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High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE S.J. VAZIFDAR
Kirloskar Pneumatic Kamgar Sangh
Versus
Kirloskar Pneumatic Company Limited
CIVIL APPLICATION NO.75 OF 2010 IN WRIT PETITION NO.1399 OF 2008 WITH WRIT PETITION NO.2613 OF 2008
Decided on : 12-03-2010
The Division Bench in Bombay Films Laboratories Ltd., observed that a plain reading of the provision of Section 17-B made this position clear. Irrespective of the consequences, I am bound by the judgment. I find it necessary to note however, that although this appears at first blush to prejudice the workman it in fact does not. The mere filing of a writ petition against an award does not operate as a stay of its implementation. This can only be by an order of the Court. To hold otherwise would entitle an employee to obtain a stay against reinstatement by paying only the amounts under Section 17-B merely by filing a writ petition. The petition could remain on the file of the Court for a considerable length of time for innumerable reasons such as for removal of objections and applications regarding such objections without it even being served on the workman. The workman would in such cases, learn about the filing of the writ petition only when he seeks to enforce the award. This would be highly prejudicial to the workman for no fault of his.
The logical sequiter then is that the petitioner/employer is bound and liable to pay the full wages as if the respondent/ workman had been reinstated from the date of the award upto the date of the stay. It can hardly be suggested otherwise with any seriousness. A view to the contrary would entitle an employee to pay the workman nothing for the period from the date of the award to the date of the order staying the operation thereof. As I have indicated earlier, this period can be considerably prolonged by a petitioner by means only too well known to anyone with any experience of the Court’s procedure such as by filing the petition after considerable delay and/or keeping the same under objections. Service of proceedings itself can take a considerably long time.
In the present case, the petitioner is bound and liable to comply with the award and pay the full wages of each of the said workmen from the date of the award i.e. 13th December, 2007 till the date of the stay order dated 21st January, 2009. The petitioner shall do so on or before 3rd of May, 2010, failing which, it would be open to the respondents to adopt appropriate proceedings including for contempt.
It is difficult to accept the submission. There is nothing unusual about the facts stated by them. It is more than just probable that these facts apply to each of them. I find nothing unusual about the fact that many of their wives do household work and earn a meagre living thereby. Nor do I find anything unusual about the fact that many of them have a share in agricultural property. These are workers who come from the rural area to this city for jobs. They retain their interest along with the other members of the family in agricultural plots. There is nothing unusual or unnatural about the same. Thus, merely because some of the facts pertaining to some of these workmen are common, it does not indicate that their affidavits are false.
The entire approach on the part of the petitioner has been to sit back, produce no evidence and make no effort to establish that these workers have been in gainful self employment and to rest content by merely trying to pick holes in their affidavits.
In the circumstances, the Civil Application is allowed as prayed in respect of each of the workmen. The petitioner shall pay costs fixed at Rs. 2,000/- to each of the workmen.
The Respondent-Union has filed the Civil Application under Section 17-B of the Industrial Disputes Act, 1947 (ID Act) in respect of six workmen.
2.The Petitioner terminated the services of the workmen on 28th January, 2002, by retrenching them. The Respondent-Union raised a Reference before the Industrial Tribunal at Pune. The Industrial Tribunal, by an Award dated 13th December, 2007, allowed the Reference and directed the Petitioner to reinstate the members of the union with continuity of service, but without back wages.
3.The above Writ Petition was filed on 16th February, 2008. By an order dated 3rd March, 2008, Rule was issued and Rule on interim relief was made returnable after two weeks. By an order dated 21st January, 2009, the award was stayed pending the hearing of the Writ Petition.
4.It is in these circumstances that the Union has filed the above Civil Application under Section 17-B of the Industrial Disputes Act, 1947, in respect of six workers, each of whom has filed an affidavit-in-support thereof. The application of each workman would have to be considered separately on merits. It is necessary, however, to preface a consideration thereof by dealing with the questions of law raised by Mr. J. P. Cama, the learned senior counsel appearing on behalf of the Petitioner i.e. the Respondent to the Civil Application.
5.Section 17-B reads thus :
"17-B. Payment of full back wages to workman pending proceedings in higher courts. 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 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, as the case may be."
6.Mr. Cama firstly submitted that in support of his application under Section 17-B, the employee must aver in the original/first affidavit in support of his application not only that he has not been, nor is presently, gainfully employed but that he had sought employment, but did not get any employment. He submitted that the employee must in this initial affidavit itself furnish particulars of where he sought employment and how he had managed to survive during the period prior to the date of the application. Mr. Cama further submitted that bald averments to this effect are not sufficient and facts necessary to substantiate the same must also be pleaded.
7.A plain reading of Section 17-B militates against Mr. Cama's submission. The section makes it obligatory on the employer to pay the workman the said wages " ..... 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....". Thus the affidavit merely requires an averment "to that effect" meaning thereby to the effect that he "had not been employed in any establishment during such period". The section requires nothing more. To accept Mr. Cama's submission would be adding to the words of and the requirements stipulated by the Legislature which is impermissible.
8.I am supported in this view by the judgment of a Division Bench of this Court in Oriental Containers Ltd. vs. Engineering Workers Association 1996 (3) Bom.C.R. 488, where it was held :
"17. Now we deal with Notice of Motion No.208 of 1995 in Writ Petition No.2473 of 1994 taken
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