JUDGMENT :

S.J. Mukhopadhaya, J.

Writ petition, Special Civil Application No.1060 of 2009 was preferred by the management of Ahmedabad Municipal Transport Service against the order of Industrial Tribunal in Approval Application (IT) No.691 of 2004 dated 11.12.2008 whereby the application for seeking approval of action of terminating the services of the workman, the appellant herein, was not granted. The learned Single Judge admitted the petition and stayed the operation of the order of the Tribunal. The workman thereafter preferred Civil Application No.2942 of 2009 under Section 17B of the Industrial Disputes Act, 1947 praying therein to direct the management-employer to comply with the provisions of Section 17B of the Industrial Disputes Act, 1947, or, in the alternative, employer be directed to reinstate the applicant-workman, in the interest of justice. The learned Single Judge by order dated 23.4.2009 having rejected the application giving rise to the present appeal.

2. When this appeal was taken up by a Division Bench of this Court, the Division Bench noticed the fact that the learned Single Judge while rejecting the application, relied upon a Division Bench decision of this Court in Chandrashekhar I Pande v. Ahmedabad Municipal Transport Service (Letters Patent Appeal No.1076 of 2005) dated 5.8.2005 wherein in the case of rejection of approval application and its challenge, a Division Bench has taken a view that application for relief of payment in accordance with Section 17B of the Industrial Disputes Act, 1947 would not be maintainable and the workman would not be entitled for payment under Section 17B of the Industrial Disputes Act, 1947. However, having noticed other decisions rendered by one or the other High Courts and certain observations made by the Supreme Court in some of the case and a Full Bench decision of Delhi High Court in the case of Delhi Transport Corporation v. Jagdish Chander reported in 2005-III-LLJ 390, a contrary view taken by another Division Bench in Birla NGK Pvt. Ltd. v. State of Gujarat (Letters Patent Appeal No.889 of 2006) by order dated 6.7.2006, referred the matter for hearing by a Larger Bench.

3. The brief facts of the case is that during pendency of an industrial dispute between the union and the management, Reference (IT) No.137 of 2001, before the Industrial Tribunal, the services of the appellant-workman were terminated by management on 18.10.2004 for certain allegations. The management preferred approval application under the proviso to sub-section (2) of Section 33 of Industrial Disputes Act, 1947. On hearing the parties and after appreciation of evidence, approval application filed by the management was rejected by Industrial Tribunal, Ahmedabad by order dated 11.12.2008. Against the said order, the writ petition was preferred wherein interim order of stay was passed on 11.2.2009, in view of which, the workman prayed for relief under Section 17B of the Industrial Disputes Act which was rejected by the learned Single Judge.

4. The question which arises for determination is, whether a workman is entitled for interim benefit of full wages pending proceeding in the High Court or the Supreme Court ?

5. According to the appellant, he being a workman, as his services were terminated and in view of non-approval, he is entitled to the benefit of full wages pending proceeding before the High Court under Section 17B of the Industrial Disputes Act.

6. Per contra, according to the counsel for the management, in absence of any award, Section 17B is not attracted; the order of refusal to grant approval of action under proviso to sub-section (2) of Section 33, does not fall within the definition of "award" and, therefore, Section 17B is not attracted.

6.1 The further contention on behalf of the management is that in absence of any order setting aside the order of termination, the workman cannot claim reinstatement nor can claim benefit under Section 17B in absence of such order of reinstatement.

7. To de