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Gujarat High Court · body

2012 DIGILAW 36 (GUJ)

Essar Project Ltd. v. N. D. Jagdishwara

2012-01-18

M.R.SHAH

body2012
JUDGMENT M.R.SHAH, J. ( 1. ) RULE. Shri T.R. Mishra, learned Advocate appears on behalf of the opponent in both the applications. In the facts and circumstances of the case and with the consent of learned Advocates appearing for respective parties, both the applications are taken up for final hearing today and are disposed of by this common judgment and order. [1.0] Miscellaneous Civil Application No.2366/2011 has been preferred by the applicant herein - original petitioner to modify the order dated 01.07.2005 passed by this Court in Special Civil Application No.6290 of 2005 directing the applicant herein to comply with the provisions of Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as "ID Act"). [1.1] Miscellaneous Civil Application No.2675/2011 has been preferred by the applicant herein - original petitioner to modify the order dated 22.03.2006 passed by this Court in Civil Application No.2923 of 2006 to the extent as the opponent has attained the age of superannuation on completion of the age of 58 years in May 2011, he is not entitled to receive last drawn wages as per Section 17B of the ID Act for the period after workman has attained the age of superannuation. ( 2. ) THE facts leading to the present Miscellaneous Civil Applications in nut-shell are as under :- [2.1] That respondent No.2 herein raised a industrial dispute challenging his termination and prayed for reinstatement with full backwages. That the said dispute was referred to the Labour Court, Jamnagar which was numbered as Reference LCJ No.404/ 2001. That by judgment and award dated 09.03.2005, the Labour Court, Jamnagar has allowed the said reference directing the petitioner to reinstate the respondent with full backwages and all other consequential benefits. Being aggrieved and dissatisfied with the order passed by the Labour Court, Jamnagar dated 09.03.2005 passed by in Reference LCJ No.404/2001, the applicant herein - original petitioner has preferred Special Civil Application No.6290/2005 and while admitting the Special Civil Application, this Court has granted the ad-interim relief staying further implementation and operation of the judgment and award passed by the Labour Court in aforesaid Reference LCJ No.404/2001 subject to complying Section 17B of the ID Act. [2.2] It appears that the applicant did not comply with the provisions of Section 17B of the ID Act and therefore, respondent herein preferred Civil Application No.2923/2006 before this Court making a grievance that inspite of the ad-interim relief granted subject to compliance of Section 17B of the ID Act, original petitioner has not paid any amount of wages from the date of award. That the learned Single Judge by order dated 22.03.2006 allowed the said application and directed the present applicant to pay last drawn wages inclusive of maintenance: allowances as available under service rule with effect from 09.03.2005 till 31.03.2006 within one month from the date of receipt of the said order and the applicant was further directed to pay regular wages under Section 17B of the ID Act to the present opponent every month till final outcome of the aforesaid petition. [2.3] It appears that thereafter the opponent has been paid wages due and payable under Section 17B of the ID Act as per the earlier interim order passed by this Court as well as the order passed by this Court dated 22.03.2006 in Civil Application No.2923/2006. However, the wages under Section 17B of the ID Act has not been paid after May 2011 as the opponent has attained the age of superannuation on completion of age of 58 years in May 2011. That thereafter the applicant has paid a sum of Rs.25,000/- to the opponent for the period subsequent to May 2011 pursuant to the order passed by this Court dated 21.10.2011, however, without prejudice to the rights of the applicant to adjust the payment which is going to be made, in light of the ensuing Diwali vacation. As the opponent has attained the age of superannuation on completing the age of 58 years in May 2011, the applicant has preferred the present applications for the aforesaid reliefs submitting that after the opponent has attained the age of superannuation, he shall not be entitled to any wages under Section 17B of the ID Act. ( 3. ) SHRI Keyur Gandhi, learned Advocate appearing on behalf of the applicant has vehemently submitted that after the opponent has attained the age of superannuation, there is no question of paying any wages as provided under Section 17B of the ID Act. ( 3. ) SHRI Keyur Gandhi, learned Advocate appearing on behalf of the applicant has vehemently submitted that after the opponent has attained the age of superannuation, there is no question of paying any wages as provided under Section 17B of the ID Act. It is submitted that as such after the opponent has attained the age of superannuation, there will not be any relationship of employer and employee between the petitioner and the respondent and therefore, there is no question of making payment of wages as provided under Section 17B of the ID Act. [3.1] It is further submitted by SHRI Gandhi, learned Advocate appearing on behalf of the applicant - management that the wages under Section 17B of the ID Act is payable by the management in a case where there is an order of reinstatement passed by the Labour Court and/or Industrial Tribunal in favour of the workman and that order is challenged before the higher Forum and in such an eventuality, the workman is entitled to the wages last drawn which would be in lieu of reinstatement. Therefore, it is submitted that the wages payable under Section 17B of the ID Act has a direct nexus with the reinstatement in service and therefore, the workman will be entitled to the reinstatement in service till he attains the age of superannuation and therefore, for the period subsequent thereto there is no question of reinstatement and therefore, the workman shall not be entitled to wages under Section 17B of the ID Act for the period after he attains the age of superannuation. [3.2] SHRI Gandhi, learned Advocate appearing on behalf of the applicant has heavily relied upon the decision of the Calcutta High Court in the case of I.C.I. India Limited and Anr. v. Second Labour Court and Anr. reported in 2010-III-LLJ-862 (Cat.) and the decision of the Bombay High Court in the case of Hind Rectifiers Ltd. v. Presiding Officer, 1st Labour Court, Bombay reported in MANU/ MH/0007/2001. v. Second Labour Court and Anr. reported in 2010-III-LLJ-862 (Cat.) and the decision of the Bombay High Court in the case of Hind Rectifiers Ltd. v. Presiding Officer, 1st Labour Court, Bombay reported in MANU/ MH/0007/2001. Relying upon the above decisions of the Calcutta High Court and Bombay High Court, it is Submitted by SHRI Gandhi, learned Advocate appearing on behalf of the applicant - management that in the similar set of facts and circumstances, interpreting Section 17B of the ID Act, both Calcutta and Bombay High Court have taken a view that a workman shall not be entitled to wages under Section 17B of the ID Act for the period after he attains the age of superannuation. [3.3] SHRI Gandhi, learned Advocate appearing on behalf of the applicant has also relied upon one order passed by this Court in Civil Application No.7887/2000 in Special Civil Application No.7282/1997 by which the learned Single Judge in similar set of facts and circumstances, the employer is relieved from the obligation to pay wages under Section 17B of the ID Act during the pendency of the main petition, for the period after the workman has attained the age of superannuation. Relying upon above decisions and making above submissions, it is requested to allow the present applications and modify the earlier orders passed by this Court and to hold that for the period after the opponent has attained the age of superannuation on completing the age of 58 years, the applicant is not liable to pay the wages to the opponent under Section 17B of the ID Act. [4.0] Both these applications are opposed by SHRI Mishra, learned Advocate appearing on behalf of the opponent herein - workman. It is submitted by SHRI Mishra, learned Advocate appearing on behalf of the opponent that the payment of wages under Section 17B of the ID Act cannot be said to be dependent on the existence of employer-employee relationship between the parties. It is submitted that it depends only on existence of the ingredients laid down in Section 17B of the ID Act. It is submitted that it depends only on existence of the ingredients laid down in Section 17B of the ID Act. It is submitted that as per Section 17B of the ID Act, the workman shall be entitled to the wages last drawn in a case where the three ingredients of existence of an award of the Industrial Adjudicator; directing reinstatement of the workman and the employer having preferred any proceedings against such award in the High Court or the Supreme Court and the workman having not been employed in any other establishment are satisfied. It is submitted that as provided under Section 17B of the ID Act, in such a situation the workman shall be entitled to the last drawn wages during the pendency of the proceedings before the High Court of Supreme Court as the; case may be. Therefore, it is submitted that till the proceedings before the High Court are terminated and/or disposed of which are arising out of the award of reinstatement passed by the Industrial Adjudicator, the workman shall be entitled to the wages under Section 17B of the ID Act. It is submitted that right of workman to receive wages is not limited in time till the date of superannuation. It is submitted that when there is no restriction provided under Section 17B of the ID Act, that the wages as provided under Section 17B of the ID Act would be restricted till the age of superannuation, it is not open to the Court to infer therewith and restrict the wages under Section 17B of the ID Act till the age of superannuation, which is not provided in the ID Act. ( 4. ) IT is further submitted that the wages under Section 17B of the ID Act is provided to the workman for his survival and it is by way of subsistence allowance. IT is submitted that the intention of the legislature to pay wages under Section 17B of the ID Act is that during the pendency of the proceedings arising out of the judgment and award of rein statement passed by the Industrial Adjudicator, workman has not to suffer and for the survival of the workman, the wages under Section 17B of the ID Act is provided. Therefore, it is submitted that considering Section 17B of the ID Act, workman shall be entitled to the last drawn wages as provided under Section 17B of the ID Act during the pendency of the proceedings before the High Court or the Supreme Court irrespective of whether in the meantime, the workman has attained the age of superannuation or not. [4.2] Shri Mishra, learned Advocate appearing on behalf of the opponent has heavily relied upon the decision of the Delhi High Court in the case of Management of Centaur Hotel v. P.S. Mohan Nair and Anr. reported in 2011 II CLR 703 and has submitted that the Delhi High Court after considering the decisions of the Calcutta High Court and Bombay High Court, which has been relied upon by the learned Advocate appearing on behalf of the applicant, has specifically held that workman is entitled for his wages under Section 17B of the ID Act during the pendency of the proceedings arising out of the order of reinstatement passed by the Industrial Adjudicator and the same cannot be restricted till the age of superannuation. [4.3] Shri Mishra, learned Advocate appearing on behalf of the opponent has also requested to dismiss the present application considering the conduct on the part of the applicant that despite the earlier order passed by this Court dated 21.10.2011, the amount of Rs.25,000/- was not paid within the stipulated time and even earlier also as the wages under Section 17B of the ID Act were not paid, the respondent was constrained to prefer the Civil Application. Making above submissions and relying upon above decisions, it is requested to dismiss the present applications. ( 5. ) HEARD learned Advocates appearing for respective parties at length. The short question which is posed for consideration of this Court is whether in a case where the petition is preferred before the High Court challenging the judgment and order of reinstatement passed by the Labour Court and during the pendency of the said proceedings, the workman has attained the age of superannuation, still the employer/management is obliged to pay the wages under Section 17B of the ID Act even for the period after the workman has attained the age of superannuation? [5.1] Section 17B of the ID Act reads as under:- 17B. Payment of full wages to workman pending proceedings in higher Courts. [5.1] Section 17B of the ID Act reads as under:- 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 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 or part, as the case may be. Therefore, in a case where a Labour Court, Tribunal or National Tribunal has passed an award directing the reinstatement of any workman and the employer prefers any proceedings against such an award in High Court or the Supreme Court, the employer is liable to pay such workman, during the pendency of such proceedings, 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 a Court. It cannot be disputed that if the employer/ reinstates the concerned workman pursuant to any award passed by the Labour Court or Tribunal in such a case there is no question of making any payment of wages under Section 17B of the ID Act as the workman is already employed/reinstated. As stated herein above, only in a case where there is an order passed by the Labour Court or Tribunal directing reinstatement and such an award is challenged in that case only, the workman would be entitled to the wages under Section 17B of the ID Act. As stated herein above, only in a case where there is an order passed by the Labour Court or Tribunal directing reinstatement and such an award is challenged in that case only, the workman would be entitled to the wages under Section 17B of the ID Act. Therefore, the wages as provided under Section 17B of the ID Act has a direct nexus with the reinstatement. The reinstatement of the workman in service can be only when the workman would be entitled to continue in service. On attaining the age of superannuation, the workman is not entitled to be continued in service therefore, there is no question of reinstatement in service of a workman after he has attained the age of superannuation. Under the circumstances, there is no question of making payment of wages as provided under Section 17B of the ID Act for the period after the workman has attained the age of superannuation. Considering the legislative intent it can be said that the wages under Section 17B of the ID Act are provided as such in lieu of the order of reinstatement as despite the order of reinstatement by the competent Industrial Adjudicator, under the guise of challenging the same before the High Court or the Supreme Court, the workman will be deprived of the reinstatement and the workman has not to suffer and he can survive if the wages under Section 17B of the ID Act is provided. The contention on behalf of the opponent that irrespective of the fact that whether in the meantime the workman has attained the age of superannuation, the workman shall be entitled to wages under Section 17B of the ID Act till the proceedings are pending, cannot be accepted. It is not certain when the proceedings before the High Court or the Supreme Court arising out of the order of reinstatement passed by the Industrial Adjudicator would be completed. In some cases it may happen that the proceedings before the High Court are continued for number of years and even more than 5 to 10 years after the workman has attained the age of superannuation. In that case if the contention on behalf of the opponent is accepted, in that case, he will be getting wages under Section 17B of the ID Act for number of years despite he has attained the age of superannuation. In that case if the contention on behalf of the opponent is accepted, in that case, he will be getting wages under Section 17B of the ID Act for number of years despite he has attained the age of superannuation. It is the case on behalf of the opponent that in Section 17B of the ID Act, there is no such restriction that the last drawn wages are payable to the workman till he attains the age of superannuation and according to the learned Advocate appearing on behalf of the opponent, it provides that the workman shall be entitled to last drawn wages under Section 17B of the ID Act during the pendency of the proceedings before the High Court or the Supreme Court. The aforesaid submission seems to be attractive but has no substance. At the same time, Section 17B of the ID Act also does not provide that the workman shall be entitled to the wages last drawn during the pendency irrespective of whether he has attained the age of superannuation or not. On the contrary it provides that the workman shall be entitled to full wages last drawn by him inclusive of any maintenance allowance admissible to him under any Rule. Therefore, the maintenance allowance admissible to the workman under any Rule would be, if the workman would be entitled to be continued in service. [5.2] It cannot be dispute that any provision of a statute is required to be interpreted in such a manner to achieve the purpose and object. Thus, Rule 17B of the ID Act is required to be read and interpreted reasonably and so as to achieve the purpose and objects providing wages to the concerned workman. [5.3] Therefore, on bare reading of Section 17B of the ID Act and considering the Rule of Interpretation, it is to be held that workman shall be entitled to wages under Section 17B of the ID Act during the pendency of the proceedings in the High Court or the Supreme Court till he is entitled to be continued in service and/or reinstatement in service i.e. till the workman attains the age of superannuation. [5.4] As stated herein above, only in a case where the Labour Court and/ or the Tribunal by its award has directed reinstatement of any workman and the employer prefers any proceedings against such award of reinstatement in the High Court or the Supreme Court, the employer is liable to pay such workman the wages last drawn by him. Therefore, the reinstatement in service has direct nexus with the payment of service under Section 17B of the ID Act. As stated herein above, the workman shall be reinstated in service only if he is entitled to be continued in service and not for the period thereafter. Therefore, if for any reason either on attaining the age of superannuation, the workman is not entitled to be continued in service and thereby not entitled to be reinstated in service, he is not entitled to wages under Section 17B of the ID Act. When a pointed question was asked to the learned Advocate appearing for opponent that if before few days of judgment and award passed by the Labour Court, if the workman had attained the age of superannuation, what would be the position as the Labour Court would not be in a position to pass an order of reinstatement and therefore, merely because the workman has attained the age of superannuation only after few days of passing the judgment and award and at the relevant time when the judgment and award was declared the workman has not attained the age of superannuation and therefore, the Labour Court has passed an order of reinstatement, whether in such a situation still the workman would be entitled to wages under Section 17B of the ID Act for number of years and during the pendency of the proceedings before the High Court or the Supreme Court, despite the fact that he has attained the age of 1 superannuation? To the said query, learned Advocate appearing on behalf of the opponent has submitted that in a case where the workman has attained the age of superannuation before the award is declared by the Labour Court or Tribunal, in such a case the Industrial Adjudicator would not be in a position to pass the order of reinstatement and therefore, Section 17B of the ID Act would not be applicable. Under the circumstances, in such a situation if the contention on behalf of the workman that despite the workman has attained the age of superannuation, he shall be entitled to wages under Section 17B of the ID Act during the pendency of the proceedings before the High Court or the Supreme Court is accepted and Section 17B of the ID Act is interpreted in such a manner, it would be unreasonable and therefore, Section 17B of the ID Act has to be read reasonably and construing so it is held that a workman shall be entitled to wages under Section 17B of the ID Act till he is entitled to be continued in service, may be either on attaining the age of superannuation or otherwise. [5.5] The view which is being taken by this Court is supported by the decision of the Calcutta High Court in the case of I.C.I. India Limited and Anr. (Supra) and the decision of the J Bombay High Court in the case of Hind Rectifiers Ltd. (Supra). The Calcutta High Court and Bombay High Court in the aforesaid decisions have clearly held that an employee shall be entitled to receive 17B wages only till he attains the age of superannuation. The Bombay High Court in the case of Hind Rectifiers Ltd. (Supra) has held that it is difficult to imagine the situation where an employee who has superannuated would also be entitled to receive Section 17B wages even beyond the age of superannuation. It is observed by the Bombay High Court in the aforesaid decision that the intent of the statute incorporating provision of Section 17B was that the employee should not suffer any hardship where the employer has taken recourse to file proceedings in the High Court or the Supreme Court and obtain the stay of award of reinstatement passed in the employee's favour. It is further observed by the Bombay High Court in the said decision that basic right of the employee is to continue in service till the age of superannuation only and not beyond that. It is further observed by the Bombay High Court in the said decision that basic right of the employee is to continue in service till the age of superannuation only and not beyond that. It is further observed by the Bombay High Court that therefore, the provision of Section 17B are subject to period of employment and do not cross the limit laid down in the conditions of service and therefore, the employee cannot claim anything which he cannot get under the terms of employment and thus right of the employee under Section 17B of the ID Act is subject to the basic rights which the employee enjoys under the conditions of service i.e. till the age of superannuation. The Bombay High Court has, while holding so, has assigned the reasons that since under s Section 17B of the ID Act, the employee is entitled to receive his full wages last drawn by him; that means "he is entitled to wages" and nothing more than which is entitled only till the age of superannuation. [5.6] The Calcutta High Court in the case of l.C.I. India Limited and Anr. (Supra) has also held that the payment of wages to a workman under Section 17B of the ID Act during the pendency of the proceedings in higher Courts could not be directed to be paid to workman who has reached the age of superannuation. [6.0] This Court has considered the decision of the Delhi High Court in the case of Management of Centaur Hotel (Supra), the decision which is relied upon by the learned Advocate appearing on behalf of the opponent. However, considering the said decision and the reasoning given by the Delhi High Court, with respect this Court is not in agreement with the view taken by the Delhi High Court in the said decision. The Delhi High Court in the aforesaid decision and taking the-1 aforesaid view has observed that there is inherent danger in confining the applicability of Section 17B of the ID Act till the age of superannuation of the workman/employee as it would give impetus to unscrupulous employer to delay the proceedings before the Industrial Adjudicator knowing that challenge to the award even if any against them, before the High Court would be free of burden of Section 17B of the ID Act. The aforesaid reasoning can be applicable vice a versa also. The aforesaid reasoning can be applicable vice a versa also. In a given case, it may happen that even the workman and/or employee who is apprehending that he is likely to lose in the proceedings and the order of reinstatement is likely to be set aside, he may delay the proceedings so as to earn the wages under Section 17B of the ID Act. Under the circumstances, on the aforesaid ground, it cannot be held that the workman shall be entitled to wages under Section 17B of the ID Act even for the period after he has attained the age of superannuation though if he would have been reinstated in service, he would not have been continued in service after he has attained the age of superannuation. ( 6. ) EVEN another reason given by the Delhi High Court that the wages under Section 17B would be treated as subsistence allowance during the period of proceedings and therefore, the workman shall be entitled to the wages for his subsistence during the proceedings and therefore, the workman shall be entitled to wages under Section 17B of the ID Act during the pendency of proceedings, this Court is not in agreement with the same. It is to be noted that subsistence allowance shall be entitled by the employee only during the period the workman is entitled to be continued in service and not for the period thereafter. Subsistence allowance is not to be paid to the workman and/or employee by the employer/management even for the period after the workman/employee is not entitled to be continued in service. Therefore, with respect this Court is not in agreement with the view taken by the Delhi High Court in the case of Management of Centaur Hotel (Supra) and this Court is in complete agreement with the view taken by the Calcutta High Court in the case of I.C.I. India Limited and Anr. (Supra) and Bombay High Court in the case of Hind Rectifiers Ltd. (Supra) taking a view that workman shall be entitled to wages under Section 17B of the ID Act till he attains the age of superannuation. ( 7. (Supra) and Bombay High Court in the case of Hind Rectifiers Ltd. (Supra) taking a view that workman shall be entitled to wages under Section 17B of the ID Act till he attains the age of superannuation. ( 7. ) IN view of the above, both these applications succeed and the order passed by this Court dated 01.07.2005 in Special Civil Application No.6290/2005 and the order dated 22.03.2006 passed by this Court in Civil Application No.2923/2006 are hereby modified to the extent that the applicant is obliged to pay wages under Section 17B of the ID Act to the opponent till he attains the age of superannuation on completing the age of 58 years by holding that a workman is entitled to wages under Section 17B of the ID Act during the pendency of the proceedings before the High Court or the Supreme Court till the concerned workman or employee attains the age of superannuation. However, it is directed that whatever the amount already paid to the opponent workman for the period after he has attained the age of superannuation shall not be recovered from the workman and even otherwise as observed by the Hon'ble Supreme Court in the case of Dena Bank v. Kiritikumar T. Patel reported in (1999) 2 SCC 106 , the wages under Section 17B of the ID Act are non-refundable or non-recoverable from the workman even if the award is set aside. IN the facts and circumstances of the case and with the consent of learned Advocates appearing for respective parties, Registry is directed to notify main Special Civil Application for final hearing on 27th February 2012. Rule is made absolute to the aforesaid extent in each of the applications. No costs. Rule is made absolute.