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1994 Supreme(Bom) 348
IN THE HIGH COURT OF BOMBAY
M.L. Pendse N.D. Vyas, JJ.
M/s Carona Sahu Co. Ltd..... Appellant.
Versus
Abdul Karim Munafkhan and another.... Respondents.
Appeal No. 808 of 1993 in Writ Petition No. 976 of 1993, decided on 21-7-
1994.
Advocates appeared :
M.N. Bhatkal with P.L. Naik, for appellants.
N.M. Ganguli, for respondent No. 1.
Headnote:Section 10 (1) (c) and 17-B-Proviso-Scope.
The section was introduced by Industrial Disputes (Amendment) Act, 1982, and the statement and objects for introduction of the section sets out that the need was felt to provide for payment of wages last drawn by the workman in view of the delay in implementation of the award caused due to award being challenged before the High Court or the Supreme Court by the employer and which delay causes hardship to the workman. The plain reading of the section makes it clear that the right to secure full wages is conferred upon the workman in cases were (a) award directs reinstatement of any workman; (b) employer prefers proceedings against such award in High Court or the Supreme Court and (c) the workman had not been employed in any establishment during the pendency of the proceedings in High Court or the Supreme Court. It is not in dispute in the present case that the award directs reinstatement of respondent No. J and the appellant Company had preferred petition in this Court to challenge the legality of the award and the respondent No. I had not been employed in any establishment during the pendency of the writ petition. Shri Bhatkal therefore, very rightly did not dispute that the workman is entitled to the benefit under Section 17-B of the Act. The only dispute is in respect of quantum of wages payable to the workman during the pendency of the proceedings and to determine that question, it is necessary to ascertain the exact import of the expression "full wages last drawn." As mentioned hereinabove, the wages drawn by the workman on the date of dismissal were Rs. 1,024.23. It is not in dispute that in case the workman had continued in service till the date of the award, then the workman would have been entitled to draw the wages at the rate of Rs. 2,551.15 p.m. The sole submission urged by Shri Bhatkal is that the expression wages last drawn connotes that the workman is entitled to the payment of those wages which were drawn by him at the time of dismissal from services. it is not possible to accede to the submission. The Parliament had introduced Section 17-B of the Act with the object that the workman is not deprived of wages which he is entitled to draw in case the award directing reinstatement is implemented. The workman is deprived of the wages payable in pursuance of the award only because of pendency of the proceedings. The award directing reinstaiement and continuity of service makes it clear that the dismissal of the employee was illegal and in the eyes of law the workman continued in service and consequently the workman was entitled also to payment of back wages. The determination of the back wages is only on the basis of what the workman would have drawn during the period eommencing feom the date of dismissal and till the date of reinstatement and the quantum of back wages includes all the permissible increases during that interregum. The expression "full wage last drawn" in our judgment means the full wages which the workman was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings. The submission of Shri Bhatkal, that the expression "last drawn" suggests that the workman is entitled only to that amount which was received by him at the time of dismissal, cannot be accepted. Though the word "drawn" connotes past tense, it is obvious that the proper construction of the section is that the workman is entitled to the full wages which the workman would have been entitled to draw but for the pendency of the proceedings ill Court.
The proviso to Section 17-B sets out that in case the workman had been employed and had been receiving adequate remuneration during the pendency of the proceedings, then the Court can order that no wages will be payable or only part of the wage- will be payable. The use of the, expression "adequate remuneration" in the proviso while the use of the expression "full wages last drawn" in the principal body of the section indicates that the legislature contemplated payment of full wages as if employed in cases where the workman had not been employed in any establishment it cannot even be suggested that the amount of Rs. 1,324.23 was the full wages when the workman, in case of reinstatement is entitled to draw a sum of Rs. 2,588.15. In these circumstances, the Single Judge was perfectly justified in directing the appellant Company to pay a sum of, Rs. 2,588.15 to the respondent No. 1 during the pendency of the proceedings.
Rule 66 --Constitution of India, Article 226-Scope.
The reading of this Rule 66 postulates that the Government employee on completion of 20 years of qualifying service can give 3 months notice in writing to the appointing authority to retire him from service. The appointing authority can refuse permission for retirement before the expiry of the period specified in the notice. If it does not refuse permission, the retirement shall become effective from the date of expiry of 3 months period. In the instant case, the appointing authority did not reject the petitioners request for voluntary retirement. The petitioner has submitted a notice as contemplated under Rule 66 and it will be deemed to have become effective after the expiry of the period of notice. The appointing authority of the petitioner has erred in refusing the request of the petitioner for voluntary retirement.
The letters dated September 12, 1989 and September 9, 1989 have to be read together. In his letter dated September 9, 1989 the petitioner served 3 months notice as contemplated under the Rules. Three months notice has only to be given when an employee seeks voluntary retirement. Under the letter dated September 9, 1989, the three months period will only expire on December 9, 1989 and it was for this reason that he had stated in the letter dated September 9, 1989 that his request for voluntary retirement will become effective from December 12, 1989. In his letter dated September 12, 1989, the petitioner again mentions that he be relieved from service from December 12, 1989. This obviously has a reference to his letter dated September 9, 1989. In his letter dated September 12, 1989, the petitioner has used Marathi words "Seva Mukti". The Marathi words "Seva Mukti Suchana" mean notice of discharge. (See Govt. of Maharashtra Publication -Prashasan Vakprayog page 306). The meaning in Marathi of the word discharge is mukta Karane (as from service) (See Govt. of Maharashtra publication-Shashan Vyavahar Kosha page 171) The Sanstha is in error in construing the contents of the letter dated September 12, 1989 as a resignation. A plain reading of this letter will not even remotely suggest that the petitioner had resigned from service. The Sanstha did not take any action on the petitioners letter dated September 9, 1989. The letter in unequivocal terms suggests that the petitioner had served 3 months notice of voluntary retirement for availing the benefits of Government Resolution No. PEN/1078/1005(2605) Secondary Edition 6, dated 9th September, 1988.
2. The respondent No. 1 sought reinstatement and after consideration of failure report by Conciliation Officer the Deputy Commissioner of Labour (C), Bombay in exercise of powers under section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act) made reference to the Presiding Officer, 7th Labour Court, Bombay for adjudication of dispute raised by respondent No. 1. The respondent No. 1 sought reinstatement with continuity of service and full back wages with effect from the date of dismissal i.e. April 23, 1983. The reference was resisted by the Company inter alia claiming that the enquiry held against the workman was legal, fair and proper and the punishment awarded was proportionate to the misconduct committed. The Labour Court by order dated November 3, 1988 held that the enquiry against the workman was legal, fair and proper. The Labour Court subsequently held by order dated February 4, 1993 that the punishment imposed upon the workman was disproportionate and was required to be modified in exercise of powers under section 11-A of the Act. The Labour Court directed the appellant Company to reinstate the workman with continuity of service and directed payment of back wages to the extent of 75%.
The appellant Company preferred Writ Petition No. 976 of 1993 under Article 226 of the Constitution on the Original Side of this Court. The petition was presented on April 21, 1993 and was duly admitted. The appellant Company secured interim relief of stay of operation of the award directing reinstatement with 75% back wages. The ad-interim relief came for confirmation before the learned Single Judge but prior to that date, on behalf of the workman application was filed for payment of full wages pending the writ petition, as prescribed under section 17-B of the Act. It was not disputed on behalf of the appellant Company that the workman is entitled to relief under section 17-B of the Act but the dispute arose as to what should be the quantum of wages payable to the workman during the pendency of writ petition in this Court. It was claimed on behalf of the appellants that on April 23, 1983 when the workman was removed from services, the wages drawn by the workman were Rs. 1,024.53 and that should be the amount payable during the pendency of the proceedings. On the other hand, it was claimed on behalf of the workman that the entitlement of wages should be determined with reference to the date of the award and in case the workman would have continued in service, then the wages payable on the date of the award were Rs. 2,558.15. The learned Single Judge by impugned judgment dated August 27, 1993 held that the appellant Company is liable to pay amount of Rs. 2,558.15 p.m. to the respondent No. 1 during the pendency of the petition. The order of the learned Single Judge is under challenge.
3. Shri Bhatkal, learned Counsel appearing on behalf of the appellant Company, submitted that the trial Judge was in error in holding that the workman is entitled to the wages which were payable on the date of the award. It was submitted that the plain reading of the provisions of
