M/S. AUTOMOBILES ASSOCIATION OF UPPER INDIA v. BANSRAJ SHUKLA AND ORS

1. This is an application filed by the petitioner seeking recall of the order dated 27.02.2023, vide which the applications preferred under Section 17-B of the Industrial Disputes Act, 1947 (the Act) by the respondent nos.1, 2, 4, 5 & 6 were allowed by this Court.

2. Learned counsel for the petitioner vehemently submits that the applications, having been filed in October 2015, were never pressed by the respondents and were therefore, directed to be heard alongwith the main petition. He, therefore, contends that there was no reason as to why the applications should have been taken up for disposal on 27.02.2023, when the writ petition was being adjourned.

3. He further submits that the petitioner is an Non Governmental Organization (NGO) and the directions issued vide order dated 27.02.2023 to pay arrears under Section 17-B of the Act will impose a huge financial burden on the petitioner especially when the contract for which the respondents were engaged already stands terminated. He, further, submits that once this Court, after finding prima facie merit in the writ petition, has already stayed the impugned award vide its order dated 10.03.2015, the applications under Section 17-B of the Act, were even otherwise not maintainable.

4. I have considered the submissions of learned counsel for the petitioner and find absolutely no merit in the same. Merely, because the applications under Section 17-B of the Act, though filed by the respondents immediately upon receiving notice of the writ petition, have remained pending for many years, cannot be a ground to endlessly defer disposal of these applications which, by their very nature are required to be decided at the earliest.

5. It is well settled that proceedings under Section 17-B of the Act are independent proceedings and are not dependent on the final order, which may be passed in the writ petition wherein the award directing reinstatement of the workmen is assailed by the management. In this regard, reference may be made to the decision of the Apex Court in Dilip Mani Dubey v. Siel Ltd., (2019) 4 SCC 534, wherein it has been held that even if the Court eventually upholds the termination order as being legal against the workman, yet the employer will have no right to recover the amount under Section 17-B of the Act. The relevant extracts of the aforesaid decision read as under:- “13. We, however, find that the High Court despite setting aside the award of the Industrial Tribunal, rightly directed that whatever amount, which has so far been paid to the appellant workman by Respondent 1 employer in compliance with the order passed under Section 17-B of the ID Act proceedings during pendency of the litigation, the same will not be recoverable from the appellant on the strength of the impugned order. According to the learned counsel for Respondent 1 employer, this amount is quite a substantial one and is more than Rupees two lakhs. Be that as it may.

14. Such direction issued by the High Court against Respondent 1 employer, in our view, is in conformity with the law laid down by this Court in that behalf. Indeed, this Court has held that the proceedings under Section 17-B of the ID Act are independent proceedings in nature and are not dependent upon the final order passed in the main proceedings.

415. It is ruled that if the court/tribunal, eventually upholds the termination order as being legal against the workman, yet the employer will have no right to recover the amount already paid by him to the delinquent workman pursuant to order passed under Section 17-B of the ID Act during pendency of these proceedings (see Dena Bank v. Kiritikumar T. Patel [Dena Bank v. Kiritikumar T. Patel, (1999) 2 SCC 106: 1999 SCC (L&S) 466], Dena Bank v. Ghanshyam [Dena Bank v. Ghanshyam, (2001) 5 SCC 169: 2001 SCC (L&S) 786] and Rajeshwar Mahto v. Birla Corpn. Ltd. [Rajeshwar Mahto v. Birla Corpn. Ltd., (2018) 4 SCC 341: (2018) 1 SCC (L&S) 722] ).”

6. I also do not find any merit in the submission of Dr. Bhasin that once the impugned award has been stayed by this Court, an application under Section 17-B of the Act, would not be maintainable. On the other hand, it is the other way round and it is only when the award directing reinstatement of the workman is stayed by the Court, at the instance of the employer, that an application under Section 17-B of the Act can be filed by the workman. In this regard, reference can be made to the decision in Civil Appeal No.480/2009 titled Kaivalyadham Employees Association v. Kaivalyadham S.M.Y.M. Samity, wherein the Apex Court held as under:- “Section 17B provides in unambiguous terms that if an award for reinstatement of a workman is stayed at the instance of the employer, either by the High Court or the Supreme Court, the employer will be liable to pay to the workman during the pendency of the proceedings before the High Court or the Supreme Court full wages as last drawn by him, including any maintenance allowance admissible to him under any Rule, if the workman had not been gainfully employed elsewhere during the said period.”

7. I also do not find any merit in the petitioner’s plea that because pleadings in the writ petition are already complete, instead of the applications being allowed, the writ petition should have been taken up for final disposal on 27.02.2023. At the cost of repetition, it may be noted that proceedings under Section 17-B of the Industrial Disputes Act are independent proceedings and the outcome of the writ petition has no bearing on the adjudication of an application under Section 17-B of the Act, which is primarily dependent upon the workman being unemployed. Even otherwise, a perusal of the order dated 27.02.2023 of which recall is being sought by the petitioner shows that hearing of the writ petition was deferred only at the request of the petitioner itself as the main counsel for the petitioner was not available on that date.

8. In the light of the aforesaid, I find no reason to recall the order dated 27.02.2023. The application being meritless is, accordingly, dismissed.

JUDGE MARCH 24, 2023