Partly allowed

Amit Kumar v. Indian Airlines Ltd.

Bombay HC19 Dec 2005APP/990/2005

Case brief

AI extract

What is this about?

This appeal challenges an award of appropriate wages under Section 17B of the Industrial Disputes Act. The court held that where dismissal approval is denied, the employee is deemed in service. It defined 'wages' to include basic pay, allowances, and conveyance but excluded production/special allowances, fixing the payable amount at Rs.10,955.

What did the court decide?

Modified the single judge's order to direct payment of Rs.10,955 as basic and allowable wages from May 16, 2005, monthly during pendency, excluding production and special allowances.

Amit Kumar Vs Indian Airlines Ltd. — Pension and Retirement Benefits | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION
 APPEAL NO.990 OF 2005
 IN
 NOTICE OF MOTION NO.295 OF 2005
 IN
 WRIT PETITION NO.1696 OF 2005

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 Amit Kumar. ... Appellant
 (Orig. Respondent)
 V/s.

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 Indian Airlines Ltd. ... Respondent
 (Orig. Petitioner)

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 Mr.Mohan Bir Singh for appellant.

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 Mr.S.M.Dixit with Mr.Sudeep Dasgupta for
 respondent.

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 -----

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CORAM : H.L. GOKHALE &
J.P. DEVADHAR, JJ.

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DATED : 19th December 2005

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ORAL JUDGMENT : (Per H.L.Gokhale, J.)

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 1. Heard Mr.Singh in support of this Appeal.
 Mr.Dixit appears for the respondent.

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 2. This Appeal seeks to challenge the order
 dated 20th July 2005 passed by a learned Single
 Judge on Notice of Motion No.295 of 2005 taken out
 in Writ Petition No.1696 of 2005. The Motion was
 taken out for appropriate wages under Section 17B
 of the Industrial Disputes Act, 1947. The learned
 Single Judge has awarded an amount of Rs.4880/-
 only which was the basic wage of the appellant
 when he was removed from service. It is the case

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 of the appellant that this amount is much less
 than what ought to have been awarded and,
 therefore, the present Appeal has been filed.

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 3. Mr.Dixit, learned Counsel appearing for
 the respondent-Indian Airlines, has agreed on
 instructions that the Appeal be heard and disposed
 of finally at the admission stage itself.
 Therefore, it is heard finally at the admission
 stage.

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 4. The short facts leading to this Appeal are
 as follows:-

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 . The appellant was working as a senior
 Office Assistant. It was alleged that on 17th
 March 1996 while working at the Safdarjung
 Airport, New Delhi, he unauthorizedly opened the
 office for disposal of one jeep and six other
 vehicles. Since these vehicles were not in
 working condition, he sought to remove them with
 the help of the crane. A departmental enquiry was
 held. The appellant was held guilty of the
 charges for not maintaining integrity and devotion
 to duty as well as theft, fraud and dishonesty in
 connection with the property of the employer and
 was ordered to be removed on 24th June 2002.

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 5. Inasmuch as some disputes between the
 workman and the respondent-Indian Airlines were
 pending, the respondent applied for approval under
 Section 33(2)(b) of the Industrial Disputes Act.
 The Tribunal declined to grant approval,
 principally for three reasons viz. (i) that
 according to the Tribunal there were violation of
 principles of natural justice, (ii) the order was
 not justified on merits and (iii) that the amount
 which is required to be paid at the time of
 removal from service viz. one month’s wages as
 provided under the proviso to Section 33(2)(b) was
 not correctly paid in the sense he was paid
 Rs.195/- less.

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 6. This order of the National Industrial
 Tribunal was challenged by the respondent by
 filing a Writ Petition in this Court being Writ
 Petition No.1696 of 2005. That Petition was
 admitted by a learned Single Judge on 6th May 2005
 who granted stay of the impugned Award.

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 7. It is material to note that prior to
 filing this Petition in High Court, the respondent
 had filed an SLP to the Apex Court being Petition
 for Special Leave to Appeal (Civil) No.25277 of

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 2004. The Apex Court had granted stay of the

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 Award initially on 17th December 2004. However,
 subsequently the Petition was dismissed as
 withdrawn on 25th April 2005 with liberty to the
 respondent to approach the High Court under
 Article 226 / 227 of the Constitution. As stated
 above, a Petition was thereafter filed in this
 High Court and was admitted and stay was granted
 on 6th May 2005.

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 8. The appellant herein took out a Motion

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 being Notice of Motion No.295 of 2005 for grant of
 the appropriate wages under Section 17B of the
 Industrial Disputes Act. The Motion was heard by
 a learned Single Judge. From the order of the
 learned Single Judge it is seen that he referred
 to the judgments rendered by Calcutta, Gujarat and
 Andhra Pradesh High Courts and also that of a
 learned Single Judge of this Court. In Air India

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vs. P.K. Upadyaya & ors. reported in 1999 II

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CLR 276 a learned Single Judge of this Court has
 held that if the section is not applicable, the
 Court is still entitled to direct payment of
 appropriate wages. In the order impugned before
 us, the learned Judge noted that no affidavit in
 reply had been filed. He, therefore, directed the
 respondent to pay the amount of Rs.4880/- being

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 the basic wage from the date of the Motion i.e.
 from May 2005 and continue to pay that amount till
 the disposal of the Petition. The Appellant
 herein is aggrieved by this order and hence, this
 Appeal has been filed.

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 9. Mr.Mohan Bir Singh, learned Counsel
 appearing for the respondent, pointed out that
 Section 17B of the Industrial Disputes Act has
 been brought on to the statute basically to tide
 over the difficulties of the workmen who have
 succeeded in the Labour Court or the Tribunal and
 when the order in their favour is challenged and
 stayed either by the High Courts or the Supreme
 Court. He drew our attention to the judgment of

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 the Apex Court in Dena Bank vs. Kiritkumar T.

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Patel reported in 1998 1 CLR 191. The Apex Court

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 has authoritatively pronounced as to what is the
 connotation of Section 17B and has held that the
 words "full wages last drawn" must be given their
 plain and material meaning i.e. wages only at the
 rate last drawn. The Court has further held that

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 it will not be the wages at the rate at which the
 wages are being paid to the workmen who are
 actually working. Thus, in the instant case, the
 appellant under that judgment would be entitled to
 the wages which he was drawing at the time of his

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 removal on 24th of June 2002.

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 10. As far as the components of these wages
 are concerned in paragraph 23 the Apex Court laid
 down that one will have to refer to the definition
 of Section 2(rr) of the Industrial Disputes Act
 which reads as follows:-

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 " (rr) "wages" means all remuneration
 capable of being expressed in terms of
 money, which would, if the terms of
 employment, expressed or implied, were
 fulfilled, be payable to a workman in
 respect of his employment or of work done
 in such employment, and includes-

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 (i) such allowances (including dearness
 allowance) as the workman is for the time
 being entitled to;

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 (ii) the value of any house accommodation,
 or of supply of light, water, medical
 attendance or other amenity or of any
 service or of any concessional supply of
 foodgrains or other articles;

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 (iii) any travelling concession;

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 (iv) any commission payable on the

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 promotion of sales or business or both;

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 but does not include-

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 (a) any bonus;

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 (b) any contribution paid or payable by
 the employer to any pension fund or
 provident fund or for the benefit of the
 workman under any law for the time being
 in force;

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 (c) any gratuity payable on the
 termination of his service. "

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 The Court has laid down that these wages are to be
 paid as a sort of subsistence allowance and that
 being so, they are not refunded in the event the
 employer succeeds in the Writ Petition.

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 11. Mr.Singh has further submitted that the
 present case is one where the Tribunal has
 declined to grant approval. The consequences of
 such an order came to be authoritatively declared
 by the Apex Court in Jaipur Zila Sahakari Bhoomi

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Vikas Bank Ltd. vs. Ram Gopal Sharma & ors.
reported in (2002) 2 S.C.C. 244. The Apex Court
 has declared that non approval of the order of
 discharge or dismissal will mean that the employee
 continues to be in service as if the order of
 discharge or dismissal was never passed. In
 paragraph 14 thereof, the Court has observed as
 follows:-

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 ".... Consequence of it is that the
 employee is deemed to have continued in
 service entitling him to all the benefits
 available. This being the position there
 is no need of a separate or specific order

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 for his reinstatement. .... "

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 Mr.Singh has pointed out that this view of the
 Constitutional Bench of the Apex Court has been
 reiterated in Indian Telephone Industries Ltd. &
anr. vs. Prabhakar H. Manjuare & anr. reported
in (2003) 1 S.C.C. 320. The Court has again
 reiterated that the refusal to approve an order of
 dismissal will make the dismissal order void and
 inoperative.

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 12. Based on these submissions, Mr.Singh has
 drawn our attention to the affidavit in lieu of

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 examination in chief on behalf of the respondent
 filed in the National Industrial Tribunal. The
 same was affirmed by one Ramlal Taneja,
 officiating Manager (Finance) on 28th April 2004.
 This affidavit gave the details of last drawn
 wages of the appellant. They are as follows:-

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 Basic Rs.4,880/-
 VDA Rs.4,011/-
 Product. Alc. Rs. 635/-
 C.C.A. Rs. 100/-
 H.R.A. Rs.1,464/-
 Special Alc.Qty.Pay Rs. 150/-
 Conveyance Alc. Rs. 150/-
 Reim. of kit Maint.Alc. Rs. 265/-
 Educational Allowance Rs. 350/-
 Computer Allowance Rs. 225/-
 -------------
 Rs.12,230/-
 =============

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 Mr.Singh, therefore, submits that in view of this
 law laid down by the Apex Court if the order of
 removal passed against the Appellant is void and
 inoperative, it means that the appellant is to be
 reinstated. Inasmuch as that order has been

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 challenged, the Petition has been admitted and the
 order has been stayed, the consequences under
 Section 17B ought to follow. He submits that
 consequently this amount of Rs.12,230/- be
 directed to be paid to the last drawn wage
 inasmuch as the appellant is unemployed and he has
 stated so on an affidavit.

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 13. Mr.Dixit, learned Counsel appearing for
 the respondent, submitted that Section 17B deals
 with the situation where the Labour Court,
 Tribunal or National Tribunal by its award directs
 reinstatement of a workman. He further submitted
 that the present case is one where the approval
 has been declined by the National Industrial
 Tribunal when the same was sought by the
 respondent herein. In his submission, these two
 situations are distinct. It is not possible to
 accept this submission inasmuch as the
 consequences of not granting approval is that the
 employee concerned will have to be reinstated.
 That is contemplated under Section 17B and the
 consequences of not granting approval has been
 clearly laid down by the Apex Court in Jaipur Zila
Sahakari Bhoomi Vikas Bank Ltd.’s case which has

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 been reiterated by it in Indian Telephone
Industries Ltd.’s case (both supra).

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 14. Mr.Dixit submitted that the respondent had
 first approached the Apex Court by filing the SLP
 and the stay was granted therein which was an
 unconditional one and subsequently the SLP was
 withdrawn to file a Petition which is pending
 before the learned Single Judge. He further
 submitted that the Apex Court has not stated
 anything about the wages to be paid under Section
 17B. In our view, the occasion to award the wages
 under Section 17B arises only when a Petition to
 challenge the award granted by the Labour Court or
 the Tribunal is admitted by High Court or the
 Supreme Court and the stay thereof is granted
 leading a workman to point out to the Court as to
 what are his difficulties and to apply for his
 last drawn wages. In the present case, an interim
 stay was granted by the Apex Court and
 subsequently it has permitted the respondent to
 file a Petition before the High Court and,
 therefore, the SLP was withdrawn. The Petition to
 challenge the Award of the Tribunal came to be
 admitted by the Single Judge of this Court only on
 6th May 2005 when he granted stay pending the
 disposal of the Petition. It is at that stage
 that the appellant herein could have moved to
 apply for the last drawn wages under Section 17B.

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 This was applied by taking out the Motion.
 Therefore, the absence of any specific observation
 by the Apex Court while granting the interim stay
 cannot take away the right of the appellant to
 move for his wages under Section 17B of the
 Industrial Disputes Act.

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 15. Mr.Singh has drawn our attention to the
 various items which give a break-up of the wages
 which were paid to the appellant. Having seen the
 various items, in our view, the appellant would
 not be entitled to claim the production allowance
 which will be claimable when a workman
 participates in production process. Similarly the
 allowance for reimbursement of kit maintenance
 allowance and computer allowance could not be paid
 under this enabling provision. Mr.Singh has not
 been able to explain as to what is the special
 allowance / Qty pay.

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 16. In the circumstances, we hold that the
 appellant would be entitled to receive the wages
 under the caption Basic Pay, VDA, City
 Compensatory Allowance, House Rent Allowance,
 Conveyance Allowance and Educational Allowance.
 Basic pay has been specifically mentioned under
 the first part of Section 2(rr) of the Industrial

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 Disputes Act. Dearness Allowance has been
 mentioned under Section 2(rr)(i). City
 compensatory allowance and Educational allowance
 will come under the phrase "such allowances as the
 workman is for the time being entitled to" under
 Section 2(rr)(i). HRA will be referable to
 Section 2(rr)(ii) and conveyance allowance will be
 referable to Section 2(rr)(iii). When we
 calculate the amount against these items, the
 total will come to Rs.10,955/-. In our view, the
 appellant would be entitled to receive this amount
 as the last drawn wages under Section 17B of the
 Industrial Disputes Act from the date on which he
 took out the Motion for seeking the reliefs i.e.
 from 16th May 2005.

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 17. Accordingly, we modify the order dated
 20th July 2005 passed by the learned Single Judge
 and thereby partly allow this Appeal and direct
 the respondent to pay wages as above from 16th May
 2005 and from month to month during the pendency
 of the Writ Petition. The respondent-Indian
 Airlines is expected to clear the arrears of the
 appellant after deducting the amount that it has
 already paid under the order of the learned Single
 Judge.

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 18. The other prayer of the appellant is for

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 medical benefits. He informs that his wife is
 working as a Secretary in the Indian Council of
 Medical Research. His submission is that if he is
 to be denied the medical facilities, those
 facilities could be claimed by his wife which she
 was not otherwise claiming since both of them
 could not get these facilities from the Central
 Government at the same time. He, therefore, makes
 a request that a letter may please be given to him
 that he is not getting the medical facilities.
 Mr.Dixit, on instructions, states that the
 appellant will be issued the necessary letter
 within two weeks. The arrears will be cleared
 within eight weeks.

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 19. Appeal is partly allowed in the aforesaid
 terms. However, there will be no order as to
 costs.

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(H.L. GOKHALE, J.)

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(J.P. DEVADHAR, J.)

Amit Kumar v. Indian Airlines Ltd.

Case brief

What is this about?

What did the court decide?

Amit Kumar v. Indian Airlines Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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