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2009 DIGILAW 782 (CAL)

Ici India Ltd. v. Second Labour Court

2009-10-21

G.C.Gupta

body2009
JUDGMENT: 1. THE subject-matter of challenge in this writ petition is an aware dated 20th June, 2003 by which the learned 2nd Labour Court passed the following order: "THE O.P. is directed to reinstate the applicant and to pay all her backwages deducting what has already been paid in that regard, within 60 days from the date of receive of this order." 2. IT is not in dispute that service of the respondent was terminated by an order dated 30th September, 1997. IT is also not in dispute that the respondent reached the age of superannuation on 2nd April, 2003. Therefore, on 20th June, 2003 when the learned Tribunal passed the award there was really no scope for any reinstatement. Therefore, the only other operative part of the award under challenge is the direction upon the employer/writ petitioner to pay the back wages deducting any amount which may have already been paid. The award was challenged by this writ petition which appears to have been filed on 15th September, 2003. An interim order in terms of prayers (f) and (g) appears to have been passed on 11th February, 2004. Prayers (f) and (g) of the writ petition relate to an injunction restraining the respondents from seeking to give effect to the award and stay of operation of the award under challenge. The respondent workman has now come up with an application under section 17B of the Industrial Disputes Act, 1947 which provides as follows:- "17B. Payment of full wages to workman pending proceedings in higher Courts. The respondent workman has now come up with an application under section 17B of the Industrial Disputes Act, 1947 which provides as follows:- "17B. Payment of full wages to workman pending proceedings in higher Courts. 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 the Supreme Courts 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 such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be". 3. MR. Chatterjee, learned Senior Advocate opposing the application under section 17B submitted that section 17B does not contemplate payment of wages to a workman who has already reached the age of superannuation. He in support of his submission relied on a judgement in the case of Hind Rectifiers Ltd. vs. Presiding Officer, 1st Labour Court, Bombay and Anr., reported in 2000(111) LLJ 300 Bom. 4. MR. Deb, learned Advocate appearing for the applicant drew my attention to a judgement in the case oiBabubhai C. Kachhadiya vs. Rajkot Municipal Corporation, reported in 2001 (91) FLR 159 , wherein a Division Bench of the Gujarat High Court quoted from a judgment of the Apex Court in the case of Dena Bank vs. Kiritkumar T. Patel, wherein Their Lordships held that in exercise of power under Articles 226 and 136 of the Constitution of India an order cannot be passed denying the workman the benefit granted under section 17B of the Industrial Disputes Act. He submitted that any order by way of interim measure or otherwise which may have been passed in this writ petition cannot have the effect of denying the benefit under section 17B to the workman. He submitted that any order by way of interim measure or otherwise which may have been passed in this writ petition cannot have the effect of denying the benefit under section 17B to the workman. Therefore, the order dated 11th February, 2004 does not stand in the way of the workman reaping the benefit of the beneficial provision contained in section 17B of the I.D. Act. He also relied on a judgment of this Court in the case of Indian Explosive Ltd. vs. Fourth Industrial Tribunal, West Bengal and Ors., reported in 1987 Lab. IC 525, therein the following view was expressed: "To hold that the applicability of the provisions of sectionl7B is to be deferred till after the award becomes final would, in my view, lead to a violent departure from the real intent of the Legislature. I am in agreement with the contention of MR. Moitra that the Legislature in its wisdom has struck a balance by providing for payment month by month during the pendency of the matter before the High Court or before the Supreme Court. The wages last drawn in section 17B and the plain common sense reading of the section cannot, btit lead to the concept of social justice underlying the section which was not there in the Industrial Disputes Act so long. As to the question of refund in the event of the award being set aside, the legislation is silent, but that by itself would not render the benefit to be postponed till after the final adjudication in the matter. The wronged individual workman ought to be allowed to see the fruits of the award. The Draconian Concept of Law has undergone a change with the socio-economic changes in the country and it is too late in the day to contend, in my view, that even though Legislature thought it fit to incorporate a provision like that of section 17B, but the same would not be given effect to till after the final adjudication of the disputes." Mr. Deb learned Counsel appearing for the petitioner has also relied upon judgments reported in AIR 1976 SC 1111 , 1984(1) SCC 509 , but I do not think that those judgments have any bearing at this stage. 5. CONSIDERING the fact that the respondent workman has already reached the age of superannuation, I find lot of substance in the submission advanced by Mr. 5. CONSIDERING the fact that the respondent workman has already reached the age of superannuation, I find lot of substance in the submission advanced by Mr. Chatterjee that Court cannot direct payment of wages to a workman who has already crossed the age of superannuation. I, therefore, am not inclined to pass any order directing the writ petitioner to pay any monthly wages to the respondent workman. But, at the same time, considering the views expressed by the Apex Court in the case of Dena Bank, I am of the opinion that the workman cannot be left high and dry so long as the employer chooses to litigate on the award which is, on the face of it, in favour of the workman. I, therefore, direct the writ petitioner to deposit the amount as per the award together with interest at the rate of 12 per cent per annum with the Registrar, Original Side. The money to be deposited by the writ petitioner shall be kept in a short term fixed deposit with the United Bank of India, High Court Branch, Kolkata, to the credit of the Registrar, Original Side, subject to further order of this Court. The interest to be accrued to such deposit shall be payable to the writ petitioner month by month or quarterly as the case may be. It is made clear that this money must be deposited within a period of four weeks. In default of such deposit the order dated 11th February, 2004 shall stand vacated. 6. THIS application is, thus, disposed of. There will be no order as to costs. 7. LET urgent xerox certified copy of this order be supplied by the department within seven days to the learned Advocates appearing for the parties upon compliance with the necessary formalities. WP No.1924 of 2003; GA No. 3077 of 2009 Girish Chandra Gupta ICI India Ltd. and Anr. vs. Second Labour Court and Anr. February 11,2010 Abhijit Chatterjee, Arindam Mukherjee for the writ petitioner; S. Deb for the respondent. The Court: In an application under section 17B of the Industrial Disputes Act made by the workman in a pending writ petition, filed earlier by the employer challenging the award, this Court passed the following order: "Considering the fact that the respondent workman has already reached the age of superannuation, I find lot of substance in the submission advanced by Mr. Chatterjee that Court cannot direct payment of wages to a workman who has already crossed the wage of superannuation. I, therefore, am not inclined to pass any order directing the writ petitioner to pay any monthly wages to the respondent workman. But, at the same time, considering the views expressed by the Apex Court in the case of Dena Bank, I am of the opinion that the workman cannot be left high and dry so long as the employer chooses to litigate on the award which is, on the face of it, in favour of the workman. I, therefore, direct the writ petitioner to deposit the amount as per the award together with interest at the rate of 12 per cent per annum with the Registrar, Original Side. The money to be deposited by the writ petitioner shall be kept in a short term fixed deposit with the United Bank of India, High Court Branch, Kolkata, to the credit of the Registrar, Original Side, subject to further order of this Court. The interest to be accrued to such deposit shall be payable to the writ petitioner month by month or quarterly as the case may be. It is made clear that this money must be deposited within a period of four weeks. In default of such deposit the order dated 11th February, 2004 shall stand vacated." 8. DUE to inadvertence on the part of the Court it was directed that "The interest to be accrued to such deposit shall be payable to the writ petitioner month by month or quarterly as the case may be". From the tenor of my judgement it would appear that the intention was that so long as the writ petition is pending, the workman should get the interest of the deposit directed to be made. I intended to direct that the interest shall be payable to the applicant but by mistake I directed that the interest be paid to the petitioner. It is a mistake on the part of the Court which is palpable from the order and the mistake of the Court can be corrected ex debito justitiae. It was occasioned by an accidental slip on my part which is also clear from the tenor of the order and is, therefore, also open to correction under section 152 of the Code of Civil Procedure. Mr. It was occasioned by an accidental slip on my part which is also clear from the tenor of the order and is, therefore, also open to correction under section 152 of the Code of Civil Procedure. Mr. Chatterjee, learned Senior Advocate appearing for the writ petitioner, advanced two-fold submissions (a) in the event the applicant is allowed to appropriate the interest it would be difficult for the employer to recover the money from the workman; (b) if the mistake since pointed out by the workman had been disclosed immediately after obtaining the certified copy, the petitioner niay have chosen to prefer an appeal against the judgment and order dated 21st October, 2009. Both the points, according to me, are without any substance. 9. THE first point that in the event of the writ petition being allowed the employer shall have no means of recovering the money from the workman is a consequence intended by the legislature itself. Section 17B of the Industrial Dispute Act is silent on the subject and therefore there is nothing that the Court can do about it. With respect to his second submission it can straightway be pointed out that it is still open to the writ petitioner to prefer an appeal against this order and obtain a stay thereof if the order is bad. THEre is, as such, no reason why I should not pass an order which is necessary to secure the ends of justice. 10. THIS application is, therefore, disposed of by clarifying that the interests already accrued and to be accrued upon the fixed deposit made by the writ petitioner shall be payable to the workman applicant. 16. All parties concerned including the Registrar, Original Side, are to act on a signed copy of the minutes of this order on the usual undertakings.