1 caw723-11.doc ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.723 OF 2011 IN WRIT PETITION NO.5373 OF 2009 MBPT Dock & General Employees Union .. Applicants Vs. The General Manager (HR) Castrol India Limited .. Respondents Mr.P.B.Shah for the applicants Mr.J.P.Cama, Sr.Advocate, Mr.Anupam Surve and Mr.Atman Mehta i/b M/s.Haresh Mehta and Co. for the respondents CORAM: K.K. TATED, J. DATE: 29th MARCH, 2011 P.C. 1. Heard the learned counsel for the parties. 2. The present Civil Application is preferred by original respondent no.1 under section 17-B of the Industrial Dispute Act, 1947. The applicants original respondent no.1 preferred complaint before 2 caw723-11.doc the Central Government Industrial Tribunal No.2, Mumbai being Complaint No.CGIT-2/2 of 2007 in Reference No.CGIT-2/17 of 2004 under section 33-A of the Industrial Disputes Act, 1947. The said complaint was allowed by learned Presiding Officer by order dated 2.1.09 directing respondent company to make the payment of wages to the applicants workmen from March 2005 onwards till they remain in the employment of the respondent company. The said order was challenged by the respondent company by preferring Writ Petition No5373 of 2009. The said writ petition was admitted by this court on 12.11.09 and refused interim relief on the ground that finding in paragraph 44 recorded by Tribunal that the respondent company has work available for six workmen. 3. The learned counsel for the applicants submits that till today the respondent has not provided employment though the applicants are ready and willing to work. Therefore, they preferred the present Civil Application under section 17-B of the Industrial Disputes Act. Along with the Civil Application, they annexed affidavits of all the six workers stating that they are 3 caw723-11.doc not employed anywhere gainfully till today. Those affidavits are annexed to the present Civil Application as Exhibit E‘ ’ collectively. In those affidavits, the applicants specifically stated that they were ever ready and willing to work with the respondent company at their Andheri Office. It is further stated in those affidavits that they are jobless since March 2005. They are not working with any other company. They do not have any source of income and it is difficult for them to maintain their family. 4. The learned counsel for the applicants submits that as they are not engaged anywhere gainfully and they are ready and willing to work with the respondent company at their Andheri office and or anywhere at Mumbai but as the respondent company refused to provide them any work, they are entitled to their salary as per section 17-B of the Industrial Disputes Act. In support of this contention, he relies on the judgment in the matter of Dena Bank vs. Ghanshyam reported in (2001) 5 SCC 169. The apex court in that case held in para 8 and 9 as under: 4 caw723-11.doc 8. Section 17-B provides that where the employer “ prefers any proceedings against an award directing reinstatement of any workman, the employer shall be liable to pay such workman, during the 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. The proviso says that if the High Court or the Supreme Court is satisfied that the workman had been employed and had been receiving adequate remuneration during such period or part thereof, the Court shall order that no wages shall be payable under that section for such period or part, as the case may be. 9. The Statement of Objects and Reasons for inserting the said provision indicates that when Labour Courts pass awards of reinstatement, they are often contested by employers in the Supreme Court and High Courts. To mitigate the hardship that would be caused due to delay in implementation of the award, it was proposed to provide for payment of wages last drawn by the workman concerned from the date of the award till the dispute between the parties is finally decided in the High Courts or the Supreme Court. It follows that in the event of an employer not reinstating the workman and not seeking any interim relief in respect of the award directing reinstatement of the workman or in a case where the Court is not inclined to stay such award in toto the workman has two options, either to initiate proceedings to enforce the award or to be content with receiving the full wages last drawn by 5 caw723-11.doc 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. In Dena Bank case this Court elucidated the expression full wages last drawn as follows: (SCC p.115, para “ ” 21) .... 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 . ‘ ’ ” 5. In view of above mentioned submissions, the learned counsel for the applicants submits that the respondent company be directed to pay them full wages inclusive of any maintenance allowance admissible to them under section 17-B of the Industrial Disputes Act, 1947 from the month of December 2009. 6. The learned counsel for the respondent company vehemently opposed this application. They filed their affidavit in reply dt. 28.3.11. The learned counsel for the respondent submits that the present application is not maintainable in law. He submits that under section 17-B of the Industrial Disputes Act, workers are entitled to benefit only if their services are terminated and reinstatement order is passed by the court. In the present case, 6 caw723-11.doc applicants were transferred to other places and as they refused to join their services at transfer places, they are not entitled to the benefit of section 17-B. He further submits that the applicants failed and neglected to disclose the details in their affidavit of their source of income for survival for the last 5 years. They failed to disclose from whom they got financial assistance during this period. For want of sufficient material on record, it is difficult to believe that applicants were not working anywhere during this period. Therefore, they are not entitled to any benefit under section 17-B of the Industrial Disputes Act. He submits that before passing any order under section 17-B of the Industrial Disputes Act, it is necessary to see that the affidavits of the workmen that they are not gainfully employed, are complete in all respects and set out full particulars within the knowledge of workmen. In support of his contention, he relies on the judgment in the matter of U.P. State Bridge Corporation Limited vs. Maharashtra General Kamgar Union reported in 2008(2) Bom. C.R. 619. The learned senior counsel for the respondent further submits that at the time of admission 7 caw723-11.doc of connected writ petition no.7790 of 2009, this court specifically directed It is also made clear that on being given work, six ‘ workmen will be paid their wages regularly. He submits that ’ they are ready and willing to provide work to the applicants at their establishment in other states. But Applicants are not ready to join there. Therefore, they are not entitled to any benefit under section 17-B of the Industrial Disputes Act. It is to be noted that under section 17-B of the Industrial Disputes Act, workers are entitled to their last pay benefit if the employer fails and neglects to provide them work. 7. In the present case, originally the respondent company transferred the applicants to their establishment out of Maharashtra and same was challenged by the applicants by preferring the dispute. The said dispute was decided in favour of the applicants holding that their services were not transferable. Para 44 and 45 of Reference Court s order dated ’ 2nd January, 2009 in Reference No.CGIT-2/17 of 2004 reads thus: 44) “ So this is the evidence brought on record by the Union through above witnesses who states that, the work which was done by these employees who 8 caw723-11.doc now remain in the reference, is available at new place i.e. at Andheri. By examining these witnesses Union try to show that, work done by these employees who remain in the reference still, subsists and same is get done by 1st Party through these agencies. Work of Clerk, Peon and Pantry boy is also available. It is to be noted that, employees of that category who remained in the reference when their work is available, question arises why, Management is not accommodating them or taking them in the Andheri office? 45) In the meanwhile Management transferred them to various places. It is to be noted that, in their appointment order there is no transfer clause. Ld. Advocate for the 1st Party tried to argue that, Union, has not proved that, the Management cannot transfer them. In fact positive burden can be put and negative is not accepted as pleaded by the 2nd Party s Advocate. It is a matter of record ’ that, at the time of recruiting new persons, 1st Party has put the clause of transfer. When 1st Party has put the clause of transfer while engaging new persons, and when there was no transfer clause in the appointment letter of the employees who remained, in the reference in my considered view, the Management cannot transfer them as per its 9 caw723-11.doc whims and ideas as it is done by transferring them to Chennai, Kolkatta, Assam and Haryana. It is to be noted that, persons of category of Clerk and Peons and Pantry boy who can be of Group C ‘ ’ and D whether can be in a position to go there ‘ ’ at such a long distance in place where they do not know anything and whether they can adjust themselves when going to such long place first time in life? There is no justification from the 1st Party side in transferring them at such long place without any cogent and satisfactory reason and then cannot say that, since they did not report at new place they cannot claim wages which is stopped by 1st Party from March 2005. Admittedly the 1st Party was paying wages till that time but under the guise of not reporting by the workers at the transferred place who remained in the reference, 1st Party, stopped their payment which is not just and proper.” 8. Therefore, there is no question of holding that though the respondents are ready and willing to provide work to the applicants, they refused to do the same. 9. The second submission made by the learned counsel for the respondent is about non-maintainability of present application 10 caw723-11.doc under section 17-B of the Industrial Disputes Act. It is to be noted that the award is passed in favour of applicants. The said award is challenged by the respondent in this court by preferring Writ Petition No.5373 of 2009. Interim relief was refused in their favour. It is not correct to say that section 17-B of the said Act is applicable only if employer terminates the services of the employee and the same is set aside by the court. 10. It would be useful to reproduce the provisions of section 17-B of the Industrial Disputes Act, they are as under: 1 “ 7-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: 11 caw723-11.doc 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.” 11. 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: 1. Where the Labour Court, Tribunal or National Tribunal by its award directed the reinstatement of the workman, and 2. Where the employer has preferred any proceeding against such award in the High Court or Supreme Court. 12. This right is a separate and independent right available to a workman during the pendency of the proceeding before a High Court or the Supreme Court, where the proceedings have been preferred by the employer, against the award of reinstatement in his favour. 13. The pre-requirements for invoking this section are: i) the award of the tribunal should have directed 12 caw723-11.doc reinstatement of the workman on setting aside the order of his dismissal or unfair termination of service; ii) the employer should have preferred proceedings against such award before the High Court or the Supreme Court; iii) the workman should not have been gain-fully employed in any establishment during the pendency of the proceedings; and iv) as a proof of that, the workman should have filed an affidavit before the court before which the proceedings have been preferred. 14. Once these requirements are satisfied, the workman is entitled to the wages as contemplated by this provision and no order of the court, before which the proceedings are pending, is necessary for entitling him to such wages, as the statute itself creates the right. If, after the workman has filed the affidavit of non-employment, the employer fails to pay wages to the workman, as required by the section, the workman may file an application before such court or directions to the employer to make such payment. 15. The workman in whose favour the Industrial Tribunal has made 13 caw723-11.doc an award directing his reinstatement is required by the main part of the section to file an affidavit before the court where the employer has preferred proceedings against such award to the effect that he had not been employed in any “ establishment during the pendency of such proceedings. Once ” such affidavit has been filed by the workman, he has discharged the burden cast upon him. Then, by virtue of the proviso, the burden of proof shift to the employer. 16. Our High Court in the matter of Elpro International Ltd. vs. K.B.Joshi reported in (1987) 2 LLJ 201 (Bom) (Division Bench) a Division Bench held that section 17-B is neither vague nor arbitrary in the absence of provisions as to what would happen to the amount paid under section 17-B, if ultimately the employer succeeds in the litigation, because the amount payable under this section is in the nature of subsistence allowance which is neither refundable nor recoverable irrespective of the result of the litigation. Our High Court held that this section is a beneficial legislation and operates within the limited sphere subject to the conditions laid down in its own text. It imposes a 14 caw723-11.doc liability upon the employer to pay and confers a right on the workman to receive payment on the basis of wages last drawn by him. 17. In the present case, the learned Presiding Officer by order dt. 2.1.09 specifically directed the respondent company to treat the employees as its employees till they attain the age of superannuation and give all monetary benefits to them attached to the post till then. This shows that they are in the employment with the respondent company and therefore, it is the duty of respondent company to pay the wages to them. 18. Considering these facts, I am of the opinion that the respondent company is liable to pay to the applicants under section 17-B of the Industrial Disputes Act, the last pay drawn by the applicants from December 2009 till they attain the age of superannuation and or terminated from service according to law. 19. Considering the above facts and circumstances, the Civil Application preferred by the applicants is allowed. The respondent company is directed to pay the applicants under section 17-B of the said Act the last pay/wages drawn by them 15 caw723-11.doc inclusive of any maintenance allowance admissible to them under any rule from December 2009 till the date they are in employment and or till the decision of the present writ petition. 20. Civil Application is disposed of accordingly. 21. The learned counsel for the respondent seeks stay of this order for three weeks. Considering the facts and circumstances of the present case, stay is granted for two weeks from today. (K.K. TATED, J.)