The Kapurthala Central Co-Operative Bank Limited vs The Presiding Officer, Labour Court, Jalandhar and others

I.S. Tiwana, J.—Civil Writ Petition No. 1793of 1984 filed by the Employer Bank, i. e., the Kapurthala Central Cooperative Bank Ltd. Kapurthala, impugning the award of the Labour Court, Jalandhar, dated 18th January, 1984 (annexure P-12) directing the reinstatement with continuity of service and payment of full back-wages to the respondent-workers Shri Surjit Singh and Dalbir Singh, was admitted to hearing and the Motion Bench vide its interim order dated 19th April, 1984, stayed the "operation of the impugned award till further orders." Civil Miscellaneous No. 2833 of 1984 has been filed by these respondents for the setting aside of the stay order on the plea that these workers had remained un-employed right from the date of termination of their services on 26th November, 1979 and 12th November, 1979 and are finding it difficult to go on without payment of their wages. It is also highlighted by them that in view of the recent amendment in the Industrial Disputes Act with the incorporation of Section 17-B with effect from 21st August, 1984, the policy of the State Legislature is well indicated that the employer can not avoid bis liability to pay to the workmen during the pendency of any proceedings against the award in the High Court. By this provision, it has been made obligatory on the employer to pay full wages inclusive of any maintenance allowance admissible to the worker on the basis of the last drawn wages by him. While choosing to contest this player made by the workers for the vacation of the stay order, the employer-Bank has preferred Civil Miscellaneous No. 2986 of 1984 with a view to seek amendment of the petition to launch a challenge to the vires of this newly added section of the Act, i e. Section 17-B. The challenge is that this provision of law interfers with and restricts the constitutional power of this Court incorporated in Article 226 of the Constitution to issue writs, order or directions during the pendency of the petitions before it and thus this section deserves to be struck down as violative of the Constitution.

In the normal course, we would not have shown any reluctance in allowing amendment of the petition had we not been satisfied that the amendment sought to be made by the applicant-petitioner is only illusory and the incorporation of the same in the petition is not going to advance its case in any manner. It is no doubt true that the powers of this Court as incorporated in Article 226 of the Constitution cannot be curtailed or tinkered with by an ordinary legislation except by way of amendment of the Constitution itself and any such statutory provision seeking to do that has to be held to be void, but the question in the instant case is as to whether section 17-B as introduced by the Industrial Disputes (Amendment) Act, 1982, suffer from any such vice. This section reads as follows :--

17B. 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 workmen 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.

A bare reading of this section clearly indicates that it does not even refer to the powers of the Court under Article 226 what to talk of in any way interfering or restricting the same. All that is intended or provided for by this section is that the employer is liable for the full payment of wages at the rate last drawn by the workman concerned, if, (i) the Labour Court, Tribunal or National Tribunal has awarded reinstatement of the workman, (ii) the employer has preferred any proceedings against such award in a High Court or the Supreme Court, during the pendency of proceedings in such Court if the workman has not been employed in any establishment during such period and an affidavit has been filed by such workman in the Court to that effect. The proviso makes it explicit that where it is proved to the satisfaction of the Court that the workman concerned had been employed and had been receiving adequate remuneration during the pendency of the proceedings before the Labour Court or part thereof, the High Court or the Supreme Court shall order that no wages shall be payable under this section for the whole of the period or part thereof as the case may be. This section only guarantees to the workers the payment of wages by the employer during the course of proceedings in the High Court or the Supreme Court, of course subject to the safeguard provided for, irrespective of the result of the proceedings. At the same time, it calls upon the worker concerned to file an affidavit in the Court stating that he has not been employed in any establishment during the period of pendency of the proceedings or part thereof before the Labour Court or the High Court or the Supreme Court. It also entitles the Court to absolve the employer of his obligation if it is proved to the satisfaction of the Court that the workman had been employed and had been receiving "adequate" remuneration. In this view of this implication of Section 17-B of the Industrial Disputes Act. we feel that the amendment sought for is wholly fallicious and thus we decline to grant that.

So far as the Civil Miscellaneous filed by the workers is concerned, we are satisfied that the grant or sustance of the stay order dated 19th April, 1984, not only virtually amounts to the allowance of the writ petition, but also operates oppressively or harshly against the objectors If the law as contained in Section 17B of the Act obliges the petitioner-employer to pay to these workmen during the pendency of these proceedings, it also well entitles it to have work out of these workers by reinstating them if not permanently at least upto the final result of these proceedings.

For the reasons recorded above, while dismissing Civil Misc. No. 2986 of 1984, we allow Civil, Misc. No. 2833 of 1984 by modifying the order dated 19th April, 1984 to the effect that the petitioner-employer shall pay and continue to pay full wages inclusive of any maintenance allowance admissible to the respondent-workers under any rule with effect from the date of the award i. e. 18th January, 1984, on the basis of "last drawn" wages during the pendency of these proceedings. We, however, pass no orders as to costs either way.

Sd/- Prem Chand Jain, Act.C.J.