M/S Mysore Lamps Works Ltd. vs Sh. Girish Kumar Jain
2012 Latest Caselaw 5657 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   C.M. No. 17172/2006

                             in

                    W.P. (C) 18887/2006

+                                    Date of Decision: 19th September, 2012


#     M/S MYSORE LAMPS WORKS LTD.               ....Petitioner
!                Through: Mr. Harvinder Singh & Ms. Neha
                          Jain, Advocates

                           Versus

$     SH. GIRISH KUMAR JAIN                     ...Respondent
                  Through:   Mr. Mahesh Srivastava, Mr. Ashok
                            Sharma & Mr.Vaibhav Srivastava,
                            Advs.

      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

                           JUDGMENT

P.K.BHASIN, J:

The present application has been filed by the respondent-workman under Section 17-B of the Industrial Disputes Act, 1947 and it is supported by an affidavit of the successful respondent-workman to the effect that he is not employed.

2. The respondent-workman was appointed as sales representative by the petitioner. His services were terminated w.e.f. 25.04.89. Feeling

aggrieved the applicant-workman had raised an industrial dispute claiming his termination to be illegal. That dispute was referred to the Industrial Tribunal and the Industrial Tribunal vide its award dated 13.10.2003 granted the relief of reinstatement to the respondent-workman alongwith the back wages till 5.5.92.

3. Feeling aggrieved by the Award of the Industrial Tribunal, the petitioner-management filed this writ petition which stands admitted already.

4. The petitioner has opposed the present application inter-alia on the grounds that the operations of the petitioner-Company had been permanently closed in compliance of the order dated 5.6.2003 passed by the Government of Karnataka, Department of Disinvestment and Public Sector Enterprises Reforms and so the respondent-workman cannot claim any relief under Section 17-B. It was argued by the learned counsel for the petitioner that the respondent-workman was not a 'workman' and so the Tribunal had no jurisdiction to give any relief to the respondent. This application was also opposed on the ground that the respondent had refused to report for duty at the Jabalpur branch office when he was given that offer on 5.5.1992 during the conciliation proceedings and for that reason the Tribunal has given him back wages only till 05.05.1992 and that shows that he was employed somewhere and so for this reason also he is not entitled to get the benefit of Section 17-B. Learned counsel for respondent on the other hand contended that merits of the case are not to be considered at the stage of disposal of the application under Section 17-B and relief cannot be denied to him on a presumption that he must be employed somewhere.

5. To appreciate the arguments canvassed on behalf of both the parties by their learned counsel, it would be appropriate to go to the provisions contained in Section 17-B of the Act which runs as under:

"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 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."

6. A perusal of the above provision would make it clear that when an award directing reinstatement of a workman is made by the Labour Court or Tribunal and that award is challenged in any proceedings in the High Court or Supreme Court this provision of law makes it obligatory for the employer to pay the workman, during the pendency of the proceedings in the High Court or the Supreme Court, full wages last drawn by him. The phraseology of Section 17-B is very clear. It leaves no discretion with the superior Court to give the relief to the successful workman or not to give. This relief can be denied only if the employer shows that the workman was gainfully employed in some industrial establishment. The petitioner has not brought on record any such proof. Merits of the employer's case are not to be considered at this stage.

7. This application is, therefore, allowed. The petitioner-management is directed to pay to respondent his last drawn wages or the minimum wages, fixed from time to time, whichever are higher, from the date of passing of the impugned Award till the pendency of this writ petition, provided he files an undertaking within two weeks that in case the petitioner succeeds finally in its writ petition and it is found that he had received wages in excess of what he was entitled to get under Section 17-B of the I.D. Act he shall refund the excess amount to the petitioner-management within four weeks from the date of passing of the judgment by this Court. Thereafter, the petitioner shall pay to him the wages upto September, 2012 within four weeks and in case this undertaking is not given by the respondent, the petitioner-management shall be liable to pay him his last drawn wages only after the expiry of period of two weeks given to him for giving the undertaking. Future monthly wages shall be paid to the workman on or before 10th day of each succeeding month.

This application stands disposed of accordingly.

P.K. BHASIN, J

September 19, 2012