Writ Petition No.4320 of 1996

23rd August, 1996

Petitioner Counsel: Mr. P.K.RELE with Mr. S.S.PAKALE
Respondent Counsel: Ms. SEEMA SARNAIK, Mr. V.P.MALVANKAR

JUDGMENT

JUDGMENT : Rule. Returnable forthwith. Ms. Seema Sarnayak, Adv. waives service for Respondents no.1 and 2. Mr.V.P.Malvankar, A.G.P. waives service for Respondents no.3 and 4. By consent the Writ Petition is taken-up for final hearing at this stage.

2. The question, that may be of some importance is whether the Industrial Court exercising its power of superintendence under Section-44 of the Maharashtra Recognition of trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short 'M.R.T.U. & P.U.L.P.Act, 1971') could give directions contemplated under Section -17B of the Industrial Disputes Act, 1947 (for short I.D.Act, 1947) assuming the power of High Court under Article-227 of Constitution of India.

3. The Respondents no.1 and 2 were employed in the Petitioner company which is public limited company incorporated under the Companies Act, 1956. The Respondent no.1 herein was employed as Operator G-1 in Quality Control Range of the Petitioner company, while Respondent no.2 herein was initially employed on 15-10-1971 and lateron promoted as a Setter in 'A' category in Production Range with effect from 1-2-1974. On 15-09-89 theft of some 1710 nozzles of the value of Rs.2,21,000/- was alleged to have been committed by two persons. An offence was registered and during the course of police investigation it transpired that some of the Petitioners employees were accomplices in the crime. The involvement of Respondents no.1 and 2 herein in the said theft was suspected and both of them were suspended, pending issuance of chargesheet, enquiry and the final order. Later on the Petitioner company by the order dated 30-8-90 dismissed the Respondents no.1 and 2 herein. The orders of dismissal were challenged by Respondents no.1 and 2 herein by filing two separate complaints under the M.R.T.U. & P.U.L.P. Act, 1971. Both of them also made applications for grant of interim-relief. The Respondent no.3 herein viz. the Labour Court, Nasik by order dated 8-12-95 held that the Petitioner had engaged in unfair labour practice in dismissing the services of Respondents no.1 and 2, and, directed the Petitioner to reinstate both of them with continuity of service and full backwages from the date of their dismissal. The Petitioner preferred two revision applications separately against the two orders passed by the Labour Court, and, the said revision applications came up before Respondent no.4 herein viz. Industrial Court, Nasik. On 27-12-95 the 4th Respondent herein i.e. Industrial Court passed an order directing the Petitioner herein to deposit full monthly wages and in compliance thereto Petitioner has been depositing full monthly wages for Respondents no.1 and 2 before the Industrial Court, Nasik. It appears that Respondents No.1 and 2 herein made an application Exhibit U-4 before the Industrial Court that the amount deposited by the Petitioner may be allowed to be withdrawn since the Respondents no.1 and 2 herein were facing financial difficulties. By the impugned order dated 3-6-96 though the application made by Respondents no.1 and 2 herein Exhibit U-4 was rejected, but the Industrial Court, Nasik held that while exercising the powers under Section-44 of the M.R.T.U. & P.U.L.P. Act, 1971, it assumes the power of the High Court and, therefore, there is nothing wrong if the provisions of Section-17B of the I.D.Act, 1947 is implemented by the Industrial Court till the revision application is heard and finally disposed of, and, accordingly in para-2 of the operative order held that - it has jurisdiction under Sec.44 of the M.R.T.U. & P.U.L.P. Act, 1971 to direct the Petitioner herein to deposit the amount of backwages and thereby to comply with the provisions of Section-17B of the I.D.Act, 1947.

4. Mr. Rele, learned counsel for the Petitioner is aggrieved by para-2 of the operative order wherein Industrial Court has held that it has jurisdiction under Section-44 of the M.R.T.U. & P.U.L.P. Act, 1971 to direct the Petitioner herein to comply with the provisions of Section-17B of the I.D.Act, 1947. Mr. Rele contends that Industrial Court while exercising its powers under Section-44 of the M.R.T.U. & P.U.L.P. Act, 1971 cannot invoke and direct the compliance of Section-17B of the Industrial Disputes Act, 1947.

5. On the other hand, Ms. Sarnayak, learned counsel for Respondents no.1 and 2 would strenuously contend that since the Industrial Court was seized of revisional applications against the order passed by Labour Court, it was definitely higher court vis-a-vis the Labour Court and, therefore, did not commit any error of jurisdiction in holding that the Industrial Court can issue directions to the Petitioner in compliance of the provisions of Section -17B of the I.D.Act, 1947.

6. Section-17B of the I.D.Act, 1947 reads thus -

"Section-17B - Payment of full wages to workmen 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".

7. Section-44 of the M.R.T.U. & P.U.L.P. Act, 1971 is as follows :

"Section -44. The Industrial Court shall have superintendence over all Labour Courts and may,-

(a) call for returns;

(b) make and issue general rules and prescribe forms for regulating the practice and procedure of such Courts in matters not expressly provided for by this Act and in particular, for securing the expeditious disposal of cases;

(c) prescribe form in which books, entries and accounts shall be kept by officers of any such Courts; and

(d) settle a table of fees payable for process issued by a Labour Court or the Industrial Court."

8. It is true that under Section-44 of the M.R.T.U. & P.U.L.P. Act, 1971, the Industrial Court exercises power of superintendence over Labour Courts, and, while exercising power of superintendence, Industrial Court may exercise all such powers which may be exercised by any revisional court or court of superintendence, and, that may in a given case be akin to the powers which High Court may exercise under Article-227 of the Constitution of India; but such power will not make that Industrial Court a 'higher court' as understood in its term. The expression 'higher court' occuring in title of Section-17B embraces only Supreme Court and High Court and that is obvious from the text of Section-17B itself, and other court in the hierrachy of courts cannot be termed as higher court even if such court exercises appellate power or revisional power. therefore, title of Section-17B of the I.D.Act, 1947 which uses the expression 'higher court' cannot empower the Industrial Court too issue directions under Section-17B simply because it exercises power of superintendence over labour courts under Section-44 of M.R.T.U. & P.U.L.P. Act, 1971. Even otherwise title of the Section cannot govern the Section when the language of Section 17-B of the I.D.Act, 1947 is very clear and invites of no ambiguity. According to Section-17B where any Labour Court, Tribunal or National Tribunal passes an Award directing reinstatement of any workman and such award is under challenge in High Court or the Supreme Court, the said section mandates the employer to pay such workman full backwages last drawn by him during the pendency of proceedings in the High Court or Supreme Court. On the face of such clear provision under Sec.17B, it is very difficult to comprehend how the Industrial Court can assume the power of the High Court and issue directions under Section-17B of the I.D.Act, 1947. The Industrial Court was not justified when it held that while exercising power under Sec.44 of the M.R.T.U. & P.U.L.P. Act, 1971, if assumed the power of the High Court and, therefore, there is nothing wrong it directions to implement the provisions of Section-17B of the I.D.Act, 1947 are given pending revision application. It would be altogether a different matter if the Industrial Court while considering an application for the grant of stay order or interim-relief in the revision application challenging the reinstatement of workman directs the employer to pay wages if it did not want to reinstate after taking into consideration the facts peculiar to such case but exercising the power under Section-17B assuming itself as a High Court cannot be justified.

9. The Industrial Court in the present case has misconstrued Section-17B of the I.D.Act, 1947 and its power under Section-44 of the M.R.T.U. & P.U.L.P. Act, 1971, and, assumed jurisdiction of High Court not vested in it under law and acted without jurisdiction in invoking the power under Section-17B. As already observed, in suitable cases, the Industrial Court while considering a prayer for interim-relief, pending revision application under Section-44, of the M.R.T.U. & P.U.L.P. Act, 1971 may pass an appropriate order which may advance the cause of justice and that may include directing the employer either to reinstate the employee during the pendency of revision application when such reinstatement has been granted by the Labour Court, and, if the employer does not want to reinstate the employee pending revision application, appropriate directions for payment of wages may be made, but such discretion has to be exercised in accordance with law after taking into consideration facts and circumstances of each case.

10. By the order dated 27-12-95, the Industrial Court has already directed the Petitioner to deposit monthly wages of Respondents no.1 and 2 and which is being complied with by the Petitioner and, therefore, even otherwise while rejecting the application Exhibit U-4, there was no necessity for the Industrial Court to direct the Petitioner to comply with the provisions of Section-17B of the Industrial Disputes Act, 1947.

11. In view of the foregoing reasons, para-2 of the operative order cannot be sustained, and is accordingly set-aside and quashed. Rule is made absolute in aforesaid terms. No costs.

Appeal party allowed.