Chairman, Board of Governors vs Gul Afroz & others

Caveat is discharged.

Heard learned counsel for the parties.

The appellants (hereinafter, the employers), who are writ petitioners in SWP no.2569/2015, have come up in this Letters Patent Appeal against

the order dated 02.08.2017 read with order dated 30.08.2017 passed the learned Writ Court in two miscellaneous petitions filed before it by the

respondents therein (hereinafter, the workmen) for implementation of the award dated 03.07.2015 passed by the State Industrial Tribunal-cum-

Labour Court in file no.882/ITLC/2012, in terms of the provision of Section 17-B of the Industrial Disputes Act, 1947 (the Act), whereby the

prayers of the workmen stand allowed with direction to the employers to pay the legal heirs of the deceased workman (respondent no.1) full

wages last drawn by him, inclusive of the maintenance allowance admissible to him till the date of his death, and to the two other workmen

(respondents 2 and 3) till the final conclusion of the writ petition, in terms of their respective employments.

The employers in their writ petition, SWP no.2569/2915, challenged the Award dated 03.07.2015 passed by the State Industrial Tribunal-cum-

Labour Court, J&K, Srinagar, in File no.882/ITI.C/2012, titled ''Gul Afroza & ors v. Chairman, Board of Governors, Institute of Hotel

Management, Catering Technology and Applied Nutrition, Rajbagh, Srinagar, & anr.''. By virtue of the aforesaid Award, the Tribunal, having

come to the conclusion that there was nothing sustainable to accept that the workmen had left the services of their own and that their termination by

the employers was illegal, invalid, unwarranted, uncalled for and against the principles of natural justice, set aside the termination of the workmen

and directed the employers to reinstate the workmen nos. 2 and 3. The Tribunal having also found that the workmen had remained unemployed

during the pendency of the Reference, held them entitled to back wages and made directions in that behalf. So far as first workman was

concerned, since he had expired during the pendency of the Reference and his LRs had been brought on record, the Tribunal observed that

direction for reinstatement in his case could not be given but they were held to be entitled to gratuity, leave salary, retrenchment compensation and

other benefits of retirement and, therefore, directed the employers to pay the full amount of back wages and other retirement benefits which

accrued to the deceased workman upto his death to his LRs.

In the aforesaid writ petition, the workmen filed an application (CMP no.01/2017) in terms of the provision of Section 17-B of the Industrial

Disputes Act seeking a direction to the employers to implement the Award in question. The employers resisted the application on the ground that

the workmen were never their employees, that they had been engaged on need basis for a limited period, and that the Award could not be

implemented. it being without jurisdiction.

The learned Writ Court, relying on the judgment of a Single Judge of the Court in Singer India Ltd. v. Hans Raj Bhagat, 2007 (1) JKJ 364

(HC), vide its order dated 02.08.2017 directed the employers to pay the workman full wages last drawn by the deceased, inclusive of the

maintenance allowance admissible to him in terms of the employment till the date of his death.

It may be observed here that since the application (MP no.01/2017) had been made on behalf of all the three workmen and in the order of the

Court the direction was given only in respect of the deceased workman, the other two workmen filed an application under Section 151 CPC,

being CMP no.03/2017, seeking rectification of the order dated 02.08.2017 to extend the direction to cover them as well. Realizing the

inadvertence, the learned Writ Court by order dated 30.08.2017 allowed the said application and ordered the employers to pay to workmen nos.

2 and 3, namely, Mushtaq Ahmad Sofi and Snober Hassan full wages last drawn by them inclusive of maintenance allowance admissible to them

under the terms of the employment till the final conclusion of the writ petition.

The employers have challenged the aforesaid two orders in this LPA on the same grounds as taken by them before the learned Writ Court either

in their writ petition or in the objections filed by them in response to the application so filed by the workmen. Whatever be the grounds of

challenge, the provision of Section 17-B of the Act in this behalf is crystal clear that once the Tribunal has passed an Award directing reinstatement

of the workman and even if the employer challenges the same in the High Court or the Supreme Court, the employer shall be liable to pay such

workman 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. Section 17-B of the Act may be quoted hereunder:

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 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 Supreme Court in Dena Bank v. Kiritikuar T. Patel, AIR 1998 SC 5112, has categorically held that 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 the Supreme Court. The relevant portion of the aforesaid decision of the Supreme Court stands

quoted in the judgment in Singer India Ltd. v. Hans Raj Bhagat (supra) relied upon and quoted by the learned Writ Court in its order impugned

herein. Admittedly, the writ petition filed by the employers is pending before the learned Writ Court. The grounds taken and the issues raised by

them in their writ petition against the Award are yet to be gone into, considered and determined by the learned Writ Court. This Court in this intra

Court appeal will not, and cannot, go into those grounds and issues, especially so because if this Court makes any comment in that regard, it is

most likely to prejudice the employers in their writ petition pending before the learned Writ Court. In any case, the aforesaid provision is clear in its

terms that during the period of pendency of the proceedings before the High Court, the employer shall be liable to pay full wages last drawn by the

workman, inclusive of the admissible maintenance allowance. In that view of the matter, whatever be the grounds of challenge taken in the writ

petition, the employers are bound to pay to the workman full wages and the admissible maintenance allowance in accordance with the mandate of

the provision of Section 17-B of the Act. That being the position of law, no exception can be taken to the impugned order of the learned Writ

Court dated 02.08.2017 passed in MP no.01/2017. Since there had been a bona fide mistaken committed while dictating such order, inasmuch as

the names of all the three workmen had not been mentioned therein, the learned Writ Court was within its power to rectify the mistake and pass

appropriate orders in that behalf, which the learned Writ Court has actually done in terms of its order dated 30.08.2017. In the facts and

circumstances of the case, the Court was not required to issue notice to the writ petitioners in such application made by the respondents for

rectification of the error.

In view of the above, this Letters Patent Appeal deserves to be dismissed as unnecessary and it is so ordered.

No order as to costs.