ORDER
Cyriac Joseph, J.
1. The applicant in this application is respondent No. 2 in the Writ Petition No. 4921/1995. The writ petition was filed by M/s. Ram Lal Fruit Juice, Shop No. 6, Sant Pura, near Gurudwara, New Delhi-110018 challenging the award passed by respondent No. 1 – Presiding Officer, Labour Court No. IX, holding that termination of service of respondent No. 2 Shri Mahadev Pandit, was illegal and that he was entitled to reinstatement with full back wages. The writ petition was admitted by this court on 22.12.1995 and on the same day an order was passed in C.M. 8179/1995 staying the operation of the impugned award until further orders. However, on 8.5.1997 a further order was passed by this court in C.M. 8179/1995 directing that on the petitioner’s depositing a sum of Rs. 10,000/- with the workman within one month there shall be stay of the impugned award. However, the petitioner did not deposit the sum of Rs. 10,000/- within the stipulated time. Later by order dated 24.11.1997 this court stayed the operation of the impugned award till 19th January, 1998 on condition that the petitioner would pay a sum of Rs. 12,000/- to the workman. On 24.11.1997 itself the petitioner handed over a sum of Rs. 12,000/- to the workman who was present in court. On 19.1.1998 the stay order passed on 24.11.1997 was extended till the disposal of the writ petition. Thus the operation of the impugned award stand stayed by this court.
2. Respondent No. 2 workman has filed this application C.M. 4963/1997 under Section 17B of the Industrial Disputes Act, 1947. The prayer in this application is extracted below:
“It is, therefore, prayed that this Hon’ble Court may kindly pass order, ordering the petitioner to pay the arrears of back wages from 28.4.1987 till date and continue to pay the arrears of back wages from 28.4.1987 till date and continue to pay the wages at the rate of 17.50 Ps., per month, at the present minimum rate of Delhi Administration till the final disposal, month by month with all other benefits, i.e. increments, leave compensation, medical leaves and increase in salary from time to time as per notification of Delhi Administration.”
In paragraph 3 of the application the applicant has stated that he is unemployed since the date of termination of his service till date. He has also stated that he was/is not working or gainfully employed anywhere after 28.4.1987 till date. The application is supported by an affidavit of applicant/respondent No. 2 Shri Mahadev Pandit. In the said affidavit the applicant has stated that the facts stated in the application moved by him under Section 17B of the Industrial Disputes Act are true and correct. He has also stated in the said affidavit that he is unemployed since 28.4.1987 and that he was/is not working anywhere and that he is totally unemployed.
3. The prayer of the applicant for payment of arrears of back wages from 28.4.1987 cannot be entertained at this stage since the operation of the impugned award stands stayed by this court till the disposal of the writ petition. Only the applicant’s claim under Section 17B of the Industrial Disputes Act can be considered.
4. Section 17B of the Industrial Disputes Act reads thus:
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 shall be payable under this section for such period or part, as the case may be.
In view of the above provisions under Section 17B, of the Industrial Disputes Act, the employer-writ petitioner – will be liable to pay the applicant during the period of pendency of this writ petition full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the applicant had not been employed in any establishment during such period and an affidavit by the applicant has been filed to that effect in the court. The writ petition has been pending in this court from 22.12.1995. The applicant workman has filed an affidavit stating that he is totally unemployed and that he was/is not working anywhere and that he is unemployed since 28.4.1987. The said affidavit is dated 28.5.1997. Though the writ petitioner has filed a reply to this application under Section 17B of the Industrial Disputes Act denying the averments in paragraph 3 of the application, he has not given the particulars of any employment of the petitioner during the pendency of the writ petition. The writ petitioner has denied the averments in the application “because no person can live without money, without work even for a day”. On the basis of such assumptions, the benefit under Section 17B of the I.D. Act cannot be denied to the workman. In the absence of necessary pleadings, sufficient particulars and materials to show that the applicant was employed during the pendency of this writ petition and in the absence of sufficient materials to discredit the affidavit of the applicant, the proviso to Sec. 17B is not attracted in this case and the writ petitioner is liable to pay to the applicant the wages due to him under Section 17B of the Industrial Disputes Act.
5. Learned counsel for the writ petitioner contended that since the operation of the impugned award had been stayed by this court the workman is not entitled to wages under Section 17B of the Industrial Disputes Act. There is no merit in this contention. The liability of the employer under Section 17B of the Industrial Disputes Act is not removed by the stay of operation of the impugned award. Section 17B of the Industrial Disputes Act does not grant any exemption to the employer from the liability to pay wages to the workman on the ground of any stay of the impunged award. Section 17B was 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 the delay in the implementation of the award. Therefore, the very object of Section 17B of the Industrial Disputes Act will be defeated if the workman is denied the benefit under Section 17B on the ground that the impugned award has been stayed by the court. In fact, it is when the implementation of the award is stayed that the benefit under Section 17B is more required. In the absence of any stay of operation or implementation of the impugned award the employer is bound to reinstate the workman in service and to pay him wages. Then the workman does not require the benefit under Section 17B. Hence, if the contention of the learned counsel for the petitioner is accepted the very object of Section 17B of the Industrial Disputes Act will be defeated. Learned counsel for the writ petitioner brought to my notice the judgment of the Punjab and Haryana High Court in Punjab State Electricity Board Vs. Presiding Officer, Labour Court, Bhatinda (1991-2 Vol C – The Punjab Law Reporter 591). In the said judgment the learned Single Judge of the Punjab and Haryana High Court held that once the operation of the award had been stayed and ultimately the writ petition is dismissed it cannot be taken that during the interim period the workman is deemed to have worked and is entitled to wages. The above view was expressed by the said court in a different, context and on the facts of the case before that court and without examining the scope of Section 17B of the I.D. Act. At any rate, I am of the view that stay of operation or implementation of the impugned award cannot take away the benefit available to the workman under Section 17B of the Industrial Disputes Act.
6. Learned counsel for the writ petitioner further contended that since the writ petitioner was directed to pay a sum of Rs. 12,000/- to the workman as per this court’s order dated 24.11.1997, the workman is not entitled to the benefit under Section 17B of the Industrial Disputes Act. In support of his contention the learned counsel relied on the judgment of the Madras High Court in Raju S. Vs. George Oakes Ltd. & Anr. 1988 LLN 127. However, I am not inclined to accept the above contention of the learned counsel for the writ petitioner. A stay order passed by this court or any payment made by the petitioner as condition for such stay will not nullify the effect of Section 17B of the Industrial Disputes Act. The provisions of Section 17B of the Industrial Disputes Act are clear, unambiguous and categorical in this regard. The employer in this case cannot escape the liability under the said provision. The said payment of Rs. 12,000/- was directed as condition for stay of not only the reinstatement in service but also the payment of back wages. Section 17B of the I.D. Act does not take care of the backwages for the period the workman was kept out of service. The said section only takes care of the period during the pendency of the proceedings in the High Court or the Supreme Court. Hence there is no injustice in extending the benefit under Section 17B to the workman notwithstanding the payment of Rs. 12,000/- to him.
7. Learned counsel for the writ petitioner submitted that in case this court took the view that notwithstanding the conditional stay order passed in this case the applicant was entitled to wages under Section 17B of the Industrial Disputes Act the writ petitioner be permitted to engage the workman on daily wages during the pendency of the writ petition without prejudice to the contentions of the parties. In view of the above submission of the learned counsel for the writ petitioner, I make it clear that it will be open to the write petitioner to reinstate the workman in service and pay his wages subject to the final decision in the writ petition and without prejudice to his contentions in the writ petition. Once the workman is so reinstated in service and is paid wages during his continuance in service he obviously will not be entitled to the benefit under Section 17B of the Industrial Disputes Act during the period when he is so employed and paid wages.
8. The writ petition has been pending in this court from 22.12.1995. The affidavit required under Section 17B of the Industrial Disputes Act was sworn to by the applicant on 28.5.1997. Hence, the writ petitioner is directed to pay to the applicant workman the wages due to him under Section 17B of the Industrial Disputes Act for the period from 22.12.1995 to 28.5.1997. Such wages shall be paid to the applicant within four weeks from today.
9. The claim of the workman for wages under Section 17B of the Industrial Disputes Act for the period after 28.5.1997 can be considered only if and when the applicant files necessary affidavit in respect of the said period.
10. This application is disposed of in the above terms. Let the writ petition be listed for final hearing in the category of “Regular Matters” in the week commencing on 26th July, 1999.