IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.480 OF 2009 (Arising out of S.L.P.(C) No.2588/2007)

Kaivalyadham Employees Association ...Appellant(s)

Versus

Kaivalyadham S.M.Y.M. Samity ...Respondent(s)

O R D E R

Leave granted.

This appeal is directed against the judgment and order dated 3rd October,

2006,  passed  by  the  Bombay  High  Court  in  Letters  Patent  Appeal  No.200/2006

arising out of Civil Application No.2481/2005 in Writ Petition No.4000/2005.  

At the very outset, it may be indicated that since then, the Writ Petition has

been finally disposed of by an order dated 7th May, 2007 and another Letters Patent

Appeal  No.138/2007,  filed  by  the  respondent  Samity,  is  pending  before  the  High

Court.

The  appellant  Association  raised  an  industrial  dispute  relating  to  the

retrenchment  orders  passed  against  some  of  its  members  and,  while  passing  an

Award  on  2nd March,  2005,  the  Industrial  Court  directed  reinstatement  of  the

concerned  employees  within  one  month  from  the  date  of  the  publication  of  the

Award.   Feeling  aggrieved by  the  said  Award,  the  respondent  Samity  filed  Writ

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Petition No.4000/2005 before the Bombay High Court.  The same was admitted and

the implementation of the Award was stayed by the High Court by its order dated 21st

July,  2005.   Since  the  Award  regarding  reinstatement  was  stayed,  the  appellant

Association moved Civil Application No.2481/2005 in the Writ Petition praying for

the benefit under Section 17B of the Industrial Disputes Act, 1947, to be extended to

the successful workmen who had been directed to be reinstated.

After considering the affidavits filed on behalf of the workmen and those of

the respondent Samity, the learned Single Judge, in paragraphs 10, 11 and 12 of his

judgment, observed as follows:

“10.  On the fact of the evidence that was sought to be placed before this  Court  by  the  employer  along  with  the  affidavits  filed  by  Mr. Agarwal opposing this application, it cannot be said that any of the 10 workmen are or were gainfully employed during the pendency of this Petition  in  any  establishment  and  were/are  in  receipt  of  adequate remuneration.  Working as a petty labour is not employment in any establishment and at the same time it  was not a regular job.  Such employment is obviously as and when and wherever available.   The submissions of Mrs. Doshi  that the trial court be directed to record evidence as is done in the proceedings instituted under Section 33C(2) of the I.D. Act cannot be considered as the scheme of Section 17B does not envisage such an exercise.  Mrs. Doshi also pointed out by referring to some correspondence between the management and the Government of India to the effect that if these 10 to 12 workmen are reinstated, the financial burden will have to be borne by the management alone and the Central Government would not contribute anything towards the same.  The management is  running a Hospital,  a College and Yoga Research  Centre  etc.   These  10  workmen  were  employed  by  the management  Trust  and  they were not  the employees  of  the  college, Hospital or Yoga Centre as a separate establishment.

11.  In the premises it is clear that the employer failed to defeat this application  in  spite  of  series  of  affidavits  and  the  CD having  been placed before this Court.

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12.   The  application,  therefore,  succeeds  and  the  same  is  hereby allowed in respect of the above 10 workmen.”

From the above, it will be evident that the learned Single Judge decided the question

of gainful employment by the workmen on its merits and decided that it could not be

said that any of the ten workmen were gainfully employed during the pendency of the

petition, in any establishment and were in receipt of adequate remuneration.

Challenging  the  said  order  of  the  learned  Single  Judge,  the  respondent

Samity filed Letters Patent Appeal No.200/2006 wherein, considering the the financial

situation of the Samity, the Division Bench observed that the interest of justice would

be served if a direction was given to the Samity to pay 70% of the last drawn wages to

the said ten workmen.  An order was passed disposing of the Letters Patent Appeal in

the said terms.  The said order passed in the Letters Patent Appeal is the subject

matter of the present appeal.

On behalf of the appellant Association, it has been submitted by Mr. Nitin

S. Tambwekar, learned Advocate, that the Division Bench of the Bombay High Court

had misconstrued the provisions of Section 17B of the Industrial Disputes Act, 1947,

which makes it very clear that in the event an award for reinstatement is stayed by a

High  Court  or  the  Supreme  Court,  the  employer  would  be  liable  to  pay  such

workman, during the period of pendency of such proceedings, full wages last drawn

by him, inclusive of any maintenance allowance admissible to him under any rule,

provided that the workman had not been employed in any establishment during such

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period and an affidavit by such workman has been filed to that effect in such court.

Learned counsel reiterated the findings of the learned Single Judge that the

workmen concerned had not been gainfully employed during the period in question.

Mr.Tambwekar, accordingly, submitted that the order of the Division Bench of the

High Court was liable to be set aside and that of the learned Single Judge restored.

Appearing  for  the  respondent  Samity,  Ms.Ranjeeta  Rohatagi,  learned

Advocate, submitted that no interference is called for with the impugned order since

the Division Bench had considered the financial condition of the respondent Samity

while passing the said order.  She also urged that before the learned Single Judge, it

had been submitted on behalf of the Samity that in order to quantify the workmen's

dues, the matter should be remitted to the Labour Court for the purpose of taking

evidence as is done under Section 33C(2) of the Act.  However, such submission was

also rejected by the learned Single  Judge and was not considered by the Division

Bench, while passing the impugned order.

We  have  considered  the  submissions  made  on  behalf  of  the  respective

parties.  Since interpretation of Section 17B of the Industrial Disputes Act, 1947, is

central to the disposal of this appeal, the provisions thereof are extracted below:

“17B.  Payment of full wages to workman pending proceedings in higher courts:- Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings  against  such  award  in  a High  Court  or  the Supreme Court,  the  employer  shall  be liable  to  pay  such  workman,  during  the 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 :

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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.”

The  provisions  of  Section  17B  stipulates  that  when  an  Award  of

reinstatement of a workman is challenged by the employer before the High Court or

the Supreme Court and the operation of the same is stayed, the employer shall  be

liable to pay the workman, during the period of pendency of such proceedings, full

wages last drawn by him.  It also indicates that the same would be subject to the

workman  filing  an  affidavit  to  satisfy  the  Court  that  he  had  not  been  gainfully

employed during  the said period.    The said question has been set at rest by the

learned Single Judge in favour of the workmen.

The invocation of Section 33C(2) of the aforesaid Act is also, in our view,

misconceived,  having  regard to the fact  that  Section 33C(2) stands  on a different

footing from Section 17B.  While under Section 17B it is under the orders of the High

Court or the Supreme Court in a pending proceeding that the full wages last drawn

by the workman, inclusive of any maintenance allowance admissible to him under

any rule, is to be paid, Section 33C(2), on the other hand, provides for recovery of

money due from the employer or any benefit which is capable of being computed in

terms of money.  The question of invocation of Section 33C(2) arises only when there

is a dispute as to the quantum of the dues.  The two aforesaid provisions contemplate

two different situations and in certain cases the provisions of  Section 33C(2) may

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have to be resorted to in respect of an order under Section 17B, but not as a matter of

course.  The necessary details required for giving effect to an order under Section

17B of the 1947 Act are available both with the employer as also the employee and

only involves a matter of calculation for which no evidence is required to be taken.

For  better  appreciation  of  the  matter,  the  provisions  of  Section  33C(2)  are

reproduced hereinbelow:

“33C Recovery of money due from an employer-

(1) xxx   xxx   xxx

(2)   Where  any  workman  is  entitled  to  receive  from  the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the  appropriate  Government  within  a  period  not  exceeding  three months.

Provided that where the presiding Officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.”

Sub-sections (3), (4) and (5) of Section 32 of the Act define the procedure to

be followed for recovery of the dues as computed.

In contrast, Section 17B provides in unambiguous terms that if an award

for reinstatement of a workman is stayed at the instance of the employer, either by

the High Court  or  the Supreme Court,  the employer will  be  liable  to  pay to  the

workman  during  the  pendency  of  the  proceedings  before  the  High  Court  or  the

Supreme  Court  full  wages  as  last  drawn  by  him,  including  any  maintenance

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allowance admissible to him under any Rule, if the workman had not been gainfully

employed elsewhere during the said period.

On  the  other  hand,  Section  33C(2)  of  the  aforesaid  Act  contemplates  a

proceeding requiring  evidence  to be taken to determine the  quantum of  the dues

payable to the workman.  Taking recourse to such a course of action as a matter of

course would destroy and frustrate the very purpose of Section 17B which, as has

been consistently held by this Court, is to provide the workman with the means of

sustenance  of  his  family  members  and  himself  during  the  pendency  of  the

proceedings taken by the employer before the High Court or the Supreme Court.

Apart  from the  above,  while  disposing  of  the  letters  patent  appeal,  the

Division Bench of the High Court has not also come to a finding which is different

from the finding arrived at by the learned Single Judge in this regard.

During the course of the hearing of this appeal, Ms.Rohatagi brought to our

notice an order dated 6th August, 2007 and subsequent amendments made therein by

orders dated 31st October, 2007 and 5th March, 2008 passed in Letters Patent Appeal

No.138/2007, which had been filed against the final disposal of the writ petition.  It

has been submitted by her that since the learned counsel of the appellant Association,

representing the workmen, had agreed that they would be entitled to get the benefits

of  the  interim order  passed  by  the  Division  Bench,  the  present  appeal  had been

rendered infructuous.

We are unable to find any merit in the said submission, having regard to

the  observations  made  herein-above  regarding  the  effect  of  Section  17B  of  the

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Industrial Disputes Act regarding payment of full wages to a workman as last drawn

by him during the  pendency  of  the  proceedings  either  before  the  High Court  or

before this Court in which the award of reinstatement is stayed.

We,  accordingly,  allow  the  appeal,  set  aside  the  order   passed  by  the

Division Bench of  the Bombay High Court and restore that of  the learned Single

Judge dated 31st August, 2006.  However, we also request the Bombay High Court to

try and dispose of the pending appeal as early as possible.

                         ...................J.               (ALTAMAS KABIR)

                        ...................J.

                                       (CYRIAC JOSEPH) New Delhi, January 28, 2009.

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