IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.4.2009
CORAM:
THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
Writ Appeal No.277 of 2009
& M.P.No.1 of 2009
Management of
M/s.Gem Manufacturers Private Ltd.,
Ganapathy Post,
Coimbatore. .. Appellant
vs.
1. The Presiding Officer,
Labour Court,
Coimbatore.
2. Mr.T.Sivakumar .. Respondents
Writ Appeal against the order dated 30.6.2008 passed by the learned single Judge in M.P.No.1 of 2007 & W.V.M.P.No.1 of 2008 in W.P.No.6743 of 2007 on the file of this Court.
For appellant : Mr.John for M/s.T.S.Gopalan & Co.
JUDGMENT
(The Judgment of the Court was delivered by S.J.Mukhopadhaya,J)
This Writ Appeal has been preferred against the interim order dated 30.6.2008 passed by the learned single Judge in M.P.No.1 of 2007 & W.V.M.P.No.1 of 2008 in W.P.No.6743 of 2007.
2. The brief facts of the case are that the appellant (hereinafter referred to as ‘the Management’) preferred the Writ Petition against the common Award, dated 23.12.2004 passed by the Presiding Officer, Labour Court, Coimbatore in I.D.Nos.310, 311 and 714 to 717 of 1999. Prayer was also made to pass interim order of stay of payment of back-wages.
3. The learned single Judge initially passed interim order of stay on 27.2.2007, against which, a petition for vacating the order of stay was filed on behalf of the workmen. The Court, on 14.3.2007, directed the Management to deposit the entire back-wages as awarded by the Labour Court within a period of 12 weeks from the date of receipt of a copy of the order. In the vacate-stay-petition, an affidavit was filed on behalf of the workmen that the Management had not paid the last wages drawn to one of the workmen as per Section 17-B of the Industrial Disputes Act (for short, ‘the I.D. Act’) and instead, he had been paid lesser amount and the Management deposited the wages as per the Minimum Wages Act. The learned single Judge, by the impugned order dated 30.6.2008, taking into consideration the decision of the Supreme Court in the case of “Dena Bank vs. Ghanshyam“, reported in 2001 (5) SCC 169, held that there was no question of payment of salary as per the Minimum Wages Act and the Management was directed to pay wages taking into account the last drawn salary to the concerned workman and to report compliance of the said order. The dispute vis-a-vis some of the workmen having been settled under Section 18(1) of the I.D. Act between the Management and such workmen, no further order was passed with regard to the rest of the workmen.
4. Learned counsel appearing on behalf of the Management submits that the Management has objection with regard to the direction given to pay the wages under Section 17-B of the Industrial Disputes Act. It was brought to the notice of the Court that the workman in question was given fresh appointment by order dated 18.4.2005 read with order dated 22.4.2008. It was submitted that the Management having been appointed the workman, there was no question of paying wages in terms of Section 17-B of the Act. Learned counsel also placed reliance upon a decision of a Division Bench of this Court in the case of “Sirukalathur H.W. Co-op. vs. Labour Court”, reported in Vol.89 FJR 171.
5. We have heard learned counsel appearing on behalf of the Management and perused the orders and records.
6. It is not the case of the Management that the workman concerned was in employment in some other organisation and therefore, he is not entitled for wages under Section 17-B of the I.D. Act. The only ground is that the workman has been given fresh appointment and for that, the learned counsel relied on the decision of the Division Bench of this Court reported in Vol.89 FJR 171 (supra). The Management cannot take advantage of the said decision of the Division Bench, as it related to reinstatement and not a case of appointment (fresh appointment).
7. Section 17-B of the I.D. Act with regard to payment of wages last drawn is specific and reads as follows:
“Section 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.”
8. It will be evident that if the Management moves in Writ Petition before the High Court or the Supreme Court against the Award of reinstatement and thereby, does not implement the order of reinstatement, then in that case, the Management is bound to pay the wages last drawn to the workman, under Section 17-B of the I.D. Act.
9. The question which fell for consideration before the learned single Judge was as to whether the Management offered the wages last drawn by the workman concerned, in terms of Section 17-B of the I.D. Act.
10. From the order of the Management, dated 18.4.2005 read with the order dated 22.4.2008, it will be evident that though the Management originally asked him to report for duty in terms of the Award, after the workman reported for duty, a fresh letter of appointment was provided on 22.4.2008, which does not amount to reinstatement, but amounts to re-appointment. Thus, the Management had not offered the last wages drawn by the workman, but new salary in terms of the letter of appointment, dated 22.4.2008, which does not amount to reinstatement, but a fresh appointment. In that background, if the learned single Judge has directed the Management to pay the wages in terms of Section 17-B of the I.D. Act, it requires no interference.
11. So far as the question as to whether the workman concerned was in the pay roll or not, it is a question which has been looked into by the Labour Court, and the same is pending consideration in the Writ Petition. We are not inclined to express any opinion on such question of fact.
12. There being no merits, the Writ Appeal is dismissed. No costs. The Miscellaneous Petition is closed.
(S.J.M.J) (N.K.K.J)
13.4.2009
Index: Yes
Internet: Yes
cs
To
The Presiding Officer,
Labour Court, Coimbatore.
S.J.MUKHOPADHAYA,J
and
N.KIRUBAKARAN,J
cs
Writ Appeal No.277 of 2009
13.4.2009
