supreme Court was that the interest of the company has not been secured while refusing the interim order and, therefore, the management was permitted to make a suitable application to seek direction to the workman to furnish security or putting him on terms as the Court deems fit. Therefore, the learned Single Judge could not grant stay of implementation of the award which was earlier declined without any change of circumstances. An appropriate order could be sought to secure the interest of the management in the event the termination order is upheld. 6. Mr.Balram Gupta, learned counsel representing the management, has vehemently convassed that dismissal of Special Leave Petition with liberty so granted is not a bar with the management to seek stay of the implementation of the award. Learned Single Judge, keeping in view the facts and circumstances of the case, has passed an order of stay of implementation of the award subject to the provisions of Section 17-B of the Industrial Disputes Act, 1947. Therefore, no case is made out for interference in appeal. 7. Learned Single Judge, keeping in view the facts and circumstances of the case, has passed an order of stay of implementation of the award subject to the provisions of Section 17-B of the Industrial Disputes Act, 1947. Therefore, no case is made out for interference in appeal. 7. While admitting the writ petition against the award passed by the learned Labour Court on 13.01.2004, no order was passed in respect of implementation of the award. Subsequent application to seek stay of the implementation of award remained unsuccessful. In Special Leave Petition, liberty was granted to seek direction to secure the interest of the management. In Dena Bank vs. Ghanshyam , 2001(5) Supreme Court Cases 169, it has been held that the High Court while entertaining the employer’s challenge to the award, in its discretion, in appropriate cases, stay the operation of the award in its entirety or in regard to the back wages only or in regard to reinstatement without interfering with payment of wages or on payment of wages in future irrespective of the result of the proceedings before it etc., and / or impose such conditions as to the payment of salary as on the date of the order or a part of the back wages and its withdrawal by the workman as it may deem fit in the interests of justice. 8. The stay of implementation of the award was not granted on 13.05.2004 and 10.06.2004. The request before the Hon’ble Supreme Court was only to secure the interest of the management. There was no change of circumstances which would warrant stay of implementation of the award after the aforesaid orders were passed. In fact, the management has pleaded in the miscellaneous application to seek an appropriate direction to the workman “to furnish an unconditional and irrevocable bank guarantee from an nationalized bank till final decision of the writ petition.” It was only in the alternative that stay of operation of the award was sought for. Therefore, the argument raised by the learned counsel for the management that it was open to the management subsequently to seek stay of the implementation of the award was not legally permissible. Therefore, we find that the learned Single Judge could not grant an order of stay of implementation of the award on 19.08.2004 subject to the provisions of Section 17-B of the Industrial Disputes Act, 1947. Therefore, we find that the learned Single Judge could not grant an order of stay of implementation of the award on 19.08.2004 subject to the provisions of Section 17-B of the Industrial Disputes Act, 1947. Consequently, the order-dated 19.08.2004 is set aside, while allowing the present appeal. 9. However, to secure the interest of the management, in the event of success of the writ petition, the appellant shall be entitled to withdraw the amount of arrears of salary from the date of termination till the date of filing of writ petition subject to furnishing of bank guarantee from a nationalized bank. However, there shall be no order in respect of the claim of the management for stay of implementation of the award granting reinstatement in service. 10. The appeal stands disposed of accordingly. -