Madras High Court
The Managing Director vs B.Balachandar on 13 July, 2022
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
W.A.No.1500 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.07.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE N.MALA
W.A.No.1500 of 2022
The Managing Director,
Metropolitan Transport Corporation (Chennai) Ltd.,
Pallavan Illam, Anna Salai,
Chennai 600 002 ... Appellant
vs
1.B.Balachandar
2.The Special Deputy Commissioner of Labour,
DMS Complex, IV Floor,
Teynampet,
Anna Salai, Chennai 600 006 ... Respondents
Prayer: Appeal filed under Clause 15 of the Letters Patent Act against
the order dated 02.11.2021 in W.M.P.No.7286 of 2021 in WP
No.27395 of 2016.
For the Appellant : Mr.M.Chidambaram
For the Respondents : Mr.S.T.Varadharajulu,
for the first respondent
JUDGMENT
Page 1 of 8
https://www.mhc.tn.gov.in/judis W.A.No.1500 of 2022 (Judgment of the Court was delivered by the Hon'ble Chief Justice) The writ appeal has been filed to challenge the order dated 02.11.2021 passed in W.M.P.No.7280 of 2021 in WP No.27395 of 2016, filed by the employee to seek the benefit of last drawn wages under Section 17B of the Industrial Disputes Act, 1947, (for short, ‘the I.D.Act’).
2. The facts on record show that the writ appellant had filed an application under Section 33(2)(b) of the I.D. Act to seek approval of the order of punishment imposed on the employee. The application was rejected and therefore, writ petition was maintained to challenge the said order. The writ petition was registered as W.P.No.27395 of 2016. Lately, in the year 2021, the employee preferred an application to seek benefit under Section 17B of the I.D. Act. It was by making a statement that he is not gainfully employed and therefore, entitled to the last drawn wages. Learned Single Judge allowed the application and directed the writ appellant to extend the benefit of last drawn wages from the date of rejection Page 2 of 8 https://www.mhc.tn.gov.in/judis W.A.No.1500 of 2022 of the application under Section 33(2)(b) of the I.D. Act.
3. The order aforesaid has been challenged on the ground that the benefit of last drawn wage could not have been made admissible from the date of rejection of the order, rather, a right for it accrues when a challenge is made to the award of the Labour Court/Tribunal before the higher courts viz., High Court or the Supreme Court. Section 17B of the ID Act is quoted herein for ready reference:
“17B. Payment of full wages to workman pending proceedings in higher courts.
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 Page 3 of 8 https://www.mhc.tn.gov.in/judis W.A.No.1500 of 2022 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.”
4. The benefit of Section 17B of the I.D. Act would be available to the employee/workman when there is an award of the Labour Court/Tribunal or National Tribunal to direct reinstatement of the workmen, and the employer prefers any proceeding against such award before the High Court or Supreme Court. The employer is then made liable to pay the wage last drawn by the employee during the period of pendency of such proceeding in the High Court or the Supreme Court. It is subject to an affidavit being filed by the employee that he is not gainfully employed. In the instant case, such an application was maintained in the year 2021, and has been Page 4 of 8 https://www.mhc.tn.gov.in/judis W.A.No.1500 of 2022 allowed by learned Single Judge, extending the benefit of last wage drawn from the date of rejection of the application under Section 33(2)(b) of the I.D. Act, going beyond the scope of Section 17B of the I.D. Act. It is also ignoring the fact that the right to receive the benefit under Section 17B of the Act accrues on filing of the affidavit that workman is not gainfully employed, thus, the date of filing the affidavit becomes crucial for the extension of the benefit and cannot be for a period prior to the application. In this case, application aforesaid was filed in the year 2021 whereas writ petition was filed in the year 2016. The employee cannot be benefited for delay in making an application under Section 17B of the Act.
5. According to the learned Single Judge, benefit should normally commence from the date of filing of the writ petition and whenever there is an inordinate delay on the part of the management to challenge the award of the Labour Court, payment should commence from the date of rejection order. Learned Single Judge has ignored the date of application under Section 17B of the Act. It was filed after five years from the date of filing of writ petition and otherwise, the order has been passed going beyond the Page 5 of 8 https://www.mhc.tn.gov.in/judis W.A.No.1500 of 2022 principles of Section 17B of the Act to allow the benefit from the date of rejection of the application under Section 33(2)(b) of the Act, when it is not so provided under the provisions. On the other hand, it is only on initiation of a proceeding in the higher court i.e. High Court or the Supreme Court, the said benefit can be claimed. Learned Single Judge has tried to substitute the provision having no jurisdiction for it because even if there was a delay in filing the writ petition, it would not make the workman entitled to receive the benefit of last wage drawn from the date of award or rejection of the application under Section 33(2)(b) of the I.D. Act. In the light of the aforesaid, we cause interference in the order passed by learned Single Judge and allow last wage drawn from the date of filing of Section 17B application along with affidavit swearing that he is not gainfully employed. The writ appeal is allowed. There will be no order as to costs. Consequently, C.M.P.No.9809 of 2022 is closed.
6. It is stated that benefit pursuant to the impugned order has already been extended to the employee. If that is so, the same would be adjusted towards the further payment of last wage drawn during the pendency of the writ petition. The benefit arising out of Page 6 of 8 https://www.mhc.tn.gov.in/judis W.A.No.1500 of 2022 the application under Section 17B of the I.D. Act would be payable to the workman from the date of application and accordingly, the adjustment towards subsequent payment would be made in view of the finding aforesaid and direction given by this Court.
(M.N.B., CJ.) (N.M., J.) 13.07.2022 Index : Yes/No tar To The Special Deputy Commissioner of Labour, DMS Complex, IV Floor, Teynampet, Anna Salai, Chennai 600 006 Page 7 of 8 https://www.mhc.tn.gov.in/judis W.A.No.1500 of 2022 M.N.Bhandari, CJ.
and N.Mala, J.
(tar) W.A.No.1500 of 2022 13.07.2022 Page 8 of 8 https://www.mhc.tn.gov.in/judis