: 1 : 1331-11-caw=.sxw UJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1331 OF 2011 IN WRIT PETITION NO. 3601 OF 2011 Kumar Yakub Madrasi & Ors. .. Applicants v/s. Bharat Sanchar Ltd. .. Respondents ......... Mr. Neel G. Helekar for the applicants Mrs. Neeta V. Masurkar for respondents ......... CORAM : A.V. NIRGUDE, J DATE : 17th NOVEMBER,2011. P.C. : 1. This Civil Application is taken out by the respondents workmen for getting monetary benefits prescribed under Section 17B of the Industrial Dispute Act, 1947. Section 17B reads as under. “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 : 2 : 1331-11-caw=.sxw 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”. 2. Apparently all the ingredients of Section 17B are shown to be in existence. The writ petition is challenging the award directing reinstatement of the respondent as workmen of the petitioner company. The writ petition is pending since its admission on 27th June, 2011. The respondents in support of their application filed an affidavit that they are not employed in any establishment since their termination. 3. As against this , the petitioner filed an affidavit saying that as per their information, the respondents are doing private work at Sangli. The statement made by the petitioner in their reply is vague and, therefore, they cannot prove even prima­facie that the respondents workmen are gainfully employed in an establishment and are receiving adequate remuneration. 4. The learned Counsel appearing for the petitioner insisted that I : 3 : 1331-11-caw=.sxw should decide the question as to whether the respondents were workmen of her client. I am afraid that such question at the stage cannot be decided because the same would be decided in the writ petition. Besides, despite evidence on record of both the parties, the learned Judge of the lower Court held that the respondents were workmen of the petitioner company and that is why he had ordered their reinstatement. In view of this, there cannot be any attempt at this stage to decide as to whether the respondents are workmen or not. 5. The second question that arises for consideration is from what date the benefit of Section 17B should be given to the respondent. The learned Counsel appearing for the respondent placed reliance on judgment of Supreme Court in the case of Dena Bank Vs. Ghanashyam, (2001) 5, SCC 169 asserted that the benefits should be given from the date of the award. The Supreme Court observed as under. “9. The Statement of Objects and Reasons for inserting the said provision indicates that when Labour Courts pass awards of reinstatement, they are often contested by employers in the Supreme Court and High Courts. To mitigate the hardship that would be caused due to delay in implementation of the award, it was proposed to provide for payment of wages last drawn by the workman concerned from : 4 : 1331-11-caw=.sxw the date of the award till the dispute between the parties is finally decided in the High Courts or the Supreme Court.” 6. The learned Counsel for the petitioner opposed this submission by referring to the words appearing in Section 17B “during the period of pendency of said proceeding in the High Court” and asserted that having regard to the words referred to above, the benefit of Section 17B can be given only for the period during which a proceeding is pending before the High Court. She said that the writ petition is filed on 16th April, 2011 and, therefore, at the most, the respondents are entitled to wages as per the Section 17B from that date. I am afraid, this submission is not only unacceptable but is clearly contrary to the law laid down by the Supreme Court quoted above. In any case, if the respondents made an affidavit stating that from the date of the award, they are unemployed, they would be entitled to the benefits of Section 17B because had the writ petition not been filed they were entitled to enforcement of the impugned order. 7. In view of this, the application is allowed in terms of prayer clause (B). Parties to act on the authenticated copy of this order. (A.V. NIRGUDE, J.)