ORDER
1. This matter has been placed before the Division Bench in view of the order dated 6.3.2003 made by the learned Single Judge as the learned Single Judge has differed with the view of another Single Bench of this Court in the case of Municipal Corporation of Delhi v. Ram Kishan, 2001 LLR 405.
2. The issue involved is as to from which date workman would be entitled to receive wages under Section 17-B of the Industrial Disputes Act (hereinafter referred as the Act) namely, whether from the date of award or from the date, writ petition is filed in this Court. Section 17-B of the Act reads as under:
“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.”
3. Interpreting the aforesaid provision, learned Single Judge vide his order dated 6.3.2003 has observed as under:
“I am, therefore, of the view that it is only during the pendency of the proceedings in the High Court or the Supreme Court that the workman is entitled to be paid the last drawn wages on his filing an affidavit of being not gainfully employed and the workman would not be entitled to be paid wages from the date of the award.”
4. On the other hand, view taken in Municipal Corporation of Delhi v. Ram Kishan (supra), by another Single Judge is that workman would be entitled to be paid wages from the date of the award. It is for this reason that learned Single Judge felt that the matter has to be decided by Larger Bench on the aforesaid issue.
5. Nobody appeared on behalf of the petitioner. We have heard learned Counsel for the petitioner Nos. 4 to 6 (the workmen).
6 Ordinarily, after withdrawal of writ petition, there would have been no question by this Court to make an order, but in the instant case, at the time of admission of the matter, the Court on 22.12.1999 made an order as under:
“In the meantime there shall be stay of the operation of the impugned award subject to the petitioner’s depositing in Court the amount awarded in terms of impugned award within a period of eight weeks.”
7. Thus, with regard to the back wages, under the award, order was made directing the petitioner to deposit the amount and at the same time, stay was granted. Naturally, the benefit under Section 18B may not have been granted at that point of time as there was no affidavit by workman as contemplated under Section 17B of the Act, but after the affidavit is filed, workman is entitled to get the benefit if it is proved to the satisfaction of the Court that workman had not been employed anywhere. Had he been employed and was receiving adequate remuneration during any such period or part thereof, the situation would have been quite different. But, here affidavit is filed and no affidavit-in-reply is filed by the employer. During this period (i.e. after the award when the matter is admitted by the Court), the Court can pass the order. Therefore, we think it proper to take up this application.
8. No doubt, the language of Section 17B of the Act particularly, the words “during the period of pendency of proceedings in the High Court” gives an impression that order regarding payment has to be made for the period when proceedings were pending in this Court. However, in the case of Regional Authority, Dena Bank and Anr. v. Ghanshyam, reported in JT 2001 (Supp.1) SC 229, wherein the Apex Court had examined this question in paras 7, 8 and 9. Considering the statement and objects and reasons for inserting the said provision and to mitigate the hardship that would be caused to delay in implementation of the award, the Apex Court pointed out that it was proposed to provide the payment of wages last drawn by the workman concerned from the date of the award till the disputes between the parties finally decided either in the High Court or the Supreme Court. It may be noted that after the award is made by the competent Forum, it becomes the bounden duty of the employer, either to take back the workman in service as per the directions made by the Court or to pay the wages. It is keeping this aspect in mind, Section 17B, came to be inserted. After the award is made, this Court is of the opinion that unless the stay is granted by the Court, it is the duty of the employer to implement the award and the moment he challenges, it becomes his bounden duty to follow the mandate of Section 17B, when there is an affidavit filed by the workman that he was not gainfully employed, as indicated in Section 17B of the Act.
9. We may observe that the Apex Court in the case of Dena Bank (supra), was not directly examining the issue namely whether the order under Section 17B can be made from the date of the award or from the date of the filing of the writ petition. However, we note from paras 7, 8 and 9 of the judgment that the Court has indicated that such payment is to be made from the date of the award.
10. The Court is examining the legislation, which is a welfare legislation. The Labour Court on arriving at a conclusion that dismissal/termination is illegal, has to direct reinstatement of the workman with full back wages. In the instant case, in view of the order, the workman was entitled to not only the back wages, but was also entitled to get current wages, unless he had refused to work. If the employer, instead of reinstating the workman, challenges the award and obtains stay order, the workman will not get the benefit of the order which ought to flow from the date of the order. It is in view of this, when an order is made by the Labour Court, the benefit must flow from the date of the order passed. Section 17B of the Act protects both the sides during the pendency of the proceedings in the High Court and if the proceedings are not pending, then the workman cannot be denied the benefit of the order made by the Labour Court. It is in view of this, it would be just and proper to say that the workman is entitled to get the benefit of the order from the date of the passing of the order.
11. Though, initially, application was filed by the respondent Nos. 4 to 6 on 30.3.2003 under Section 17B of the Act, the application is required to be entertained insofar as respondent No. 4 Mr. Mata Prasad and respondent No. 6 Mr. Budhu are concerned.
12. Against the award made by the President Officer, Labour Court-IV, Delhi, on 28.7.1998, the employer preferred a writ petition in this Court being CWP No. 7683/1999. By the said award, Labour Court directed the employer to reinstate Mr. Mata Prasad and Mr. Budhu with full back wages and continuity of service. On preferring a writ petition in the High Court against the award made by the Labour Court, order can be made under Section 17B of the Act by the High Court.
13. From the reading of Section 17B, it becomes clear that the employer shall be liable to pay such workman “during the period of pendency of the proceedings in the High Court”, full wages last drawn by him, inclusive of any maintenance allowances, etc. as indicated in Section 17B of the Act. No doubt, an affidavit by such workman is required to be filed that the workman had not been employed in any establishment during the period. In the instant case, affidavits have been filed by both the workmen.
14. Under the circumstances, we direct the employer to pay the wages to respondent Nos. 4 to 6 at the rate of last drawn wages for the period from the date of award till the date on which he withdrew the petition from this Court. Application stands disposed of with the aforesaid direction.