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2010 DIGILAW 2073 (PNJ)

Prithi Pal Singh v. Udhey Bhan Singh Sidhu

2010-07-21

HEMANT GUPTA

body2010
Judgment Hemant Gupta, J. 1. The petitioner has invoked the jurisdiction of this Court for initiating contempt proceedings against the respondents for violating the order dated 22.8.2003 and the undertaking given before this Court on 12.10.2006. 2. The petitioner-workman raised an industrial dispute challenging his termination. The Industrial Tribunal, Punjab, vide Award dated 26.11.1999 set aside the termination and ordered petitioners reinstatement. In a writ petition i.e. CWP No. 4451 of 2001 filed by the Management, the Award was stayed on 27.4.2000, subject to the provisions of Section 17-B of the Industrial Disputes Act, 1947 (for short `the Act). On an application filed by the workman, this Court on 22.8.2003, directed the Management to pay last drawn wages in terms of Section 17-B of the Act. The said order was passed considering an argument raised by the Management that the unit, where the workman was employed has since been closed. It was noticed that since there is no application filed by the Management for variation of the order passed by the Division Bench staying the operation of the Award, subject to the provisions of Section 17-B of the Act, the Management is bound to pay the last drawn wages. 3. The Management filed an application for modification of the order dated 27.4.2000. However, since the Management has not paid any wages after the Award, the order of stay of the operation of the Award was vacated on 20.2.2004. 4. The petitioner herein filed a contempt petition alleging violation of the orders passed, inter-alia, for the reason that he is not being paid wages. In the contempt petition, payment upto 31.8.2006 was made and it was undertaken that the monthly salary shall be regularly paid. 5. Learned counsel for the petitioner has pointed out that the Management has paid salary till August, 2008 and thereafter, the Management has not paid the last drawn wages. It is also admitted by the learned counsel for the parties that the writ petition has since been dismissed and the Letters Patent Appeal is pending adjudication before this Court wherein there is no interim order. 6. Learned counsel for the petitioner relies upon Commandant, Defence Security Corps Centre, Cannanore v. Secretary, NCC Group URC Employees Association, Calicut, 2001 Lab. It is also admitted by the learned counsel for the parties that the writ petition has since been dismissed and the Letters Patent Appeal is pending adjudication before this Court wherein there is no interim order. 6. Learned counsel for the petitioner relies upon Commandant, Defence Security Corps Centre, Cannanore v. Secretary, NCC Group URC Employees Association, Calicut, 2001 Lab. I.C.2002 (Kerala) and Iron Rolling Mills Pvt. Ltd. v. Vinodkumar R. Singh, 2009 LLR 155 (Gujarat), to contend that even if the establishment is closed, the liability to pay last drawn wages in terms of Section 17-B of the Act, continues. It is a statutory right to mitigate the hardship to the workman to have a source of sustenance. 7. Learned counsel for the petitioner also relies upon a Division Bench judgment of this Court reported as Municipal Committee, Mohindergarh v. Presiding Officer, Labour Court, Gurgaon, 2003(1) S.C.T. 726 : 2002(1) SCT, 284, wherein it has been held that the right of maintenance contemplated under Section 17-B of the Act, cannot be said to be terminated on the termination of the proceedings before the High Court. It is contended that a workman is entitled to last drawn wages even if there is no interim order of stay of operation of the Award, as the provisions of Section 17-B of the Act, are not applicable only if the Award of the reinstatement is to be stayed. 8. Learned counsel for the respondent has vehemently argued that there is no order of payment of last drawn wages under Section 17-B of the Act. Therefore, the petitioner cannot claim last drawn wages more so in a contempt petition. It was open to the Management to reinstate the workman or to provide alternative employment. It is contended that since the Unit, in which the petitioner was employed, has been closed down, therefore, the petitioner was offered employment to the post of Field Assistant with Pollution Control Committee, but the same was not accepted by the petitioner. Therefore, the petitioner has no right to claim back wages. 9. It is contended that since the Unit, in which the petitioner was employed, has been closed down, therefore, the petitioner was offered employment to the post of Field Assistant with Pollution Control Committee, but the same was not accepted by the petitioner. Therefore, the petitioner has no right to claim back wages. 9. Learned counsel for the respondent has referred to a Supreme Court judgment reported as Dena Bank v. Kiritikumar T. Patel, 1998(1) S.C.T. 57 : (1999)2 Supreme Court Cases 106, to contend that the objective of introduction of provisions of Section 17-B of the Act, is to relieve to a certain extent, the hardship which is caused to the workman due to delay in implementation of the Award. The payment which is required to be made to the workman is in the nature of subsistence allowance, which will not be refundable or recoverable from the workman, even if the Award is set aside. It is, thus, sought to be argued that only in the event of stay of the Award, a workman can claim wages under Section17-B of the Act. 10. The judgment in Dena Banks case (supra) has been considered by the Division Bench of this Court in Municipal Committee, Mohindergarhs case (supra), wherein it has been held to the following effect :- "3. It is clear from the provision of this Section that amount is to be paid for the purpose of maintenance. The workman is entitled to the amount under this Section and there is no provision in this Section that he cannot claim the amount after the writ petition before the High Court is over. It may so happen that workman might have earned for his maintenance during the pendency of the writ petition or he might have spent the amount himself but if he was entitled to this amount for the purpose of maintenance, his right cannot be said to have terminated on the termination of the proceedings before the High Court. Learned counsel for the applicant-workman has cited the case Dena Bank v. Kirtikumar T. Patel, reported as 1998(1) SCT 57 (SC). Though the facts of the case were different, the Supreme Court has decided in that case that "full wages last drawn" would not mean the wages which the workman would have drawn on the date of award of reinstatement. Learned counsel for the applicant-workman has cited the case Dena Bank v. Kirtikumar T. Patel, reported as 1998(1) SCT 57 (SC). Though the facts of the case were different, the Supreme Court has decided in that case that "full wages last drawn" would not mean the wages which the workman would have drawn on the date of award of reinstatement. This judgment goes to show that the rate of wages to be considered under Section 17-B of the Act is the wages last drawn by him and not the wages which should have been entitled on the reinstatement as per the award. Therefore, the payment of wages is restricted to the rate of the wages last drawn. This also goes to show that it is only for the providing maintenance that this provision has been added in the Industrial Disputes Act. It has been held by the Supreme Court in the above mentioned case that the relief be given with a view to relieve the hardship that would be caused to a workman on account of delay in implementation of the award as a result of the pendency of the proceedings in the High Court." 11. A bare reading of the provisions of Section 17-B of the Act, shows that if in any case, the Tribunal by its Award directs reinstatement of any workman and such Award is challenged in any proceedings, then the workman is entitled to full last drawn wages inclusive of any maintenance allowance admissible to him. It is not dependent upon the order of stay of Award to be passed by the High Court. Therefore, the fact that the stay was vacated by this Court is not relevant for determining the question of payment of wages to the workman under Section 17-B of the Act. In fact, the Division Bench of this Court has held that the workman is entitled to last drawn wages even if the writ petition came to be decided. 12. The argument that the respondent has offered alternative employment to the petitioner as the unit in which the petitioner was employed, has been closed down, again does not absolve the respondent of payment of arrears of wages. Section 17-B of the Act casts an obligation on the management in which the workman was employed. 12. The argument that the respondent has offered alternative employment to the petitioner as the unit in which the petitioner was employed, has been closed down, again does not absolve the respondent of payment of arrears of wages. Section 17-B of the Act casts an obligation on the management in which the workman was employed. Since the workman has been ordered to be reinstated in a particular management, it is that management alone, which is liable to pay last drawn wages. The offer, if any, submitted by the respondent for alternative employment may be a goodwill gesture, but that does not absolve the respondent of the liability of paying last drawn wages to the workman. 13. During the course of arguments, it was admitted by the learned counsel for the parties that the writ petition filed by the Management has since been dismissed and the Letters Patent Appeal is pending. In view of the said fact, the right of last drawn wages conferred by Section 17-B of the Act, will enure for the benefit the workman even during the pendency of the Letters Patent Appeal. 14. Since the issue in respect of liability of the Management to pay arrears of last drawn wages was an issue dependent upon the interpretation of the provisions of law, therefore, while interpreting the said provisions, the respondent is given an opportunity to pay last drawn wages to the workman within three months. If such wages are not paid within the aforesaid period, the respondent shall be liable to be punished for willful disobedience to the orders passed by this Court. 15. The present petition stands disposed of in the above terms. Petition disposed of.