JUDGMENT [ENTITY], J.
1. This is an application by the respondent No. 1/workman under [SECTION] of [ACT] seeking direction to the petitioner management to pay the back wages.
2. The services of respondent No. 1/workman were terminated on 16th June, 1992 by the petitioner management. The respondent No. 1/workman has categorically stated that since the date of his termination, he has never been employed in any establishment for any period of time and facing great difficulty to meet both ends and is totally dependent on his family members and other relatives for his livelihood. The respondent No. 1/workman submitted that he is entitled to wages at the rate last drawn by him from the date of his termination by the petitioner under [SECTION] of the [ACT].
3. The petitioner has filed reply to the application, denying the averments made by the respondent No. 1/workman by stating that the application under [SECTION] of the [ACT] is not maintainable on the ground that no award was passed but there was an Order under [SECTION] of the [ACT] rejecting the approval application and the said Order did not grant any reinstatement to the workman. The petitioner in support of his contention referred to the decision of the Division Bench of this Hon'ble Court in [PRECEDENT]. It was also submitted by the petitioner that the reliefs prayed by the respondent does not fall within the purview of the relief which can be granted under [SECTION] of the [ACT], as this section does not talks about the back wages but states only last drawn wages during the pendency of the proceedings. The petitioner denied the contention of the respondent No. 1 that he is unemployed. The petitioner prayed for the leave of this Hon'ble Court to make detailed submissions at the time of the arguments. An affidavit has also been filed of the Regional Manager in support of the pleas taken in the reply.
4. Though an award reinstating the respondent No. 1 has not been passed, but the application of the petitioner under [SECTION] of the [ACT] was dismissed by order dated 22nd January, 2002 holding that the petitioner has failed to prove that the respondent No. 1 committed misconduct and therefore, approval to the action of the petitioner to remove the respondent No. 1 from service under Clause 15(2)(vi) of the [ACT] was rejected. If the approval application of the petitioner has been dismissed, the respondent No. 1 could not be removed from the service and he was entitled for reinstatement. The said order was challenged by the petitioner and the operation of said order was stayed by this Court by order dated 25th November, 2002. Consequently the respondent No. 1 has not been able to get himself reinstated.
5. A full bench of this Court in [PRECEDENT] in the matter of [PRECEDENT] had held that the provision of [SECTION] of the Act will be applicable to the writ petition filed against the order passed on the application of the management under [SECTION] of the [ACT]. Referring to various decisions, the full Court had held that the emphasis of the legislature in [SECTION] was on the expression `reinstatement rather than on award and cumulative effect of [SECTION] and [SECTION] defining award and `industrial dispute demonstrated that the expressions has been widely worded to take within their ambit duties relatable to any person who satisfied the conditions stated therein. Consequently the plea of the petitioner that the provision of [SECTION] are not available to the respondent No. 1 since there is no award, is not sustainable and is rejected holding that the respondent No. 1 is entitled for the benefit of [SECTION] of the [ACT] provided he is unemployed.
6. Granting relief under [SECTION] of the Act and passing orders directing payment of wages last drawn, is generally the rule; refusing to grant relief under [SECTION] is an exception, as it could be passed only in the rarest of the rare cases of jurisdictional error where there is no relationship between the parties. In the present case the this has not been disputed that there is relationship of employee and employer between the petitioner and the applicant While considering an application under this provision it is necessary to bear in mind that the spirit, intendment and object underlying the statutory provision of [SECTION], is to mitigate and relieve, to a certain extent, the hardship resulting to a workman due to delay in the implementation of the consequence of dismissal of the application of the petitioner resulting into reinstatement of his services on account of the challenge made to it by the employer. The preliminary consideration for making available such a relief to a workman is to be found in the benevolent purpose of the enactment. It recognizes a workman s right to the bare minimum to keep body and soul together when a challenge has been made to the order passed by the Labor Court. The statutory provisions provide no inherent right of assailing an order or an award by an industrial adjudicator by way of an appeal. The payment which is required to be made by the employer to the workman has been held to be akin to a subsistence allowance which is neither refundable nor recoverable from a workman even if the petitioner is allowed by the High Court. In (para 22), [PRECEDENT] the Apex Court was of the view that the object under [SECTION] of the [ACT] is only to relieve to a certain extent, the hardship that is caused to the workman due to the delay in implementation of the Award. The practice of disposal of the petition as well as the application under [SECTION] of the Act contemporaneously was deprecated and the High Court was directed to first expeditiously dispose of the application under [SECTION] by the Supreme Court by its decision reported at , [PRECEDENT].
7. Since the section itself mentions employment in establishment self employment quite apparently is not in contemplation. Workman can be denied the benefits under [SECTION] of the [ACT] only when it is proved to the satisfaction of the Court that the workmen have been employed and have been receiving adequate remuneration during the period of pendency of the writ petition. It is thus well settled that transient employment by the workman does not affect his entitlement to receive wages pending decision; that is to say that, the benefit of [SECTION] of the Act cannot be denied merely because the workman is engaged in some activity or in some vocation to eke out his livelihood. Such relief can be denied only if it is proved that the workman is gainfully employed in some establishment and is receiving adequate and regular remuneration which is not the case with the applicant. In the present case the petitioner has not been able to show that the workman is gainfully employed in any establishment and the respondent No. 1 has contended on affidavit that he is unemployed since the date of his dismissal from the service.
8. Whether the applicant is entitled for last drawn wages or something more. In entitled [PRECEDENT]. it was held by the Apex Court that a workman has a legal right to wages under the [ACT] and cannot be diverted to a remedy under [SECTION] of the [ACT] for enforcing such right. In this case, the Apex Court was concerned with the power of the Act under [SECTION] of the [ACT] and the principles laid down by the Court would have a bearing on the issues raised before this Court as well. From a conspectus of the authoritative pronouncements of the Apex Court, the right of a workman to an amount equivalent to the wages notified under the [ACT] is thus, in fact, recognition of the constitutional mandate and nothing more. It is undoubtedly, the bare minimum which is required by the workman to subsist and is nothing more. Full wages last drawn can therefore only mean all the wages that have fallen due at least from the date of the order of the Labor Court dismissing the application of the management under [SECTION] of the Act.
9. In the present case the workman has categorically averred in the application that he has been unemployed since the date of his dismissal and since the date of dismissal of the application of the petitioner till date. In the facts and circumstances, the applicant fulfillls the criteria for availing the benefit under [SECTION] of the act and if the requisites of [SECTION] of the [ACT] are satisfied, no order can be passed denying the workman the benefit of statutory provisions of [SECTION] of the [ACT] in the present facts and circumstances of the case.
10. Consequently, the application of the workman/respondent under [SECTION] of the [ACT] is allowed and the petitioner is directed to pay the arrears of last drawn wages or minimum wages whichever is higher from 22nd January, 2002, the date of dismissal of the application of the petitioner under [SECTION] of the [ACT]. The arrears be paid within eight weeks. The petitioner shall continue to pay last drawn wages or minimum wages whichever is higher by the 15th of every English Calendar month during the pendency of the writ petition. The respondent No. 1 is also directed to give an undertaking to the effect that in case the petition is allowed, the difference in last drawn wages and the minimum wages shall be repaid/refunded within the time as shall be permitted by this Court. The undertaking by the respondent No. 1 be filed within four weeks. With these directions, the application is disposed of.
At the request of counsel for the respondent, list on 21st July, 2008.