1987 Supreme(Bom) 61

IN THE HIGH COURT OF BOMBAY
C.S. Dharmadhikari A.A. Desai, JJ.
Elpro International Limited .... Petitioner.
Versus
K.B. Joshi others.... Respondents.
Writ Petition No. 4078 of 1985, decided on 6-2-1987.
Advocates appeared :
B.N. Shrikrishna with A.V. Lokhande, for petitioner.
P.D. Kamerkar, for respondent No. 1.
R.V. Desai, for Union of India, respondent No. 3.

Headnote:Articles 226 and 227-Interfereoce by High Court-Finding recorded by Labour Court not perverse so as to warrant an interference in extraordinary jurisdiction of High Court.

       If this is so then it cannot be said that the finding of fact recorded by the Labour Court is perverse so as to warrant an interference in the extra ordinary jurisdiction of the High Court under Articles 226 and 227 of the Constitution. Once this finding is accepted then it will have to be held that the termination of the services of the respondent-workman was illegal since the statutory provisions of Section 25-f of the Industrial Disputes Act, 1947 were not followed. This will make the termination ab initio void.

       Section 17-B read with Constitution of India Article 14-Section 17-B does not violate Article 14 as it is neither vague nor arbitrary.

       If the Section 17-B is read in the background in which it was introduced, then a conclusion is inevitable that it is wholly reasonable and has been enacted to achieve the avowed object of the protecting employee from the bards hip resultant from the unemployment. Such a provision has been made so as to enable the employee to survive during the pendency of the litigation and reap the fruits of the order of reinstatement. These wages are to be paid if certain conditions are satisfied. Section 17-B read with proviso in clearest terms lays down as to when workman is entitled to get these wages. Therefore, it cannot be said that the said provision is either vague or arbitrary. The amount paid towards subsistence allowance is neither refundable nor recoverable irrespective of the result of the enquiry. The reason is obvious. The allowance contemplated to be paid under be said section is nothing but a subsistence allowance. Similarly what is to be paid under Section 17-B is also in the nature of subsistence allowance. The expression "inclusive of any maintenance allowance admissible to him under any rule "is indicative of legislative intend. The wages payable during the pendency of the proceedings in the High Courts or Supreme Court are at the rate of the wages last drawn by him. The proviso further lays down were it is proved to the satisfaction of the High Court or the Supreme Court that such workman 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 thereof as the case may be. The payment of wages will be obviously on month to month basis, or on the basis of the practice followed by the concerned Industry or Factory and, therefore, on that ground, it cannot be said that the provision is in any way vague or arbitrary and, therefore the challenge based on that count also must fail.

       Section 17-B - Constitution of India Articles 226 and 136 - Section 17-B guaranting to the workmen the payment of wages during the pendency of proceeding before the High Court or Supreme Court-Not to be held as void on the ground that paramount of High Court or Supreme Court are encroached upon.

       From the bare reading of Section 17-B it is clear that it does not even remotely refer to the power of the High Courts under Articles 136 and 226, much less of restricting the said powers. This section only guarantees to the workman the payment of wages by the employer during the pendency of the proceeding before the High Court or the Supreme Court, and that too subject too subject to the conditions laid down by the said section and the proviso, irrespective of the result of the proceedings. It also imposes an obligation upon the workman concerned to file on affidavit before the Court stating concerned to file on affidavit before the Court stating that he has not been employed in any establishment during the pendency of the proceedings.

       It also observes the employer of his obligation to pay such wages, if he is able to prove to the satisfaction of the Court that the workman had been otherwise employed and bad been receiving adequate remuneration. Section 17-B operates within a limited sphere. Its operation is subject to the conditions laid dawn by the section itself. Section no. where lays dawn that in extreme cases where it is demonstrated that the award passed is either without jurisdiction or is otherwise a nullity or grossly erroneous or perverse, the High Court or the Supreme Court is debarred from exercising its powers under Articles 226 and 136 of the Constitution. Therefore, it is not possible to accept the contention that Section 17-B is void as it encroaches upon or overrides the powers of the High Court or the Supreme Court of India under Articles 226 and 136 of the Constitution of India. The powers of the High Courts or the Supreme Court under Articles 226 and 136 of the Constitution are paramount and Section 17-B does not interfere nor restrict the said constitutional powers.