The main legal point established in the judgment is the mandatory nature of the conditions for invoking S.17-b of the Industrial Disputes Act, 1947, and the entitlement of the workman to receive last drawn wages during the pendency of the challenge of the award before the High Court or the Supreme Court.

Kurian Joseph, J.

The scope of S.17-b of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') arises for consideration in this appeal. The appeal is at the instance of the petitioner in O.P.No. 29835 of 1999 and it is preferred against an order dated 6.11.2000 in C.M.P. No. 12425 of 2000 in O.P. No. 29835 of 1999 directing payment of last drawn wages to the respondents workmen under S.17-b of the Act. The Original Petition is filed challenging Ext. P13 award passed by the Labour Court, Calicut. The operative portion of the said award reads as follows:

"18. In the result, an award is passed holding that the termination of the service of the workers including that of Mrs. Geetha Ashok is unjustified. The management shall reinstate them in service with continuity of service and other attendant benefits within one month from the date of publication of this award in the official gazette. They are entitled to backwages from the date of termination of their service till reinstatement at the rate of last drawn wages. The management shall pay the arrears of wages within one month from the date of publication of this award in the official gazette failing which the workers are entitled to interest at the rate of 12% per annum from this date till realisation."

2. The Original Petition was admitted on 29.11.1999. Thereafter the above C.M.P. was filed by the first respondent Association seeking last drawn wages in respect of nine workmen. The application was resisted by the petitioner on the ground that the persons mentioned in the affidavit for whom backwages are claimed are actually not workmen and that the establishment where such reinstatement is ordered is not an industry. However, the workmen contended that those are all matters outside the purview of consideration under S.17-b of the Act and that once proceedings challenging an award is pending in the High Court or the Supreme Court the workmen are entitled for backwages. The learned Single Judge allowed the petition and hence this appeal.

3. Sri. C.N. Radhakrishnan, Special Counsel to the Government of India, appearing on behalf of the appellant submitted before us that while giving a literal meaning and interpretation to S.17-b of the Act the learned Single Judge failed to appreciate that the power of the High Court under Art.226 of the Constitution of India is not inhibited by the provisions of S.17-b of the Act and a departure can be made in rare cases where it is shown that the award is made without jurisdiction or is otherwise a nullity. The counsel placed reliance on a Full Bench decision of the Madras High Court reported in Godrej & Boyce Mfg. Co. v. Pr. Lab. Court, Madras & Ann, 1992 (2) LLJ201.

4. Before proceeding to analyse the contention of the learned counsel it is necessary to understand the true meaning and the legislative intend behind S.17-b of the Act, which was introduced by way of an amendment to the Act in 1984. S.17-b of the Act reads as follows:

"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 or part, as the case ma