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1998 Supreme(Cal) 32
High Court Of Calcutta
D. P. Kundu
BHARAT PETROLEUM CORPORATION LTD. - Appellant
Versus
UNION OF INDIA - Respondent
W. P. 10852 (W) Of 1997
Decided On : 01/27/1998
A.C.CHAKRABORTY, D.BHATTACHARJI, GOPAL CHAKRABORTY, M.MUKHERJI, M.PODDAR, PARTHA SENGUPTA, S.Ghosh Dastidar, S.K.DEB, T.K.GUPTA
The liability of an employer to pay full wages to a workman during the pendency of proceedings in a higher court under Section 17-B of the Industrial Disputes Act, 1947, is not affected by the fact that the workman has crossed the date of retirement during the pendency of the dispute.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 17-B - WORKMEN REINSTATEMENT - PAYMENT OF FULL WAGES DURING PENDENCY OF PROCEEDINGS IN HIGHER COURTS - REQUIREMENTS FOR APPLICATION - INTERPRETATION OF "NOT EMPLOYED IN ANY ESTABLISHMENT" - APPLICABILITY TO WORKERS WHO RETIRED DURING PENDENCY OF DISPUTE - LIABILITY OF EMPLOYER - SCOPE OF COURT'S POWER TO LEGISLATE.
Fact of the Case:
Eight workmen were dismissed from service by BPCL, Budge Budge Installation. The Central Government referred the industrial dispute to the Central Government Industrial Tribunal for adjudication. The Tribunal directed the reinstatement of the workmen and the employer challenged the award in the High Court. The workmen filed an application under Section 17-B of the Industrial Disputes Act, 1947, seeking payment of full wages during the pendency of the proceedings in the High Court.
Finding of the Court:
The Court held that all three necessary ingredients for the application of Section 17-B were satisfied: (i) the Labour Court had directed reinstatement of the workmen, (ii) the employer had preferred proceedings against the award in the High Court, and (iii) the workmen had not been employed in any establishment during the period of pendency of the proceedings. The Court further held that the fact that two of the workmen had crossed their date of retirement during the pendency of the dispute did not preclude them from receiving payment under Section 17-B.
Issues: 1. Whether the three necessary ingredients for the application of Section 17-B of the Industrial Disputes Act, 1947, were satisfied in the present case. 2. Whether the fact that two of the workmen had crossed their date of retirement during the pendency of the dispute precluded them from receiving payment under Section 17-B.
Ratio Decidendi: 1. The Court interpreted the words "not employed in any establishment" in Section 17-B to mean that the workman must not have been employed in any establishment during the period of pendency of the proceedings in the High Court or Supreme Court. 2. The Court held that the fact that two of the workmen had crossed their date of retirement during the pendency of the dispute did not preclude them from receiving payment under Section 17-B, as the liability of the employer under the section did not depend on the prayer made by the workmen in their application.
Final Decision: The Court directed the employer to pay all the workmen full wages last drawn by them, inclusive of any maintenance allowance admissible to them under any rule, during the period of pendency of the writ proceeding in the High Court.
( 1 ) THIS is an application under Section 17-B, of the Industrial Disputes Act, 1947 supported by an affidavit affirmed on November 12, 1997.
( 2 ) THE Central Government was of the opinion that industrial dispute existed between the employers in relation to the management of Budge Budge Installation of M/s. B. P. C. L. and their workmen in respect of the matters specified in the Schedule of the Or. No.-30011/29/1987-D. III (B) dated February 24, 1988. The Schedule annexed to the said Order reads as follows:"whether the action of the management of M/s. BPCL, Budge Budge Installation in dismissing the following 8 workmen from services with effect from January 24, 1985 is justified. If not, what relief the concerned workmen are entitled to?"1. Prabir Mukherjee, 2. Sudarsan Mishra,3. Anil Samaddar, 4. Shaikh Ramjan, 5. Panch Kari Adak, 6. Sudhansu Roy, 7. Mahesh Mandal, 8. Ashok Kumar Dey'.
( 3 ) IT appears from the aforesaid Order dated February 24, 1988 that the Central Government, in exercise of powers conferred by Clause (d) of Sub-section (1) and Sub-section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 referred, the dispute mentioned hereinabove for adjudication to the Central Government Industrial Tribunal at Calcutta.
( 4 ) THE Tribunal passed an award which has been published in the Gazette of India on April 5, 1997. The Tribunal held, inter alia, as follows:"in the result, I hold that the action of the management of BPCL, Budge Budge Installation in dismissing the workmen namely Shri (1) Prabir Mukherjee, (2) Sudarsan Mishra, (3) Anil Samaddar, (4) Shaikh Ramjan, (5) Panch Kari Adak, (6) Sudhansu Roy, (7) Mahesh Mandal and (8) Ashok Kumar Dey from services with effect from January 24, 1985 is not justified. As a consequence of which the workmen are re-instated into their post, notwithstanding the order of dismissal and shall be entitled to all their back wages and benefits as would have been available to them, had they continued in service. "
( 5 ) BEING aggrieved by and dissatisfied with above referred award the employer has initiated a writ proceeding against such award in this High Court. It is evident from the above referred award that the Tribunal by its award directed reinstatement of 8 workmen.
( 6 ) SECTION 17-B of the Industrial Disputes Act, 1947 reads as follows:" 17-B. Payment of full 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. "
( 7 ) THE three necessary ingredients for the application of Section 17- B of the Industrial Disputes Act, 1947 are (i) the Labour Court should have directed reinstatement of the workman, (ii) the employer should have preferred proceedings against such award in the High Court or in the Supreme Court, (iii) that the workman should not have been employed in any establishment during such period. (Bharat Singh v. Management of New Delhi Tuberculosis Centre (1986-II-LLJ-217) (SC ).
( 8 ) SUPREME Court in Bharat Singh's case (supra) observed that instances are legion where workmen have been dragged by the employers in endle
