1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.358 OF 2009 IN WRIT PETITION NO.1755 OF 2007 M/s. Arora Combines ..Petitioner. Vs. Damaji Ganpat Mankar and another ..Respondents. .... Mr. S.S.Pathak for the Petitioner. Ms Gayatri Singh with Ms Bhavana Mhatre for Respondent No.1. .... CORAM : DR. D.Y. CHANDRACHUD, J. 10th November, 2009. ORAL ORDER : 1. The Motion has been filed in order to seek relief under Section 17-B of the Industrial Disputes Act, 1947. 2. By the award of the Labour Court dated 8th March, 2007 the following relief was granted to the workman : “i. The 2nd party workman, Mr. Damaji Ganpat Mankar is entitled to get 75% of back wages from the date of dismissal till today. 2 ii. The 2nd party workman is also entitled to get continuity of service w.e.f. 21.9.2000 till today with attendant benefits. iii. The 2nd party is also entitled to get 40% of wages from today till the date of retirement on superannuation by way of compensation instead of reinstatement. The 1st party if does not desire to pay compensation is at liberty to allow 2nd party to reinstate 2nd party /workman.” 3. In paragraph 41 of the award the Labour Court held that having regard to the conduct of the workman, it was not desirable that reinstatement should be granted. As the operative part of the award would show, the Labour Court granted (i) 75% of the back wages from the date of the dismissal until the date of the award; (ii) continuity of service and (iii) 40% of the back wages from the date of the award until the date of superannuation by way of compensation instead of reinstatement. Liberty was granted to the employer if he did not desire to pay compensation to reinstate the workman. Section 17-B of the Industrial Disputes Act provides that where in any case, a Labour Court or Tribunal “by its award directs reinstatement of any workman and the employer prefers any proceedings against 3 such award in a High Court or the Supreme Court,” the employer shall be liable to pay the workman, during the pendency of the proceedings, full wages last drawn by him, inclusive of any maintenance allowance. In other words, in order that Section 17-B should be brought into operation, the Labour Court or as the case may be, Tribunal must by its award have directed reinstatement of a workman and there must be a proceeding by the employer against the award in the High Court or the Supreme Court. 4. In the present case, the Labour Court has expressly declined to grant relief of reinstatement. The Labour Court has furnished reasons for declining relief of reinstatement in paragraph 14 of the award. Clause (iii) of the operative part of the award also makes it clear that the payment of 40% wages from the date of the award until superannuation was awarded as compensation instead of reinstatement. In these circumstances, the provisions of Section 17-B would not come into operation. This view of Section 17-B is consistent with the interpretation placed thereon in a judgment of a 4 Division Bench of this Court in Rohidas B. Duraphe v. Mazgaon Dock Ltd. (Appeal NO.105 of 2008 in Notice of Motion 382 of 2007 in WP 2803 of 2006) decided on 30th June, 2008. In that case, the Labour Court had granted compensation instead of reinstatement but had granted the employer liberty to allow the workman to report for work instead of paying compensation. By an order dated 27th June, 2007 the Learned Single Judge had observed that the Labour Court had not passed an order of reinstatement and that Section 17-B would not apply. This view was upheld by the Division Bench in appeal. Reliance was, however, sought to be placed on a judgment of Hon’ble Mr. Justice A.M. Khanwilkar dated 28th November, 2007 in China Gate Restaurant Private Limited v. Kisan D. Badei (Notice of Motion 414 of 2007 in Writ Petition 1132 of 2007). In the case which arose before the learned Single Judge the Labour Court had by its award expressly held that the workman “is entitled to get reinstatement with full back wages and continuity of service”. However, liberty was granted to the employer, if he did not want to reinstate the workman, to pay full back wages from 20th June, 2002 5 till the date of the award with consequential benefits and to pay compensation of Rs.2.50 lacs instead of reinstatement. In holding that Section 17-B would apply, the Learned Single Judge observed that “going by the direction issued by the Labour Court, there is no doubt that the award in the first place declares that the Respondent workman is entitled for an order of reinstatement with full back wages”. The Learned Single Judge also noted that the employer had as a matter of fact not even deposited Rs.2.50 lacs as directed, in Court, nor had the employer paid full back wages. This view was affirmed by the Division Bench in appeal on 12th August, 2008 (Appeal 18 of 2008). The Division Bench also noted that “there is an order of reinstatement which has been challenged by the appellant by filing the writ petition” and that the employer had also applied for stay of the order of reinstatement. In a Special Leave Petition filed by the employer before the Supreme Court, Special Leave Petition (Civil) 23144 of 2008, the Supreme Court by its order dated 3rd November, 2008 granted relief in terms of Section 17-B, but directed that the amount of Rs.2.50 lacs which shall be deposited in Court may not be 6 paid to the workman. The aforesaid case clearly stands on a different footing inasmuch as there was a specific direction for reinstatement passed by the Labour Court of which a stay had been sought by the employer. 5. In the present case as already noted there is no order of reinstatement by the Labour Court and in fact for the reasons indicated in the award, the Labour Court declined to allow the plea for reinstatement. In these circumstances, Section 17-B of the Industrial Disputes Act, 1947 can have no application. The Motion is accordingly dismissed. *****