State Bank of India vs Ranbir Singh

Manmohan Singh, J.—This is an application filed by the respondent workman for grant of wages u/s 17-B of the Industrial Disputes Act. The petitioner has filed the present petition under Article 226 and 227 of the Constitution of India seeking issuance of writ or direction for quashing of award/order dated 6.5.2008 of the Presiding Officer of the Central Government Industrial Tribunal Cum Labour Court-II in I.D. No. 165/1998.

By the impugned award, directions were issued to the petitioner bank to reinstate the workman with effect from 8.3.1997 along with 25% back wages within two months from the date of publication of the award. At the time of issuance of notice in the writ petition, this Court in CM No. 11050/2008 passed the interim order on 8.9.2008, subject to the petitioner depositing with the Registrar General of this Court by pay order/demand draft the amount awarded in the impugned award dated 6.5.2008. The effect and operation of the impugned award was ordered to be stayed. The case of the respondent is that the respondent was recruited as Messenger cum Water Boy on 10.4.1993 at Punjabi Bagh Branch, State Bank of India of the Management. He worked with the petitioner continuously upto 8.3.1997. Thereafter, his services were terminated by the bank without any reason.

As per award dated 6.5.1998 it was held that the respondent has worked continuously for 240 days every year i.e. for the past about four years i.e. from 10.4.1993 to 8.3.1997 and therefore, he was entitled to reinstatement with 25% back wages. The contention of the respondent is that he is from weaker section of the society and unemployed at present. His family consists of his wife who is unemployed and two minor school going children. Thus, he is facing the financial hardship. He is seeking the payment of full wages at par with the regular employees currently employees under the same category. It is submitted by him that at present Messenger cum Water Boys at the petitioner bank as per the salary slip of August 2008 were drawing a basic pay of Rs. 5655/- and other allowances.

Mr. Rajiv Kapur, learned Counsel appearing on behalf of the petitioner has referred and relied upon the judgment of Jharkhand High Court in Employer, The Management of Central Mine Planning and Design Institute Ltd. v. Union of India and Ors. 2000 (90) FLR 67 in support of his argument that if there is an error apparent on the face of the award, then the workman is not entitled to wages u/s 17-B of the Industrial Disputes Act.

It is settled law that while considering an application u/s 17-B of the Industrial Disputes Act, the Court cannot go into the merits of the case in the writ petition. It was so held in Anil Jain Vs. Jagdish Chander, Therefore, the decision referred by the petitioner will not help the contention of the petitioner.

Admittedly, the petitioner has not placed any evidence contrary to the plea raised by the respondent about the non-employment. Therefore, the plea taken by the workman regarding his non-employment has remained uncontroverted from the side of the petitioner.

It is no doubt that the provision of Section 17-B of the Industrial Disputes Act, 1947 comes into operation when an award directing reinstatement of a workman is assailed in further proceedings. The statute requires satisfaction of the following four conditions;

(i) an Award by a Labour Court, Tribunal or National Tribunal directing reinstatement of a workman is assailed in proceedings in a High Court or the Supreme Court;

(ii) during the pendency of such proceedings, employer is required to pay full wages to the workman;

(iii) the wages stipulated u/s 17B are full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any Rule;

(iv) such wages would be admissible only if the workman had not been employed in any establishment during such period and an affidavit had been filed to such effect.

While considering an application under this provision it is necessary to bear in mind the hardship resulting to a workman due to delay in the implementation of an award directing reinstatement of his services on account of the challenge made to it by the employer. It recognizes a workman''s right to the bare minimum to keep body and soul together when a challenge has been made to an Award directing his reinstatement.

In AIR 1998 511 (SC) the Apex Court was of the view that the object u/s 17B of the Industrial Disputes Act, 1947 is only to relieve to a certain extent, the hardship that is caused to the workman due to the delay in implementation of the Award. While considering the payment which is required to be made by the employer to the workman in this behalf, the Apex Court observed as follows:

As indicated earlier Section 17B 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 the 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 17B 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. or the Bombay High Court in Corona Sahu Co. Ltd.

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As regards the powers of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution, it may be stated that Section 17B, 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 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 Section 17B 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. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. that in exercise of the power under Articles 226 and 136 granted u/s 17B. The conferment of such a right u/s 17B 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.

This entitles the workman to wages u/s 17-B of Industrial Disputes Act.

Accordingly, the management of the petitioner is hereby directed to pay wages to the workman from the date of the impugned award till the final decision of the writ petition at the rate of last drawn wages or the minimum wages, whichever is higher, subject to an undertaking in the form of an affidavit, to be filed by the workman within two weeks from today, that he will return the difference between the last drawn wages and the minimum wages in the event of the management''s succeeding in the main writ petition.

The arrears of wages be paid to the workman within six weeks from today and the management should continue to pay him future wages at the same rate on month to month basis by 10th of every succeeding month till the final decision of the present writ petition.

The workman''s application u/s 17-B of the Industrial Disputes Act stands disposed of in terms referred above.

WP(C) No. 5766/2008

Rule.