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Judgment
Soumitra Pal, J.—A writ petition was filed by the petitioner company challenging an award dated 16th April, 2003 passed by the Industrial Tribunal directing reinstatement of the workers. During the pendency of the writ petition an application u/s 17B of the Industrial Disputes Act (for short "the Act") has been filed by the respondent No. 3, that is, the Carrier Transport Mazdoor and Employees Union. The prayer in the said application is as under:
In the circumstances aforesaid, your petitioners/workmen, i.e., the respondent No. 3 herein pray that Your Lordships may graciously be pleased to pass an order directing the writ petitioner herein to pay the full wages, w.e.f 4.9.1999 to the workmen during the pendency of this writ proceeding and/or Your Lordships may pass such further order or orders as seem fit and proper.
Parties have exchanged affidavits. Thereafter, the matter came up for hearing.
Mr. Arunabha Ghosh, learned advocate on behalf of the company submitted that the application is not maintainable as under the provisions of Section 17B of the Act, it is the workman who has to file an application. Even assuming it is maintainable, the application does not contain the names of the workers and there is no statement that they are not employed in any establishment.
Mr. Tarun Chand Dutta, learned advocate for the applicant submitted it is a composite application which has been affirmed by the General Secretary of the Union and, therefore, is maintainable.
In order to appreciate whether the application is maintainable or not, the purport of Section 17B of the Act has to be gone into. Section 17B of the Act is as under:
17B. 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 of part, as the case may be.
Since a writ petition preferred by the employer is pending, condition precedent for filing an application u/s 17B of the Act existed. Now the issue -- who is entitled to file an application. Whether an application can be filed in a representative capacity, that is, by the Union or by the workmen or it should be filed by the workman concerned.
The Section postulates that ''such workman'' can file an application and not workmen or anybody in its representative capacity. If ''such workman'' files an affidavit stating he had not been employed in any establishment during such period, the employer shall be liable to pay ''such workman''. There is no room for doubt in view of the unambiguous language of the Section.
The issue can be looked from another angle. Section 17B was inserted by Act 46 of 1982 with effect from 21.8.1984. The framers of the said Section had definitely in mind the plight of a workman who had been directed to be reinstated pursuant to an award passed by the Tribunal but could not be due to the pendency of the proceedings before the higher Courts. In order to mitigate the hardship faced by such workman, the Section permits the said workman to file an affidavit. In such affidavit, which is a sworn statement, the workman concerned shall have to make a statement that he had not been employed in any establishment since he alone is in a position to make such a statement and, in that event, the employer shall be liable to pay such workman full wages last drawn inclusive of any maintenance allowance.
In the instant case the application has been filed by the Union and not by the workman concerned. Therefore, as noted hereinbefore, in view of the clear language of Section 17B of the Act the application being G.A. No. 3268 of 2003 is not maintainable and is dismissed. However, this order shall not prevent the workman to file appropriate application u/s 17B of the Act, if so advised.
No order as to costs.
Urgent Xerox certified copy of this judgement and order be given to the appearing parties, if applied for, on priority basis.