The court emphasized that the construction which would defeat the rights of the parties and lead to injustice should be avoided and held that the court has no discretion to deny the remedy and impose a condition under Section 17b of the Act.

BAKTHAVATSALAM, J.

( 1 ) RESPONDENT No. 1 has preferred a writ petition against the order of the II Addl. Labour Court, bangalore under which the Labour Court has passed an award setting aside the order of termination passed against the appellant and ordering reinstatement with continuity of service with other consequential benefits apart from granting backwages at 40% from the date of termination till the date of reinstatement. In that writ petition R-1 worker has filed. A. I under section 17b of the Industrial Disputes Act ('. D. Act' for short ). In that application the workman has specifically pleaded that he has not been gainfully employed and has no source of income to sustain himself. The learned single Judge has heard. A.. for direction and ordered. A. I in favour of Rule 1. However, while ordering the application under Section 17b of the. D. Act, the learned single Judge had made it a conditional order asking the respondent-worker to file an undertaking to this Court that in case the award is finally set aside by this Court in the writ petition, the benefit, if any, derived by the worker in terms of the order and the provisions of section 17b of the. D. Act shall be reimbursed by him to the employer. Against this portion of the order where condition has been imposed, the respondent-worker has come on appeal.

( 2 ) LEARNED counsel for the appellant worker contended that the learned single Judge while passing an order under Section 17b of the Act ought not to have imposed the condition as has been imposed in the order of the learned single Judge. The learned counsel states that no question of reimbursement arises whenever an order is passed under Section 17b of the Act and if such conditional order is passed it amounts to taking away the effect of Section 17b of the Act itself. The learned counsel points out that the only condition which the worker has to show before the High Court or the Supreme Court is that a workman had not been employed in any establishment during such period and an affidavit of such workman has to be filed. Learned counsel refers us to the proviso to Section 17b of the Act by which the Courts are empowered to deny the benefit under Section 17b of the Act if workman had been employed for any such period or part thereof. As such the learned counsel for the appellant contends that, that portion of the order of the learned single Judge which imposed condition has got to be set aside.

( 3 ) LEARNED counsel appearing for the Corporation states that an order under Section 17b of the act is merely discretionary and when the learned single Judge has passed a conditional order by exercising its discretion, this court should not entertain the appeal itself. According to the learned counsel, an order under Section 17b of the Act is a discretionary order and the court can deny the benefit completely to a workman. Learned counsel refers to a decision of Bombay High court in ELPRO International Ltd. v. K. B. Joshi and Ors. (1987-II-LLJ-210 ). The Division bench of the Bombay High Court held that Section 17b does not encroach upon the powers of the High Court or the Supreme Court. According to the learned counsel, this Judgment of the bombay High Court supports his contention.

( 4 ) WE have heard Sri K. Subba Rao, learned counsel for the appellant and Sr. B. C. Prabhakar, learned counsel for R-1 Corporation.

( 5 ) IT is necessary to set out Section 17b of the Act which runs as follows:

"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

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