S. Muralidhar, J.
1. This appeal is directed against two orders of a learned Single Judge. By the first impugned order dated 1.8.2005, the learned Single Judge disposed of an application under Section 17-B of the Industrial Disputes Act 1947 (ID Act) being CM No 8620 of 2004 filed by the respondent workman in Writ Petition (C) No. 2768 of 2004 filed by the appellant. The appellant was directed to pay to the respondent workman, from the date of the Award i.e., 1.3.2002 at the highest of the two rates between the last drawn wages and the minimum wages notified by the authorities from time to time. This was made subject to the respondent workman furnishing an undertaking in this Court, along with his latest address, to the effect that in the event of this Court holding in favor of the petitioner, he shall reimburse the differential between the last drawn wages and the amount paid in terms of the orders passed today.
2. By the second impugned order dated 27.9.2005 the learned Single Judge disposed of an application being CM No 10653 of 2005 filed by the appellant and modified the earlier order dated 1.8.2005 only to the extent that the appellant was directed to make payment of the wages at the higher of the two rates between the last drawn and the minimum wages with effect from April, 2003 till 1st August, 2005. The appellant was also entitled to adjust the amount of Rs. 4,940/- paid to the respondent workman in purported compliance of the order made on 1.8.2005.
3. The brief facts leading to the filing of this appeal are that the respondent workman was appointed by the appellant as Security Guard on 24.5.1988 and his last drawn salary was Rs. 380/- per month which was much lower than the statutory minimum wages payable. Aggrieved by the termination of his services on 20.4.1990, the respondent workman raised an industrial dispute which was registered as I.D. No. 233 of 1991 before the Labour Court. By an Award dated 1.3.2002, the Labour Court held that the termination of the services of the respondent workman was illegal and directed his reinstatement with continuity in service and 50% back wages.
4. The appellant herein initially filed Writ Petition (C) No. 3433/2003 in this Court challenging the said Award. However by an order dated 3.11.2003, the writ petition was permitted to be withdrawn with liberty to the appellant herein to file an application before the Labour Court for recalling the Award. The said application was dismissed by the Labour Court on 6.2.2004 Thereafter, the appellant filed another Writ Petition (C) No 2768 of 2004 on or around February 2004 By an order dated 30.4.2004, the learned Single Judge, while issuing rule, granted stay of the implementation of the Award subject to the deposit of 35% of the award amount.
5. On 26.7.2004, the respondent workman filed an application under Section 17B of the ID Act stating that he was unemployed from the date of the termination of his services and that he was not gainfully employed in any establishment or occupation. He accordingly prayed that the appellant herein be directed to release the arrears of wages to the respondent workman at 50% wages w.e.f. 20.4.1990 (the date of termination) till 1.3.2002, the date of the Award. He prayed for payment of the arrears of wages from 1.3.2002 till date at the rate of minimum wages. He also prayed that he may be permitted to withdraw the 35% amount of the Award, i.e., Rs. 54,926/- which had been deposited by the appellant in the Labour Court. This application was initially disposed of by the first impugned order dated 1.8.2005 of the learned Single Judge and later modified by the second impugned order dated 27.9.2005 to the extent indicated hereinbefore.
6. Mr.Mukul Gupta, the learned Counsel for the appellant submits that although the law concerning the power of the High Court to award wages higher than last drawn wages, in an application under Section 17-B of the ID Act, has been settled by the Hon'ble Supreme Court in Dena Bank (II) v. Ghanshyam : (2001)IILLJ252SC , different considerations would come into play before the High Court could award such higher amount. Elaborating on this submission, the learned Counsel for the appellant submits that as far as Section 17B itself is concerned, it only talks of full wages last drawn by the workman inclusive of any maintenance allowance admissible to him and thereforee the High Courts power to award such higher amount was not traceable to this provision. That power was traceable only to Article 226 of the Constitution of India. According to Mr.Gupta, in order to satisfy the High Court that he was entitled to an amount higher than the last drawn wages, it was not enough for the respondent workman to state that he was not gainfully employed and had no means of subsistence. The burden on him was no different than on any other person seeking interim relief. In other words the workman would have to show that balance of convenience in granting the higher amount was in his favor and that if it was denied to him he would suffer irreparable hardship.
7. It may first be noticed that the above submission was never made before the learned Single Judge by the appellant herein. Further, it appears that the appellant has no answer to the application filed under Section 17-B of the ID Act to the extent that the workman has claimed that he is unemployed and is not otherwise gainfully employed in any establishment or occupation since the date of the termination of his services. Before us, the appellant did not dispute the entitlement of the respondent workman to the wages last drawn in terms of Section 17B of the ID Act. In fact in the subsequent application CM No 10653 of 2005 filed by it before the learned Single Judge, the appellant sought the modification of the first impugned order dated 1.8.2005 only to the extent that the direction to pay the higher amount of the two rates between the last drawn and the minimum wages drawn should be modified to apply from the date of the appellant filing the writ petition and not from the date of the Award. Nevertheless, since the plea raised by Mr. Gupta does not appear to have been dealt with earlier by a Division Bench of this Court, we propose to deal with it. Before doing that, it may be useful to recapitulate where the law stands at present in relation to the payment of wages to a workman under Section 17B of the ID Act.
8. Section 17-B of the I.D. Act reads as under:
Section 17-B 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 may be.
9. A plain reading of Section 17B of the I.D. Act indicates that the provision comes into play when an Award is challenged in the High Court or in the Supreme Court by an employer. The provision requires such employer to pay to the workman during the pendency of such proceedings, the full wages last drawn inclusive of any maintenance allowance admissible to him. The only condition to be satisfied on the part of the workman to get such benefits is that he should not be employed in any establishment or occupation during such period and he has to file an affidavit to that effect in the Court. The only basis on which an employer can avoid the liability under Section 17B of the Act is to prove the satisfaction of the High Court or the Supreme Court that the workman had been employed and had been receiving adequate remuneration during any such period or part thereof. thereforee, once the employee states that he was not gainfully employed, the onus shifts to the employer to show that the workman was in fact gainfully employed during the pendency of the proceedings following the award of the Labour Court in his favor.
10. The expression full wages last drawn was considered in detail in Dena Bank (I) v. Kiritikumar T. Patel : (1999)2SCC106 . After noticing the Statement of Objects and Reasons for the insertion of Section 17-B and several decisions of the High Courts as well as the Hon'ble Supreme Court, it was held as under (SCC p.226 para 22):
22. In our opinion, the expression full only emphasizes that all the emoluments which was included in wages as defined in Clause (rr) of Section 2 of the Act so as to include the amounts referred to in sub-clauses (i) to (iv) are required to be paid. In this context, it may also be mentioned that in Section 17-B Parliament has also used the words inclusive of any maintenance allowance admissible to him under any rule. These words indicate that maintenance allowance that is admissible under any rule is required to be paid irrespective of the amount which was actually being paid as maintenance allowance to the workman. But with regard to wages, Parliament has used the words full wages last drawn indicating that the wages that were actually paid and not the amount that would be payable are required to be paid.
11. As regards the powers of the High Court and the Supreme Court to award an amount higher than the last drawn wages, it was held as under (SCC p.116, para 23):
23. As regards the powers of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution, it may be stated that Section 17-B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour Court, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass an order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be de-hors the provisions contained in Section 17-B and while giving the direction, the court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. that in exercise of the power under Articles 226 and 136 of the Constitution, an order can be passed denying the workman the benefit granted under Section 17-B. The enforcement of such a right under Section 17-B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Articles 226 and 136 of the Constitution.
12. Despite the above clear enunciation, the question whether the High Court had the power to award wages higher than the last drawn wages as contemplated by Section 17B of the I.D. Act was again raised in Dena Bank (II)(supra). While reiterating the dictum in Dena Bank (I), the Hon'ble Supreme Court in Dena Bank (II) held as under (SCC p.174 para 12):
12. We have mentioned above that the import of Section 17-B admits of no doubt that Parliament intended that the workman should get the last drawn wages from the date of the award till the challenge to the award is finally decided which is in accord with the Statement of Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17-B was inserted in the Act. We have also pointed out above that Section 17-B does not preclude the High Courts or this Court from granting better benefits more just and equitable on the facts of a case than contemplated by that provision to a workman. By an interim order the High Court did not grant relief in terms of Section 17-B, nay, there is no reference to that section in the orders of the High Court, thereforee, in this case the question of payment of full wages last drawn to the respondent does not arise. In the light of the above discussion the power of the High Court to pass the impugned order cannot but be upheld so the respondent is entitled to his salary in terms of the said order.
13. Keeping in view the interests of the employer, the Hon'ble Supreme Court observed as under (SCC p. 174 para 13):
13. It must, however, be pointed out that while passing any interlocutory order the interests of the employer should not be lost sight of. Even though the amount paid by the employer under Section 17-B to the workman cannot be directed to be refunded in the event he loses the case in the writ petition [see Dena Bank case (1)] any amount over and above the sum payable under the said provision, has to be refunded by him. It will, thereforee, be in the interests of justice to ensure, if the facts of the case so justify, that payment of any amount over and above the amount payable under Section 17-B to him, is ordered to be paid on such terms and conditions as would enable the employer to recover the same.
14. thereforee, Dena Bank (II) settled the legal position that the High Court can direct payment of an amount higher than last drawn wages in an application under Section 17B ID Act. It was further made clear that a workman could get relief in terms of Section 17B of the ID Act, from the date of the award till the challenge to the award was finally decided. There are several decisions of the High Courts and this Court rendered thereafter which have followed Dena Bank (I) and Dena Bank (II).
15. As far as this Court is concerned, it is sufficient to refer to one such decision in Delhi Transport Corporation (DTC) v. Presiding Officer, Labour Court 2003 VI AD (Del) 205which has also been referred to by the learned Single Judge in the second impugned order dated 27.9.2005. In DTC, the Division Bench of this Court followed the judgments of both Dena Bank (I) and Dena Bank (II) and categorically ruled that the order under Section 17B of the ID Act would be effective from the date of the Award. The Division Bench also held that the question whether minimum wages higher than the wages last drawn could be directed to be paid was fully settled. The issue whether the amount payable over and above the wages last drawn should be secured by the workman by furnishing a security as directed in Hindustan Carbide Pvt. Ltd. v. Govt of NCT of Delhi : 95(2002)DLT689 was, however, referred by the Division Bench in DTC to a Full Bench. The reference made by the Division Bench was answered by the Full Bench by its judgment dated 24.5.2006 in Delhi Development Authority v. Omvati LPA No 84 of 2002 etc. The Full Bench answered the reference in the following manner:
24. We accordingly, answer the reference by holding that while awarding a monthly sum more than the last drawn wages to be paid to a workman during the pendency of the writ proceedings challenging an award it is not mandatory to direct the workman to offer a tangible security for restitution to the management in case the award is set aside. It would be open to the Court to pass appropriate orders depending upon the facts of each case as to in what form restitution has to be secured. If workman has no tangible security to offer a personal bond would do.
16. To summarize the brief survey of the law in relation to the Section 17-B of the ID Act as noticed above:
(a) Section 17-B of the I.D. Act does not preclude the High Court from awarding an amount higher than the last drawn wages. The power to award an amount higher than the last drawn wages is however traceable to Article 226 of the Constitution of India;
(b) The wages ordered to be payable on an application under Section 17-B of the I.D. Act is payable from the date of the award; and
(c) The High Court can direct the payment of the wages higher than last drawn wages, upon such conditions as it deems fit. It is not mandatory to direct the workman to offer a tangible security for restitution to the management at the highest of the two rates between the last wages drawn and the minimum wages, in the event of the award being set aside. If the workman has no tangible security to offer, a personal bond would be sufficient.
17. In order to appreciate the submission of Mr. Gupta that for the award of an amount higher than the last drawn wages, the principles governing the grant of any interim relief would come into play, the purposes for which Section 17B of the I.D. Act was introduced, may be noticed. It was stated in the SOR thus:
When Labour Courts pass award of reinstatement, these are often contested by an employer in the Supreme Court or High Court. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, thereforee, proposed to provide the payment of the wages last drawn by the workman concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or High Courts.
18. The Full Bench of this Court in DDA also adverted to this aspect when it observed in paras 13 and 14 as under:
13. But, socio-economic aspect of wage structure has been adopted in this country with the promulgation of the Industrial Disputes Act, 1947. The Act postulates that no employer can engage industrial labour unless he pays the labour a minimum basis wage and if he cannot pay such a wage he has no right or justification for carrying on the business. The Act aims to assure to every workman engaged in an industry a fair wage and not a wage determined on the principle of supply and demand inasmuch as the legislature was aware of large scale unemployment in this country.
14. The Supreme Court in its decision in Dena Bank-1 and Dena Bank-2 kept alive this basic philosophy inasmuch as the two decisions recognized the power of a Writ Court to award meaningful payment to a workman during pendency of a writ proceedings more than the last drawn wages. The reason is obvious. There may be mismatch between the cost of minimum living when the matter reaches the High Court and the last drawn wages.
19. The Full Bench also took the note of the fact that the power of the High Courts and the Hon'ble Supreme Court to award an amount higher than the last drawn wages was a discretionary power and that better course would be to not fetter the jurisdiction. It observed in para 22:
22. There is good reason not to fetter the jurisdiction, much less it's exercise by hedging the same with mandatory requirements. Delay in resolution of labour disputes before Labour Courts are legendary. Many a time references to labour courts are preceded by litigation against appropriate authority which does not make the reference when demanded by a workman or the union. Numerous circumstances where awards have been published after more than 15 to 20 years after reference are to be found in the various judicial pronouncements.
20. In our view, the above observations of the Full Bench offer a complete answer to the submission of Mr. Gupta, the learned Counsel for the appellant that the High Court should exercise this discretionary power only if the principles governing the grant of interim relief are satisfied. Apart from the fact that this would be place a fetter on the High Court's discretionary power to do complete justice, we think the importing of such principles to the grant of relief under Section 17-B ID Act is misconceived. We say so because it is hard imagine a situation where the balance of convenience in not granting the higher of the wages last drawn and the minimum wages to the employee would be in favor of the employer. Also, it hardly needs demonstration that the refusal of such relief would subject the workman to severe hardship. In the present case for instance, the wages last drawn was Rs. 380/- per month and the minimum wages are above Rs. 3,000/- per month. Nothing more need be demonstrated by the workman to show that the balance of convenience is in his favor or that a denial of such higher amount would cause him undue hardship. Since the power of the High Court to grant interim relief is discretionary, it would be open to the employer in a given case to place materials before the High Court in order to substantiate its plea that such higher amount ought not to be awarded.
21. In that view of the matter, we see no merit in the submission of Mr. Gupta. Having said to this, we must also observe that there was no reason for the learned Single Judge in the second impugned order dated 27.9.2005 to restrict the payment at the highest of the two rates between the last drawn wages and the minimum wages, from April 2003. The basis on which the learned Single Judge appears to have proceeded is that the appellant filed a writ petition in April 2003 and thereforee, the relief under s. 17B should be granted only from this date. We are afraid that this is contrary to the dictum of the Hon'ble Supreme Court in Dena Bank (II) where it was categorically held that the amount was payable from the date of the award. If the amount is directed to be paid only from the date of the filing of the writ petition by the employer, then there would be many an employer who would seek to avoid the liability by belatedly filing writ petitions, which in any event most employers invariably do. We see no reason as to why the employee should be made to suffer on account of the failure of the employer to challenge the award by way of a writ petition within a reasonable time. The second impugned order dated 27.9.2005 cannot, thereforee, be sustained in law.
22. thereforee, we partly allow the appeal and set aside the second impugned order dated 27.9.2005 to the extent that it modifies the first impugned order dated 1.8.2005. We now direct that the order dated 1.8.2005 shall be given effect to forthwith. If the amount of Rs. 4,904/- as directed by the learned Single Judge has already been adjusted pursuant to the second impugned order dated 27.9.2005, the said amount should be repaid to the workman by adding it to the monthly payments under Section 17B ID Act.
23. Accordingly, this appeal is partly allowed. The order dated 27.9.2005 passed by the learned Single Judge in CM No. 10653/2005 is set aside. The first impugned order dated 1.8.2005 passed by the learned Single Judge in CM No 8620 of 2004 is hereby affirmed. The appeal is, accordingly partly allowed and disposed of as such.