Bhikhabhai Tapubhai vs State of Gujarat

H.K. Rathod, J.—Heard learned advocate Ms. D.T. Shah for the applicant original respondent - workman and Mr. A.D. Oza, learned G.P.

for the opponent original petitioner.

Present application has been filed by the applicant-original respondent workman for directing the original petitioner to pay the wages u/s 17-B of

the Industrial Disputes Act, 1947. In the main petition, the original petitioner has challenged the award made by the labour court, Surendranagar in

Reference (LCS) No.326 of 1992 dated 4th August, 2000 wherein the labour court concerned has set aside the order of termination dated 1st

June, 1984 and has granted 20 per cent of the back wages with effect from 1st July, 1992. In the main petition, this Court has, by order dated

11.6.2001, admitted the petition by issuing rule thereon and has granted ad.interim relief in terms of para 5(C) and, thereby, has stayed the

execution of the award in question. The ad.interim relief granted initially has operated till this date.

The respondent workman has, therefore, filed the present civil application with a prayer for directing the petitioner to pay the wages u/s 17-B of

the Industrial Disputes Act, 1947 since the award in question has been stayed and he has remained unemployed from the date of the award. Copy

of the present civil application has been served upon the petitioner on 18th September, 2001. Reply to the present civil application has been filed

by the petitioner wherein the petitioner has contended that the present application is not maintainable because it has been held by the apex court in

the decision reported in JT 2001 (3) 327 that ordinarily, the Department of the Government of Gujarat is not an ''industry'' and it is for the

workman to plead and prove before the Court below. The petitioner has submitted that as per the said decision, the Forest Department is not an

industry. The petitioner has also raised the contention that this Court has relied upon the decision of the apex court reported in November 2001

GLH 440 wherein it has been held that the forest department is not an industry and that the award of the labour court is without jurisdiction

because the Industrial Disputes Act, 1947 is not applicable. It has also been contended by the petitioner in the affidavit in reply to the present civil

application filed by the respondent workman that since the provisions of the Industrial Disputes Act, 1947 are not applicable, there is no question

of paying wages u/s 17-B of the Industrial Disputes Act for want of jurisdiction. There is no affidavit filed by the petitioner to the effect that the

respondent workman has been gainfully employed. Therefore, the fact remains that the applicant respondent has made clear affidavit to the effect

that he has not been gainfully employed elsewhere from the date of the award in question and such averments have not been controverted by the

deponent in the affidavit in reply filed on behalf of the petitioner.

I have heard the learned advocate Ms. Shah on behalf of the original respondent workman and the learned Government Pleader Mr. Oza for the

original petition. The main contention of the petitioner is that since the Forest Department is not an industry, the labour court is having no

jurisdiction to examine the legality and validity of the order of termination. Therefore, the award of the labour court is without jurisdiction. This

question is pending before this Court and till this date, the main special civil application is pending and no decision has yet been taken and,

therefore, the award in question has been stayed by this Court. It is the contention raised by Mr. Oza that since the award has been made by the

labour court without jurisdiction, there is no question of making payment of wages to the workman u/s 17-B of the Industrial Disputes Act. This

aspect has been examined by the apex court in case of Dena Bank versus Kiritkumar T. Patel reported in 1997 (2) GLH 946. In case of Dena

Bank (supra), the apex court has considered the earlier decision of the Bombay High Court in case of Elpro International Ltd. v. K.B. Joshi &

Others reported in 1987 Lab. I.C. 1468 wherein the question was examined that if the award is without jurisdiction, provisions of section 17-B

will not apply and ultimately, after considering the decision of the Bombay High court in case of Elpro International Ltd. v. K.B. Joshi & Ors. 1987

Lab. I.C. 1468, the apex court has observed as under in the decision :

But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. (supra) that in exercise of the power under Arts.

226 and 136 of the Constitution an order can be passed denying the workman the benefit granted under s. 17-B. The conferment of such a right

under S. 17-B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Arts. 226 and 136 of the

Constitution. "" .....

Relevant observations as regards object of section 17-B of the Industrial Disputes Act, 1947 made by the apex court in para 22 of the aforesaid

decision are reproduced as under:

As indicated earlier, S. 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, the Parliament thought it proper to limit 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 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 is not refundable or recoverable in the event of the award being 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 S. 17-B to cast such a burden on the employer. In our opinion, therefore, the words ""full wages last drawn"" must be given their plan

and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Vishveswaraya Iron and Steel Ltd.

(supra) or the Bombay High Court in Carona Sahu CO. Ltd. (supra).

In para 24 of the judgment, the Hon''ble apex court has also observed as under :

As regards the powers of the High Court and the Supreme Court under Arts. 226 and 136 of the Constitution, it may be stated that S. 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 proceedings involving

challenge to the award of the Labour Court, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amounts 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

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 the direction regarding refund or

recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High Court in

Elpro International Ltd. (supra) that in exercise of the power under Arts. 226 and 136 of the Constitution an order can be passed denying the

workman the benefit granted under s. 17-B. The conferment of such a right under S. 17-B cannot be regarded as a restriction on the powers of

the High Court or the Supreme Court under Arts. 226 and 136 of the Constitution.

Similar question has earlier been examined by this Court in case of State of Gujarat versus Shankarbhai K. Parmar reported in 2001 (3)

G.L.H.461. In the said matter also, the contention was raised by the petitioner that the award of the labour court deserves to be set aside for want

of jurisdiction. This Court, after referring to the decisions reported in Workmen Represented by Hindustan V.O. Corpn. Ltd. Vs. Hindustan

Vegetable Oils Corporation Ltd. and Others, ; Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others, and

2000 I CLR 563 (Delhi HC) (para-8), has observed as under :

Whether the Award of the Labour Court deserves to be set aside or not or whether the same is without jurisdiction or not, can be decided only

at the time of final hearing and not at this stage. In view of the clear mandate of the aforesaid provision S. 17-B of the Act, the petitioner is bound

to follow the said provisions especially when reinstatement is stayed by this Court. (Para 4)

In view of what is stated above, therefore, the interim relief granted earlier is confirmed on the same terms on which it was granted earlier and the

petitioner is directed to comply with the provisions of S. 17-B of the Act from the date of the order of the Labour Court and during the pendency

of this petition, the Department should continue to comply with the same. The respondent workman has filed an affidavit, copy of which has been

given to the learned AGP, stating that he is not gainfully employed. Since the first order is as back as of 15.12.2000, it is high time that the

Department should comply with the said provision forthwith. (Para 6)

The object of section 17-B of the Industrial Disputes Act, 1947 and the jurisdiction of the High Court has been considered by the apex court in

case of Ch. Saraiah Vs. Executive Engineer, Panchayat Raj Department and Another, . Relevant observations made in para 3 are reproduced as

under :

Having examined the provisions of Section 17-B of the Industrial Disputes Act, we are of the considered view that the Court has no jurisdiction

to direct non-compliance with the same when the condition precedent for passing an order in terms of section 17-B of the Act is satisfied, and this

being the legislative mandate, the Division Bench of the High Court committed serious error in interfering with the direction of the learned Single

Judge. We accordingly set aside the impugned order passed by the Division Bench and direct that the order of the learned Single Judge requiring

compliance with Section 17-B of the Industrial Disputes Act shall be complied with by the employer. The appeal is accordingly allowed. There

shall be no order as to costs.

Similarly, Punjab and Haryana High Court has also examined and considered the object of Section 17-B of the Industrial Disputes Act, 1947 in

case of M/s. Hans Raj Mahajan and Sons (P) Ltd. Vs. Presiding Officer, Labour Court, Jalandhar, . The observations made by the Punjab &

Haryana High Court in para 6 are reproduced as under :

While reading the above said section, it is clear that the amount is to be paid for the period of pendency of the proceedings. It does not say that

the application has to be decided during the pendency of the writ petition. No other interpretation is, therefore, possible so far as this question is

concerned. Even if any other interpretation was possible, then also Industrial Disputes Act being a benevolent legislation, the interpretation in

favour of the workman has to be accepted.

Madras High Court has also considered this aspect in case of Krishna Ramanujam V. Vs. Pandian Roadways Corporation Ltd. and Another, .

Relevant observations made by the Madras High Court in para 2 are reproduced as under :

In this appeal, we are concerned with the rejection of his application filed u/s 17-B of the Act. The learned Judge has not assigned any reason for

dismissing the said petition. Admittedly, against the dismissal of the approval petition, the management has preferred the writ petition before this

Court and obtained stay. In such a circumstances, if the management wants to keep the writ petition and interim order to continue necessarily they

have to comply with Section 17-B of the Act. No doubt, as directed, the management has deposited Rs.2,04,000 towards back wages and the

appellant/workman was also permitted to draw the monthly interest. In view of the pendency of the writ petition and also of the fact the interim

order staying the operation of the order passed by the Industrial Tribunal is in force, we are of the view that the appellant/workman is entitled to

avail the benefit of section 17-B of the Act. According to the learned counsel for the workman, from the date of writ petition till date the arrears

comes to Rs.61,172. No doubt, learned counsel appearing for the first respondent / management by stating that the writ petition is of the year

1994 and that similar writ petitions are being taken up by this Court for final disposal, requested necessary direction for taking up of the main writ

petition for final disposal, instead of passing any order u/s 17-B. In this regard, learned counsel appearing for the workman has brought to our

notice a recent pronouncement of the Supreme Court reported in Workmen Represented by Hindustan V.O. Corpn. Ltd. Vs. Hindustan

Vegetable Oils Corporation Ltd. and Others, wherein their Lordships have observed that 17-B applications should be disposed of with great

promptitude and before the disposal of the writ petition. If a petition is filed u/s 17-B, it should be disposed of first and expeditiously and the same

cannot be tagged alongwith the main writ petition. Though the writ appeal is kept pending for more than six years, considering the object of

bringing the provision of 17-B under the Statute is to alleviate the hardship of the workman quickly, we hereby direct the first respondent

management to pay a sum of Rs.61,172.00 by way of a demand draft in favour of the appellant herein, namely, V. Krishna Ramanujam within a

period of eight weeks from the date of receipt of a copy of this Order. It is made clear that the said payment is without prejudice to the claim made

in the writ petition. The first respondent management is further directed to continue to pay the last drawn wages namely Rs.746/- to the workman

commencing from the month of August, 2001 on or before 5th of succeeding month till the disposal of the main petition. Writ appeal is allowed.

No costs.

This question has also been considered by the Delhi High Court in case of Hindustan Carbide Private Ltd. and National Capital Territory of Delhi

and others reported in 2002 I LLJ 268. Relevant observations made in para 3 of the said decision are reproduced as under:

With respect to my learned brother, I am unable to agree with the reason for declining relief u/s 17-B of the Act. This is the section which has

to be adverted to. All that the Section contemplates is the existence of an award directing reinstatement of any workman, the initiation of any

proceedings against such award in the High Court or in the Supreme Court, and the workman being unemployed. The Supreme Court has clarified

that payments made pursuant to section 17-B of the Act are not recoverable even in the event of the acceptance of the writ petition. These

payments are in the nature of subsistence allowance. The payments also have no nexus with the amount awarded by the Labour Court; they are

independent thereof. Hence even if the award is stayed, it would have no bearing on the Order to be passed u/s 17-B of the Act. In granting a stay

of the execution of the Award, the payment of its monetary component, and the reinstatement of the workman get postponed. Distress

proceedings are held in abeyance. Where the award is assailed, the Court is to consider the grant of last drawn wages u/s 17-B of the Act. The

rationale and reasoning behind this section is that the workman should be frustrated and emasculated by the filing of the writ petitions challenging

the awards which are expected by the Legislature to have attained finality. The right to appeal does not exist and it would be in appropriate to

convert writ jurisdictione to appellate jurisdiction. It is also recognised that because of their pecuniary power, Managements are indefatigable in

litigations whereas the workmen can be crippled by it.

Therefore, in light of above observations made by the apex court as well as this and other Courts in aforesaid decisions, according to my opinion,

even if the award made by the labour court is nullity and/or without jurisdiction, so long as it remains and not set aside by higher forum, the award

is required to be implemented by the original petitioner. Therefore, the contentions raised by the petitioner that the forest department is not an

industry and that the award is a nullity and/or without jurisdiction can be examined only at the time of final hearing of the main petition. I am of the

clear opinion that while considering an application made by the respondent workman for wages u/s 17-B of the Industrial Disputes Act, these

questions cannot be examined by this Court. I am also of the view that the relief for wages u/s 17-B of the Industrial Disputes Act, 1947 cannot be

denied merely because the petitioner has raised the contention that the award in question has been made by the labour court without jurisdiction

and/or is nullity. This aspect has been discussed by the apex court as well as by this Court in aforesaid two decision and it is made clear these

mandatory provisions are required to be complied with once the reinstatement order has been stayed by the High Court or the Supreme Court

and, therefore, in view of the aforesaid facts and circumstances of the case and also in view of the aforesaid observations made by the apex court

as well as of this Court in aforesaid two decisions, according to my view, the contentions raised by the petitioner cannot be considered while

considering an application for wages u/s 17-B of the Industrial Disputes Act, 1947.

Accordingly, present civil application is allowed. It is directed to the original petitioner to pay last drawn monthly wages inclusive of maintenance

allowance to the respondent workman from the date of the award 4th August, 2000 to 28th February, 2002 within three months from the date of

receipt of copy of this order. It is further directed to the original petitioner to continue to pay such wages u/s 17-B of the Industrial Disputes Act,

1947 every month regularly till the final disposal of the main petition. This Civil Application is accordingly disposed of with no order as to costs.

Notice is discharged.