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2010 DIGILAW 492 (GUJ)

Airport Authority Of India v. Bharat H. Parmar

2010-10-07

A.L.DAVE, M.D.SHAH

body2010
JUDGMENT A.L. DAVE, J. 1. THE appellant is aggrieved by an order passed in Misc. Civil Application No.354 of 2010 and allied matters passed on 11.3.2010 directing the appellant-Airport Authority of India to pay the amount of arrears of last drawn wages from the date of the award till the payment of last drawn wages are made, within a period of two months from the date of receiving a copy of the said order. 2. THE learned Advocate for the appellant submitted that the learned Single Judge has ordered to pay the benefit of Section 17B of the Industrial Disputes Act from the date of the award, whereas it should be from the date of filing of an application and/or affidavit claiming benefit of Section 17B and indicating that the workman was not gainfully employed. He has relied on the decision in the case of Uttaranchal Forest Development Corpn. and Anr. v. K.B. Singh, (2005) 11 SCC 449 . This being the only question involved, the learned Advocate submitted that the appeals may be heard finally. 3. LEARNED Advocate Ms Pahwa appearing for the respondent-workman submitted that the view taken by the learned Single Judge is supported by several judicial precedents, the latest one being that of the Apex Court, in Regional Authority, Dena Bank and Anr. v. Ghanshyam, JT2001 (Suppl.l) SC 229 and, therefore, the same may be upheld. She submitted that if the workman is held to be entitled to the benefit of Section 17B from the date of institution of the proceedings before the High Court or the Supreme Court, the benefit of reinstatement would be available to the workman for the interregnum period falling between the date of the award and the date of institution of the proceedings before the High Court or the Supreme Court. She, therefore, submitted that the view taken by the learned Single Judge may be upheld. 4. HAVING regard to the facts of the case, these matters are heard finally and are decided by this common judgment as per the request of the learned Advocates. She, therefore, submitted that the view taken by the learned Single Judge may be upheld. 4. HAVING regard to the facts of the case, these matters are heard finally and are decided by this common judgment as per the request of the learned Advocates. The question that arise for determination is, when a workman ordered to be reinstated by the Labour Court or the Tribunal is not reinstated in service by the employer and when such employer challenges the order before the High Court or the Supreme Court, from which date the workman would be entitled to get the last wages drawn by him as contemplated under Section 17B of the Industrial Disputes Act. 5. IN order to appreciate the rival submissions, it would be necessary to examine the language of Section 17B of the ID Act, which reads thus :- "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 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 Courts- 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 oider that no wages shall be payable under this Section for such period or part, as the case may be." 6. THE language of Section 17B makes it abundantly clear that the benefit of Section 17B would be available to the workman in whose favour the Labour Court or the Tribunal has passed an award of reinstatement and which has not been implemented. THE words, "during the period of pendency of such proceedings" would make it clear that the entitlement is during the pendency of the proceedings before the High Court or the Supreme Court, as the case may be. THE words, "during the period of pendency of such proceedings" would make it clear that the entitlement is during the pendency of the proceedings before the High Court or the Supreme Court, as the case may be. THE language of the Section does not in any manner indicate the date of the award. It is true that a view has been taken in light of the objects and reasons that this benefit is available from the date of the award so that during the interregnum period falling between the date of the award and the date of institution of the proceedings before the High Court or the Supreme Court, the workman does not remain income- less. A plain reading of the Section makes it clear that the benefit of Section 17B is to be given during pendency of the proceedings before the High Court or the Supreme Court, which would mean the period between the date of institution of the proceedings and the date of final disposal of the proceedings. It would, therefore, not cover the period prior to the date of institution of the proceedings before the High Court as it cannot be considered a period during which the proceedings were pending. This view has been taken by this Court in Letters Patent Appeal No. 1731 of 2010 decided on 26.8.2010. In Kanjibhai Punjabhai Parmar v. State of Gujarat, 2005 (1) GLH 208 , the Court concluded thus:- "26. In the result, I come to the following conclusions:- (1) The employer is liable to pay to the workman benefits under Section 17-B of the Industrial Disputes Act only from the date of filing of the proceedings before the High Court challenging the award of the Labour Court, Tribunal or National Tribunal directing reinstatement of the workman and not from the date of the award itself. (2) and (3)............" 7. IT is thus clear that the language of Section 17B itself is unambiguous and clear to suggest that the benefit under the Section would be available from the date of institution till final disposal of the proceedings before the High Court or the Supreme Court, as the case may be. IT would thus not cover the period either prior to the institution of the proceedings or subsequent to the disposal of the proceedings. IT would thus not cover the period either prior to the institution of the proceedings or subsequent to the disposal of the proceedings. When the language of the Section is clear, there is no question of looking at the objects and reasons for interpreting the Section. IT would be reading something into the Section, which is not a part of the Section. Awarding benefit of Section 17B for the period prior to institution or subsequent to disposal of the proceedings before the High Court or the Supreme Court, as the case may be, would be expanding the scope of application of Section 17B, which is not permissible in law. 8. THERE is substance in what Ms Pahwa has argued that if the proceedings before the High Court or the Supreme Court are instituted belatedly and if the benefit of Section 17B would be available to the workman only from the date of institution, the workman would suffer for the period falling between the date of the award and the date of institution, although the award of reinstatement is already passed in his favour. In our view, the scope of Section 17B cannot be expanded out of zeal or enthusiasm for redressing a cause of the workman, but the Court while exercising jurisdiction under Article 226 of the Constitution of India can certainly pass appropriate orders to protect the cause of the workman for the period falling between the date of the award and the date of institution of the proceedings before the High Court or the Supreme Court, as the case may be, by ordering the employer to pay the wages that the workman would have earned had he been reinstated in service, but in order to strike a balance and protect the interest of the employer as well, the order has to be conditional upon the outcome of the proceedings initiated by the employer. Similar view has been taken in the case of Kanjibhai Punjabhai Parmar v. State of Gujarat (supra) by this Court, where it is concluded thus :- "26 (2) This, however, does not preclude the High Court from giving any appropriate directions for payment of any amount for the period between the date of the award till the proceedings are filed before the High Court by the employer challenging the award of the Labour Court or the Tribunal. Such payment, however, should be made conditional upon the outcome of the proceedings filed by the employer." In our considered view, therefore, the benefit of Section 17B would be available from the date of the institution of the petition by the employer (4.4.2007) and not from the date of the award (14.6.2006). 9. ANOTHER question that was raised by the learned Advocate for the appellant was that the workman would be entitled to the benefit of Section 17B from the date of filing of the application claiming the benefit or from the date of affidavit indicating that he is not gainfully employed. In support of his submission, he relied on Uttaranchal Forest Development Corpn. and Anr. v. K.B. Singh, (2005) 11 SCC 449 . He relied on the observation that the entitlement of the workmen for such wages (17-B)- would be from the respective dates of filing affidavits by each of them in the Court in compliance of Section 17-B of the Industrial Disputes Act, 1947. 10. THE learned Advocate while relying on this judgment has overlooked the fact that in that case the workmen had approached the High Court directly without approaching the Labour Court or the Industrial Tribunal and the case of the employer was that such workmen who had directly approached with writ petitions to the High Court for seeking relief of reinstatement cannot be granted benefit of Section 17B of the Industrial Disputes Act as there was no evidence before the Tribunal or the Labour Court about their non-employment or gainful employment elsewhere after discontinuance from the services. THE Court directed that only such workmen in whose favour there are awards of reinstatement and who have filed affidavits of their not being in gainful employment, shall be entitled to be granted reinstatement or in lieu thereof paid wages last drawn by them on respective dates of their terminations from services. In the instant case on our hand, it is clear that the workmen have filed applications supported by affidavits to show that they were not gainfully employed during the period in question. That aspect having been established, they would be entitled to the benefit of Section 17B from the date of initiation of the proceedings before this Court by the employer. The appeals, therefore, will have to be partly allowed and the same are partly allowed. That aspect having been established, they would be entitled to the benefit of Section 17B from the date of initiation of the proceedings before this Court by the employer. The appeals, therefore, will have to be partly allowed and the same are partly allowed. The direction given in the judgment impugned is modified only to the extent that the benefit of Section 17B would be made available to the workmen-respondents from the date of institution of the proceedings before this Court (4.4.2007) and not from the date of the award (14.6.2006). The request for awarding the benefit of Section 17B from the date of filing of affidavit (4.9.2008) is turned down. 11. IT is not possible to accept the request made by Ms Pahwa that this Court may exercise jurisdiction under Article 226 of the Constitution of India and grant benefit to the workmen for the interregnum period between the date of the award (14.6.2006) and filing of the petitions (4.4.2007), firstly, because this Court is exercising appellate jurisdiction under clause 15 of the Letters Patent and, secondly, because these appeals are by the employer. This would be a separate issue to be decided by an appropriate forum. 12. THE appeals thus stand partly allowed. No order as to costs. As the appeals are disposed of, the civil applications also stand disposed of. (YVP) (Appeals partly allowed)