IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR THE HONOURABLE MR. JUSTICE V.GIRI & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 WA.No. 2350 of 2008 ---------- -------------------- AGAINST THE ORDER DT.28.7.08 IN I.A.Nos.17070/06, 15603/06 & 16302/07 IN WPC.5532/2006 .................... APPELLANT(S): PETITIONERS in I..A./ RESPONDENTS IN WPC: -------------------------------------- 1. THE SOUTH INDIAN WORKERS CONGRESS, (INTUC-I), MASS HOTEL ANNEXE, COCHIN-682018, REP; BY ITS PRESIDENT. 2. K.V.ANIL MITHRA, 'RETHAS',KAMALESWARAM, MANACAUD, THIRUVANANTHAPURAM. 3. K.DILEEP, 'DILI BHAVAN', NEAR VETTIKONAM SCHOOL, MANIKANDESWARAM.P.O, THIRUVANANTHAPURAM-13. BY ADV. SRI.PAULSON C.VARGHESE & SRI.E.A.BIJUMON RESPONDENT(S): RESPONDENT/ PETITIONER ------------------------- SREE SANKARA UNIVERSITY OF SANSKRIT, P.B.NO.14,KALADY-683 574. BY SERNIOR ADVOCATE SRI.M.K.DAMODARAN, & ADV. SRI.P.K.VIJAYAMOHANAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR, V.GIRI & P.S. GOPINATHAN, JJ. ------------------------------ W.A. No.2350 of 2008 ------------------------------ Dated this, the 19th day of August, 2009 JUDGMENT Balakrishnan Nair, J. This appeal was filed against the order of the learned Single Judge in I.A.No.15603/06 and connected orders in W.P.(C) No.5532 of 2006. The brief facts of the case are the following: The above writ petition was filed by Sree Sankara University of Sanskrit, challenging Ext.P14 award of the Industrial Tribunal, Aleppey dated 14.11.2005. As per the said award, the Tribunal declared that the termination of the workmen concerned therein was illegal, as the same was done in violation of Section 25-F of the Industrial Disputes Act. It was further declared that, they shall be deemed to be continuing in service and are entitled to get 50% of the backwages. In the writ petition, the union and the workmen filed interlocutory applications, claiming payment of wages, as contemplated under Section 17B of the Industrial Disputes Act (hereinafter referred to as “I.D. Act”). The impugned orders were the orders passed in those applications. Though the applications were allowed by the learned Single Judge, it was ordered that, the last drawn W.A.No.2350/08 - 2 - wages as provided under Section 17-B of the I.D.Act need be paid, only from the date of filing of those I.As.. Aggrieved by the said direction, the Writ Appeal is filed. 2. The appellants claim payment of wages under Section 17-B of the I.D. Act, at least, from the date of commencement of the proceedings before this Court, challenging the award. When the matter came up for hearing before the Division Bench, a decision of this Court in Kodungallur Town Co - operative Bank Ltd. v. Surendra Babu, 2006 (4) KLT 653 was relied on by the respondents. In the said decision, it was held that the workmen are entitled to get wages under Section 17-B of the I.D. Act, only from the date of filing of the application under the said section. The Division Bench, which heard the appeal, was of the view that the said view taken in the above decision, is unsupportable in the light of the provisions of Section 17-B of the I.D. Act. According to the Division Bench, the workmen were entitled to get wages during the pendency of the proceedings before this Court, provided they are unemployed. In other words, the workmen were entitled to get wages under Section 17-B from the date of institution of the writ petition before this Court. Therefore, doubting the correctness of the decision in Kodungallur Town Co - operative Bank Ltd. v. Surendra Babu, (supra), the matter was referred to the Full Bench. W.A.No.2350/08 - 3 - 3. Going by the reference order, the Full Bench is called upon to decide whether the workmen are entitled to get wages under Section 17-B, from the date of institution of the writ petition before this Court or the date they filed the I.A. claiming wages under Section 17-B in the said writ petition. Before proceeding to decide the point referred, we will first refer to the relevant statutory provision. Section 17-B of the I.D. Act reads as follows: “17 B. 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 such period or part thereof, the Court shall order that no wages shall be payable W.A.No.2350/08 - 4 - under this section for such period or part, as the case may be.”. This Court rendered the decision in Kodungallur Town Co - operative Bank Ltd. v. Surendra Babu,(supra), relying on the observations of the Apex Court in Uttaranchal Forest Development Corporation v. K.B. Singh and others, (2005) 11 SCC 449. In the said decision, the Apex Court held as follows: “3. After hearing learned counsel for the parties, we direct that only such workmen in whose favour there are awards of reinstatement and who have filed affidavits of their not being in gainful employment, shall be entitled to be granted reinstatement or in lieu thereof paid wages last drawn by them on respective dates of their termination from services. Their entitlement for such wages would be from the respective dates by filing affidavits by each of them in this Court in compliance with Section 17-B of the Industrial Disputes Act, 1947”. We notice that, in the said decision, the point whether the workmen are entitled to get wages from the date of filing of the writ petition or from the date of filing of the I.A. did not arise for decision. So, the said decision cannot be treated as an authority for resolving the above dispute. The appellants brought to our notice the decision of the Apex Court in Dena W.A.No.2350/08 - 5 - Bank v. Ghanshyam, (2001) 5 SCC 169, wherein it was observed as follows: “12. We have mentioned above that the import of Section 17-B admits of no doubt that Parliament intended that the workman should get the last drawn wages from the date of the award till the challenge to the award is finally decided which is in accord with the Statement of Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17-B was inserted in the Act. We have also pointed out above that Section 17-B does not preclude the High Courts or this Court from granting better benefits - more just and equitable on the facts of a case than contemplated by that provision to a workman. By an interim order the High Court did not grant relief in terms of Section 17-B, nay, there is no reference to that section in the orders of the High Court, therefore, in this case the question of payment of 'full wages last drawn' to the respondent does not arise. In the light of the above discussion, the power of the High Court to pass the impugned order cannot but be upheld so the respondent is entitled to his salary in terms of the said order.”. Going by the said decision, it would appear that the workman concerned is entitled to get wages under Section 17-B of the I.D. Act from the date of the award of the Industrial Tribunal or the Labour Court, as the case may be. We notice that in that case also, the point - which should be the date from which the payment of backwages should be made was not W.A.No.2350/08 - 6 - specifically raised or considered. Going by the provisions of Section 17- B of the I.D. Act, which we have already quoted above, we feel that the Parliament has taken care to ensure payment of last drawn wages to employees, who are unemployed during the pendency of the challenge against the award before a High Court or the Supreme Court. While answering the reference, it is unnecessary to consider whether the workmen are entitled to get wages from an anterior date, prior to the institution of the proceedings before this Court. That is, we are leaving open the point whether the workmen are entitled to get wages from the date of the award. 4. On a scrutiny of the provisions of Section 17-B of the I.D. Act, as stated by the Division Bench, which referred the matter to the Full Bench, we have no doubt in our mind that, if the workman is unemployed, he is entitled to get the last drawn wages, from the date of institution of the writ petition before this Court. When the words of the provision are plain and they admit no ambiguity, we are bound to give effect to the words employed by the Legislature. Therefore, we declare that the unemployed workman is entitled to get wages under Section 17-B of the I.D. Act from the date of filing of the writ petition, provided he is able to satisfy the court by filing an affidavit that, he was unemployed from W.A.No.2350/08 - 7 - the date of institution of the proceedings. The reference is answered accordingly. In the result, the impugned orders of the learned Single Judge are modified and it is ordered that the workmen concerned in this appeal are entitled to get wages under Section 17-B, from the date of filing of the writ petition by the first respondent herein, challenging Ext.P14 award. The Writ Appeal is disposed of as above. Sd/- K. Balakrishnan Nair, Judge. Sd/- V. Giri, Judge. Sd/- P.S. Gopinathan, Judge. DK. (True copy)