In Re : Sahara Airlines Ltd. vs Capt. R. Khosla
2007 Latest Caselaw 2372 Del

JUDGMENT

Hima Kohli, J.

Page 0108

1. The present applications have been filed by the respondent under Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as `the Act') seeking payment of wages during the pendency of the present proceedings.

2. This writ petition is preferred by the petitioner management directed against the impugned award dated 13.2.2006 passed by CGIT, holding inter alia that the action of the petitioner management in terminating the services of the respondent was unjustified and illegal. Hence, the respondent was held to be entitled to reinstatement with full back wages with effect from 16.7.1998.

3. Aggrieved by the aforesaid award, the petitioner management filed the present writ petition in May, 2006. Vide order dated 24.5.2006, operation of the aforesaid award was stayed. This application (CM No. 13364/2006) has been preferred by the respondent on 30.10.2006 praying inter alia for payment of wages under Section 17B of the Act. It is stated in para 2 of the application that the respondent had remained without gainful employment ever since the date of his suspension on 5.6.1998.

4. This application was taken up for hearing on 22.11.2007, during the course of which it was pointed out by the counsel for the petitioner management that the present application of the respondent is not duly supported by an appropriate affidavit wherein the respondent was required to state that he was not gainfully employed during the period of his termination from the services of the petitioner management. For the said reason, orders on this application were deferred with directions to the Page 0109 respondent to place on record an affidavit in support of the application as per the statute. The affidavit so required to be filed has now been filed by the respondent and the same is on record.

5. The aforesaid application is contested on behalf of the petitioner management. It is stated in the reply that the respondent is not entitled to receive payment of wages under Section 17B of the Act as he has failed to establish from the ALTP license as also the FRTO license that the said licenses have not lapsed and remain valid. It is further stated on behalf of the petitioner management that the respondent was gainfully employed elsewhere for the reason that he had got his licenses renewed in the year 2001.

6. It is further submitted on behalf of the petitioner management that even if this Court is inclined to allow the present applications, the payment of wages ought to be directed only with effect from the date of filing the affidavit and not from the date of the award, since the respondent failed to file an appropriate affidavit in support of his application under Section 17B of the Act.

7. The averment made by the petitioner management to the effect that merely because the license of the petitioner management was renewed in the year 2001, it should necessarily be assumed that the respondent was flying an aircraft, cannot be accepted. The provisions of Section 17B of the Act require the management to give specific details as to whether the respondent was gainfully employed and if so, where. The said requirement has not been met by the petitioner management. Apart from the aforesaid averment, there is no other ground urged by the petitioner management to oppose the applications filed by the respondent under Section 17B of the Act.

8. The Court also finds no merit in the plea taken by the petitioner management that only because an affidavit in the proper format had not been filed by the respondent in support of his averments made in the application, therefore payment of wages ought to be allowed only from the date of filing the affidavit, especially for the reason that the fact of his not being gainfully employed finds mention in the body of the present application itself. The Act is a welfare legislation. When an award is passed by the Labour Court holding the order of termination of a workman to be illegal and directing the workman to be reinstated with full backwages, it is clear that the workman is then not only entitled to backwages but also to work and claim current wages, unless he himself refuses to work. Therefore, if the management challenges such an award and obtains a stay order, the workman is deprived of the benefits of the award which was in his favor. In such circumstances, he is entitled to the protection of Section 17B of the Act. Thus, it is only just and proper that the respondent is allowed the benefit of and order under Section 17B of the Act from the date of passing of the award. It would be unjustified to whittle down the provisions of Section 17B of the Act and would amount to defeating the very object with which the said provision was inserted in the Act, if the payment of wages under Section 17B of the Act are not allowed from the date of award, only for technical errors, which also have now been made good by the respondent.

Page 0110

9. Under these circumstances, the applications are allowed. The petitioner management is directed to pay to the respondent the last drawn wages or the minimum wages whichever are higher, from the date of passing of the award till date. The arrears of wages shall be released to the respondent within four weeks. The petitioner management shall continue to pay to the respondent the last drawn wages or the minimum wages, whichever are higher, on a month to month basis, on or before the 7th day of each month. The petitioner management shall be at liberty to call the respondent to join duty without prejudice to the rights of either of the parties during the pendency of the present proceedings. The respondent shall file an undertaking giving his current address, with an advance copy to the counsel for the petitioner management, undertaking therein to restitute the petitioner management, by paying the difference between the last drawn wages and the minimum wages, in case the petitioner management ultimately succeeds in the writ petition.

10. Both the applications stand disposed of.