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Judgment
A.K. Patnaik, J.—The difference of opinion in the separate judgments dated 24.6.97 of learned brother V.D. Gyani J. and learned brother J.N. Sarma, J., has been referred to me by the Hon''ble Chief Justice. The point of law on which my aforesaid two brother Judges have differed relates to interpretation of Section 17-B of the Industrial Disputes Act, 1947 (for short - "the Act, 1947"). The relevant portion of the said Section 17-B of the Act, 1947 is quoted hereinbelow:
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 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 facts briefly are that the Respondent No. 3 was employed as a Medical Representative by the Appellant. By a charge-sheet dated 8.9.87, a domestic enquiry was initiated against the Respondent No. 3 and he was held guilty of misconduct and was dismissed from service by order dated 25.2.88. The dispute between the Appellant and the Respondent No. 3 was referred u/s 10(1)(c) of the Act, 1947, to the Labour Court, Assam at Guwahati. In the said reference numbered as 18/88, the Labour Court delivered an Award dated 3.5.95 holding that the Respondent No. 3 was entitled to be reinstated with full back wages and benefits. The aforesaid Award was challenged by the Appellant before this Court in Civil Rule No. 3618/95 and the learned Single Judge while issuing Rule passed an interim order dated 4.9.95 staying the said Award subject to payment of full wages last drawn by the Respondent No. 3 inclusive of any maintenance allowance admissible to him under any rule. Thereafter, the Respondent No. 3 filed an application numbered as Misc. Case No. 1201/96 for directing the Appellant to make payment of wages as was payable in September, 1995 when the Award was made including all increment benefits and revision of pay along with all other admissible allowances. The Appellant however pleaded that it was liable to pay u/s 17-B of the Act, 1947, only the wages that were drawn by the workman at the time of his termination and not the wages that would be payable to the workman on the date of Award. By order dated 6.1.97, the learned Single Judge however held that the last pay drawn should be computed as the wages to be drawn on the date of Award and not on the date of termination, and, accordingly, disposed of the Misc. Case. Against the said order dated 6.1.97 of the learned Single Judge in Misc. Case No. 1201/96 arising out of Civil Rule No. 3618/95, the Appellant filed the present writ appeal which was heard by a Division Bench of brother V.D. Gyani, J. and brother J.N. Sarma, J. But in the two separate judgments dated 24.6.97, while brother V.D. Gyani, J. held that Section 17-B of the Act, 1947, did not permit the construction as sought to be put on it by the learned Single Judge in the impugned order dated 6.1.97 and the impugned order of the learned Single Judge was liable to be set aside, brother J.N. Sarma, J. held that the workman was entitled to get the wage including the benefit of D.A. and revision of pay due to him at the time of Award u/s 17-B of the Act, 1947 and that the writ appeal was liable to be dismissed. It is in these circumstances that the appeal has been referred to me for my opinion.
At the hearing, Mr. T. Dayal, learned Counsel appearing for the Appellant, submitted that in a recent judgment of the Supreme Court in the case of Dena Bank v. Kiritikumar T. Patel 1998 I CLP 191, difference of opinion of different High Courts as well as the one between brother V.D. Gyani, J. and brother J.N. Sarma, J. on the interpretation of Section 17-B of the Act, 1947 have been settled and it has been held that the expression "full wages last drawn" in Section 17-B of the Act, 1947, has to give its plain and material meaning to mean the actual wages 1st drawn by the workman at the time of his termination from service and it cannot be given the extended meaning so as to include increments and D.A. payable as on the date of Award. Mr. A. Dasgupta, learned Counsel for the workman-Respondent No. 3 did not dispute the position in that in the said case of Dena Bank v. K.T. Patel (supra), the Supreme Court has now settled the law that the workman is not entitled to the benefits of D.A. and revision of pay as were payable to the workman at the time of Award. He, however, contended that in the said judgment of the Supreme Court in case of Dena Bank (supra), the Supreme Court has clarified in para-23 that the expression "full wages last drawn" would include the wages as defined in Clause (it) of Section 2 of the Act, 1947 and in addition to such full wages as defined in Section 2(rr) of the Act, 1947, the workman will also be entitled to maintenance allowance admissible to him under any rule as per the said Section 17-B of the Act, 1947. Mr. Dasgupta however pointed out that the Respondent No. 3 was being paid only Rs. 4013/- as indicated in the letter dated 21.9.95 of the Appellant to the Respondent No. 3, a copy of which has been annexed as Annexure-B to the writ appeal, and the said amount did not include all the items of wages as mentioned in Section 2(rr) of the Act, 1947 and the maintenance allowance as admissible under the rules. Mr. Dayal however sought to explain that the said amount of Rs. 4013/- included all the items of wages and maintenance allowance payable to the Respondent No. 3 u/s 17-B of the Act, 1947.
In the case of Dena Bank (supra), the Supreme Court has now held:
As indicated earlier Section 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 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". To read these 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 that is under challenge. Since the amount 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 Section 17-B to cast such a burden on the employer. In our opinion, therefore the words "full wages last drawn" must be given their plain and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Visveswaraya Iron & Steel Ltd. 1994(84) FLR 46 (Kar) or the Bombay High Court in Carona Sahu Co. Ltd. 1995 (70) FLR 25(Bom)
It is thus clear from the said judgment of the Supreme Court in the case of Dena Bank (supra) that the words "full wages last drawn" in Section 17-B of the Act, 1947, have to be given their plain and material meaning and cannot be given the extended meaning and so interpreted they would mean the extent of wages which were drawn by the workman when he was in service and when his services were terminated. After taking this view, the Supreme Court found that by order dated 26.9.95 of the learned Single Judge of the Gujarat High Court, the learned Single Judge while exercising powers u/s 17-B had directed payment of wages as revised including the increments, D.A., etc. which were granted to all employees pursuant to the 5th and 6th Bipartite Settlements. The Supreme Court observed in the said judgment that the said direction of the learned Single Judge which had been upheld by a Division Bench of the Gujarat High Court could not be upheld since it amounted to directing payment of wages which would have been drawn by the workman if he had reinstated and not the full wages last drawn by him. In view of the said judgment of the Supreme Court in the case of Dena Bank v. K.T. Patel 1998 I CLP 191, I agree with the view taken by my learned brother V.D. Gyani, J. in his judgment dated 24.6.97 that Section 17-B of the Act, 1947, does not permit the construction as sought to be put on it by the learned Single Judge in his impugned order dated 6.1.97 that the last pay drawn should be computed as the wages to be drawn on the date of award and not on the date of termination. Accordingly, this writ appeal is allowed, and the impugned order dated 6.1.97 of the learned Single Judge in Misc. Case No. 1201/96 arising out of Civil Rule No. 3618/95 is set aside.
Regarding the grievance of the Respondent No. 3 that he is not being paid all the items of wages as defined in Clause (rr) of Section 2 of the Act, 1947, and the maintenance allowance, I find that the letter dated 21.9.95 (Annexure-"B" to the writ appeal) in which an amount of Rs. 4013/- has been quantified as the last wages payable to the Respondent No. 3 in terms of the interim order dated 4.9.95 of the learned Single Judge in Civil Rule No. 3618/95, was issued much before the judgment was delivered by the Supreme Court in the case of Dena Bank v. K.T. Patel (supra), on 19.11.97. In para 23 of the said judgment in the case of Dena Bank (supra), delivered on 19.11.97, the Supreme Court has now clarified:
...In our opinion, the expression "full" only emphasises that all the emoluments which are included in "wages" as defined in Clause (rr) of Section 2 of the Act so as to include the amounts referred to in sub-clauses (i) to (iv) are required to be paid. In this context, it may also be mentioned that in Section 17-B Parliament has also used the words "inclusive of any maintenance allowance admissible to him under any rule". These words indicate that maintenance allowance that is admissible under any rule is required to be paid irrespective of the amount which was actually being paid as maintenance allowance to the workman....
The Appellant will now quantify afresh the full wages last drawn as well as the maintenance allowance admissible to the Respondent No. 3 under any rule in accordance with the aforesaid judgment of the Supreme Court in the case of Dena Bank (supra), and pay the same to the Respondent No. 3 - Workman within a month from today.
Subject to the aforesaid observations and direction, the writ appeal is allowed. However, considering the entire facts and circumstances of the case, the parties shall bear their own costs.