Director Rural Development Kashmir vs Abdul Qayoom Dar and Others

The instant appeal under Clause 12 of the Letters Patent Rules by the Director Rural Development Department, Kashmir, is directed against

order dated 25.05.2010 passed by the learned Single Judge while disposing of CMP no. 1652/2008. The learned Single Judge has directed that

the workman-respondent is entitled to full back wages from his employer, as last drawn by him, inclusive of maintenance allowance admissible in

terms of service conditions till final disposal of the writ petition. It is appropriate to mention that award dated 15.11.2006 has been challenged by

the appellant in writ petition, OWP no. 66/2007. The writ petition has been admitted and the operation of the award has been stayed vide order

dated 15.02.2007 by the learned Single Judge (Annexure-B). After the operation of the award was stayed, the workman- respondent filed an

application with a prayer for payment of back wages, as last drawn by him. The application was supported by an affidavit and in para no.3 of the

application it has been specifically averred that the applicant-workman has not been gainfully employed and, therefore, as a necessary sequel to the

stay of the award re-instating him, back wages u/s 17 B of the Industrial Disputes Act, 1947 (for brevity the Act) have to be paid. Accordingly,

the learned Single Judge allowed the application by the impugned order by holding as under:-

Keeping in view the above said facts, the application in hand merits to be granted, as such, is granted. Writ petitioner is directed to pay full wages

to the private respondent No. 1 as last drawn by him inclusive of maintenance allowance admissible in terms of service conditions till final disposal

of the writ petition from the date of presentation of the Writ petition. The arrears from the date of presentation till 30th of April, 2010 be paid

within three months. CMP disposed of.

We have heard the learned counsel for the parties and are of the view that the appeal is without merit and is thus liable to be dismissed. 4. It is

well settled that there are four pre-requisites for invoking Section 17 B of the Act. Firstly the award of the Tribunal should have re- instated the

workman by setting aside his unfair termination. The aforesaid condition stands satisfied as the Tribunal, in categoric terms, has held that the

appellant-employer has acted in violation of Section 25- F of the Act by not following the conditions prescribed for retrenchment of the workman-

respondent. The second requirement is that in the proceedings initiated by the employer in the higher court, the award should have been stayed. It

has already come on record that the award of the Tribunal in the present case has been stayed by the learned Single Judge on 15.02.2007. The

other condition which needs to be satisfied is that the workman should not have been gainfully employed in any establishment during the pendency

of the proceedings. Lastly there should be an affidavit in support of the same. This condition also stands satisfied as the workman-respondent has

filed a specific affidavit asserting that he was not gainfully employed during the pendency of the proceedings in any establishment.

Once all the necessary conditions for invoking Section 17 B are satisfied, we find no legal infirmity in the view taken by the learned Single Judge

while allowing the application of the workman-respondent u/s 17 B of the Act.

As a sequel to the above discussion, the appeal fails and the same is dismissed. No costs.