Akil Kureshi, J.
1. In these proceedings, the workmen are claiming benefits under section 17B of the Industrial Disputes Act. Since common questions of law and facts arise they have been heard together and are being disposed of by this common judgment.
2. Before going further, brief facts involved in these cases can be noted.
3. In Civil Application No.1346 of 2004 in Special Civil Application No. 384 of 2001, the applicant-workman had filed reference (LCS) No. 157/92 before the Labour Court, Surendranagar. The Labour Court by its award dated 4.4.2000 was pleased to order reinstatement of the workman with continuity of service, however, with 25 per cent backwages. The employer, i.e. State Government, challenged the award of the Labour Court by filing the present petition being Special Civil Application No.384 of 2001 on 15.1.2001. Initially, this Court issued notice dated 17.1.2001 upon the respondent-workman, i.e. present applicant. Thereafter by the order dated 16.4.2001, the petition came to be admitted. On 16.4.2001 itself the impugned award was stayed. The workman i.e. the applicant herein, thereafter, filed the present Civil Application No. 1346 of 2004 on 23.2.04 in which the applicant has prayed that the opponent be directed to pay to the applicant last drawn wages as per section 17B of the Industrial Disputes Act pending final disposal of the petition.
3.1 In the Civil Application, the applicant has contended that despite his best efforts, he could not get gainful employment from the date of termination till date of filing of the application. The applicant has also filed a separate affidavit in which also, he has contended that he is not gainfully employed elsewhere from the date of the award dated 4.4.2000 and that he has no other source of income. It may be noted that no counter affidavit has been filed by the employer controverting these factual assertions of the applicant.
4. In Special Civil Application No. 3984 of 2004, the respondents-workmen had challenged their termination before the Labour Court, Junagadh by taking out Reference No. 1635/90. The Labour Court, Junagadh by its award dated 4.8.99 was pleased to order reinstatement of the respondents with full backwages. The said award of the Labour Court came to be challenged by the petitioner-employer by filing the present Special Civil Application No.3984 of 2004, which was filed on 26th March, 2004. By the order dated 16th April 2004, the learned single Judge of this Court was pleased to admit the Special Civil Application and stay the operation of the award by way of ad-interim relief. The ad-interim relief granted by the learned single Judge on 16.4.04 came to be confirmed by the order dated 21.6.04 subject to the condition that the petitioner should comply with the provisions of section 17B of the Industrial Disputes Act.
4.1 Upon confirmation of the ad-interim relief as mentioned above, the respondents-workmen filed individual affidavits both dated 18th June 2004 stating that they are not gainfully employed in any establishment and therefore, they are entitled to receive benefits under section 17B of the Act.
4.2 It may be noted that the petitioner-employer has not filed any counter reply to these affidavits filed by the respondents-workmen.
4.3 On the basis of the affidavits filed by the respondents, this Court by the order dated 2.8.04 directed that the petitioner shall pay to the respondents all benefits under the provisions of section 17B of the Industrial Disputes Act from the date of the petition. The Court recorded the submissions of the counsel for the respondents that the benefits under section 17B are required to be granted from the date of the award and not from the date of filing of the petition and on that count for further submissions, the petition was adjourned to 4th August 2004. Subsequently, along with Civil Application No.1346 of 2004 in Special Civil Application No.384/01, the submissions of the respondents in this petition also with respect to benefits under section 17B of the Act being available from the date of the award have been heard.
5. As noted earlier, since there is no challenge to the averments of the workmen in these proceedings that they are not gainfully employed in any establishment, the question of their entitlement to receive benefits under section 17B of the Industrial Disputes Act does not pose any difficulty. The question, however, that calls for consideration is the date from which the workmen are entitled to receive benefits under section 17B of the Industrial Disputes Act, that is, whether the entitlement commences from the date of the award or from the date when the employer files petition before this Court challenging the award of the Labour Court.
6. Appearing for the applicant in Civil Application No.1346 of 2004 in SCA No.384/01 for Ms. Vinita Vinayak, learned counsel Mrs. Sangita Pahwa has contended that the workman is entitled to receive benefits of section 17B of the Industrial Disputes Act from the date of passing of the award by the Labour Court or the Industrial Tribunal and not from the date of filing of the petition by the employer before the High Court. In this regard, she has placed reliance on the statement of objects and reasons and has contended that the purpose of introducing section 17B in the statute was to obviate the difficulties experienced by the workmen on account of the delay in implementation of the award passed by the Labour Court when such awards are contested by the employer in the High Court and the Supreme Court. Therefore, it was proposed to provide for payment of wages last drawn by the workman concerned subject to certain conditions from the date of the award till the case is finally decided by the Supreme Court or the High Court.
6.1 Learned counsel further submits that apart from the statement of objects and reasons, section 17B of the Industrial Disputes Act is also clear and requires that the workman be paid full wages last drawn by him if he is not employed in any establishment when the employer prefers any proceedings against the award of the Labour Court before any High Court or the Supreme Court. She submits that if the employer delays filing of petition before the High Court challenging the award of the Labour Court, the workman cannot be penalised by not providing for wages last drawn by him and the only correct interpretation of section 17B would be that the workman would be entitled to receive the said benefits right from the date when the Labour Court passes its award in favour of the workman.
6.2 Learned counsel for the applicant has relied on the observations made by the Hon'ble Supreme Court in the case of Regional Authority, Dena Bank v. Ghanshyam, AIR 2001 SC 2270 wherein the Hon'ble Supreme Court had taken note of the statement of objects and reasons for inserting the provisions of section 17B of the Industrial Disputes Act.
6.3 Learned counsel has also relied upon a decision of the Division Bench of the Delhi High Court in the case of Indra Perfumery Co. v. P.O., reported in 2004-II LLJ 413 wherein, relying on the observations of the Hon'ble Supreme Court in the case of Regional Authority, Dena Bank (supra), the Delhi High Court was pleased to come to the conclusion that when an order is passed by the Labour Court, the benefits must flow from the date of the order passed and section 17B of the Industrial Disputes Act protects both the sides during the pendency of the proceedings in the High Court and if the proceedings are not pending, the workman cannot be denied the benefit of the order made by the Labour Court and the workman would be entitled to get benefit of the order from the date of passing of the order.
6.4 Reliance was also placed on Division Bench judgment of the Rajasthan High Court in the case of Rajasthan State Road Transport Corporation v. Labour Court & Anr., 1998-I LLJ 221. In the said case, however, the question regarding the date from which the workman is entitled to receive benefits under section 17B was not involved and not decided by the High Court.
6.5 The learned counsel for the applicant concedes that learned single Judge of this High Court by the order dated 16.10.2003 passed in Special Civil Application No.11511 of 2002 in the case of Gujarat State Road Transport Corporation v. D.R. Barot, was pleased to come to the conclusion that the claim of the workman for wages under section 17B of the Act from the date of the order of the Labour Court is not sustainable. She, however, submits that in view of the observations of the Hon'ble Supreme Court in the case of Regional Authority, Dena Bank (supra) and in view of the Division Bench judgment of the Delhi High Court in the case of Indra Perfumery Co. (supra), the decision of the learned single Judge requires reconsideration, if necessary by referring the issue to a Larger Bench.
7. Appearing for the respondents, learned AGP Mr. M.S. Rao has submitted that a plain reading of section 17B of the Act makes it clear that the workman can receive the said benefits only from the date of filing of the petition in the High Court and not earlier. He has further submitted that the applicant in the present case has approached the Court by filing the present application nearly three years after filing of the petition and that therefore the Civil Application itself should be rejected on the ground of delay and laches.
8. Appearing for the workmen in Special Civil Application No.3984 of 204, learned counsel Shri K.R. Koshti has adopted the arguments canvassed by Mrs. Pahwa. In addition thereto, he relying upon the statement of objects and reasons has contended that the benefits of section 17B of the Act should be made available to the concerned workmen from the date of the award.
9. Appearing for the petitioner employer in Special Civil Application No.3984 of 2004, learned counsel Shri R.C. Kakkad has submitted that the order passed by this Court on 2.8.04 granting benefits of section 17B of the Act to the workmen need not be further enlarged since it is only from the date of filing of the petition that such a right would accrue in favour of the workmen.
10. Before considering the rival submissions, one may notice the statement of objects and reasons leading to the introduction of the provisions of section 17B of the Industrial Disputes Act.
'The Industrial Disputes Act, 1947 provides the machinery and procedure for the investigation and settlement of industrial disputes. The provisions of the Act had been amended from time to time in the light of experience gained in its actual working, case laws and industrial relations policy of the Government. The National Commission on Labour (1969) which made an in-depth study of the industrial relations and procedures had identified a number of area in which the Act needed to be amended to promote industrial harmony. The recommendations of the National Commission on Labour were discussed at various forums.
2. The objectives of the Bill are mainly to ensure speedier resolution of industrial disputes by removing procedural delays and to make certain other amendments in the light of some of the recommendations of the National Commission on Labour. The Bill seeks to make the following amendments in the Act, namely:- '
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'(vi) It is observed that when Labour Courts pass awards of reinstatement, these are often contested by an employer in the Supreme Court and High Courts. The delay in the implementation of the award causes hardship to the workmen concerned. It is, therefore, proposed to provide for payment of wages last drawn by the workmen concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or the High Courts.'
Section 17B of the Act reads as follows:-
'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.'
11. It is true that the Hon'ble Supreme Court in the case of Regional Authority, Dena Bank (supra) taking note of the objects and reasons leading to the introduction of section 17-B in the Industrial Disputes Act, made certain observations to the effect that .... the 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. It may, however, be noted that the question from which date the workman is entitled to receive benefits under section 17-B of the Industrial Act was not directly at issue before the Hon'ble Supreme Court in the said case of Regional Authority, Dena Bank (supra). In the decision of the Delhi High Court in the case of Intra Perfumery Co. (supra) also the Delhi High Court had noted that the Apex Court in the case of Regional Authority, Dena Bank (supra) was not directly examining the issue, namely, whether the order under section 17-B of the Act can be made from the date of the award or from the date of filing of the writ petition. This distinction was also noticed by the learned single Judge of this High Court in the decision in the case of Gujarat State Road Transport Corporation (supra).
12. Besides the Division Bench judgment of the Delhi High Court in the case of Indra Perfumery Co. (supra), I find that a Division Bench of the Karnataka High Court in the case of Vishveswaraya Iron & Steel Ltd. v. M. Chandrappa & Anr., reported in 1994-I LLJ 555 had come to the following conclusion :
'7. Though in Section 17-B of the Act the words 'from the date of the award' are not found, having regard to the Objects and Reasons stated for inserting this provision, we can, without any difficulty, come to the conclusion that the date from which the full wages last drawn to be paid should be from the date of the award till disposal of the proceedings.'
On the other hand, a Division Bench of the Bombay High Court in the case of R. Jaisingh & Company v. R.K. Meshram, 1995 (70) FLR 171 had taken a view that the entitlement of the workman to receive benefits under section 17-B of the Industrial Disputes is from the date of institution of the proceedings either in the High Court or in the Supreme Court.
13. As noted earlier, the learned single Judge of this High Court had also considered this question and in a decision in the case of Gujarat State Road Transport Corporation (supra) had made the following observations :
'Be it noted that in the matter of Regional Authority, Dena Bank (supra), the challenge was to the order of the High Court directing the appellant Bank to pay regular pay-scale to the respondent workman with effect from the date of the award, the question which arise for consideration before the Hon'ble Supreme Court was, 'whether the order of the High Court directing payment of regular salary payable on reinstatement as on the date of the order to the respondent, which is over and above the full wages last drawn occurring in Section 17-B of the Act, is sustainable.' While allowing the said Appeal, the Hon'ble Court also considered the scope and ambit of Section 17-B of the Act. However, the question whether Section 17-B of the Act shall operate from the date of the order or shall operate during the pendency of the proceedings was not a matter directly at issue. While, in the matter of Dena Bank (supra), the Hon'ble Court has repeatedly stated that the last wages drawn by the workman referred to in Section 17-B is required to be paid during the pendency of the proceedings. Section 17-B of the Act expressly provides that, '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 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.' Keeping in view the expression, 'during the period of pendency of such proceedings in the High Court or the Supreme Court' occurring in Section 17-B of the Act and the above referred judgments of the Hon'ble Supreme Court, the claim of the workman for wages from the date of the order is not sustainable.'
The question, therefore, that is required to be decided is whether the decision of the learned single Judge of this High Court in the case of Gujarat State Road Transport Corporation (supra) requires reconsideration by a larger Bench as contended by the counsel for the workmen.
14. It is true that in the statement of objects and reasons of the Industrial Disputes (Amendment) Act, 1982 by which S. 17-B was introduced in the said Act, it is stated that awards passed by the Labour Court are contested by the employer before High Courts and delay in implementation of the award causes hardships to the workman concerned and it is, therefore, proposed to provide for payment of 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 the High Court. However, the provisions of section 17-B as introduced in the Industrial Disputes Act are somewhat differently worded.
14.1 Under section 17-B of the Industrial Disputes Act, it is provided that where the Labour Court, Tribunal or the National Tribunal has directed reinstatement of the workman and the employee has filed proceedings to challenge such award before the High Court or the Supreme Court, the employer shall be liable to pay such workman, during the pendency of the such proceedings in the High Court or the Supreme Court, full wages last drawn inclusive of any maintenance allowance admissible under any rule if the workman is not employed in any establishment during such period and an affidavit by such workman has been filed to that effect. Thus, the workman is entitled to receive full wages last drawn inclusive of maintenance allowance, if admissible, during the pendency of the proceedings before the High Court or the Supreme Court if the following three conditions are satisfied, namely :-
(i) that the Labour Court, Tribunal or National Tribunal has by its award directed reinstatement of the workman;
(ii) That the employer has preferred any proceedings against such award before the High Court or the Supreme Court;
(iii) that the workman had not been employed in any establishment during such period and an affidavit to that effect has been filed by the workman before such court.
Thus the intention of the Legislature as manifested in section 17-B of the Industrial Disputes Act is clear, that is, to provide the workman wages last drawn inclusive of maintenance allowance, if admissible, under the rules during the pendency of the proceedings before the High Court or the Supreme Court in which the award of the Labour Court, Tribunal or National Tribunal directing reinstatement of the workman is challenged. This aspect becomes further clear when one reads the proviso which provides 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. Thus the workman is entitled to receive the benefits under section 17-B of the Industrial Disputes Act during the pendency of the proceedings before the High Court or the Supreme Court. The liability of the employer is to pay to the workman full wages last drawn during the pendency of the proceedings before the High Court or the Supreme Court. In the said section, reference is to 'during the pendency of such proceedings' and 'such proceedings' can only have one meaning i.e. the proceedings filed by the employer before the High Court or the Supreme Court challenging the award of the Labour Court, Tribunal or the National Tribunal directing reinstatement of the workman. As noted above, the proviso also adds credence to this theory when it states that to the extent during any such period meaning during the pendency of such proceedings the workman is found to be employed in any establishment receiving adequate remuneration, he shall be held disentitled to receive such payment by the High Court or the Supreme Court. The contention of the counsel for the workmen that the interpretation of section 17-B of the Act should be made so as to hold the workman entitled to receive the said benefits from the date of the award would lead to an anomalous situation and render the provisions of section 17-B unworkable. If such an interpretation is accepted, it would be possible for the workman to contend that his entitlement to receive full wages last drawn would commence from the date of the award, however, the employer can prevent the workman from receiving these benefits only to the extent it can be shown that the workman was employed and had been receiving adequate remuneration during the pendency of the proceedings before the High Court or the Supreme Court. Surely, this cannot be the intention of the Legislature. In this view of the matter, the contention of the learned counsel Mrs. Pahwa that though section 17-B of the said Act provides for payment to be made to the workman during the pendency of the proceedings before the High Court or the Supreme Court, the said payment should be for the entire period commencing from the date of the award cannot be countenanced. In my view, therefore, despite the language of the objects and reasons, the provisions of section 17-B and the language used by the Legislature therein being amply clear, the only interpretation possible is that the workman would be entitled to receive benefits under section 17-B of the Act from the date of filing of the proceedings by the employer before the High Court and the Supreme Court challenging the award of the Labour Court, Tribunal or National Tribunal, as the case may be.
15. In the case of Bakhtawar Trust v. M.D. Narayan, AIR 2003 SC 2236, the Hon'ble Supreme Court observed that it is well settled by the decisions of the Court that 'when a validity of a particular statute is brought into question, a limited reference, but not reliance, may be made to the Statement of Objects and Reasons. The Statement of Objects and Reasons may, therefore, be employed for the purposes of comprehending the factual background, the prior state of legal affairs, the surrounding circumstances in respect of the statute and the evil which the statute has sought to remedy. It is manifest that the Statement of Objects and Reasons cannot, therefore, be the exclusive footing upon which a statute is made a nullity through the decision of Court of Law'.
16. In the decision of Shyam Sunder v. Ram Kumar, AIR 2001 SC 2472, the Hon'ble Supreme Court observed that if on application of rule of benevolent construction, the Court finds that it would be doing justice within the parameters of law there appears to be no reason why such rule of construction be not applied. But there are limitations on the powers of the Court, in a sense that Court in certain situations often refrain themselves to apply rule of benevolent or liberal construction. The judicial precedents have laid down that, ordinarily, where and when the rule of benevolent construction is required to be applied and not to be applied and one of the situations is, when the Court finds that by application of rule of benevolent construction it would be re-legislating a provision of statute either by substituting, adding or altering the words used in the provision of the Act. In such a situation, generally Courts have refrained themselves to apply rule of benevolent construction. It was further observed that under the cover of application of rule of benevolent construction, a court is not entitled to re-legislate a provision of a statute and to do violence with the spirit of the provisions of the Act so construed. It was also observed that the second situation is when the words used in a statute is capable of only one meaning. In such a situation, the Courts have been hesitant to apply the rule of benevolent construction. But if it is found that the words used in the statute give rise to more than one meaning, in such circumstances, the Courts are not precluded to apply such rule of construction. It was further observed that the third situation is when there is no ambiguity in a provision of a statute so construed. If the provision of a statute is plain, unambiguous and does not give rise to any doubt in such circumstances, the rule of benevolent construction has no application.
17. In the case of State of H.P. v. Kailash Chand Mahajan, 1992 SC 1277 while discussing the relevance of Statement of objects and reasons, the Hon'ble Supreme Court has made the following observations:
'77. Thus there is a great distinction between the two. While the object of legislation is to provide a remedy for the malady. On the contrary, the legislative intention relates to the meaning from the exposition of the remedy as enacted. For determining the purpose of object of legislation, indeed, it is permissible to look into the circumstances which were prevalent at that time when the law was enacted and which necessitated the passing of that enactment. For the limited purpose of appreciating the background and the antecedents factual matrix leading to the legislation it is open to the Court to look into the statement of 'Objects and Reasons' of the Bill which accentuated the statement to provide a remedy for the then existing malady. In the case of State of West Bengal v. Union of India, (1964) 1 SCR 371 : (AIR 1963 SC 1241), this Court ruled that the statement of 'Objects and Reasons' accompanied a Bill when introduced in Parliament can be used for the limited purpose of understanding the background and state of affairs leading upto the legislation.'
18. In the case of State of Haryana v. Chanan Mal, AIR 1976 SC 1654, the Hon'ble Supreme Court was pleased to observe that the Statement of objects and reasons are relevant when the object or purpose of the enactment is in dispute or uncertain. They can never override the effect which follows logically from the explicit and unmistakable language of its substantive provisions. Such effect is the best evidence of intention. A statement of objects and reasons is not a part of the statute and therefore not even relevant in a case in which the language of the operative part of the Act leaves no room whatsoever as it does not in the Haryana Act to doubt what was meant by the legislators.
19. In the case of Tribhuban Parkash v. Union of India, AIR 1970 SC 540, the Hon'ble Supreme Court made the following observations :-
'The object and purpose of a preamble to a statute is well settled and at the bar before us there was no serious dispute on this point. A preamble is a key to open the mind of the legislature but it cannot be used to control or qualify precise and unambiguous language of the enactment. It is only when there is a doubt as to the meaning of a provision that recourse may be had to the preamble to ascertain the reasons for the enactment and hence the intention of the Parliament. If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble. In other words, Preamble may assist in ascertaining the meaning but it does not affect clear words in a statute. The courts are thus not expected to start with the preamble for construing a statutory provision nor does the mere fact that a clear and unambiguous statutory provision goes beyond the preamble give rise by itself to a doubt on its meaning.'
20. From the above decisions of the Hon'ble Supreme Court, it can be seen that the statement of objects and reasons have to be referred to and relied upon for interpretation only in case there is ambiguity or uncertainty in the language of the main section itself. As discussed in the earlier part of the judgment, I do not find any uncertainty or ambiguity in the language of section 17-B of the Industrial Disputes Act. In this view of the matter, the only possible interpretation of the said provision is that the workman would be entitled to receive benefits under section 17-B of the Act during the pendency of the proceedings before the High Court or the Supreme Court, as the case may be. The language of the Statement of objects and reasons notwithstanding, the provisions of section 17-B shall, therefore, have to be interpreted on the plain language of the section itself, which in my view, does not permit any ambiguity or uncertainty. Thus, apart from the law of judicial precedence which binds me by the decision of the learned single Judge in the case of Gujarat State Road Transport Corporation (supra), independently also I am in respectful agreement with the view of the learned single Judge and I, therefore, find that the decision of the learned single Judge does not call for reconsideration.
21. The fall out of the above conclusion, however, has to be examined in the facts of the present case.
22. Despite having come to the conclusion that the workman would be entitled to receive payments under section 17-B of the Industrial Disputes Act from the date of filing of the proceedings before the High Court challenging the award of the Labour Court granting reinstatement to the workman and not from the date of the award, the High Court is not powerless to properly regulate, by way of interim relief, the period between the date of the award and the date of filing of the petition by the employer before the High Court while entertaining the petition of the employer. The provisions of section 17-B of the Industrial Disputes Act are legislative mandate to provide for a certain minimum payment to the workman for his sustenance during the pendency of the proceedings before the High Court if the conditions laid down in the said sections are satisfied. The payment to be made to the workman during the pendency of the petition before the High Court in terms of section 17-B of the Industrial Disputes Act is a minimum amount to be provided by the Court if those conditions are satisfied and in the sense, even in the face of the provisions of section 17-B of the Act, the power of the High Court to provide for higher payments than those provided under section 17-B of the Industrial Disputes Act are not curtailed. It can, therefore, be seen that for the period between the date of the award till the filing of the proceedings by the employer challenging such an award before the High Court and not governed by the provisions of section 17-B of the Industrial Disputes Act, the High Court in exercise of its powers under Article 226 and 227 of the Constitution of India is not precluded from providing for an appropriate payment to the workman as found justified in the facts of the particular case.
22.1 There is one difference here, however. The payments under section 17-B of the Industrial Disputes Act are statutorily prescribed and would be retained by the workman regardless of the outcome of the litigation pending before the High Court initiated by the employer. In case of the payment that the workman may be ordered to be paid by the High Court for the period between the date of the award till the filing of the petition by the employer before the High Court, provision would be required to be made to regulate such payments in terms of the final order that may be passed by the High Court at the time of final deposal of the petition filed by the employer. This legal proposition is emerging from the following judgments of the Hon'ble Supreme Court.
23. In the decision of Dena Bank v. Kiritkumar T. Patel reported in AIR 1998 SC 511, the Hon'ble Supreme Court while considering the question of interpretation of the words 'full wages last drawn' appearing in section 17-B of the Industrial Disputes Act held that the said term cannot be extended so as to mean the wages which the workman would have drawn on the date of the award of reinstatement. It was observed 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 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 order directing payment of higher amount to the workman if such higher amount is considered necessary in the interest of justice and such direction would be de hors the provisions of section 17-B of the Act and the Court may, therefore, also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. In para 22 of the said decision, the Hon'ble Supreme Court came to the following conclusion:
'22. 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 dehors 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. (1987 Lab IC 1468) (supra) 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 conferment 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.'
23.1 Even in the decision of the Regional Authority, Dena Bank (supra), the Hon'ble Supreme Court noticed the above view in the case of Dena Bank (supra) of the Hon'ble Supreme Court and observed that while passing an interlocutory order, interest of the employer should not be lost sight of and though the amount paid by the employer under section 17-B of the Act cannot be directed to be refunded, in the event he loses the case in the writ petition, any amount over and above the same payable under the said provision has to be refunded by him and it would be in the interest of justice to ensure, if the facts of the case so justify, that payment of any amounts over and above the amount payable under section 17-B of the Act to him is ordered to be paid on such terms and conditions as would enable the employer to recover the same. In para 13 of the said decision, the Hon'ble Supreme Court made the following observations:-
'13. It must, however, be pointed out that while passing an 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's case (supra)] any amount over and above the sum payable under the said provision, has to be refunded by him. It will, therefore, be in the interests of justice to ensure, if the facts of the case so justify, that payment of any amounts 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.'
24. This brings me to the final question for consideration, namely, what would be the effect of the delay caused by the applicant-workman in filing the application seeking benefits under section 17-B of the Industrial Disputes Act. As noted earlier, the learned AGP Mr. M.S. Rao, opposing the Civil Application No.1346/04, filed by the applicant-workman in Special Civil Application No.384/01 has contended that the Civil Application has been filed after a long gap of three years and the delay itself therefore should be sufficient to reject the Civil Application.
24.1 Under section 17-B of the Industrial Disputes Act, filing of an affidavit by the workman to the effect that he has not been employed in any establishment is one of the pre-conditions for seeking the payments under section 17-B of the Industrial Disputes Act. Unless and until, therefore, the workman approaches the High Court by filing appropriate affidavit as required under section 17-B of the Act, he cannot assert his right to receive the benefits under the said section. The question, however, is whether delay on the part of the workman in filing such an application/affidavit before the High Court would disentitle him from receiving the payments under section 17-B of the Industrial Disputes Act. In the case of Ajaib Singh v. Sirhind Co-op. Mktg. cum-Processing Service Society Ltd., AIR 1999 SC 1351, the Hon'ble Supreme Court was pleased to come to the conclusion that the provisions of Article 137 of the Limitation Act do not apply to the proceedings under the Industrial Disputes Act and that, therefore, relief cannot be denied to the workman merely on the ground of delay and the plea of delay if raised by the employer is required to be proved as a matter of fact by showing real prejudice and not as a merely hypothetical defence. It was further observed that no reference to the Labour Court can be generally questioned on the ground of delay alone and even in case where delay is shown to be existing, the Tribunal or the Board dealing with the case can appropriately mould the relief.
25. In view of the above decision, it would be difficult to uphold the contention of the learned AGP that merely on account of the delay the workman would be disentitled to receive the benefits under section 17-B of the Industrial Disputes Act. It would, however, not be difficult to envisage a situation where undue, inordinate and unexplained delay on the part of the workman to approach the High Court for claiming the benefits under section 17-B of the Industrial Disputes Act would create genuine difficulties in the way of the employer in ascertaining and disputing the averments of the workman in his affidavit that he was not gainfully employed throughout the period during the pendency of the proceedings before the High Court. In such a situation, the employer could validly contend that real prejudice has been caused to him on account of the gross inordinate and unexplained delay on the part of the workman in approaching the High Court. In such a situation the employer may be in a position to deprive the workman the benefits of Section 17-B of the said Act to the extent of delay but not altogether. In the present case, however, no affidavit has been filed by the Government demonstrating as to how prejudice has been caused on account of the delay in filing the application by the workman. The defence of delay set up by the opponent in Civil Application No.1346 of 2004 therefore cannot be accepted.
26. In the result, I come to the following conclusions:
(1) The employer is liable to pay to the workman benefits under section 17-B of the Industrial Disputes Act only from the date of filing of the proceedings before the High Court challenging the award of the Labour Court, Tribunal or National Tribunal directing reinstatement of the workman and not from the date of the award itself.
(2) This, however, does not preclude the High Court from giving any appropriate directions for payment of any amount for the period between the date of the award till the proceedings are filed before the High Court by the employer challenging the award of the Labour Court or the Tribunal. Such payment, however, should be made conditional upon the outcome of the proceedings filed by the employer.
(3) Delay by itself on the part of the workman to approach the High Court seeking benefits under section 17-B of the Industrial Disputes Act would not be sufficient to disentitle the workman from claiming such benefits and unless real prejudice is demonstrated by the employer on account of such delay, the workman would be entitled to receive the benefits for the entire period right from the date of filing of the proceedings before the High Court.
27. In the result, in Civil Application No.1346 of 2004, it is directed that the respondent shall pay to the applicant all benefits under section 17-B of the Industrial Disputes Act from the date of filing of the petition. Arrears of the same may be paid within a period of eight weeks from the date of receipt of a copy of this order and periodical payments shall be made regularly hereinafter. The Civil Application accordingly stands disposed of.
28. In Special Civil Application No.3984 of 2004, by the order dated 2.8.2004, the petitioner has been directed to pay to the respondents-workmen the benefits under section 17-B of the Act from the date of the petition. It is further directed that the respondents shall receive from the employer-petitioner the payments at the same rate from the date of the award till the filing of the petition since, in the facts of the case, I find that the petitioner itself had approached the High Court by filing the present proceedings after a gap of four years. The further payment which is being ordered under this order shall, however, be subject to the final order that may be passed by the High Court at the time of final disposal of Special Civil Application No. 3984 of 2004.