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The Management of New Delhi Tuberculosis Centre Vs. Lt. Governor of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtDelhi High Court
Decided On
Case NumberC.M. 4006/84 in C.W. 376/84
Judge
Reported inILR1985Delhi101; 1985LabIC1321
ActsIndustrial Disputes Act, 1947 - Sections 2 and 17B
AppellantThe Management of New Delhi Tuberculosis Centre
RespondentLt. Governor of Delhi and ors.
Appellant Advocate Vinay Bhasin, Adv
Respondent Advocate M.K. Ramamoorthy, Sr. Adv. and ; A. Krishnamoorthy, Adv.
DispositionPetition dismissed
Cases ReferredMohd. Rashid v. State of U.P.
Excerpt:
.....enforced with effect from august 21, 1984. this section provides for payment of full wages to the workman whose reinstatement has been directed, pending proceedings in the high court or supreme court on the fulfillment of certain laid down conditions.;the workman, thereafter, filed the present application contending that for the application of section 17-b, the date of the award or its enforcement or of filing the writ was inconsequential and that it refers only to a particular situation or a state of affairs. on the other hand, it was contended by the petitioner that since section 17-b came into force much after the present proceedings were filed, it could not be given retrospective effect and the workman could not avail of the benefits provided there under.;agreeing with the..........the reinstatement of the workman;2. the employer should have preferred proceedings against such award m high court or supreme court; and3. the workman should not have been employed in any establishment during such period.according to the counsel, all these conditions arc satisfied and the workman is, thereforee, entitled to full wages last drawn by him during the pendency of the writ petition. he, urges that section 17-b uses the words 'where the labour court directs reinstatement of any workman and the employer prefers any proceedings against such award', it does not deal with the question as to when that was done. the date of the award or its enforcement or the date of the filing of the writ petition is inconsequential. the language employed refer to a situation or a state of.....
Judgment:

S.S. Chadha, J.

1. This application raises an interesting question of law as to the scope and effect of newly added Section 17-B of the Industrial Disputes Act, 1947 (hereinafter called the Act).

2. Shri Bharat Singh (for short workman) joined the management of New Delhi Tuberculosis Centre, Jawaharlal Nehru Marg, New Delhi for short Management) as a Peon against a permanent regular post and thereafter promoted as a Daftry. The Management by memorandum dated September 13, 1975 informed the workman that his services are no longer required with effect from September 13, 1975 (afternoon) and, thereforee, his services were thereby terminated in terms of the Management's memorandum dated May 25, 1958 and Estt/T.B. 6360, dated September 2, 1965. He was paid one month's salary in lieu of notice. At the time when the services of the workman were terminated, the Management-hospital was not recognised as Industry under Section 2(j) of the Act in view of the judgment of the Supreme Court in the case of Safdarjang Hospital. The workman did not raise any industrial dispute with the Management for a period of about three years. In the year 1978, the Hon'ble Supreme Court in the case of Bangalore Water Supply over-ruled its earlier judgment of Safdarjang Hospital and thereby the Management's hospital was considered to be an industry. The workman thereafter raised an industrial dispute. The Delhi Administration vide its order, dated August 6, 1979 made the following reference for adjudication :--

'Whether the termination of the services of the workman Shri Bharat Singh is justified and/or illegal and if so, to what relief is he entitled,'

3. The Presiding Officer of the Labour Court in its award dated September 28, 1983 came to the conclusion that the termination of the services of the workman is wrongful and illegal and he is entitled to be reinstated with continuity of service The Labour Court made an award that the workman is entitled to be reinstated with continuity of service but he is entitled to back wages with effect from May 19, 1978 only at the rate at which he was drawing when his services were terminated. The appropriate Government published the award in the Delhi Gazette by notification dated November 2, 1983.

4. On January 31, 1984 the Management filed a writ petition under Article 226 of the Constitution of India challengingthe award dated September 28, 1983 passed by the LabourCourt. Rule Nisi was issued by a Division Bench of this Courton February 2, 1984. The petition was accompanied by amiscellaneous application, being C.M. 410/84, praying for thestay of the operation of the impugned award till the disposal ofthe writ petition. The Division Bench issued notice in theapplication.

5. After receiving the reply and rejoinder and hearing the counsel for the parties, I directed by order dated May 3, 1984 that there shall be stay of the operation of the impugned award during the pendency of the writ petition conditional on the Management depositing 25 per cent of the amount as determined by the Labour Court, Delhi in respect of back wages in the impugned award dated September 28, 1983 within three months from that date. The amount was directed to be deposited in the Labour Court, Delhi and was allowed to be withdrawn by the workman on furnishing security for restitution to the satisfaction of the Labour Court, Delhi. The security was directed to be attested after notice to the Management. This order has not been challenged and has become final between the parties,

6. The workman has moved the present application on December 11, 1984 under Section 17-B of the Act read with Section 151 of the Code of Civil Procedure for directions to the Management to pay the workman full wages last drawn by the workman inclusive of all the allowances during the pendency of the writ petition. The submission of Shri M.K. Ramathoorthy, the learned counsel for the workman is that Section 17-B of the Act provides for payment of full wages by the employer to workman pending proceedings in the High Court or Supreme Court, if the following conditions are fulfillled :--

3. Labour Court should have directed the reinstatement of the workman;

2. The employer should have preferred proceedings against such award m High Court or Supreme Court; and

3. The workman should not have been employed in any establishment during such period.

According to the counsel, all these conditions arc satisfied and the workman is, thereforee, entitled to full wages last drawn by him during the pendency of the writ petition. He, urges that Section 17-B uses the words 'where the Labour Court directs reinstatement of any workman and the employer prefers any proceedings against such award', it does not deal with the question as to when that was done. The date of the award or its enforcement or the date of the filing of the writ petition is inconsequential. The language employed refer to a situation or a state of affairs. Reliance is placed on 'Rustom & Hornsby (I) Ltd. v. T. B. Kadam', : (1975)IILLJ352SC where similar observations were made by the Supreme Court while construing Section 2-A of the Act.

7. On the other hand, the submission of Shri Vinay Bhasm, the learned counsel for the Management is that the ward by the Labour Court was made on September 28, 1983 and the writ petition itself was preferred on January 31, 1984. This Court by order dated May 3, 1984 granted stay of the operation of the impugned award during the pendency of the writ petition on certain conditions which have been complied with by the Management. It is urged that Section 17-B of the Act came into force with effect from August 21, 1984 and does not have retrospective effect.

8. In order to appreciate these contentions, it is apposite to notice certain provisions of the Act. Under Section 16, the award of a Labour Court, Tribunal of National Tribunal has to be in writing and shall be signed by its Presiding Officer. Under Section 17, every award of a Labour Court, Tribunal or National Tribunal is required, within a period of 30 days from the date of its receipt by the appropriate Government, to be published in such manner as the appropriate Government thinks fit. Subject to the provisions of Section 17-A, the award published under Sub-section (1) of Section 17 is final and cannot be called in question by any Court in any manner whatsoever. The commencement of the award is provided in Section 17-A. An award becomes enforceable on the expiry of 30 days from the date of its publication under Section 17. There is a proviso and other provisions which are not relevant here. The awards are constantly being challenged by petitions under Articles 226 and 227 of the Constitution of India before the High Courts and before the Supreme Court by way of special leave petitions. The operation of the provisions of Sections 17 and 17-A of the Act or the awards are not automatically stayed by the mere filing of the writ petitions in the High Courts or by making applications for special leave to the Supreme Court. After the High Court or the Supreme Court has entertained the writ petition or the special leave petition respectively, specific orders are made on the facts and circumstances of each case staying the operation of the ward in exercise of judicial discretion either on conditions or unconditionally. When there is a stay of the operation of the award, the petitioner or the appellant as the case may be, becomes immune on the strength of the orders of the Court from the operation of those provisions of the Act, which impose penalties for the infringement of the terms of the award.

9. In the statement of objects and reasons while introducing the Industrial Disputes (Amendment) Bill, 1982, it was observed that when Labour Courts pass award of reinstatement, these are often contested by an employer in the Supreme Court and High Courts. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, thereforee, proposed to provide the payment of 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 or High Courts. By Section 11 of Amending Act 46 of 1982, new Section 17-B was inserted, namely:--

'11. Insertion of new Section 17-B.--After Section 17-A of the principal Act, the following section shall be inserted, namely :--

'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.'

10. The Industrial Disputes (Amendment) Act, 1982 (Act 46 of 1982) received the assent of the President on August 31, 1982. The commencement of the Act was directed to be on such date as the Central Government, may by notification in the Official Gazette, appoint. In exercise of the powers conferred by Sub-section (2) of Section 11 of Act 46 of 1982, the Central Government appointed the 21st day of August, 1984 as the date on which, inter alia, Section 11 of Act 46 of 1982 came into force. The notification dated August 21, 1984 was published in the Gazette of India (Extraordinary) dated the 21st August, 1984.

11. It is well-settled that the statement of objects and reasons is not admissible as an aid to the construction of a statute. They cannot be taken info consideration for construing the provisions of Section 17-B. They do not form a part of the Bill and are not voted upon by the members of the Parliament. The Courts cannot use it in construing its provisions. The statement of objects and reasons, however, furnish valuable historical material in ascertaining the reasons which induced the Parliament to enact a statute or to make amendments to the existing statute, and what objects it sought to achieve. It may thus be looked into only for the purpose of ascertaining the conditions prevalent and the evil sought to be remedied.

12. The conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same are apparent. The effect of Section 17-A(1) is that immediately on the expiry of the period of 30 days from the date of the publication of the award, it must be given effect to. In case of reinstatement, the workman has to be reinstated on that very day when the period of 30 days expires. In case the directions are not carried out or the award is not implemented, then the penalties would be incurred and punishment can be inflicted. The awards of the authorities under the Act are open to judicial review in writ jurisdiction under Article 32 by the Supreme Court and article 226 by the High Court and in superintendence jurisdiction under Article 227 by the High Courts and special appeal jurisdiction under Article 136 by the Supreme Court. The scope of the jurisdiction of the writ courts to interfere with the awards and to give appropriate relief to the persons aggrieved is fairly wide and comprehensive and thus petitions are entertained by the Courts. Pending final adjudication interim orders are often made staying the operation of the impugned awards of reinstatement of workmen or granting interim injunction against the implementation of the awards. The petitioners or the appellants become, for the time being, immune from the operation of the penal provisions of the Act. They may not implement the awards including reinstatement of the workman pending the disposal of the cases which ate even ultimately dismissed. There was thus delay in the implementation of the awards of reinstatement. This was felt by the legislature as causing hardship to the workman concerned.

13. The legislature was aware of the conditions prevalent i.e. the extent of the orders made by the Courts resulting into the non-implementation of the awards of reinstatement of the workmen. The motive which was present was to provide for the payment of wages last drawn by the workmen concerned from the date of the award till the case is finally decided by the Courts. The objects and reasons can be seen for the limited purpose of appreciating the mischief the Parliament had in mind and the remedy which it wanted to provide for preventing that mischief in enacting Section 17-B of the Act. It cannot be used for the purpose of aiding in construing the statute.

14. The purpose of Section 17-B has to be gathered as far as possible from the language employed. The primary duty of the Court is to find the natural meaning of the words used in the context in which they occur. The cardinal rule of construction of a statute is to construe it according to the plain literal and grammatical meanings. Unless the language is ambiguous and in its literal sense gives rise to an anomaly or results in something which would defeat the purpose of the Act, the Court ought to give literal meaning to the statute. 'There are three fundamental rules suggested in English cases; firstly the literal rules that, if the meaning of the section is plain, it is to be applied whatever the result the golden rule that the words should be given their ordinary sense unless that would lead to some absurdity or inconsistency with the rest of the instrument; and the 'mischief rule' which emphasises the general policy of the statute and the evil at which it was directed''. In Section 17-B the ordinary, natural and grammatical meaning of the words 'by its award directs reinstatement of any workman' is when a Labour Court, Tribunal or National Tribunal by its award 'commands' or 'orders'. It cannot apply to awards which have already directed reinstatement of any workman. It is not permissible to add words or read the words 'or has already directed' after the word 'directs'. The power to add the words cannot be exercised unless there is almost a necessity in order to give the section a workable meaning much less, when the language of the section does not justify any addition. The plain meaning of the word 'prefers' is also prospective after the coming into the force of Section 17-B. It is significant to notice here that Act 46 of 1982 was passed and received the assent of the President on August 31, 1982. Section 17-B itself was brought into foray with effect from August 21, 1984 almost two years after the Amendment Act was passed. This circumstance shows it could not be retrospective in its application.

15. Every legislation is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. The question whether a statute is prospective or retrospective depends on the legislative intent. If the terms of a statute are clear and unambiguous and it is manifest that the legislature intended the statute or its amendment to operate retrospectively, it must unquestionably be so construed. If, however, the terms of a statute do not of themselves make the intention certain or clear, the statute will be presumed to operate prospectively (See 'Mohd. Rashid v. State of U.P.' : (1979)ILLJ146SC . A retrospective, operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure. Every statute which creates a new obligation or imposes a new duty must be presumed to be intended not to have retrospective effect. Section 17-B directs the employer to pay during the period of pendency of the proceeding fall wages last drawn by the workman and, thereforee, has to be construed as dealing with future and not past event of the making of the award.

16. Section 11-A of the Act was inserted by Industrial Disputes (Amendment) Act, 1971. That section provides thatwhere an industrial dispute relating to the discharge or dismissalof a workman has been referred to a Labour Court, Tribunal orNational Tribunal for adjudication and, in the course of adjudication proceedings, the Labour Court, Tribunal or NationalTribunal, as the case may be, is satisfied that the order of thedischarge or dismissal was not justified, it 'may, by its awardset aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, asit thinks fit, or give such other relief to the workman includingthe award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. It cameup for consideration before the Supreme Court in 'The Workman of M/s. Firestone Tyre & Rubber Co. of India (Pvt.) Ltd.and The Management and Ors.', : (1973)ILLJ278SC It was held :--

'.... A proceeding under the section can only be after the section has come into force. Further the section itself was brought into force some time after the Amendment ACE was passed. These circumstances as well as the scheme of the section and particularly the wording of the proviso indicate that Section 11-A does not apply to disputes which had been referred period to 15-12-1971. The section applies only to disputes which are referred for adjudication on or after 15-12-1971. To conclude, in our opinion Section 11-A has no application to disputes referred prior to 15-12-1971. Such disputes have to be dealt with according to the decisions of this Court already referred to.'

It was reiterated in 'Gujarat Mineral Development Corporation V. P. H. Brahmbhatt', : (1974)ILLJ97SC that this section has no retrospective operation in the pending references.

17. I am, thereforee, of the view that it was not the intention of the Legislature to give a retrospective effect to the provisions contained in Section 17-B of the Act. The Legislature took away the judicial discretion of the Courts in granting interim reliefs when the award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or Supreme Court. Section 17-B has application only to cases where the awards have been made on or after the commencement of Section 17-B, in other words, August 21, 1984. Since the award in this case is prior to August 21, 1984, it has no application. CM. 4006/84 is dismissed with no order as to costs.


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