1 caw 384.11.doc srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.384 OF 2011 IN WRIT PETITION NO.5729 OF 2008 Shri S.S.Sayyad alias Saiyed ....Petitioner vs. M/s. Hindustan Aeronautics Ltd. ....Respondents Mr. Arshad Shaikh h/f Mr. V.M. Parkar for the Petitioner. Mr. Mahesh Londhe h/f Sanjay Udeshi & Co. for the Respondent no.1. CORAM : K.K.TATED,J. RESERVED ON : 01/07/2011 DECIDED ON : 18/07/2011 PC: 1 Heard the learned counsel for the Parties. 2 By this civil application, the original Respondent workman seeks direction against the Respondent-Company to pay to the Applicant and keep on paying the sum of Rs.2,976/- per month being his last drawn wages from the date of Award of the learned Presiding Officer. This 2 caw 384.11.doc Application is under section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the said Act’). 3 A few facts of the matter are as under: The Government of India, Ministry of Labour by its Order dated 19th June, 2000 in exercise of the powers conferred by clause (d) of the sub-section (1) and sub- section (2-A) of section 10 of the Industrial Disputes Act, 1947, made a reference to the Tribunal for adjudication: “Whether the action of the management of M/s Hindustan Aeronautic Limited, Nashik in terminating the services of Shri S.S. Saiyed, an ex-Driver with effect from 11th December, 1996 is legal and justified? If not, to what relief the workman concerned is entitled?” 4 The said Reference was decided by the learned Presiding Officer, Central Government Industrial Tribunal No.2, Mumbai by its order dated 31st December, 2007 directing the Respondent - original Petitioner to reinstate 3 caw 384.11.doc the Applicant in its employment and pay 25% back wages from 11th December, 1996 till he is taken in the employment. 5 Being aggrieved by the said order, Respondent – original Petitioner filed present Petition on 19th July, 2008. The said Petition was admitted by this court on 12th November, 2008. At the time of admission, this court observed that the Applicant was entitled to wages under section 17-B of the said Act subject to his filing an affidavit that he was not gainfully employed. 6 The learned counsel appearing on behalf of the Applicant submits that the Applicant was drawing the last wages to the tune of Rs.2,976/- per month being his last drawn wages and therefore, the Applicant as per the provisions of section 17-B of the said Act is entitled same wages from the date of the Award of the learned Presiding Officer i.e. 31st December, 2007. In this Application, the Applicant has stated that he was unemployed from the date of termination as well as subsequent to the order dated 31st December, 2007 passed by the learned Presiding Officer, 4 caw 384.11.doc Central Government Industrial Tribunal No.2, Mumbai. He further stated that despite persistent efforts he could not get any gainful employment. He stated that neither he was gainfully employed nor gainfully self employed during this period. The learned counsel submits that Applicant’s last drawn salary was Rs.96/- per day which works out to Rs.2,976/- per month for 31 days at the daily rate per month. He submits that presently the Applicant is staying with his relatives and depend upon their earnings for his survival. The Applicant has taken loan from friends and relatives from time to time for his and his family members’ survival. He submit that the Applicant owed more than Rs. 3,00,000/- to different persons. 7 He further submits that the Respondent filed the present Petition after six months from the date, the learned Presiding Officer, Central Government Industrial Tribunal No.2, Mumbai passed the order and therefore, the Applicant is entitled to the benefits under section 17-B of the said Act from the date of order is passed by the Tribunal i.e. 31st December, 2007. He submits that it is the duty of the Respondent to make the payment under section 5 caw 384.11.doc 17-B of the said Act as soon as the order is passed by the Tribunal. He submits that it is not necessary to make any application under section 17-B of the said Act for getting benefit. He submits that Allahabad High Court in the matter of M/s. Berrys Auto Ancillaries Pvt. Ltd., Lucknow vs. Industrial Tribunal No.II, Lucknow and another reported in 1999 LAB.I.C. 2672 held that even if no application would have been preferred by the worker under section 17-B of the Industrial Disputes Act, 1947, it is the duty of the court to pass an order directing the employer to pay the workman his full wages at the rate of wages last drawn by him from the date of filing of the Writ Petition and continue to pay the same till the disposal of the writ petition. Paragraphs 14 and 15 of the said judgment read thus: “14 There is no dearth of cases as far as the provisions of Section 17-B are concerned. Very recently in Dena Bank v. Kirtikumar T. Patel, AIR 1998 SC 511: (1998 Lab IC 578 : 1998 AIR SCW 98) Hon’ble S.C. Agrawal, J. speaking for the bench observed: “Section 17-B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the 6 caw 384.11.doc proceedings involving challenge to the award of the Labour Court, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass an order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be dehors the provisions contained in S. 17-B and while giving the direction the Court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. In exercise of the power under Articles 226 and 136 of the Constitution and order cannot be passed denying the workman the benefit granted under S. 17B. The right of workman under section 17-B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Articles 226 and 136 of the Constitution.” “15 It is really unfortunate that the provisions of section 17-B were completely ignored by two eminent Hon’ble single Judges of this Court while passing a blanket order of stay of the Award. This could not have been done. My attention has been drawn by the learned 7 caw 384.11.doc counsel appearing on behalf of the workman that during the course of proceedings an application under S. 17-B was also preferred but no orders on the said application were passed. I am of the view that even if no application would have been preferred, it was the duty of the Court to have passed an order directing the employees to pay the workman his full wages at the rate of the wages last drawn by him from the date of the filing of the writ petition and continue to pay the same till the disposal of the writ petition.” 8 The learned counsel submits that in view of the above mentioned authority, it is not necessary to make an application at all. The learned counsel submits that the Respondents in their affidavit-in-reply dated 5th February, 2011 relied on a certificate issued by Talathi, Kokangaon, taluka Niphad, District Nashik dated 17th November, 2008 for coming to the conclusion that the Applicant is getting income to the tune of Rs.50,000/- per year from his agricultural land ad-measuring 46 Ars. He submits that there is no provision under the Maharashtra Land Revenue Code authorising Talathi to issue such type of certificate. He submits that the Talathi without any basis and/or enquiry issued the certificate showing that Applicant was 8 caw 384.11.doc getting income to the tune of Rs.50,000/- from his agricultural land. He further submits that even the Respondent in the reply no where stated that under which provision the Talathi has issued the said certificate dated 17th November, 2008, therefore, the said certificate is not reliable. He further submits that it is correct that the Applicant is holding 46 Ars of land at Kokangaon, taluka Niphad, District Nashik, but because of the pending litigation the Applicant was constrained to mortgage the said land for the sum of Rs.50,000/- to third person. In support of this contention, the Applicant in his affidavit in rejoinder dated 20th April, 2011 stated that his mother suffered from paralytic stroke for a prolonged period and passed away in the year 2001. His father passed away in the year 2002 pursuant to prolonged illness due to cancer and sumptuous amounts were required to be spent for their treatment. For their treatment, the Applicant had taken loan and for repayment of part of the said loan, he had to mortgage agricultural property in or around July, 2005. He annexed the mortgage deed dated 8th July, 2005 to his affidavit in rejoinder dated 20th April, 2011. He pointed out that in the said mortgage deed it is specifically stated that 9 caw 384.11.doc during the pendency of the mortgage, Applicant is not entitled to get any income from the said agricultural land. Therefore, there is no question of considering the said alleged agricultural income at the time of considering the Applicant’s application under section 17-B of the said Act. 9 The learned counsel appearing on behalf of Applicant submits that Applicant is entitled to actual last drawn wages or minimum wages payable whichever is higher at the time of payment. He submits that as on today the minimum wages for skilled Engineering workman is Rs.4,945.40 paise. He annexed the statement of minimum wages in Maharashtra with effect from January 1,2011 to June 30, 2011 being Exhibit ‘C’ to his affidavit-in-rejoinder. On the basis of the said statement of minimum wages the learned counsel submits that the Applicant is entitled to actual last drawn wages or the minimum wages whichever were higher and in the present case, minimum wages are higher; therefore, the Applicant is entitled to minimum wages under section 17-B of the said Act. In support of this contention, he relies on judgment in the matter of Delhi Transport Corporation vs. Presiding Officer, Labour 10 caw 384.11.doc Court No.X and Others, reported in 2004 III CLR 249. The head note of the said judgment reads thus: “Wages – Payment of – Inspite of the Award of the Labour Court, Management did not reinstate the workman – Direction of Court to Management to pay arrears of wages, last drawn by him or minimum wages, whichever is higher–Misinterpreting those directions– Management deposited certain amount only – Challenged – Held that Management directed to deposit difference between last drawn wages and minimum wage payable from time to time – Industrial Disputes Act, 1947 – S. 17-B.” 10 The learned counsel submits that income earned by a workman which he would have earned in any event is not relevant, he may attend to the work not because his efforts would yield an increased income, but to prevent idleness, to keep himself occupied or even otherwise. He relies on the judgment in the matter of Kirloskar Pneumatic Kamgar Sangh vs. Kirloskar Pneumatic Company Limited reported in 2010 (6) Bom.C.R. 292. He relies on paragraph 6, 15, 17A and 19. But in any case, this authority cannot be considered at the time of deciding this 11 caw 384.11.doc Application because the learned counsel appearing on behalf of the Respondent pointed out that the same is subject matter in LPA No.126 of 2010 before the Division Bench vide its order dated 30th June, 2010 which substantially stayed the operation and implementation of that order. 11 The learned counsel appearing on behalf of the Applicant submits that the Applicant satisfied the requirements of section 17-B of the said Act, therefore, he is entitled to the benefit of the said section. He submits that in view of above mentioned submissions and authorities relied by him, the Application preferred by the Applicant deserved to be allowed with costs. 12 On the other hand, the learned counsel appearing on behalf of Respondent – Company vehemently opposed the present Application. They filed their affidavit-in-reply dated 5th February, 2011. The learned counsel submits that the present Civil Application filed by the Applicant – original Respondent under the provisions of section 17-B of the said Act inter-alia praying for payment of last drawn wages 12 caw 384.11.doc during the pendency of the above Writ Petition is not maintainable. He submits that the Applicant was self- employed during the pendency of the present Writ Petition and earning sufficient amount and therefore, he is not entitled for any benefit in the present Application. He submits that the Applicant suppressed the material facts from this court and on this count this civil application is liable to be dismissed with costs. He submits that the Applicant is holding 46 Ars of land at village Kokangaon, taluka Niphad, District Nashik, from the said agricultural land he is getting income to the tune of Rs.50,000/- per year, to that effect he relies on the certificate issued by Talathi, Kokangaon, taluka Niphad, district Nashik, dated 17th November, 2008. He further relies on 7/12 extract to show that the said agricultural land stands in the name of Applicant. According to him, in view of the suppression of material facts from this court, the Applicant is not entitled to any relief under section 17-B of the said Act. 13 The learned counsel further submits that in any case, Applicant is not entitled to the benefits under section 17-B of the said Act from the date of the order passed by the 13 caw 384.11.doc Tribunal dated 31st December, 2007. He states that bare reading of section 17-B of the said Act shows that the workman is entitled to benefit under section 17-B of the said Act during the pendency of such proceeding either in High Court or Supreme Court. He submits that in the present case, the High Court granted stay on 12th November, 2008. He further submits that the submission made by the learned counsel appearing on behalf of Applicant that the Applicant is entitled to minimum wages as made applicable on the date of payment is not correct. He submitted that at the most Applicant was entitled to minimum wages as prevailing on the date of the Award passed by the Tribunal i.e. 31st December, 2007. On the basis of this submission, the learned counsel appearing on behalf of Respondent – Company vehemently submits that there is no substance in the present Civil Application and the same is liable to be dismissed with costs. 14 I have gone through the Civil Application, affidavit-in- reply filed by the Respondent, Affidavit-in-rejoinder filed by the Applicant and the authorities relied by both the sides. Before considering the merits of the matter, it is necessary 14 caw 384.11.doc to reproduce the section 17-B of the said Act which 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 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.” 15 caw 384.11.doc 15 It is also necessary to reproduce the definition of ‘wages’ as defined under section 2 (rr) of the Industrial Disputes Act, 1947 which reads thus: “Section 2 (rr) “wages” means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to a workman in respect of his employment, or of work done in such employment, and includes- (i) such allowances (including dearness allowance) as the workman is for the time being entitled to; (ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food-grains or other articles; (iii) any travelling concession; (iv) any commission payable on the promotion of sales or business or both; but does not include- (a) any bonus; 16 caw 384.11.doc (b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force; (c) any gratuity payable on the termination of his service;” 16 The bare reading of the section 17-B of the said Act shows that the requirements for revoking this section are: i) The Award of the Tribunal should have directed reinstatement of the workman on setting aside the order of the dismissal or unfair termination of service. ii) The Employer should have preferred proceeding against such Award before High Court or Supreme Court. iii) The workman should not have been gainfully 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 proceeding has been preferred. 17 Once these requirements are satisfied, the workman becomes entitled to the wages as contemplated by these 17 caw 384.11.doc provisions 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 files the affidavit of non-employment, the employer fails to pay the wages to the workman as required by the section, the workman may file an application before such court for direction to the employer to make such payment. In the present case, the Applicant filed Civil Application claiming the benefit of section 17-B of the said Act. In the said Application, the Applicant specifically stated that he tried to get employment but not succeeded. He remain unemployed during this period and therefore, he is entitled for the benefit as per section 17-B of the said Act. 18 It is to be noted that the Respondent-Company failed to produce any contrary evidence on record to show that the Applicant was gainfully employed. Though the Respondent had filed certificate of Talathi showing that Applicant was getting sum of Rs. 50,000/- from his agricultural land, the same is not reliable because neither the Respondent in their affidavit-in-reply nor the Talathi in the said certificate stated under which provision he 18 caw 384.11.doc issued such certificate and on what basis he calculated that the Applicant was getting sum of Rs.50,000/- per annum. There is no basis for coming to the conclusion that the Applicant was getting income of Rs.50,000/- per year. Not only that the Applicant placed on record the mortgage deed showing that he had to mortgage the property to meet the requirements of his family members. Thus, the Applicant’s statement that he did not set agricultural income finds support from the recitals of the mortgage deed duly executed by him and even if he got some income from the land of the area of 49 Ars, he was getting the same even when he was in the service and on that basis it cannot be held that he was gainfully employed during the period was out of service. 19 The bare reading of section 17-B of the said Act shows that during the pendency of litigation in the High Court or Supreme Court, worker is entitled to benefit under section 17-B of the said Act. Therefore, the submissions made by the learned counsel appearing on behalf of the Applicant that the Applicant is entitled to benefit under section 17-B of the said Act from the date of the order passed by the 19 caw 384.11.doc Tribunal i.e. 31st December, 2007 is not acceptable. The Applicant is entitled to benefit under section 17-B of the said Act from 12th November, 2008 when the interim stay was granted in Writ Petition No.5729 of 2008. 20 The Applicant is entitled to full wages as last drawn from the Respondent. The full wages last drawn are the wages actually paid and not the amount that will be payable at the time of termination, the wages as set out has to be paid as defined in clause (rr) of section 2 of the said Act, so as to include the amounts referred to in sub clause I to IV together with any maintenance allowance admissible to him. In the present case, the Applicant in his Application stated that he was drawing a sum of Rs.2,976/- as last drawn wages. Therefore, considering the Delhi High Court Judgment in the matter of Delhi Transport Corporation vs. Presiding Officer, Labour Court No.X and others (supra) Applicant is entitled to a sum of Rs.2,976/- per month being his last drawn wages or minimum wages as defined by the Minimum Wages Act whichever is higher. Therefore, Civil Application is allowed as under: 20 caw 384.11.doc i) Applicant is entitled a sum of Rs.2,976/- per month being his last drawn wages or minimum wages as per the Minimum Wages Act whichever are higher from 12th November, 2008. ii) Respondents are directed to calculate the amount payable to the Applicant within four weeks from today and either to deposit the same in this court or pay directly to the Applicant within six weeks from today. iii) If the Respondents deposit the amount in this court within six weeks from today, the Applicant shall be entitled to withdraw the same without furnishing any security. iv) Respondents are further directed to pay future wages from September, 2011 to the Applicant or deposit in this court on or before 10th of each month till the hearing and final disposal of the Writ Petition No.5729 of 2008 or till he attains superannuation date whichever is earlier. 21 caw 384.11.doc v) If the Respondents deposit monthly wages in this court then Applicant shall be entitled to withdraw the same without furnishing any security. vi) Civil Application is disposed of accordingly. vii) No order as to costs. (K.K.TATED,J.)