Judgment:
ORDER
1. Heard.
2. LA. No. 9081/2006 and LA. No. 12385/2006 are two interlocutory applications filed in Writ Appeal No. 732/2006.
3. On 7-10-2006 the Court while admitting the writ appeal and issuing notice of the writ appeal as well as application for stay (LA. No. 9081/2006) to the respondents, directed that there shall be an interim stay of the order dated 1-12-2004 of the Presiding Officer, Labour Court No. 2, Bhopal and the order dated 5-5-2005 of the learned Single Judge in W.P. No. 1465/2005 and other connected cases.
4. Thereafter LA. No. 12385/2006 has been filed by the respondent No. 1 for direction on the appellants to comply with the provisions of Section 17B of the Industrial Disputes Act, 1947 (for short 'Act') and reinstate the respondent No. 1 with back wages as ordered by the learned Single Judge in the impugned order dated 5-5-2005.
5. Mr. Shobhit Aditya, earned Counsel appearing for the appellants submitted that the Labour Court has wrongly decided in the award that the activities of the Family Planning Association of India represented by the appellants made the Family Planning Association of India an industry for the purpose of the Act. He submitted that the award of the Labour Court is without jurisdiction inasmuch as the Family Planning Association of India is not an industry and the Act is not applicable to the Family Planning Association of India. He further submitted that in Regional Authority, Dena Bank and Anr. v. Ghanshyam s. C/0293/2001','1');'> : (2001)IILLJ252SC , the Apex Court has held that Section 17B of the Act does not preclude the High Court under Article 226 of the Constitution from passing appropriate interlocutory order having regard to the facts and circumstances of the case and in the interest of justice. He submitted that in the peculiar facts and circumstances of this case when the Family Planning Association of India is not an industry to which the Act applies, this Court should in exercise of power under Article 226 of the Constitution not only stay the award of the Labour Court as well as the impugned order passed by the learned Single Judge but also hold that the provisions of Section 17B of the Act need not be complied with by the appellants.
6. Mr. Anoop Shrivastava, earned Counsel appearing for the respondent No. 1, on the other hand, submitted that the Labour Court has rightly held that the Family Planning Association of India is an industry to which the Act is applicable. He further submitted that in Dena Bank v. Kirtikumar T. Patel AIR 1998 Lab.IC 578, the Supreme Court has held that the High Court in exercise of power under Article 226 of the Constitution cannot pass an order denying the workman the benefits granted under Section 17B of the Act. He also cited the decision of the Supreme Court in CM. Saraiah v. E.E., Panchayat Raj Department and Anr. 2000(1) LLJ 23, in which the Supreme Court has held that the Court has no jurisdiction to direct non-compliance of the provisions of Section 17B of the Act and has quashed the order of the High Court.
7. We have perused the award dated 1-12-2004 passed by the Labour Court, Bhopal, in the present case and we find that the Labour Court has relied upon the Division Bench judgment of this Court in Mahila Samiti, Tikamgarh v. State of Madhya Pradesh and Ors. (1989 Lab.IC 891) and come to the conclusion that the Family Planning Association of India is an industry to which the provisions of the Act are applicable. Hence, the finding in the award of the Labour Court that the Family Planning Association of India is an industry to which the provisions of the Act are applicable, prima facie, appears to be well founded.
8. Even if this Court comes to the conclusion in the writ appeal that this finding of the Labour Court that the Family Planing Association of India was not an industry to which the provisions of the Act could be made applicable, the respondent/Workman would still be entitled to the benefit of the provisions of Section 17B of the Act. In Dena Bank v. Kirtikumar T. Patel (supra), the Supreme Court has held that the workman is entitled to the benefit of Section 17B of the Act during the pendency of the writ petition under Article 226 of the Constitution of India before the Court and the High Court in exercise of power under Article 226 of the Constitution of India cannot pass an order denying the workman the benefit granted under Section 17B of the Act during the pendency of the writ petition. A similar view has been taken in CM. Saraiah v. E.E., Panchayat Raj Department and Anr. (supra), and it has been held therein that the High Court has no jurisdiction under Article 226 of the Constitution to direct non-compliance of the provisions of Section 17B of the Act.
9. All that has been held in Regional Authority, Dena Bank and Anr. v. Ghanshyam (supra), cited by Mr. Shobhit Aditya, the earned Counsel appearing for the appellants, is that the High Court under Article 226 of the Constitution of India is not precluded from passing the appropriate interlocutory order having regard to the facts and circumstances in the interest of justice. This view has been taken on the basis of the earlier decision of the Supreme Court in Dena Bank v. Kirtikumar T. Patel (supra), wherein it has been held that the High Court while exercising the power under Article 226 of the Constitution to pass an order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice and such a direction would be dehors the provisions of Section 17B of the Act and while giving the direction the Court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. The excess amount here would mean the amount in excess of what is payable by the employer to the workman in terms of Section 17B of the Act.
10. For the aforesaid reasons, we direct that the appellants shall pay to the Workman the full wages last drawn as provided under Section 17B of the Act. The order of stay passed by this Court on 7-10-2006 is made absolute today and this would mean that the reinstatement of the workman would remain stayed subject to compliance with the provisions of Section 17B of the Act. This order for compliance of the provisions of Section 17B of the Act will be complied by the appellant within a period of two months from today.
The two interlocutory applications are disposed of accordingly.
C.C. as per rules.