-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.326 OF 2008 In WRIT PETITION NO.330 OF 2006 Anand Nursing Home : Petitioner V/s. Shri Mahadev Gaikwad : Respondent ... Mr.Tejas Deshpande for the petitioner. Mr.Dilip M. Mandvia for the respondent. ... CORAM : S.A. BOBDE, J. DATE : SEPTEMBER 24, 2008. ORAL ORDER: 1. This is a Notice of Motion taken out by the respondent-workman under section 17B of the Industrial Disputes Act, 1947, hereinafter referred to as the "Act", for full wages last drawn by him or for a direction to deposit the back wages. 2. The respondent was directed to be reinstated by the Labour Court along with back wages. The petitioner filed this Writ Petition which is pending since 7.10.2005. On 22.2.2006 the employer seems to have made a statement before this Court that it would reinstate the respondent. -: 2 :- Apparently, therefore, this Court granted stay of back wages. There is some dispute whether thereafter employer allowed the respondent to join work or not. However, it is clear that the respondent workman did not take any steps to enforce the order of reinstatement. Since the respondent was not on duty and continued to remain absent, the petitioner issued a charge-sheet dated 16.2.2007. After holding an inquiry, the petitioner has dismissed the workman which is the subject-matter of an independent proceedings. 3. Now in this Notice of Motion, Mr.Mandvia, the learned counsel for the respondent, submitted that by virtue of section 17-B, the workman is entitled to full wages last drawn by him, if any proceeding is pending in this Court or the Supreme Court. According to the learned counsel, it does not matter whether the workman has been reinstated and can, therefore, join his duty. 4. Mr.Deshpande, the learned counsel for the petitioner, however, submitted that the workman is not entitled to apply under section 17B if there is no stay of reinstatement and, if in fact, the employer has on its part reinstated the workman. Section 17B of the Act reads as follows:- -: 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 -: 4 :- be." The section imposes a liability on the employer to pay full wages last drawn by the workman during the pendency of proceedings in the High Court or the Supreme Court in which an order of reinstatement has been challenged. If the workman is not entitled to reinstatement according to the Labour Court, the law does not give him any entitlement to any wages. The question, however, is whether the workman’s entitlement to full wages exists even where there is no stay of reinstatement and he is entitled to join duty. The answer appears to be in the negative because the section is intended to provide full wages last drawn to the workman because he is out of employment. There would obviously be no entitlement for wages without work, particularly when the workman is entitled to work and does not enforce the order of reinstatement. As discussed earlier, section 17-B is intended to provide wages to a workman who is not employed. In the present case, it appears that the workman has not taken up the offer of reinstatement and has not in any case enforced the order of reinstatement. In this view of the matter, I am of view that the workman is not entitled to invoke section 17B for full wages last drawn by him when there is no stay of reinstatement and the workman can join his duties. -: 5 :- 5. Mr.Deshpande, the learned counsel for the petitioner, relied on the judgement of a Division Bench of this Court in Dhrangadhra Trading Co. (Pvt.) Ltd. v. S.Y. Vichare & Ors. (1998 III L.L.J. (Supp.) 863 where the Division Bench observed as follows:- "The provisions of Section 17-B come into operation only when the workman is not in fact reinstated. If the workman is reinstated then there is no question of any order being passed under Section 17-B. In facts of the case the workman was reinstated on March 1, 1996." I am in respectful agreement with the observations of the Division Bench and would add that no liability could be imposed if the employer has reinstated the workman but the workman has not joined his duties or had not enforced the order of reinstatement. 6. In Regional Authority, Dena Bank & Anr. v. Ghanshyam (2001 (2) CLR 901), the Supreme Court dealing with section 17B of the Act, observed that when an employer does not reinstate the workman, he is entitled to either enforce the award or be content with receiving -: 6 :- full wages last drawn in the following words:- "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 the date of the award till the dispute between the parties is finally decided in the High Courts or the Supreme Court. It follows that in the event of an employer not reinstating the workman and not seeking 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 proceeding 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 -: 7 :- against the award till he is reinstated or proceedings are terminated in his favour, whichever is earlier." The observations cover the aspect of section 17B in issue, in the present Motion. Moreover, it would not be appropriate to direct the petitioner to deposit back wages at this stage since no such request was made when the Court granted stay of back wages. 7. In this view of the matter, the Notice of Motion under section 17B of the Act is disposed of. There shall be no order as to costs. S.A. BOBDE, J.