Allahabad High Court
Adarsh Gahmar Sadhan Sahkari Samiti ... vs The Labour Court, U.P., Varanasi And ... on 24 July, 2000
Equivalent citations: 2000(4)AWC2684, [2000(86)FLR859], (2000)3UPLBEC2213
Author: D. K. Seth
Bench: D.K. Seth
JUDGMENT D. K. Seth, J.
1. Shri M. A. Khan, learned counsel for the respondent Nos. 2 and 3 has filed this application for vacating the stay order dated 3.11.1999 on the ground that Initially no stay was granted in this case but later on stay was granted. The second ground is that the petitioner despite the award has not fulfilled his obligation under Section 17B of the Industrial Disputes Act and as such the writ petition is not maintainable and as such no stay could continue. The third ground is that the Interim order was ex parte and that the respondent workmen have filed their counter-affidavit and had pointed out that on merit no stay could have been issued.
2. Learned counsel for the petitioner on the other hand opposes the said prayer on various grounds.
3. I have heard the learned counsel for the parties at length.
4. Admittedly, an interim order was granted at a later stage, might be ex parte. but the same cannot be a ground unless it is shown that passing of the said order is not Justified either in law or on facts. So far as the liability of the employer under Section 17B of the Act is concerned, the same has to be enforced through Court. There is no provision in the Act that unless the wages of the workmen is paid, the petition would not be maintainable. On the other hand, section itself clearly indicates that it casts a liability on the employer to pay wages provided the workman satisfies the Court that he is not working elsewhere, which means such liability can be enforced through Court upon compliance with certain formalities, viz., by way of making application supporting affidavit to the extent that the workman is not employed elsewhere. The question of satisfaction of the Court is also apparent from the proviso. There is no obligation on the part of the employer to pay without the orders of the Court. Unless the workman claims it and satisfies the Court. It is not possible to grant such order. Therefore, the contention of Mr. Khan cannot be a ground for vacating the interim order.
5. Then again Section 17B applies to cases where there is an award directing reinstatement and such award is challenged before the High Court or Supreme Court. It does not apply to any other cases, in view of the specific provision engrafted tn the said section. The precondition for application of Section 17B is that such orders for payment of full wages can be passed by way of subsistence allowance or maintenance, as an interim measure, to a discharged workman for his survival during the pendency of the proceedings.
6. Even on merits, the question as to whether the petitioner is entitled to pay a particular scale of pay or not. The same cannot be a foundation for decision under Section 33C(2) of the Act under which the Court can grant relief only when there is any existing right. If the right is not disputed, in that event the Court has jurisdiction to enforce such claim under Section 33C(2) of the Act. In the present case, there is nothing to show that the workmen are entitled under any award or anything, which has not been disputed. Prima facie, it appears that the workmen claimed equal pay for equal work, while they were engaged on a pay of Rs. 10 per day. In the written statement, the employer had disputed the entitlement of workmen on account of certain law and facts as quoted in the said objection. Therefore, this is a question which requires determination. Prima facie, it shows that there is a dispute with regard to the entitlement, and the entitlement as claimed by the workmen is not flowing from any existing right. Therefore, there was justification in grant of the interim order.
7. On the basis of the material disclosed in the application for vacating the interim order, I do not find any ground on which the Interim order can be vacated.
8. The stay vacation application is, therefore, dismissed. However, dismissal of this application will not preclude the workmen in making appropriate application under Section 17B of the Industrial Disputes Act seeking appropriate relief thereunder, if available under the law.