7. Kamala Nehru Memorial Hospital v. Vinod Kumar, (2006) 1 SCC 498
(Paras 16, 17)
8. Hindustan Zinc Ltd. v. Industrial Tribunal, (2001) 10 SCC 211
(Para 19)
The Order of the Court was delivered by
Dipak Misra, J.:— In this appeal preferred under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 the appellant, Krishi Upaj Mandi Samiti Bada Malhara, Chhatarpur, has called in question the legal validity of the order dated 19-6-2007 passed in Writ Petition No. 2600/2007.
2. The facts which are essential to be stated are that the respondent No. 1 was appointed on daily wages on 1-9-1998 as Sahayak Up-Nirikshak and was paid the salary at the rate of Rs. 2163/-. His services were terminated by order dated 28-12-1999. Accordingly, he approached the Labour Court and submitted his statement of claim which was denied by the appellant stating that his services were not satisfactory and his employment was casual in nature for a particular period of time and, therefore, his termination was in accordance with the terms of appointment. It averred that when the services of the respondent No. 1 were discontinued a writ petition was filed before this Court which was disposed of with the direction to consider the case of the respondent No. 1 as per the guidelines contained in circulars dated 14-2-2000 and 26-2-2000 as also in order passed in W.P No. 842/2000. The case of the respondent No. 1 was considered by the Enquiry Committee which did not found him suitable for continuing in service and, therefore, the present case came to be filed before the Labour Court. As pleaded, the Labour Commissioner, respondent No. 2 did not take note of the fact that the respondent No. 1 was a daily waged employee and without application of mind made a reference to the Labour Court. The Labour Court passed an award dated 20-6-2006 directing the appellant to reinstate the respondent No. 1.
3. Feeling aggrieved by the aforesaid award the appellant filed a Writ Petition No. 2600/2007 and prayed for quashing of the award dated 20-6-2006. The respondent No. 1 in the said writ petition filed an application under section 17-B of the Industrial Disputes Act and prayed for direction to the appellant to comply with the provisions of the section 17-B from the date of award till disposal of the writ petition. Such application formed the subject-matter of I.A No. 4176/2007.
4. The learned Single Judge considered the aforesaid interlocutory application and by order dated 19-6-2007 directed the appellant to comply with the provisions of section 17-B either by reinstating or by paying last wages drawn by the employee with a further stipulation the amount be paid within 30 days from the date of filing the writ petition failing which the writ petition would stand dismissed without further reference to the Bench.
5. Being dissatisfied with the aforesaid order of the learned Single Judge the appellant has preferred the present writ appeal on the grounds that application under section 17-B of the Industrial Disputes Act being I.A No. 4176/2007 was not served on it and, therefore, no reply to the same could be filed. It is also urged that the aforesaid fact could not be brought to the notice at the time of hearing and, therefore, present impugned order came to be passed and hence, the same amounts violation of principle of natural justice. It is also urged that since there is no finding of the Labour Court the respondent No. 1 has no source of earning, therefore, enquiry is necessary before passing an order and, therefore, the appellant may be permitted to file counter affidavit. It is also canvassed that the question of regularizing daily wage employee has been decided by the Apex Court and section 25 of the Industrial Disputes Act is not applicable and has placed reliance on the decision reported in 2006 (4) MPLJ (S.C) 294 : 2007 MPSLR (SC) 76. In the aforesaid backdrop a prayer has been made for setting aside the order of the learned Single Judge.
6. We have heard Mr. D.N Shukla, learned counsel for the appellant and Mr. Arvind Shrivastava, learned counsel for the respondents.
7. It is submitted by Mr. D.N Shukla, learned counsel for the appellant that the direction issued by the learned Single Judge is vulnerable inasmuch as he has not kept in view the requirement of section 17-B of the Act. It is contended by him that the learned Single Judge should have granted an opportunity to the appellant to dispute the assertions and controvert the stand and stance putforth in the application under section 17-B of the Act.
8. Mr. Anand Shrivastava, learned counsel for the respondents submitted that the order passed by the learned Single Judge is an interlocutory one and hence, the writ appeal is not maintainable. It is further canvassed by him that in the application under section 17-B of the Act it was categorically asserted that the workman is not gainfully employed anywhere and he is no means of livelihood.
9. First, we shall advert to the maintainability of the writ appeal. A Full Bench of this Court in Arvind Kumar Jain v. State of M.P, 2007 (3) MPLJ (F.B) 565 : 2007 (3) MPHT (FB) 376 has expressed the view as under:
“31. In view of the aforesaid premised reasons we proceed to record our conclusion in seriatim:—
(a) The decision rendered in the case of Arvind Kumar Jain (supra), does not lay down the law correctly and is hereby overruled.
(b) Any decision treading on the same path has to be deemed to have been overruled.
(c) The decisions rendered in Nav Nirman (Milan) Deria (supra) and Tejpal Singh (supra), enunciate the law correctly.
(d) The proviso to section 2(1) of Madhya Pradesh Uchcha Nyaylaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 does not create an absolute bar to prefer an appeal to the Division Bench.
(e) An appeal can be preferred against an order regard being had to the nature, tenor, effect and impact of the order passed by the learned Single Judge.
(f) The guidelines given in the cases of Shah Babulal Khimji (supra), Central Mine Planning and Design Institute Ltd. (supra), Deoraj (supra), Liverpool and London S.P and I Association Ltd. (supra), Subal Paul (supra) and Midnapore Peoples' Co-operatives Bank Ltd. (supra) are to be kept in view while deciding the maintainability of an appeal.
(g) It should be borne in mind that instances given in the aforesaid decisions are not exhaustive but illustrative in nature, because various kinds/categories of orders may be passed in exercise of jurisdiction under Article 226 of the Constitution of India.
(h) The facts in each case, the nature and the character of the order are to be scrutinized to appreciate the trappings of the same.”
10. In Central Mine Planning and Design Institute Ltd. v. Union of India, (2001) 2 SCC 588, a two-Judge Bench of the Apex Court in paragraph 15 has held as under:
“15. Adverting to the facts of the case, section 17-B of the ID Act confers valuable rights on the workmen and correspondingly imposes onerous obligations on the employer. The order in question passed by the learned Single Judge determines the entitlement of the workmen to receive benefits and imposes an obligation on the appellant to pay such benefits provided in the said section. That order cannot but be “judgment” within the meaning of clause 10 of Letters Patent, Patna. The High Court is obviously in error in holding that the said order is not judgment within the meaning of clause 10 of the Letters Patent of Patna.”
11. In view of the aforesaid, there can be no trace of doubt that the writ appeal is maintainable.
12. As far as the impugned order is concerned the learned Single Judge has taken note of the fact that the petitioner shall comply with the order by reinstating the employee or by paying him the last wages drawn within a period of 30 days from the date of filing the writ petition, failing which the writ petition shall stand dismissed.
13. To appreciate the aforesaid it is apposite to refer to section 17-B of the Act. The said provision reads as under:—
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 be.”
If the language applied under section 17-B of the Act is properly understood, there can be no shadow of doubt that the Court is not required to scrutinize or examine the validity of the award. The Court cannot, at that stage, advert to the merits of the award to express an opinion the award being unsustainable the application preferred under section 17-B of the Act can be rejected. If such an interpretation is placed under section 17-B of the Act that will make the provision ineffective and inoperative and cause violence to the Legislative intendment, for the provision has been inserted by the Parliament to alleviate hardship to the workman.
14. In Vivekanand Sethi v. Chairman, J and K Bank Ltd., (2005) 5 SCC 337, the Apex Court has held as under:
“26. Keeping in view the fact that we have ourselves considered the pleadings of the parties as also the materials on records, it is not necessary to remit the matter to the Tribunal as it would not serve any purpose. So far as the appeal preferred by the workman is concerned, it is not necessary to entertain the same as it is evident that section 17-B of the Industrial Disputes Act cannot now be applied in view of the fact that the workman did not file an affidavit before the learned Single Judge in support of his contentions and as required under law.”
15. In the case of Uttaranchal Forest Development Corporation Ltd. v. K.B Singh, (2005) 11 SCC 449, the Apex Court has expressed the view as under:
“2. The benefit of section 17-B of the Industrial Disputes Act, 1947 by directing reinstatement in service or payment of last wages drawn in lieu thereof can be granted only in favour of such workmen who have obtained awards in their favour from the Industrial Tribunal/Labour Court and in support of their claims filed affidavits. Learned counsel for the employer states that such workmen who had directly approached by writ petitions to the High Court for seeking relief of reinstatement, cannot be granted benefit of section 17-B of the Industrial Disputes Act as there was no evidence before the Tribunal or the Labour Court about their non-employment or gainful employment elsewhere after discontinuance of their services.
3. After hearing learned counsel for the parties, we direct that only such workmen in whose favour there are awards of reinstatement and who have filed affidavits of their not being in gainful employment, shall be entitled to be granted reinstatement or in lieu thereof paid wages last drawn by them on respective dates of their terminations from services. Their entitlement for such wages would be from the respective dates by filing affidavits by each of them in this Court in compliance with section 17-B of the Industrial Disputes Act, 1947.”
16. Mr. D.N Shukla, learned counsel appearing for the appellant has submitted that the learned Single Judge did not allow an opportunity to the appellant to file an affidavit in oppugnation as a result of which serious prejudice has been caused. This Court on 25-7-2007 passed the following order:
“Mr. D.N Shukla, learned counsel for the appellant undertakes to file an affidavit in reply to the application preferred under section 17-B of the Industrial Disputes Act, 1947.
Call on 6-8-2007.
It is hereby made clear if the affidavit is not filed assertion made in the application by the respondent shall be accepted in toto.”
Be it noted, it is incumbent on the part of the employee to file an affidavit that he is not gainfully employed in the instant case. The affidavit has been filed and there is no reason not to give credence to it. It is reasonable to construe that the onus cast by the statutory provision on the employees has been discharged by filing the affidavit. Thereafter, no affidavit controverting the stand put forth by the workmen has been filed. What is contended by Mr. Shukla is that discontinuance of the service of the workman does not amount to retrenchment and, by no stretch of imagination, Krishi Upaj Mandi Samiti can be treated as an industry. To buttress his submission, he has placed reliance on the decisions rendered in Raj as than Tourism Development Corporation Ltd. v. Intejam All Zafri, 2006 (4) MPLJ (S.C) 294 : 2007 MPLSR (SC) 76, Regional Engg. College, Warangal v. U. Cheralu., 2000 AIR SCW 1517 and Kamala Nehru Memorial Hospital v. Vinod Kumar, (2006) 1 SCC 498.
17. We have carefully perused the aforesaid decisions and we are of the considered opinion that they are not applicable to the case at hand. In Vinod Kumar (supra), the Apex Court expressed the opinion that the workman was not entitled to any benefit under section 17-B of the Act inasmuch as the workman had become a legal practitioner and was having decent income from the profession. In Intejam Ali Zafri (supra), the Apex Court was dealing with the applicability of the section 25-B of the Industrial Disputes Act. In U. Cheralu (supra), their Lordships was dealing with the affidavit filed under section 17-B of the Act. Thus, the decisions cited by Mr. Shukla do not have any applicability to the case at hand.
18. In view of the aforesaid, as no affidavit has been filed by the employer controverting the stand put forth by the workman that he is unemployed and does not have any employment. The order passed by the learned Single Judge directing under section 17-B cannot be found fault with.
19. The next aspect that is required to be adverted is whether the direction of the learned single Judge that if there would be non-compliance of section 17-B of the Act, the writ petition shall automatically dismissed. section 17-B of the Act does not so stipulate. In this regard, we may usefully record a two judge bench decision in Hindustan Zinc Ltd. v. Industrial Tribunal, (2001) 10 SCC 211 wherein Their Lordships were dealing with a matter where the High Court declined to address itself on merits as the order passed under section 17-B of the Act had not been complied with. In this context, Their Lordships stated thus:
“The High Court noticed that the order made under section 17-B of the Industrial Disputes Act, 1947, had not been complied with and therefore there was no necessity to go into the merits of the case. This conclusion is rather surprising. The High Court ought to have dealt with the merits of the case and decided the case but it went at a tangent and proceeded to dispose of the matter for non-compliance with the interim order made by the High Court.”
20. In view of the aforesaid the order of the learned Single Judge directing automatic dismissal of the writ petition because of non-compliance of section 17-B of the Act is not sustainable.
21. In the ultimate result the direction to comply with section 17-B is upheld and the direction for automatic dismissal for non-compliance of the order as regards section 17-B is set aside. Thus, the writ appeal is allowed in part without any order as to costs.
Appeal partly allowed.