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It is thus well settled that transient employment by the workman does not affect his entitlement to receive wages pending decision; that is to say that, the benefit of Section 17B of the Act cannot be denied merely because the workman is engaged in some activity or in some vocation to eke out his livelihood. Such relief can be denied only if it is proved that the workman is gainfully employed in some establishment and is receiving adequate and regular remuneration.

21. Petitioners also oppose consideration of the application under Section 17B on the ground that they have a good case on merits and that the writ petition be first or simultaneously considered. The practice of disposal of the petition as well as the application under Section 17B of the Act contemporaneously was deprecated and the High Court was directed to first expeditiously dispose of the application under Section 17B by the Supreme Court by its decision reported at JT 2000 (8) SC 501 Hindustan Vegetable Oil Corporation Ltd. vs Hindustan Vegetable Oil Corporation Ltd. & Ors.

8. No doubt, the language of Section 17B of the act particularly, the words "during the period of pendency of proceedings in the High Court" gives an impression that order regarding payment has to be made for the period when proceedings were pending in this Court. However, in the case of Regional Authority, Dena Bank and another vs Ghanshyam, reported in IV (2001) SLT 392 = JT 2001 (Supp. 1) SC 229, wherein the Apex Court had examined this question in paras 7, 8 and 9. Considering the statement and objects and reasons for inserting the said provision and to mitigate the hardship that would be caused to delay in implementation of the award, the Apex Court pointed out that it was proposed to provide the payment of wages last drawn by the workman concerned from the date of the award till the disputes between the parties finally decided either in the High Court or the Supreme Court. It may be noted that after the award is made by the competent Forum, it becomes the bounden duty of the employer, either to take back the workman in service as per the directions made by the court or to pay the wages. It is keeping this aspect in mind, Section 17B, came to be inserted. After the award is made, this Court is of the opinion that unless the stay is granted by the Court, it is the duty of the employer to implement the award and the moment he challenges, it becomes his bounden duty to follow the mandate of Section 17B, when there is an affidavit filed by the workman that he was not gainfully employed, as indicated in Section 17B of the act.

48. However, in a pronouncement of the High Court of Judicature at Madras reported in 1992 II LLJ 201 Godrej and Boyce Manufacturing Co. Ltd. Madras vs Principal Labour Court, Madras & Anr., the court held that any challenge to the award on the ground that it is without jurisdiction or his otherwise a nullity alone will not be sufficient to suspend the operation of Section 17B of the Act. The final adjudication in a case where the award is without jurisdiction or is otherwise a nullity shall ordinarily meet the ends of justice. A workman who shall be waiting for the implementation of the award during the pendency of the proceedings, shall receive only the wages at the rate last paid for period of pendency of the proceedings in the court. It is not a burden of any serious consequence upon the employer, but it will be a deprivation of a sort which may goes havoc to the workman and his family. The power to make a final order includes the power to make an interim order and that power will extend to suspending the liability of the employer under Section 17B of the Act and accordingly, the right of the workman to receive wages pendentelite. But this will be possible only in the rarest of rare cases as, otherwise, it would defeat the very purpose for which the section has been introduced in the Act. The court noticed that there shall be any number of employers/managements, shall successfully contrive petitions and the proceedings challenging the award on some such ground as the award being without jurisdiction or a nullity and that courts cannot afford to be manipulated and allow the employer management to use the interim order as a weapon to avoid such statutory liability. Some error of fact or even some error of law alone will not thus be enough to avoid the liability of the management under Section 17B. If, however, the error is such that goes to the root of the jurisdiction of the tribunal and the court has got sufficient materials to ignore the effect of Section 17B of the Act, only in such a circumstance may the court decline to order payment of wages pendentelite.

52. Applications are made by the workmen either only under the provisions of section 17B of the Industrial Disputes Act or under this Section read with Section 151 of the Code of Civil Procedure. Other applications are filed only under Section 151 of the Code of Civil Procedure.

53. So far as the effect of the application being captioned as an application under Section 17B of the Industrial Disputes Act, 1947 is concerned, it has been urged on behalf of the petitioner that such applications cannot be treated as applications seeking a relief wider than what is permissible under Section 17B of the Industrial Disputes Act, 1947.