advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, March 1, 2018

contempt = “The object of Section 17-B is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The payment which is required to be made by the employer 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 the Supreme Court, 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 set aside by the award of the Labour Court or the 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. Therefore, the words “full wages last drawn” must be given their plain and material meaning and they cannot be given the extended meaning.”

1
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
MISC. APPLICATION No.711 of 2017
IN
CONTEMPT PETITION (C) NO.785/2018
IN
CIVIL APPEAL No.4482 OF 1998
Rajeshwar Mahto ….Appellant(s)
VERSUS
Alok Kumar Gupta, G.M.
M/s Birla Corporation Ltd. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This contempt petition arises out of the two
orders, one dated 04.05.1999 and final order dated
31.10.2000 passed by this Court (Three Judge
Bench) in Civil Appeal No. 4482 of 1998. This
application is filed by the respondent (employee) of
the said appeal.
2
2. To appreciate the grievance of the applicant
herein(employee)- respondent of the aforementioned
appeal, it is necessary to set out the relevant facts
which led to the filing of civil appeal in this Court
which later gave rise to filing of this contempt
petition.
3. The applicant was an employee of one limited
Company called "Birla Corporation Ltd.” (hereinafter
referred to as "the Corporation"), which is controlled
by Birla Group. The respondent herein is the
General Manager of the Corporation. The applicant
was appointed on 04.12.1974. However, the
applicant's services were terminated by the
Corporation by order dated 01.09.1985. On the date
of termination, the applicant’s last drawn salary was
Rs.1185/-.
4. The applicant felt aggrieved of his termination
and raised an industrial dispute before the
Industrial Tribunal under the Industrial Dispute
3
Act, 1947 (hereinafter referred to as “the Act”) for
deciding the legality and correctness of his
termination order.
5. By award dated 22.11.1991, the Industrial
Tribunal answered the reference in favour of the
Corporation. It was held that the applicant was not
a workman within the meaning of the expression
"workman" as defined in Section 2 (s) of the Act and,
therefore, the Government Order by which the
reference was made to the Industrial Tribunal is not
maintainable.
6. The applicant felt aggrieved and filed writ
petition before the High Court at Calcutta. The
Single Judge of the High Court, by order 22.03.1996
allowed the writ petition and while setting aside the
award of the Industrial Tribunal held that the
applicant was the workman and, therefore, the
Government was right and had the power to make
an industrial reference to the Industrial Tribunal.
4
The Single Judge, therefore, set aside the order of
the Industrial Tribunal.
7. The Corporation felt aggrieved and filed an
intra Court appeal before the Division Bench of the
High Court. By order dated 31.03.1998, the
Division Bench dismissed the appeal and upheld
the order of the Single Judge giving rise to filing of
the appeal before this Court by the Corporation
being S.L.P.(c) No. 8518/1998. This Court granted
leave and accordingly it was registered as Civil
Appeal No. 4482 of 1998.
8. By order dated 31.10.2000, this Court allowed
the Corporation's appeal and while setting aside the
orders of the Division Bench and Single Bench
dismissed the writ petition filed by the applicant
herein. As a consequence, the award passed by the
Industrial Tribunal holding that the applicant was
not a workman was upheld.
5
9. It is pertinent to mention here that during the
pendency of the Corporation's Civil Appeal in this
Court, the Corporation had prayed for grant of the
stay of the impugned order of the Division Bench.
10. This Court, by interim order dated 04.05.1999,
directed the Corporation to pay to the applicant full
wages last drawn by him on 01.09.1985 inclusive of
maintenance allowance admissible to him under the
Rules on the applicant's furnishing an affidavit to
the effect that he had not gainfully employed
elsewhere. The Corporation was asked to pay the
aforesaid amount of full wages last drawn with
effect from 01.05.1998 onwards till the final
disposal of the appeal. The Corporation was directed
to pay the arrears within four weeks and future
monthly emoluments by 7th of each succeeding
month.
11. Likewise, while finally allowing the
Corporation’s appeal on 31.10.2000, this Court
6
recorded an offer made by the Corporation that
notwithstanding the result of the appeal, the
Corporation is still ready and willing to pay a sum of
Rs.2 lakhs to the applicant towards full and final
settlement to the satisfaction of the applicant's
claim which they had offered earlier during the
pendency of the appeal (see last Para of final order
dated 31.10.2000).
12. With these background facts, the applicantemployee
has filed the contempt petition alleging
therein that the interim order dated 04.05.1999
passed by this Court during the pendency of Civil
Appeal No. 4482/1998 has not yet been complied
with by the Corporation. It is alleged that
notwithstanding the disposal of the civil appeal in
Corporation's favour by this Court by order dated
31.10.2000, so far as the interim order dated
04.05.1999 passed under Section 17-B of the Act is
concerned, the same has to be complied with by the
7
Corporation by paying to the applicant all monetary
benefits pursuant to such order. It is alleged that
since the Corporation has offered very less sum as
compared to what was actually payable to the
applicant (employee) pursuant to the order dated
04.05.1999, the applicant did not accept the sum
offered to him.
13. The Corporation has filed its reply on affidavit.
They have raised certain technical pleas but, in fact,
have admitted that so far they have not paid any
amount to the applicant in compliance of the order
dated 04.05.1999. It is stated by the Corporation
that they offered the sum to the applicant but he
declined to accept the same stating that what was
offered to him was less as compared to his actual
entitlement.
14. With the aforementioned background facts, the
question arises as to whether the applicant
(employee) is entitled to claim any monetary benefits
8
pursuant to the order dated 04.05.1999 and, if so,
how much?
15. Since the applicant herein was appearing
in-person, we requested Mr. B. Bhattacharya,
learned senior counsel, who was present in Court,
to appear on behalf of the applicant and render
assistance. On our request, Mr. Bhattacharya
appeared and rendered his valuable assistance. We
record our appreciation for him. Mr. Rakesh Sinha,
learned counsel appeared for the respondent.
16. Having heard learned counsel for the parties
and on perusal of the record of the case, we dispose
of this contempt petition with the following
directions:
17. The Object and the Scope of Section 17-B of
the Act was examined by this Court in Dena Bank
vs. Kiritikumar T. Patel, (1999) 2 SCC 106. This
Court in Paras 7 and 21 held as under:
“The object of Section 17-B is to relieve
to a certain extent the hardship that is
9
caused to the workman due to delay in the
implementation of the award during the
pendency of proceedings in which the said
award is under challenge before the High
Court or the Supreme Court. The payment
which is required to be made by the employer
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 the Supreme Court, 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 set aside by
the award of the Labour Court or the
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. Therefore, the words
“full wages last drawn” must be given their
plain and material meaning and they cannot
be given the extended meaning.”
18. The aforementioned principle of law was
approved by this Court (Three Judge Bench) in
Dena Bank vs. Ghanshyam, (2001) 5 SCC 169 (see
Paras 9 and 10).
19. In the light of the aforementioned principle of
law laid down by this Court, one cannot now
10
dispute the legal proposition emerging therefrom
that notwithstanding allowing of the appeal filed by
the Corporation by this Court by order dated
31.10.2000, so far as order dated 04.05.1999
passed in the aforesaid appeal is concerned, it
remains legal and valid and being independent in
nature, the same has to be given effect to in favour
of the applicant (employee), if not found complied
with by the employer (Corporation).
20. In other words, even if the employer eventually
succeeds in its appeal against his employee, in
which such order was passed during the pendency
of employer’s appeal, the employer continues to
remain under legal obligation to comply with such
order passed by the Court under Section 17-B of the
Act in favour of the employee. To put it in short, an
order passed under Section 17-B of Act does not
merge with the final order passed in the appeal and
11
being an independent order, it remains alive for
enforcement.
21. As mentioned above, it is not disputed that the
Corporation has not yet complied with the order
dated 04.05.1999 much less in letter and spirit.
22. We have examined the matter keeping in view
the nature of controversy, long pendency of the
case, nature of interim order passed by this Court,
offer made by the Corporation for settlement and
the sum payable to the applicant under various
heads etc.
23. We have also worked out the amount payable
to the applicant pursuant to the order dated
04.05.1999 under different Heads, such as monthly
salary, its arrears, leave encashment, gratuity,
bonus, interest, if held payable, on the entire sum
at a reasonable rate from 04.05.1999.
24. Having examined the matter and taking into
consideration the aforementioned several relevant
12
factors, we are of the considered view that the
applicant is held entitled to claim from the
Corporation a total sum of Rs.7,50,000/- (Seven
Lakhs Fifty thousand) towards all his claims arising
out of his employment dispute with the Corporation
in full and final settlement pursuant to the order
dated 04.05.1999.
25. In other words, the Corporation will pay a sum
of Rs.7,50,000/- (Seven Lakhs fifty Thousand) to
the applicant (employee) towards the applicant's all
monetary claims in relation to his employment
dispute with the Corporation in full and final
settlement.
26. It is stated at the bar that the applicant is in
occupation of the Corporation quarter, which had
been allotted to him by virtue of his employment. If
that be so, the applicant will vacate the quarter
within three months from the date of this order as
an outer limit.
13
27. On applicant’s vacating the quarter within the
time fixed by this Court, the Corporation will
accordingly pay to the applicant Rs.7,50,000/- by
demand draft within one week from the date of
vacating the quarter.
28. With these directions, the contempt petition
stands disposed of. Rule Nisi, if issued, stands
discharged against the alleged contemnor.

………...................................J.
 [R. K. AGRAWAL]

…...……..................................J.
 [ABHAY MANOHAR SAPRE]
New Delhi;
February 23, 2018 

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.