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Judgment
P.K. Misra, J.—The present appellant has filed W.P. No. 10372 of 2006 for quashing the order dated 19.4.2006 in I.D. No. 137/2002,
whereunder the Presiding Officer, Labour Court, had quashed the order of dismissal dated 29.12.2000 and directed the present appellant to
reinstate the present Respondent No. 1 with continuity of service.
During pendency of the writ petition, present Appellant filed an application for stay. The respondent had filed an application for payment of last
drawn wages as per Section 17B of the Industrial Disputes Act, 1947, in short ""the Act"". Learned single Judge has directed payment in
accordance with Section 17B of the Act with effect from the date of the award of the Labour Court. Such order is in question in the present
appeal.
Learned Counsel appearing for the appellant has contended that keeping in view the nature of allegations and the strong prima facie case made
out, in the present case, the learned single Judge should not have issued any direction regarding payment of last drawn wages as contemplated u/s
17B of the Act. In the alternative he has submitted that even assuming that such payment is to be made, direction should have been issued for
making such payment with effect from the date on which the affidavit was filed by the workman regarding his non-employment and not from any
earlier date and at any rate such a direction could not have been issued to make the payment u/s 17B of the Act from the date of the award.
Learned Counsel for the workman/respondent, on the other hand, submitted that the order of the learned single Judge directing payment of last
drawn wages in accordance with Section 17B of the Act from the date of award is justified and does not call for any interference.
In Kodungalloor Town Co-operative Bank Ltd. Vs. Surendra Babu, , relied upon by the counsel for the appellant, a Division Bench of Kerala
High Court held that there is no warrant for the conclusion that payment u/s 17B is to be made from the date of the award and on the other hand
the workman is entitled to such benefit only from the date on which he files an affidavit.
In 2004 (1) L.L.N. 858 Birdhi Chand Naunag Ram Jain v. Presiding Officer, Labour Court No. IV, a Division Bench of Karnataka High Court
observed:
...However, therefore the plea of Sri Sabharwal which merits consideration is that the writ petition was filed in September, 1999 and the
application u/s 17B of the ID Act was filed only on 1 September, 2001. There is no explanation given for this delay. Accordingly, payment u/s
17B is not to be made for the period starting from October, 1999 to August, 2001 as the respondent No. 3/applicant has failed to give any reason
for not filing the application earlier.
On the other hand, in 2004 (2) L.L.N. 266 Indra Perfumery Co. Thr. Sudershab Oberoi v. Presiding Officer and Ors. relied upon by the
counsel for the respondent, it was observed:
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 instance case, affidavits have been filed by both the workmen.
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.
In 1992 I L.L.N. 140 Godrej and Boyce Manufacturing Co. Ltd. Madras v. Principal Labour Court, Madras and Anr., a Full Bench of this
Court had the occasion to deal with a similar matter, wherein the Full Bench answered the reference in the following manner:
We thus answer the reference as follows:
(1) Section 17B of the Act does not in any manner impair or interfere with the powers of the High Court under Article 226 of the Constitution of
India and the Court still possesses the discretion to go into the question and award a lesser amount than the exact quantum of last drawn wages.
The Court shall, however, honour the statute and if the three conditions, namely:
(1) the Labour Court directed reinstatement of the workman;
(2) the employer preferred proceedings against the award of reinstatement in the Court; and
(3) the workman had not been employed in any establishment during the pendency of the proceedings-are satisfied, the Court shall exercise its
power under Article 226 of the Constitution of India to order that the employer would pay to the workman during the period of pendency of the
proceedings in the Court, full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule. This, however, will
be subject to the workman filing an affidavit that he had not been gainfully employed during such period. In case he is found gainfully employed in
any other establishment, the Court shall accordingly order for no wages to be paid for such period of gainful employment or less wages to be paid,
depending upon the nature of the gainful employment.
It is no doubt true that entitlement to get wages u/s 17B depends upon non-employment of the workman and, therefore, an affidavit to that
effect is to be filed. Once such an affidavit is filed, the direction regarding payment can be made not necessarily from the date of filing of the
affidavit, but even from an earlier date, obviously depending upon the facts and circumstances of a particular case. However, it should be noticed
that u/s 17B, the requirement for making payment is during pendency of the writ petition. Obviously a writ petition can be said to be pending only
when the writ petition is filed and not from an earlier date. Therefore, we are unable to accept the conclusion of some of the High Courts which
have indicated that the direction regarding payment u/s 17B should be made from the date of the award. We make it clear that even though u/s
17B payment is to be made either from the date of filing of the writ petition or even from a subsequent date. However, depending upon the facts
and circumstances of a particular case, the Court is not powerless to issue any appropriate direction regarding payment of any amount even for the
earlier period. The High Court is not powerless to impose any condition deemed just and proper while granting stay. Therefore, no hard and fast
rule can be laid down on such aspects.
Keeping in view the facts and circumstances in the present case, we think the direction of the learned single Judge regarding payment of 17-B
last drawn wages was justified. The award was made on 19.4.2006 and the writ petition was filed in November, 2006. Affidavit regarding non-
employment during the entire period was available. Even though the direction regarding payment u/s 17B of the Act should have been made
effective from the date of filing of the writ petition, the direction regarding payment from the date of award till the date of filing of writ petition need
not be interfered with, as, such a direction can be supported as a reasonable condition for grant of stay.
Accordingly the writ appeal is dismissed. No costs. Connected M.P.(MD) No. 2 of 2007 is also dismissed.