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(3) A lock-out declared in consequence of an illegal strike or a strike declared in consequence of an illegal lock-out shall not be deemed to be illegal."

19. This provision has repeatedly come up for interpretation in its various hues and facets before the High Courts as well as the Supreme Court. It may not be necessary to take note of all those judgments laying down the ratio and the various aspects which have been clarified in those judgments laying down certain specific principles. Since in these appeals, we are concerned with a limited issue, viz., the date from which the benefit under Section 17B of the ID Act is to be made available to the concerned workman, our discussion would revolve around this central issue. However, while considering an application under Section 17B of the ID Act, it is necessary to bear in mind that the spirit, intendment and object underlying the statutory provision of Section 17B is to mitigate and relieve, to a certain extent, the hardship resulting to a workman due to delay in the implementation of an award directing reinstatement of his services on account of the challenge made to it by the employer. The preliminary consideration for making available such a relief to a workman is to be found in the benevolent purpose of the enactment. It recognizes a workman‟s right to a bare minimum to keep body and soul together when a challenge has been made to an Award directing his reinstatement. The statutory provisions provide no inherent right of assailing an order or an award by an industrial adjudicator by way of an appeal. The payment which is required to be made by the employer to the workman has been held to be akin to a subsistence allowance which is neither refundable nor recoverable from a workman even if the Award in favour of the workman is set aside by the High Court. In Dena Bank Vs. Kiriti Kumar T. Patel [(1999) 2 SCC 106], the Apex Court was of the view that the object under Section 17B of the ID Act is only to relieve to a certain extent, the hardship that is caused to the workman due to the delay in implementation of the Award.

B. The payment under Section 17B is not an automatic payment which starts running immediately on institution of proceedings to challenge the award. For the workman to be entitled to such payment, he is required to file an affidavit. Thus, payment is dependent upon a positive act of the workman. The High Court is not empowered to make the payment till such affidavit has been filed by the workman.

C. Once payment/order requires a positive act of the workman, entitled to such payment of filing in court such affidavit, the ordinary rule of litigation is (as reiterated in Beg Raj Singh Vs. State of U.P. AIR 2003 SC 833) that the right to relief should be decided by reference to the date on which the party approaches the Court. The Supreme Court in Mukund Lal Bhandari Vs. U.O.I. AIR 1993 SC 2127, in relation to the pension of Freedom Fighters also held that the "benefit should flow only from the date of application and not from any date earlier". Thus but for Section 17B providing for payment during pendency of the writ proceeding (and which has been interpreted as not from date of institution of the writ petition but from the date of the award impugned therein) under general law, an order under Section 17B would have been only from the date of the application under Section 17B.

32. In this case, therefore, we are of the view that the workman should be allowed benefit of Section 17B of the ID Act only from the date of application, i.e., 21.5.2010 when the affidavit of non-employment was filed along with this application. This appeal is allowed and the order of the learned Single Judge is modified accordingly.

33. In the instant case, Award was passed on 22.11.2005. Writ is filed immediately thereafter in early, 2006. However, application under Section 17B was filed only in December, 2010 more than 4 ½ years of the filing of the writ petition. Again, this is a case where the wages should be awarded from the date of the application. However, in this case, Mr. Aman Lekhi, learned Senior Counsel argued that no order under Section 17B of the ID Act need to be passed at all. His submission was that jurisdiction under Article 226 is discretionary and not only the application was filed belatedly, but in this case, the respondent workman has played upon the management not only while seeking employment, but even when he filed application under Section 17B of the ID Act, he gave wrong address. It was further submitted that the workman is gainfully employed, i.e., self-employed. Insofar as plea that the workman obtained employment on the basis of forged certificate, going into the same amounts to touching the awards or for that matter, writ petition which is not the scope of inquiry under Section 17B of the ID Act. No doubt, three caste certificates given by the workman and all are found to be forged. Notwithstanding, the Labour Court has given the award in favour of the workman on the ground that the workman actually belongs to Scheduled Tribe category. He was rightly appointed against the posts reserved for Scheduled Tribe and the services could not have been terminated. Commenting upon this approach of the learned Labour Court, while deciding the application under Section 17B of the ID Act would be going into the merits of the award and the same is impermissible.

41. Insofar as merits of the wages are concerned, viz., the plea of the management that the workman could not have been given any relief as he had secured the employment producing the forged certificate; that aspect touches the merits of the writ petition and cannot be gone into proceedings under Section 17B of the ID Act. We, thus, are of the opinion that the workman is entitled to wages under Section 17B of the ID Act. However, the same shall be payable from the date of filing the application under Section 17B of the ID Act, i.e., from December, 2010.