UNNIS V A Vs. M A KHIZAR HUSSAIN

JUDGEMENT

(1.) CHANDURKAR, C. JWhen C. M. P. No. 5681 of 1986 for directions is taken up today, it is conceded by both the learned counsel for the parties that a decision on the interim application in this case is enough to dispose of the appeal filed by the appellant employee. Accordingly, the appeal is taken up for final disposal. During the pendency of the writ petition against the order of the Labour Court filed by the employer directing reinstatement and payment of backwages, the employee claimed the benefit of s. 17-B of the Industrial Disputes Act, 1947. The interim relief claimed by the employee under S. 17-B of the Act was denied by the learned Judge on the ground that there was nothing in that provision to suggest that the High Court should direct the management to pay full wages last drawn by the workman. The learned judge took the view that the employee will be at liberty to work out his remedies in the light of S. 17-B of the Act. It is obvious that the learned judge was in error in directing the employee to work out his rights separately under S. 17-B of the Act. Obviously, the learned Judge had in mind the proceedings under S. 33-C (2) of the Act. Forcing the employee to work out his rights by a separate proceeding would be contrary to the spirit and the purpose of S. 17-B of the Act which is introduced by Act 46 of 1982, brought into force with effect from 21st of Aug. 1984. A bare reading of the provision of S. 17-B of the Act will show that in a case where an award directing reinstatement of the workman, if challenged by the employer, 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. S. 17-B speaks of the liability of the employer during the pendency of the proceeding in the High court or the Supreme Court. The affidavit stating that the workman had not been employed during the period of pendency of the proceeding in the High Court or the Supreme Court has to be filed in the High Court or the Supreme Court, as the case may be. The purpose of being required to file such an affidavit is to enable the High Court to make an order of payment of full wages last drawn by the employee during the pendency of the proceeding in the High Court. The provision in S. 17-B is, therefore, intended to be invoked in the course of the proceedings in the High Court and the High Court is entitled to make an order as contemplated by S. 17-B in the proceedings, taken by the employer challenging the order of the Labour Court in the High Court. It is thus clearly permissible for the High Court to make an order requiring the employer to comply with the provisions of S. 17-B of the Act. It would be extremely hard and contrary to the spirit of S. 17-B to force an employee to seek remedy elsewhere separately to recover wages permitted to be claimed under S. 17-B of the Act by an application under S. 33-C (2) of the Act. In our view, the employee was clearly entitled to an order under S. 17-B of the Act.

(2.) THERE is some dispute with regard to the quantum of wages drawn by the employee. The employer contends that the employee was drawing daily wages of Rs. 8-22 which came to Rs. 221 per month. According to the employee, he was drawing a monthly wages of Rs. 290. It would not be possible to go into the merits of these respective claims. The fair order, in our view, would be to direct the employer to pay a sum of Rs. 200 per month from the date of the application which was made in November 1984, seeking relief under S. 17b of the Act. If any payments have been made by way of monthly payment in accordance with the interim directions of this court, credit shall be given to the amount so paid.