@JUDGMENTTAG-ORDER
1. This writ petition by Sirpur Paper Mills Limited raises an important question of law in the field of Industrial/ Labour jurisprudence. The question is as to the scope of Section 17-B of the Industrial Disputes Act, 1947 (''the Act'' for brevity) with reference to an award which has been affirmed by the High Court in a proceedings under Article 226 of the Constitution challenging such an award.
2. In the present case, the petitioner is challenging an order passed by the Industrial Tribunal dated 18-1-1995 in Execution Petition No.5 of 1993 in ID 284 of 1986. The facts insofar as they relate to the controversy that arise in this case are not disputed. These undisputed facts are as follows:
The 2nd respondent while he was working as a Foreman was removed from service on some charges with effect from 26-5-1982. He raised an industrial dispute. The Government vide G.O. Rt. No.252 dated 2-2-1985 referred the industrial dispute to the 1st respondent. In the said dispute, being ID 284 of 1986, an award was passed on 23-10-1986 directing the Management (hereafter the petitioner will be referred as ''Management'') reinstating the 2nd respondent without backwages. The award was published vide G.O. Rt. No.582 dated 25th March, 1987 as required u/s 17 of the Act and the same became enforceable with effect from 24-4-1987. However, the Management filed WP 5142 of 1987 challenging the award of the Industrial Tribunal. The workman also filed WP 7896 of 1987 claiming backwages, which were denied by the Industrial Tribunal.
3. When both the writ petitions were pending, this Court passed an interim order staying operation of the award subject to the condition that the Management shall pay the last drawn wages to the workman during the period of pendency of the writ proceedings before this Court. The two writ petitions were ultimately dismissed by a common order on 7-8-1990. It may be noted that in obedience to the orders passed by this Court in the miscellaneous petition, the Management paid an amount of Rs.470/- per month to the workman from 25-3-1987 to 4-2-1991. The total amount paid by the Management in compliance to the provisions of Section 17-B of the Act is admittedly Rs.23,970/-. Be that as it may, after this Court dismissed the Management''s writ petition, the Management reinstated the workman with effect from 5-2-1991 as Foreman and since then he is continuing with all the benefits attached to the post of Foreman.
4. The workman filed EP 5 of 1993 u/s 11-B of the Act claiming an amount of Rs. 47, 705/- being the benefits the workman is entitled to under the award of the Industrial Tribunal. This amount is arrived at after deducting the amount already paid by way of full last drawn wages u/s 17-B during the pendency of the writ proceedings. This was opposed by the petitioner herein on two grounds, first, that an execution petition u/s 11-B is not maintainable as an application u/s 33-C(2) of the Act is alone maintainable and, secondly, that as the workman is entitled only to the ''full last drawn wages'' as defined in clause (rr) of Section 2 of the Act, which has admittedly paid during the pendency of the writ proceedings, the workman is not entitled to any other benefit including the revised pay, leave pay and/or continuity of service etc, In any event, it was contended that the workman is not entitled to any other extra monetary benefit other than the one permissible u/s 17-B of the Act.
5. The Industrial Tribunal by an order dated 18-1-1995 in EP 5 of 1993 allowed the execution petition directing the Management to calculate the amount due to the petitioner from first date of expiry of one month from the date of publication ofthe award and while calculating the arrears, the Management was specifically directed to calculate the increments as and when they fell due, Dearness Allowance and also take into consideration revision of pay-scales from time to time and deposit the amount by 20th February, 1995. Aggrieved by this order in execution proceedings, the Management has approached this Court by filing the present writ petition.
6. This Court while admitting the writ petition passed interim orders staying operation of the proceedings in the EP subject to condition that the Management shall deposit an amount of Rs.15,000/- to the credit of the EP. The workman then filed WVMP 3189 of 1999 praying to vacate the interim orders granted by this Court. When the matter was taken up for disposing of interlocutory applications, both the learned Counsel requested that the main writ petition be taken up for final disposal. Accordingly, the main writ petition is taken up and is being disposed of by this order.
7. The learned Counsel Sri S. Ravindranath, appearing for the Management, submits that after coming into force of Section 17-B of the Act, the employer who prefers any proceedings against the award before this Court is under an obligation to pay only, the amounts as mentioned in Section 17-B of the Act. Therefore, according to him, even after the final disposal of the proceedings before this Court, the workman is not entitled to any other amounts except the amounts specifically indicated in Section 17-B of the Act. To substantiate this, he relies on Section 2(rr) which defines ''wages'' as all remuneration capable of being expressed in terms of money which would be payable to the workman in respect of his employment. Elaborating further, he submits that when the proceedings are pending before this Court, the last drawn wages which includes all other amounts only need to be paid to the workman. As the Management admittedly paid an amount of Rs.23,970/-being the total sum of last drawn wages from 25-3-1987 to 4-2-1991, for this period, according to him, the Management is not under an obligation, even under the award, to give any monetary benefit during this period.
8. The learned Counsel for the petitioner has relied on a judgment of the Supreme Court in
9. The learned Counsel for the workman Sri G. Ravi Mohan submits that Section 17-B shall be in operation and shall be enforced only while the proceedings are pending before this Court or the Supreme Court. The moment the proceedings come to an end resulting in the dismissal of the writ petition filed by the Management, Section 17-B has no application and the award passed by the Industrial Tribunal cannot be stultified by putting an embargo on the execution of the same in the light of the provisions of Section 17-B of the Act. He further submits that the award passed by the Industrial Tribunal gets merged in the final order passed by this Court under Article 226 of the Constitution and therefore what is given effect to is the final order passed by this Court. Unless this Court specifically denies any benefit conferred under the award, the Industrial Tribunal or the Management cannot deprive the workman of all the benefits under the award. He elaborates the argument further in the following manner:
An award passed by the Industrial Tribunal shall have to be published as prescribed u/s 17 of the Act and the award so published shall become enforceable only on the expiry of 30 days from the date of publication u/s 17-B. Therefore, he submits that the moment the award is published in such manner as the appropriate Government thinks fit, the enforceability of the award cannot be taken away by mere pendency of proceedings before this Court. The learned Counsel for the workman also relied on a judgment of this Court in
10. Having regard to the pleadings and rival contentions, the points that arise for consideration in this case are:
(1) Whether the workman is not entitled for all the benefits under the award for the period during which the proceedings arc pending before the Court at the instance of employer/ Management even after the proceedings before this Court reach finality in favour of the workman?
(2) When the Management has paid the full wages last drawn by the workman during the period of pendency of the proceedings before the High Court, whether the Management gets discharged from the liability of giving all benefits during the period of pendency of proceedings in the High Court even after the proceedings reach finality in favour of the workman?
(3) To what relief?
In re point Nos. 1 and 2:
11. Point Nos.1 and 2 are interconnected and they can be taken up together.
12. The first step in resolving the dispute in this case is to notice the scope of Section 17-B of the Act. The scope of Section 17-B of the Act is no more res integra. In two different contexts, the Hon''ble Supreme Court has interpreted Section 17-B. In Bharat Singh''s case (supra), the question that fell for consideration before the Apex Court was, whether the provisions of Section 17-B apply to awards passed prior to 21-8-1984, the date on which the Central Government brought into force the Industrial Disputes (Amendment) Act, 1982. While repelling the contention that Section 17-B does not apply to the awards passed earlier to coming into force of the provision, the Supreme Court exhorted that while interpreting a provision like Section 17-B, the Courts should resort to purposive interpretation of the provision. The Court observed:
"It is here that the Court has to evolve the concept of purposive interpretation which has found acceptance whenever a progressive social beneficial legislation is under review. We share the view that where the words of a statute are plain and unambiguous effect must be given to them. Plain words have to be accepted as such but where the intention of the Legislature is not dear from the words or where two constructions are possible. it is the Court''s duly to discern the intention in the context of the background in which a particular Section is enacted Once such an intention is ascertained the Courts have necessarily to give the statute a purposeful or a functional interpretation. Now it is trite to say that acts aimed at social amelioration giving benefits for the have-nots should receive liberal construction: It is always the duty of the Court to give such a construction to a statute as would promote the purpose or object of the Act. A construction that promotes the purpose of the Legislation should be preferred to a literal construction. A construction which would defeat the rights of the have-nots and the underdog and which would lead to injustice should always be avoided. This Section was intended to benefit the workmen in certain cases. It would be doing injustice to the section if we were to say that it would not apply to awards passed a day or two before it came into force."
13. As observed by the Supreme Court in the Bharat Singh''s case (supra), the three necessary ingredients for the application of Section 17-B are, (i) the Labour Court should have directed reinstatement of the workman, (ii) the employer should have preferred proceedings against such an award in the High Court or the Supreme Court and (iii) the workman should not have been employed in any establishment during such period.
14. Relying on the provisions of Section 17-B, the Supreme Court categorically held that there are no words in the Section to compel the Court to hold that the section operates retrospectively. Nevertheless, it was specifically said that before coming into force of Section 17-B the Courts were conferring the same benefit while the matters were pending before the High Court, but the workman had no right to claim the benefits pending adjudication in a writ petition. This was now sought to be remedied. Therefore, the provisions of Section 17-B are in the nature of a provision conferring a special power on High Court and the Supreme Court to stay the award directing reinstatement subject to the Management paying the "full last drawn wages" to the workman. Option is given under the provisions to the employer/ Management who approaches the High Court against the award. In a case where the Management does not seek the stay of reinstatement ordered by the Industrial Tribunal, the provisions of Section 17-B have no application. Similarly, if the Management on its own volition comes forward undertaking to pay the full last wages drawn pending adjudication in an application for judicial review, even then the provision operates to a limited extent of staying reinstatement. Therefore, the choice is given to the Management either to invoke the provisions of Section 17-B or not to invoke the said provision. These aspects have bearing when we consider the questions raised by the learned Counsel for the petitioner.
15. In the context of interpretation of the words "full wages last drawn" appearing in Section 17-B, the provision fell consideration again before the Hon''ble Supreme Court. In Deena Bank''s case (supra), the question before the Apex Court was whether the benefit of subsequent revisions in pay-scales and wages should be given to the workman who was removed or terminated prior to coming into force of the revisions in the pay. Different High Courts took different views. The Hon''ble Supreme Court referring to Section 2(rr) and the object of Section 17-B of the Act, held that the amount paid u/s 17-B pending writ petition filed by the Management is by way of subsistence allowance when the matters are pending and is non-refundable even in the event of the writ petition being accepted by the Court. Hence, the provisions of Section 17-B by giving plain meaning should only mean the full wages last drawn. The Supreme Court also categorically held in Deena Bank''s case (supra), as was in the case of Bharat Singh that the words in Section 17-B should be given a plain meaning and cannot be given an extended meaning. It is useful to refer to the following from the judgment of the Supreme Court.
"The words "full wages last drawn" in Section 17-B cannot be read as "full wages which would have been drawn. Such an extended meaning to the words "full wages last drawn" does not find support in the language of Section 17-B. Nor can this extended meaning be based on (he object underlying the enactment of Section 17-B. 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 Supreme 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 Industrial Tribunal, would result in so enlarging the benefit as to comprehend the relief that lias 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. The provisions contained in Section 17-B cannot be construed as casting such a burden on the employer. The words "full wages last drawn" must be given their plain and material meaning and cannot be given the extended meaning."
16. From the two judgments of the Supreme Court on the subject, inter alia the following principles would emerge:
(a) the provisions of Section 17-B are in the nature of progressive social beneficial legislation warranting purposeful or a functional interpretation;
(b) the words in Section 17-B should be given plain meaning and the meaning of the words should not be extended; and
(c) being the provision aimed at social amelioration, Section 17-B calls for liberal interpretation, in that, when there are two views possible, the view which will benefit the have-nots and underdog should be preferred and in any event a construction which defeat the rights of the workman should be avoided.
(d) The provisions of Section 17-B apply even to the awards passed before coming into force of Section 17-B. The words "full wages last drawn" mean the actual wages the workman was drawing on the date of termination and not the wages which the workman "would have drawn" as a result of any pay revision.
(c) All the full wages last drawn, paid to the workman during the pendency ofthe proceedings before the High Court in a matter where the award is in question, are non-refundable and the workman need not refund the same even in the case of the writ petition being allowed and the award being set aside and the provisions of Section 17-B can be enforced only during the pendency of the employer''s/Management''s proceedings in the High Court and not prior or after completion of the proceedings.
(f) When once the proceedings before this Court reach a stage of finality, in case writ petition being allowed, the Management cannot be compelled to continue to pay the full wages last drawn.
17. The two Supreme Court judgments supra and the principles flowing therefrom would lead to an irresistible conclusion that the workman need be paid the last drawn wages only during the pendency of the proceedings. These wages paid to him shall be by way of subsistence allowance, because at the behest of the management the reinstatement of the workman is stayed. After the completion of the proceedings before this Court which may go against the management, the award, which is challenged in the writ proceedings and which continue to be in force but for the stay order, revives and the workman is entitled to full benefits of the award.
18. It is reasonable to assume that during the pendency of the proceedings, by virtue of interim orders granted by this Court, there is an eclipse on the award passed by the Industrial Tribunal to the extent of reinstatement and also to the extent of the full wages that would have been drawn by the workman during the pendency of the proceedings. Therefore, when once the writ petition of the management is dismissed, the eclipse gets cleared and the workman is entitled to reinstatement as well as full wages that would have been drawn by him as held by the Supreme Court in Deena Bank''s case (supra). The workman however would not be entitled to the full wages that would have been drawn only during the pendency of the proceedings, not after the conclusion of the proceedings. This interpretation ofthe effect of Section 17-B on the award passed by the Industrial Tribunal also gets support from the provisions of Sections 17 and 17-B of the Act.
19. Section 17 says that, every award of a Labour Court or a Tribunal shall within a period of 30 days from the date of receipt of it by the appropriate Government be published in such a manner as the Government thinks fit. As per Section 17-B of the Act, the award shall become enforceable on expiry of 30 days from the date of such publication. The moment the award is published, it becomes enforceable and attains finality in respect of all the benefits - reinstatement, continuity of service and all backwages. The effect of the award or impact of the award cannot be obliterated or diluted by any authority except insofar as it might get modified in proceedings in judicial review. Further, the award shall not be enforced if Government decides not to give effect to whole or part of award. This becomes clear by a reference to Section 17-A, which reads as under:
"17-A. Commencement of the award:--(1) An award (including an arbitration award) shall become enforceable on the expiry of thirty days from the date of its publication u/s 17:
Provided that-
(a) If the appropriate Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a party; or
(b) If the Central Government is of opinion in any case whether the award has been given by a National Tribunal; that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the whole or any part of the award the appropriate Government or as the case may be, the Central Government may, by notification in the Official Gazette, declare that the award shall not become enforceable on the expiry of the said period of thirty days.
(2) Where any declaration has been made in relation to an award under the proviso to sub-section (1), the appropriate Government or the Central Government may, within ninety days from the date of publication of the award u/s 17, make an order rejecting or modifying the award, and shall, on the first available opportunity, lay the award together, with a copy of the order before the Legislature of the State, if the order has been made by a State Government or before Parliament, if the order has been made by the Centra! Government.
(3) Where any award as rejected or modified by an order made under subsection (2) is laid before the Legislature of a State or before Parliament, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid: and where no order under sub-section (2) is made in pursuance of a declaration under the proviso to sub-section (1), the award shall become enforceable on the expiry of the period of ninety days referred to in subsection (2).
(4) Subject to the provisions of subsection (3) regarding the enforceability of an award, the award shall come into operation with effect from such date as may be specified therein, but where no date is so specified, it shall come into operation on the date when the award becomes enforceable under subsection (I) or sub-section (3), as the case may be."
20. A plain reading of all the subsections of Section 17-B makes it clear that if the appropriate Government is of the opinion that it will be inexpedient on public grounds affecting national economy or social justice to give effect to the award, an appropriate Government may by notification in the Official Grfzette, declare that award shall not become enforceable on expiry of the said period of 30 days. However, such a declaration made in clause (b) of subsection (1) of Section 17-B shall have to be lard on the floor of the Assembly and such declaration will be effective only as modified by the Legislature of the State or the Parliament, as the case may be. Except this procedure u/s 17-A by which the award shall not be given effect to, the Act does not contemplate any procedure of not giving effect to an award passed by the Industrial Tribunal u/s 15 of the Act.
21. Therefore, reading the provisions of Sections 17, 17-A and 17-A together, it shall have to be concluded that the award passed by the Industrial Tribunal shall be final and shall be enforced subject to any declaration u/s 17-A of the Act.
22. Thus, during the pendency of the proceedings before the High Court by virtue of eclipse created u/s 17-A read with any Court order, the award of the Industrial Tribunal cannot be enforced during the period of pendency of the proceedings before the High Court or the Supreme Court. During the period of such pendency, the workman is only entitled to full last drawn wages as subsistence or maintenance allowance, ''which is not the benefit granted by the Industrial Tribunal''. All the benefits awarded by the Industrial Tribunal will be conferred on the workman only after the proceedings in the High Court reach a stage of conclusion and/or subject to any modifications that may be ordered by the High Court or the Supreme Court, as the case may be.
23. The conclusion reached by this Court also gets support from the provisions of Section 11-B of the Act. The said section, which came into force with effect from 27-7-1987, empowers a Labour Court or a Tribunal with all the powers of a civil Court to execute its award or any settlement as the decree of the civil Court.
24. There is no gainsaying that the civil Court (executing Court) while executing a decree has got all powers to give full scope to the decree passed by the competent civil Court including awarding of mesne profits during fhe pendency of an appeal or a revision. Therefore, if we assume the proceedings before this Court as an appeal from the award of the Industrial Tribunal, though it is a judicial review, it would be rather curious to deny the benefits of award to the workman only because an appeal is pending before this Court and that pending the appeal the award is stayed. In fact, as discussed above, the provisions of Section 17-A call for a plain reading leading to a purposeful liberal interpretation leaning towards the workman. In view ofthis, the submission of the learned Counsel for the petitioner is liable to be rejected.
25. Furthermore, in any contract of service between a master and servant, there is an implied condition in the contract that the ''master'' shall not discharge/terminate the services of the ''servant'' without following the conditions of contract. If the action of the master results in an illegal termination in the sense that the termination is not in accordance with the terms of the contract or beyond the terms of the contract, the same would be an illegal termination giving a right to the servant in tort to claim damages for wrongful termination. In a hypothetical situation, if the terms of the contract slso permit the ''master'' to place the ''servant'' under suspension, either by virtue of explicit terms of contract or implied terms of contract, and ultimately the termination is set aside by a competent Court or a Tribunal, can it be said that though the termination is ex facie illegal, still, the servant can be denied the wages during the period of suspension during which period the servant, assuming such situation, was paid some subsistence allowance? The answer should be in the negative. It is well settled and axiomatic that whenever a Court or a Tribunal finds that the termination of the seivices of the servant/workman is illegal and unsustainable, ordinarily the reinstatement follows. Unless contrary is proved by the master/employer, the workman is presumed to be unemployed and, therefore, he shall be deemed to be in service from the date of the termination till the date of the order of the Court. As the servant is deemed to be in service or in the employment of the master, being responsible for the illegal termination, the law requires the master/ employer to pay the entire salary by way of damages.
26. The principles reiterated above are not seriously disputed. In view of these principles to cases where the relationship of employer and employee are governed by statutory Rules or standing orders in the case of Industrial employment, I do not see any valid reason to evolve different principles for treating the period of temporary severance of relationship of ''master'' and ''servant'' between employee and the employer while the adjudicatory process was going on in Industrial Tribunal or before this Court. Therefore, the period during which the proceedings are pending before this Court, though for limited purposes, is governed by the provisions of Section 17-A of the Act, the same cannot be ignored for all other purposes of counting the service, conferring monetary benefits and applying other conditions of service, subject to any modifications that may be ordered by this Court. In either view of the matter, the submission of the Counsel for the petitioner that the workman is not entitled for the benefit of service and monetary benefit during the period from 25-3-1987 to 4-2-1991 cannot be countenanced.
27. According to the claim made by the workman in the execution petition, he is entitled to receive a total amount of Rs.71,675/- being wages from 25-3-1987 to 4-2-1991. If the submission of the learned Counsel for the petitioner is accepted, the workman shall not be entitled to any amount, because he was already paid a total amount of Rs.23,970/- towards ''full wages last drawn'' by way of subsistence allowance to satisfy the provisions of Section 17-A of the Act. Acceptance of such principle would amount to adding insult to injury. The workman already suffered mental agony and in some cases stigma by virtue of illegal termination. When he was able to persuade the Industrial Tribunal and get a favourable award under the Act, the same gets carried to the High Court under Article 226 of the Constitution by the management. For no fault of his the workman cannot be deprived of the benefit for the period during which the proceedings are pending before this Court.
28. The learned Counsel for the workman has relied on the judgment by this Court in the case of Large-Sized Co-operative Credity Society (supra). In the said case, the question that fell for consideration before this Court was whether wages directed to be paid u/s 17-B but not paid are recoverable from the management even though the writ is allowed and the award is set aside. This Court inter alia laid down the following principles:
(1) Amount paid u/s 17-B, which is in the nature of subsistence allowance, when once paid cannot be recovered irrespective of the result of the writ petition even in cases where the award is set aside as perverse, nullity, grossly erroneous or without jurisdiction;
(2) Though Section 17-B wages is the normal rule, in exceptional cases when award is perveise or erroneous or patently without jurisdiction or nullity, this Court acting under Article 226 is not debarred from exercising its powers and pass appropriate orders on the petition seeking suspension of the operation of the award;
(3) (a) Section 17-B wages directed to be paid but not paid cannot be claimed by the employee at the time of final hearing of the writ and when it is allowed. The remedy of the employee in such cases is to move the Court to vacate the suspension of operation of the award.
(b) In case the writ is dismissed, the employee can always claim back-wages during the pendency of the case subject to the proof of non-employment elsewhere.
In Hindustan Steel Construction case (supra), the Court was considering the scope of the phrase "last drawn wages" appearing in Section 17-B of the Act. In that context, this Court observed as follows:
"Here I may note that Section 17-B is enacted so as to provide some sustenance allowance to the worker in case of any wrongful dismissal or termination, and the Management unrighteously prolongs the litigation by initiating proceedings either before the High Court or the Supreme Court. If the order of reinstatement as ordered by the Tribunal were to be upheld by the Apex Court the consequences would have been entirely different, since in case of wrongful dismissal or retrenchment the employee would be entitled to get all the amounts as if he has been in service and consequently the other benefits flowing thereto would definitely accrue to his benefit. But the consequences would be entirely different in case the order of retrenchment or dismissal or termination passed by the Management were confirmed by the highest Court. In such a situation his dismissal, termination or retrenchment would reach the finality and accordingly the legal consequences would be that he would not be deemed to be in service after the date of retrenchment/termination or dismissal."
29. The two judgments of this Court (supra), also support my view that when once the proceedings preferred by the employer against any award ordering reinstatement culminated against the management, full benefit of award shall be given to the workman. In other words the award as modified by this Court, or if it is not modified, as passed by the Industrial Tribunal, shall have to be given full effect to and any benefit conferred thereunder cannot be taken away except by the appropriate Government u/s 17-A of the Act.
30. Points 1 and 2 are therefore answered in the negative against the petitioner and in favour of workman/ respondent.
31. In the result, for the above reasons I do not find any merit in the writ petition. The same is accordingly dismissed, but, in the circumstances, there shall be no order as to costs.
