Kerala High Court
K. Bhaskaran vs R. Janardhanan Pillai on 30 September, 1988
Equivalent citations: (1990)ILLJ484KER
JUDGMENT Malimath, C.J.
1. The award made in favour of the workman, the third respondent in the appeal, directing the appellant to reinstate him in service with backwages, having been affirmed by the learned single judge in the writ petition. the appellant has come up with this appeal. This application has been made under Section 17-B of the Industrial Disputes Act for payment during the pendency of appeal the wages last drawn by the third respondent. The application is opposed by the appellant alleging that the third respondent is gainfully employed as a driver under a particular employer and driving a particular vehicle. The workman has filed an affidavit denying these averments. He has averred that right from the date of his dismissal from service, he has not been employed anywhere. He has also denied the allegation that he is employed as a driver. He has stated that he does not know driving and he does not have a driving licence. Thus there is word against word. The appellant has not produced any satisfactory material in support of his case that the third respondent is working as a driver. In this stale of material, it has to be held that the appellant has failed to establish that the third respondent is employed as a driver and that therefore he was not entitled to the benefit of Section I7-B of the I.D. Act.
2. Learned counsel for appellant then submitted that the appellant's industry has been closed down on 14th September, 1988 and that therefore it is impossible to reinstate the third respondent in service. He contended that only when reinstatement is possible and the employer does not reinstate the workman in service that the liability under Section 17-B gets attracted and not otherwise. As reinstatement is not possible in this case because of closure, it was submitted that no order can be made under Section 17-B of the Act. There is no serious dispute about closure of the industry. We have therefore to examine whether closure of the industry after the award of the Labour Court directing reinstatement is relevant for the purpose of passing an order under Section 17-B of the Act,
3. For the sake of convenience, we extract Section 17-B of the Act as follows:
"17-B. Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of 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".
Three conditions have to be satisfied for invoking Section 17-B of the Act. They are:
(1) There should be an award by the Labour Court or the Tribunal directing reinstatement of the workman.
(2) The award should have been challenged in a proceeding pending in the High Court or the Supreme Court.
and (3) The workman should not have been gainfully employed in any establishment during the pendency of the said proceedings.
No other condition is required to be satisfied for attracting liability under Section 17-B. Therefore, the question as to whether the industry is in operation or has been closed down is not relevant for the purpose of Section 17-B of the Act. The object and reasons for enacting Section 17-B is as follows:
"When Labour Courts pass awards of reinstatement, these are often contested by an employer in the Supreme Court and High Courts. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, therefore, proposed to provide the 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 High Courts."
If the employee chooses to challenge the award directing reinstatement by initiating proceedings in a High Court or the Supreme Court the workman who is subjected to hardship by protraction of litigation is required to be given this relief for his sustenance. That is why he can get this relief only as long as he is not gainfully employed in any other establishment. The Supreme Court has in Bharat Singh v. Management of New Delhi Tuberculosis Centre (1986-II-LLJ-217) laid down that if the three conditions specified in Section 17-B are satisfied, the mandate to the court to award wages has to be satisfied. As there is no dispute that all the three conditions are satisfied, the third respondent in the appeal is entitled to the benefit of Section 17-B of the Act.
4. We, therefore, allow this C.M.P. and direct the appellant to pay to the third respondent full wages last drawn by him, inclusive of maintenance allowance, if any, admissible to him from 8th June, 1988, the date of filing of this appeal till the date of its disposal.