JUDGMENT
D.P. Kundu, J.
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 endless litigation with preliminary objections and other technical pleas to tire them out. Supreme Court observed that a fight between a workman and his employer is often times an unequal fight. It was observed that the Legislature was thus aware because of the long pendency of disputes in Tribunals and Courts, on account of the dilatory tactics adopted by the employer, workmen had suffered. Supreme Court observed that it is against this background that the introduction of said Section 17-B has to be viewed and its effects considered.
9. Out of the three necessary ingredients for the application of Section 17-B of the Industrial Disputes Act, 1947, as mentioned hereinabove there is no dispute that the first two ingredients are existing in the instant case. It has now to be considered whether the third ingredient i.e. the workman should not have been employed in any establishment during such period, is existing or not.
10. For the purpose of determining whether the third ingredient is existing or not in the instant case, the relevant words used in said Section 17-B should be carefully considered. Those relevant words are “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”. The words “during such period” relate to “during the period of pendency of such proceeding in the High Court or Supreme Court.” Therefore, under the said Section 17-B the workman has to file an affidavit to the effect that during the period of pendency of proceedings in the High Court or the Supreme Court the workman has not been employed in any establishment.
11. The relevant paragraphs of the application made by the workmen for payment under said Section 17-B are paragraphs 13, 14, 15, 16, 18, 19 & 20. In those paragraphs the workmen stated that inspite of the order of reinstatement neither they were allowed to join their duties nor they were getting any salary till date. The applicants No.4 & 5 namely, Shri Sk.Ramjan and Shri Panch Kari Adak already retired from their services on and from December 31, 1985 and December 31, 1992 respectively. Though the said applicants No.4 & 5 have already retired from their services but they have not yet received their retirement benefits and other legal dues. The applicants workmen since January 25, 1985 were not engaged in any employment at any point of time. The applicants workmen are out of employment since January 25, 1985 and they have no other employment to meet their day-to-day family expenditure. In the said application the applicants workmen prayed as follows:
“In the premises, the petitioners praise Your Lordships may be graciously pleased to direct the respondents/opposite parties to make payment of wages since January 25, 1985 to Petitioners No. 1 to 3 and 6 to 8 and the retirement benefits and other legal dues to the Respondents No.4 and 5 and interim reliefs and other reliefs till the disposal of the appeal being M.A.T.No. 3435 of 1997 as well as the Writ Petition being No. 10852(W) of 1997 in terms of Section 17-B of the Industrial Disputes Act, 1947 and/or pass such other or further order or orders as to Your Lordships may deem fit and proper.”
12. The learned Advocate appearing for the writ petitioner argued that since the workmen themselves have stated that the applicants No.4 & 5 namely, Shri Sk.Ramjan and Shri Panch Kari Adak already retired from their services on and from December 31, 1985 and December 31, 1992 respectively, they cannot get any benefit under said Section 17-B. The learned Advocate for the writ petitioner further argued that prayer made by the applicants workmen as quoted hereinabove cannot be allowed under said Section 17-B. The learned Advocate for the writ petitioner argued that in paragraph 15 of the application under consideration tine applicants workmen stated that since January 25, 1985 they are out of employment and they have and/or had no other source of income but no statement had been made that they have not been employed in any establishment and, therefore, the applicants workmen are not entitled to
get any order in their favour under said Section 17-B. The learned Advocate for the writ petitioner argued that for these reasons the application preferred by the applicants workmen is not maintainable and should be dismissed. The learned Advocate for the writ petitioner argued that in the application under said Section 17-B two distinct claims have been made in the application and for that reason the application cannot be maintained in view of Rule 20(2) Civil Rules and Order. The learned Advocate for the writ petitioner further argued that in view of Rule 53 of the Appellate Side Rules relating to application under Article 226 of the Constitution of India this application under said Section 17-B is not maintainable. The learned Advocate for the writ petitioner argued that when the applicants workmen themselves admitted in their application that the applicant workmen No. 4 & 5 namely, Shri Sk.Ramjan and Shri Panch Kari Adak already retired from their services on and from December 31, 1985 and December 31, 1992 respectively they are not entitled to have any relief under said Section 17-B. The learned Advocate for the writ petitioner referred to Dena Bank v. Kiritikumar T. Patel (1998-I-LLJ-1) (SC). The learned Advocate for the writ petitioner relied upon Paragraphs 21 and 22 of the reported decision in Dena Bank’s case (supra). Paragraph 22 of the Reported decision in Dena Bank’s case (supra), reads as follows at pp.7-8:
“As indicated earlier Section 17-B has been enacted by Parliament with a view to give relief to a workman who has been ordered to be reinstated under the award of a Labour Court or the Industrial Tribunal during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award. The payment which is required to be made by the employer to the workman is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or this Court. Since the payment is of such a character Parliament thought it proper to limit in to the extent of the wages which were drawn by the workman when he was in service and when his services were terminated and therefore used the words “full wages last drawn”. To read these words to mean wages which would have been drawn by the workman if he had continued in service if the order terminating his services had passed since it has been set aside by the award of the Labour Court or Industrial Tribunal would result in so enlarging the benefit as to comprehend the relief that has been granted under the award that is under challenge. Since the amount is not refundable or recoverable in the event of the award being set aside it would result in the employer being required to give effect to the award during the pendency of the proceedings challenging the award before the High Court or the Supreme Court without his being able to recover the said amount in the event of the award being set aside. We are unable to construe the provisions contained in Section 17-B to cast such a burden on the employer. In our opinion, therefore, the words “full wages last drawn” must be given their plain and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Visveswaraya Iron & Steel Ltd. (supra) or the Bombay High Court in Carona Sahu Co. Ltd. (supra).”
13. The learned Advocate for the writ petitioner argued that since the amount to be paid under said Section 17-B is not refundable or recoverable in the event of the award being set aside, the workmen, who would have admittedly retired from the service during the pendency of the industrial dispute before the Tribunal had they not been dismissed, are not entitled to get any relief under said Section 17-B.
14. Proviso to the said Section 17-B lays down 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. In the instant case it has not been proved or no statement had been made by the writ petitioner that the applicants workmen have been employed and have been receiving adequate remuneration during the period of pendency of the writ proceeding in this High Court or part thereof. Therefore, the Court cannot pass an order that no wages shall be payable under said Section 17-B. The words “the employer shall be liable to pay such workman” are very important. Said Section 17-B created liability on the employer and a corresponding right in favour of the workmen and where the three necessary ingredients for the application of said Section 17-B are existing the employer remains liable and the liability of the employer does not depend upon the prayer made by the workmen in their application under said Section 17-B. Said Section 17-B does not lay down that the workman has to make an application. Requirement of said Section 17-B is an affidavit of the workman. If the workman files affidavit stating that he had not been employed in any establishment during the period of pendency of the proceeding in the High Court or Supreme Court the workman is entitled to get the relief as contemplated under said Section 17-B. Wrong prayer, faulty prayer or absence of prayer of the workman would not make the employer free from the liability to pay such workman as contemplated under said Section 17-B. Under these circumstances I am of the view that the prayers made by the applicants workmen in their application under said Section 17-B would not make the writ petitioner, the employer, free from their liability to pay the said workmen in accordance with the provisions of said Section 17-B.
15. May be, during the pendency of the proceeding before the Tribunal two applicants workmen namely, Shri Sk.Ramjan and Shri Panch Kari Adak have crossed their date of retirement. But at that point of time they were not in service. Question of retirement cannot arise unless they are deemed to be in service. Rightly or wrongly the Tribunal by its award directed reinstatement of all the applicants workmen including applicants workmen No. 4 & 5 namely, Shri Sk.Ramjan and Shri Panch Kari Adak. In a case like this, where all the three ingredients for the application of said Section 17-B are existing, to hold that said Section 17-B has no manner of application in respect of the workmen who have crossed their date of retirement in the meantime would mean to rewrite the provisions of said Section 17-B. It cannot also be held that notwithstanding anything contained in said Section 17-B the employer shall not be liable to pay such workmen who would have retired had they been retained in the service of the employer. This would amount to legislate a new provision. The Court has no power, authority, competence or jurisdiction to legislate or rewrite a provision of the Statute. Where the words used are plain and unambiguous like those in the said Section 17-B and the meaning of the Section is clear, the Court cannot add or substitute any word. Therefore, where the three necessary ingredients for the application of said Section 17-B as laid down in Bharat Singh’s case (supra) are existing, Court is under obligation to pass an order in terms of said Section 17-B and cannot go into the question who of the applicants workmen in the meantime has crossed the date of retirement. Even if a workman crossed over his date of retirement during pendency of the dispute before the Tribunal or during pendency of the proceeding before the High Court or Supreme Court, he is entitled to an order in his favour under said Section 17-B if the aforesaid three necessary ingredients for the application of the said Section 17-B are existing.
16. In the application for payment under said Section 17-B in paragraphs 19 and 20 the applicants workmen stated as follows:
“19. That the petitioners state that since January 25, 1985 they were not engaged in any employment at any point of time.
20. That the petitioners state that they are out of employment since January 25, 1985 and they have no other employment to meet their day to day family expenditure. If the Award would have been implemented your petitioners were entitled to receive the amount mentioned in Annexure ‘X’ hereto”.
17. Each one of the applicants workmen has filed separately supplementary affidavit making the same statements.
18. I am of the view that the statement that they were not engaged in any employment at any point of time since January 25, 1985 and that they are out of employment since January 25, 1985 and they have no other employment to meet their day-to-day family expenditure satisfy the third necessary ingredient for the application of said Section 17-B.
19. In view of the discussions made here-inabove I am of the view that since the three necessary ingredients for the application of said Section 17-B are existing, the employer who is the writ petitioner is liable to pay all applicants workmen during the period of pendency of the writ proceeding in this High Court, full wages last drawn by each one of them inclusive of any maintenance allowance admissible to each one of them under any rule. The writ petitioner is directed to make such payment month by month during the period of pendency of the writ proceeding in this High Court. The payment for the month of January 1998, should be made within February 15, 1998 and thereafter the payment for each month should be made within 15th day of the succeeding month. The writ proceeding challenging the award was initiated on June 19, 1997. The writ petitioner-is directed to pay the applicants workmen their dues under said Section 17-B for the period from June 19, 1997 to December 31, 1997 within February 28, 1998. In these terms the application made by the applicants workmen under said Section 17-B is disposed of.