RAJESHWAR MAHTO versus ALOK KUMAR GUPTA, G.M. M/S BIRLA CORPORATION LTD. on 23 February 2018

[2018] 2 S.C.R. 529

RAJESHWAR MAHTO

v.

ALOK KUMAR GUPTA, G.M. M/S BIRLA CORPORATIONLTD.

(Misc. Application No.711 of 2017)

IN

(Contempt Petition No. 785 of 2018)

IN

(Civil Appeal No.4482 of 1998)

FEBRUARY 23, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Industrial Disputes Act, 1947 – s.17-B – Order under –Enforcement of – Services of applicant-employee terminated by theemployer-Corporation by order dtd. 01.09.1985 – Applicant raisedan industrial dispute before Industrial Tribunal which answeredthe reference in favour of Corporation holding that applicant wasnot a workman within the meaning of expression “workman” – Writpetition filed by applicant, allowed – Division Bench dismissed theLPA by Corporation – SLP filed by Corporation – Vide interim orderdtd. 04.05.1999 passed u/s.17B, Corporation was directed by theSupreme Court to pay to the applicant full wages last drawn by himon 01.09.1985 inclusive of maintenance allowance admissible tohim – SLP allowed by Order dtd. 31.10.2000 – Present contemptpetition filed by applicant alleging that interim order dtd. 04.05.1999has not yet been complied with by the Corporation – Held:Notwithstanding the allowing of the appeal of Corporation, bySupreme Court vide order dtd. 31.10.2000, order dtd. 04.05.1999passed in the said appeal remains legal and valid and beingindependent in nature, the same has to be given effect to in favourof the applicant-employee, if not found complied with by theemployer-Corporation – An order passed u/s.17-B does not mergewith the final order passed in the appeal and being an independentorder, it remains alive for enforcement – Applicant is held entitledto claim Rs.7,50,000/- towards all his claims in full and finalsettlement pursuant to the order dated 04.05.1999 – Contempt ofCourts Act, 1971.

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AIndustrial Disputes Act, 1947 – s.17-B – Object and Scopeof – Discussed.

Disposing of the contempt petition, the Court HELD: 1.1 Notwithstanding allowing of the appeal filed bythe Corporation by this Court by order dated 31.10.2000, so farBas order dated 04.05.1999 passed in the aforesaid appeal isconcerned, it remains legal and valid and being independent innature, the same has to be given effect to in favour of the applicant(employee), if not found complied with by the employer(Corporation). [Para 19] [535-C]

CDena Bank vs. Kiritikumar T. Patel (1999) 2 SCC106 : [1997] 5 Suppl. SCR 263 – relied on.

1.2 Even if the employer eventually succeeds in its appealagainst his employee, in which such order was passed during thependency of employer’s appeal, the employer continues to remainDunder legal obligation to comply with such order passed by theCourt under Section 17-B of Industrial Disputes Act, 1947 infavour of the employee. An order passed under Section 17-B ofAct does not merge with the final order passed in the appeal andbeing an independent order, it remains alive for enforcement. Itis not disputed that the Corporation has not yet complied withEthe order dated 04.05.1999 much less in letter and spirit. [Paras20, 21] [535-D-E]

1.3 The matter has been examined keeping in view thenature of controversy, long pendency of the case, nature of interimorder passed by this Court, offer made by the Corporation forFsettlement and the sum payable to the applicant under variousheads etc. The amount payable to the applicant pursuant to theorder dated 04.05.1999 has been worked out under differentHeads, such as monthly salary, its arrears, leave encashment,gratuity, bonus, interest, if held payable, on the entire sum at aGreasonable rate from 04.05.1999. Having examined the matterand taking into consideration the aforementioned several relevantfactors, the applicant is held entitled to claim from the Corporationa total sum of Rs.7,50,000/- towards all his claims arising out ofhis employment dispute with the Corporation in full and final settlement pursuant to the order dated 04.05.1999. [Paras 22-24] [535-F-H; 536-A]

1.4 It is stated at the bar that the applicant is in occupationof the Corporation quarter, which had been allotted to him byvirtue of his employment. If that be so, the applicant will vacatethe quarter within three months from the date of this order as anouter limit. On applicant’s vacating the quarter within the timefixed by this Court, the Corporation will accordingly pay to theapplicant Rs.7,50,000/-. [Paras 26, 27] [536-B-D]

Dena Bank vs. Ghanshyam [2001] 3 SCR 591 :(2001) 5 SCC 169 – referred to.

Case Law Refereence

CIVIL APPELLATE JURISDICTION : Misc. Application No.711of 2017 in Contempt Petition No. 785 of 2018 in Civil Appeal No.4482 of1998

From the Judgment and Order dated 23.02.1998 of the High Courtof Calcutta in Appeal No. F.M.A.T. No. 2186 of 1996.

B. Bhattacharya, Sr. Adv. for the Appellant.

Rakesh Sinha, Pawan Kumar Bansal, T. Mahipal, Advs. for theRespondent.

Rajeshwar Mahto (Petitioner-in-person)

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This contempt petitionarises out of the two orders, one dated 04.05.1999 and final order dated31.10.2000 passed by this Court (Three Judge Bench) in Civil AppealNo. 4482 of 1998. This application is filed by the respondent (employee)of the said appeal.

2. To appreciate the grievance of the applicant herein(employee)-respondent of the aforementioned appeal, it is necessary to set out therelevant facts which led to the filing of civil appeal in this Court whichlater gave rise to filing of this contempt petition.

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A3. 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 GeneralManager of the Corporation. The applicant was appointed on 04.12.1974.However, the applicant’s services were terminated by the Corporationby order dated 01.09.1985. On the date of termination, the applicant’sBlast drawn salary was Rs.1185/-.

4. The applicant felt aggrieved of his termination and raised anindustrial dispute before the Industrial Tribunal under the Industrial DisputeAct, 1947 (hereinafter referred to as “the Act”) for deciding the legalityand correctness of his termination order.

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5. By award dated 22.11.1991, the Industrial Tribunal answeredthe reference in favour of the Corporation. It was held that the applicantwas not a workman within the meaning of the expression “workman” asdefined in Section 2 (s) of the Act and, therefore, the Government Orderby which the reference was made to the Industrial Tribunal is notDmaintainable.

6. The applicant felt aggrieved and filed writ petition before theHigh Court at Calcutta. The Single Judge of the High Court, by order22.03.1996 allowed the writ petition and while setting aside the award ofthe Industrial Tribunal held that the applicant was the workman and,Etherefore, the Government was right and had the power to make anindustrial reference to the Industrial Tribunal. The Single Judge, therefore,set aside the order of the Industrial Tribunal.

7. The Corporation felt aggrieved and filed an intra Court appealbefore the Division Bench of the High Court. By order dated 31.03.1998,Fthe Division Bench dismissed the appeal and upheld the order of theSingle Judge giving rise to filing of the appeal before this Court by theCorporation being S.L.P.(c) No. 8518/1998. This Court granted leaveand accordingly it was registered as Civil Appeal No. 4482 of 1998.

8. By order dated 31.10.2000, this Court allowed the Corporation’sGappeal and while setting aside the orders of the Division Bench andSingle Bench dismissed the writ petition filed by the applicant herein. Asa consequence, the award passed by the Industrial Tribunal holding thatthe applicant was not a workman was upheld.

9. It is pertinent to mention here that during the pendency of theCorporation’s Civil Appeal in this Court, the Corporation had prayed forgrant of the stay of the impugned order of the Division Bench.

10. This Court, by interim order dated 04.05.1999, directed theCorporation to pay to the applicant full wages last drawn by him on01.09.1985 inclusive of maintenance allowance admissible to him underthe Rules on the applicant’s furnishing an affidavit to the effect that hehad not gainfully employed elsewhere. The Corporation was asked topay the aforesaid amount of full wages last drawn with effect from01.05.1998 onwards till the final disposal of the appeal. The Corporationwas directed to pay the arrears within four weeks and future monthlyemoluments by 7[th] of each succeeding month.

11. Likewise, while finally allowing the Corporation’s appeal on31.10.2000, this Court recorded an offer made by the Corporation thatnotwithstanding the result of the appeal, the Corporation is still readyand willing to pay a sum of Rs.2 lakhs to the applicant towards full andfinal settlement to the satisfaction of the applicant’s claim which theyhad offered earlier during the pendency of the appeal (see last Para offinal order dated 31.10.2000).

12. With these background facts, the applicant- employee hasfiled the contempt petition alleging therein that the interim order dated04.05.1999 passed by this Court during the pendency of Civil AppealNo. 4482/1998 has not yet been complied with by the Corporation. It isalleged that notwithstanding the disposal of the civil appeal inCorporation’s favour by this Court by order dated 31.10.2000, so far asthe interim order dated 04.05.1999 passed under Section 17-B of theAct is concerned, the same has to be complied with by the Corporationby paying to the applicant all monetary benefits pursuant to such order.It is alleged that since the Corporation has offered very less sum ascompared to what was actually payable to the applicant (employee)pursuant to the order dated 04.05.1999, the applicant did not accept thesum offered to him.

13. The Corporation has filed its reply on affidavit. They haveraised certain technical pleas but, in fact, have admitted that so far theyhave not paid any amount to the applicant in compliance of the orderdated 04.05.1999. It is stated by the Corporation that they offered the A

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Asum to the applicant but he declined to accept the same stating that whatwas offered to him was less as compared to his actual entitlement.

14. With the aforementioned background facts, the question arisesas to whether the applicant (employee) is entitled to claim any monetarybenefits pursuant to the order dated 04.05.1999 and, if so, how much?

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15. Since the applicant herein was appearing in-person, werequested Mr. B. Bhattacharya, learned senior counsel, who was presentin Court, to appear on behalf of the applicant and render assistance. Onour request, Mr. Bhattacharya appeared and rendered his valuableassistance. We record our appreciation for him. Mr. Rakesh Sinha, learnedCcounsel appeared for the respondent.

16. Having heard learned counsel for the parties and on perusalof the record of the case, we dispose of this contempt petition with thefollowing directions:

17. The Object and the Scope of Section 17-B of the Act wasDexamined 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 certainextent the hardship that is caused to the workman due todelay in the implementation of the award during theEpendency of proceedings in which the said award is underchallenge before the High Court or the Supreme Court.The payment which is required to be made by the employerto the workman is in the nature of subsistence allowancewhich would not be refundable or recoverable from theworkman even if the award is set aside by the High CourtFor the Supreme Court, Parliament thought it proper tolimit it to the extent of the wages which were drawn by theworkman when he was in service and when his serviceswere terminated and therefore used the words “full wageslast drawn”. To read these words to mean wages whichGwould have been drawn by the workman if he had continuedin service if the order terminating his services had notpassed since it has been set aside by the award of theLabour Court or the Industrial Tribunal, would result inso enlarging the benefit as to comprehend the relief thathas been granted under the award that is under challenge.

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Therefore, the words “full wages last drawn” must begiven their plain and material meaning and they cannot begiven the extended meaning.”

18. The aforementioned principle of law was approved by thisCourt (Three Judge Bench) in Dena Bank vs. Ghanshyam, (2001) 5SCC 169 (see Paras 9 and 10).

19. In the light of the aforementioned principle of law laid downby this Court, one cannot now dispute the legal proposition emergingtherefrom that notwithstanding allowing of the appeal filed by theCorporation by this Court by order dated 31.10.2000, so far as orderdated 04.05.1999 passed in the aforesaid appeal is concerned, it remainslegal and valid and being independent in nature, the same has to be giveneffect to in favour of the applicant (employee), if not found compliedwith by the employer (Corporation).

20. In other words, even if the employer eventually succeeds inits appeal against his employee, in which such order was passed duringthe pendency of employer’s appeal, the employer continues to remainunder legal obligation to comply with such order passed by the Courtunder Section 17-B of the Act in favour of the employee. To put it inshort, an order passed under Section 17-B of Act does not merge withthe final order passed in the appeal and being an independent order, itremains alive for enforcement.

21. As mentioned above, it is not disputed that the Corporationhas not yet complied with the order dated 04.05.1999 much less in letterand spirit.

22. We have examined the matter keeping in view the nature ofcontroversy, long pendency of the case, nature of interim order passedby this Court, offer made by the Corporation for settlement and the sumpayable to the applicant under various heads etc.

23. We have also worked out the amount payable to the applicantpursuant to the order dated 04.05.1999 under different Heads, such asmonthly salary, its arrears, leave encashment, gratuity, bonus, interest, ifheld payable, on the entire sum at a reasonable rate from 04.05.1999.

24. Having examined the matter and taking into consideration theaforementioned several relevant factors, we are of the considered viewthat the applicant is held entitled to claim from the Corporation a total A

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Asum of Rs.7,50,000/- (Seven Lakhs Fifty thousand) towards all his claimsarising out of his employment dispute with the Corporation in full andfinal 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 theBapplicant’s all monetary claims in relation to his employment disputewith the Corporation in full and final settlement.

26. It is stated at the bar that the applicant is in occupation of theCorporation quarter, which had been allotted to him by virtue of hisemployment. If that be so, the applicant will vacate the quarter withinCthree months from the date of this order as an outer limit.

27. On applicant’s vacating the quarter within the time fixed bythis Court, the Corporation will accordingly pay to the applicantRs.7,50,000/- by demand draft within one week from the date of vacatingthe quarter.

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28. With these directions, the contempt petition stands disposedof. Rule Nisi, if issued, stands discharged against the alleged contemnor.

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Divya Pandey Petition disposed of.

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