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PETITIONER: DENA BANK

       Vs.

RESPONDENT: KIRITIKUMAR T.PATEL

DATE OF JUDGMENT:       19/11/1997

BENCH: S.C. AGRAWAL, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                THE 19TH DAY OF NOVEMBER, 1997 Present:                 Hon’ble Mr.Justice S.C.Agrawal                 Hon’ble Mr.Justice V.N.Khare P.P.Rao,   Sr.Adv.,   Ramji   Srinivasan,   Shaju   Francis, R.Sasiprabhu, Advs. with him for the appellant Jitendra   Sharma,   Sr.Adv.,   (A.C.),   Ms.Gunwant   Dara, Ms.Minakshi Vij, Advs. with him for the Respondent Raj Kumar  Gupta H.V.I.Sharma  and A.N.Bardiyar,  Advs.  for Intervenors.                       J U D G M E N T      The following Judgment of the Court was delivered:      S.C.AGRAWAL, J.:      Special leave granted.      The question  that  falls  for  consideration  in  this appeal is  whether the expression "full wages last drawn" in Section  17-B   of  the   Industrial  Disputes   Act,   1947 [hereinafter referred  to as as ‘the Act’] means wages drawn by a workman at the time of termination of his employment or wages which he would have drawn on the date of the award.      The respondent  was employed  as Clerk-cum-Cashier with the appellant-Bank.  After holding  an inquiry  into charges relating to  misappropriation of  funds of  the Bank  of the tune of  Rs.5,000/- as  contained in charge sheet dated June 18, 1983  he was  dismissed by order dated July 1, 1986. The said dismissal  of the respondent gave rise to an industrial dispute which  was referred  for adjudication to the Central Industrial  Tribunal,   [hereinafter  referred  to  as  ‘the Tribunal’]. The  tribunal found  that the  charges were  not established and  held that  the dismissal  of the respondent was illegal.  The Tribunal  directed  reinstatement  of  the respondent in  service. The  appellant-Bank has filed a writ petition under  Article  227  of  the  Constitution  in  the Gujarat  High  Court  challenging  the  said  award  of  the Tribunal and  the said  writ petition in pending in the High Court. In  the said  writ petition the Division Bench of the High Court  on September  11, 1991  passed in  interim order staying the operation of the award on the condition that the appellant-Bank would  comply with  the provisions of Section 17-B of  the Act  and will  pay  to  the  respondent  during

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pendency  of  the  writ  petition  wages  as  per  the  said provisions subject  to the  respondent  complying  with  its requirement meaning  thereby that he will be paid wages last drawn  or  which  would  have  been  drawn  if  he  was  not suspended. An  application was  submitted by  the respondent for modification  of the  said order seeking a direction for payment of  wages as  on the  date of  the award.  The  said application was,  however, rejected by the Division Bench of the High Court by order dated October 22, 1991. Subsequently another application  was filed  by the respondent whereunder it was  submitted that  during pendency of the writ petition in the High Court settlements had been signed with regard to wage revision,  etc., the  last such  settlement being dated 14, 1995  and that  the said settlement had been implemented by the  appellant-Bank in  respect of  employees already  in employment. The respondent claimed that he was also entitled for revision  in wage structure including Dearness Allowance and other perks and perquisites. On the said application the learned Single  Judge on  September 26, 1995 passed an order directing that  the respondent  shall be  paid the  wages as revised by  the  appellant-Bank  including  the  increments, D.A., etc.  which are  granted to all the employees pursuant to two  settlements signed  during the  pendency of the writ petition between  the banking  industry and  the  All  India Trade Unions  which are  known as  the Fifth  and the  Sixth Bipartite Settlements  and that  arrears be paid to him from the date of the award accordingly. The Letters Patent Appeal filed by  the appellant-Bank  against the  said order of the learned Single  Judge was decided by a Division Bench of the High Court  by the  impugned judgment dated February 7, 1996 whereby the  direction given  by the  learned  Single  Judge regarding  wages   payable  to   the  respondent   has  been maintained but  the direction  regarding  arrears  has  been modified and  it has  been directed  that the appellant-Bank shall deposit  all deposit of three years in the name of the respondent  and  that  from  January  1,  1996  onwards  the respondent will  be paid  according  to  the  order  of  the learned Single  Judge and that the deposit will abide by the final result  of  the  Special  Civil  Application  but  the interest accruing  on the fixed deposit shall be paid to the respondent. Feeling  aggrieved by  the said  judgment of the Division Bench  of the  High Court  the  appellant-Bank  has filed this appeal.      Shri P.P.Rao,  the learned senior counsel appearing for the appellant-Bank, has urged that under Section 17-B of the Act the respondent is only entitled to payment of wages last drawn on  the date  of the termination of his employment and that the High Court was in error in directing that he should be paid the wages as revised by the appellant-Bank including the increments,  D.A., etc.  which are  granted to  all  the employees pursuant  to two  settlement between  the  banking Industry and  the All  India Trade Unions which are known as the Fifth  and the  Sixth Bipartite  Settlements which  were signed during  the pendency of the writ petition in the High Court. It  has been  urged that  the expression  "full wages last drawn"  only means  the quantum  of emoluments actually drawn by  the workman  at the time of the termination of his employment and  would not  mean the  wages which the workman would be entitled in terms of the award whereby the order of dismissal has  been set  aside. In  support of his aforesaid submission the  learned counsel  has placed  reliance on the following decisions of the various High Court: 1.   International Air Cargo Workers Union Vs. International      Airports Authority of India, [1990] 1 LLJ 1192 (Mad.); 2.   Daladdi Coop.  Agriculture  Service  Society  Ltd.  vs.

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    Gurcharan Singh  & Anr.,  1993 (5)  SLR 719  (Punjab  &      Hary.); 3.   Elpro International  Ltd. vs.  K..B.Joshi &  Ors., 1987      Lab.I.C. 1468 at 1472-1473 (Bom); 4.   The Kapurthala  Central Cooperative  Bank Ltd.  vs. the      Presiding Officer,  Labour Court, Jalandhar, 185 (2) 88      Pun.L.R.74.      Shri Jitendra  Sharma, the  learned senior counsel, who was requested to assist the Court as amicus curiae since the respondent did  not chose  to appear in spite of notice, has submitted that  the expression  "full wages last drawn" does not connote the amount that was being paid to the workman at the time  of termination  of his  employment but  means  the wages that  would be  payable to him at the time of order of reinstatement.   In support of his aforesaid submission Shri Jitendra Sharma  has referred  to the  Objects  and  Reasons underlying the  enactment of Section 17-B and has urged that the said  provisions have been enacted to give protection to a workman  who having  succeeded in  obtaining an award from the Labour  Court, Industrial  Tribunal or National Tribunal setting aside  the order  of termination  of his service and directing that  he be  reinstated, is  not allowed to resume work because  the employer  has filed proceeding in the High Court or  in this  Court to  challenge the  said award.  The learned counsel has urged that if the workman is to get only what he  was getting  at the  time  of  termination  of  his service, whether  as subsistance allowance or wages, he gets no benefit of the award in his favour and is put back to his position  as   a  suspended   or  charge   sheeted   workman notwithstanding the fact that termination order has been set aside. Shri  Jitendra Sharma  has also  emphasised  that  it takes years  to get  a matter  decided that  it could not be the intention  of Parliament  in enacting  Section 17-B that workman should  only be  paid  wages  that  he  was  drawing several years  ago at  the time  of the  termination of  his service. In  support of his submissions Shri Jitendra Sharma has placed  reliance on  the following decisions of the High Courts: i.   Vishveswaraya Iron  and Steel  Ltd. vs. M. Chandrappa &      Anr., 1994 (84) FJR (Kar); ii.  Carona Sahu  Co. Ltd vs. A.K.Munakhan & Ors., 1995 (70)      FLR 25 (Bom); iii. Kirtiben B.Amin vs. Mafatlal Apparels, 1995 (2) GLR 804      (Guj.); iv.  Macneil and Magor Ltd. vs. 1st  Additional Labour Court      and Anr., 1995 (1) Labour Law Notes 1014 (Mad); v.   Fouress Eng. (India) Pvt. Ltd. vs. Delhi Administration      & Ors., 1987 (1) LLJ 485 (Delhi); and vi.  P.Channaiah vs.  Dy.Ex.Eng. R.R.Dist.  & Ors.  1996 (2)      LLJ 240 (A.P.).      Shri Raj  kumar Gupta,  the  learned  counsel  for  the Intervenor,  has  also  placed  reliance  on  the  decisions referred to  above on  which reliance  was  placed  by  Shri Jitendra Sharma  and has  emphasised the hardship that would be caused  to the workman if the expression "full wages last drawn" is  construed to  mean wages that were being drawn by him at  the time of termination of his employment because it would not  take into  account the rise in the cost of living during the period the matter was pending adjudication before the Tribunal  and is  under consideration  before  the  High Court or this Court.      It would  be convenient  at this  stage to  set out the provisions contained  in Section 17-B of the Act which reads as under:      Section 17-B. Payment of full wages

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    to workman  pending  proceeding  is      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      proceeding 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   bee  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  ben employed  and  had      been       receiving       adequate      remuneration during  any 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."      The  objects   and  reasons   for  enacting   the  said provisions were as follows :      "When Labour  Courts pass  award of      reinstatement,  these   are   often      contested by  an  employer  in  the      Supreme Court  of High  Courts.  It      was felt  that  the  delay  in  the      implementation of  the award  cause      hardship to  the workman concerned.      It  was,   therefore,  proposed  to      provide the  payment of  the  wages      last   drawn    by   the    workman      concerned,      under       certain      conditions, from  the date  of  the      award  till  the  case  is  fianlly      decided in  the Supreme  Court High      courts."      It would  thus appear  that the  object underlying  the enacting of  the provisions  contained in Section 17-B is to give relief  to the  workman in  whose favour  an  award  of reinstatement has  been passed  by the  Labour Court and the said award  is under  challenge in  the High  Court of  this Court. The said relief has been given with a view to relieve the hardship that would be caused to a workman on account of delay in  implementation of  the award  as a  result of  the pendency of the proceedings in the High Court or this Court. The question  for consideration  is: what  is the  extent to which such  relief has  been granted to a workman under this provision? The  objects and reason do not indicate an answer to this  question and  its answer  has to  be found  in  the provisions of  the enactment.  Since  the  expression  "full wages last  drawn" in Section 17-B has been construed by the various High  Court in  the decisions  referred to  above we would briefly refer to the same:

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    A  Division  Bench  of  the  Karnataka  High  Court  in Vishveswaraya Iron  and Steel  Ltd. vs. M. Chandrappa & Anr. [Supra] has  held that the words "full wage last drawn" take into their  fold the  wages drawn on the date of termination of the services plus the yearly increment and the D.A. to be worked out  till the  date of the award. In taking this view the learned  Judge have  pointed out that it is not uncommon that the  proceedings before  the Labour Court linger on for years and  in some cases it takes a decade and that if after a decade  the full  wages last drawn are to be paid from the date of  the award  during the  pendency of  the proceedings before the  Court at  the same rate at which the wages where last drawn  by the workman when he was removed, dismissed or terminated from  the  service,  it  would  cause  him  great prejudice and injustice and will result in harassment of the workman and  that during  the last  period of 10 years there would be  escaiations in  the cost of living and there would also be  increase in the wages paid to the workman doing the work of similar nature.      The said  decision was followed by learned Single Judge of the  Gujarat High Court  in Kirtiben B. Amin vs. Mafatlal Apparels [supra].      In Carona Sahu Co. Ltd. vs. A.K.Munakhan & Ors [supra], a Division  Bench of  the Bombay High Court, after referring to the  decision of  the Karnataka  High Court Vishveswaraya Iron  and  Steel  Ltd.  [supra],  has  laid  down  that  the expression "full  wages last  drawn" means  the  full  wages which the  workman was  entitled to draw in pursuance of the award and  the implementation  of which  is suspended during the pendency  of the  proceedings. The  learned Judges  have observed that  though the  work "drawn" connotes past tense, it is obvious that the proper construction of the section is that the  workman is  entitled to  the full  wages which the workman would  have  been  entitled  to  draw  but  for  the pendency of the proceedings in the High Court or this Court. According to  the learned  Judges every  component of  wages payable on  the  date  of  the  award  must  be  taken  into consideration while  determining what were the wages payable to the  workman on  the date  of the award. It has been held that this  interpretation of the expression "full wages last drawn"  subserves   of  the  object  and  intention  of  the Parliament in enacting Section 17-B of the Act.      In Macneil  and Magor  Ltd. vs.  1st Additional  Labour Court and Anr. [supra], a learned Single Judge of the Madras High Court has followed the said decision of the Bombay High Court in    Carona  Sahu  Co.  ltd.  [supra].  Similarly  in P.Channaiah vs.  Dy. Ex.  Eng. [supra] the Division Bench of the Andhra Pradesh High Court has followed the said decision of the Bombay High Court in Carona Sahu Co. Ltd. [supra].      The  High   Court  of   Punjab  &  Haryana  in  Daladdi Cooperative Agriculture  Service Society  Ltd. vs. Gurcharan Singh &  Anr., 1993  (5) SLR  719,  has,  however,  taken  a different  view.  The  learned  Judge  have  held  that  the provisions in  Section 17-B imply that if the workman is not gainfully employed  in any  establishment he  is entitled to the payment  of wages at the same rate at which he was being paid immediately before the termination of his services.      According to  the learned  Judges the legislature while introduction Section  17-B intended  that  the  workman  who remains unemployed  in spite  of an award having been passed by the  competent court or Tribunal, should be paid at least the wages  at the  rate last  drawn by him so that he may be able to  subsist. It  has been held that the workman who has not been  reinstated is entitled to payment of wages only at the rate last drawn by him and not at the same rate at which

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the wages  are being  paid to  the workmen  who are actually working.      The decision  of the  Delhi High  Court in Fouress Eng. (India) Pvt.  Ltd. vs. Delhi Administration & Ors., on which reliance has been placed by Shri Sharma, does not throw much light on  the meaning  of the  expression "full  wages  last drawn".      The  decision   of  the  Bombay  High  Court  in  Elpro International Ltd  vs. K..B.Joshi & Ors. [supra] and that of the Punjab  &  Haryana  High  Court  in  Kapurthala  Central Cooperative Bank  Ltd. vs.  The  Presiding  Officer,  Labour Court, Jalandhar  [supra], on which reliance has been placed by Shri  Rao do  not deal with the meaning of the expression "full wages last drawn".      In  Elpro   International  Ltd.   vs.  K..B.Joshi,  the Division Bench of the Bombay High Court was dealing with the challenge to the validity  of the provisions in Section 17-B on the ground that the same are vague and arbitrary inasmuch as no  provisions is  made as  to what  would happen  to the amount paid  if ultimately  the employer  succeeds  and  the award is  quashed and set aside and are therefore, violative of Article  14 of  the Constitution.  It was also urged that the said  provisions encroach  upon the  powers of  the High Court and  this Court  under Articles  226 and  136  of  the Constitution.  The   High  Court   has  rejected   both  the contention. It  was held that the absence of a provisions as to what  would happen  to the amount paid under Section 17-B if ultimately  the employer  succeeds in the litigation does not make  the section either vague or arbitrary because what is to  be paid  under Section  17-B  is  in  the  nature  of subsistence allowance  that is payable under Section 10-A of the Industrial  Employment [Standing Orders] Act, 1946 which is neither  refundable nor  recoverable irrespective  of the result of the enquiry. As regards challenge on the ground of encroachment upon the powers of the High Court under Article 226 and  this Court  under Article  136 of the Constitution, the High  Court was  of the  view  that  Section  17-B  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 and 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  and  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 and  had been receiving adequate remuneration. The High Court  has observed that Section 17-B nowhere lays down that in  extreme cases  it is demonstrated that award passed is either  without jurisdiction or is otherwise a nullity or grossly erroneous or perverse, the High Court or the Supreme Court is  deterred from exercising its powers under Articles 226 and 136 of the Constitution. On that view the High Court held that  Section 17-B does not in any way encroach upon or override the  powers of the High Court under Article 226 and this Court Article 136 of the Constitution.      Similarly in  the Kapurthala  Central Cooperative  Bank Ltd. vs.  The Presiding  Officer,  Labour  Court,  Jalandhar [supra] the  High Court  of Punjab  & Haryana considered the validity of  the challenge  the Section 17-B as violative of the provisions  of  Article  226  of  the  Constitution  and negativing the  said challenge it was held that  Section 17- B does  not in  any way  interfere or  restrict the same and

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that the  section only guarantees the workers the payment of wages by the employer during the course of proceeding in the High Court  or the  Supreme Court  of Course  subject to the safeguard provided  for irrespective  of the  result of  the proceedings.      In  International   Air   Cargo   Workers   Union   vs. International  Airports   Authority  of  India  [supra}  the Division Bench of the Madras High Court has expressly stated that they were not dealing with a case where a workman whose services have  been terminated  was ordered to be reinstated by an award of the Tribunal and that it was a case where the Tribunal  had   directed  that  management  to  absolve  the workman. Without  deciding whether  Section  17-B  would  be attracted in  such a  case the High Court while applying the principles underlying  the said  section, directly by way of interim relief,  payment at  the rate the workmen were being paid by  the  contractor  and  in  that  context  there  are observations to  the effect  that even if Section 17-B would be attracted  no directions  could have  been issued  to pay wages more than the last wages drawn.      As per  the decisions  of the  High Court  referred  to above the expression "full wages last drawn" in Section  17- B can mean as under: (i)  wages only at the rate last drawn and not the same rate      at which  the wages  are being  paid to the workman who      are actually  working. [Daladdi Cooperative Agriculture      Service Society Ltd. vs. Gurcharan Singh] (ii) Wages drawn  on the date of termination of the services      plus the yearly increment and the Dearness Allowance to      be  worked   out  till   the   date   of   the   award.      [Vishveswaraya Iron  and Steel  Ltd. vs. M.Chandrappa &      Anr. and Kirtiben B. Amin vs. Mafatlal Apparels] (iii) Full  wages which  the workman was entitled to draw in      pursuance of  the award and the implementation of which      is suspended  during the  pendency  of  the  proceeding      [Carona Sahu  Co. Ltd. vs. A.K.Munakhan & Ors., Macneil      and Magor  Ltd. vs.  1st Additional Labour Court & Anr.      and P.Channaiah vs. Dy.Eng.]      The first  construction give  to the  words "full wages last drawn"  their plain and material meaning. The second as well as  the third  construction read  something  more  than their plain and material meaning in this words. In substance these construction read the words "full wages last drawn" as "full wages  which would  have been drawn". Such an extended meaning to  the words  "full wages last drawn" does not find support in  the language  of  Section  17-B.  Nor  can  this extended meaning  be based  on  the  object  underlying  the enactment of Section 17-B.      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 a certain extent the hardship that  is caused  to the workman due to delay in the implementation  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 it 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

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workman  if  he  had  continued  in  service  if  the  order terminating his services had not passed since it has been by the award of the Labour of 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 even 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 proceeding 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 awarded being set aside.  We  are  unable  to  constitute  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  Visveswarya Iroon  &  Steel  Ltd. [supra] or  the Bombay  High Court  in Carona  Sahu Co. Ltd. [supra].      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  last drawn must be the was which the workman would have drawn under the award.  We   are  unable  to  agree.  In  our  opinion,  the expression "full"  only emphasis  that  all  the  emoluments which are  included in  "wages" as defined in clause [rr] of section 2 of the Act so as to include in "wages" as referred to in  sub-clauses (i)  to (iv)  are required to be paid. In this context,  it may also be mentioned that in Section 17-B Parliament  has  also  used  the  words  "inclusive  of  any maintenance allowance  admissible to  him under  to him  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.      As regards the powers of the High Court and the Supreme Court under  Article 226  and 136 of the Constitution it may be stated  that Section  17-B, by  conferring a right on the workman to  be paid  the amount  of full wages last drawn 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 a  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  dehors  the  provisions  contained  in Section 17-B  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. [supr] that in exercise of the power  under Article  226 and 136 of the Constitution an order can  be passed denying the workman the benefit granted under Section  17-B. The  conferment of  such a  right under Section 17-B  cannot be  regarded as  a restriction  on  the powers of  the High Court or the Supreme Court under Article 226 and 136 of the Constitution.      In the  present case  by his  order dated September 26, 1995 the  learned Single  Judge, while exercising the powers under  Section  17-B,  has  directed  payment  of  wages  as revised, including  the increments,  D.A.,  etc.  which  are

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granted to  all the employee pursuant to the Fifth and Sixth Bipartite Settlements.  The said  direction of  the  learned Single Judge, which has been upheld by the Division Bench of the High  Court in  the impugned  judgment, cannot tb upheld since it  amounts to  directing payment of wages which would have been  drawn by the respondent if he had been reinstated and not the full wages last drawn by him.      For the  reasons aforementioned,  the appeal is allowed and the  impugned judgment of the Division Bench of the High Court dated  February 7,  1996 as  well as  the order  dated September 26,  1995 passed  by the  learned Single judge are set aside, No order as to costs.