# Canara Bank v. Central Govt. Industrial Tribunal Cum Labour Court & another

- **Citation:** (2000) 3 ILRA 75
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/canara-bank-v-central-govt-industrial-tribunal-cum-labour-court-another-39546
- **Pages:** 8

## Text

3All] Canara Bank V. Central Govt. Industrial Tribunal Cum Labour Court & another
75
Liquidator and others 1999 Company
Cases Vol. 96-page 386 to urge that
disposition
of
property
after
commencement of winding up is void
unless approved by the Court. There can
be no quarrel with this proposition but the
point of the matter is that the ownership of
the property must be shown as vesting in
the company. Unless it is shown that the
company was the owner of the property,
the sale cannot be declared to be void. On
an
analytic
scrutiny of the present
controversy in an adjudicator manner, this
Court finds that the property where against
the respondent no.1 -U.P.F.C. proceeded
under Section 29 of the State Financial
Corporation Act and sold the same had not
been transferred to the company (In
Liquidation) and was not, therefore, owned
by it. Resultantly, the official liquidator
cannot lay any claim there against. The
application made by the official Liquidator
is liable to be dismissed.

In view of the above discussion,
application
made
by
the
Official
Liquidator is found to be devoid of merit
and the same is hereby dismissed.
Application Dismissed.

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By the Court

1. The order dated 27th October, 1997
passed in L.C.A. No. 1151 of 1997 by the
presiding
officer
Central
Government
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
76
Industrial Tribunal-cum Labour Court,
Kanpur has since been challenged in this
writ petition. Mr. Tewari, learned counsel
for the petitioner employer contends that
the order allowing payment of back wages
cannot be sustained since it had included
payment at the rate at which the workmen
would have been entitled to if he was
reinstated with back wages in view of the
qualified expression used in the award to
the extent that "back wages at the rate at
which lastly drawn." According to him this
will not include any increment nor any
revision
of
pay
neither
any
other
components as are mentioned in Section 2
(rr) of the Industrial Disputes Act while
detaining the word "wages". According to
him, the workman would not be entitled
even to Dearness Allowance. He relies on
the interpretation of the words "last
drawn" of the apex court in the case of
Dena Bank Vs. Kirti Kumar (1992 (2)
SCC 106).

2. Mr. Sudhanshu Dhuliya, learned
counsel for the workmen respondents on
the
other
hand
contends
that
the
interpretation of words "last drawn" given
in the decision in the case of Dena Bank
(Supra) cannot be taken aid of when back
wages are payable under an award.
Inasmuch the provisions contained in
Section 17B was enacted in a particular
situation securing interim measure for a
workmen in favour of whom an order of
reinstatement is passed and is subject to a
proceeding challenging such reinstatement,
as a condition for stating the order of
reinstatement. This is in the form of
subsistence allowance, since in case the
proceedings succeed, the amount paid to
the workmen would not be recoverable and
as such different meaning has since been
given to this expression when used in the
award. The right flowing from such an
award is entitlement and not an interim
measure for subsistence allowance and as
such there is a broad distinction between
these
two
situations
on
which
the
interpretation to the expression while
dealing with Section 17B cannot be
utilized for such purpose. He further
contends that the decision in the case of
Dena Bank (Supra) has itself recognized
the entitlement of the workmen under
these two different situations. He had
relied on the decision in the case of Dena
Bank
(Supra)
to
substantiate
his
submission as well as on various other
decisions, to which a reference shall be
made at appropriate stage. He has relied on
the Law of Industrial Disputes, Volume II,
Fifth Edition by Sri O.P. Malhotra at page
1434. On these grounds, he contends that
the petitioner is entitled to back wages as
defined in Section 2 (rr) of the Industrial
Disputes Act, including all the components
mentioned therein, as will as the revised
wages, if revised in the order him. He then
contends
that
while
reinstating
the
workman when the tribunal awarded back
wages, the expression 'lastly drawn'
incorporated in the award is superfluous
and redundant. This expression cannot be
reconciled with the entitlement of back
wages
pursuant
to
an
order
of
reinstatement in the award. Therefore, the
petitioner is entitled to full back wages,
which will include all components of
wages, as well as the increment and
revision in wages as if the workmen was in
service for the period during which he was
prevented from working by reason of
proceedings since culminating in the
setting aside of the termination reinstating
the workman. On these grounds, he prays
that this petition should be dismissed.

3. I have heard both the learned
counsel at length.
3All] Canara Bank V. Central Govt. Industrial Tribunal Cum Labour Court & another
77
4. In order to appreciate with the
situation, it would be necessary to briefly
refer to the facts of this case. There was an
industrial dispute between the petitioner
employer and the workman-respondent.
The said dispute travelled to the High
Court through writ proceedings in the form
of challenge thrown to the award. The
High Court, however, had remanded the
case after setting aside the award dated
25th October, 1991 passed in Adjudication
Case No.179 of 1988 upon such remand, a
fresh award was passed on 2nd of January,
1996. In the said award dated 2nd January,
1996, the concluding part was as follows:-

"As such my award is that the action of the
management of Canara Bank in dismissing
the concerned workman from services of
the Bank is not justified. He is also entitled
for back wages at the rate at which he had
lastly drawn his wages."

This award has since not been challenged
by the employer. It was also not
questioned by the workman. Pursuant to
the award, the workman have since been
reinstated. So far as payment of wages
after reinstatement is concerned, it is not
being disputed. The employer paid back
wages at the rate at which the workmen
had drawn on the date of termination
without Dearness Allowance and other
components. Therefore, the workmen had
filed an application under Section 33C (2)
for releasing the difference according to
his calculation. This application was
registered as L.C.A. No. 15 of 1997. By an
order dated 27th October., 1997 since
impugned in this petition, the labour court
had allowed the application in [part by
directing recovery of the entire amount
claimed less the House Rent Allowance.
This order has since been challenged in
this petition as referred to above.

5. Thus on facts of this case the point
for determination is confined to the
interpretation of the expression 'back
wages' at the rate at which he had lastly
drawn his wages' whether this will include
Dearness Allowance, Increments, revision
of pay and all other components as are
mentioned in the definition of word
"wages" in Section 2 (rr) of the Industrial
Disputes Act or not.

6. In order to interpret the expression
'wages last drawn' in reference to the
implementation of an award cannot be
interpreted in the same manner as it can be
interpreted when it is used in reference to a
proceeding under Section 17B. Inasmuch
as there is a marked different in the
entitlement of the workmen flowing from
an award and those under Section 17B. In
other words, the entitlement flowing from
an award is the right legally accrued to the
petitioner independent of an intervention
of court on the basis of the award itself,
which is capable of execution. It does not
depend on the discretion of the court or
otherwise. Whereas Section 17B is by way
of interim measure pending adjudication of
a proceeding arising out of an award
reinstating a workman as a condition for
staying
reinstatement.
As
rightly
contended by Mr. Dhuliya, the amount
paid under Section 17B is in the form of
subsistence
allowance
paid
to
the
workman,
which
may
not
be
an
entitlement to him if the award is set aside.
But still then the amount paid under
Section 17B cannot be borrowed in order
to interpret the same expression appearing
in the award. This distinction has also been
recognized in the case of Dena Bank
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
78
(Supra) by the apex court. Paragraph 20 of
the said decision makes a distinction
between these two situations while it
interpret
full
wages
last
drawn.
If
interpreted to mean full wages which could
have been drawn, would result into giving
an extended meaning which does not find
support in the language of Section 17B.
The payment under Section 17B while
staying an implementation of the award, an
interim measure is permitted. If the
expression 'full wages' in Section 17B is
interpreted with a different meaning in that
event it will be amounting to implementing
the award which is being stayed by the
High Court, namely entitling the workmen
to receive full wages as he would have
been entitled if he continued in service.
This distinction may be noted even from
the observations made in paragraphs 21
and 24 respectively.

7. In paragraph 24, the apex court
observed that the direction of the High
Court by the learned Single Judge since
affirmed by the Division Bench for
payment of wages as revised, including
increments,
Dearness
Allowance
etc.
which are granted to all employees
pursuant to Vth and VIth Bipartite
settlement, cannot be upheld since it would
amount to directing payment of wages
which would have been drawn by the
workman if he had been reinstated with
full wages last drawn by him. Thus the
apex court had made a clear distinction
between
the
two
situation,
namely,
entitlement under an award and those
under Section 17B of the Act.

8. In that view of the matter, it is not
possible to borrow the expression wages
last drawn given in the case of Dena
Bank(Supra) by the apex court in order to
interpret the expression used in the award,
which requires a determination by this
Court.

9. Mr. Dhuliya had relied on the
decision in the case of M/s Contienental
Commercial Company And State &
Others (1998(80) FLR 337), wherein the
decision in the case of Dena Bank ( Supra)
was followed in respect of a case arising
out of Section 17B of the said Act in order
to include the same distinction, which
finds an expression in the concluding
paragraph, where the court had observed
that if the petition of the workman was
unconnected with Section 17B in that
event the court had a discretion to allow
something more as available in terms of
interpretation of words 'last pay drawn'
under Section 17B in the case of Dena
Bank (Supra).

10. He had also relied on the decision
in the case of Hindustan Wires Ltd. And
Janardan Kundu ( 1997 (76) FLR 943)
which interpreted it to mean that it would
include
increment
and
Dearness
Allowance, which might have accrued in
the meantime. This decision was given
prior to the decision in the case of Dena
Bank (Supra). Therefore, the said decision
is no more a good law and the endeavour
of Mr. Dhuliya to borrow the said
interpretation for the purpose of his case
may not be of any avail to us since the
decision was in relation to proceedings
under Section 17B which as I have already
held, cannot be relied upon for the purpose
of interpretation of the expression with
which we are now concerned.

11. Section 11A of the Industrial
Dispute Act prescribes the power of a
Tribunal. The Tribunal is empowered by
its award to "set aside the order of
discharge
or
dismissal
and
direct
3All] Canara Bank V. Central Govt. Industrial Tribunal Cum Labour Court & another
79
reinstatement of the workman on such
terms and conditions, if any, as it thinks
fit, or give such other relief to the
workman including the award of any lesser
punishment in lieu of discharge or
dismissal as the circumstances of the case
may require."

Thus it appears that the jurisdiction of the
Tribunal is wide enough to attach any
condition to the reinstatement as he may
think fit. The power to reinstate is subject
to the attachment of the conditions or
terms according to the wisdom of the
Tribunal. Mr. Dhuliya in his usual fairness
has conceded to the proposition while
reinstating the Tribunal has jurisdiction to
allow back wages, full or partial wages or
it may allow reinstatement without back
wages or may also allow reinstatement
with a lump sum payment or make
payment
of
lump
sum
in
lieu
of
reinstatement.
Mr.
Tewari
had
also
advanced the similar contention. In fact the
Tribunal has all these powers. The power
of the Tribunal is not under any doubt.

12. But at the same time, Section17B
is applicable only when an award directing
reinstatement
of
the
workman
in
challenged In the High Court, then it
makes the employer liable to pay the
workmen during the pendency of such
proceedings full wages last drawn. Thus
Section 17B can be attracted only when an
award reinstating a workman has been
challenged. Then again this provisions is
dependent on the discretion of the court to
the extent that such an order is to be
passed when an application is made to the
court establishing that during the period,
the workman was not employed elsewhere.
Thus it is an interim measure pending
adjudication of the dispute before the High
Court or Supreme Court. Thus it is
completely distinct from the entitlement of
the workman under an award, which was
not by way of an interim measure but by
way of entitlement. The relief under
Section 17B is an interim measure pending
enforcement of the award if the proceeding
before the higher forum fails.

13. Therefore, in order to determine
the question it would be beneficial to refer
to the definition of wages given in Section
2 (rr), which is as follows:-

"wages means all remuneration capable of
being expressed in terms of money which
would, if the terms of employment,
expressed or implied, were fulfilled, be
payable to a workman in respect of his
employment or of work done in such
employment, and includes-

(i) such allowances (including dearness
allowance ) as the workman is for the time
being entitled to;

(ii)
the
value
of
any
house
accommodation, or of supply of light,
water, medical attendance or other amenity
or of any service or of any concessional
supply of food grains or other articles:

(iii) any travelling concession;

(iv) any commission payable on the
promotion of sales or business or both;

but does not include

(a) any bonus;

(b) any contribution paid or payable by the
employer to any pension fund or provident
fund or for the benefit of the workman
under any law for the time being in force;
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
80
(c) any gratuity payable on the termination
of his service;

The wages includes all remuneration
which are capable of being expressed in
terms of money according to the terms of
the employment expressed or implied. It
also includes such allowance, including
Dearness
Allowance
to
which
the
workmen may be entitled to for the time
being
and
the
value
of
house
accommodation or supply of electricity,
light
water,
medical
attendance
and
concessional supply of food grains and
other articles. So far the other two
components mentioned in the definition
may not be relevant for our purpose.

14. Having regard to the said
definition, the contention of Mr. Tewari to
the extent that Dearness Allowance cannot
be included, appears to be wholly unsound.
The wages payable under the award is to
be interpreted in the same manner as
defined in Section 2 (rr) of the said Act
and not otherwise.

15. Section 33 (2) empowers the
labour court to determine such amount as
are payable under an award. It can enforce
entitlement of the workman giving the
very award. Mr. Tewari contended that
since entitlement of the workman is
disputed, therefore, the labour court in
exercise of jurisdiction under Section
33(2) cannot enter into such a dispute and
decide the jurisdiction of the labour court.
This contention also cannot not acceded to.
Inasmuch under Section 33 C (2), the
labour
court
has
to
compute
the
entitlement of the workman flowing from
the award. Whether the entitlement flows
from the award or not is a question to be
determined and as such can very well be
gone into. If the labour court finds that the
entitlement flows from the award, then it
has jurisdiction to compute the same.

16. In the present case the labour
court has proceeded to compute the
entitlement flowing from the award and as
such the order is wholly within the
jurisdiction. Therefore, the contention of
Mr. Tewari is over-ruled.

17. Now let us examine as to whether
the computation that has been made by the
labour court could be justified on the basis
of the expression used in the award.

18. Having regard to the power
conferred on the labour court under
Section 11A, it appears that the labour
court may pass any kind of orders, terms
and conditions for reinstatement. It may
award full back wages, it may award
partial back wages. It may not award back
wages while reinstating a workman. It may
award a lump sum payment in lieu of
reinstatement or in lieu of back wages
allowing reinstatement. Thus when the
labour court expressed some special
reference as a term for reinstatement, the
same has to be interpreted according to the
expression used. If the payment of back
wages is qualified by any expression it has
to be interpreted to the extent Mr. Tewari
had contended to qualify the payment of
wages to the extent as it has qualified by
the expression used. If the back wages is
qualified by any expression, it cannot be
said that it is superfluous or redundant. But
at the same time, it has to be examined
from the expression whether there is any
apparent contradiction in the expression
used or not. If there is a contradiction in
that the one that is more beneficial to the
workman is to be accepted and that which
is lesser beneficial to the workman is to be
discarded. In case the expression could
3All] Canara Bank V. Central Govt. Industrial Tribunal Cum Labour Court & another
81
have been full back wages last drawn was
used, in that event definitely the contention
of Mr. Dhuliya that the expression wages
last drawn could have been superfluous
and redundant and could not have been
reconciled with the expression full wages
but would mean that the back wages that
would have been payable had the workman
continued in service. The expression last
drawn could not be reconciled with
expression full back wages. As such the
contention of Mr. Dhuliya could have
some substance if such an expression is
used. But if the expression used in the
award is back wages last drawn, then
perhaps it is not possible to accede to the
contention of Mr. Dhuliya to the extent at
which he had raised it. The labour court
had qualified the back wages as a term and
condition for reinstatement. This is to be
interpreted used in this award is back
wages at the rate which he had last drawn.
Therefore, the rate of wages is to be
calculated at the rate at which the
workman had drawn on the date of his
termination. But the wages even though
may be at that rate would include all the
components as at re mentioned in Section
2 (rr) of the said Act. No part of it could be
excluded. The exclusion of House Rent
Allowance in the course of computation,
therefore, cannot be justified. The House
Rent Allowance is also inclusive to wages
as defined in Section 2 (rr), which requires
computation and is to be computed by the
labour court. However, the question of
payment of other amenity with regard to
any concessional supply of food grains or
other articles or other amenities, if there be
any, which was not consumed by the
workman during this period, ma y not be a
factor for payment of equivalent of such
amenities in course of such computation.
But if the workman has consumed such
amenities, in that event that cannot be
adjusted against such payment or deducted
or reduced to that extent from the payment
that has to be made. If not consumed, in
that event the equivalent cannot be
excluded other than the amenities relating
to supply of food grains etc. are concerned.
So far as the House Rent Allowance or if
the
workman
was
occupying
any
accommodation and was still in occupation
of such accommodation is concerned. He
will be entitled to the reimbursement to the
extent of supply of light, water or medical
attendance as were available to the
workman under the terms of employment
if he had availed such benefits as are
allowed to the workman under the rules.
herements. may not be available that if Liu
scale cannot drawn is revised , the revised
rate may also be available as such revised
rate of the last pay drawn and be available.

19. In that view of the matter, the writ
petition is allowed accordingly. The order
impugned, namely, the order dated 27th
October, 1997 is hereby set aside. No cost.
The learned labour court is hereby directed
to compute the amount payable to the
petitioner in the light of the observations
made above within a period of three
months from the date of receipt of a
certified copy of this order. It would be
open to the workmen to compute the
amount and place it to the employer within
three weeks from date and in that event the
employer may agree or certify the amount
payable under such computation and may
furnish details, if there is any difference,
within a period of three weeks from the
date of furnishing of the said statement and
both the statements may be filed before the
labour court in order to enable the court to
determine the question of computation.
The labour court will decide the question
according
to
its
own
wisdom
and
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
82
discretion
having
regard
to
the
observations made herein before.

20. Let a certified copy of this order
be issued to the learned counsel on
payment of usual charges at the earliest.

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By the Court

1. Heard Sri A.C. Verma, learned
counsel for the petitioner, learned Standing
Counsel for Respondent No.1, and Sri
Mehbood Ahmad Siddiqui, holding brief
of Sri I.M. Khan, representing Respondent
no.4,
Sri
R.K.
Saxena,
Advocate,
representing Respondent nos. 2 and 3 is
not present.

2. Petitioner, belonging to Schedule
Caste, was working as Clerk-cum-Typist
in the Nagar Palika, Fatehpur since 1984.
On 17th September, 1992 one Mansoor
Ahmad, holding post of the Senographer in
said Nagar Palika, died living behind his
widow Smt. Zahida Khatoon, who has
been, admittedly, employed at the relevant
time as will be evident from perusal of
para 11 of the writ petition as well as para
21 of the Counter Affidavit, sworn by
Mohd. Arif Mansoor, Respondent no.4.

3. The petitioner claims that the post
of Stenographer held by deceased Mansoor
Ahmad was in the promotional quota in
the relevant rules no particulars given but
Respondent no.4 (son the aforementioned
deceased Mansoor Ahmad) was appointed
on compassionate ground under Dying in
Harness Rules, 1974 and copy of which
has been filed as Annexure 2 to the writ
petition. In para 10 of the writ petitioner, it
is stated that appointment letter in favour
of Respondent no.4 was anti-dated to make
it appear as on 1.10.92 even though
petitioner had already taken over the
charge on the post in question on 19th
September,1992 and hence the post was