In a notice of motion seeking full wages last drawn under Section 17B of the Industrial Disputes Act, the court held the petitioner is not liable because the workman was not under a stay order restraining him from joining duty and failed to enforce the reinstatement.
Disposed of; no order passed for payment of back wages.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.326 OF 2008
In
WRIT PETITION NO.330 OF 2006
Anand Nursing Home : Petitioner
V/s.
Shri Mahadev Gaikwad : Respondent
Mr.Tejas Deshpande for the petitioner.
Mr.Dilip M. Mandvia for the respondent.
CORAM : S.A. BOBDE, J.
DATE : SEPTEMBER 24, 2008.
ORAL ORDER:
1. This is a Notice of Motion taken out by the
respondent-workman under section 17B of the Industrial
Disputes Act, 1947, hereinafter referred to as the "Act",
for full wages last drawn by him or for a direction to
deposit the back wages.
2. The respondent was directed to be reinstated by the
Labour Court along with back wages. The petitioner filed
this Writ Petition which is pending since 7.10.2005. On
22.2.2006 the employer seems to have made a statement
before this Court that it would reinstate the respondent.
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Apparently, therefore, this Court granted stay of back
wages. There is some dispute whether thereafter employer
allowed the respondent to join work or not. However, it
is clear that the respondent workman did not take any
steps to enforce the order of reinstatement. Since the
respondent was not on duty and continued to remain absent,
the petitioner issued a charge-sheet dated 16.2.2007.
After holding an inquiry, the petitioner has dismissed the
workman which is the subject-matter of an independent
proceedings.
3. Now in this Notice of Motion, Mr.Mandvia, the learned
counsel for the respondent, submitted that by virtue of
section 17-B, the workman is entitled to full wages last
drawn by him, if any proceeding is pending in this Court
or the Supreme Court. According to the learned counsel,
it does not matter whether the workman has been reinstated
and can, therefore, join his duty.
4. Mr.Deshpande, the learned counsel for the petitioner,
however, submitted that the workman is not entitled to
apply under section 17B if there is no stay of
reinstatement and, if in fact, the employer has on its
part reinstated the workman. Section 17B of the Act reads
as follows:-
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"17B. 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
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be."
The section imposes a liability on the employer to pay
full wages last drawn by the workman during the pendency
of proceedings in the High Court or the Supreme Court in
which an order of reinstatement has been challenged. If
the workman is not entitled to reinstatement according to
the Labour Court, the law does not give him any
entitlement to any wages. The question, however, is
whether the workman’s entitlement to full wages exists
even where there is no stay of reinstatement and he is
entitled to join duty. The answer appears to be in the
negative because the section is intended to provide full
wages last drawn to the workman because he is out of
employment. There would obviously be no entitlement for
wages without work, particularly when the workman is
entitled to work and does not enforce the order of
reinstatement. As discussed earlier, section 17-B is
intended to provide wages to a workman who is not
employed. In the present case, it appears that the
workman has not taken up the offer of reinstatement and
has not in any case enforced the order of reinstatement.
In this view of the matter, I am of view that the workman
is not entitled to invoke section 17B for full wages last
drawn by him when there is no stay of reinstatement and
the workman can join his duties.
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5. Mr.Deshpande, the learned counsel for the petitioner,
relied on the judgement of a Division Bench of this Court
in Dhrangadhra Trading Co. (Pvt.) Ltd. v. S.Y.
Vichare & Ors. (1998 III L.L.J. (Supp.) 863 where the
Division Bench observed as follows:-
"The provisions of Section 17-B come into
operation only when the workman is not in
fact reinstated. If the workman is
reinstated then there is no question of any
order being passed under Section 17-B. In
facts of the case the workman was
reinstated on March 1, 1996."
I am in respectful agreement with the observations of the
Division Bench and would add that no liability could be
imposed if the employer has reinstated the workman but
the workman has not joined his duties or had not enforced
the order of reinstatement.
6. In Regional Authority, Dena Bank & Anr. v.
Ghanshyam (2001 (2) CLR 901), the Supreme Court dealing
with section 17B of the Act, observed that when an
employer does not reinstate the workman, he is entitled
to either enforce the award or be content with receiving
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full wages last drawn in the following words:-
"The Statement of Objects and Reasons for
inserting the said provision indicates that
when Labour Courts pass awards of
reinstatement, they are often contested by
employers in the Supreme Court and High
Courts. To mitigate the hardship that
would be caused due to delay in
implementation of the award, it was
proposed to provide for payment of wages
last drawn by the workman concerned from
the date of the award till the dispute
between the parties is finally decided in
the High Courts or the Supreme Court. It
follows that in the event of an employer
not reinstating the workman and not seeking
any interim relief in respect of the award
directing reinstatement of the workman or
in a case where the court is not inclined
to stay such award in toto the workman has
two options either to initiate proceeding
to enforce the award or be content with
receiving the full wages last drawn by him
without prejudice to the result of the
proceedings preferred by the employer
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against the award till he is reinstated or
proceedings are terminated in his favour,
whichever is earlier."
The observations cover the aspect of section 17B in
issue, in the present Motion. Moreover, it would not be
appropriate to direct the petitioner to deposit back
wages at this stage since no such request was made when
the Court granted stay of back wages.
7. In this view of the matter, the Notice of Motion
under section 17B of the Act is disposed of. There shall
be no order as to costs.
S.A. BOBDE, J.
3 issues framed by the court
Whether a workman is entitled to claim full wages last drawn under Section 17B of the Industrial Disputes Act when he was not restrained by a stay order from joining duty after reinstatement.
Whether the liability to pay full wages under Section 17B ceases if the workman refuses to join duty despite being reinstated but not challenged in higher courts.
Whether the petitioner must deposit back wages when the workman has not enforced the order of reinstatement.
Colour shows how this judgement treated each authority
1 provisions across 1 enactments
Anand Nursing Home
Shri Mahadev Gaikwad
S.A. Bobde
As recorded by the court registry
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