IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 22ND NOVEMBER 2011 / 1ST AGRAHAYANA 1933 WA.No. 1770 of 2011() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.6774/2010 Dated 19/10/2011 .................... APPELLANT(S): --------------------- K.SURESH BABU, SREERAMA MANDIRAM, THAZHUTHALA, KOTTIYAM P.O., KOLLAM. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND RESPONDENT(S): ----------------------- 1. THE SECRETARY, QUILON DISTRICT PRIVATE MOTOR AND ENGINEERING MAZDOOR SANGH, MAZDOOR BHAVAN, THAMARAKKULAM, KOLLAM DISTRICT. 2. SOBHANAN, AGED 45, S/O.BHARGAVAN, THADATHARIKATHU VEEDU, MANKUZHY, KOONANVENGA P.O., THIRUVANANTHAPURAM. 3. LABOUR COURT, KOLLAM. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, Ag.C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 1770 of 2011 ---------------------------------------------- Dated this the 22nd day of November, 2011 JUDGMENT Ramachandra Menon, J. The challenge in this appeal filed at the instance of the employer/management is with regard to the correctness and sustainability of the order passed by the learned Single Judge in a petition filed under Section 17B of the Industrial Disputes Act (for short, 'the ID Act'). 2. The factual position is that the concerned worker was an employee of the appellant, whose service was put to an end to, which led to an industrial dispute and the same was referred for adjudication, under the relevant provisions of the ID Act. Pursuant to the reference made, the trial was conducted and on appreciating the facts and evidence, the Labour Court, Kollam passed an Award ordering reinstatement with 30% back-wages, which is under challenge in W.P(C).No. 6774 of 2010 filed before this Court which is pending. The worker as well as the Union filed interlocutory applications claiming the benefit under Section 17B of the ID Act, supported with affidavit of the worker, stating that WA.1770/11 2 the worker is not having any alternate employment and sought for an order granting the 'last drawn wages' as specified under the Statute. The said applications were opposed from the part of the appellant-management/employer stating that the worker was obtaining nearly Rs.15,000/- every month by virtue of his engagement under the National Rural Employment Guarantee Scheme and also by virtue of some engagement in a stage carriage. It was after considering the rival pleadings that the order was passed by the learned Single Judge, directing the employer to comply with the provisions under Section 17B of the ID Act, which is under challenge in this appeal. 3. Learned counsel for the appellant submits that the course pursued by the learned Single Judge is not correct or proper in so far as the liability to establish the requirements to have the benefit of Section 17B is very much cast upon the worker. It is also simultaneously added that the appellant/employer had produced necessary materials to show that the worker was having gainful engagement. 4. The scope of Section 17B of the ID Act has been highlighted in umpteen verdicts of the Apex Court as well as this Court. The said provision reads as follows: WA.1770/11 3 “17B. 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 any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part as the case may be.” 5. Going by the mandate of the statutory prescription, the only requirement to sustain the claim is that, there has to be an order/Award of reinstatement of the worker and the worker shall remain unemployed in any establishment; on which event, established through an affidavit of the worker, the employer is supposed to satisfy the claim, effecting payment (the last drawn WA.1770/11 4 salary); which is as good as or similar to the provision for granting subsistence allowance. By virtue of the very nature of the payment, the amount paid under Section 17B of the ID Act is not liable to be recovered or reversed, even in a case where interference is made by this Court and the Award passed by the Labour Court/Industrial Tribunal is set aside on a later occasion. It is also the settled law, that if an affidavit is filed by the worker in support of the claim under Section 17B stating that he is having no alternate employment, it is always for the management/employer to establish it otherwise by adducing positive evidence. The mere fact that the employer/management has produced some materials to show that the worker is having some alternate engagement, is not enough. 6. The contention of the appellant/employer appears to be that the alternate engagement as pointed out will automatically disentitle the worker from claiming the benefit under Section 17B of the ID Act. The very wording used under Section 17B of the ID Act is with reference to the alternate “employment” and not alternate “engagement”. There is an ocean of difference between these two terms, in so far as the 'alternate engagement' can be procured by the worker himself; whereas in the case of 'alternate WA.1770/11 5 employment', there is a “Master and Servant” relationship. Absolutely no positive evidence has been adduced from the part of the appellant/employer in support of their stand, to hold that the worker is having 'alternative employment'. In the above circumstances, we find that the order passed by the learned Single Judge granting the benefit of Section 17B to the worker concerned, directing the employer to satisfy the same is within the four walls of law and the same is not assailable under any circumstances. The appeal fails and the same is dismissed accordingly. MANJULA CHELLUR, ACTING CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs