JUDGMENT
Anil Kumar, J.
1. The respondent/workman has filed this application under Section 17B of the Industrial Disputes Act, 1947 seeking a direction to the petitioner to pay wages at par with the minimum wages with effect from the date of the impugned award dated 31st March, 2004 directing his reinstatement, till date.
2. The respondent/applicant contended that he has not been employed in any establishment since the date of termination of his services, as a result of which it has become very difficult for him to support himself and his family members which includes three daughters and his parents and that he has become dependent on his friends and relatives for meeting the household expenses. The respondent/workman relying on 2003(VI) AD Delhi 205, contended that under Section 17B of the Industrial disputes act ‘full wages last drawn’ connotes wages which is not less than the minimum wages as applicable on date and that the same is payable from the date of the award till the final disposal of the petition and also no terms can be imposed on the receipt of wages over and above the last drawn wages and up to minimum wages. According to the respondent the wages last drawn by him at the time of termination of his services were Rs. 468/- per month and that the current wage against the said post is Rs. 3029/- per month.
3. Reply to the application has been filed by the petitioner/non applicant in which the petitioner contended that the respondent was employed on muster roll to perform duties of switch board operator on need basis and that with the expiry of work his engagement also came to an end and that the regularization and reinstatement of the services of the respondent is not governed by the Industrial Disputes Act but by the statutory rules. According to the petitioner the services of the respondent were never terminated by the petitioners, in fact, it automatically came to an end on the expiry of the period. The petitioner alleged that that since the respondent last worked on muster roll in August 1986, therefore the factum of his being unemployed for last 20 years cannot be believed. The petitioner further contended that no appointment or termination letter was ever issued to the respondent.
4. Section 17B of the Industrial Disputes Act, 1947 comes into operation when an Award directing reinstatement of a workman is assailed in further proceedings by the employer. Section 17B of the Industrial Disputes Act is as under:
17-B. 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 hall be payable under this section for such period or part, as the case may be.
Thus a workman would be entitled for relief under Section 17B of the Industrial Disputes Act, if there is an award directing reinstatement of the workman and the employer has preferred proceedings against such award at the High Court or Supreme Court and that the workman had not been employed in any establishment during the period of pendency of such proceedings and an affidavit to that effect has been filed by the workman. On satisfaction of the requisites as laid down under Section 17B, the court is bound to grant relief to the workman in terms of the provision as laid down under Section 17B of the Industrial Disputes Act. Also the Court cannot go into the merits of the case/writ petition while deciding an application under Section 17B of the Act as was held in , Anil Jain v. Jagdish Chander.
5. The object underlying Section 17B of the Industrial Disputes Act, 1947 is to mitigate and relieve, to a certain extent, the hardship which would be caused 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. Section 17B recognizes a workman’s right to the bare minimum to keep the body and soul together when a challenge has been made to an Award directing his reinstatement as the statutory provisions provide no inherent right of assailing an order or an award by an industrial adjudicator by way of an appeal.
6. Whether the applicant is entitled for last drawn wages or something more. In titled Town Municipal, Athani v. P.O. LC Hugli and Ors. it was held by the Apex Court that a workman has a legal right to wages under the Minimum Wages Act, 1948 and cannot be diverted to a remedy under Section 20 of the Minimum Wages Act for enforcing such right. In this case, the Apex Court was concerned with the power of the Act under Section 33(C)(2) of the Industrial Disputes Act, 1947 and the principles laid down by the Court would have a bearing on the issues raised before this Court as well. From a conspectus of the authoritative pronouncements of the Apex Court, the right of a workman to an amount equivalent to the wages notified under the Minimum Wages Act, 1948 is thus, in fact, recognition of the constitutional mandate and nothing more. It is undoubtedly, the bare minimum wages which is required by the workman to subsist and is nothing more. Full wages last drawn can therefore only mean all the wages that have fallen due at least from the date of the Award.
7. Also granting relief under Section 17B of the Act and passing orders directing payment of wages last drawn, is generally the rule whereas refusing to grant relief under Section 17B is an exception, as the relief could be denied only in the rarest of the rare cases of jurisdictional error where there is no relationship of employer and employee between the parties.
8. In the present case, by award dated 31st March, 2004 the relief of reinstatement was granted to the workman which award has been assailed by the employer/petitioner. The workman has categorically averred in the application that he has not been employed in any establishment since the date of termination of his services and has also filed an affidavit deposing the same. The only plea taken by the petitioner refuting the factum of unemployment of the respondent is that the respondent/workman could not have remained unemployed for last 20 years, is not sustainable as the same is not supported by any material particulars. On the basis of the bald allegation of the petitioner the relief under Section 17B cannot be denied to the workman. Whether the provisions of the Industrial Disputes Act are applicable to the facts and circumstances of the case is not to be adjudicated upon at this juncture. The applicant/workman, in the facts and circumstances, fulfillls the criteria for availing the benefit under Section 17B of the Act and in exercise of powers under Article 226 of the Constitution, if the requisites of Section 17B of the Industrial Disputes Act, 1947 are satisfied. No order can be passed in the present facts and circumstances denying the workman the benefit of statutory provisions of Section 17B of the Industrial Disputes Act, 1947.
9. Consequently, the application of the workman/respondent under Section 17B of the Industrial Disputes Act, 1947 is allowed and the petitioner is directed to pay to the respondent/workman the last drawn wages or the minimum wages whichever is higher from the date of award 31st March, 2004 Arrears of last drawn wages or the minimum wages be paid within eight weeks. Future last drawn wages or the minimum wages whichever is higher be paid by 10th of every month. Respondent/workman is also directed to file an undertaking that in case the petition is allowed, the respondent/workman shall refund/repay to the petitioner the difference of last drawn wages and minimum wages within the time allowed by this Court. The undertaking to this effect be filed by the respondent/workman within two weeks. With these directions the application is disposed of.
W.P. (C) No. 16191/2004
List in the category of ‘After Notice Misc. Matters’ for consideration on 26th August, 2008.