1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CIVIL APPLICAITON (CAW) NO.1561 OF 2009 IN WRIT PETITION NO.5401 OF 2006 EXECUTIVE ENGINEER, PUBLIC WORKS DIVISION, WARDHA. .... PETITIONER. // VERSUS // MAHADEO GOVINDRAO NARAYANE, POST -WAIGAON (NIPANI), TAH. & DISTT. WARDHA. .... RESPONDENT. -------------------------------------------------------------------------------------------------------------------------- Shri T.R.Kankale, A.G.P. for Petitioner. Shri S.A.Kalbande, Advocate for Respondent/Applicant. -------------------------------------------------------------------------------------------------------------------------- CORAM : R.C.CHAVAN, J. DATED : SEPTEMBER 15, 2009. ORAL ORDER: 1. This is respondent’s application for directions under Section 17-B of the Industrial Disputes Act. The respondent claimed to have been serving with the petitioner and alleged that on 01.04.1986 his services were terminated by oral orders. Upon a reference, the learned Judge, Labour Court, 2 Wardha passed an award holding that the petitioner had illegally terminated the services of the respondent w.e.f. 01.04.1986 and directed reinstatement of the respondent with continuity but without back wages. This order was challenged by the petitioner employer before this Court. 2. On 01.03.2007 while admitting the petition this Court granted interim relief in terms of prayer clause (ii), namely, stay to the impugned order passed by the learned Judge, Labour Court, Wardha. 3. In this background the respondent claims a direction under Section 17-B of the Industrial Disputes Act to the petitioner to deposit the amount of wages payable to the respondent from the date of award as also the current wages at the minimum rate of wages till the disposal of the petition. 4. This application was contested by the petitioner, who submitted by a reply that the petitioner was working as Police Patil and possesses landed property at Anjangaon, Tahsil and District : Wardha and was, therefore, disentitled to relief under Section 17-B of the Industrial Disputes Act. 5. I have heard learned counsel for the petitioner and the respondent. 3 6. Before considering the rival contentions it may be useful to set out the provisions of Section 17-B of the Act, which read 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”. 7. The learned counsel for the applicant placed reliance on a judgment of Division Bench of this Court in Vishwas Shankarrao Vs. Bank of Mah, reported at 2005(3) Mh.L.J. 640 to support his contention that it is obligatory for this Court to pass an order under Section 17-B of the Act. In that case the employee filed civil application for vacation of interim order and in alternative sought relief under Section 17-B of the Industrial Disputes Act and a direction to deposit amount of back wages. This application was rejected by the learned single Judge, on the ground, 4 among others, that under Section 17-B of the Industrial Disputes Act no duty is cast on the High Court or Supreme Court to make an order for payment of wages under that section. After considering the rival contentions the Division Bench of this Court observed as under in paragraph 7.2 & 7.3 : “7.2 It is, thus, apparent from the bare perusal of section 17-B that these requirements need to be satisfied for its application. Firstly, there should be award of the Labour Court directing reinstatement of the workman. Secondly, the employer should have preferred proceeding against such award in the High ? Court and Thirdly, that the workman should not have been employed in any establishment during such period. If all the three requirements stand satisfied it is mandatory for the employer to pay such workman, during the period of pendency of such proceedings in the High Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule. Section 17-B enacts statutory form of separate and independent right available to a workman during the pendency of the proceedings. Such right is an independent right which comes into existence after the award. As observed in the case of Regional Authority, Dena Bank (supra), it, therefore, follows that in the event of employer not reinstating the workman and not seeking any interim relief in respect of award directing reinstatement of a workman or in the case where the court is not inclined to stay such award in toto, such workman has two options either to initiate proceedings to enforce the award or be content with receiving the full wages last drawn by him without prejudice to the result of the proceedings preferred by the employer against the award till he is reinstated or proceedings are terminated in his favour, whichever is earlier. The Apex Court while dealing with the provisions in section 17-B of the I.D. Act, in Regional Authority, Dena Bank’s case (supra) has further observed that this provision does not preclude the High Court under Article 226 of the Constitution from passing appropriate interlocutory orders, having regard to the facts and circumstances of the case in the interest of justice. The relevant observations in paragraphs 9 and 11 of the judgment in 5 Regional Authority, Dena Bank (supra) read thus : “It may be noticed that section 17-B of the Act does not preclude the High Courts or this Court under Articles 226 and 136 of the Constitution respectively from passing appropriate interlocutory orders, having regard to the facts and circumstances of the case, in the interest of justice Dena Bank’s case (supra). The High Court or this Court may, while entertaining, employer’s challenge to the award, in its discretion, in appropriate cases, stay the operation of the award in its entirety or in regard to backwages only or in regard to reinstatement without interfering with payment of backwages or on payment of wages in future irrespective of the result of the proceedings before it, etc. and/ or impose such conditions as to the payment of the salary as on the date of the order or a part of the backwages and its withdrawal by the workman as it may deem fit in the interest of justice.” 11. We have mentioned above that the import of section 17-B admits of no doubt that Parliament intended that the workman should get the last drawn wages from the date of the award till the challenge to the award is finally decided which is in accord with the statement and the objects and reasons of the Industrial Disputes (Amendment) Act, 1982 by which section 17-B does not preclude the High Courts or this Court from granting better benefits – more just and equitable on the facts of a case-than contemplated by that provision to a workman. By interim order the High Court did not grant relief in terms of section 17- B, may, there is no reference to that section in the orders of the High Court, therefore, in this case the question of payment of “full wages last drawn” to the respondent does not arise. In the light of the above discussion the power of the High Court to pass the impugned order cannot but be upheld so the respondent is entitled to his salary in terms of the said order.” 7.3. It is thus clear that the provisions in section 17-B are intended to be invoked in the course of proceedings in the High Court, which is obliged to make an order as contemplated by section 17-B in the writ petition filed by the employer challenging the order of reinstatement passed by the Labour Court. In other words, the High Court can direct an employer to comply with the provisions of section 17-B of the Act by exercising its jurisdiction under Article 226 of the Constitution of 6 India. As a matter of fact it would be unjust to force the workman to seek remedy else where separately to recover wages permitted to be claimed under section 17-B such as making him to apply under section 33-C(2) of the I.D. Act. I am fortified in the aforesaid view by the decision of the Supreme Court in the case of C.M. Sariah (supra) wherein the Apex Court after having examined the provisions of section 17-B of the I.D. Act, observed that the Court has no jurisdiction to direct non-compliance with the same when the conditions precedent for passing an order in terms of section 17-B of the I.D. Act is satisfied and this is the legislative mandate. It is thus clear that the questions raised in the instant appeal is no more res integra and has been addressed by the Apex Court in the aforementioned judgments.” In view of this, there can be no doubts about obligation to grant relief under Section 17-B to the workman, when award in his favour is stayed. 8. The learned counsel for the respondent also relied a judgment of Gujrat High Court in Arvindkumar K. Chhag Vs. Dist. Panchayat & anr., reported at 2007 II CLR 597 where a learned Judge of Gujrat High Court observed that while considering an application under Section 17-B of the Industrial Disputes Act the merits of the main petition are not required to be considered. Similar view was taken by a Division Bench of Rajasthan High Court in Ram Dhan Vs. Judge, Labour Court No.2, reported at 2003 II LLJ 959. Thus, it is clear that merits of workman’s case cannot be gone into to deny him benefit of relief under Section 17-B. 9. A Division Bench of this Court in Oil and Natural Gas Corpn.Ltd. Vs. Ninan, 7 reported at 2009(2) Mh.L.J. 270 also considered the question of relief under Section 17-B of the Industrial Disputes Act and held that an application on an affidavit by the workman is sufficient compliance to the requirement of Section 17-B of the Act. 10.The learned Assistant Government Pleader relied on a judgment of the Supreme Court in Uttaranchal Forest Development Corpn. Vs. K.B. Singh, reported at (2005) 11 SCC 449. The Court observed in paragraph 3 that only such workman in whose favour there was award of reinstatement and who have filed affidavits of their not being in gainful employment shall be entitled to be granted reinstatement and in lieu thereof pay last drawn by them on the respective dates of their termination from service. 11.A Division Bench of Kerla High Court in Jayaraman Vs. Quilon Gas Service, reported at 1995 II CLR 126 held in paragraph 4 as under : “4. For working of S. 17-B of the Act, the following conditions should be satisfied : (1) there must be an award by the Labour Court or the Tribunal directing reinstatement of the workman. (2) the award should have been challenged in a proceeding pending in the High Court or the Supreme Court, and (3) the workman should not have been gainfully employed in any establishment during the pendency of the said proceedings. All the above conditions should be cumulatively established and only in such a case the workman would be entitled to claim benefits under S. 17-B.” 8 The Court then considered the work done by such a workman and observed that to deny the benefit it must be certainly established that he was gainfully employed in some establishment during the pendency of the proceedings before the High Court or Supreme Court and during that period he was receiving adequate remuneration. Dealing with the plea that the workman in that case was employed in the garment making unit of his wife the Court held that there was hardly any evidence with regard to adequacy of remuneration which he had obtained from that concern. As far as appointment as Police Patil is concerned, it is a honorary part time job for a small remuneration. In fact, such a police patil is expected to have his own sources of earning a livelihood. Hence, appointment as police patil cannot amount to gainful employment for denying benefit of Section 17-B. 12.It was next contended that applicant would be entitled to wages which are denied to him on account of stay of the award and, in any case, the minimum wage which he ought to have drawn on the date of award. For this purpose the learned counsel for applicant relied on a recent judgment of a learned Single Judge in Workmen Employed Shramik Sena Vs. Raptakos Breet & Co.Ltd., reported at 2007 III CLR 354. This judgment was challenged before a Division Bench of this Court, which modified the 9 order. The matter ultimately went to the Apex Court. 13.In Workmen Employed ... IT Shramik Sena Vs. Raptakos Brett Co.Ltd., reported at 2008 II CLR 186 the Supreme Court was considering an appeal against the judgment of Division Bench of the Bombay High Court. The Division Bench had modified the order of a single Judge, by directing that “As the company had decided to reinstate the workman instead of paying wages under Section 17-B of the Industrial Disputes Act, the workman shall be paid last drawn wages or statutory wages, whichever is higher, from the date of order.” The management was not ready to reinstate the workman. The Supreme Court disposed of the appeal directing that the management shall go on paying wages @ Rs.2,500/- per month as had been directed by the single Judge. It is thus clear that the Apex Court had not approved payment of statutory wages. It may be seen from para 3 of the judgment of the learned Single Judge reported at Workmen employed under it represented by Shramik Sena v. Raptakos Breet & Co. Ltd., reported at 2007 III CLR 354, that the company had been paying to workmen wages at the rate of Rs.2,500/- per month as and when the work was provided and hence the learned Single Judge had pegged the amount of Rs.2,500/- per month if no work was provided. The direction in clause (i) of the order of the learned Single Judge in para 13 to pay statutory minimum wages relates to situation where the work is provided 10 and need not be confused with relief under Section 17B, If work is provided, obviously the workman would have to be paid the minimum wage. True, the learned Single Judge in para 9 of her judgment, relying on a judgment of Delhi High Court, has observed : “The only question is if the last drawn wages are less than the minimum wages payable is the employer required to be protected in any manner. In my opinion, the last drawn wages would mean at least the statutory minimum wages payable.” First, as the discussion to follow would unfold, the view of the Apex Court is to the contrary, and secondly, this was expression of mere opinion, which is not translated into order as may be seen from clause (ii) of the order in para 13 of the judgment of the learned Single Judge. 14.A single Judge of Delhi High Court in Delhi Transport Corpn. Vs. Ek Lakh Hussain and Anr. reported at 2008 II CLR 688 held that last drawn wages or minimum wages, whichever is higher is required to be paid from the date of award. Similar are the observations of another single Judge of Delhi High Court in Sahara Airlines Ltd. Vs. Kapt. R. Khosla, reported at 2008 I CLR 474, which for reasons to follow cannot be said to reflect correct position of law. 15.In The Management of M/s. Praga Tools Ltd. Vs. The Chairman-Cum- Presiding Officer & Anr., reported at 1996 (I) LLJ (AP) 748 a Division 11 Bench of High Court of Andhra Pradesh considered the meaning of expressions “date of award” and “full wages last drawn” used in Section 17-B of the Act. It referred to the judgment of Karnataka High Court in M/s. Visveswaraya Iron & Steel & Co. Ltd where the Karnataka High Court had taken a view that full wages last drawn would include the wages drawn on the date of termination of the services plus yearly increment and the D.A. to the worked out till the date of the Award and that sum has to be paid to the workman during pendency of the proceedings before the Court. The Andhra Pradesh High Court also referred to a judgment of Bombay High Court in Carona Sahu Co. Ltd. (1994-I-LLJ 1109) where the Bombay High Court held that workmen would be entitled to full wages which he would have been entitled to draw but for the pendency of the matter before the High Court. The High Court of Andhra Pradesh had accepted the Bombay view and as to the date of award it held that the date had to be the date on which the award became enforceable. 16. In Dena Bank Vs. Kirtikumar T. Patel, reported at 1998(I) LLJ 1, the Supreme Court considered the meaning of the expression “full wages last drawn”, and disapproved the extended meaning given by Karnataka High Court in Vishveswarayya Iron and Steel Ltd (1998-II-LLJ-198) and Bombay High Court in Carona Sahu’s case (1994-I-LLJ 1100). In paragraphs 20, 21 and 22 of the judgment the Supreme Court held as under : 12 “20. As per the decisions of the High Courts referred to above the expression “full wages last drawn” in Section 17-B can mean as under : (i) wages only at the rate last drawn and not at the same rate at which the wages are being paid to the workmen who are actually working (Daladdi Cooperative Agriculture Service Society Ltd. V. Gurcharan Singh (supra) ; (ii) Wages drawn on the date of termination of services plus the yearly increment and the Dearness Allowance to be worked out till the date of the award. Vishveswarayya Iron and Steel Ltd. V. Chandrappa & Anr. And Kirtiben B. Amin V. Mafatlal Apparels) (Supra) ; (iii) Full wages which the workman was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings (Carona Sahu Co.Ltd. V. A.k. MUNAKHAN & ORS. MACENEIL AND MAGOR lTD. v. 1st Additional Labour Court & Anr. And P. Channaiah V. Dy . Ex. Eng.) (Supra). 21. The first construction gives to the words “full wages last drawn” their plain and material meaning. The second as well as the third constructions read something more than their plain and material meaning in those words. In substance these constructions read the words “full wages last drawn” as “full wages which would have been drawn”. Such an extended meaning to the words “full wages last drawn” does not find support in the language of Section 17-B. Nor can this extended meaning be based on the object underlying the enactment of Section 17-B. 22. As indicated earlier Section 17-B has been enacted by Parliament with a view to give relief to a workman who has been ordered to be reinstated under the award of a Labour Court or the Industrial Tribunal during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award. The payment which is required to be 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 13 High Court or this Court. Since the payment is of such a character Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was in service and when his services were terminated and therefore used the words “full wages last drawn”. To read these words to mean wages which would have been drawn by the workman if he had continued in service if the order terminating his services had not been passed since it has been set aside by the award of the Labour Court or Industrial Tribunal would result in so enlarging the benefit as to comprehend the relief that has been granted under the award that is under challenge. Since the amount is not refundable or recoverable in the event of the award being set aside it would result in the employer being required to give effect to the award during the pendency of the proceedings challenging the award before the High Court or the Supreme Court without his being able to recover the said amount in the event of the award being set aside. We are unable to construe the provisions contained in Section 17-B to cast such a burden on the employer. In our opinion, therefore, the words “full wages last drawn” must be given their plain and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Vishveswarayya Iron & Steel Ltd. (supra) or the Bombay High Court in Carona Sahu Co.Ltd. (supra) . ” (emphasis supplied) In Paragraph 23 the Court considered the meaning of the word “full” in the expression “full wages last drawn” and held that “full” only emphasized that all emoluments which are included in wages are defined in Clause (rr) of Section 2 of the Act. So as to include the amounts referred to in Clause (i) to (iv) are required to be paid. 17.The Full Bench of this Court in Amar Dye-Chem Ltd. Vs. C.M. Kadam, reported at 1999(81) F.L.R. 270 considered the true meaning of word “wages last drawn”. After considering the judgment of the Supreme Court 14 in Dena Bank Vs. Kirtikumar the Court held that full wages last drawn means wages drawn by the workman at the time of termination of his employment and not the wages he would have drawn on the date of the award. In view of this, opinion expressed in para 9 of judgment in Raptakos Breet & Co. Ltd. (2007 III CLR 354) cannot prevail. 18.In Dena Bank Vs. Ghanshyam, reported at (2001) 5 SCC 169 the Supreme Court considered the previous judgment in Dena Bank Vs. Kirtikumar. This was while considering the question whether any additional amounts over and above the amount payable under Section 17-B of the Act can be ordered to be paid to the workman. In this context, the Court held that since the amounts paid under Section 17-B are not recoverable if any amount over and above that payable under Section 17-B is ordered it should be subject to such terms & conditions as would enable the employer to recover the same. Thus this judgment does not expand the scope of “full wages last drawn” to include wages which could or ought to have been drawn. 19.In Bombay Film Laboratories Pvt. Ltd. Vs. L.G. Vasula, reported at 1995(70) F.L.R. 8 a Division Bench of this Court held that under Section 17-B the Court can direct payment of wages for the period when enforcement of the award is stayed and not from the date of award. 15 20.In R. Jaisingh & Co. Vs. R.K. Meshram, reported at 1995(70) FLR 171, the Division Bench of this Court held that the benefit under Section 17-B of the Industrial Disputes act