KPP -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 59 OF 2011 IN CIVIL APPLICATION NO. 1966 OF 2010 IN WRIT PETITION NO. 9601 OF 2009 WITH CIVIL APPLICATION NO. 76 OF 2011 1. Union of India, through Department of Posts ) New Delhi ) 2. Senior Superintendent of Post Offices, ) Department of Posts, Kolhapur Division, Kolhapur-416 003)..Appellants vs. Hemant Shamrao Sankpal, ) R/at BG 52/49, Daulat Nagar, Kolhapur. )..Respondent WITH LETTERS PATENT APPEAL NO. 60 OF 2011 IN CIVIL APPLICATION NO. 1968 OF 2010 IN WRIT PETITION NO. 9600 OF 2009 WITH CIVIL APPLICATION NO. 77 OF 2011 1. Union of India, through Department of Posts ) New Delhi ) 2. Senior Superintendent of Post Offices, ) Department of Posts, Kolhapur Division, Kolhapur-416 003)..Appellants vs. Ravindra S.Talekar ) Residing at House No. 135-E, Kadamwadi, Kolhapur )..Respondent In both matters: KPP -2- Mr. Nitin Jamdar with Mr. Ravindra A. Lokhande, for the appellants. Mr. M.S. Topkar for the respondent CORAM: P.B. MAJMUDAR & A.A. SAYED , JJ. DATE: APRIL 06, 2011. ORAL JUDGMENT: (Per P.B. Majmudar, J. ) Admit. Learned counsel appearing for the respondents waive notice of admission. With the consent of the learned counsel appearing for the parties, both the appeals are taken up for hearing forthwith. 2. Since the issue involved in both these appeals is common, these matters are heard finally at the admissions stage itself. By the impugned orders, the learned single Judge passed an order under Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act”) directing the appellants to pay to the respondents last drawn wages, in whose favour the Labour Court passed an order of reinstatement. The workmen raised an industrial dispute challenging their termination. The Labour Court, Kolhapur allowed both the references by its Award dated 6th March, 2009 directing the appellants to reinstate the respondents on their original posts with continuity of service and to pay back wages to them. The said award of the Labour Court in each of the references has been challenged by the appellants by way of writ KPP -3- petitions being Writ Petition Nos. 9600 and 9601 of 2009. Both the petitions have been admitted by the learned single Judge and granted interim stay, staying the order of reinstatement passed by the Labour Court. While admitting the matter, this Court found that since the respondents admittedly worked only in the leave vacancy, the question whether the provisions of Section 2 (oo) (bb) of the ID Act is applicable to such case or not is an important issue which requires consideration. Both these matters are now pending for final hearing before the learned single Judge. 3. Subsequently, the concerned workmen preferred civil applications under Section 17-B of the ID Act. The learned single Judge, by the impugned order passed an order directing the appellants to comply with Section 17-B of the ID Act. The said interim order of the learned single Judge is challenged in these appeals. 5. Mr. Jamdar, the learned counsel for the appellants, vehemently submitted that since on merits they have a good case and since the petitions are admitted, the learned single Judge should not have passed an order under Section 17-B of the ID Act. The learned counsel further submitted that it is true that the concerned workmen had worked for more than 240 days but since they were appointed purely on a stop gap vacancy and there was no clear vacancy, the Labour Court should not have passed an order of reinstatement with KPP -4- continuity of service. It is further submitted that since the appointment was not made by way of regular process, the Labour Court should not have passed an order of reinstatement. In order to substantiate his say, the learned counsel for the appellants has relied upon the decision of the Supreme Court in the case of Secretary, State of Karnataka and others vs. Umadevi and others1. In the said case it is held that if the appointments are made without following the due process or the rules for appointment did not confer any right on the appointees, the Courts cannot direct their absorption or regularisation or re-engagement or making them permanent. The learned counsel for the Appellants has relied upon the judgment of the Supreme Court in the case of Municipal Council, Sujanpur vs. Surinder Kumar2 wherein the Supreme Court has considered the provisions of Section 11-A of the ID Act. In the said case the appointment of the respondent was not in a sanctioned post and was made at the instance of a Minister de hors the rules and in violation of Articles 14 and 16. The appointment was held to be void. However, since the termination order was passed without complying with the provisions of Section 25-F of the ID Act, the Supreme Court granted monetary compensation of Rs. 50,000/-. 6. So far as Umadevi’s case is concerned, in our view, the same has no application as regards the question of wages under Section 17-B of the Act is concerned. In the said case, the question about consideration of the Industrial 1 (2006) 4 SCC 1 2 (2006) 5 SCC 173 KPP -5- Disputes Act was not under consideration. In the said case, the Supreme Court has not stated that the provisions of the Industrial Disputes Act are not applicable in case the appointment is irregular. So far as the judgment in the case of Municipal Council, Sujanpur (supra) is concerned, the Supreme Court has in fact found that since the provisions of Section 25-F of the ID Act were not complied with, the compensation was awarded in favour of the workmen. That itself is suggestive of the fact that even if appointment is irregular and if there is any violation of the ID Act, the same is required to be considered as per the provisions of the ID Act. The learned counsel for the appellants fairly states that Umadevi’s case was not in connection with interpreting any provisions of the ID Act nor was in connection with Section 17-B of the ID Act. It is not in dispute that the concerned workmen had already completed 240 days and it is also true that their appointment was not as per regular selection process. However, it can never be said that the Reference before the Labour Court itself was not maintainable. In the case of Maharashtra State Road Transport Corporation and another vs. Casteribe Rajya Parivahan Karmachari Sanghatana1, the Supreme Court has considered the applicability of Umadevi’s judgment in connection with matters of Industrial and Labour Courts under the MRTU & PULP Act, 1971. The Supreme Court has observed as under: “33. The provisions of the MRTU & PULP Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi (3). As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred to, considered or decided in Umadevi (3). 1 (2009) 8 SCC 556 KPP -6- Unfair labour practice on the part of the employer in engaging employees as badlis, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in item 6 of Schedule IV and the power of the Industrial and Labour Courts under Section 30 of the Act did not fall for adjudication or consideration before the Constitution Bench. 36. Umadevi (3) does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU & PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under item 6 of Schedule IV where the posts on which they have been working exist. Umadevi (3) cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU & PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established.” 7. It is next argued by the learned counsel for the appellants that since the concerned workmen were appointed on leave vacancy, the learned single Judge should not have passed an order under Section 17-B of the Act. At this stage, reference may be made to Section 17-B of the ID Act and the same reads thus: “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 ward 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 KPP -7- 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.” Once an order of reinstatement is passed by the Labour Court or the Industrial Court, as the case may be, and petition against the order of the Labour Court/Industrial Court is entertained by the High Court or the Supreme Court, there is a mandatory requirement which is required to be complied with by the employer as per Section 17-B of the ID Act. The Court is only required to see as to whether appropriate affidavit is filed by the workmen as contemplated by Section 17-B of the Act or not. While deciding the application under Section 17- B of the Act, the Court is not required to find out the merits of the matter and to find out whether the order of the Labour Court/Industrial Court is sustainable or not. The language of the Section is very clear. The moment the proceedings are filed wherein the order directs reinstatement of any workman, the employer at the time of preferring the proceedings against the said Award in the High Court or in the Supreme Court is required to comply with the provisions of Section 17-B of the Act. It is not in dispute that in the present case, the respondents had served for more than 240 days. Whether on merits the order of reinstatement could have been granted or not is required to be decided in a writ petition but till the petition is decided, the employer is bound to comply KPP -8- with the provisions of Section 17-B of the ID Act, which is a mandate of law. We once again reiterate that while deciding the application under Section 17-B of the Act, the Court is not required to find out whether the reinstatement order could have been passed or not. 8. It is clarified that our observations in this order should be treated only for the purpose of Section 17-B of the ID Act and it will have no effect so far as pending writ petitions of the appellants are concerned. Considering the aforesaid, we do not find any merit in these appeals. Both the Appeals and the Civil Applications are accordingly dismissed. P. B. MAJMUDAR, J. A.A. SAYED, J.