1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGEMENT D.B. Special Appeal (Writ) No.47/08 UCO Bank vs. The Presiding Officer, CGIT, Jaipur & Anr. Date of Order :: 1st September, 2008 PRESENT HON'BLE THE CHIEF JUSTICE MR. NARAYAN ROY HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Mr. Vigyan Shah for the appellant Mr. M.K. Kaushik for the respondent REPORTABLE (Per-Hon'ble Mohammad Rafiq,J.) This appeal has been filed by the appellant- UCO Bank against the order of learned Single Judge dated 01.08.2007 whereby the earlier order passed by this Court dated 21.3.2007 was modified and the appellant has been directed to pay to the respondent-workman minimum wages by seventh of each month. By the first order, which was passed on 21.3.2007, the appellant was directed to pay the last wages drawn by the workman from the date of filing of the writ petition by them before this Court i.e. 7.8.07. It appears that the respondent- workman thereafter filed an application for modification of that order, which has been allowed by the impugned order. Shri Vigyan Shah, learned counsel for the appellant has contended that according to Section 17-B of the Industrial Disputes Act, 1947, the Court could only grant the wages last drawn by the workman inclusive of any maintenance allowance admissible under any rule. It was argued that the object of grant of the last drawn wages is 2 altogether different than the payment of minimum wages, where the workman is actually required to discharge duties. When the operation of the award in the present case has been stayed by the Court, there was no occasion to modify the first order which directed the grant of minimum wages. Learned counsel in support of his arguments relied on the judgement of Supreme Court in Dena Bank vs. Kirtikumar T. Patel-(1999) 2 SCC 106. Shri Suresh Kashyap, learned counsel for the respondent workman opposed the appeal and submitted that subsequent to passing of the first order dated 21.3.07, the respondent-workman came across certain other orders passed in the case of other workmen wherein the direction was given to pay the minimum wages in terms of Section 17-B of the Industrial Disputes Act (for short-the Act). Taking a clue from those orders, the respondent- workman made the application for modification. Learned counsel relied on the order of division bench of this Court in Aravali Kshetriya Gramin Bank vs. The Presiding Officer, Central Industrial Tribunal, Jaipur & Ors. decided on 19.09.2006 and judgement of Bombay High Court in Carona Sahu Co. Ltd. vs. Abdul Karim Munafkhan-(1994) 2 LLN 834 (Bom). Section 17-B of the Act provides that 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 3 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 employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court. The first order in the present case was passed in conformity with the provisions of Section 17-B by directing the appellant to pay to the respondent-workman last wages drawn form the date of filing of the writ petition i.e. 7.8.07. The question for our consideration is whether the modification of the first order by the second order can be justified in law. The only modification that has been made by the subsequent order, which is impugned herein is that in place of last wages drawn, the appellant has now been required to pay to the respondent-workman the minimum wages prevailing at the present time. The very same controversy came up before the Supreme Court in Dena Bank, supra, where the High Court upholding the contention of the workman directed the management to pay to him the wages as revised by the appellant-bank including the increments and D.A., from time to time. Argument was that the object underlying in Section 17-B in referring to the expression `full wages last drawn' mean wages payable at the time of order of reinstatement. The High Court in that case relied, apart from other judgements, also on the judgement of Bombay High Court, reliance on which is placed by the 4 respondents in the present case too. In para 19 to 21 of the judgement, the Supreme Court expressly overruled the aforesaid judgement of Bombay High Court as also a similar judgement to the same effect passed by Karnataka High Court in Visveswaraya Iron and Steel Ltd. vs. M. Chandrappa-(1994) 1 LLJ 555 (Kant). Relevant discussion was made in paras 19 to 21 of the judgement in Dena Bank, which for ready reference is reproduced hereunder: “19.As per the directions 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 Coop. Agriculture Service Society Ltd. v. Gurcharan Singh-(1993) 5 SLR 719 (P&H). (ii) Wages drawn on the date of termination of the services plus the yearly increment and the dearness allowance to be worked out till the date of the award. (Visveswaraya Iron and Steel Ltd. v. M. Chandrappa and Kirtiben B. Amin v. Mafatlal Apparels-(1994) 84 FJR 46 : (1994) 1 LLJ 555. (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. Munafkhan- (1995) 70 FLR 25 : (1994) 2 LLN 834 (Bom), Macneil and Magor Ltd. v. First Addl. Labour Court-(1995) 1 LLN 1014 (Mad.) and P. Chennaiah v. Dy. Executive Engineer-(1996) 2 LLJ 240 (AP). 5 20. The first construction gives to the words “full wages last drawn” their plain and material meaning. The second as well as the third construction read something more than their plan and material meaning in those words. In substance these construction 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. 21. 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. That 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 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 passed since it has been set aside by the award of the Labour Court or the 6 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 withotu his being able to recover the said amount in the event of the award being set aside. We are unable to contgrue the provisions contained in Section 17-B to cast such a burden on the employer. In our opinion, therefore, the words “full waes 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 Visveswaraya Iron & Steel Ltd., or the Bombay High Court in Carona Sahu Co. Ltd.” A perusal of the aforesaid observations made by the Supreme Court would make it clear that the object underlying the provision is to relieve to a certain extent the hardship that is caused to workman due to delay in implementation of the award. Such 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 ultimately set aside by the High Court. Since the payment is of such a character, the Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was last in service and when his services were terminated and therefore used the 7 words “full wages last drawn”. The Supreme Court therefore authoritatively held that 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 impugned, would result in enlarging the benefit as to comprehend the relief that has been granted under the award, which is subject matter of challenge. This was so held by the Supreme Court by further observing that 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. The division bench of this Court in Aravali Kshetriya Gramin Bank, supra, on which reliance has been placed is rendered in an altogether different context where the aforesaid authoritative pronouncement of Supreme Court was not taken into consideration. Nothing has been brought on record even otherwise to show that there was, according to later part of Section 17-B, any rule which entitled the workman to any maintenance allowance. Object of grant of minimum wages is to ensure payment of a statutory fixed remuneration for the work actually done. But that cannot be claimed in the scope of Section 17-B, which merely requires payment of last wages drawn. Such last drawn wages are required to be paid as noticed above to relieve the workman of hardship he faces due to 8 pendency of the petition filed by the management chellenging the award passed in his favour. Section 17-B thus manifests an altogether different legislative intent then the one envisaged in Section 3 of the Minimum Wages Act. One cannot be confused with the other and the two cannot be mixed together. We are therefore of the considered view that there was no legal justification for modifying the first order passed by the learned Single Judge dated 1.8.07 which was in conformity with the provisions of Section 17-B. The order which has been passed subsequently, being contrary to the settled proposition of law as referred to above, is therefore liable to be set aside. This appeal is accordingly allowed. The impugned order dated 1.8.07 is quashed and set aside. There shall be no order as to costs. (Mohammad Rafiq),J. (Narayan Roy), C.J. ravi/-