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2009 DIGILAW 472 (JK)

Indian Oil Corporation Ltd. v. State Of J. &K.

2009-10-01

MANSOOR AHMAD MIR

body2009
1. Respondents 4 to 6 have moved this CMP in terms of Section 17-B of the Industrial Disputes Act, 1947, for short the Act, to command the writ petitioner to make the payment on the grounds taken in the CMP. 2. Writ petitioner has filed objections. Other respondents have not filed objections. 3. It appears that reference came to be made by the Government to Industrial Tribunal-respondent No.2 came to be answered vide order and judgment dated 19th of October, 2006. Feeling aggrieved, petitioner has questioned the said award/ order dated 19th of October, 2006 by the medium of OWP No.559/2008. 4. Private respondents 4 to 6 have specifically averred in para-4 of the application that they were neither engaged nor employed in any establishment during the period, are also not engaged, as such, and having any income/ gaining/ earning from any other source. The averments contained in the CMP are duly supported by an affidavit. 5. The petitioner has resisted the CMP by the medium of objections. 6. Section 17-B of the Act mandates that an employee(s)/ award holder(s) is/are entitled to full wages along with maintenance allowance as last drawn by him/ them provided it is specifically averred in the petition duly supported by an affidavit that the employee(s) is/are not working/engaged anywhere and have no source of income. The Apex Court in a case titled Dena Bank v. Kiritikumar T. Patel, reported as AIR 1998 SC 511, has held that when an employee invokes the jurisdiction of Section 17-B of the Act, the Court has to grant it provided the application is duly supported by an affidavit. It is apt to reproduce relevant portion of the said judgment herein: "20. As indicated earlier, S.17-B has been enacted by Parliament with a view to give relief to a workman who has been ordered to be reinstated under the award of a labour Court or the Industrial Tribunal during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to the delay in the implementation of the award. The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to the delay in the implementation of the award. The payment which is required to be made by the employer to the workman is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or this court. Since the payment is of such a character, Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was in service and when his services were terminated and, therefore, used the words "full wages last drawn". To read these words to mean wages which would have been drawn by the workman if he had continued in service if the order terminating his services had not been passed since it has been set aside by the award of the Labour Court or Industrial Tribunal, would result in so enlarging the benefit as to comprehend the relief that has been granted under the award that is under challenge. Since the amount is not refundable or recoverable in the event of the award being set aside, it would result in the employer being required to give effect to the award during the pendency of the proceedings challenging the award before the High Court or the Supreme Court without his being able to recover the said amount in the event of the award being set aside. We are unable to construe the provisions contained in S. 17-B to cast such a burden on the employer. In our opinion, therefore, the words full wages last drawn must be given their plain and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Visveswaraya Iron and Steel Limited, (1994) (84) FJR 46) (supra) or the Bombay High Court in Carona Sahu Co. Ltd, (1995 (70) Fac LR 25) (supra)". 7. This Court has also taken the same view in judgments delivered in cases titled Singer India Ltd. v. Hans Raj Bhagat and another, reported as 2007(1) JKJ 364[HC] and J&K Projects Construction Corp. v. Rafiq Ahmad Bhat & Ors. (CMP No.942 in OWP No.267/2008) upheld by the Division Bench of this Court. 8. 7. This Court has also taken the same view in judgments delivered in cases titled Singer India Ltd. v. Hans Raj Bhagat and another, reported as 2007(1) JKJ 364[HC] and J&K Projects Construction Corp. v. Rafiq Ahmad Bhat & Ors. (CMP No.942 in OWP No.267/2008) upheld by the Division Bench of this Court. 8. Keeping in view the above said facts, the application in hand merits to be granted, as such, is granted. Writ petitioner is directed to pay full wages to the private respondents/ respondents 4 to 6 as last drawn by them inclusive of maintenance allowance admissible in terms of service conditions till the final disposal of the writ petition from the date of presentation of the writ petition. The arrears from the date of presentation till 30th of September, 2009 be paid within three months. CMP disposed of.