ORDER
1. The main writ petition was moved challenging the order of reference under Section 10 of the Industrial Disputes Act, 1947 and the award on it. The reference was dated 2nd July, 2002 and the award of the Tribunal was passed on 9th September, 2003. The award was published by the State Government on 23rd October, 2003 and the company received the award on 7th November, 2003. The writ petitioner company decided to roll back the age of retirement of the workmen from 60 years to 58 years. Ultimately that was disputed and the reference was made. The Tribunal decided against the company. The company filed this writ petition on 24th November, 2003. In the main writ petition the company made two unions party respondents being respondent No. 3 and respondent No. 4.
2. Learned Counsel appearing for the respondent Nos. 3 and 4 filed three applications for addition of party for adding three workmen, Naresh Kumar Mishra, Santosh Sanyal and Ashim Kumar Palit. Along with the addition of party of the petitioner, the applicants prayed for relief under Section 17B of the Industrial Disputes Act, 1947. The three applications by the three applicants namely, Naresh Kumar Mishra (G. A. No. 4490 of 2003), Santosh Sanyal (G. A. No. 290 of 2004) and Ashim Kumar Palit (G. A. No. 86 of 2004) were taken up initially for hearing inasmuch as in the main writ petition directions to file affidavit has been given and the main writ petition has been fixed on 25th February, 2004 for hearing.
3. The three applications are of same nature and let me take up first the application of Naresh Kumar Mishra. Learned Counsel for the applicant Naresh Kumar Mishra has made extensive submissions in favour of grant of last wages drawn by the workmen as well as back wages. Learned Counsel submitted that application under Section 17B has now become a settled relief to be granted to the workmen when the matter is pending before the High Court or the Supreme Court. Learned Counsel for the appellants submitted that the legislature has introduced the provisions of Section 17B for the benefit of the workmen and it is a welfare legislation and the Court is to see that the workmen is benefited by virtue of orders passed on this application. Learned Counsel further submitted that the reasons for introduction of this Section are that the workmen should not suffer and the workmen can continue with the struggle for existence during the period when the matter is pending before the High Court or the Supreme Court inasmuch as the Tribunal has passed award in favour of the workmen and the company has come to the Writ Court challenging the said order and stay has been granted. Learned Counsel also submitted that he is not only praying for relief to be awarded under Section 17B of the Industrial Disputes Act, 1947 but also praying something more towards back wages. Learned Counsel in support of his contention relied on a decision reported in 1987 Lab IC 525, Indian Explosive Limited v. 4th Industrial Tribunal, West Bengal and Ors. Learned Counsel relied on this decision and mainly relied on paragraphs 5, 6 and 7 of this decision. Learned Counsel submitted that in paragraph 5 it has been observed that the intent of the legislature on a true and proper interpretation of Section 17B as clear and unambiguous that benefit of an award of reinstatement ought not to be deferred and the workman concerned ought to be able to utilise the benefit of the adjudication by the Labour Courts or the Tribunals.
4. Learned Counsel next relied on another decision reported on , Dena Bank v. Kirit Kumar T. Patel. Learned Counsel strongly relied on this judgment and submitted that in this judgment the Hon’ble Apex Court has decided and/or clarified that what should be the full wages last drawn as provided in Section 17B and what should the workmen get in terms of the order passed in an application under Section 17B. Learned Counsel for the applicant mainly laid stress on paragraph 23 of this judgment to establish that the workman can be paid not only the last wages drawn but also something more if the Court is satisfied that higher amount should be paid to the workman. Learned Counsel for the applicant also submitted that back wages of the applicant should be paid to him and as decided by the Hon’ble Apex Court it can be deposited and/or paid in four manners i.e. either it can be deposited with the nationalised bank and the interest to be paid to the applicant, or it should be deposited with the Registrar of the High Court or it should be paid directly to the workman concerned and lastly if the workman loses ultimately recovery can be made from him, the excess amount paid thus.
5. Learned Counsel submitted that full wages last drawn must be paid to the worker and as observed, the learned Counsel emphatically submitted, in paragraphs 22 and 23 of this judgment are very much relevant in this context. The said two paragraphs are quoted below :
22. Shri Jitendra Sharma has laid emphasis on the word “full” in the expression “full wages last drawn” and has submitted that the said word implies that the wages last drawn must be the wages which the workman would have drawn under the award. We are unable to agree. In our opinion, the expression “full” only emphasises that all the emoluments which are included in “wages” as defined in Clause (rr) of Section 2 of the Act so as to include the amounts referred to in Sub-clauses (i) to (iv) are required to be paid. In this context, it may also be mentioned that in Section 17B Parliament has also used the words “inclusive of any maintenance allowance admissible to him under any rule”. These words indicate that maintenance allowance that is admissible under any rule is required to be paid irrespective of the amount which was actually being paid as maintenance allowance to the workman. But with regard to wages, Parliament has used the words “full wages last drawn” indicating that the wages that were actually paid and not the amount that would be payable are required to be paid.
23. As regards the powers of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution, it may be stated that Section 17B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour Court, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass an order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be de hors the provisions contained in Section 17B and while giving the direction, the Court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. that in exercise of the power under Articles 226 and 136 of the Constitution, an order can be passed denying the workman the benefit granted under Section 17B. The conferment of such a right under Section 17B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Articles 226 and 136 of the Constitution”.
6. Learned Counsel then relied on a decision reported in 1999(1) CHN 96 (Singer India Ltd. and Ors. v. State of West Bengal and Ors.). Learned Counsel submitted that this is a judgment delivered by Single Bench of this High Court and in this judgment it has been observed that the work “pending” has been used without any qualification under Section 17B. A petition is pending before the Court under Article 226 once it is filed. This Court does not have a procedure whereby an application under Section 226 is dependent upon admission. It is true that the matter may not be taken up by the Court by reason of the pressure of work or otherwise, nevertheless as between the employer and the employee, the delay on the Court’s part cannot be attributed to the employee at least.
7. Learned Counsel then relied on a decision reported in 1999(1) CLR 63 at Madras (Varadraja Textiles (P) Ltd., Coimbatore v. Labour Court, Coimbatore and Anr.). Learned Counsel has also laid stress on this judgment in support of his contention of back wages and relied on paragraph 3 of this judgment to establish that if the Court is satisfied that that the situation so demands the Court can grant relief of back wages or arrear wages. Paragraph 3 of this judgment is quoted below :
“3. I have given my anxious consideration to the rival submissions. I am clearly of the opinion that the payment under Section 17B can continue only so long as the workmen is in employment. The moment the workman reached the age of superannuation, his right to get wages is lost. The argument of Sri Prasad that the management cannot have the benefit of stay in the writ petition and at the same time, refuse to pay last drawn wages under Section 17B is no doubt attractive. But, in my opinion, that relates only to the question of the prima facie merits in writ petition. In other words, once the workman reaches the age of superannuation, he loses his right to get last drawn wages under Section 17B and his right is only to get the back wages as per the award which is impugned in the writ petition.
Therefore, when stay is granted in respect of the award relating to the back wages, one has to consider whether such a stay is warranted on the merits of that case. Normally, in a money decree, Courts have been directing payment of 50 per cent of the amount decreed. In cases under the industrial dispute, Courts have been directing payment of part of the back wages and directing deposit of the balance in any nationalised bank. In this case, I have already noticed the fact that the sum of Rs. 40,000/- has already been paid to the workman by way of back wages. The balance which is said to be Rs. 85,839/- has been deposited in a Nationalised Bank, but the interest therefrom is not being paid to the workman. Therefore, all that the workman can now agitate is for some more payment out of the back wages in view of the stoppage of the last drawn wages under Section 17B”.
8. I earned Counsel then relied on a decision reported in 2000 (3) CLR 165 (Gujarat Cancer and Research Institute v. Sanjay Chandrakant Vyas). Learned Counsel submitted that in this judgment also the High Court at Gujarat clarified the importance of payment of relief under Section 17B to be granted to the workman. Learned Counsel relied on two other decisions reported in 2001 (3) CLR 265 (Babubhai C. Kachhadhya v. Rajkot Municipal Corporation) and 2001 (3) CLR 267, Commissioner, Rajkot Municipal Corporation v. Geetaben Anilkumar Tank C/o Dr. Chaudhary). Learned Counsel also relied on another decision passed by this High Court in Levcon Instruments Pvt. Ltd. and Anr. v. State of West Bengal and Ors., 2002(1) CHN 572. However, relying on this decision the learned Counsel wanted to cite and only wanted to establish two things namely, relief under Section 17B of the Industrial Disputes Act, 1947 is automatic and the full wages drawn means the wages which the petitioner was entitled to get at the time of his termination of service and the Court if satisfied that the circumstance so demands the workman should be paid something more towards the back wages mainly because this is welfare legislature. It is to be seen by the Court that as to how much relief can be given to the petitioner or as to how much the petitioner can be benefited by granting him final CL benefits.
9. Mr. P. Sengupta, learned Counsel appearing for the writ petitioner, opposite party in this application submits that Section 17B is not disputed and relief under Section 17B is to be granted to the workman but that should be in accordance with the judgments delivered by the Hon’ble Apex Court in Dena Bank’s case and as well as the judgment delivered by Hon’ble Justice D. P. Kundu and thirdly the judgment delivered by the Hon’ble Division Bench of this High Court reported in 2001(2) CHN 79 (Bharat Petroleum Corporation Ltd. and Anr. v. Prabir Kumar Mukherjee and Ors.). Learned Counsel. Mr. Sengupta relied on the judgment reported in 1998 (2) CLR 703 (Continental Commercial Co. v. State and Ors.) Mr. Sengupta submitted that in this decision Hon’ble Justice Kundu considered so many judgments delivered in different cases in this regard and also relied on and considered Dena Bank’s case and concludingly observed that full wages drawn as has been decided in Hindusthan Works Ltd. case is no longer a good law and Hon’ble Justice Kundu relied on Dena Bank’s case and observed that “the wages last drawn” means wages which had been drawn by the workman when he was in service and when his services were terminated.
10. Mr. Sengupta relied on another decision reported in 1999(1) CLR 1227 (Tata Metaliks Ltd. v. Fourth Industrial Tribunal). Mr. Sengupta submitted that in this judgment the Hon’ble Justice Kundu has clarified or decided the extent of liability of the employer under Section 17B and observed that the words “during the period of pendency of such proceedings in their High Court or the Supreme Court” used in Section 17B cannot be read to mean “from the date of the award till the case is finally decided in the Supreme Court or the High Court”, because that would cast an extra-burden on the employer though such burden has not been created by the statute. Mr. Sengupta strongly relied on the decision reported in Bharat Petroleum case (supra) and submitted that in this case the Hon’ble Division Bench has observed that none is entitled to get in a full salary and/or emoluments even after he has attained the age of superannuation and in the facts and circumstances this Court should not direct benefit of Section 17B in respect of the workman who had retired. Mr. P. Sengupta also submitted that the conclusion thereof arises from the discussion of the various decisions of the Hon’ble Apex Court as well as the Hon’ble High Courts that employee is entitled to get relief from the date of filing of the writ petition till the disposal of the writ petition and/or till the retirement of the employee.
11. Affidavit-in-opposition and affidavit-in-reply have been filed by the parties denying the claim and counter-claims.
12. Heard learned Counsel for the parties and considered their submissions. For the purpose of coming to a conclusion regarding the contentions of the learned counsel for the parties and regarding the claim made out by the applicant let me see what Section 17B says and why it has been introduced. Section 17B for the purpose is quoted hereinbelow :
“17B. Payment of full wages to workman pending proceeding 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 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”.
13. Without going into much controversy it can safely be stated that the Section has been introduced by the legislature obviously for the welfare and benefit of the workman because of the pendency of the litigation before the High Court or the Supreme Court. It is the object of the legislature to introduce the Section so that the morale of the workman is not broken down because of the long pendency of the writ petition and/or long pendency of the appeals if any against the workman and this has been observed in the famous case of D. P. Maheshwari also but the Section is to be looked into from its wordings also, apart from the object or intent of the legislature. In the Section itself, it has been stated that the workman will get full wages last drawn inclusive of any maintenance allowance admissible to him under rule if the employer prefers any proceeding against such an award in the High Court or the Supreme Court. Two things, therefore, come up, that proceeding must be pending before the High Court or the Supreme Court and secondly, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule, is to be paid to the workman.
14. Now, if this Section reads like that, when a proceeding is being made pending before the High Court and the Supreme Court, obviously the date of grant of relief must be from the date of filing of the writ petition inasmuch as had the employer not filed any writ petition or had the employer not made any proceeding pending before the High Court or the Supreme Court, no question would have arisen regarding payment of relief under Section 17B, The date of initiation of grant of relief must be, therefore, the date of filing of the writ petition. Now, what would be the date of ending? The date of ending must be the date of retirement or the date of disposal of writ petition, whichever is earlier inasmuch as after the retirement if there does not exist any employer-employee relation and the workman also does not remain a workman under the company.
15. Now, what would be the position of full wages last drawn? These terms “full wages last drawn” are to be looked into from the angle as if the worker was in service, that is if the workman would have been in service, what he would have got as his wages, that is, the amount what the workman would have taken home at the end of the month, to be more clear and specific, it must be stated that the intent of the legislature is that on the date of termination, the amount towards wages which the petitioner could have got in hand or could have taken home towards his emolument that should be the full wages drawn. It cannot, by any stretch of imagination or any stretch of clarification, be said that “full wages drawn” means what amount of wages the workman could have got after his promotion or after his revision or after his enhancement of D. A. etc. It has to be remembered that this is a relief granted to the workman for his struggle against the company; this is neither an economic concession nor a consequential benefit of a result of collective bargaining- The amount the legislature intended to allow to the petitioner is an amount which he used to take home or which he used to get in hand on the date of his termination as has been made clear in Dena Bank’s case, the. learned Counsel for the applicant submitted with much emphasis that the gross pay should be given to the employee but as observed earlier this is neither an economic concession nor a resultant effect or consequential benefit of a collective bargaining. This is a relief granted by the statute to the workman so that he can fight out the writ petition or he can run his family during the pendency of the writ petition before the High Court or the Supreme Court. The learned Counsel for the applicant submitted with much emphasis that in such circumstances the workman should be paid back wages or a portion of back wages as has been observed in Dena Bank’s case or in Varadraja’s case (supra). In this context, it has to be borne in mind that ultimately termination may be legal and may be illegal which cannot be decided now. Then of course there will be a question of recovery if any excess amount is paid. Therefore, excess amount, in the form of a gratuitous relief has not been made in the legislature or in Dena Bank’s case also. In Dena Bank’s case, the Hon’ble Supreme Court, in my opinion, pointed out that if there is any extraordinary circumstance, then the Court can grant some more payment, but not in all the cases and if a question of termination is taken into consideration in all the cases of termination, the workman is to fight against the employer, but ultimately it may be found that the termination is legal or illegal.
16. In view of the discussion made above, I am of the opinion that since the retirement date, that is rolling back issue, is not going to be decided in this application, which is to be decided in the main writ petition, and considering the validity of the award or the reference, the date of superannuation should be accepted as 58 years as has been decided by the company inasmuch as if it is taken as 60 years and relief under Section 17B is granted to the applicant on that basis then ultimately if the company succeeds, the question of recovery will arise which will put the workman again in difficulty. But if ultimately it is found that the company has lost in the writ petition before the High Court or the Supreme Court, there is ample scope that the arrear payment can be made by the company because the company is in a better position insofar as the financial aspect is concerned than a workman.
17. Considering the decisions, submissions and the averments, I therefore, direct the company to pay full wages drawn i.e. net wages which the workman could have taken or could have been allowed by the company at the time of termination and the wages which the workman could have taken home on the date of termination and that should be the net pay inasmuch as the workman, in any event, had he not be terminated, would not have taken or need not have been allowed by the company the gross pay. The company is directed to make arrear payment from the date of filing of the writ petition till date to the applicant workman within one week from date, or possible within three days, and go on paying these wages to the workmen till the date of retirement or till the date of disposal of this writ application whichever is earlier. Considering the facts, it does not appear to this Court that any back wages need be allowed to the petitioner at this stage. The application under Section 17B of the Industrial Disputes Act, 1947, filed by the applicant, is thus disposed of.
18. Since the case of Santosh Sanyal, the applicant in G. A. No. 290 of 2004 was heard along with this application, the same order is passed in this application also.
19. Insofar as application filed by the workman Asim Kumar Palit is concerned, which is G. A. No. 86 of 2004, a supplementary affidavit has been filed by company which may be treated as part of the writ petition. The applicant, Sri Santosh Sanyal may file the affidavit-in-opposition to the said supplementary affidavit within February 13, 2004. The reply may be filed within February 17, 2004 and the application being G. A. No. 290 of 2004 is fixed on February 19, 2004 at the top being marked as for orders.
20. Since three applications were heard together, the above two applications being G. A. No. 4490 of 2003 and G. A. No. 290 of 2004 are disposed of and G. A. No. 86 of 2004 is fixed on the date as mentioned above.
21. Parties shall act on xeroxed signed copy of this dictated order on the
usual undertakings.
Arun Kumar Mitra, J.