JUDGMENT
Dharmadhikari, J.
1. The petitioner Elpro International Limited has challenged in this writ petition the award passed by the 1st Labour Court, Pune dated 24th of May, 1985 in a Reference (IDA) No. 62 of 1980, setting aside the order of removal and directing reinstatement of the respondent, Mrs. Kusum Bhairavnath Joshi, to the post of temporary screen coptin operator with continuity of service and back wages at the rate of Rs. 400 per month from the date of termination till the date of reinstatement except for the period of six months.
2. Rule came to be issued in the present petition on 1st October, 1985 and ad interim relief in terms of prayer clause (B) was also granted. Thereby implementation of the impugned award came to be stayed. Thereafter the respondent-employee filed an application under Section 17(B) of the Industrial Disputes Act, 1947 for payment of her wages. At that stage by amending the petition, petitioner challenged the very validity of the Section 17(B) of the said Act, on various grounds. Thus in this petition the validity of Section 17(B) is also challenged.
3. So far as the vires of Section 17(B) is concerned Shri Shrikrishna, learned counsel appearing for the petitioner, contended before us that the Parliament has no power to abridge the powers of this Court under Article 226 or of the Supreme Court of India under Article 136 of the Constitution of India. The impugned Section 17(B) of the Act effectively interferes with the discretion of the High Court and the Supreme Court to grant unconditional stay of an award directing reinstatement. Therefore the said provision is void in so far as it interferes with the judicial function of the High Court and the Supreme Court. It is also contended by the learned counsel that Section 17(B) is nothing but a direct inroad on the court’s power and amounts to abridgement of the powers of the High Court and the Supreme Court of India. In the face of this Section, howsoever grossly erroneous, perverse and illegal the award may be, the High Court and the Supreme Court would be rendered powerless to grant any interim relief to the employee and, therefore, Section 17-B is wholly violative of Articles 226, 327, 32 and 136 of the Constitution of India. It is also contended by him that the said Section is also violative of Article 14 of the Constitution being vague unreasonable and arbitrary. Under this Section what has been made payable is full wages. It is nowhere stated as to whether the wages are payable on month to month basis or otherwise. The expression used ‘inclusive of any maintenance allowance’ makes no sense being wholly ambiguous. No provision is made in law as to what will happen to the amount paid if ultimately the employer succeeds and the award is quashed and set aside. No provision is also made in the said Section providing for security nor a provision is made for the refund of the amount. In support of his contentions Shri Shrikrishana has placed strong reliance upon the decisions of the Supreme Court in Raj Krushna Bose v. Binod Kanungo and Ors.
, Sangram Singh v. Election Tribunal Kotah and another , Re : The Kerala Education Bill (A.I.R.) 1958 S.C. 956 Under Article 143 of Constitution of India : In the matter of Special Reference No. 1 of 1964, Minerva Mills Ltd. and others v. Union of India and others , Umaji Keshao Meshram and others v. Smt. Radhikabai and another S. P. Sampath Kumar v. Union of India and others (1987-I-LLJ-128).
4. On the other hand it is contended by Shri Kamerkar, learned counsel appearing for the employee in Writ Petition No. 4078 of 1985 and Miss Buch, learned counsel appearing for the employee in Writ Petition No. 4500 of 1984 as well as Shri Desai, learned counsel appearing for the Union of India and the Attorney General, that Section 17(B) is merely regulatory and it does not interfere with or restrict the Constitutional powers of the High Court or the Supreme Court. Section 17(B) has been construed by the Supreme Court in Bharat Singh v. Management of New Delhi Tuberculosis Centre, New Delhi and others (1986-II-LLJ-217) and it is quite clear from the law laid down by the Supreme Court in the said decision that the provision is salutory and reasonable and has been enacted to remove the agony and hardship of the employees during the pendency of the proceedings pending before the High Court or the Supreme Court of India. Therefore it cannot be said that it is in any way arbitrary. Section also provides for and leaves ample discretion to the Courts to pass appropriate orders. As to how the said discretion should be exercised is laid down by the Supreme Court itself in Bharat Singh’s case (supra). The liability of an employer to pay the wages under Section 17-B arises when the Labour Court, Tribunal or the National Tribunal by its award has directed reinstatement of the workmen and the employer prefers proceedings against such an award in the High Court or the Supreme Court. Section 17-B of the said Act lays down that the award shall become enforceable on the expiry of 30 days from the date of its publication under Section 17 of the said Act. The order of reinstatement follows from the setting aside of the order of removal, termination or dismissal of services passed by the employer. The effect of the reinstatement is that the employee continues in employment without any interruption of the contract of service. Thus as soon as the reinstatement is ordered, the relationship of master and servant is restored. Therefore as soon as the award is passed and becomes enforceable the workman is deemed to be reinstated in the employment. If this is so, then he is entitled to the wages for the subsequent period i.e. from the date of the award till his actual reinstatement. In this case wages will have to be paid at the rate then existing i.e. on the date of the award. However, by Section 17(B) it is laid down that he is entitled to get at the rate last drawn by him and if he is employed elsewhere during the pendency of the proceeding, the court shall order that no wages shall be payable under Section 17(B) for such period or part, as the case may be. Thus according to the learned counsel, Section 17(B) is merely akin to Section 10-A of the Industrial Employment (Standing Orders) Act, 1946. The right of the High Court or the Supreme Court to grant interim reliefs is merely regulated by the conditions laid down by Section 17(B) of the said Act, and therefore, it will not be correct to say that the powers of the High Court or the Supreme Court have been curtailed by Section 17(B) of the said Act.
5. For properly appreciating the controversy raised before us it will be worthwhile if a detailed reference is made to Section 17(B) of the Industrial Disputes Act, 1947 which 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”.
As to what would be the import and scope of Section 17B of the said Act is authoritatively laid down by the Supreme Court in Bharat Singh’s case (supra). In paragraph 6 of the judgment reference is made to the ingredients for application of this Section i.e. (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 and (iii) that the workman should not have been employed in any establishment during such period. Then this is what the Supreme Court has observed in paragraphs 8, 9 and 10 of the said judgment :
“8. It is common knowledge that even before Section 17B was enacted, Courts were in their discretion, awarding wages to workmen when they felt such a direction was necessary but that was only a discretionary remedy depending upon Court to Court. 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. A fight between a workman and his employer if often times an unequal fight. The legislature was thus aware that because of the long pendency of disputes in Tribunals and Courts, on account of the dilatory tactics adopted by the employer, workmen had suffered. It is against this background that the introduction of this section has to be viewed and its effects considered.
9. The Objects and Reasons for enacting the Section is as follows :
“When Labour Courts pass awards of reinstatement, these are often contested by an employer in the Supreme Court and High Courts. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, therefore, proposed to provide the payment of wages last drawn by the workmen concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or High Courts”.
10. The Objects and Reasons give an insight into the background why this Section was introduced. Though Objects and Reasons cannot be the ultimate guide in interpretation of statutes it often times aids in finding out what really persuaded the legislature to enact a particular provision. The Objects and Reasons here clearly spell out that delay in the implementation of the awards is due to the contests by the employer which consequently cause hardship to the workmen. If this is the object, then would it be in keeping with this object and consistent with the progressive social philosophy of our laws to deny to the workmen the benefits of this Section simply because the award was passed for example just a day before the Section came into force. In our view it would be not only defeating the rights of the workman but going against the spirit of the enactment. A rigid interpretation of this Section as is attempted by the learned counsel for the respondents would be rendering the workman worse off after the coming into force of this section. This Section has in effect only codified the rights of the workmen to get their wages which they could not get in time because of the long drawn out process caused by the methods employed by the Management. This Section, in other words, gives a mandate to the Courts to award wages if the conditions in the Section are satisfied.”
6. Then in paragraph 16 of the said judgment the Supreme Court held as under :
“…….. That is not the case with Section 17B. Here it is not the conferment of a new jurisdiction but the codification in statutory form of a right available to the workmen to get back wages when certain given conditions are satisfied. There are no words in the Section to compel the Court to hold that it cannot operate retrospectively. Before Section 17B was introduced there was no bar for Courts for awarding wages. Of course the workmen had no right to claim it. This Section recognize such a right. To construe it in a manner detrimental to workmen would be to defeat its object.”
Therefore if the said Section is read in the background in which it was introduced, then a conclusion is inevitable that it is wholly reasonable and has been enacted to achieve the avowed object of protecting employee from the hardship resultant from unemployment. Such a provision has been made so as to enable the employees to survive during the pendency of the litigation and reap the fruits of the order of reinstatement. These wages are to be paid if certain conditions are satisfied. Section 17B read with proviso in clearest terms lays down as to when workman is entitled to get these wages. Therefore it cannot be said that the said provision is either vague or arbitrary. It operates within the specified limits and, therefore, in our view the challenge to the said Section based on Article 14 of the Constitution must fail.
7. It is no doubt true that no provision is made as to what will happen to the amount paid under Section 17B, if ultimately the employer succeeds in the litigation. In our view absence of such a provision will not make the Section, either vague or arbitrary. In this context a reference could usefully be made to Section 10A of the Industrial Employment (Standing Orders) Act, 1946 which reads as under :
“10-A. Payment of subsistence allowance :
(1) Where any workman is suspended by the employer pending investigation or inquiry into complaints or charges of misconduct against him, the employer shall pay to such workman subsistence allowance
(a) at the rate of fifty per cent of the wages which the workman was entitled to immediately preceding the date of such suspension, for the first ninety days of suspension; and
(b) at the rate of seventy-five per cent of such wages for remaining period of suspension if the delay in the completion of disciplinary proceedings against such workman is not directly attributable to the conduct of such workman.
(2) If any dispute arises regarding the subsistence allowance payable to a workman under sub-section (1), the workman or the employer concerned may refer the dispute to the Labour Court, constituted under the Industrial Disputes Act, 1947 (14 of 1947), within the local limits of whose jurisdiction the industrial establishment wherein such workman is employed is situated and the Labour Court to which the dispute is so referred, shall after giving the parties an opportunity of being heard, decide the dispute and such decision shall be final and binding on the parties.
(3) Notwithstanding anything contained in the foregoing provisions of this Section, where provisions relating to payment of subsistence allowance under any other law for the time being in force in any State are more beneficial than the provisions of this Section, the provisions of such other law shall be applicable to the payment of subsistence allowance in that State.”
The amount paid towards subsistence allowance is neither refundable nor recoverable irrespective of the result of the enquiry. The reason is obvious. The allowance contemplated to be paid under the said Section is nothing but a subsistence allowance. Similarly what is to be paid under Section 17-B is also in the nature of subsistence allowance. The expression “inclusive of any maintenance allowance admissible to him under any rule” is indicative of legislative intent. The wages payable during the pendency of the proceedings in the High Courts or Supreme Court are at the rate of the wages last drawn by him. The proviso further 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 thereof as the case may be. The payment of wages will be obviously on month to month basis, or on the basis of the practice followed by the concerned Industry or Factory and, therefore, on that ground, it cannot be said that the provision is in any way vague or arbitrary and, therefore, in our view the challenge based on that count also must fail.
8. So far as the challenge to Section 17B of the Act based on the ground that it either interferes or encroaches upon the Constitutional powers of the High Courts or the Supreme Court is concerned, from the bare reading of this Section it is clear that it does not even remotely refer to the powers of the Courts under Articles 136 or 226, much less of restricting the said powers. This section only guarantees to the workman the payment of wages by the employer during the pendency of the proceedings before the High Court or the Supreme Court, and that too subject to the conditions laid down by the said section and the proviso, irrespective of the result of the proceedings. It also imposes an obligation upon the workman concerned to file an affidavit before the Court stating that he has not been employed in any establishment during the pendency of the proceedings. It also absolves the employer of his obligation to pay such wages, if he is able to prove to the satisfaction of the Court that the workman had been otherwise employed and had been receiving adequate remuneration. As already observed Section 17B operates within a limited sphere. It’s operation is subject to conditions laid down by the Section itself. Section nowhere lays down that in extreme cases where it is demonstrated that the award passed is either without jurisdiction or is otherwise a nullity, or grossly erroneous or perverse, the High Court or the Supreme Court is debarred from exercising its powers under Articles 226 and 136 of the Constitution. Therefore it is not possible for us to accept the contention that Section 17B is void as it encroaches upon or overrides the powers of the High Court or the Supreme Court of India under Articles 226 and 136 of the Constitution of India. The powers of the High Courts or the Supreme Court under Articles 226 and 136 of the Constitution are paramount and Section 17B does not interfere nor restrict the said Constitutional powers.
9. In the view which we have taken it is not necessary to make a detailed reference to the cases cited at the Bar. This is more so in view of the decision of the Supreme Court in Bharat Singh’s case (supra)
10. So far as the merits of the controversy is concerned it is contended by Shri Shrikrishna that the finding recorded by the Tribunal that the case of the respondent-workman is covered by Section 25B(2) of the Act is wholly perverse. According to the learned counsel, respondent-workman was not in continuous service as she had not worked for 240 days within a period of one year. In this context she has drawn our attention to the records produced before the Tribunal for inspection of the representative of the workman and the inspection report submitted by the said representative. In the said inspection report it is stated that the representative could not see the muster roll of December 1977 as it was not produced for inspection. It was also noted that during the period from 1st January, 1978 to 2nd February, 1978 the respondent Smt. Joshi has not been given work by the Company even as a casual worker but during the period from 3rd February, 1978 to
22nd February, 1978 she was given job work. Therefore according to Shri Shrikrishna the learned Presiding Officer committed an error in holding that she was also working in the month of January 1978 and if those working days are added, then she has worked for more than 240 days from 21st January, 1977 to 22nd February, 1978. It is not possible for us to accept this contention for more than one reason. The witness of the Company has admitted in his deposition that the muster rolls from 1st January, 1978 to 28th February, 1978 are not available. Even during the course of arguments before us we had given liberty to the Petitioner-Company-Employer to produce the said muster rolls before us. However, we are informed that even today the said muster rolls are not available. In her evidence the Respondent-employee has stated that she was in continuous service from 1978 till her dismissal. It is her case that on 28th February, 1978 she was informed by the employer not to join the work from 3rd March, 1978. Obviously it was an oral order. Though certain questions were asked in her cross-examination a specific question was not asked to her that in January 1978 she was not working at all. Therefore her statement that she was in continuous service from 1976 till dismissal practically goes unchallenged. The inspection notes prepared by her representative cannot demolish her evidence, because in the inspection notes it is specifically stated that the muster roll for the said period was not produced for inspection. If this is so then it cannot be said that the finding of fact recorded by the Labour Court is perverse so as to warrant an interference in the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. Once this finding is accepted then it will have to be held that the termination of the services of the respondent-workman was illegal, since the statutory provisions of Section 25F of the Industrial Disputes Act, 1947 were not followed. This will make the termination ab-initio void.
In the view which we have taken therefore, Rule is discharged with no orders as to costs. At this stage Shri Shrikrishna prays for leave to appeal to the Supreme Court. In view of the law laid down by the Supreme Court while interpreting Section 17B of the Act in Bharat Singh v. Management of New Delhi Tuberculosis Centre, New Delhi and others (supra) in our view, this is not a fit case wherein such a leave should be granted. Hence leave refused.
Since the main writ petition itself stands decided, no separate orders are necessary in Civil Application No. 3007 of 1986.