Kedia Distilleries Ltd. And Anr. vs Chhattisgarh Chemical Mill … on 22 August, 2000

Madhya Pradesh High Court
Kedia Distilleries Ltd. And Anr. vs Chhattisgarh Chemical Mill … on 22 August, 2000
Equivalent citations: 2000 (87) FLR 547, (2000) IILLJ 1177 MP
Author: C Prasad
Bench: C Prasad


ORDER

C.K. Prasad, J.

1. These writ petitions have been filed by
Kedia Distilleries Limited and Kedia Castle
Delleon Industries Limited (hereinafter
referred to as the ’employer’). Their prayer in
these writ petitions filed under Article 227 of
the Constitution of India is to quash the award
dated October 16, 1999, each of the cases
whereby while granting reinstatement, the
Industrial Court had directed for payment of
66% of back wages to the employees.

2. Shorn of unnecessary details, facts giving rise to the present writ petitions are that the State Government made a reference under Section 51 of the M.P. Industrial Relations Act, 1960 (hereinafter referred to as the ‘Act’) to the Industrial Court, the following questions for its answers:

(A) Is it desirable to revise the pay and allowances ? If so, what should be the Scheme for dearness allowance and other allowances and what order should be given in this respect to employer ?

(B) Is it desirable to give 15 days casual leave, 10 days holidays and 30 days commuted leave? If so, what direction should be given to employer ?

(C) Whether the retrenchment of the employees mentioned in the list is justified; ? If so, what direction should be given to the employer ?

Employer raised question as regard to the maintainability of the reference at the initial stage which was contested by the Union of the workers i.e., Chhattisgarh Chemical Mill Mazdoor Sangh (hereinafter referred to as the ‘Union’). Matter travelled from one Court to another and ultimately by consent of the parties, the Division Bench of this Court disposed of the matter in the following manner.

1. Industrial Court order dated May 31, 1995 upholding the maintainability of
reference and writ Court order dated September 27, 1996 affirming that order is upheld. In other words the reference made by the Government to the Industrial Court is found in order and would not be subject to any further objection by the appellants.

2. Any observations made by successive Benches of this Court touching the substance and merit of the dispute between the parties shall have no bearing in the disposal of the reference by the Industrial Court which shall proceed in the matter uninfluenced by any such observations if any, and is in accordance with law. Thereafter the Industrial Court proceeded to hear the matter and handed over the award which as stated earlier has been challenged by the petitioner in the present writ petition.

3. In the writ petition, an application has been filed by the Union for compliance of the provisions of Section 65(3) of the Act and on failure thereof, for dismissal of the writ petition. It is the stand of the Union that in view of the mandate of Section 65(3) of the Act, the workmen are entitled for full wages last drawn by them inclusive of any maintenance allowance admissible to them, during the pendency of the writ petition before this Court. The stand of employer is that Section 65(3) of the Act is not attracted in the facts and circumstances of the case and as such Union cannot compel the employer to pay full wages last drawn by the employees during the pendency of the present writ petition. Prayer of the Union has also been resisted on the ground that the Union can work out its right in terms of the award separately and Union cannot be permitted to compel the employer to pay last wages drawn in the present proceeding. It has been pointed out that in fact, recourse to such proceeding has been taken and award has been put into execution and properties of employer have been attached. It has been further
contended by the employer that the Board of Industrial and Financial Reconstruction having passed order holding the employer-Company to be ‘sick company’ in terms of Section 3(1)(0) of the Sick Industrial Companies (Special Provisions) Act (hereinafter referred to as ‘SICA’), it cannot be compelled to pay to the workmen last wage drawn. Prayer of the Union is also resisted on the ground that the award being grossly erroneous, perverse and untenable on the face of it, employer is not obliged to comply with the provisions of Section 65(3) of the Act. In any view of the matter, employer contends that non-compliance of the provisions of Section 65(3) of the Act, shall not ipso facto entail dismissal of the writ petition.

4. In view of the rival submissions, following questions fall for determination

(i) Whether Section 65(3) of the Act is attracted when a writ petition under Article 227 of the Constitution of India is filed against an award made by the Industrial Court on a reference under Section 51 of the Act ?

(ii) Whether the Union can be forced to work out its right in a separate proceeding

(iii) Whether the order passed by the Board of Industrial and Financial Reconstruction declaring the employer industry to be ‘sick company’ within the meaning of Section 3(1)(0) of SICA, absolves it from complying with the provisions of Section 65(3) of the Act?

(iv) Whether in case where the award is found to be prima facie untenable in law or grossly erroneous or perverse, this Court is possessed of the discretion to direct non-compliance of the provisions of Section 65 of the Act ?

(v) Whether non-compliance of the provisions of Section 65(3) of the Act ipso facto shall lead to dismissal of the writ petition ?

Question No. (I)

In order to appreciate this submission, it is apt to reproduce Section 65(3) of the Act which (reads as follows):

“65. Appeal – (1) xx xx xx
(2) xx xx xx

(3) Where in any case, a Labour Court, by its order directs reinstatement of any employee and the employer prefers an appeal before the Industrial Court against, such order, or any proceedings against the order of the Industrial Court in the High Court or the Supreme Court, as the case may be, the employer shall be liable to pay such employee during the pendency of such appeal, in the Industrial Court or such proceedings in High Court or the Supreme Court as the case may be, full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule if the employee had not been, employed in any establishment during such period and an affidavit by such employee had been filed to that effect in such Court:

Provided that where it is proved to the satisfaction of the Industrial Court or the High Court or the Supreme Court as the case may be, that such employee 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.

5. Mr. A.M. Mathur appearing on behalf of the employer submits that only in case when the Industrial Court passes an order in appeal and against which proceeding is either pending before the High Court or the Supreme Court that the provisions of Section 65(3) of the Act applies. According to him, in a case when the Labour Court directs reinstatement of an employee and the employer prefers appeal before the Industrial Court against such order and against such order of the Industrial Court, when a proceeding is brought to the High Court, provisions of Section 65(3) of the Act is attracted. He points out that against the order of the Labour Court passed under Section 31 of the Act, an appeal lies to the Industrial Court under Section 65(1) of the Act and only when the order has been passed by the Industrial Court in appeal that the provisions of Section

65(3) of the Act is attracted. He points out that in the present case, reference has been made to the Industrial Court and as such its award cannot be equated with an appellate order passed by the Industrial Court and as such the provisions of Section 65(3) of the Act is not remotely attracted. In order to buttress his submission, he emphasizes that Section 65(3) of the Act is part of Section 65, which according to the heading of Section itself clearly provides for its application in appeal. According to him when the language of the statute is plain and simple and admits one interpretation, no interpretation other than that what flows from the language of the statute, has necessarily to be given.

6. I have heard Mr. Sujoy Paul, Ms. Shobha Menon and Mr. A.G. Dhande for the Union. Mr. Paul contends that Section 65(3) of the Act shall come into play the moment any proceeding against the order of the Industrial Court either in appeal or award against the reinstatement, is pending before the High Court or the Supreme Court.

7. Having appreciated the rival submission I find substance in the submission of Shri Paul. In my opinion, vide language of Section 65(3) of the Act i.e., “any proceeding against the order of the Industrial Court is pending before the High Court”, clearly indicates that not only in that case when Industrial Court passes an order in appeal against the order of the Labour Court, but also in a case when award of reinstatement is granted by it on a reference under Section 51 of the Act, that Section 65(3) of the Act shall be attracted. It is to be borne in mind that Section 65(3) of the Act was substituted by M.P. Audyogik Sambandh (Sanshodhan) Adhiniyam, 1986 (M.P.Act No. 13 of 1986) which came into effect from June 1, 1986. The object of incorporating this provision is to curtail the tendency of the employer to carry the matter from one tier to another tier of Courts so as to force the workmen to abandon the case on account of poverty. I have no manner of doubt that the provisions of Section 65(3) of the Act shall be attracted in the present proceeding which has been initiated by the employer to set aside the award of the Industrial Court made by it on a reference under Section 51 of the Act.

8. As stated earlier, the only interpretation which could be put to Section 65(3) of the Act in view of its clear language, is that the same would be attracted when a proceeding is pending before this Court against the award of the Industrial Court against the order of reinstatement. Even otherwise it is well settled that in case of any doubt, interpretation beneficial to the workmen and which serves legislative purpose has to be adopted. Section 65(3) of the Act has been enacted by the legislature to give succour to the workmen during the pendency of the proceeding before the High Court against the order of reinstatement. Statutes, cannot and should not be construed as theorems of Euclid, but with some imagination of the purposes which lie behind them and to be too literal in the meaning of words is to see the skin and miss the soul. That being the position, provision of Section 65(3) of the Act is attracted in the facts and circumstances of the case.

Question No. (II)

9. Mr. Mathur submits that the Union can very well work out its right in separate proceeding under Section 33C of the Industrial Disputes Act as also under other statutes and the Union having taken recourse to that, application filed by it for payment of last wages drawn by the workmen in the present proceeding is not fit to be granted. Mr. Sujoy Paul, however, appearing on behalf of the Union submits that it cannot be forced to work out its right in separate proceeding and notwithstanding the fact that the Union has taken recourse to such a proceeding, still the employer cannot be absolved from carrying out its statutory obligation under Section 65(3) of the Act.

10. In my opinion when the legislature has provided for grant of assistance to the workmen during the pendency of the proceeding before the High Court or the Supreme Court, compelling such workmen to resort to a separate proceeding to work out its right, would be totally contrary to the spirit and purpose of Section 65 of the Act. One cannot lose sight of the fact that many of the employers take recourse to proceeding from one Court to another in order to make the workmen financially crippled so that they could not defend their right. Authorities on this question are available at one place in the Book INDUSTRIAL LAW at page 1435.

“In V.A. Unnis v. Management of M.A. Khizar Hussain & Sons (P) the award of the Labour Court directed reinstatement of the workman with back wages which was
challenged by the employer in a writ petition before the Madras High Court. During the pendency of the writ petition, the workmen claimed the benefits of Section 17B which was rejected by the single Judge with the observation that “there was nothing in that provision to suggest that the High Court should direct the management to pay full wages last drawn by the workman.” and that the workman will be at liberty to work out his remedies for obtaining relief presumably under Section 33C(2) of the Act. This holding was set aside by a Division Bench of the Court stating that: by a separate proceeding would be contrary to the spirit and the purpose of Section 17B of the Act.”

Question No. (III)

11. Mr. Mathur, submits that the petitioners industry having been declared as sick Company under Section 3(1)(0) of SICA, petitioners cannot be compelled to make deposit of the last wages drawn by the employees. Mr. Paul, however, submits that notwithstanding the order of the Board of Industrial and Financial Reconstruction, employer cannot be absolved from carrying out its statutory obligation under Section 65(3) of the Act. In order to appreciate the rival submission, it is apt to reproduce Section 22(1) & (3) of the SICA, same reads as follows:

“22. Suspension of legal proceeding contract etc. (1) Where in respect of Industrial Company an inquiry under Section 16 is pending or any Scheme referred to under Section 17 is under
preparation or consideration or a sanctioned scheme is under implementation or where an appeal under Section 25 relating to an industrial Company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956) or any other law or the memorandum and articles of association of the Industrial Company Or any other instrument having effect under the said Act or other law, no proceeding for the winding up of the industrial Company or for execution, distress or the like against any of the properties of the industrial Company or for the appointment of a receiver in respect thereof and no suit for the recovery of the money or for the enforcement of any security against the industrial Company or of any guarantee in respect of any loans, or advance granted to the industrial Company shall lie or be proceeded with further except with the consent of the Board as the case may be, the Appellate Authority.

(2) xx xx xx xx xx

(3) where an inquiry under Section 16 is pending or any scheme referred to in Section 17 is under preparation or during the period of consideration of any scheme under Section 18 or where any such scheme is sanctioned thereunder, for due implementation of the scheme, the Board may by order declare with respect to sick industrial Company concerned that the operation of all or any of the contracts, assurances of the property agreements, settlements awarded standing orders or other instruments in force, to which such sick industrial Company is a party or which may be applicable to such sick industrial company immediately before the date of such orders shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder, before the said date, shall remain suspended or enforceable with such adaptations and in such manner as may be specified by the Board:

Provided that such declaration shall not be made for a period exceeding two years which may be extended by one year at a time so, however, that the total period shall not exceed seven years in the aggregate.”

12. From reading of provisions of Section 22(1) of the SICA, it is evident that no suit for recovery of money or for the enforcement of any security against the industrial Company or of any guarantee in respect of any loans or advance granted to the Industrial Company shall lie or be proceeded without the consent of the Board or the appellate authority as the case may be. Here in the present case, it is the employer who has brought the action under Article 227 of the Constitution of India for quashing the award of the Industrial Court of reinstatement and no proceeding has been brought against it. As the proceeding has been initiated by the employer itself, it cannot take recourse to the provisions of Section 22 of the Act to over come its statutory obligation under Section 65(3) of the Act.

13. Scope and ambit of Section 22(1)&(3) of SICA came up for consideration before various High Courts and this Court earlier. In case of Baburao P. Tawade and Ors. v. Hes Limited and Anr., (1997-III-LLJ (Suppl)-265 at 274, 275), the Bombay High Court expressed its view as follows:

“14. Having considered the position in law as canvassed at the Bar, on strength of the judgments referred to by me, I am of the view that even if the application had been made by the workmen under Section 33C(2) of the Industrial Disputes Act for recovery of the monies due to them, after the reference under SICA made to the BIFR, such application could not have attracted the Bar under Section 22(1) of SICA; much less can the writ petition under Articles 226 & 227 of the Constitution of India pending before this Court to challenge the adverse order in application under Section 33C(2) of the Industrial Disputes Act, be held to attract the bar under Section 22(1) of SICA. In my view, the bar under Section 22(1) of SICA would not apply to the present writ petition, which cannot be dismissed on the ground that no consent had been obtained from the BIFR for the continuation of the present proceedings.”

Further, the Allahabad High Court in case of Modi Industries Ltd. v. Additional Labour Commissioner, (1994-I-LLJ-482 at 486) expressed its view in the following words:

“14. In my opinion, the purpose and object of Section 22 cannot be to cover those proceedings or actions which are necessary for running the industry irrespective of the fact whether it is sick or non-sick. If the industry cannot run without workers the workers also cannot be expected to work without payment of their wages. The timely payment of their wages for which the provisions of the Act of 1978 have been enacted would thus be a step helping rehabilitation and it cannot be said that it creates any obstacle in fulfilling the object for which the Act of 1985 has been enacted. Both the Acts are complimentary to each other. Section 22 cannot thus affect the proceedings taken under Section 3 of the Act of 1978 for compelling petitioner to make payment of wages already accrued to the workers.”

Further in case of National Textile Corporation Ltd. B. N. Jagaonkar and Ors., 1997 (i) CLR, 1102, the Bombay High Court held as follows:

“Apart from that, language of Section 22 in no way would stand in the way of workers making recovery of wages much in the same way as recovery of tax by the Government as has been laid down by the Apex Court in the case of Deputy Commercial Tax Officers and others.”

14. A learned single Judge of this Court had the occasion to consider the bar under
Section 22(3) of the SICA while dealing with the case under Payment of Gratuity Act, 1972 in Writ Petition No. 354 of 1997 disposed of on April 28, 1998 National Textile Corporation M.P. Ltd. v. The Collector and four Ors., and
the learned Judge expressed his views as follows:

“In the opinion of this Court the object of
the statute of 1985 to give a helping hand
(sic) with a view to sustain them if possible
or to wind them up, if it is not possible to

sustain them. The object is to hold the sick companies so that industrial peace is maintained and employment is generated. There can be hardly any doubt that this exercise was taken up by the Legislature with due concern for workmen. An industry does not run on its own. Apart from machines, the workmen also contribute their bit for running of an industry It would be anathema to hold that the Act of 1985 which is designed to keep tottering industry on its legs, required a worker of the same industry, who did not desert it during its fallen days to run from the pillar to post to get his legitimate dues sanctioned merely because the sick company refused to perform its statutory duty compelling him to take recourse to law. If the view suggested by the petitioner is accepted, then there is likelihood of great mischief. No worker will be paid wages when they become due, and he shall be deprived of his wages even if he obtains an order executable against the employer because the proceedings for ‘distress recovery’ shall be deemed to be stayed automatically unless BIFR grants consent. The workers will be driven to BIFR which is a body with technical bias for restoring the economy of the sick industrial company and is unlikely to take up the case of a worker with the necessary welfare angle. It is true that in given cases the workmen themselves may be responsible for sickness of industrial companies but in that case there are sufficient safeguards in our labour laws. It is the firm opinion of this Court that Section 22(1) of the Act of 1985 was not meant to be applied to such cases which are being agitated before this Court. We must apply the rule of harmonious construction to cut down wide sweep language of Section 22(1) of the Act of 1985, so that it does not militate against the Section 14 of the Act. Section 22(1) of the Act of 1985 read with Section 22(3) thereof is a part of the scheme under Section 22. The provisions of Section 22(3) of the Act of 1985 give plenary powers to suspend contracts, assurance of properties, agreements, settlements, awards and standing order suo
motu. This sub-section would not have been inserted if proceedings of recovery of dues like gratuity were automatically suspended pending or preparation of scheme under Sections 16 and 17 of the Act respectively or when the sanctioned scheme was under consideration or implementation. The Court cannot interpret Section 22(1) in the manner that Section 22(3) would appear mostly redundant. It is clear from going through Sub-section 3 of Section 22 of the Act of 1985 that there is no mention in it of terminal benefits. Gratuity in its essence, is a terminal benefit as per Section 4 of the Act. It accrues on superannuation, death or disability or when the employee quits his job under the circumstances mentioned in Section 4 of the Act. The order of controlling authority or the appellate authority cannot be said to be an award technically. In view of this matter, it is manifest that the language of Section 22(1) of the Act 1985 though apparently wide, was not designed to override Section 14 of the Act. Therefore, recovery certificates issued under Section 8 of the Act are not hit by Section 22(1) of the Act of 1985. Section 22(1) of the Act of 1985 is purposely addressed to those proceedings of ‘distress and the like’ which are likely to affect and aggravate the sickness of the industrial company. It could not have been within the contemplation of legislature to stay the legitimate dues to the workers who remained with the sick company in its bad days and tried to help it out of the mess all around. It may be noted that in such matter capital and management are more responsible because the ultimate decision lies in their hands.”

A learned single Judge of this Court in case of Allwyn (A Unit of Voltas Ltd.), Hyderabad and Ors. v. Deputy Labour Commissioner, In-dore and Ors., 1999(1) MPLJ 195 had also occasion to consider the bar of Section 22(1) and (3) of SICA with reference to the proceedings under Section 33C(1) of the Industrial Disputes Act and on consideration of various authorities on the subject held that Section 22(1) and (3) of SICA, does not create any bar against the initiation of proceedings under Section 33C(1) of the Industrial Disputes Act.

15. Here in the present case, petitioners although themselves have initiated the proceeding and still not prepared to carry out its statutory obligation under Section 65(3) of the Act. The authorities referred to above clearly lean in favour of the workmen while considering the ambit and scope of Section 22(1) and (3) of SICA. I am of the considered opinion, that the petitioner having invoked the jurisdiction of this Court under Article 227 of the Constitution of India for setting aside the award of reinstatement passed by the Industrial Court and provisions of Section 65(3) of the Act being beneficial to the workmen, petitioner cannot be permitted to take shelter under Section 22(1)(3) of the SICA to resist the claim of the workmen. I negative this submission of Shri Mathur.

Question No. (IV)

16. Mr. Mathur submits that the award passed by the Tribunal directing reinstatement is on the face of it untenable, grossly erroneous and perverse and as such employer may not be compelled to suffer the rigours of Section 65(3) of the Act and be compelled to pay the last wages drawn by the employees. Mr. Mathur points out that on the basis of evidence of one workman, the Tribunal ought not to have accepted the case of the Union and directed for reinstatement of the workmen. He points out that while exercising the power under Articles 226 and 227 of the Constitution of India, this Court is possessed of the discretion to direct (sic) non-compliance of the provisions of Section 65(3) of the Act. In support of his submission, Shri Mathur has placed reliance on a judgment of the Supreme Court in the case of L. Chandra Kumar v. Union of India and Ors., AIR 1997 SC 1125 : 1997 (3) SCC 261 and he has drawn my attention to the following paragraphs:

“In view of the reasoning adopted by us we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution,
are unconstitutional. Section 28 of this Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226 & 227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts, even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.”

17. Having appreciated the rival submission, I find no substance in the submission of Shri Mathur. The very assumption of Shri Mathur that Section 65(3) of the Act puts restriction on powers of the High Court under Article 226 of the Constitution of India is absolutely misconceived. It is relevant here to state that provisions of Section 65(3) of the Act is akin to Section 17B of the Industrial Disputes Act as the object of both the provisions are one and the same. The power of the High Court under Article 226 of the Constitution of India with reference to Section 17B of the I.D. Act came up for consideration

before the Division Bench of the Bombay High Court in case of International Limited v. K.B. Joshi and Ors., (1987-II-LLJ-210 at 225) wherein it has been held as follows:

“8. So far as the challenge to Section 17B of the Act passed 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 Article 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. Its operation is subject to the 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 Courts or the Supreme Court of India under Articles 226 and 136 of the Constitution. The powers of the High Courts or the Supreme Court under Articles 226 & 136 of the Constitution are paramount and Section 17B
does not interfere with nor restrict the said constitutional powers.”

(Italicisation mine)

The judgment of the Bombay High Court in case of Elpro International Ltd. (supra) was considered by the Supreme Court in case of Dena Bank v. Kiritikumar T. Patel, 1999 (2) SCC 106 : (1998-I-LLJ-1) in which it has been held as follows at p. 8 of LLJ:

“24. 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, 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 Eipro 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.”

Again in the case of C.M. Saraiah v. E.E., Panchayat Raj Department and Anr., (2000-I-LLJ-23) (SC) wherein when a challenge was made to an award passed by the Labour Court directing reinstatement of work-men with back-wages, the Supreme Court has

held that this Court has no jurisdiction to direct non-compliance of the provisions of Section 17B of the Industrial Disputes Act. In the said case, it has been held as follows (2000-I-LLJ-23 at 24) :

“3. Having examined the provisions of Section 17B of the Industrial Disputes Act, we are of the considered view that the Court has no jurisdiction to direct non-compliance with the same when the condition precedent for passing an order in terms of Section 17B of the Act is satisfied, and this being the legislative mandate, the Division Bench of the High Court committed serious error in interfering with the direction of the learned single judge. We accordingly set aside the impugned order passed by the Division Bench and direct that the order of the learned Single Judge requiring compliance with Section 17B of the Industrial Disputes Act shall be complied with by the employer. This appeal is accordingly allowed. There shall be no order as to costs.”

18. From what has been stated above, it is evident that the provision of Section 65(3) of the Act which inter alia provides for payment of last wages drawn by the workmen cannot be regarded as a restriction on the power of the High Court under Articles 226 & 227 of the Constitution of India. In my opinion where it is demonstrated that the award is prima facie grossly erroneous or perverse or either without jurisdiction or is otherwise a nullity, this Court can exercise its power under Article 226 of the Constitution of India and may not insist, for compliance of Section 65(3) of the Act. True it is that while considering such a prayer, the Court shall always bear in mind the legislative mandate under Section 65(3) of the Act. The decision of the Supreme Court in case of Dena Bank (supra) on which heavy reliance has been placed by Shri Sujoy Paul does not, as a preposition of law, lay down that such a provision puts restriction on the powers of the High Court under Article 226 of the constitution. It is equally true in view of the authoritative pronouncement of the Supreme Court in case of Dena Bank (supra) and C.M. Saraiya (supra) that this Court has no jurisdiction to direct non-compliance of Section 65(3) of the Act denying the workmen the benefit under that Section. Conferment of right under Section 65(3) of the Act is not a restriction on the power of this Court under Articles 226 & 227 of the Constitution. That being the settled position, in view of the judgment of the Supreme Court in case of Dena Bank (supra), I am of the opinion that this Court in cases when it is satisfied that the award of reinstatement is prima facie absurd, perverse, grossly erroneous or nullity it may not insist for compliance of Section 65(3) of the Act, otherwise it would, in sum and substance mean curtailment of the power of this Court under Articles 226 & 227 of the Constitution.

19. In the present case, no evidence or material was placed by the employer, before the Tribunal. It is a case of total non co-operation by the employer to the Tribunal in answering the reference. In a situation like this, I am of the opinion that the award rendered by the Tribunal does not come within the exceptions aforesaid and as Such employer is bound to comply with the provisions of Section 65(3) of the Act.

Question No. (V)

20. Mr. Mathur submits that non-compliance of the provisions of Section 65(3) of the Act, ipso facto shall not lead to dismissal of the writ petition. Mr. Sujoy Paul, however, submits that a litigant who does not accept the legislative command is disentitled to seek the discretionary relief under Articles 226 & 227 of the Constitution of India. He submits that condition precedent for hearing of the writ petition is that the petitioner complies with the provision of Section 65(3) of the Act.

20. Having appreciated the rival submission I find substance in the submission of Shri Paul. The legislature in its wisdom has provided for payment of last wages drawn to the workmen in case of an order of reinstatement. This Court while exercising its power under Articles 226 & 227 of the Constitution of India, has to give respect to the legislative mandate. Legislative mandate being clear and unequivocal, any person not obeying its mandate cannot be allowed to invoke the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. Doors of this Court is closed for such a person. The view which I have taken finds support from the judgment of this Court in case of Madhya Pradesh Dugdh Mahasangh v. Gangadhar Shanna and Anr., 1996 MPLJ 138 paragraph 4 of the said judgment which is relevant here for the purpose, reads as follows :

“However, as the order of the Labour Court granting reinstatement with back wages was passed as long back as October 14, 1991 the respondent No. 1 has not been granted reinstatement nor has been paid full wages last drawn in accordance with Section 65(3) of the Act, hence I direct the petitioner to make the payment of the full wages last drawn, to the respondent No. I/the employee in accordance with Section 65(3) of the Act from the date of the order of the Labour Court, till the appeal is decided. The
petitioner shall pay all arrears due upto August 31, 1995 within a period of 3 weeks from today and then shall continue to pay the same till the decision of the appeal by 10th of each month. Compliance of Section 65(3) of the Act as directed shall be the condition precedent for hearing of the appeal on merits”.

21. Having negatived all the submissions made on behalf of the petitioner, now I have to consider as to whether writ petition filed by the petitioners be dismissed straightaway or it be given opportunity to comply with the provisions of Section 65(3) of the Act. In the facts and circumstances of the case, I am of the opinion that to meet the ends of justice petitioners be given 3 months time for payment of last wages drawn to the workmen from the date of institution of writ petitions before this Court In case, petitioners do not comply with the same, writ petitions shall stand dismissed without further reference to the Bench.

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