JUDGMENT
Anil Kumar, J.
1. This is an application filed by the respondent/workman under Section 17B of the Industrial Disputes Act, 1947 seeking direction to the petitioner to pay wages to the respondent/workman from the date of the Award dated 27th July, 2006 and continue to pay the last drawn wages during the pendency of the present writ petition.
2. The contention of the applicant was that by the Order dated 12th September, 2000 a punishment of compulsory retirement with superannuation benefits was imposed upon the applicant. A reference was made pertaining to punishment imposed on the respondent. An award dated 27th July, 2006 was passed in favor of the respondent under the punishment imposed on the applicant was set aside and the applicant was reinstated with all consequential benefits with full back wages from the date of the punishment Order dated 12th September, 2000.
3. This award is impugned by the petitioner in the above noted present petition. The applicant submitted that since his compulsory retirement he is unemployed and not working anywhere. He stated that he had stated so even before the Tribunal which had set aside his order of compulsory retirement. The applicant has also contended that it has been held by the Supreme Court of India as well as various Division Benches of this Hon’ble Court that when the award directing reinstatement is challenged by the management, then the payment of wages under Section 17B is to be granted by the Higher Courts from the date of the Award to skilled, semi-skilled and unskilled workman. The applicant submitted that he should be reinstated as he is also a skilled workman. An affidavit is also filed by the respondent in which it was stated that he has not been employed anywhere after his termination of services by way of compulsory retirement with effect from 12th September, 2000.
4. The petitioner has opposed the application on the ground that the award is contrary to evidence on the record and is perverse and is liable to be set aside. It is contended that the punishment awarded has been set aside merely on the ground that the original documents had not been produced by the petitioner. It is asserted by the petitioner that the charge can be proved on the basis of the copies of the documents which were made available to the respondent during the enquiry proceedings. The petitioner also pleaded that reasonable opportunity was not given to the management to lead evidence.
5. The petitioner/non-applicant submitted that after the order of the punishment respondent was given a sum of Rs. 1,07,400.00 as Gratuity and Rs. 76,657.00 as his PF dues. The petitioner opposed the application on the ground that the applicant had opted for the pension which is being paid to him @d Rs. 2484.00/- from July 2001 to July 2007 a total sum of Rs. 258474/- has been paid as pension and Rs. 5,000/- by this Court as litigation expenses. It has been asserted in the circumstances that since the applicant has received sufficient remuneration and he has sufficient means to support himself therefore, he should not be awarded the benefits under Section 17B as it can be presumed that the applicant is gainfully employed.
6. This cannot be disputed that granting relief under Section 17B of the Act and passing orders directing payment of wages last drawn, is generally the rule; refusing to grant relief under Section 17B is an exception, as it could be passed only in the rarest of the rare cases of jurisdictional error where there is no relationship between the parties. In the present case the this has not been disputed that there is relationship of employee and employer between the petitioner and the applicants. While considering an application under this provision it is necessary to bear in mind that the spirit, intendment and object underlying the statutory provision of Section 17B, is to mitigate and relieve, to a certain extent, the hardship resulting to a workman due to delay in the implementation of an award directing reinstatement of his services on account of the challenge made to it by the employer. The preliminary consideration for making available such a relief to a workman is to be found in the benevolent purpose of the enactment. It recognizes a workman s right to the bare minimum to keep body and soul together when a challenge has been made to an Award directing his reinstatement. The statutory provisions provide no inherent right of assailing an order or an award by an industrial adjudicator by way of an appeal. The payment which is required to be made by the employer to the workman has been held to be akin to a subsistence allowance which is neither refundable nor recoverable from a workman even if the Award in his favor is set aside by the High Court. In , Dena Bank v. Kiritikumar T. Patel the Apex Court was of the view that the object under Section 17B of the Industrial Disputes Act, 1947 is only to relieve to a certain extent, the hardship that is caused to the workman due to the delay in implementation of the Award. While considering the payment which is required to be made by the employer to the workman in this behalf, the Apex Court observed as follows: 21. As indicated earlier Section 17B has been enacted by Parliament with a view to give relief to a workman who has been ordered to be reinstated under the Award of a Labour Court or the Industrial Tribunal during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award. The payment which is required to be made by the employer to the workman is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or this Court. Since the payment is of such a character, Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was in service and when his services were terminated and therefore used the words full wages last drawn. To read these words to mean wages which would have been drawn by the workman if he had continued in service if the order terminating his services had not passed since it has been set aside by the award of the Labour Court or the Industrial Tribunal, would result in so enlarging the benefit as to comprehend the relief that has been granted under the award that is under challenge. Since the amount is not refundable or recoverable in the event of the award being set aside, it would result in the employer being required to give effect to the award during the pendency of the proceedings challenging the award before the High Court or the Supreme Court without his being able to recover the said amount in the event of the award being set aside. We are unable to construe the provisions contained in Section 17B to cast such a burden on the employer. In our opinion, therefore, the words full wages last drawn must be given their plain and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Visveswaraya Iron and Steel Ltd. or the Bombay High Court in Corona Sahu Co. Ltd.
22. xxxx
23. As regards the powers of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution, it may be stated that 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 dehors 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. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. that in exercise of the power under Articles 226 and 136 granted under Section 17B. The conferment of such a right 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.
7. The provisions of Section 17B of the Industrial Disputes Act, 1947 comes into operation when an Award directing reinstatement of a workman is assailed in further proceedings. The statute requires satisfaction of the following four conditions:
(i) an Award by a Labour Court, Tribunal or National Tribunal directing reinstatement of a workman is assailed in proceedings in a High Court or the Supreme Court;
(ii) during the pendency of such proceedings, employer is required to pay full wages to the workman;
(iii) the wages stipulated under Section 17B are full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any Rule;
(iv) such wages would be admissible only if the workman had not been employed in any establishment during such period and an affidavit had been filed to such effect
8. In the present case the workman has categorically averred in the application that he has been unemployed since the date of his compulsory retirement. While considering an application under this provision it is necessary to bear in mind that the spirit, intendment and object underlying the statutory provision of Section 17B is to mitigate and relieve, to a certain extent, the hardship resulting to a workman due to delay in the implementation of an award directing reinstatement of his services on account of the challenge laid to it by the employer. The contention of the workman/applicant is that he is not gainfully employed in any establishment. Gainful employment in an establishment has been held by the Apex Court as not a self employment. Since the section itself mentions employment in establishment, self employment quite apparently is not in contemplation. Workman can be denied the benefits under Section 17B of the Industrial Disputes Act only when it is proved to the satisfaction of the Court that the workmen have been employed and have been receiving adequate remuneration during the period of pendency of the writ petition. It is thus well settled that transient employment by the workman does not affect his entitlement to receive wages pending decision; that is to say that, the benefit of Section 17B of the Act cannot be denied merely because the workman is engaged in some activity or in some vocation to eke out his livelihood. If the workman cannot be denied the benefit under this section if he is engaged in some activity or in some vocation to eke out his livelihood, a fortiori, he cannot be denied the benefit under this section if the petitioner has been paid some amount on account of his compulsory retirement or some amount is being paid to him as pension. In any case the learned Counsel for the applicant has contended that while considering the last drawn wages or minimum wages whichever is higher which is payable to the applicant, the amount of pension per month already paid be deducted and he be paid balance last drawn wages or minimum wages whichever is higher. In view of this submission of the counsel for the respondent/applicant, the plea of the petitioner that the respondent is paid pension per month and the applicant cannot be awarded any relief under Section 17B of the Act, cannot succeed. This is also not res integra that while considering an application under Section 17B of the Industrial Disputes Act, the Court cannot go into the merits of the case in the writ petitioner. It was so held in , Anil Jain v. Jagdish Chander.
9. In the facts and circumstances, the applicant fulfillls the criteria for availing the benefit under Section 17B of the act and the order granting benefit cannot be denied to the respondent on the grounds as has been raised by the petitioner.
10. For the foregoing reasons, the application of the workman/respondent under Section 17B of the Industrial Disputes Act, 1947 is allowed. The petitioner is directed to pay the last drawn wages or minimum wages whichever is higher from the date of the award, 27th July, 2006 after deducting the amount of the pension of Rs. 2484/- per month. Arrears be paid to the respondent within eight weeks. The petitioner shall continue to pay the last drawn wages or minimum wages whichever is higher and after deducting the amount of pension per month already paid as detailed hereinabove by the 15th of every English Calendar month during the pendency of the writ petition. The respondent is also directed to give an undertaking that in case the writ petition is allowed, the respondent shall refund the difference of last drawn wages and minimum wages within the time as shall be permitted by this Court. The undertaking by respondent be filed within four weeks. With these directions the application is disposed of.
WP(C) No. 16894/2006
List for hearing in the category of After Notice Misc. Matters on 24th September, 2008.