1 IN THE HIGH COURT OF BOMBAY AT GOA MISCELLANEOUS CIVIL APPLICATION NO. 937 OF 2007 Mr. Sahibjan .... Applicant V/s M/s. Uttar Pradesh Bridge Co-operation Ltd. .... Respondent Mr. Vivek Rodrigues, Advocate for the Applicant. Mr. A.V. Nigalye, Advocate for the Respondent. CORAM : N.A. BRITTO, J. DATE : 16 th FEBRUARY, 2008 ORDER : The applicant-employee seeks relief in terms of Section 17-B of the Industrial Tribunal Act, 1947, ('the Act', for short), which reads as follows: 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 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. (emphasis supplied). 2. The applicant/employee's services were terminated w.e.f. 31/07/1992 and the applicant having approached the Labour Court, the Labour Court by 2 award dated 17/09/1999 ordered that the said termination of the applicant was illegal and unjustified. The applicant was ordered to be reinstated in service with 50% of back wages from the date of termination of his service with continuity in service. 3. The respondent/employer has assailed the said award in a petition filed before this Court which came to be admitted on 11/01/2001. No interim stay was granted. It appears that thereafter the petition was dismissed on 20/09/2006 but was restored by order dated 9/11/2006. Since there is no stay granted by this Court, the applicant has filed execution proceedings before the Labour Court on or about 9/06/2006 in which the applicant has claimed a sum of Rs. 2,02,011/- along with interest and costs amounting to Rs. 2,37,011/- and has also claimed wages till the date of reinstatement, to be determined by the Labour Court. As per the applicant it was the bounden duty of the respondent/employer, in terms of Section 17-B to pay to the applicant the wages last drawn by him inclusive of his maintenance admissible to him during the period of pendency of the petition. As per him he is entitled to full wages last drawn by him i.e. Rs. 25/- per day from the date of the award until the disposal of the writ petition. The applicant has stated that he was not employed at any time during the period of his illegal termination till date. 3 4. As per the respondent, this Court has power to direct payment of wages only for the period when enforcement of the award of reinstatement is stayed and since this Court has not stayed the said award, the applicant is not entitled to invoke the provisions of Section 17-B of the Act. As per the respondent, since the applicant has filed an application for execution in terms of Section 33-C(2), before the Labour Court and the said application is pending, the applicant is not entitled for any relief under Section 17-B of the Act. It is also stated that the applicant delayed in filing the applications on account of his gainful employment and in any event the long delay disentitles the applicant from claiming the relief sought. 5. Heard learned Counsel on behalf of the parties, who have argued their respective cases as per the pleas taken by them in the application and reply, respectively. 6. There is no doubt that the Apex Court in Workmen (represented by Hindustan V.O. Corpn. Ltd.) V/s. Hindustan Vegetable oils Corporation Ltd. And Others (2000 (9) SCC 534), has stated that priority should be given to an application under Section 17-B of the Act and that such an application should not be ordered to be disposed of together with the writ petition filed by the employer. In fact the Apex Court set aside such an order and directed that the application under Section 17-B be disposed of expeditiously before 4 the disposal of the Writ Petition. In Dena Bank V/s. Ghanshyam (2001 (5) SCC 169), the Apex Court indicated the object behind inserting Section 17-B of the Act and stated 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 and that it does not preclude the High Court or the Supreme Court from granting better benefits-more just and equitable on the facts of a case than contemplated by that provision to a workman. At the same time while passing an interlocutory order, the interests of the employer should not be lost sight of, even though the amount paid by the employer under Section 17-B to the workman cannot be directed to be refunded in the event he loses the case in the writ petition, any amount over and above the amount payable under Section 17-B to him has to be refunded to him and therefore it is in the interest of justice to ensure, if the facts of the case so justify, that the payment of any amount over and above the amount payable under Section 17-B to the workman be ordered to be paid on such terms and conditions as would enable the employer to recover the same. 7. The Apex Court in Dena Bank V/s. Kiritikumar T. Patel (1999 (2) SCC 106) referring to the powers of this Court and that of the Supreme Court under articles 226 and 136 of the Constitution, respectively, stated that Section 17-B, by conferring a right of the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour Court,Industrial Tribunal or 5 National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass an order directing payment of a higher amount to the workman, if such higher amount is considered necessary in the interest of justice. 8. The Apex Court in Dena Bank V/s. Ghanshyam (supra) further stated that in case an employer does not reinstate the workman and does not seek any interim relief in respect of the award directing reinstatement of the workman or in a case where the Court is not inclined to stay such award in toto the workman has two options, either to initiate proceedings to enforce the award or be content with receiving the full wages last drawn by him without prejudice to the result of the proceedings preferred by the employer against the award till he is reinstated or proceedings are terminated in his favour. 9. The applicant having chosen the first option to enforce the award, in my view, the applicant would not be entitled to maintain at the same time an application under Section 17-B of the Act. Moreover, what clinches the issue against the applicant is also a Division Bench judgment of this court in the case of Bombay Film Laboratories Pvt. Ltd. V/s. L.G. Vasule & Ors. (1994 II CLR 413), wherein the learned Division Bench held that: 6 “In the first instance, plain reading of provisions of section 17-B makes it clear that the Court has power to direct payment of wages only for the period when the enforcement of the award of reinstatement is stayed. It is not open for the Court to direct payment from the date of the award.” 10. This decision of the learned Division Bench has been followed by a single Judge of this Court in Hindustan Petroleum Corporation Ltd. V/s. D.N. Vidhate & Anr. (2003 III CLR 598), observing that the Division Bench of this court having specifically ruled that the order for direction for payment of back wages under Section 17-B can be from the date of stay of enforcement of the award and not from the date of the award, is binding of this Court. 11. The applicant having exercised his option of enforcing the award and there being no stay granted by this Court against the impugned award in the writ petition, in my opinion, the application deserves to be dismissed, leaving the applicant to pursue the remedy chosen by him. Order accordingly. N.A. BRITTO, J. NH/-