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Kakumoni Bhuyan v/s Management of Apollo Hospitals, Guwahati


Company & Directors' Information:- S V S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2007PTC052534

Company & Directors' Information:- K P S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TZ1994PTC004918

Company & Directors' Information:- V H M HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2009PTC073497

Company & Directors' Information:- D B R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2003PTC041648

Company & Directors' Information:- M M HOSPITALS PRIVATE LIMITED [Under Process of Striking Off] CIN = U85110UP1993PTC015371

Company & Directors' Information:- S A HOSPITALS LIMITED [Strike Off] CIN = U85110MH2002PLC136697

Company & Directors' Information:- M. B. HOSPITALS PRIVATE LIMITED [Active] CIN = U85100HR2010PTC041489

Company & Directors' Information:- M G M I HOSPITALS (INDIA) PRIVATE LIMITED [Active] CIN = U85195KA2010PTC052058

Company & Directors' Information:- M AND D HOSPITALS PRIVATE LIMITED [Active] CIN = U85110DL2002PTC117618

Company & Directors' Information:- S P HOSPITALS PVT LTD [Strike Off] CIN = U85110HP1992PTC012651

Company & Directors' Information:- W P MANAGEMENT INDIA PRIVATE LIMITED [Active] CIN = U45201TG2016PTC112006

Company & Directors' Information:- M A S MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U74999DL1987PTC029434

    I.A.(C) No. 2076 of 2020 in W.P.(C) No. 3406 of 2020

    Decided On, 01 February 2021

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

    For the Applicant: S. Chakraborty, Advocate. For the Respondent: S.N. Sarma, Senior Advocate, K. Kalita, Advocate.



Judgment Text

1. Heard Shri S Chakraborty, learned Counsel for the Applicant-Respondent No.1. Also heard Shri SN Sarma, learned Senior Counsel assisted by Shri K. Kalita, learned Counsel for the Opposite Party.

2. This is an application under Section 17-B of the Industrial Disputes Act, 1947 (for short hereafter referred to as Act) for payment of full Wages last drawn.

3. Shri Chakraborty, learned Counsel for the Applicant submits that this Court vide Order, dated 2.9.2020 while issuing notice, had stayed the operation of the Judgment and Award, dated 11.3.2020 passed by the learned Labour Court, Guwahati, Assam in Reference Case No.01/2019. By the said Award, dated 11.3.2020, the Applicant-Respondent No.1 was directed to be reinstated in service with full Back Wages. By drawing the attention of this Court to the provision of law, namely, Section 17-B of the Act, it is submitted that on preferring of any proceeding against such an Award to the High Court or the Supreme Court, the Employer shall be liable to pay the Workman, during the pendency of the proceeding, full Wages last drawn and an Affidavit has to be filed to the effect of not being gainfully employed. Attention of this Court has also been drawn to the pleaded case of the Workman as well as the averments made in this Interlocutory Application regarding the lack of gainful employment from the date of suspension till the date. It is submitted that such Wages has to be calculated from the date of the award to give a proper meaning to the legislative intent.

4. In support of his submissions, Shri Chakraborty, learned Counsel for the Applicant-Respondent No.1 relies upon the following cases:

(i) Dena Bank v. Kiritikumar T. Patel, 1998 (1) LLN 375 (SC): 1999 (2) SCC 106 (referred to as Dena Bank-I);

(ii) Dena Bank v. Ghanshyam, 2001 (5) SCC 169, (referred to as Dena Bank-II);

(iii) Indra Perfumery Co. thr. v. Presiding Officer and others, 2004 (2) LLN 266 (Del): 2004 (109) DLT 927, [Division Bench of the Delhi High Court]; and

(iv) Municipal Corporation of Delhi v. Santosh Kumari and another, L.P.A. No.165 of 2012, dated 24.8.2012, [Division Bench of the Delhi High Court].

5. In the case of Dena Bank (I) (supra), the Hon'ble Supreme Court had clarified the law relating to Section 17-B of the Act in the following manner:

“7. 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 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 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 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 finally decided in the Supreme Court High Courts."

... ... ...

21. 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 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 Visvesvaraya Iron & Steel Ltd. [supra] or the Bombay High Court in Carona Sahu Co. Ltd."

6. In the subsequent case of Dena Bank (II) (supra), the following has been laid down:

"8. Section 17-B provides that where the Employer prefers any proceeding against an award directing reinstatement of any Workman, 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. The Proviso says that if the High Court or the Supreme Court is satisfied that the Workman had been employed and had been receiving adequate remuneration during such period or part thereof, the Court shall order that no Wages shall be payable under that Section for such period or part, as the case may be.

9. The Statement of objects and reasons for inserting the said provision indicates that when Labour Courts pass awards of reinstatement, they are often contested by Employers in the Supreme Court and High Courts. To mitigate the hardship that would be caused due to delay in implementation of the award, it was proposed to provide for payment of Wages last drawn by the Workman concerned from the date of the award till the dispute between the parties is finally decided in the High Courts or the Supreme Court. It follows that in the event of an Employer not reinstating the Workman and not seeking any interim relief in respect of the award directing reinstatement of the Workman or in a case where the Court is not inclined to stay such award in toto the Workman has two options either to initiate proceeding to enforce the award or be content with receiving the full Wages last drawn by him without prejudice to the result of the proceedings preferred by the Employer against the award till he is reinstated or proceedings are terminated in his favour, whichever is earlier. In Dena Banks case (supra), this Court elucidated the expression “full Wages last drawn” as follows: (SCC p. 115, Para 21)

“... The 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'.”

7. The decisions of the Hon'ble Delhi High Court have been pressed into service to bring home the point that the date of payment of Back Wages has to be reckoned from the date of the award.

8. Shri Sarma, learned Senior Counsel for the opposite party submits that so far as the provision of law of Section 17-B of the Act is concerned, there is no dispute as such. The learned Counsel, however, contends that the date of calculating the full Wages last drawn has to be from the date of filing of the Affidavit as it is only from that date that a Superior Court comes to know about the fact of non-employment of the Workman in question. In support of his submissions, the learned Senior Counsel has relied upon the case of Uttaranchal Forest Development Corporation and another v. K.B. Singh and others, 2005 (11) SCC 449. In the said case, it has been held that the entitlement for Wages under Section 17-B of the Act would be from the respective date of filing of the Affidavit and need not be confined to the Workman, who has approached the High Court only.

9. Shri Chakraborty, learned Counsel for the Applicant in his response submits that the Hon'ble Supreme Court while deciding the case of Uttaranchal Forest Development Corporation (supra), was not apprised of the law holding the field which was laid down in the case of Dena Bank (I) (supra) and Dena Bank (II) (supra). The learned Counsel further submits that in the aforesaid case of Uttaranchal Forest Development Corporation (supra), the observation of the Hon'ble Supreme Court cannot be termed to be a ratio decidendi as it is in the form of an order, more so, when the date from which the Wages were to be reckoned was not even the issue. On the other hand, in the earlier case of Dena Bank (I) (supra) and Dena Bank (II) (supra), the present issue of the effective date was the specific issue which came up for consideration before the Hon'ble Supreme Court and therefore, it is the law laid down in Dena Bank (I) (supra) and Dena Bank (II) (supra), which has to be considered to be the ratio decidendi.

10. The rival contentions of the learned Counsel for the parties have been duly considered. Section 17-B of the Industrial Disputes Act lays down as follows:

“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.”

11. The underlying object of Section 17-B of the Act is to give relief to the Workman in whose favour an award of reinstatement is passed. The primary object is to ensure the sustenance of the Workman during the period when the litigation is pending wherein award in question is the subject matter of challenge. The requirement of filing of an Affidavit of not being gainfully employed is only for the satisfaction of the Court so that the objective of Section 17-B would not misused.

12. In the instant case, what is required to be noted is that the fact that of not being gainfully employed is pleaded both before the Labour Court as well as in the present Application filed under Section 17-B and therefore, the

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re should not be any difficulty in coming to a conclusion that such entitlement would be from the date of passing of the award. This Court has also noted that though the case of Uttaranchal Forest Development Corporation (supra) has been decided at a subsequent point of time, the existing law in Dena Bank (I) (supra) and Dena Bank (II) (supra) was not brought to the notice of the Hon'ble Supreme Court while considering the said case and further the date from which such Wages would be entitled to, was not even the issue in that case. 13. In the backdrop of the aforesaid discussions and the law holding the field, this Court is of the opinion that the present Interlocutory Application has to be allowed with a direction that the full Wages last drawn has to be calculated and paid from the date of the award i.e., 11.3.2020. The amount which has been held to be entitled to by the Applicant be released within a period of 45 days from today and the current entitlement be released every month in accordance with law. 14. It is, however, clarified that the present order is confined to the issue raised in the Interlocutory Application, namely, the date from which the wages under Section 17-B of the Act has to be calculated and has got nothing to do with the individual merits of the parties in the Writ Petition. 15. Interlocutory Application stands disposed of.
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