I.C.I. India Limited and Another vs Second Labour Court and Another

Girish Chandra Gupta, J.—The subject matter of challenge in this writ petition is an award dated June 20, 2003 by which the learned 2nd Labour Court passed the following order:

The O.P. is directed to reinstate the applicant and to pay all her backwages deducting what has already been paid in that regard, within 60 days from the date of receipt of this order.

It is not in dispute that service of the respondent was terminated by an order dated September 30, 1997. It is also not in dispute that the respondent reached the age of superannuation on April 2, 2003. Therefore, on June 20, 2003 when the learned Tribunal passed the award there was really no scope for any reinstatement. Therefore, the only other operative part of the award under challenge is the direction upon the employer/writ petitioner to pay the back wages deducting any amount which may have already been paid. The award was challenged by this writ petition which appears to have been filed on September 15, 2003. An interim order in terms of prayer (f) and (g) appears to have been passed on February 11, 2004. Prayers (f) and (g) of the writ petition relate to an injunction restraining the respondents from seeking to give effect to the award and stay of operation of the award under challenge.

The respondent workman has now come up with an application u/s 17-B of the Industrial Disputes Act, 1947 which provides as follows:

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 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.

Mr. Chatterjee, learned Senior Advocate opposing the application u/s 17-B submitted that Section 17-B does not contemplate payment of wages to a workman who has already reached the age of superannuation. He in support of his submission relied on a judgment in the case of Hind Rectifiers Limited v. Presiding Officer, 1st Labour Court, Bombay and Anr. 2000 III (Supp) LLJ 300 (Bom).

Mr. Deb, learned Advocate appearing for the applicant drew my attention to a judgement in the case of Babubhai C. Kachhadiya Vs. Rajkot Municipal Corporation, wherein a Division Bench of the Gujarat High Court quoted from a judgment of the Apex Court in the case of Dena Bank v. Kiritkumar T. Patel, wherein Their Lordships held that in exercise of power under Article 226 and 136 of the Constitution of India an order cannot be passed denying the workman the benefit granted u/s 17-B of the Industrial Disputes Act. He submitted that any order by way of interim measure or otherwise which may have been passed in this writ petition cannot have the effect of denying the benefit u/s 17-B to the workman. Therefore, the order dated February 11, 2004 does not stand in the way of the workman reaping the benefit of the beneficial provision contained in Section 17-B of the I.D. Act. He also relied on a judgment of this Court in the case of Indian Explosive Ltd., v. Fourth Industrial Tribunal, West Bengal and Ors. 1994 III (Supp) LLJ 828 (Cal), wherein the following view was expressed.

To hold that the applicability of the provisions of Section 17-B is to be deferred till after the award becomes final would, in my view, lead to a violent departure from the real intent of the Legislature. I am in agreement with the contention of Mr. Moitra that the Legislature in its wisdom has struck a balance by providing for payment month by month during the pendency of the matter before the High Court or before the Supreme Court. The wages last drawn in Section 17B and the plain common sense reading of the section cannot, but lead to the concept of social justice underlying the section which was not there in the Industrial Disputes Act so long. As to the question of refund in the event of the award being set aside, the legislation is silent, but that by itself would not render the benefit to be postponed till after the final adjudication in the matter. The wronged individual workman ought to be allowed to see the fruits of the award. The Draconian Concept of Law has undergone a change with the socio-economic changes in the country and it is too late in the day to contend, in my view, that even though Legislature thought it fit to incorporate a provision like that of Section 17-B, but the; same would not be given effect to till after the final adjudication of the disputes.

Mr. Deb, learned Counsel appearing for the petitioner has also relied upon judgments The State Bank of India Vs. Shri N. Sundara Money, , but I do not think that those judgments have any bearing at this stage.

Considering the fact that the respondent workman has already reached the age of superannuation, I find lot of substance in the submission advanced by Mr. Chatterjee that Court cannot direct payment of wages to a workman who has already crossed the age of superannuation. I, therefore, am not inclined to pass any order directing the writ petitioner to pay any monthly wages to the respondent workman. But, at the same time, considering the views expressed by the Apex Court in the case of Dena Bank, I am of the opinion that the workman cannot be left high and dry so long as the employer chooses to litigate on the award which is, on the face of it, in favour of the workman. I, therefore, direct the writ petitioner to deposit the amount as per the award together with interest at the rate of 12 per cent per annum with the Registrar, Original Side. The money to be deposited by the writ petitioner shall be kept in a short term fixed deposit with the United Bank of India, High Court Branch, Kolkata, to the credit of the Registrar, Original Side, subject to further order of this Court. The interest to be accrued to such deposit shall be payable to the writ petitioner month by month or quarterly as the case may be. It is made clear that this money must be deposited within a period of four weeks. In default of such deposit the order dated February 11, 2004 shall stand vacated.

This application is, thus, disposed of.

There will be no order as to costs.

Let urgent xerox certified copy of this order be supplied by the department within seven days to the learned Advocates appearing for the parties upon compliance with the necessary formalities.