JUDGMENT S.H.A. Raza, J.
1. This writ petition is directed against the award of the Labour Court dated 25.9.82 by means of which the Tribunal held that the dismissal of the complainant-workman Phool Chand Gupta, with effect from 1.7.82, was illegal and irregular. The order of the employer dated 30.6.82 terminating the services of the complainant-workman was, therefore, quashed and the workman was reinstated with full back wages with effect from 1.7.82.
2. The facts giving rise to the award is that a complaint under Section 6F of the U. P. Industrial Disputes Act, 1947, was filed by the workman Phool Chand Gupta against the petitioner alleging that his services were terminated with effect from 1.7.82 inspite of the fact that he was a 'concerned workman' in adjudication Case No. 19 of 1960 which was pending before the Tribunal. The adjudication-Case No. 19 of 1980 pertained to the lay-off in the establishment of the petitioner. The workman had asserted that he could not have been removed from service in view of the proviso to Section 6B (2) of the Industrial Disputes Act which provides that no workman whose proceedings are pending in adjudication case, against the employers shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceedings were pending for the approval of the action taken by the employer. It was urged on behalf of the workman before the Tribunal that the establishment did not take the approval of the Tribunal where the adjudication Case No. 19 of 1980 was pending. The contention of the workman/respondent to this writ petition appears to be that he was a workman in the establishment of the petitioner and on account of the lay-off declared by the petitioner, he was a 'concerned workman' within the meaning of Section 6E of the Act. The provisions of Section 6E of the U. P. Industrial Disputes Act, 1947, is more or less analogous to Section 33 of the Industrial Disputes Act (Central). Section 6E of the Industrial Disputes Act is reproduced below :
"6E. Conditions of service, etc., to remain unchanged in certain circumstances during the pendency of proceedings :--(1) During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal in respect of an industrial dispute, no employer shall-
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding, or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending.
3. It cannot even be imagined that in the matter of lay-off in an establishment a workman working in that establishment is not a 'workman concerned in such dispute'. The proviso to Section 6E clearly indicates that no such workmen shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. According to sub-section (3) of Section 6E, an employer during the pendency of such proceedings in respect of industrial dispute cannot take action against any protected workman concerned in such dispute by altering the conditions of service applicable to him immediately before the commencement of such proceedings or by discharging or punishing whether by dismissal or otherwise of such protected workman, save that express permission in writing of the authority before which the proceeding is pending. Thus, according to Section 6E (3), a workman would be deemed to be a 'protected workman' if any dispute is pending for adjudication before the Tribunal. The lay-off resorted to by the petitioner, has undoubtedly effected the workman. Adjudication case was pending, hence he would be deemed to be a 'workman concerned' in such a dispute and also a 'protected workman' and his services cannot be dispensed with until and unless the workman is paid one month wages and a permission is obtained from the Tribunal where the case is pending before terminating or removing him from service.
4. The Industrial Disputes Act is a welfare legislation. The object of the Act is to protect the workman from unfair labour practice and to save him from retrenchment or removal from service. Hence, the provisions of the Act deserves to be liberally construed.
5. While considering this aspect of the matter, the Tribunal was perfectly justified in giving a finding to the effect that the workman was a 'concerned workman', because against the lay off resorted to by the establishment/employer, adjudication case was pending, hence, it was incumbent upon the employer to have taken the permission from the Tribunal before resorting to terminating his services or removing him from service. Which was not done. In that regard, the finding of the Tribunal cannot be faulted.
6. The second issue which pertained to removal of the services of the petitioner, the Tribunal was called upon to answer as to whether the departmental enquiry initiated against the workman was fair and proper. As the Tribunal was of the view that the removal of the services of the workman can be set at naught by giving a finding to the effect that provision of Section 6E (2) of the Act was violated, the entire proceedings conducted by the management was vitiated, hence, it did not delve into the merits of the case which is evident from the finding recorded on issue No. 6 which is reproduced below :
"Once the second issue is decided in affirmative, the first issue pertaining to the domestic enquiry becomes a matter of academic interest. It is admitted by the employers that when the workman was dismissed his wages for one month were sent to him by money order but no application was made by them to the Authority (i.e.. the Tribunal) before which Adjudication Case No. 10/80 is still pending. Evidently, therefore, one of the two important conditions laid down in the proviso to Section 6E-(2) has not been fulfilled and since this vital condition has not been fulfilled, the dismissal of the workman is manifestly illegal and irregular.
7. After giving this finding, the Tribunal only discussed the objections raised by the workman against the enquiry which was limited to the extent that the statements of the witnesses were not truthfully recorded and then came to the conclusion that those statements as well as the file of the domestic enquiry left no doubt in his mind that the enquiry was conducted in a just and proper manner. Neither the evidence recorded during the course of domestic enquiry was discussed nor a finding was recorded by the Tribunal as to whether the witnesses adduced in evidence during the course of domestic enquiry inspired confidence and whether it should be accepted.
8. In Punjab Beverages v. Suresh Chand, AIR 1978 SC 995, Hon'ble Bhagwati, J. speaking of the Bench observed :
"In fact in Equitable Coal Co.'s case, AIR 1958 SC 761, an order of compensation made by the Tribunal in favour of the workman was reserved by this Court. The Tribunal would have to consider all the aspects of the case and ultimately what order would meet the ends of justice would necessarily have to be determined in the light of the circumstances of the case. But this much is clear that mere contravention of Section 33 by the employer will not entitle the workman to an order of reinstatement, because inquiry under Section 33A is not confined only to the determination of the question as to whether the employer has contravened Section 33, but even if such contravention is proved, the Tribunal has to go further and deal also with the merits of the order of discharge or dismissal."
While observing, what has been mentioned in the foregoing paragraph. Hon'ble Bhagwati, J. clearly indicated in para 11 that :
The foundation of the complaint under Section 33A is contravention of Section 33 and if the workman is unable to show that the employer has contravened Section 33 in making the order of discharge or dismissal the complaint would be liable to be rejected. But if the contravention of Section 33 is established the next question would be whether the order of discharge or dismissal passed by the employer is justified on merits."
9. In the present case, as indicated in the foregoing paragraph, I have already observed that the finding of the Tribunal that provisions of Section 6E (2) were contravened and that finding cannot be faulted, hence it was incumbent upon the Tribunal to have delved into the merits of the case and after appraising the evidence of the domestic enquiry, the report of the Enquiry Officer as well, should have given its conclusive finding. The Tribunal should have also given a finding as to whether the order of punishment, i.e., removal from service, commensurate with the gravity of the charge or not. But in the present case, the Tribunal committed manifest error of law which glares at the face of the Court, that by not giving any finding to the effect as to whether the order of removal/dismissal passed by the employer was justified on merits or not.
10. In view of the aforesaid, the case deserves to be remitted to the Presiding Officer of the Tribunal for decision on merits, but before doing so there is another aspect of the matter which needs consideration. On 17.1.1984 Hon'ble K.N. Misra, J. (as he then was) passed an order to the effect that the operation of the order dated 26.9.83 (Award) contained in Annexure-5 and the proceedings for execution of the Award shall remain stayed till 30.3.84. The application for interim relief was to be listed for orders on 26.3.84 and the fact was to be noted in the notices issued to the opposite parties that this application will come up for further orders on that date. On 13.7.1984 Hon'ble R.C. Deo Sharma. J., (as he then was) rejected the application preferred by the workman for vacation of the stay order granted earlier.
11. Section 17B of the Industrial Disputes Act (Central) reads as under :
"I7B. 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."
12. There is no dearth of cases as far as the provisions of Section 17B are concerned. Very recently in Dena Bank v. Kirtikumar T. Patel, AIR 1998 SC 511, Hon'ble S.C. Agrawal, J. speaking for the Bench observed :
"Section 17B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour Court, industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court 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. Such a direction would be de hors the provisions contained in Section 17B 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. In exercise of the power under Articles 226 and 136 of the Constitution and order cannot be passed denying the workman the benefit granted under Section 17B. The right of workman under Section 17B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Articles 226 and 136 of the Constitution."
13. It is really unfortunate that the provisions of Section 17B were completely ignored by two eminent Hon'ble single Judges of this Court while passing a blanket order of stay of the Award. This could not have been done. My attention has been drawn by the learned counsel appearing on behalf of the workman that during the course of proceedings, an application under Section 17B was also preferred but no orders on the said application were passed. I am of the view that even if no application would have been preferred, it was the duty of the Court to have passed an order directing the petitioner to pay the petitioner his full wages at the rate of the wage last drawn by him. from the date of the filing of the writ petition and continue to pay the same till the disposal of the writ petition.
14. This Court has already observed that the petition deserves to be remitted to the Industrial Tribunal again as such 1 direct the petitioner to pay the workman his full wages at the rate of the wages last drawn by him, from the date of the filing of the writ petition and to continue to pay the same till the disposal of this writ petition. If the petitioner would fail to carry out the direction within one month from today, the Assistant Labour Commissioner/ Additional Labour Commissioner shall send a requisition to the Collector concerned to execute this order under Section 6H of the U. P. Industrial Disputes Act.
15. With the aforesaid observations, I quash the findings of the learned Tribunal as far as issue No. 1 is concerned and issue a writ in the nature of mandamus commanding the Industrial Tribunal (II). Lucknow to consider the matter afresh and give a definite finding on issue No. 1, in case either party wishes to adduce any further evidence, it would be open to the Tribunal to allow the same and decide the matter within six months from the date of receipt of a certified copy of this order With the aforesaid observation, the petition is disposed of.