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2016 DIGILAW 697 (RAJ)

Mess Committee, Konark Officers Mess v. Prem Ram

2016-05-18

KAILASH CHANDRA SHARMA, SANGEET LODHA

body2016
JUDGMENT : Sangeet Lodha, J. 1. This intra court appeal is directed against order dated 15.4.14, passed by the learned Single Judge of this Court, whereby the application preferred by the respondent-workman under Section 17-B of the Industrial Disputes Act, 1947 (“the Act”) claiming wages last drawn pending disposal of the writ petition, stands disposed of with the directions in the following terms: “In view of above, this writ petition under Section 17-B of Industrial Disputes Act, is hereby disposed with the direction to the petitioner employer to pay the last wages drawn by the respondent workman after taking into consideration the affidavit filed by the workman-respondent from the date of award within a period of one month.” 2. The relevant facts in nutshell are that the Government of India vide Notification dated 16th February, 2009, referred the dispute raised by the respondent-workman for adjudication to the Industrial Tribunal, Jodhpur (“the Tribunal”), in the following terms: “Whether the action of the management of President, Mess Committee, Konark Officers Mess, Jodhpur in terminating the services of their workman Shri Prem Ram w.e.f. 02/01/2007 is legal and justified ? If not, what relief the workman is entitled to ?” 3. The dispute referred has been adjudicated by the Tribunal vide award dated 25th October, 2011 in terms that the termination of services of the respondent-workman by the employer, the appellant herein, is not legal and justified and the respondent-workman is entitled to be reinstated with continuity of service with 25% back wages from the date of reference till the reinstatement in service. 4. The legality of the award is challenged by the appellant by way of a writ petition before this Court. During the pendency of the petition, the respondent-workman preferred an application under Section 17-B of the Act supported by an affidavit stating in unequivocal terms that he has no source of livelihood as he is not gainfully employed. 4. The legality of the award is challenged by the appellant by way of a writ petition before this Court. During the pendency of the petition, the respondent-workman preferred an application under Section 17-B of the Act supported by an affidavit stating in unequivocal terms that he has no source of livelihood as he is not gainfully employed. The application was contested by the appellant by filing a reply thereto taking the stand that no relief under Section 17-B of the Act can be granted to the respondent-workman inasmuch as, the provisions of Section 17-B apply to an industry as defined under the Act, however, the appellant herein is a private body which is operated under the supervision of the Mess Committee, a non-commercial organisation, being operated by contribution given by its members, does not fall within the definition of an industry as defined under the Act. 5. The arguments on the application under Section 17-B of the Act were heard by the learned Single Judge, however, inadvertently, while disposing of the said application, the writ petition itself has been disposed of with the directions in the terms indicated above. Hence this appeal. 6. Learned counsel appearing for the appellant contended that the learned Single Judge, on the basis of the arguments advanced on the application under Section 17-B of the Act, has erred in disposing of the writ petition. Learned counsel contended that the principal contention of the appellant before the learned Single Judge was that the appellant is an organisation consisting of officers of Army which run Officers' Mess to provide services to the officials staying in Jodhpur and not engaged in any business or trade and thus, does not fall within the definition of 'industry', as set out in Section 2(j) of the Act. Learned counsel would submit that the appellant being not an industry, the Tribunal had no jurisdiction to adjudicate the dispute referred and thus, the question raised goes to the very root of the jurisdiction of the Tribunal and therefore, the learned Single Judge was not justified in directing payment of last wages drawn to the respondent-workman without adjudicating the question as to whether the appellant establishment falls within the definition of industry or not. Learned counsel would submit that where it is demonstrated by the employer that the award passed is either without jurisdiction or is otherwise nullity, the High Court may decline to pass an order under Section 17-B of the Act. In support of the contention, learned counsel has relied upon a Full Bench decision of High Court of Madras in the matter of 'Godrej and Boyce Manufacturing Co. Ltd., Madras Vs. Principal Labour Court, Madras and Anr.', (1992) II LLJ 201 Mad, and a Bench decision of High Court of Jharkhand in the matter of 'Employer in relation to the Management of Central Mine Planning and Design Institute Ltd. Vs. Union of India & Ors.', (2001) II LLJ 910 Jhar. 7. On the other hand, Mr. R.S. Saluja, learned counsel appearing for the respondent-workman contended that Section 17-B has been enacted by the Parliament with a view to extend relief to a workman who has been ordered to be reinstated in service under the award of the Labour Court or Industrial Tribunal, which is under challenge before the High Court or the Supreme Court. Learned counsel submitted that the Act is a beneficial legislation and the object underlying the provisions of Section 17-B is to relieve to a certain extent the hardship that is likely to be caused to the workman due to delay in implementation of the award. Learned counsel submitted that at the stage of disposal of the application under Section 17-B, the Tribunal is not required to enter into the question regarding sustainability of the award passed in favour of the workman and therefore, the question sought to be raised as to whether the appellant is an industry or not, was not required to be gone into by the learned Single Judge at this stage. Learned counsel submitted that as a matter of fact, during the pendency of the petition, in exercise of the extra-ordinary jurisdiction, this Court is even empowered to pass an order directing payment of higher amount to the workman, if it is considered necessary in the interest of justice. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of 'Dena Bank Vs. Kirtikumar T. Patel', 1999 (2) SCC 106 . In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of 'Dena Bank Vs. Kirtikumar T. Patel', 1999 (2) SCC 106 . Learned counsel submitted that the application under Section 17-B is required to be disposed of before disposal of the writ petition and therefore, at the stage of the disposal of the application, the question of entering into the merits of the award does not arise. In this regard, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of 'Workmen Represented by Hindustan V.O. Corporation Limited Vs. Hindustan Veg. Oils Corporation Limited', 2000 (9) SCC 534 , and a Bench decision of this Court in the matter of 'Ram Dhan Vs. The Judge Labour Court No.2', RLW 2003(2) Raj. 999, Learned counsel submitted that the fact that respondent is not gainfully employed is not disputed by the appellant and therefore, in terms of Section 17-B of the Act, the respondent-workman is entitled to receive full back wages last drawn during the pendency of the writ petition. Learned counsel submitted that while considering the application under Section 17-B, the disposal of the writ petition, appears to be only a typographical error which can be rectified and therefore, while treating the order under appeal to be an order disposing of the application under Section 17-B, the writ petition may be restored to its original number. Learned counsel submitted that there is no interim order passed by this court in the present special appeal yet, the appellant has not paid the wages last drawn to the respondent as directed by the learned Single Judge and therefore, he is entitled for interest on the arrears. Learned counsel submitted that the respondent is also entitled for the exemplary costs. 8. We have considered the submissions of the learned counsel for the parties and perused the material on record. 9. Learned counsel submitted that the respondent is also entitled for the exemplary costs. 8. We have considered the submissions of the learned counsel for the parties and perused the material on record. 9. A bare perusal of the Objects and Reasons underlying the enactment of Section 17-B make it abundantly clear that the said provisions have been inserted in the Act so as to extend protection to a workman, who has succeeded in obtaining an award from the Labour Court or the Industrial Tribunal, directing his reinstatement in service, however, the implementation of the award is deferred on account of the employer taking the proceedings challenging the award in a High Court or the Supreme Court. As laid down by the Supreme Court in Dena Bank's case (supra), the payment which is required to be made by the employer to the workman during the pendency of the proceedings before a High Court or Supreme Court in terms of provisions of Section 17-B of the Act is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or the Supreme Court. 10. As per Section 17-B, a workman shall be entitled for payment of wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule, if following triad conditions are satisfied: (i) a Labour Court, Tribunal or National Tribunal by its award directed reinstatement of the workman; (ii) the award is challenged by the employer in a High Court or the Supreme Court; (iii) 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. 11. As per proviso to Section 17-B, where it is proved to the satisfaction of the High Court or Supreme Court that such workman had been employed or had been receiving adequate remuneration during any such period or part thereof, the court shall order that no wages shall be payable. 12. 11. As per proviso to Section 17-B, where it is proved to the satisfaction of the High Court or Supreme Court that such workman had been employed or had been receiving adequate remuneration during any such period or part thereof, the court shall order that no wages shall be payable. 12. Thus, if the triad conditions envisaged under Section 17-B specified hereinabove are satisfied, the workman cannot be denied the wages last drawn unless it is proved to the satisfaction of the High Court or the Supreme Court on the basis of the material on record that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof. 13. In Godrej and Boyce Manufacturing Co. Ltd. Madras's case (supra), a Full Bench of Madras High Court, while relying upon a Bench decision of the Madras High Court in “Chitram & Company Ltd. vs. Secretary, Ministry of Labour”, Writ Appeal No.1009/88, (decided on May 2, 1989), observed that Section 17-B cannot be construed as in any manner taking away or fettering the plenary powers of the High Court under Articles 226 and 227 of the Constitution of India to make appropriate orders taking note of relevant facts. But at the same time, the court observed unfettered power of the court under Article 226 of the Constitution of India cannot be used to destroy the statutory right granted to a workman under Section 17-B of the Act i.e. a right pendente lite which has been recognized to remove the hardship and to protect the interest of the workman. The court observed that the beneficial legislation that operates within a limited sphere is subject to conditions laid down by the section itself and that section nowhere lays down that in extreme cases where it is demonstrated that the award passed is either without jurisdiction or is otherwise a nullity, the High Court or Supreme Court is debarred from exercising its power under Article 226 and 136 of the Constitution of India. 14. 14. In Management of Central Mine Planning and Design Institute Ltd.'s case (supra), a Bench of High Court of Jharkhand, while agreeing with the view taken by the Bombay High Court in the matter of “Elpro International Ltd. vs. K.B. Joshi”, 1987 (54) FLR 428 and Madras High Court in Godrej and Boyce's case (supra), observed that whenever a writ petitioner challenges an award passed by a Labour Court or an Industrial Tribunal and raises contentions concerning the very basic jurisdictional aspects of the award or brings to the notice of the court some patent error of law apparent on the face of record and satisfies the court, prima facie, with reference to the merits of such contentions and thus, the award can be termed as perversity or nullity in the eyes of law, merely because, Section 17-B is there on the statute book there is no mandatory requirement that even in such cases, High Court must pass an order directing the writ petitioner to pay wages last drawn to the respondent during the pendency of the proceedings. However, the court added a word of caution that the cases where the High Court may decline to pass an order under Section 17-B of the Act, have to be a rarest of the rare. 15. However, the court added a word of caution that the cases where the High Court may decline to pass an order under Section 17-B of the Act, have to be a rarest of the rare. 15. A perusal of the decision in Management of Central Mine Planning and Design Institute Ltd.'s case (supra), reveals that the Jharkhand High Court while taking the view as aforesaid, following the decision of Madras High Court in Godraj and Boyce Manufacturing's case (supra) and the decision of Bombay High Court in Elpro International Ltd.'s case (supra), has also made a reference of the decision of the Supreme Court in Dena Bank's case (supra), but then, with utmost respect, it is to be noticed that the disapproval of the view taken by the Bombay High Court in Elpro International Ltd.'s case (supra) by the Supreme Court, in para no.23 of the judgment, has escaped the attention of the Bench of the Jharkhand High Court, which reads as under: “(23) As regards the power of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution, it may be stated that Section 17-B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour court, Industrial tribunal or National tribunal in the High court or the Supreme court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High court or the Supreme court to pass an order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be dehors the provisions contained in Section 17-B and while giving the direction, the court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High court in Elpro International ltd. Such a direction would be dehors the provisions contained in Section 17-B and while giving the direction, the court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High court in Elpro International ltd. that in exercise of the power under Articles 226 and 136 of the Constitution, an order can be passed denying the workman the benefit granted under Section 17-B. The conferment of such a right under Section 17-B cannot be regarded as a restriction on the powers of the High court or the Supreme court under Articles 226 and 136 of the Constitution.” (emphasis added) 16. The view taken as aforesaid, is reiterated by the Hon'ble Supreme Court in the matter of “Ch.Saraiah vs. Executive Engineer, Panchayat Raj Deparatment & Anr.”, (1999) 9 SCC 229 , where the order passed by the learned Single Judge of the High Court, directed the employer to comply with the provisions of Section 17-B of the Act, however, Division Bench reversed the order, the Hon'ble Supreme Court has taken the view that the Division Bench of the High Court committed serious error in interfering with the directions of the learned Single Judge inasmuch as, the court has no jurisdiction to direct non compliance with the provisions of Section 17-B when the condition precedent for passing an order in terms of Section 17-B, is satisfied. 17. It is pertinent to note that in the Ram Dhan's case (supra), a Bench of this court while considering the issue with regard to examination of the merits of the award at the stage of disposal of the application under Section 17-B, specifically held: “19. We find sufficient merits and substance in the contention of the learned counsel for the appellant that while considering the application of the workman filed under Section 17-B of the Act, 1947 the court is not called upon to examine the merits of the award. Section 17-B of the Act, 1947 nowhere contemplates that at this stage the court is to consider the merits of the case and where it is satisfied that the award is not sustainable the application of the workman filed under Section 17-B of the Act, 1947 can be rejected. Section 17-B of the Act, 1947 nowhere contemplates that at this stage the court is to consider the merits of the case and where it is satisfied that the award is not sustainable the application of the workman filed under Section 17-B of the Act, 1947 can be rejected. If that is taken to be the requirement of the Section 17-B of the Act, 1947 what the court is to do to add words in the Section which was not contemplated by the Parliament. Secondly, if that way the application of this provision is considered in a given case then the Section 17-B of the Act, 1947 will become ineffective and inoperative. What the court at this stage is required to consider and satisfy that the Labour Court/Industrial Tribunal/National Tribunal by its award direct reinstatement of the workman, the employer prefers proceedings against such award in High Court or the Supreme Court and the workman is not employed in any establishment during such period and affidavit by him has been filed to this effect in the Court and having been satisfied of these three ingredients of this Section the order or direction to the employer to pay full back wages last drawn by the workman inclusive of maintenance or allowances admissible under the Rule is as a rule, course or right. From the language of this Section we are satisfied at the time of consideration of the application filed under Section 17-B of the Act, the court is of not required to go on merits of the award. In the case in hand the learned Single Judge has touched the merits of the award and having been satisfied prima facie that it is not sustainable, this application is rejected. This is an error apparent on the fact of the order of the learned Single Judge.” (emphasis added) 18. In the case in hand the learned Single Judge has touched the merits of the award and having been satisfied prima facie that it is not sustainable, this application is rejected. This is an error apparent on the fact of the order of the learned Single Judge.” (emphasis added) 18. In view of the position of law discussed hereinabove, it can be safely concluded that neither the contentious issue whether the appellant establishment falls within the definition of 'industry' within the meaning of Section 2(j) of the Act or not, was required to be decided by the court while deciding the application preferred by the workman under Section 17-B of the Act nor on the basis of any prima facie opinion formed on such issue, the respondent-workman could have been denied right to wages last drawn in terms of Section 17-B. To put in other words, while deciding the application preferred by the workman under Section 17-B of the Act, pre-judging the contentious issue raised, the court cannot deny the benefits admissible to the workman if the triad conditions precedent for applicability of the provisions as specified hereinabove, are satisfied. 19. Admittedly, in the instant case, the workman has already filed an affidavit that during the period in question, he was not gainfully employed in any establishment which is not controverted by the appellant and thus, the learned Single Judge has committed no error in directing the appellant to make payment of last wages drawn to the respondent-workman in terms of provisions of Section 17-B of the Act. 20. Coming to the disposal of the writ petition itself by the learned Single Judge instead of application under Section 17-B of the Act, a bare perusal of the order impugned reveals that it was only an inadvertent typographical error that in the operative portion of the order instead of 'application', the word 'writ petition' has been typed. Obviously, had this fact been brought by the appellant or the respondent, to the notice of the court, by way of an appropriate application for rectification of error, the same would have been rectified by the learned Single Judge. Be that as it may, the prayer of the appellant for modification of the order passed by the learned Single Judge to the extent of correcting the error crept in as aforesaid, deserves to be accepted. 21. Be that as it may, the prayer of the appellant for modification of the order passed by the learned Single Judge to the extent of correcting the error crept in as aforesaid, deserves to be accepted. 21. It is really unfortunate that despite the order being passed by the learned Single Judge directing payment of wages last drawn to the respondent, the appellant did not care to make payment till this date and unnecessarily dragged the respondent to this litigation. In this view of the matter, the respondent is entitled for exemplary costs. 22. In the result, the special appeal is disposed of with the directions to the appellant to pay the wages last drawn to the respondent-workman with effect from the date of passing of the award, within a period of two weeks from the receipt of certified copy of this order, failing which the arrears shall carry interest @ 9% per annum. Needless to say that the appellant shall continue to pay the wages last drawn to the respondent every month till the disposal of the writ petition. The order impugned passed by the learned Single Judge shall be treated to be an order disposing of the application preferred by the respondent-workman under Section 17-B of the Act and not the writ petition. The order passed by the learned Single Judge shall stand modified accordingly and the writ petition shall stand restored to its original number. The respondent shall be entitled for costs quantified at Rs.10,000/- from the appellant.