Mineral Exploration Corporation Ltd. vs The Presiding Officer, Central Industrial Tribunal and Others

This intra-court appeal has been preferred questioning the sustainability of the order dated 26.05.2009 passed by the Single Bench in SBCWP No. 1861/2006 directing the Appellant-employer to comply with the provisions of Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the ID Act'') and to make the payment of full wages last drawn by workman at the time of his retrenchment during pendency of the petition with effect from the date of application i.e.27.03.2009.

The facts in short are that Respondent No. 2 Jagdish Prasad Saini raised industrial dispute and the award was passed directing his reinstatement alongwith back-wages. The award was published in January 2006. The employer has assailed the aforesaid award in the SBCWP No. 1861/2006 pending before the Single Bench.

Before the award was passed published directing the reinstatement, Respondent No. 2 was taken in contractual employment for a fixed term of three months by the employer, which was extended for further period of three years. He was appointed on 21.12.2005 and consequently, the contractual appointment came to an end on 15.12.2008. It has also been submitted by the Appellant-employer that after three years, offer was given to Respondent No. 2 for contractual appointment of three months which was not accepted by him. He was also medically examined but he did not join the contractual service.

Before the Single Bench in the pending writ application filed by the employer, an application was filed u/s 17B of the ID Act by Respondent No. 2. The Single Bench passed order on 26.05.2009 allowing the application and directing the employer to make payment of the wages drawn by the workman at the time of retrenchment. Review of the order was sought before the Single Bench. The review application has also been dismissed vide order dated 27.05.2010. Aggrieved by the impugned orders, the intra-court appeal has been preferred.

Mr. Manoj Kumar Sharma, learned Counsel appearing on behalf of the Appellant-employer has submitted that once the reinstatement has been ordered and there was fresh termination of the services, it was not appropriate to invoke provisions of Section 17B as the fresh termination of service has not been assailed. Secondly, the order could not have been passed u/s 17B ID Act as the workman was offered employment for a period of three months on contractual basis and thereafter it was extended for a period of three years, even after 15.12.2008 employment was offered, which was not availed by him. Thus, the claim of wages u/s 17B without rendering the services cannot be accepted. Learned Counsel has further submitted that the Apex Court in Employer in Relation to Managment of Central Mine Planning and Design Institute Ltd. Vs. Union of India and Another, has held that the order passed on application u/s 17B of the ID Act is a final determination affecting the vital and valuable rights and obligations of parties concerned, as it is a judgment within the meaning of Clause 10, and therefore, the order is appealable to Division Bench.

Mr. M.C. Taylor, learned Counsel appearing on behalf of Respondent No. 2 has submitted that it was not a case of reinstatement, as award was published in January 2006 and from the date of publication of award i.e. 07.01.2006, it was effective, whereas contractual appointment was offered on 21.12.2005 and therefore, It was not a case of reinstatement having been made on the same post pursuant to the award which was published on 07.01.2006. He was employed on time bound basis after extension which came to an end on 15.12.2008. The reinstatement was not offered nor the provisions of Section 17B were complied with. Offer of appointment for a period of three months and its extension on contractual basis could not be said to be reinstatement in compliance of the award. The offer of employment for three months on contractual basis was not made u/s 17B and it could not be said to be reinstatement pursuant to award. Thus, the employer was duty bound to comply with the order passed u/s 17B of the ID Act. Even otherwise work has to be taken u/s 17B or wages last drawn have to be paid during pendency of writ petition. The benefit has been ordered to be paid by the Single Bench w.e.f. the date of filing of the application which was preferred u/s 17B ID Act. Learned Counsel has also raised the question with respect to maintainability of the appeal in view of Rule No. 134 of the Rajasthan High Court Rules which provides that the appeal lies only against final order/judgment.

First question for consideration is whether by virtue of offering employment on contractual basis for a period of three months, which was extended for three years, it could be said that compliance of the provisions of Section 17B was made or the award directing reinstatement was complied with, particularly when the violation of Section 25F was found established by the industrial tribunal. The requirement u/s 17B of ID Act is that the employer has to reinstate the workman on the post he was serving or to comply with the provisions of Section 17B by way of making payment of wages last drawn on the exigency specified u/s 17B. In our opinion, the submission of Shri Manoj Kumar Sharma that reinstatement was made on contractual basis, in compliance of the award and there was afresh termination, hence provision of Section 17B is not attracted, cannot be accepted. In our opinion, before award was made effective in Jan.2006, offer on the contractual basis was made on 21.12.2005. Offer on the basis of contractual appointment for a period of three months could not be said to be reinstatement in compliance of the spirit of the award. It could not be said to be a case of reinstatement as per award during the pendency of petition in this Court either reinstatement has to be made or provision of Section 17B is to be complied with. The contractual appointment was ordered which came to an end by efflux of time on 25.12.2008. Thereafter, the services of workman were not taken by the employer. The employee consequently filed application u/s 17B of the ID Act in the pending writ petition on 27.03.2009 as reinstatement was not made nor compliance of provisions of Section 17B of the ID Act was made and that application was allowed and order was passed by the Single Bench on 26.05.2009 to make compliance of the provisions of Section 17B. Making offer of employment for three months after order was passed by Single Bench that too on the contractual basis could not be said to be in consonance with the order dated 26.05.2009 passed by the Single Bench by this Court. No compliance could be said to have been made by offering time bound contractual employment for three months, reinstatement was called for. The order to offer contractual employment of three months appears to have been passed so as to frustrate the award and order passed by Single Bench u/s 17B. Intention was not to reinstate but to get rid of the order u/s 17B ID Act. We place it on record as stated at Bar that in case reinstatement is ordered, workman is willing to join forthwith. Thus, the order passed by Single Bench cannot be said to be illegal in any manner. In view of the aforesaid circumstances pointing out by the employer, no dent is caused in a right of the workman to be reinstated or for seeking protection of Section 17B of the ID Act during the pendency of the writ application before the Single Bench, the employer is bound to take work or to make payment of wages last drawn. Thus, the order passed by Single Bench is required to be complied with. It is open to the employer to now make offer of reinstatement. If it is so done, the workman has shown his willingness to join.

In view of the aforesaid discussion, we find no merit in this appeal. The same is hereby dismissed. No costs.