*1* nms.406.11.wp.3209.04.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 406 OF 2011 IN WRIT PETITION NO.3209 OF 2004 Gulf Air Company, having its address at Maker Chamber VI, 1st Floor, Nariman Point, Mumbai-400021. ..Petitioner -Versus- Gulf Air Employees’ Association, having address at Lok Bharati, Andheri (East), Mumbai-400059. ..Respondent/Applicant ............. Mr.R.S.Pai a/w A.Mehta i/by Haresh Mehta & Company, for the Petitioner. Mr.Mohan Bir Singh, for the Respondent/Applicant. ............ CORAM : S.C.DHARMADHIKARI, J. Reserved on : 19th October, 2011. Pronounced on : 25th November, 2011. Judgment: 1 By this Notice of Motion, the Respondent has sought the following relief:- “(a) that this Hon’ble Court be pleased to direct the Petitioner to continue to pay to the employee Vinod Malhotra, his last drawn wages till the final hearing and disposal of the petition.” 2 It is stated in the affidavit in support of Vinod Malhotra that he was employed with the Petitioner since about 01.02.1979 and his *2* nms.406.11.wp.3209.04.sxw services were terminated vide order dated 17.11.1997. On an industrial dispute being raised, the Government of India was pleased to refer the same for adjudication to the Central Government Industrial Tribunal No.1 at Mumbai (in short, CGIT). By an Award dated 18.08.2004, the CGIT was pleased to hold that the said employee’s termination was illegal and it directed to reinstate him with back-wages and continuity of service. 3 That award of the CGIT was challenged by the Petitioner by filing this Writ Petition under Article 226 of the Constitution of India which was admitted on 25.01.2005 and this Court granted stay of the implementation of the Award of the CGIT. 4 This Court was pleased to record that the employee Vinod Malhotra is not gainfully employed and therefore, if he files an affidavit he would be entitled to the benefits of section 17-B of the Industrial Disputes Act, 1947 from the date of the Award of the CGIT. 5 Accordingly, on the said employee filing an affidavit, the Petitioner started paying a sum of Rs.20,121/- per month as last drawn wages and continued to pay the same till January, 2011. On 10.02.2011, the Petitioner addressed to the Respondent a communication in the following terms:- “This is to inform you that you had joined the services of Gulf Air (the Company) on 01 February 1979, at which time your age was 28, as per your date of birth, viz. 10th February 1951. In view of the retirement date followed at the Company, we have to inform you that with effect from close of working hours today i.e. Thursday, February 10, 2011, you have met your retirement age, and therefore, wages being paid to you by the Company in view of the *3* nms.406.11.wp.3209.04.sxw order dated 25th January, 2005 passed by the Hon’ble High Court, Bombay, in the above matter, shall be discontinued. Accordingly, henceforth you shall be treated as a retired employee of the Company, without prejudice however to the outcome of the aforesaid Writ Petition. Please acknowledge the receipt of this letter.” 6 It is, therefore, contended that the Respondent reminded the Petitioner for payment of subsistence allowance, but there is no response to the same. It is contended that there is no order obtained to discontinue the payment under section 17-B of the Industrial Disputes Act, 1947. Hence, direction as prayed be issued. 7 Mr.Singh, learned counsel appearing for the Respondent, urged that the relief prayed in the Notice of Motion deserves to be granted. He submits that section 17-B is clear. Its object and purpose is to discourage the employer from withholding legitimate dues of the employee during the pendency of the proceedings to challenge the award of reinstatement. There is nothing in the Industrial Disputes Act, 1947 which requires that the payment of last drawn wages can be stopped only because the workman has attained the age of superannuation or retires from the services during the pendency of the proceedings before the High Court. There is no requirement that the payment under section 17-B should be made only till the period of and length of service. That is reading into section 17-B something which is expressly not provided therein. By interpretative process, the Court should not read in any provision something which has not inserted or included therein nor the legislature has intended such insertion or inclusion. The requirement of section 17-B is that till the challenge to the award which directs *4* nms.406.11.wp.3209.04.sxw reinstatement of the employee in service of the employer, is pending in the High Court, the wages in terms of the said provision be paid till the proceedings come to an end. Mr.Singh, therefore, relies upon the judgment of the Honourable Supreme Court in the case of Dena Bank v/s Kiritikumar T. Patel reported in AIR 1998 SC 511. He also relies upon prior judgment of the Honourable Supreme Court reported in AIR 1986 SC 842 (Bharat Singh v/s Management of New Delhi Tuberculosis Centre, New Delhi and others). The purpose of section 17-B is stated in this judgment and according to Mr.Singh, if the words are plain and clear, the duty of the Court is to interpret them as they stand and read. The entitlement of back wages, therefore, should be protected. 8 On the other hand, Mr.Pai, learned counsel appearing for the Petitioner, urged that section 17-B provides for payment of last drawn wages. The very concept of wages means renumeration of performed work. If the employee attains the age of superannuation or retires from service, there is no mandate to pay him wages under the Industrial Disputes Act, 1947 or otherwise. Therefore, there is direct link between the payment under section 17-B and rendering of services in terms of the contract of employment. If the contract of employment or service or tenure of service comes to an end on the employee attaining the age of superannuation, then, there is no mandate to pay him wages. If there is no mandate to pay him wages after the employee attaining the age of superannuation or retirement, then, by taking recourse to section 17-B the employee cannot be paid his last drawn wages as that would mean that he continues in service beyond stipulated age of superannuation. Therefore, by taking recourse to section 17-B and merely because the challenge to the award of reinstatement is pending in the High Court, the employee *5* nms.406.11.wp.3209.04.sxw cannot seek alteration or change in the conditions of his service or give go-bye to them. That would mean extending of contract of employment beyond the period intended by the parties. It would amount to rewriting the contract of employment or adding something therein which is not provided in the contract. When there are specific rules of service under which the age of superannuation or retirement is prescribed, then, the same cannot be changed or altered. If the course as suggested by Mr.Singh is permitted, then, the Petitioner would be liable to pay the amount under section 17-B (last drawn wages) till the challenge to the award is pending. It is quite clear that the parties have no control over the proceedings before the Courts of law. Merely because the proceedings are pending, it is not intended by the legislature that the payment should be continued and that too beyond the age of superannuation or retirement. For all these reasons, the motion be dismissed. 9 While Mr.Singh has placed reliance on the judgment of the learned Single Judge of Delhi High Court reported in 2011 II CLR 703 (Management of Centaur Hotel v/s P.S.Mohan Nair and another), Mr.Pai has submitted that the judgment of the learned Single Judge of this Court reported in 2001(1) Bom.C.R. 543 (Hind Rectifiers Limited v/s Presiding Officer, 1st Labour Court and another) fully concludes the issue against the Respondent. 10 On Mr.Singh’s attention being invited to the judgment of the learned Single Judge of this Court, he strenuously submitted that the judgment of the learned Single Judge of this Court requires reconsideration as that does not lay down correct law. According to him, the learned Single Judge has read into section 17-B something which the *6* nms.406.11.wp.3209.04.sxw section does not provide or include. He submits that the observations in paragraph 11(2) of the judgment are contrary to the judgment of the Honourable Supreme Court in case of Bharat Singh (supra) and the learned Single Judge’s attention was not invited thereto. In these circumstances, the point be referred to a larger bench for consideration. 11 With the assistance of the learned counsel appearing for the parties, I have perused the motion, affidavit in support and annexures thereto, so also, the reply. I have also perused the relevant statutory provisions and decisions brought to my notice. 12 Section 17-B of the Industrial Disputes Act, 1947 reads as under:- “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 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.” 13 As far as this provision is concerned, it is introduced in the *7* nms.406.11.wp.3209.04.sxw Industrial Disputes Act, 1947 by the Industrial Disputes (Amendment) Act, 1982. The statement of objects and reasons as far as introduction of this provision is concerned, reads as under:- “When Labour Courts pass awards of reinstatement, these are often contested by an employer in the Supreme Court and High Courts. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, therefore, proposed to provide the payment of wages last drawn by the workman concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or High Courts.” 14 In a decision in case of Bharat Singh (supra), the controversy was as to whether, this provision will be retrospective in operation or not? While holding that the provision does not rule out applicability of the same to the awards made prior to 21.08.1984, this is what is held:- “8. It is common knowledge that even before S. 17-B was enacted, Courts were, in their discretion, awarding wages to workmen when they felt such a direction was necessary but that was only a discretionary remedy depending upon Court to Court. Instances are legion where workmen have been dragged by the employers in endless litigation with preliminary objections and other technical pleas to tire them out. A fight between a workman and his employer is often times an unequal fight. The legislature was thus aware that because of the long pendency of disputes in Tribunals and Courts, on account of the dilatory tactics adopted by the employer, workmen had suffered. It is against this background that the introduction of this section has to be viewed and its effects considered. 9. ...... 10. The Objects and Reasons give an insight into the background why this Section was introduced. Though objects and reasons cannot be the ultimate guide in interpretation of statutes, it often times aids in finding out what really persuaded the legislature to enact a *8* nms.406.11.wp.3209.04.sxw particular provision. The objects and reasons here clearly spell out that delay in the implementation of the awards is due to the contests by the employer which consequently cause hardship to the workmen. If this is the object, then would it be in keeping with this object and consistent with the progressive social philosophy of our laws to deny to the workmen the benefits of this Section simply because the award was passed, for example just a day before the Section came into force. In our view it would be not only defeating the rights of the workman but going against the spirit of the enactment. A rigid interpretation of this Section as is attempted by the learned counsel for the respondents would be rendering the workman worse off after the coming into force of this Section. This section has in effect only codified the rights of the workmen to get their wages which they could not get in time because of the long drawn out process caused by the methods employed by the Management. This Section, in other words, gives a mandate to the Courts to award wages if the conditions in the Section are satisfied. 11. In interpretation of statutes, Courts have steered clear of the rigid stand of looking into the words of the Section alone but have attempted to make the object of the enactment effective and to render its benefits unto the person in whose favour it is made. The legislators are entrusted with the task of only making laws. Interpretation has to come from the Courts. Section 17-B on its terms does not say that it would bind awards passed before the date when it came into force. The respondents' contention is that a Section which imposes an obligation for the first time, cannot be made retrospective. Such sections should always be considered prospective. In our view, if this submission is accepted, we will be defeating the very purpose for which this Section has been enacted. It is here that the Court has to evolve the concept of purposive interpretation which has found acceptance whenever a progressive social beneficial legislation is under review. We share the view that where the words of a statute are plain and unambiguous effect must be given to them. Plain words have to be accepted as such but where the intention of the legislature is not *9* nms.406.11.wp.3209.04.sxw clear from the words or where two constructions are possible, it is the Court's duty to discern the intention in the context of the background in which a particular Section is enacted. Once such an intention is ascertained the Courts have necessarily to give the statute a purposeful or a functional interpretation. Now, it is trite to say that acts aimed at social amelioration giving benefits for the have-nots should receive liberal construction. It is always the duty of the Court to give such a construction to a statute as would promote the purpose or object of the Act. A construction that promotes the purpose of the legislation should be preferred to a literal construction. A construction which would defeat the rights of the have-nots and the underdog and which would lead to injustice should always be avoided. This Section was intended to benefit the workmen in certain cases. It would be doing injustice to the Section if we were to say that it would not apply to awards passed a day or two before it came into force.” 15 Therefore, I do not see as to how this judgment can be of any assistance while resolving the present controversy. In fact if paragraph 16 of this judgment is carefully perused, what the Supreme Court has observed is that section 17-B does not confer any new jurisdiction, but it is codification in the statutory form of right available to the workmen to get back wages when certain given conditions are satisfied. This section recognizes such right. However, this judgment is of no assistance to the Respondent in this case as it does not decide the controversy as to whether, the order passed under section 17-B would continue even after superannuation or retirement of the employee/workman from service of the employer in terms of the contract between parties. 16 Reliance placed on another judgment of the Honourable Supreme Court in case of Dena Bank (supra) is also misplaced because in *10* nms.406.11.wp.3209.04.sxw that case the issue was whether the term “full wages last drawn” would include certain allowances or not. It is in that context and while referring to the objects and purpose of enacting section 17-B that the Supreme Court made the following observations:- “19. 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. 20. 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 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 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 *11* nms.406.11.wp.3209.04.sxw 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 Visveswaraya Iron & Steel Ltd., (1994(84) FJR 46) (supra) or the Bombay High Court in Carona Sahu Co.Ltd., (1995(70) Fac.L.R. 25)(supra).” Once again this judgment did not consider the point that is involved before me. I am aware of the purpose that is sought to be achieved and that provision in question is ameliorative in nature. It seeks to remove hardship that is caused to the workmen when the orders/awards granting reinstatement in their favour are challenged in higher courts and the challenge is pending. However, equitable considerations that are brought into play by Mr.Singh in this case will not enable me to apply the provision to situations which are not covered by the provision in question. Merely because the challenge is pending in higher courts and parties have no control over court proceedings, does not mean that the workmen will derive any benefit in addition to what is contemplated by section 17-B. Section 17-B clearly contemplates the payment of last drawn wages, therefore, the judgment of the learned Single Judge in case of Hind Rectifiers Limited (supra) which decides identical controversy becomes extremely relevant. In that judgment, the learned Single Judge was concerned with similar issue as is raised before me. After reproducing section 17-B, this is what is held by the learned Single Judge:- *12* nms.406.11.wp.3209.04.sxw “10. It is clear from these provisions that, what is payable to the employee are the full wages last drawn by him in the following two conditions:- (i) Where the Labour Court, Tribunal or National Tribunal by its award directed the reinstatement of the workman; and (ii) Where the employer has preferred any proceedings against such award in High Court or the Supreme Court. In these two contingencies, the employer is liable to pay to the employee full wages last drawn. 11. The question is, as to whether the employee is liable to pay such wages to the employee even beyond the age of superannuation? The wording used in the aforesaid provisions of section 17-B is that, such payment shall be made by the employer “during the period of pendency of such proceedings in the High Court or the Supreme Court”. Although the wordings are clear which requires the employer to make payment of wages during the period of pendency of such proceedings, it is difficult to imagine the situation where an employee who has attain superannuation would also be entitled to receive such wages by resorting to the provisions of section 17-B even beyond the period of superannuation. As rightly pointed out by the learned counsel representing the employee, the intention of the statute in incorporating the provisions of section 17-B was that the employee should not suffer any hardship where the employer has taken recourse to file proceedings in the High Court or the Supreme Court and obtained the stay of the award of reinstatement passed in his favour. In absence of such provisions, the award of reinstatement that is stayed by the Higher Courts could not be implemented and the proceedings in Higher Courts which remains pending and during that period employee would be without any wages whereby he would suffer hardship. It is with a view to overcome this situation that the provisions of section 17-B are incorporated so as to avoid the hardship that may be caused to the employee as a result of the employer having taken the proceedings to the High Court or the Supreme Court. 12. Even so, what is to be paid to the employee under the provisions of section 17-B is only the wages which he is entitled to and also for the period for which he is entitled *13* nms.406.11.wp.3209.04.sxw to. So far as the extent of wages are concerned, they are clarified in the provisions themselves by mentioning that he should be paid full wages last drawn by him at the time of termination of service. It is not disputed at the bar that the services of the respondent employee are governed by the conditions of service. It is also not disputed that the conditions of service prescribe the age of superannuation as 60. If this is so, even in normal course and where there is no litigation the employee could have continue or is entitled to continue in service only upto the age of superannuation. Therefore, the basic right of the employee is to continue in service till the age of superannuation only and not beyond that. Thus, even if under the order passed by the Labour Court, Tribunal or the National Tribunal, for that matter, for reinstatement of the employee and that had given affect to, that would entitle