2011 Supreme(Kar) 625

High Court of Karnataka
THE HONOURABLE MR. JUSTICE RAM MOHAN REDDY
Islamia Institute of Technology, represented by its Administrator
Versus
Islamia Institute of Technology Employees Union, represented by its Secretary
I.A. No. 10 of 2011 in W.P. Nos. 37490 of 10 & 40967 – 41032 of 10 (L-RES)
Decided on : 08-11-2011

Headnote:INDUSTRIAL DISPUTES ACT, 1947 -Section 17-B: [Ram Mohan Reddy, J] Objects and reasons - Held, The object underlying the enacting of the provisions contained in Section 17-B is to give relief to the workman in whose favour and award of re-instatement has been passed by the Labour Court and the said award is under challenge in the High Court or Apex Court. The said relief has been given with a view to relieve the hardship that would be caused to a workman on account of delay in implementation of the award as a result of the pendency of proceedings in the High Court or Apex Court. Further, The Statement of objects and reasons for inserting the said provision indicates that when Labour Courts pass awards of re-instatement, they are often contested by employers in the Supreme Court and High Courts. To mitigate the hardship that would be caused due to delay in implementation of the award, it was proposed to provide for payment of wages last drawn by the workman concerned from the date of the award till the dispute between the parties is finally decided in the High Courts or the Supreme Court. It follows that in the event of an Employer not re-instating the workman and not seeking any interim relief in respect of the award directing re-instatement of the workman or in a case where the Court is not inclined to stay such award in to the workman has two options either to initiate proceedings to enforce the award or be content with receiving the full wages last drawn by him without prejudice to the result of the proceedings preferred by the Employer against the award till he is re-instated or proceedings are terminated in his favour, whichever is earlier.

       INDUSTRIAL DISPUTES ACT, 1947 - Section 17-B: [Ram Mohan Reddy, J] Payment of full wages to workman pending proceedings in Higher Courts - The expressions "During the pendency of such proceedings in the High Court or the Supreme Court" and "If the workman had not been emp0loyed in any establishment during such period" - Meaning of - Held, The expressions "during the pendency of such proceedings in the High Court or the Supreme Court", and "if the workman had not been employed in any establishment during such period", in Section 17-B, implies that in a petition preferred by the Employer, before the High Court or the Supreme Court, challenging the legality and validity of an award of the Labour Court, directing re-instatement of the workman, and if the workman, on affidavit, asserts not to be gainfully employed in any establishment, during the pendency of he said proceeding, is entitled to be paid the last drawn wage. The payment of last drawn wage, as observed by the Apex Court, is by way of subsistence allowance. Apparently the pendency of the proceeding would mean from the date of its institution upto the final order disposing off the petition. Further, Having regard to the statement of objects and reasons for the insertion of Section 17-B observed that the workman should get the last drawn wage from the date of the award till the challenge to the award is finally decided. The expression "during the pendency of the petition", in Section 17-B means from the date of implementation of the award i.e., 30 days after its publications, from which date the Employer is obliged to implement the award, failing which, lead to penal consequences.

       INDUSTRIAL DISPUTES ACT, 1947 - Section 17-B: [Ram Mohan Reddy, J] "Last drawn wage" - Whether the workman is entitled to benefits flowing from Section 17-B "from the date of filing the affidavit" or "from the date when the award becomes enforceable" - Held, It is no doubt true that the workman in order to secure the "last drawn wage" will have to satisfy the Court that he is not gainfully employed in an establishment and in that regard is required to file and affidavit to that effect, into Court, requiring him to be put on notice of the petition before the High Court or Supreme Court. Does that mean that the workman is entitled to the benefits flowing from Section 17-B only from the date of filing the affidavit? The filing of the affidavit is with a view to extend an opportunity to the Employer to oppose the assertion of the workman that he is not gainfully employed in any establishment and if shown to be employed would disentitle the workman to the benefits of Section 17-B, and if not, entitled to be re-instated, and receive full wages on such re-instatement. Further, The fruits of the litigation culminating in the award of re-instatement will be postponed, at the instance of the Employer, when he chooses to question the validity of the award in a petition in High Court or Supreme Court. If the objects and reasons for inserting Section 17-B is to mitigate the hardship that the workman would undergo, "during the pendency of the proceeding", since if such a proceeding was not pending the workman would have a right to seek implementation of the award, it cannot but be held that the payment of last drawn wage to the workman, under Section 17-B must relate to the date when the award become enforceable and not from the date of filing the affidavit. Any other interpretation would defeat the very purpose of enacting Section 17-B.