The Court clarified the mandatory nature of the management to pay last drawn wages under S.17B of the Industrial Disputes Act and the discretion of the Court under Art. 226 to award a lesser amount.

KANAGARAJ J.

The writ-petitioner challenges the validity of the award made by the Labour Court in Industrial Dispute No. 571 of 1989, dated December 14, 1990. The charge against the second respondent who is the Typewriter Mechanic, in the petitioner-company in the domestic enquiry was that he submitted false claims. It is alleged that he had not visited certain customers nor serviced their machines but he had claimed conveyance and lunch allowance. The Labour Court, to whom the dispute was ultimately referred has substantially found that the charges had been established. However the Labour Court ultimately held that the back-wages alone worked out of Rs. 97, 500 and, if the petitioner is deprived of the same, it would be sufficient punishment. In this view of the matter, the Labour Court directed the reinstatement of the second respondent without back-wages.

2. I admitted the writ petition and granted an interim order of stay on January 22, 1991. The second respondent worker has now come up with an application under S.17B of the Industrial Disputes Act. Though a perusal of S.17B of the Industrial Disputes Act suggests that pending disposal of a proceeding in the High Court against the award, the employer should be directed to pay full wages last drawn by the worker inclusive of allowances, etc., so long as the worker is not employed of elsewhere, Sri Sanjay Mohan, learned counsel for the petitioner in the writ petition, has brought to my notice certain judgments of this Court and also a Judgment of the Bombay High Court to the effect that in a fit and proper case it is open to the High Court to deny the benefit of S.17B of the Industrial Disputes Act to a worker. I will only quote the judgment of a Division Bench of this Court in Chitram and Company Ltd. (represented by its Senior Manager) Finance and Administration v. Union of India (represented by Secretary, Ministry of Labour), New Delhi, and Others 1990 (1) MLJ 155), which is as follows :

"Despite the introduction of S.17B into the Act, this Court is not denuded of its power to make appropriate orders and give directions depending on the facts and circumstances of each case. Section17B of the Act by its specific terms, does not even refer to the powers of this Court under Art. 226, much less restrict the same which is permissible for legislation short of constitutional amendment. We are not prepared to hold that S.17B of the Act has made an inroad into the powers of this Court under Arts. 226 and 227 of the Constitution of India which are wide enough to take note of specific contingencies in each case and provide reliefs and give directions appropriate, in such cases." *

Per contra Sri Fenn Walter, learned counsel, brings to my notice, the judgment of the Supreme Court in Bharat Singh v. New Delhi Tuberculosis Centre (1986-II-LLJ-217). The said judgment of the Supreme Court had also been considered by the Division Bench referred to above. There is also another judgment of a Division Bench of this Court which is brought to my notice by Sri Fenn Walter. It is in Writ Appeal No. 1009 of 1988, dated 2 May 1989. The relevant portion of the said judgment of the Division Bench reads as follows.

"All these contentions are irrelevant when this statutory right crystallises on the refusal by a management to reinstate a worker as ordered by a Labour Court, and of the validity of the said award is pending disposal either in the High Court, or in the Supreme Court. Once the said pre-condition comes into existence, the liability to pay under S. 17B is foisted on the management. That it could avoid only if it is able to show that the workman is otherwise gainfully employed during the relevant period. No material had been placed before Court that he is any where gainfully employed during this period. If he gets employment in spite of an order under S. 17B, then certainly, the Court can be moved for revoking the order for the relevant periods. But, in the instant case, when first r