nmw517-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.517 OF 2010 IN WRIT PETITION NO.109 OF 2009 Airport Authority of India .. Petitioner Versus Indian Airport Employees’ Union & Ors .. Respondents Ms.Jane Cox for the petitioner. Mr.S.S.Patil for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATE : 7th FEBRUARY 2011 P.C. . This is a notice of motion by the 1st respondent claiming the following relief: “(a) That pending the hearing and final disposal of this writ petition, this Hon’ble Court may be pleased to grant wages under section 17B of the Industrial Disputes Act, 1947 to Sarvashree Ramesh B. nmw517-10.doc 2 Shirke, Sidharth S. Jadhav, Shankar H. Kauor, Vithal T. Jadhav, Satish Nair, Vithu S. Aeer, Hitendra Kantheria, Madhukar S. Bhosale, Vinod V. Tanpure, Saji T.K.Raju T. Borkar, Manik D. Kandagale, Ramesh G. Ravindive, Rajendra B. Khare, Shashikant G. Keluskar, Thomas C.V., Vitthal M. Nadgiri, Anup C. Jasiwan, Robert Fernandez, Babu B. Inteki Laxman Pradhan, Govind Patnaik, Suresh D. Malap, Aseyya James Parrampog, Mahendra B. Patne, Asoke Sattam, Krishna Unni C & Shivaji Mokal with effect from 26.5.2008.” 2 In the writ petition that is filed by the Airport Authority of India-petitioner, the challenge is to the judgment and award of the Central Government Industrial Tribunal dated 26th May 2008 in Reference (CGIT) No.2/44 of 2007. The 1st respondent in the affidavit in support states that the Tribunal by the award declares the concerned employees to be direct and permanent employees of the petitioner. According to the 1st respondent, the award directs nmw517-10.doc 3 reinstatement of the said workers as their services were terminated. In the submission of Ms.Cox appearing on behalf of the 1st respondent such a relief clearly falls within the ambit and scope of section 17B of the Industrial Disputes Act, 1947. Therefore, when the writ petition under Article 226 of the Constitution of India challenging such an award is admitted and implementation and enforcement of the award is stayed, then, section 17B of the Industrial Disputes Act, 1947 will be attracted and the relief claimed in the notice of motion be granted. 3 Ms. Cox has contended that the dispute arose on account of the office note dated 3rd April 2007 of the Mumbai International Airport Pvt Ltd (MIAL, for short) wherein it was intended that 83 contract loaders were engaged by the petitioner before the said Mumbai International Airport Ltd took over the management of the Chatrapati Shivaji International Airport, Mumbai and the Court has directed the petitioner-Airport Authority of India not to terminate their services until such time that the issue of permanent employment with Airport Authority of India is decided. nmw517-10.doc 4 4 The issue arose as to who should pay the wages and Airport Authority of India communicated to Mumbai International Airport Pvt Ltd that it would not be in position to release payment to these loaders/labourers. The Mumbai International Airport Pvt Ltd took the stand that it has not engaged these loaders/labourers and, therefore, they would be not liable to make payment. Therefore, the request to issue gate-pass was cancelled and they were prohibited by this office note from entering the Airport premises with effect from 3rd April 2007 evening. Ms.Cox submits that the writ petition challenges the award of the CGIT but that award came to be rendered on the reference which was made by the appropriate government under section 10(2-A) and section 10(1)(d) of the Industrial Disputes Act, 1947. Inviting my attention to the schedule of the order dated 7th March 2003 making the reference it is contended by Ms.Cox that the Central Government Industrial Tribunal framed the necessary issues. One of the issue which was framed is “Whether loader and electrical maintenance workers are entitled to relief of continuation with full backwages w.e.f nmw517-10.doc 5 01.7.2007?” She submits that this issue was answered in the affirmative and in the ultimate award a direction came to be issued that the employees involved in the reference are declared as permanent employees and the authority is directed to treat them as their permanent employees, and pay wages, privileges, consequential benefits at par with the permanent employees of the Airport Authority of India working on the respective posts from the date of reference i.e 7th March 2003. Ms.Cox submits that such a relief is contemplated in the case of these workmen because they were out of service and indeed terminated. Therefore, the declaration with regard to their status, in effect, is a direction to reinstate them in the services of the petitioner. When such is the broad nature of the relief, then, section 17B of the Industrial Disputes Act, 1947 is fully attracted. She submits that there may not be any discussion on this issue but ultimately what the Court held is that its employees are working for years together and continuously. They are doing work of permanent loaders and, therefore, they have to be equated with the permanent employees. Therefore, to deprive them of their legitimate dues nmw517-10.doc 6 during the pendency of the petition would be contrary to the liberal spirit in inserting section 17B in the Industrial Disputes Act, 1947. 5 In support of her submissions she has relied upon the following decisions: 1) I.V.P Ltd, Mumbai Vs. I.V.P Ltd Workers Union & Ors (2010 I CLR 303); 2) Delhi Transport Corporation Vs. Jagdish Chander [(2005) III LLJ 390 (Del) - Writ Petition (C) No.3871 of 2000 decided on 3.2.2005]; 3) Karan Singh Vs. Authorised Disciplinary Authority R.S.R.T.C & Anr (2009 II CLR 672); 4) Transporting and General Worker Union Vs. La Yard Food Ltd (2006 I LLJ 1152); 5) Rajasthan State Granite & Marbles Mazdoor Sangh Vs. Rajasthan Mines & Minerals Ltd & Ors (2007 I CLR 1049); 6) Agricultural Produce Market Committee, Board Vs. nmw517-10.doc 7 Pareshkumar Bhaskarrai Dave (2008 II CLR 192); 7) Sandhya Baul Vs. Director of Panchayat & Anr (2006 I CLR 299); 8) Regional Authority, Dena Bank & Anr Vs Ghanshyam (Appeal (Civil) No.3731 of 2001- Supreme Court decided on 8.5.2001); 9) Duggar Fiber Pvt Ltd Vs. Bengali Majhi & Ors (2003(98) FLR 1139) 6 On the other hand, Mr.Patil appearing for the petitioner submits that section 17B of the Industrial Disputes Act, 1947 is attracted in limited cases. It cannot be made applicable to the facts and circumstances of the present case. Here, the dispute did not arise out of discharge or dismissal of the workmen. The reference to the Central Government Industrial Tribunal was not with regard to that issue. Therefore, the Central Government Industrial Tribunal’s award must be seen in the proper perspective. It was essentially a claim for permanency in the services of the petitioner-Airport Authority of India. It is that claim which has been granted. Such a nmw517-10.doc 8 claim cannot be equated with dismissal or discharge of the workmen and reinstatement in the services pursuant to holding the same to be illegal. Thus, the declaration with regard to dismissal or discharge being illegal followed by order of reinstatement in the services, if challenged and if such an award is stayed, then alone, section 17B of the Industrial Disputes Act, 1947 is attracted and not otherwise. By reading into section 17B of the Industrial Disputes Act, 1947, something, which the statute did not intend, the Court should not stretch the words and grant any reliefs purely on ground of sympathy. For all these reasons, he submits that the application be dismissed. 7 Mr.Patil relies upon following decisions: 1) Steel Authority of India Ltd Vs. National Union Water Front Workers (2001 III CLR 349); 2) Andhra Scientific Co Vs. Labour Court (1971 LIC 513 (Vol.4, C.N.119); 3) Bharat Cooking Coal Ltd Vs. Their Workmen (2004 II nmw517-10.doc 9 CLR 688); 4) Arora Combines Vs. D.G.Mankar (2010 I CLR 82); 5) Uttaranchal Forest Development Corporation Vs. K.B.Singh [(2005) 11 SCC 449). 8 With the assistance of the learned counsel appearing for the parties, I have perused the motion and the affidavits so also the written submissions and the decisions brought to my notice. Wherever necessary, I have also perused the award. 9 As is clear from a perusal of the order dated 7th March 2003, what was referred for adjudication to the Central Government Industrial Tribunal by the appropriate government were the following issues: “1. Whether the contract between Airport Authority of India and the respondents contractors, is a sham and bogus and is a camouflage to deprive the workers concerned in the petition of benefits available to permanent workmen of nmw517-10.doc 10 Airport Authority of India? 2. Whether the workers concerned in the petition should be declared as permanent workers of Airport Authority of India? 3. What are the wages and consequential benefits to be paid to the workers concerned in the petition?” 10 The schedule which is reproduced above clearly shows that what was referred was the dispute as to whether the contract between Airport Authority of India and the contractors is sham and bogus and camouflage to deprive the workers of benefit available to the permanent workmen and whether the workers should be declared as permanent workers of Airport Authority of India and what are the wages and consequential benefits to which they are entitled to. 11 On the pleadings which gave rise to this dispute, the Central Government Industrial Tribunal framed the following issues: nmw517-10.doc 11 “1) Whether the contract between Airport Authority of India and respondents contractors, is sham and bogus and is camouflage? 2) Whether the workmen involved in the reference should be declared as permanent employees of the Airport Authority of India? 2A) If yes, since when? 3) Whether workmen involved in the reference are entitled to get status and benefit alongwith privileges as of permanent workmen as clarified? 3A) If yes, since when? 4) Whether workmen involved in the reference are entitled to get directions from this Court to Airport Authority of India to pay them wages and other consequential benefits? 4A) If yes, till what date? 5) Whether workmen involved in the reference are nmw517-10.doc 12 entitled to get the wages on the basis of equal work and equal pay? 6) Whether workmen involved in the reference are entitled to get benefits applicable to permanent employees? 6A) Whether loader and electrical maintenance workers are entitled to relief of continuation with full backwages w.e.f 1.7.2007? 7) What order? 7A) Is reference bad in law as stated by First Party in para 1 to 4 of its written statement and under section 2k of the Industrial Disputes Act, 1947?” 12 On a bare perusal of these issues which have been framed, upon scrutiny of the pleadings and in the backdrop of the dispute referred for adjudication, it is not possible to accept the contention of Ms.Cox that issue No.6A should be read in isolation. Issue No.6A may have been worded as above, but that must be read together with the other issues. The entire dispute was pertaining to the denial of the status as permanent employee of the Airport nmw517-10.doc 13 Authority of India-the original petitioner. That was on account of Airport Authority of India executing a contract with Mumbai International Airport Pvt Ltd for management and administration of the Airport at Mumbai, namely, Chatrapati Shivaji International Airport. It was alleged that in the garb of this contract, the Airport Authority of India has deprived the 1st respondent and other similar situate employees their status as permanent employees although the work that they are carrying on so also the duties performed are on par with the permanent employees. Therefore, while adjudicating upon such a dispute that the ultimate finding has been rendered, namely, that the workers involved can be equated and treated at par with permanent employees of Airport Authority of India as they are carrying on identical work. Therefore, whatever is the entitlement of the permanent employees of the Airport Authority of India should be made admissible and provided even to the subject employees. It is in this context that I am of the view that in the peculiar facts of this case, section 17B of the Industrial Disputes Act, 1947 has no application. This could not be said to be a case covered by section 17-B of the Industrial Disputes Act, 1947 which reads as under: nmw517-10.doc 14 “17-B. 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 nmw517-10.doc 15 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.” This provision is made with the object of giving relief to the workman in whose favour an Award of re-instatement is passed by the Labour Court and the said Award is under challenge in the higher courts. The said relief is given with a view to relieve the hardship that would be caused to a workman on account of the delay in implementation of the Award as a result of the pendency of the proceedings in higher Court. The payment which is made by the employer to the workman 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. (See paras 7 and 20 of the judgment of the Hon’ble Supreme Court in Dena Bank Vs. Kirtikumar T. Patel reported in AIR 1998 nmw517-10.doc 16 SC 514). 13 Upon a plain reading of the provision and particularly in the backdrop of the dispute referred, the adjudication conducted and the ultimate award rendered that it is not possible to agree with Ms.Cox that the relief granted is to set aside the termination of such employees and to reinstate them in services. The entire award must be seen and not some issue and isolated discussion thereon. For appreciating the request and to make applicable section 17B of the Industrial Disputes Act, 1947, the adjudication must be seen as a whole and it would not be proper to look into it in bits and pieces and that too out of context. 14 Once such is the conclusion reached in the facts of the present case, then, any wider controversy need not be considered and particularly on the basis of the written submissions tendered before me. 15 The judgments which have been relied upon by Ms.Cox nmw517-10.doc 17 once again turn upon their peculiar facts. In the case before the Division Bench of this Court (IVP Ltd) the award of the Industrial Court was rendered on an application which was made by the company for closure of its undertaking. The application requesting permission for closure came to be rejected. Aggrieved by the award the appellant-company challenged the legality and correctness thereof by filing a writ petition, which also came to be dismissed by the single Judge of this Court. 16 An appeal therefrom came to be admitted and during the pendency of the appeal the issue was whether unconditional stay should be granted to the operation of the award as upheld or whether it should be granted on some conditions and particularly on par with section 17B of the Act. The Division Bench on perusal of the entire record came to a conclusion that it is a case of declining permission for closure of the undertaking. Further, the order passed by the Industrial Court under section 25-O (5) of the Act was capable of being construed as award within the scope of section 17B of Industrial Disputes Act, 1947 and further there was no doubt that the nmw517-10.doc 18 effect of such an award was to direct reinstatement of the workmen. It is in that context that the Court referred to the Full Bench decision of the Hon’ble Delhi High Court in D.T.C Vs. Jagdish Chander (Supra) with approval and followed the principle laid down therein. The fact situation before the Division Bench and before me is not identical. This is not a case of closure and the permission being sought therefor. The relief is to seek permanency and a status on par with permanent employees of the petitioner-Airport Authority of India and such a dispute cannot be equated with that before the Division Bench. In such circumstances, both the Division Bench of this Court and the Full Bench decision of the Delhi High Court are distinguishable on facts. 17 As far as the learned single Judge’s judgment rendered by the Kerala High Court in the case of Transporting and General Worker Union and Ors Vs. La Yard Food Ltd (supra) is concerned, there also, the industrial tribunal found that the retrenchment of the concerned workers was in violation of section 25-F. Once it was not in accordance with law it was clearly a case of illegal termination nmw517-10.doc 19 and, therefore, the retrenchment being set aside and the necessary consequence is reinstatement in services, then, in these peculiar facts that the applicability of section 17B of the Industrial Disputes Act, 1947 was upheld. 18 In such circumstances, all these decisions are of no assistance to Ms.Cox. 19 In the view that I have taken, it is not necessary to make a detailed reference to the decisions which have been cited on behalf of the petitioner-employer. The request of the 1st respondent as made in this notice of motion cannot be granted for the reasons aforestated. 20 As a result of the above discussion, the notice of motion fails but without any order as to costs. (S.C.DHARMADHIKARI, J)