C.A.No.154/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL APPLICATION NO. 154 OF 2010 IN LETTERS PATENT APPEAL NO. 126 OF 2010 IN CIVIL APPLICATION NO. 75 OF 2010 IN WRIT PETITION NO. 1399 OF 2008 Kirloskar Pneumatic Company Limited ).. Appellant versus Kirloskar Pneumatic Kamgar Sangh ).. Respondents Mr. J.P. Cama, Senior Advocate, i/b Sanjay Udeshi & Co. for the Appellant. Mr. Nitin A. Kulkarni a/w Ms.Sangita Deo for the Respondents. CORAM : MOHIT S. SHAH, C.J. AND S.C. DHARMADHIKARI, J. DATED : 30TH JUNE 2010 P.C. This is an application for interim stay of the order dated 12th March 2010 of the learned Single Judge in Civil Application No.75 of 2010 in Writ Petition No.1399 of 2008. 2. The Writ Petition in question is filed by the appellant company challenging the award of the Industrial Tribunal in a reference in which the respondent employees challenged their retrenchment on C.A.No.154/2010 2 28th January 2002. By award dated 13th December 2007, the Industrial Tribunal has allowed the reference and directed the appellant employer to reinstate the 12 workmen with continuity of service but without back wages. 3. The Writ Petition was filed by the appellant management on 16th February 2008 and after issuing Rule on the petition, the learned Single Judge also issued notice for interim relief. Ultimately, by order dated 21st January 2009 the award was stayed pending the hearing of the Writ Petition. In these circumstances, the union filed the above numbered Civil Application under Section 17-B of the Industrial Disputes Act, 1947 in respect of six workers, each of whom had filed affidavit in support thereof. 4. The appellant employer resisted the above application and submitted that the respondent workmen were gainfully employed in that in any case they had managed to survive during the period prior to the date of application and that before this Court it was for the workmen to demonstrate that they were not gainfully employed. After hearing the learned counsel for the parties at length, the learned Single Judge held that if in order to survive the workmen or their family members have to take up some jobs, that should not come in the way of C.A.No.154/2010 3 the workmen in getting the benefit of Section 17-B of the Industrial Disputes Act, 1947. The learned Single Judge further held that the spouse’s earnings cannot be ground for denying or refusing wages under Section 17-B of the Industrial Disputes Act, 1947. The learned Single Judge accordingly held that the six applicant-workmen are entitled to get the full benefit under Section 17-B of the Industrial Disputes Act, 1947. 5. The appeal filed by the appellant-management against the above order has been admitted and on the Civil Application no interim or ad-interim relief was granted earlier but a statement was made on behalf of the respondent workmen that they will not prosecute the contempt petition till the Rule on interim relief is disposed of. That statement was made on 3rd May 2010. 6. We have heard the learned counsel appearing for the parties at some length. The learned senior counsel for the appellant submits that since the appeal is admitted, interim stay as prayed for should be granted. The learned counsel sought to submit that the Industrial Tribunal has also denied back wages to the workmen on the ground that they were gainfully employed and, therefore, there is no reason for this Court to grant the respondent workmen any benefits under Section 17-B of the Industrial Disputes Act, 1947. C.A.No.154/2010 4 7. On the other hand, the learned counsel for the respondent workmen has submitted that the award of the Industrial Tribunal was in favour of twelve workmen and the Tribunal has erroneously mentioned in the judgment that most of the workmen were gainfully employed. In fact, a writ petition being Writ Petition No.2613 of 2008 is filed by the respondent-workmen against that part of the subject Award wherein the back wages are denied. That writ petition is also admitted by this Court. In any event, it is stated that out of the twelve workmen, the six workmen who were gainfully employed have not filed the application under Section 17-B of the Industrial Disputes Act, 1947 and that the application giving rise to the present appeal has been filed by the Union only on behalf of the other six workmen who are not gainfully employed. It is submitted that the entire legislative object of enacting Section 17-B would be frustrated, if the management is permitted to deny such benefit to the workmen. 8. Having heard the learned counsel for the parties for quite some time, we are of the view that the interim stay as prayed for does not deserve to be granted especially when it is pointed out that out of the twelve workmen in whose favour the Industrial Tribunal has passed the award, only six have filed the application under Section 17-B. C.A.No.154/2010 5 Although the appeal is admitted, that cannot by itself be a ground to grant interim stay of the order passed by the learned Single Judge which requires the appellant management to give monetary benefits to the six workmen. 9. We may also note the factual aspect that if the appellant management is required to reinstate the workmen, each of them will get wages in the region of about Rs.15,000/- per month, whereas the wages last drawn by the workmen in the year 2002 were in the region of about Rs.9,000/- per month. 10. After considering all the relevant aspects on the question of interim relief, we are of the view that the interests of justice will be served if the application is disposed of in the following terms : O R D E R (i) The respondent workmen shall be entitled to get their full benefits under Section 17-B of the Industrial Disputes Act, 1947 with effect from 1st July 2010. However, as far as the period from 1st January 2009 till 30th June 2010 is concerned, the appellant management shall pay the respondent workmen 50% of the amount payable under Section 17-B within one month from today. As far as the C.A.No.154/2010 6 remaining 50% of the amount is concerned, the same shall be deposited by the appellant management with the Registry within one month from today. The amount so deposited shall be invested in a fixed deposit. (ii) There shall be interim stay of the judgment of the learned Single Judge in the above terms, but it is clarified that there shall be no stay for the period from 1st July 2010 onwards. (iii) If the appellant management complies with the above directions, the learned counsel for the respondent workmen states that the contempt application will be withdrawn without prejudice to their right to take out fresh contempt proceedings in case of non-payment in future. (iv) It is clarified that the appellant management shall not be required to pay respondent workmen any amount except the amounts indicated above. 11. Civil Application accordingly stands disposed of. CHIEF JUSTICE S.C. DHARMADHIKARI,J.