A.S. SUPEHIA, J.

1. Civil Application No.1 of 2021 has been filed seeking direction directing the opponent-Company to pay wages under Section 17B of the Industrial Disputes Act,1947 ( ‘the Act’) from the date of award passed by the Labour Court, Bharuch.

2. The captioned Civil Application No. 2 of 2021 has been filed by the Company seeking a direction to vacate the direction to comply with the provisions of Section 17B of the Act, mentioned in the order dated 14.12.2020 passed in the main matter and in the alternative it is prayed to hold that the respondent-workman shall not be entitled to the wages higher than the minimum rates of wages payable from time to time as per the Minimum Wages Act, 1948 as the last drawn wages under Section 17B of the Act.

3. Learned Senior advocate Mr. K.M.Patel has submitted that the respondent-workman is not entitled to the wages under Section 17B of the Act as, in fact, if the same is paid, it would be higher than the Minimum Wages Act, 1948. He has submitted that if the literal interpretation of the term ‘last drawn wages’ is taken, the Company would be liable to pay more than Rs.50,000/- i.e. more than five times of the minimum rates of wages, which cannot be regarded as payment in the nature of subsistence allowance. In support of his submissions, he has placed reliance on the judgment in the case of the Dena Bank v. Kirtikumar T Patel, AIR 1998 Supreme Court 511. While placing reliance under the provisions of Section 17B of the Act, it is submitted that the respondent-workman is entitled to adequate remuneration and not the wages which is paid to him at the time of his termination. He has thus submitted that order dated 04.12.2020passed in the captioned writ petition while issuing RULE, subject to Section 17 B of the Act may be vacated and in the alternative, the directions may be issued that the respondentworkman is entitled to the wages as per the Minimum Wages Act, 1948 as last drawn wages under Section 17B of the Act. Learned Senior advocate Mr. Patel has submitted that the respondentworkman in fact does not fall within the definition of ‘workman’ as defined under Section 2(3) of the Act, and, hence he is not entitled to wages under Section 17B of the Act.

4. It is submitted that even if it is held that the respondentworkman is entitled for the wages under Section 17 B of the Act, then he is entitled of such benefit from the date of filing of the affidavit by him in this Court. In support of his submissions, reliance is also placed on the judgment of the Apex Court in the case of Uttaranchal Forest Development Corporation and Ors. v K.B.Singh and others (2005) 11 Supreme Court Cases 449. Learned advocate Mr. Patel has further placed reliance on the judgment of the Division Bench of this Court dated 12.05.2011 passed in Letters Patent Appeal No. 531 of 2008.

5. In response to the aforesaid submissions, learned advocate Mr.Chaudhari appearing for the respondent-workman has submitted that the law is well-settled on the issue with regard to the payment of wages under Section 17B of the Act. It is submitted by him that the respondent-workman can claim more wages over and above the last drawn wages. However, in the present case, the respondentworkman is only claiming wages from the date of award and in the alternative from the date of filing of the captioned writ petition. It is submitted by him that the captioned writ petition, at the relevant time, was dismissed for want of prosecution, and the same remained pending and thereafter it was restored, hence, the respondentworkman cannot be made to suffer on the inaction on the part of the Company. In support of his submissions, learned advocate Mr. Chaudhari has placed reliance on the judgment of the Apex Court in the case of Regional Authority, Dena Bank and Another v. Ghanshyam (2001) 6 SRJ 362.

6. While placing reliance on the judgment of the Division Bench in the case of Solaris Chemtech Industries Limited versus Musa Sakur Sama 2018 LabIC 862, 2017 (4) LabLN 683, learned advocate Mr. Chaudhari has submitted that after survey of various judgment including the judgments, on which the reliance is placed by the Company, this Court has ultimately directed the payment of wages under Section 17B of the Act, from the date on which the proceedings are initiated before the High Court.

7. I have heard the learned advocates appearing for the respective parties. There are two issues, which are raised before this Court for consideration (i)whether the respondent-workman is entitled to the less wages as per the Minimum Wages Act, 1948 or (ii) such wages are to be paid from the date of time of affidavit before this Court or from the date of filing the writ petition.

8. I may with profit refer to the decision of the Supreme Court in case of Kirtikumar Patel (supra), wherein the Supreme Court has laid quites to be controversy with regard to the payment of wages under the provisions of 17B of the Act, since there were different decisions by various High Courts taking different views.

9. The Supreme Court, after threadbare examination of various judgments of the High Courts has held thus:

“19. The first construction give to the words "full wages last drawn" their plain and material meaning. The second as well as the third construction read something more than their plain and material meaning in this words. In substance these construction read the words "full wages last drawn" as "full wages which would have been drawn". Such an extended meaning to the words "full wages last drawn" does not find support in the language of Section 17-B. Nor can this extended meaning be based on the object underlying the enactment of Section 17-B.”

20. As indicated earlier Section 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 a certain extent the hardship that is caused to the workman due to delay in the implementation 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 passed since it has been by the award of the Labour of 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 even 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 proceeding 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 awarded being set aside. We are unable to constitute the provisions contained in Section 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 Visveswarya Iroon & Steel Ltd. [supra] or the Bombay High Court in Carona Sahu Co. Ltd. [supra].”

10. Thus, the Supreme Court has held that the plain and material meaning of the expression “full wages last drawn” as per language used in the Section 17B of the Act, would mean the wages which were drawn when the respondent-workman was in service and when his service was terminated. Thereafter, in the subsequent decision, in case Ghanshyam (supra), while reconsidering the judgment rendered in the case of Kirtikumar Patel (supra) has held thus;

“12. The High Court of Punjab & Haryana in Daladdi Cooperative Agriculture Service Society Ltd. vs. Gurcharan Singh & Anr., 1993 (5) SLR 719, has, however, taken a different view. The learned Judge have held that the provisions in Section 17-B imply that if the workman is not gainfully employed in any establishment he is entitled to the payment of wages at the same rate at which he was being paid immediately before the termination of his services.

According to the learned Judges the legislature while introduction Section 17-B intended that the workman who remains unemployed in spite of an award having been passed by the competent court or Tribunal, should be paid at least the wages at the rate last drawn by him so that he may be able to subsist. It has been held that the workman who has not been reinstated is entitled to payment of wages only at the rate last drawn by him and not at the same rate at which the wages are being paid to the workmen who are actually working.

13. The decision of the Delhi High Court in Fouress Eng. (India) Pvt. Ltd. vs. Delhi Administration & Ors., on which reliance has been placed by Shri Sharma, does not throw much light on the meaning of the expression "full wages last drawn."

11. The Supreme Court has held that the report of Section 17B of the Act admits of no doubt that the parliament intended that the respondent-workman should get last drawn wages from the date of the award till the challenge to the award is finally decided, however, the same does not preclude the High Court to grant better benefits which are more just and equitable to the respondent-workman.

12. Thus, under no circumstances or under any provisions of law, it is permissible that the respondent-workman should be paid less wages than the wages, which were being paid when he was in service and when he was terminated.

13. Thus, the contentions raised by learned advocate for the petitioner with regard to payment by wages as per the Minimum Wages Act, 1948 is rejected. So far as the contention that the respondent-workman is not a workman and hence he is not entitled to wages under the provisions of Section 17B of the Act is concerned, this Court is not impressed with such arguments. The Coordinate Bench, while passing the order dated 04.12.2020 passed in Special Civil Application No. 11738 of 2020, after hearing both the parties, has specifically ordered that “during the pendency of the writ petition”, there shall be ad-interim relief in terms of paragraph 5-B subject to the provisions of Section 17B of the Act.

14. Thus, in the writ petition filed by the Company, the Court while issuing RULE, has specifically directed the Company to pay the wages under the provisions of Section 17B of the Act, no contentions with regard to the applicant being not be a workman is recorded.

15. Be that as it may the aforesaid contention is still to be examined in the writ petition as and when it is taken up for final hearing. Thus, after the aforesaid order is passed and in wake of the fact that the applicant-Company has outrightly refused the reinstatement of the respondent-workman, he cannot be denied the statutory relief of wages under the provisions of Section 17B of the Act at this stage, by holding that they do not fall within the definition of respondent-workman under the Act.

16. So far as the contentions with regard to the entitlement from the date of filing of the affidavit, at this stage, it would be apposite to refer the decision of Division Bench in case of Musa Sakur Sama (supra). The Division Bench, after considering the judgment of K.B.Sing (supra) has held thus;-

"7.3. Now, so far as the reliance placed upon the decision of the Honble Supreme Court in the case of K.B. Singh (Supra) by the learned Counsel appearing on behalf of the appellantManagement is concerned, as such the said decision shall not be applicable to the facts of the case on hand. In the case before the Honble Supreme Court there was no specific issue before the Honble Supreme Court that from which date the concerned workman shall be entitled to the wages under Section 17-B of the ID Act. Before the Honble Supreme Court the concerned workman directly approached the High Court under Article 226 of the Constitution of India and claimed the benefits under Section 17B of the ID Act. To that the Honble Supreme Court has observed that benefit of section 17B of the ID Act by directing the reinstatement in service or payment of last wages drawn in lieu thereof can be granted only in favour of such workmen who have obtained the awards in their favour from the Industrial Tribunal or Labour Court and in support of their claims filed affidavits. Therefore, as such on facts the said decision shall not be applicable to the facts of the case on hand. Similarly, even the decision of the Division Bench of this Court in the case of Rang Pharmaceutical Industries (Supra) also shall not be applicable to the facts of the case on hand. Even on considering the said decision it appears that the Division Bench considered the decision of the Honble Supreme Court in the case of Viveka Nand Sethi v. Chairman, J & K; Bank Ltd. reported in (2005) 5 SCC 337 (Para 26) and the decision of the Honble Supreme Court in the case of K.B. Singh (Supra). However, on considering the decision of the Honble Supreme Court in the case of Viveka Nand Sethi (Supra), it appears that in the aforesaid decision as such there is no absolute proposition of law laid down by the Honble Supreme Court that the workman shall be entitled to the wages under Section 17B of the ID Act only from the date of filing of the affidavit in the proceedings before the High Court and/or from the date on which Section 17B of the ID Act is filed. In the case before the Honble Supreme Court as such it was found that the workman did not file an affidavit before the learned Single Judge in support of his contentions and as required under law i.e. section 17B of the ID Act.

7.4. In view of the above and for the reasons stated above and considering the language used in section 17B of the ID Act, we are of the opinion that the learned Single Judge has rightly awarded the wages under Section 17B of the ID Act with effect from 20.07.2015 i.e. from the date on which the proceedings were initiated before the High Court. The order passed by the learned Single Judge is absolutely in consonance with Section 17B of the ID Act and it does not require any interference by this Court in exercise of intra appellate jurisdiction.”

17. Thus, the Division Bench has concluded that the workman has to be awarded the wages under the provisions of Section 17B of the Act w.e.f. the date on which the proceedings were initiated before the High Courts.

18. In this view of the matter and in light of the judgment of the Division Bench, the Civil Applications stand disposed of and the Company is directed to pay the wages under the provisions of Section 17B of the Act to the workman from the date of filing of the writ petition and shall continue to pay the same till the disposal of the captioned writ petition.

19. It is clarified that such wages shall be equivalent to the last drawn salary of the workman at the time of his termination.

20. Such wages shall be paid from the next month and the arrears shall be paid within the period of six weeks from the date of receipt of the order of this Court.