Raghuvendra S. Rathore, J.
1. An application under Section 17B of the Industrial Disputes Act 1947 has been filed by the workman, respondent No. 1 with the prayer that the same may be allowed and the petitioner employer be directed to make the payment of salary last drawn by him during the pendency of the writ petition.
2. The petitioner-employer has contested the aforesaid application by filing a reply to it. The primary objections raised by the petitioner is that the instant application has been moved after a lapse of about 8 years from the filing of the writ petition and therefore on the ground of delay and latches the application is liable to be dismissed. Learned Counsel for the petitioner has also submitted that the writ petition, in which the present application has been filed, was admitted by the Court on 18.1.2001 and a stay order in the term that meanwhile operation of the award dated 9.5.2000, passed by the Labour Court, Bharatpur, by stayed. He has submitted that later, on 20.7.2001 the Court had ordered that the stay order granted on 18.1.2001 is made absolute till the decision of the main matter. Accordingly, the stay application was disposed of. On the said premise, the learned Counsel for the petitioner submitted that apart from the delay in filing the application by the workman under Section 17B of the Industrial Dispute Act, 1947, the stay order granted by this Court had also been confirmed, whereby the operation of the award impugned has been stayed till the disposal of the writ petition.
3. In the alternative, it has been submitted by the counsel for the petitioner that even if it is thought proper to consider the instant application filed by the workman then he would be entitled to last wages drawn, from the date of filing of the application i.e. 12.2.2008. In support of his submission, the counsel for the petitioner has placed reliance upon the judgment of Executive Engineer v. Bahadur Singh S.B. Civil Writ Petition No. 7454/07 decided on 25.7.2008. He has also placed reliance on the judgment of Kodungalloor Town 5 Co-operative Bank Ltd. v. Surendra Babu : 2007 (112) FLR 189.
4. On the other hand, the learned Counsel for the respondent-workman has submitted that the delay in filing application under Section 17B does not dis-entitle a workman from claiming the benefit under the Industrial Disputes Act. In support of his submissions he placed reliance upon the case of RSRTC v. Labour Court, Bikaner : (1998) ILLJ 831.
5. Having considered the rival submission made by the counsels for the parties, I am of the view that the delay in filing an application under Section 17B does not dis-entitle workman from the benefits, so provided under the law. However, the workman would be entitled to the said benefits from the 15 benefit of filing of the writ petition and not from the date of award. So far as the judgment of Executive Engineers v. Bahadur Singh (supra), relied upon by the learned Counsel for the petitioner-employer is concerned, suffices it to say that the question regarding delay in filing the application or the date from which the benefits under Section 17B is to be given to a workman was not in 20 issue. A close and careful reading of the judgment of Kodungalloor Town Cooperative Bank Ltd. (supra) would go to show that the dispute therein, was with regard to giving benefit under Section 17B of the Act to the workman from the date of filing of the writ petition of from the date of award. The learned Division Bench of Kerala High Court had observed as under:
4. We respectfully disagree with the reasoning of the Delhi High Court. The Apex. Court in Dena Bank's case has never ruled that Section 17B benefit is to be granted from the date of the award. That was a case where the award was passed by the Labour Court on 8.5.1996 and the award was challenged by the Bank before the High Court. The High Court by order dated 4.5.2000 directed the Bank to pay regular pay scale to the respondent with effect from 6.12.1996, the date on which the Writ Petition was preferred by the Bank. The Supreme Court modified the order of the High Court and held that benefit of Section 17B will have to be paid from the date of filing of the Writ Petition. In paragraph 12 of the judgment the Supreme Court refers to the statement of Objects and Reasons for inserting the provisions in the Act, which indicates that the workman should get the last drawn wages from the date of the award. We find no ambiguity in Section 17B of the Act warranting on interpretation based on 40 Statement of Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982. When the statutory provision is clear plain or unambiguous, the Courts are bound to give effect to that meaning irrespective of the consequences. See: Nelson Motis v. Union of India and S.R. Bommai and Ors. v. Union of India and Ors.
A reading of Section 17B makes it clear that the employer shall be liable to pay the workman during the period of pendency of such proceedings in the High Court or Supreme Court full ages 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 had been filed by the workman to that effect. Provisio to Section 17B says that if the employer proves that the workman had been employed and had been receiving adequate remuneration during such period or part thereof, the Court shall order that no wages shall be payable under the section for such period of part, as the case may be. We find no ambiguity in Section 17B of the Act. We need not import any other meaning to Section 17B so as to hold that benefit of the award has to be given from the date of the award placing reliance on the objects and reasons of the Industrial Disputes (Amendment) Act, 1982. Apex Court subsequent to the decision in Dena Bank's case, supra in Uttaranchal Forest Development Corporation v. K.B. Singh and Ors. while interpreting Section 17B of the Act has taken the view that the entitlement for wages under Section 17B would be from the respective dates by filing affidavits by each of them in the Court in compliance with Section 17B of the Industrial Disputes Act, 1947. Relevant portion of the judgment is extracted below:.we direct that only such workmen in whose favour there are awards of reinstatement and who have filed affidavits of their not being in gainful employment, shall be entitled to be granted reinstatement or in lieu thereof from services. Their entitlement for such wages would be from the respective Section 17B of the Industrial Disputes Act, 1947.We are of the view, in the light of the Division Bench of this Court in Commandant's case as well as the judgments of the Apex Court the entitlement of the workman for wages under Section 17B cannot be rejected if he has filed affidavit stating that he had not been employed in any establishment during the pendency of the proceedings in the High Court and not from the date of the award. In such circumstances we are inclined to allow this appeal, set aside the order of the learned single Judge and hold that the workman is entitled to the benefit of Section 17B only from the date on which he has filed affidavit before the High Court stating that he had not been employed in any establishment during the pendency of the proceedings before the High Court. We find ourselves unable to agree with the decision of the Delhi High Court in Ashok Hotel's case supra.
6. The Apex Court in the case of Dena Bank v. Ghanshyam : (2001) 5 SCC 169, while considering the correctness of the order passed by the High Court on 4.5.2000, wherein the employer was directed to pay regular pay scale to the workman with effect from 6.12.1996 i.e. the date of filing of the writ petition and not from the passing of the award by the Labour Court on 8.5.1996, upheld the order of the High Court in the terms of the order passed by it.
7. The Division Bench of this Court, in the case of RSRTC v. Labour Court (supra) held thus:
12. The jurisdiction of the High Court is governed by the Constitution of India. This Section does not put any fetter on the inherent powers of the High Court vested under Article 226 or 227 of the Constitution of India. The award ordering for the payment of back wages or for the payment of any maintenance allowance etc. is in the form of money-decree. If a provision has been made for the payment of full wages 5 last drawn by a workman inclusive of any maintenance allowance admissible to the workman during the pendency of the proceedings then it cannot be said that it has taken away the jurisdiction of the Superior Courts for passing an order. The Section does not forbid the High Court to exercise its discretion. The proviso to Section 17B gives discretion to the High Court or the Supreme Court that in case the 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 the said Section for such period or part thereof as the case may be. By this proviso, the interest of the employer has also, been safe-guarded. Section 17B thus, does not put any fetters or restriction on the powers of the High Court and cannot be said to be violative of Article 226 of the Constitution. The contention raised by the learned Counsel for the appellant is, therefore, bereft of any substance.
13. The next contention raised by the learned Counsel for the appellant is that when once the operation of the award was stayed by the High Court, unless the stay order is vacated, the application under Section 17B of the Act was not maintainable and no order could have been passed on that application. An interim ex-party order was passed in initial stage. After the service on the respondent-workman, the workman was entitled to move an application under Section 17B of the Act or for vacation of the stay order. Application under Section 17B of the Act is nothing but an application for vacation or modification of the stay order. The Court, after hearing the parties, is empowered to modify or vacate the stay order. The Court, after hearing the parties, is empowered to modify or vacate the stay order. If in view of the provisions of Section 17B the learned Single Judge has allowed the application and directed the appellant Corporation to pay the full wages to the workman then that order amounts to modification of the stay order and the Court was competent to pass such an order. The maintainability of the application under Section 17B is not, in any way, affected by the interim order passed on the stay application. The workman cannot be denied the benefit of his successful litigation and in the facts and circumstances of the case, the order was necessary to eliminate of the hardship of the workman. The workman cannot be allowed to suffer on technical grounds. Merely because he was not properly advised or he could not present the application for redressal of his grievances immediately after the service, cannot disentitle Mm for his legal due. Section 17B is mandatory in character and it gives a mandate to the court to award full wages if the conditions enumerated in Section 17B are satisfied. All the three ingredients for making the application under Section 17B are fully satisfied and, therefore, the learned Single Judge was right in allowing the application filed by the workman-respondent. The delay in making the application will not affect the powers of the Court. The contention raised by the learned Counsel for the appellant is bereft of any substance.
8. In view of the decision of the Division Bench of this Court, it leaves no rooms of doubt that the two fold contentions raised by the counsel for the petitioner namely, delay in filing the application under Section 17B and dies-entitlement of the benefits under said provision after passing of the stay order by the High Court, does not deserve consideration by this Court. In the result,, I 10 am of the view that the respondent-workman, in the facts and circumstances of the case, is entitled for benefit under Section 17B of the ID Act, 1947 from the date of filing of the writ petition i.e. 31.10.2000.
9. Consequently, the application under Section 17B of the Industrial Disputes Act filed by the workman is allowed and he is held entitled to be 15 paid full wages last drawn by him, inclusive of any allowances admissible under the rules. Accordingly, the petitioners are directed to pay the wages last drawn by the respondent from 31.10.2000 within a period of one month from the date of furnishing the certified copy of this order.