Jaswant Singh vs The Presiding Officer, Labour Court, Gurdaspur and Others

Rajesh Bindal, J.—The workman is before this court challenging the award dated 5.5.2009 passed by the Presiding Officer, Labour Court, Gurdaspur (for short, ''the Tribunal''), whereby his claim for payment of current wages on account of his having been taken back in service in terms of earlier order passed by the Tribunal, was declined. Brief facts, as have been noticed in the impugned order, are that the petitioner was employed as Watchman with the Punjab Water Supply and Sewerage Board (for short, ''the Board'') on 1.1.1991. His services having been terminated on 28.2.1993, industrial dispute was raised. The matter was referred to the Tribunal, who vide award dated 7.2.2001 ordered reinstatement of the petitioner with full back wages from 28.2.1993 and continuity of service. The award of the Tribunal was challenged by the Board before this court by filing Civil Writ Petition No. 10489 of 2001 - Punjab Water Supply & Sewerage Board and another v. Jaswant Singh and others. Vide order dated 19.8.2004, passed in Civil Misc. No. 2882 of 2004 in Civil Writ Petition No. 10489 of 2001, the Board was directed to pay the last drawn wages to the petitioner-workman from the date of filing of the writ petition. It was also directed that future wages shall be paid by the 10th of each month.

Thereafter, vide order dated 3.2.2006, the petitioner was taken back in service by the Board. He was posted at Sri Hargobindpur. Though the petitioner had been taken back in service, but still he was paid the last drawn wages which were being paid at the time of his termination of services, i.e., Rs. 990/- per month. Claiming that the petitioner is entitled to be paid current wages considering the fact that he had been taken back in service by the Board, an application u/s 33C(2) of the Industrial Disputes Act, 1947 (for short ''the Act'') was filed by the petitioner on 5.9.2006. The claim made by the petitioner was declined vide order dated 5.5.2009, inter-alia, on the ground that the interim order passed by this court directing payment of the last drawn wages was being complied with and in execution the court cannot go beyond that. It is the aforesaid award which is impugned before this court.

Learned counsel for the petitioner, placing reliance upon a judgment of this court in Punjab State Electricity Board Vs. Presiding Officer, Labour Court, , submitted that once the petitioner had been taken back in service, he is entitled to get current wages. Even the increments for the period he remained out of service had also to be added for the reason that he is reinstated with continuity of service with back wages. He further submitted that C.W.P. No. 10489 of 2001 filed by the Board challenging the award dated 7.2.2001 was disposed of by this court on 7.4.2010 whereby the award directing reinstatement of the petitioner-workman in service was set aside, however, a direction was issued to Nagar Council, Fatehgarh Churian to reinstate him with continuity of service with full back wages from the date of termination, i.e., 28.2.1993 till his actual reinstatement. He further submitted that subsequently in LPA No. 562 of 2011 Municipal Council, Fatehgarh Churian, Tehsil Batata v. Punjab Water Supply and Sewerage Board, Gurdaspur and others, the judgment of the learned Single Judge dated 7.4.2010 was set aside and the petitioner was again held to be employee of the Board. Once the petitioner had been taken back in service and was actually working with the Board from 3.2.2006, he is entitled to be paid the current wages. He referred to the chart produced by him showing the wages to which the petitioner is entitled to and the actual payment made to him. In terms of the chart, Rs. 82,557/- are still due to be paid to him.

The aforesaid chart was filed by the petitioner along with his affidavit dated 26.4.2010. Till date the Board, with whom the petitioner is working, has not disputed the calculation made by the petitioner. No one has appeared for the Board. A perusal of the paper book shows that counsel for the Board had last appeared in the court on 8.7.2010 and thereafter he had been absenting.

Learned counsel for respondent No. 4 stated that the Board is the contesting respondent and finally the petitioner has been held to be the employee of the Board.

The issue involved in the present petition is as to whether an employee is entitled to payment of current wages in case he is taken back in service in terms of an award of the Tribunal, the challenge to which is pending before the court or the wages last drawn by him in terms of Section 17-B of the Act.

The issue has been gone into by this court in Punjab State Electricity Board''s case (supra), wherein this court opined that in case a workman is reinstated back in service, even though a challenge to the award of the Tribunal is pending before the court, he shall be entitled to current wages including the amount which would have accrued to him in terms of the award of the Tribunal. Relevant paragraph 2 thereof is extracted below:

I have heard counsel for the parties and find no merit in the submission of the learned counsel for the Board. In spite of the operation of the award having been stayed by this court, the Board decided to reinstate the workman and obviously he has been reinstated in terms of the award and subject to the final orders that may be passed by this court in the writ petition. In these circumstances, when the Board has reinstated the workman it must also pay to him the other benefits as flowing from such reinstatement to which he has been found entitled by the Labour Court. Since the workman has been found entitled to be reinstated with continuity of service, he will be deemed to have worked for the period when he was out of employment and such period has, therefore, to be counted for the purpose of giving him increments. The current wages will, therefore, include the amounts which have accrued to the workman by reason of the increments which would have been paid to him had he not been out of employment.

In Daladdi Cooperative Agril. Service Society Ltd. Vs. Shri Gurcharan Singh and Another, a Division Bench of this court opined that in case a workman is reinstated and is allowed to work, he would get wages at the same rate at which the other workmen are being paid. However, in case he remains unemployed, operation of the impugned award having been stayed, he will be entitled to get wages at the same rate at which it were being paid before termination so as to enable him to subsist. Relevant passage thereof is extracted below:

...If the workman is reinstated and allowed to work he would of course get wages at the same rate at which the other workmen are being paid. However, if his reinstatement is stayed and he remains unemployed then the wages have to be paid to him at the same rate at which he was being paid immediately before the termination of his services. This, in our view, is the plain meaning of the provision contained in Section 17-B.

In The State of Punjab Vs. Baru Ram, as well, a Division Bench of this Court followed the judgment in Daladdi Cooperative Agril. Service Society Ltd.''s case (supra). The relevant paragraph thereof is extracted below:

It is apparent from a perusal of Section 17-B of the said act that pending disposal of a proceeding in the High Court or the Society''s case (supra).

In view of the consistent enunciation of law by this court on the issue that when a workman is taken back in service even during the pendency of the writ petition challenging the award of the Tribunal, he shall be entitled to draw current wages which he would have drawn in terms of the award of the Tribunal in his favour. A workman who is being paid wages without working in terms of Section 17-B of the Act has been placed at a different pedestal. In that case, the Act provides for payment of last drawn wages which is, as a matter of subsistence. An employee who is actually working cannot be denied payment of current wages. For the reasons mentioned above, the writ petition is allowed and the impugned award of the Tribunal denying relief to the extent claimed by the petitioner is quashed and it is directed that the petition shall be entitled to current wages which he would have drawn in terms of the award of the Tribunal in his favour.