T.J. Shukla vs Sr. Supdt. of R.M.S.

Jayant Patel, J.—Rule. Mr. Mehta waives service of rule. With the consent of the parties, this Civil Application is taken up for final hearing

today.

The present application is preferred to reject Special Civil Application No. 10296 of 2001 filed by the opponent challenging the award of the

Labour Court and to direct the opponent to fully comply with the directions of the Labour Court.

Heard Mr. Pathak, learned advocate for the applicant and Mr. Mehta for the respondent. For the purpose of convenience, the parties shall be

referred to as they represent in the main Special Civil Application i.e. the applicant herein as the original respondent and the opponent as the

original petitioner in the Special Civil Application.

It is the case of the original petitioner that the opponent was engaged as daily wager as Extra Departmental Mail Man and work was being

assigned to him or his services were taken when the regular employee was not available or there were some exigencies of the work. As per the

original petitioner, during the period from 1986 to 1990 when the respondent was engaged, he was engaged for an average period of 11 to 13

days in every month. The engagement of the respondent was discontinued which ultimately gave rise to the dispute under the I.D. Act and

thereafter there was reference to the Labour Court and ultimately the impugned award dated 20th August 2001 has been passed by the Labour

Court whereby the action of termination is declared to be illegal and the respondent workman was ordered to be reinstated in service with

backwages and consequential benefits. The said award of the Labour Court is under challenge in main Special Civil Application No. 10296 of

2001. In the main Special Civil Application, on 2.11.2001 this Court [Coram: K.M. Mehta, J.], while admitting the petition, has granted stay

against the execution and implementation of the award. Thereafter, for invoking the provisions of section 17B of the ID Act, Civil Application No.

5643/02 was preferred by the original respondent workman, and in the said application on 16.09.02 this Court [Coram: R.R. Tripathi, J.] had

passed the following order:-

Rule. Mr. B.I. Mehta waives service of rule.

The present Civil Application is filed seeking direction against the opponent to pay current wages to the applicant from the date of the award

and pay all arrears with 18% interest. Mr. B.I. Mehta, the learned advocate for opponent files an affidavit in reply. Taking into consideration, the

contents of the Civil application and the contents of the affidavit in reply, the opponent is directed to adhere to and comply with the provisions of

Section 17B of the Industrial Disputes Act during the pendency of this Special Civil Application.

The Civil Application is disposed accordingly. Rule is made absolute.

It is the case of the original respondent-applicant herein that there is non-compliance with the provisions of section 17B of the I.D. Act, and,

therefore, the present petition should be dismissed. Affidavit-in-reply has been filed by Gamanbhai N. Patel, Superintendent of R.M.S., SR

Division, Surat, stating that the workman was reinstated since 12.12.2002 as Outsider-Extra Departmental Agent. It is also stated that arrears

amounting to Rs.16,992/_ was paid to him on 9.1.2003.

Mr. Pathak, learned advocate for the original respondent-applicant herein submitted as per the view taken by the Division Bench of this Court

[Coram: D.K. Trivedi & S.D. Dave, JJ.] in LPA No. 1319 of 2003 dated 8.12.2003 even for the purpose of section 17B of the Act, minimum

wages are required to be paid to the concerned workman and if there is revision in the minimum wages, then the wages paid are required to be

accordingly revised. Mr. Pathak submitted that the work is being offered to the workman for 13 to 14 days and is not for continuous engagement

for the full month. He submits that basing the minimum wages as Rs.100/_ per day, the arrears would come to Rs.3000/_ per month whereas the

payment made of the arrears by the original petitioner-opponent herein is at the rate of Rs.100/_ per day which is the minimum wage, but the

engagement is only for 10 to 11 days and not for the whole month. Therefore, he submitted that the difference is not paid, and not only that but

regular work for the whole month as a consequence of reinstatement is also not offered to the workman and consequently, there is non-compliance

with the provisions of section 17B as well as there is no actual reinstatement for the full month, and, therefore, Mr. Pathak has pressed for the

prayers made in the application.

Mr. Mehta, appearing for the original petitioner submitted interalia that the prior to the raising of the dispute under the ID Act, the workman was

even otherwise being offered work not for a continuous period but only for few days in a month as and when there was work, and he submitted

that on an average, the workman was offered work for 10 to 11 days in a month, and accordingly the wages as per the requirement of section 17B

are calculated, keeping in mind the minimum wages prescribed for each day, and payment is made accordingly. He also submitted that since the

reinstatement is made on the basis of availability of the work, the engagement is continued and whenever work is available, the services of the

applicant is used as an Outsider Extra Departmental Agent and he is being paid minimum wages accordingly. Since the original engagement was

also for 10 to 11 days on an average basis, and at present since the work is offered for 13 to 14 days and payment is made accordingly, in the

submission of Mr. Mehta, reinstatement is accordingly effected and therefore, there is no question of paying further more wages as per section

17B, and in any event, as per his submission, there is compliance to section 17B since the backwages are already paid.

Section 17B of the Industrial Act reads as under:-

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 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 any 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.

The language used by the legislature is ""full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule"".

Therefore, if the petitioner has calculated the wages drawn by the workman at the relevant point of time, lastly drawn on the basis of work being

offered to him keeping in view the number of days of engagement, it cannot be validly contended by the workman that calculation must be for the

full month period, i.e. 30 days, and not on the basis of the work being offered to him prior to his reinstatement. So far which was being offered to

him prior to his reinstatement. So far concerned, the calculation has been made on the basis of minimum wages but since the number of days are

considered by the original petitioner on the basis of work was being offered at the relevant point of time prior to termination, the amount is

reduced, and, therefore, even if the contention of Mr. Pathak is accepted that for compliance of section 17B, minimum wages are required to be

paid, then also if the petitioner has made payment by considering the average number of days for which the work was being offered in a month, it

can be said that full wages last drawn is paid and it cannot be said that there is any breach of the provisions of section 17B of the Act.

As regards the question of reinstatement also, in my view, the position would be the same. If a person prior to his termination was being offered

work for a particular period during the month, after reinstatement as per the order of the Labour Court, he would not stand on a higher footing. His

position would be the same as it was prior to the termination, which is declared illegal.

In the present case, the respondent was working as daily rated outsider, and his engagement was not for a continuous period in a month, and,

therefore, after reinstatement, he will stand on the same position as it was prior to the impugned termination. If the petitioner-department has

reinstated the respondent workman and has offered work on the same basis as it was offered to him prior to termination, it cannot be said that

there is improper reinstatement or that the reinstatement is not given full effect to. It has been stated by Mr.. Mehta that whenever the work is

available, it is being offered to the respondent workman, and therefore, availability of the work would depend upon the contingency, and if such

contingency arises, the respondent may legitimately claim the work to be offered to him. Certainly, he cannot claim a higher right than which was

prior to the termination. The consequence of reinstatement would be to restore the original position prior to the termination which, in my view, has

been done by the petitioner, and, therefore, it cannot be said that the reinstatement is not effected in true spirit.

Mr. Pathak made an attempt to submit that once the reinstatement is effected, it must be with the continuity in service, and, therefore, he

submitted that juniors to the concerned workman are given full work, and the respondent workman is not being given full work, and, therefore, it

cannot be said to be a compliance to the order of reinstatement in toto. Sufficient details are not placed before the Court for enabling the Court to

examine the said aspect and in any event, the main Special Civil Application cannot be dismissed on such ground. However, it would be open to

the respondent workman to raise such contention at the time of final hearing of the matter, if there is any question remains for making payment of

difference or otherwise on such ground, and it would be open to the respondent as well as the petitioner to raise this contention at the time of final

hearing of the main matter.

This Civil Application stands disposed of accordingly. Rule is discharged. No order as to costs.