ORDER
Rumapal, J.
1. The subject matter of challenge in this writ application is an award passed by the 3rd Industrial Tribunal on May 4, 1995. The award was passed under Section 33-A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The only question which arises for determination in the writ application is whether the provisions of Section 33-A at all applied.
2. The facts, on the basis of which, the impugned award was passed are as follows:
The respondent workman who was employee of the writ petitioner Company had received an order dated February 28, 1993 from Chandni Paints stating that the respondent-workman haying attained superannuation he was retired from services with immediate effect. According to the petitioner Company, the workman, was not at all an employee of the petitioner, but was employed by Chandni Paints. This aspect of the matter cannot be reagitated by the petitioner at this stage because the point which was essentially a question of tact was not raised by the petitioner before the Tribunal.
3. However, the second submission of the petitioner that at the highest the order amounted to retrenchment and as such, did not come within the purview of Section 33(2)(b) and therefore, Section 33-A of the Act is of substance. The petitioner had made an application under Section 33-A of the Act before the Tribunal alleging contravention of the provisions of Section 33 during the pendency of proceeding before a Labour Court. Section 33 provides for an embargo on an employer in respect of an employee in connection with two situations. The first situation is covered by Sub-section (1) where action is sought to be taken by the employer in connection with the dispute pending either by way of alteration of the conditions of service to the detriment of the workman or by punishment for misconduct connected with the dispute. The second embargo is provided for in Sub-section (2) in matters not related with the pending dispute. In this case, there is no disagreement between the parties that Sub-section (2) would apply as the dispute then pending did not relate to the termination of the workman’s services. The case of the workman before the Tribunal was that during the pendency of the proceeding in respect of industrial dispute the writ petitioner had terminated the workman’s services on the ground of alleged superannuation, although there was no condition of services prescribing the age of superannuation at all. It was not the workman’s case that his services were terminated for any misconduct at all. It was also not the petitioner’s case that the employer had altered the terms and conditions of services. On the other hand, his case was based on a non-alteration of the service condition. That being so, the provisions of Section 33(2) would not apply. There was, therefore, no requirement for the petitioner-Company to make any application for approval before issuing the impugned order to the petitioner.
4. Since Section 33 did not apply the question of contravention thereof by the writ petitioner did not arise. The Tribunal erred in not considering whether the order of termination had been issued for misconduct so as to bring it within Section 33(2)(b) or was a retrenchment under Section 2(oo) of the 1947 Act.
5. It is, however, clear from the facts which
are not in dispute that the termination of the respondent-workman’s services with the petitioner was at the highest an order of retrenchment which is not covered by Section 33(2)(b). The impugned award, therefore, cannot stand. The remedy of the respondent-workman lay not in an application u/Sec.33-A but u/Sec. 10 of the Act. The writ application accordingly must be and is hereby allowed. The impugned award dated May 4, 1995 is quashed: and set aside. Incidentally, it may be mentioned that subsequent to the passing of the award which was exparte, an application was made by the writ petitioner for recalling the award. This was rejected by an order dated December 12, 1996 by the Tribunal. Although in the writ application the writ petitioner has also challenged rejection of application for recalling, it is not pressed at the hearing.
6. During the pendency of the proceeding before this Court an application was filed by the respondent workman under Section 17B of the Act. He is claiming to be paid wages under Section 17B of the Act with effect from the date of the award; until payment is made. Reliance has been placed on the decision of the Division Bench of the Karnataka High Court, reported in (1994-1-LLJ-555) (Vishveswaraya Iron & Steel Ltd. v. M. Chandrappa & Anr).
7. I am unable to accept the submission of the respondent-workman that he is entitled to wages with effect from the date of the award. First, the language of Section 17B of the Act is express and unambiguous. It directs that the employer shall be liable to pay the workman “during the period of pendency of such proceeding in the High Court… . full wages last drawn by
him”. The Karnataka High Court did not consider the effect of the phrase “during the period of pendency of such proceeding. ” The view of the Karnataka High Court has been expressly disproved in the case of Dena Bank v. Kiritiku-mar I Patel, reported in 1977 (7) SCALE 56, paragraphs 19, 20 and 21. The Supreme Court was of the view that the phrase “full wages last drawn” means that the wages as would have been payable to the workman during the pendency of the proceeding inclusive of all allowances must be paid.
8. The writ Petition was filed in September 1997. The petitioner -Company, therefore, is liable to pay wages to the respondent- workman since September, 1997 till date. According to the petitioner although he was drawing Rs. 500/- and odd when his services were terminated, by reason of a subsequent settlement between the company and the workers, an amount of Rs. 900/- per month is payable to the workman. According to the Company, the respondent- workman is not entitled to the benefits of the settlement. However, in order to avoid any further controversy in the matter and without creating any precedent the company has agreed to pay the respondent-workman Rs. 900/-per month for the period from September 18, 1997 till date within a week from date. The respondent-workman is at liberty to accept the same without prejudice to his rights to prefer an appeal from this judgment.
9. Plain copy of the order, duly counter signed by the Assistant Registrar (Court), be handed over to the learned Advocate For the respondent-workman.