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Judgment
Satish K. Agnihotri, J.
I.A. No. 3
This is an application of the respondent No. 3-- Pragatisheel Cement Shramik Sangh (for short "the respondent Union") for a direction to ensure proper compliance of the order dated 25-4-2006 in its letter and spirit.
I.A. No. 5
This is an application on behalf of the respondent Union for a direction for compliance with Section 65(3) of the M.P./C.G. Industrial Relations Act, 1960 (for short "the Act, 1960") as a condition precedent to final hearing of the instant case.
The respondent Union has filed the instant applications seeking a direction to the petitioner to comply with the provisions of Section 65(3) of the Act, 1960 in its letter and spirit in respect of 62 workmen by paying full wages for 26 days in a month in accordance with the Payment of Wages Act, 1936 (for short the Act, 1936"). Thereafter several applications were made seeking clarifications.
I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
The petitioner is questioning the award dated 28-2-2006 passed by the Industrial Court, whereby and whereunder the Industrial Court has directed that all the workers as per the list attached deserves to be regularized with all benefits at least from the date of reference i.e. 12-6-2000 with all monetary and other benefits. It was further directed that all the workers who have resigned or given V.R.S. under compulsion should be reinstated immediately with continuity of service and full back wages.
This Court on 25-4-2006, while staying the effect and operation of the impugned award dated 28-2-2006, directed to comply with the provisions of Section 65(3) of the Act, 1960 except in case of those employees who had already resigned or taken V.R.S. before 12-6-2000. The order dated 25-4-2006 reads as under:
Having heard learned counsel for the parties, having perused the impugned order and claim made by respondent No, 4, I am of the opinion that it is a fit case in which effect and operation of the impugned order should be stayed. Accordingly, the application M. (W.) P. No. 1275/2006 is allowed and it is directed that effect and operation of the impugned order shall remain stayed subject to compliance of Section 65(3) of the M.P.I.R. Act, except those employees who has already resigned or taken V.R.S. before 12-6-2000, when the reference was made. While making compliance of Section 65(3) of the M.P.I.R. Act, the petitioner shall be entitled for adjustment of the amount paid by the contractors to those workmen at the time of resignation or V.R.S. The petitioner to ensure that contractor to provide regular employment to the persons who are still in service.
This Court on 21-10-2009 modified the earlier order and passed the following order:
Learned counsel appearing for the respondent No. 3 employees Sangh submits that the petitioner-employer is not paying the last drawn wages to the employees, as contemplated u/s 65(3) of the M.P./C.G. Industrial Relations Act, 1960 (for short ''the Act, 1960''),'' as is evident from the document Annexure R-4/A-7/3 (page 1160 of the paper book part IV), wherein the employees are paid one day''s, three days, four days, five days and six days etc. wages, in most of the cases but in no case the employees/workers have been paid full monthly wages i.e. 26 days wages. According to learned counsel appearing for the respondent No. 3 employees Sangh, the compliance of the provisions of Section 65(3) of the Act, 1960 is not in its letter and spirit.
Thus, the petitioner is directed to file a detailed affidavit, indicating as to on what basis the last wages drawn have been determined i.e. one day''s, Three days, four days, five days and six days, etc. wages, not for 26 days wages.
As prayed, list it on 6-11-2009 for consideration of the application for compliance of the provisions of Section 65(3) of the Act, 1960. If time permits, the case may also be heard finally.
Shri Bennet D'' Costa appearing with Ms, Sudha Bhardwaj, learned counsel for the respondent No. 3 Union, would submit that since the workmen were deliberately used to be returned by the petitioner, prior to the dispute was raised in reference dated 12-6-2000, thus they are entitled to full wages i.e. 26 days in a month. Learned counsel has gone in detail as to how the workmen were denied work and they were paid on the basis for 2 days; 3 days, 4 days. Learned counsel would further submit that the interim order has not been complied with by the petitioner in its letter and spirit. Compliance with the provision of Section 65(3) of the Act, 1960 is a condition precedent to final determination of the proceeding. Learned counsel would next submit that 45 workmen who were not terminated are not being given the work in accordance with the order dated 25-4-2006. The workmen have to be given work and full wages on a month to month basis on the basis of the Award of the Cement Wage Board.
Per contra Shri Rana Mukherjee appearing with Shri Bharat Goyal, Shri Gautam Bhaduri, Shri N.K. Vyas and Shri Santosh Tiwari, learned counsel for the petitioner, would submit that the workers are paid wages on the basis of pay slip and at this stage the question of full back wages, which is a subject matter of the writ petition cannot be decided. The workmen are not in regular employment, they were employed on the basis as and when their services were required. There is no dispute, as the documents have been annexed by the petitioner that all the workmen are paid u/s 65(3) of the Act, 1960 as per the monthly pay slip.
The petitioner in its affidavit dated 26-10-2009 made an averment as under:
That out of 116 employees mentioned in Annexure R-4/A7/3 at page 1160, 1161, 1162, 1163 Serial No. 20 to 67 are casual employees who have taken Voluntary Withdrawal from petitioner as per scheme floated by petitioner in the month of October 2004, June 2005, July 2003. The petitioner for compliance of section 65(3) of the Act has taken into consideration the last wages earned by the worker before opting for Voluntary Withdrawal in the month of September 2004, May 2005, June 2003. It is humbly submitted that all the casual employees mentioned in (Annexure R4/A7/3 page 1160) have worked on days mentioned in the months of September, 2004 and May 2003, A copy of Pay Slip of these Casual Employees is filed herewith as Annexure P/55. Therefore petitioner is adjusting the amount of compliance of section 65(3) of CGIR Act on the basis of last wages drawn at the time of accepting Voluntary Withdrawal Scheme by these Casual Employees.
Section 65(3) of the Act, 1960 reads as under:
65 (3) Where in any case, a Labour Court, by its order directs reinstatement of any employee and the employer prefers an appeal before the Industrial Court against such order, or any proceedings against the order of the Industrial Court in the High Court or the Supreme Court, as the case may be, the employer shall be liable to pay such employee during the pendency of such appeal, in the Industrial Court or such proceedings in High Court or the Supreme Court, as the case may be, full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule if the employee had not been employed in any establishment during such period and an affidavit by such employee had been filed to that effect in such Court:
Provided that where it is proved to the satisfaction of the Industrial Court or the High Court or the Supreme Court as the case may be that such employee 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.
Section 17-B of the Industrial Disputes Act, 1947 (for short "the Act, 1947") reads as under:
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 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.
Section 17-B of the Act, 1947 is pari materia with Section 65(3) of the Act, 1960, Section 65 (3) of the Act, 1960 provides that if an appeal is preferred against the order of the Industrial Court in the High Court or the Supreme Court, as the case may be, the employer shall be liable to pay such employee during the pendency of such appeal, in the High Court or the Supreme Court, as the case may be, full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule if the employed had not been employed in any establishment during such period and an affidavit by such employee had been filed to that effect in such Court.
In AIR 1998 511 (SC) the Supreme Court, while considering the effect and applicability of Section 17-B of the Act, 1947, observed as under:
It would be convenient at this stage to set out the provisions contained in Section 17-B of the Act which read as under:
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 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 Objects and Reasons for enacting the said provisions were as follows:
When Labour Courts pass award of reinstatement, these are often contested by the an employer in the Supreme Court or High Court. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, therefore, proposed to provide the payment of wages last drawn by the workman concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or High Courts.
It would thus appear that the object underlying the enacting of the provisions contained in Section 17-B is to give relief to the workman in whose favour an award of reinstatement has been passed by the Labour Court and the said award is under challenge in the High Court or this Court. The said relief has been given with a view to relieve the hardship that would be caused to a workman an account of delay in implementation of the award as a result of the pendency of the proceedings in the High Court or this Court. The question for consideration is: what is the extent to which such relief has been granted to a workman under this provision? The Objects and Reasons do not indicate an answer to this question and its answer has to be found in the provisions of the enactment. Since the expression "full wages last drawn" in Section 17-B has been construed by the various High Courts in the decision referred to above we would briefly refer to the same.
After having considered all the decisions, in Dena Bank (supra) the Supreme Court further held as under:
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 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 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. or the Bombay High Court in Carona Sahu Co. Ltd.
The Supreme Court in Uttaranchal Forest Development Corpn. and another v. K.B. Singh and others (2005) 11 SCC 449, observed as under:
After hearing learned counsel for the parties, we direct that only such workmen in whose favour there are awards of reinstatement and who have filed affidavits of their not being in gainful employment, shall be entitled to be granted reinstatement or in lieu thereof paid wages last drawn by them on respective dates of their terminations from services. Their entitlement for such wages would be from the respective dates by filing affidavits by each of them in this Court in compliance with Section 17-B of the Industrial Disputes Act, 1947.
In Rajeshbhai Jayanyilal Zakhariya v. Child Development Programme Officer and another Manu GJ/8370/2006, relied on by the learned counsel appearing for the respondent Union, learned Single Judge of the High Court of Gujarat at Ahmedabad has taken a view that the workmen is entitled to full last wages drawn by them means 30 days wages of month from the employer. In the facts wherein the workmen were employed not for 29 days, but for different period ranging from 3 days to 25 days.
I am in respectful disagreement with the preposition laid in Rajeshbhai Jayanyilal Zakhariya (supra) and I am of the considered view that the view taken by the High Court of Gujarat is contrary to the basic principles and object of the provisions of Section 17-B of the Act, 1947 and/or Section 65(3) of the Act, 1960 and contrary to the ratio laid down by the Supreme Court in Dena Bank (supra).
In Novartis India Ltd. Vs. State of West Bengal and Others, , the ratio laid down by the Supreme Court in Dena Bank (supra) was referred with approval.
Reliance of the learned counsel on the decision of the Supreme Court rendered in Jeewanlal (1929) Ltd. Vs. Appellate Authority under the Payment of Gratuity Act and Others, , is misplaced, as the case was dealing with the payment of gratuity under the Payment of Gratuity Act.
In Daladdi Cooperative Agril. Service Society Ltd. Vs. Shri Gurcharan Singh and Another, Punjab and Haryana High Court observed as under:
In the present case, the position is different. The learned Single Judge has not passed a mere interlocutory order. In fact the rights of the parties have been determined. A positive direction for payment of wages at ''the current rate'' has been given. Even if the writ petition is ultimately allowed and the award of the Labour Court is set aside, the appellant shall not be able to recover the money paid to the workman in pursuance to the order of the learned Judge. A liability not warranted by the provision of Section 17-B has been created. This order, in the words of Hon''ble the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, , has "the traits and trappings of finality" as it finally determines the rights of the workman and the liability of the appellant during the pendency of the writ petition in the High Court. Consequently, in the facts and circumstances of this case, we are of the opinion that the objection has no merit and cannot be sustained.
Accordingly, we allow the Letters Patent Appeals Nos. 657 and 658 of 1993. We hold that the workmen in these two appeals shall be entitled to the payment of wages at the rates at which they were being paid immediately prior to the termination of their services. In the circumstances of the case, we make no order as to costs.
Learned counsel appearing for the respondent Union has taken me through the depositions of the parties and other documents in order to establish that grant of wages in service prior to the dispute was raised and referred to the Industrial Court was not proper. The workmen ought to have been given wages for 26 days in a month. The workmen were always willing to work. However, the petitioner has taken the work only for few days in a month.
At this stage, it is not necessary 10 go into the question of grant of wages prior to raising of dispute and reference to the Court. Thus, I am not determining the question of grant of wages prior to the date of reference that is the subject matter of writ petition. Even further finding of the Industrial Court with regard to payment of full back wages is also subject matter of the main writ petition.
In the present case, it is well set lied that the relief is to be given to workmen in whose favour the award of reinstatement has been passed. Full wages last drawn has been held in Dena Bank (''supra) means wages, which would have been drawn by the workmen, if he had continued in service. There is no dispute that the payment has been made on the basis of pay slip of the last month. Thus, the petitioner cannot be directed in these applications to grant full back, wages at the rate of 26 days per month to the workmen who have been granted relief of reinstatement with back wages by the Industrial Court.
For the reasons mentioned herein above, I am of the considered opinion that the payment of wages must be at the rate, which the workmen were getting prior to removal/termination of their services under the provisions of Section 65(3) of the Act, 1960. The petitioner is accordingly directed to make payment to the workmen in view of the provisions of Section 65(3) of the Act, 1960. with the aforesaid observations and directions, both the applications (I.A. Nos. 3 & 5) stand disposed of.