75 COCP No 1039 of 2009 Ill 4 L 0 6 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decisionl July 1 2010 2 Prithi Pal Singh Petitioner Versus 1 Udhev Bhan Singh Sidhu Respondent Q 0 CORAM HONBLE MR JUSTICE HEMANT GUPTA 0 I C5 1 Whether Reportersoflocal papers may be allowed to see the judgment2 Cr 2 To be referred to the Reportersor not2 Z 3 Whether thejudgmentshould be reportedin the Digest2 rt Presentl Shri Ravi Kant Sharma Advocate for the petitioner Shri PK MutnejaAdvocate for the respondent 08 Hemant Guota J 10rall 7 Z The petitionerhas invoked the jurisdiction of this Court Om for initiating contempt proceedingsagainst the respondents for vfolatingthe order dated 2282003 and the undertakinggiven before this Court on 12 102006 The petitionerworkman raised an industrial dispute challenginghis termination The Industrial Tribunal Punjab vide Award dated 261 1 1999 set aside the termination and ordered petitioners reinstatement In a writ petitionie CWP No 4451 of 2001 filed by the Managementthe Award was stayed on 272000 subjectto the provisionsof Section 17B of the Industrial Disputes Act 1947 lfor short the Actl On an application flled by the Rashmi 2013.04.26 14: 46 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:18 I attest to the accuracy and integrity of this document 76 1 COCP No 1039 of 2009 121 1 0 1 workman this Court on 2282003 directed the Managementto pay last drawn wages lll terms of Section 17B of the Act The said order was passedconsideringan argument raised by the Managementthat the unit where the workman was employedhas since been closed It was noticed that since there is no application Oled by the Management for variation of the order passedby the Division Bench staying the operation of the Award subject to the provisions of t Section 17B of the Act the Management 1S bound to pay the last drawn wages 0 Cao The Managementfiled an applicationfor modification of the order dated 27000 However Slnce the Managementhas not C5 paid any wages after the Award the order of stay of the operationof the Award was vacated on 2022004 Z The petitionerherein filed a contempt petition alleging violation of the orders passed interlia for the reason that he is not C beingpaid wages In the contemptpetition payment upto 312006 08 was rnade and it was undertaken that the monthlysalaryshall be regularlypaid ew Z Learned counsel for the petitionerhas pointed out that tl the Management has paid salary till August 2008 and thereafter the Managementhas not paid the last drawn wages It is also admitted by the learned counsel for the partiesthat the writ petition has Slnce been dismissed and the Letters Patent Appealis pendingadjudication before this Court wherein there is no interim order Learned counsel for the petitioner relies upon Commandant Defence Securitv Corps Centre Cannanore V Secretarv NCC Group URC Emplovees Associaon Calicut 2001 Lab IC2002 Keralaj and Iron Rolling Mills Pvt Ltd V Vinodkumar R Singh 2009 LLR 155 Gujaratl to contend that even if the establishment is closed the liabilityto pay last drawn wages ln terms Rashmi 2013.04.26 14: 46 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:18 I attest to the accuracy and integrity of this document 77 a COCP No 1039 of 2009 131 i 0 of Section 1743 of the Act continues It is a statutoryrightto mitigate the hardshipto the workman to have a source of sustenance Learned counsel for the petitioneralso relies upon a Division Bench judgment of this Court reported as Municipal Comrnittee Mohindergarh Vs Presiding Offlcer Labour Cour Gurgaon002111SCT 284 wherein it has been held that the rightof malntenance contemplated under Section 1B of the Act cannot be a said to be terminated on the termination of the proceedings before the 0 High Court It is contended that a workman is entitled to last drawn 0 C wages even if there is no interim order of stay of operationof the Award as the provisionsof Sectioil 17B of the Act are not applicable C5 onlyif the Award of the reinstatement is to be stayed Learned counsel for the respondenthas vehemently Z arguedthat there lS no order of paymentof last drawn wages under Ct Section 17B of the Act Therefore the petitionercannot claim last I drawn wages rnore so in a contemptpetition It was open to the 08 Managementto reinstate the workman or to providealternative employment It 1S contended that since the Unit in which the 17 petitioner was employedhas been closed down therefore the Z petitionerwas offered employment to the post of Field Assistant with Om Pollution Control Committee but tlie same was not acceptedby the petitionerTherefore the petitionerhas no rightto claim back wages Learned counsel for the respondenthas referred to a SupremeCourt judgmentreportedas Dena Bank v Kiritikumar T P 199912Supreme Court Cases 106 to contend that the objectiveof introduction of provisionsof Section 17B of the Act is to relieve to a certain extent the hardshipwhich is caused to the workman due to delayin implemontationof the A The payment which is requiredto be made to the workman is in the nature of subsistence allowance which will not be refundable or recoverable Rashmi 2013.04.26 14: 46 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:18 I attest to the accuracy and integrity of this document 78 COCP No 1039 of 2009 141 L 0 from the workman even if the Award is set aside It is thus sought to be arguedthat only in the event of stay of the Award a workman can claim wages under Sectionl7B ofthe Act The judgment in Dena Banks case Isupral has been considered by the Division Bench of this Court ln Municipal Committee Mohindergarhs case Isupralwherein it has been held to the followingeffect 1 3 It is clear from the provisionof this Section that r amount is to be paid for the purpose of maintenance 0 The workman is entitled to the amount under this 0 Section and there is no provisionin this Section that he 2C cannot claim the amount afr the writ petitionbefore C5 the HighCourt is over It may so happenthat workman I might have earned for his maintenance during the pendencyof the writ petitionor he mighthave spentthe Z amount himself but if he was entiUed to this amount for the purpose of maintenance his rightcannot be said to m have terminated on the termination of the proceedings before the High Court Leamed counsel for the I has cited the case Dena Bank v 08 Kirmar T Patel reportedas 1998111 SCT 57 SCl Thoughthe facts of the case were difTerent the Supreme Court has decided in that case that fuU wages last Z dvn would not mean the wages which the workman would have drawn on the date of award of re tl instatement This judgmentgoes to show that the rate of wagesto be considered under Section 17B of the Act is the wages last drawn by him and not the wages which should have been entitled on the reinstatement as per the award Therefore the prment of wages is restricted to the rate of the wages last drawn This also goes to show that it is only for theoviding maintenance that this provisionhas been added in the Industrial Disputes Act It has been held by the SupremeCourt in the above mentioned case that that the relief be givenwith a vlew to relieve the hardshipthat would be caused to a workman on account of delay in implementation of the award as a result of the pendencyof the proceedings in the HighCourt Rashmi 2013.04.26 14: 46 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:18 I attest to the accuracy and integrity of this document 79 COCP No 1039 of 2009 151 1 0 A bare readingof the provisionsof Section 17B of the Act shows that if in any case the Tribunal by its Award directs reinstatement of any workman and such Award is challengedin any proceedingsthen the workman is entitled to full last drawn wages inclusive of any maintenance allowance admissible to him It is not dependentupon the order of stay of Award to be passedby the High Court Therefore the fact that the stay was vacated by this Court 1S not relevant for determiningthe questionof paymentof wages to the r workman under Section 1743 of the Act In fact the Division Bench 0 of this Court has held that the workman is entitled to last drawn C wageseven if the writ petitioncame to be decided C5 The argumentthat the respondenthas offered alternative I employment to the petitioneras the unit in which the petitionerwas Z employedhas been closed down again does not absolve the rt respondentof payment of arrears of wages Section 17B of the Act I casts an obligation on the management in which the workman was 08 employedSince the workman has been ordered to be reinstated ln a particularmanagementlt 1S that managementalone which is liable W7 to pay last drawn wages The offer if any submitted by the Z respondentfor alternative employment may be a goodwillgesture but that does not absolve the respondentof the liabilityof payinglast drawn wages to the workman During the course of arguments it was admitted by the learned counsel for the parties that the writ petition Oled by the Managementhas Slnce been dismissed and the Letters Patent Appeal 1S pending In Vlew of the said fact the right of last drawn wages conferred by Section 17 of the Act will enure for the benefit the workman even duringthe pendencyof the Letters Patent Appeal Rashmi 2013.04.26 14: 46 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:18 I attest to the accuracy and integrity of this document 80 COCP No 1039 of 2009 161 e 0 Since the issue in respect of liabilityof the Management to pay arrears of last drawn wages was an lssue dependentupon the of the provisionsof law therefore while interpretingthe said provisionsthe respondentis givenan opportunityto pay last drawn wages to the workman within three months If such wages are not paidwithin the aforesaid period the respondentshall be liable to be punishedfor willful disobedience to the orders passedby this 1 Court r The present petitionstands disposedof in the above 0 C terms I 0 ll I 1HEMANT GU j JUDGE Z JUI 1 2010 A ds C2 1V0 to rA5 SCuIl 1e7 7 Z ll 8 S Rashmi 2013.04.26 14: 46 True Scanned Copy Of the Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:18 I attest to the accuracy and integrity of this document