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Judgment
N. Paul Vasanthakumar, J.—The prayer in this writ petition is to quash the order dated 25.01.2010 of the Respondent in so far as it directs
payment of last drawn wages on reinstatement of the Petitioner.
It is the case of the Petitioner that he was employed as a driver in the Respondent Corporation in the year 1985 and on 26.04.2003, he was
dismissed from service. Thereafter, the management filed an application u/s 33(2)(b) of the Industrial Disputes Act, 1947 for approval of the order
of dismissal passed against the Petitioner, before the Joint Commissioner of Labour, Coimbatore in A.P. No. 216 of 2003. The Joint
Commissioner of Labour, by order dated05.10.2004, dismissed the application filed by the management for approval on the ground that there was
short fall in the payment of wages. Aggrieved by the same, the management has filed W.P. No. 2780 of 2005 before this Court. Even though the
writ petition was admitted, the stay petition filed by the management in WPMP No. 30214 of 2005 was dismissed on 31.08.2005. The
Management filed Writ appeal in W.A. No. 2196 of 2005 before the Division Bench of this Court and the same was allowed holding that one
month pay was paid to the workman and remitted the matter to the Joint Commissioner of Labour to consider other issues. After remanding the
matter, the Joint Commissioner of Labour passed an order dated 28.08.2007 rejecting the approval petition filed by the management. As against
the order dated28.08.2007 rejecting the application for approval, the management filed W.P. No. 735 of 2008 before this Court. In the
meanwhile, the Petitioner has filed C.P. No. 12 of 2006 u/s 33(c)(2) of the Industrial Disputes Act, for payment of arrears and the same was
allowed on 07.07.2008. The management also filed W.P. No. 9241 of 2009 as against the award dated 07.07.2008 passed in C.P. No. 12 of
2006and both the writ petitions are pending. The management also filed M.P. No. 1 of2009 in WP No. 9241 of 2009 for interim stay and this
Court, by an order dated14.05.2009 granted interim stay on condition that the management deposits the entire award amount as computed by the
labour court within six weeks. Subsequently, by order dated 17.07.2009, this Court passed an order making the interim stay absolute and also
permitted the Petitioner herein to withdraw 50% of the amount deposited by the management and the balance amount was directed to be
deposited in a nationalized bank for a period of three years, giving liberty to the Petitioner to withdraw interest once in three months. It was further
held in the order dated 17.07.2009 that the Petitioner is entitled to the benefit of wages as contemplated u/s 17(B) of the Industrial Disputes Act
from August 2009and the management has to pay the amount on or before 10th of every month from August 2009. Thereafter, the Petitioner was
reinstated in service subject to the orders to be passed by this Court in the writ petitions filed by the management. However, while reinstating the
Petitioner, the management passed the impugned order dated 25.01.2010 imposing a condition that the Petitioner will get only the last drawn
wages as salary. Aggrieved by the same, the present writ petition is filed.
The issue relating to payment of full wages on reinstatement of a workman, instead of paying wages as contemplated u/s 17(B) of the Industrial
Disputes Act, came up for consideration before a Division Bench of this Court in W.A. No. 292 of 2005 and by order dated 18.07.2005, the
Division Bench of this Court passed the following Order:
According to the learned Counsel for the Appellant, the second Respondent herein was employed by virtue of a fresh employment order and
therefore, he cannot claim benefit of the increase of salary. The learned Counsel submits that the result of the interim order will be that the
employee will be entitled to gross salary of Rs. 9,426.28 as against Rs. 2,469.75 which alone he is entitled to get u/s 17B of the Industrial Disputes
Act. Though the second Respondent herein would not be entitled to an increase of salary, even as a fresh entrant, he is entitled to get Rs. 5,981/-
as gross salary and not the amount claimed by the second Respondent herein. We are unable to accept the contentions of the learned Counsel for
the Appellant. It is certainly open to the management to keep the second Respondent herein out of service and pay him salary in terms of Section
17-B. But, when once he has been reinstated, he is entitled to get regular salary calculated on the basis as if he is continuously employed and
discharged his functions. As pointed out by the learned Counsel for the Petitioner, the Supreme Court has gone into similar contentions in the case
reported in Regional Authority, Dena Bank and Another Vs. Ghanshyam, . While dealing with the similar contentions, the Supreme Court has
observed that it needs no debate to conclude that on reinstatement, the Respondent will be entitled to his salary onward with other employees
working in the same post.
The learned Counsel for the Respondent is not disputing the dictum laid down by the Division Bench of this Court as well as the judgment of the
Supreme Court in Regional Authority, Dena Bank and Another Vs. Ghanshyam, .
Having regard to the order passed by the Division Bench of this Court''s well as the Supreme Court referred to above and the fact that the
management is extracting work from the Petitioner as Driver after his reinstatement, he is entitled to current wages from the date of his
reinstatement and therefore, the condition imposed in the impugned order is illegal. Accordingly, the writ petition is allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
The management is directed to pay the arrears of salary payable to the Petitioner, after adjusting the last drawn wages already paid to him, from
the date of his reinstatement till the end of March 2011 within a period of six weeks from the date of receipt of a copy of this order. The
management is further directed to continuously pay the current wages to the Petitioner from April 2011 subject to the decisions in the pending writ
petitions.