THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 18945 OF 1998 DATED: 05-02-2008 BETWEEN: The Girijan Bhavan Development Committee, Rep.by its Chairman Banavatu Veeraiah, S/o.B. Subbayya … Petitioner and The Industrial Tribunal, CE, Labour Court, Visakhapatnam and another …Respondents THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 18945 OF 1998 ORDER: While we cry hoarse from roof tops that the weakest of the weak i.e., the scheduled castes require protection and that all possible steps must be taken for their upliftment, the present case is a glaring instance of an employer denying the 2nd respondent workman, (a scheduled caste), wages last drawn under Section 17-B of the Industrial Disputes Act, in gross violation not only of the statutory prescription but also the interim order of this Court. The wages last drawn by the 2nd respondent, as stipulated under Sec.17-B of the ID Act and as directed to be paid by this Court during the pendency of writ proceedings, is a princely sum of Rs.300/- per month, which the employer believes the workman does not deserve to be paid. All sorts of contentions are now advanced at the stage of final hearing of the writ petition that the workman is entitled to invoke the jurisdiction of the Labour Court under Sec.33 C(2) of the I.D Act to recover the last drawn wages payable under Sec.17- B of the I.D.Act and that mere violation on the part of the employer, to pay wages last drawn under Sec.17-B, would not be a bar for their seeking an adjudication, of the validity of the award, on merits. The award impugned in this writ petition, is award the in I.D.No.118 of 1994 dated 12-02-1998 passed by the Industrial Tribunal cum Labour Court, Visakhapatnam whereby the employer, who had remained exparte in the proceedings before the Tribunal, was directed to reinstate the respondent-workman into service with back wages and continuity of service and pay him Rs.500/- by way of costs. The petitioner-employer contends that, the second respondent-workman had obtained a loan, under the self- employment scheme for the Scheduled Castes, from the S.C. Corporation, Visakhapatnam vide R.No.420/94-95, that he was allotted shop No.7, Sector 3 in VUDA complex, MVP Colony, during the year 1994-95 under the quota of unemployed scheduled castes, that in this shop the second respondent was running an electrical shop under the self employment scheme and he was, therefore, gainfully employed. In his counter affidavit, the second respondent specifically denied the aforesaid contention of the employer as false and concocted. He specifically averred that he did not have any other means of earning, that he was not employed anywhere and that he was without a job since the date of his termination. He denied having any electrical shop and stated that his wife, with the help of his father and brother, was running a small electrical shop under the self- employment scheme taking a loan from NSFDC in the month of April 1996. It is pursuant to the counter affidavit filed by the 2nd respondent workman that this Court, which had earlier directed maintenance of status quo in W.P.M.P.No.22604 of 1998 dated 04- 08-1998, had modified the same by order dated 12-10-1998 to the effect that there would be a stay of execution of the award on condition that the petitioner complied with the provisions of Section 17-B of the I.D.Act within a period of four weeks and, in default, the order would stand vacated without any further orders from the Court. Section 17-B of the Industrial Disputes Act reads thus: “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.” The requirement under the said section is for payment of wages last drawn when an employer has invoked the jurisdiction of the High Court against an award of the Labour Court/Industrial Tribunal directing reinstatement of a workman. During the pendency of the writ proceedings before the High Court, Section 17-B obligates the employer to pay the workman full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule. Payment of wages last drawn, inclusive of maintenance allowance, is subject only to the condition that the workman was not employed in any establishment during such period and that the workman files an affidavit to that effect in the court. In the present case the second respondent-workman, in his counter affidavit filed in the writ petition, has specifically stated that he was not employed in any establishment and that the shop, which the petitioner had alleged that he was running, was in fact being run not by him, but by his wife. While, the writ petition came to be filed on 03-07-1998 from which date the petitioner was required to pay wages last drawn under Sec.17-B, it is only after the interim order was modified by this court, by its order dated 12- 10-1998, that the 2nd respondent workman was paid wages last drawn at Rs.300/- per month from October, 1998 to March 2000. Thereafter, for the past eight years, the employer has chosen, on its own accord, contrary both to the provisions of Sec.17-B of the I.D. Act and the directions of this Court, not to pay wages last drawn of Rs.300/-p.m. The contention now urged by Sri G. Rama Gopal, learned counsel for the petitioner, is that while the employer has, indeed, not paid wages last drawn of Rs.300/- per month from April, 2000 till date, i.e., for nearly eight years, non- payment of wages last drawn would not bar adjudication of the writ petition on merits and the remedy, if at all, of the workman is to approach the Labour Court under Sec.33 C(2) of the I.D. Act and claim payment of the said amount. Reliance is placed in support of this contention on the judgment of this court in President, Gattududdenapally Large Sized Co-operative Credit Society Ltd. vs. Labour Court[1]. Sri T.S.Venkata Ramana, learned counsel appearing on behalf of the second respondent, would emphasize the fact that the petitioner was not paid wages last drawn of even the measly sum of Rs.300/- per month from April, 2000 till date and reiterate that the 2nd respondent workman is not employed in any establishment till date. Learned counsel would submit that the second respondent had filed M.P.No.1 of 2007 under Sec.33- C(2) of the I.D. Act claiming Section 17-B wages from April, 2000 till December, 2006 and that the petitioner herein, in its counter affidavit before the Labour Court, had contended that since the present writ petition was coming up for hearing before this Court and its decision was awaited, the M.P. filed by the workman should be dismissed. While the contention of the petitioner before this Court is that the workman has the remedy of claiming payment of the wages last drawn, by way of an application under Sec.33- C(2) before the Labour Court, a diametrically opposite stand has been taken by them before the Labour Court in the proceedings under Sec.33-C(2) where they are contending that pendency of writ proceedings before this Court would necessitate dismissal of the application filed by the workman under Sec.33 C(2) of the I.D.Act. I n Gattududdenapally Large Sized Co-operative Credit Society Ltd.1, this Court, relying on the judgment of the Bombay High Court in Elpro International Ltd. v. K.B.Joshi[2], observed that: “……I respectfully agree with the view of the Bombay High Court that Section 17-B relief is like subsistence allowance payable to a suspended employee. But, as observed by the Bombay High Court, in extreme cases where it is demonstrated that the award passed is perverse or is otherwise a nullity or grossly erroneous or without jurisdiction, the High Court is not barred from exercising its powers under Article 226 of the Constitution and denying the relief. Normally, when the writ is disposed of, all interlocutory orders merge in the final order. But Section 17-B relief is an exception. When once the High Court directs payment of wages under Section 17- B while suspending the operation of the award and the wages are paid to the employee, the management cannot recover them when the writ petition is allowed and the award is set aside even on the ground that it is either erroneous, perverse, without jurisdiction or nullity. But when wages directed to be paid are not paid, the remedy of the employee is to move the Court for vacation of the suspension order granted by the Court and for reinstatement as per order of the Labour Court. If the employee fails to adopt such course, he cannot seek direction to the management to pay the arrears at the time of final hearing of writ petition when the writ is being allowed. However, if the writ petition is dismissed and the award is confirmed, the employee’s right to get backwages during the pendency of the writ petition remains intact subject to the condition of proof of non-employment elsewhere. This is not traceable to Section 17-B, but is a right which accrues to him as a successful party. Thus, the employee is entitled to retain Section 17-B wages paid to him from 10-03-1992 to January, 1993 and cannot claim recovery of arrears from January, 1993 onwards……..” (emphasis supplied) As has been held by this Court, in the aforesaid judgments, wages last drawn under Section 17-B is akin to subsistence allowance payable to an employee during the pendency of disciplinary proceedings. It is no doubt true, as has been held in the aforesaid judgments, that non- payment of wages under Section 17-B would not bar adjudication of the writ petition on merits. It is well to remember that this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, would not exercise its discretion to interfere except in larger public interest. A writ of mandamus and a writ of certiorari are discretionary unlike a writ of Habeas Corpus which can be sought as a matter of right. One of the principles inherent is that the exercise of discretionary power should be for the sake of justice and if quashing the order results in greater harm to the society then the Court may refrain from exercising the power. (State of Maharashtra Vs. Prabhu[3]). The power under Article 226 of the Constitution of India need not be exercised in every case where there is an error of law. In the name of correcting errors of law, Courts ought not to bring forth a situation which would result in injustice and, if justice became the by-product of an erroneous view of law, Courts are not expected to erase it in the name of correcting errors of law. (Roshan Deen Vs. Preetilal[4]). One of the limitations imposed by this Court, on itself, is that it would not exercise jurisdiction unless substantial injustice has ensued or is likely to ensue. It would not allow itself to be turned into a court of appeal to set right mere errors of law which do not occasion injustice. (Sangram Singh Vs. Election Tribunal, Kotah[5]). Even if a legal flaw might be electronically detected, this Court would not interfere save manifest injustice or a substantial question of public importance is involved. (Rashpal Malhotra Vs. Mrs. Satya Rajput[6]; Council of Scientific and Industrial Research Vs. K.G.S.Bhatt[7]. Payment of wages last drawn, that too of a meager amount of Rs.300/- p.m, which is in the nature of subsistence allowance, is statutorily prescribed to enable the workman to survive the ordeal of a long drawn process of litigation before the High Court. While it may be possible for an employer to continue litigating ad-infinitum, a workman, who has no other source of livelihood, would be in no position to do so. It is for this reason that, by amending Act 46 of 1982, Section 17-B was inserted with effect from 21.08.1984. The said provision seeks to achieve the salutary purpose of ensuring that the workman survives, even if it be on half stomach, during the pendency of the writ proceedings before this Court. Since the amount directed to be paid is not the current wages, but wages last drawn, failure on the part of the employer to pay even this amount would certainly be a factor which would weigh with this Court in deciding whether or not it should exercise its discretion under Article 226 of the Constitution of India. While this Court may not, in all cases, refuse to exercise its discretion solely on the ground that wages last drawn under Section 17-B has not been paid, it is, however, certainly a matter which this Court would bear in mind in deciding whether discretion should be exercised or not. In the facts and circumstances of the present case, I see no reason to exercise discretion under Article 226 of the Constitution of India and adjudicate the writ petition on merits where the petitioner employer has not only failed to comply with the statutory mandate of Section 17-B of the Industrial Disputes Act, but has also failed to comply with the interim order of this Court in directing payment of wages last drawn of Rs.300/- p.m. The very fact that, despite an application being filed by the workman before the Labour Court, in M.P.No.1 of 2007, seeking payment of 17-B wages from April, 2000 to December, 2006, the petitioner- employer herein has taken the plea of pendency of writ proceedings before this Court to oppose the claim of the 2nd respondent workman for payment of this amount, is a sad reflection of their desperate effort to deny the 2nd respondent workman the meager amount of Rs.300/- p.m. The submission of Sri G. Rama Gopal, learned counsel for the petitioner, that filing of M.P.No.1 of 2007 for payment of wages last drawn under Sec.17-B, seeking execution of the award, would itself show that he was gainfully employed, has merely to be noted to be rejected, more so, in the light of the specific denial in the counter affidavit before this Court and in the absence of the petitioner furnishing any evidence thereafter to show that the second respondent-workman was gainfully employed. Viewed from any angle, I see no reason to exercise discretion under Article 226 of the Constitution of India. The present case, where an employer has sought by all possible means to starve a workman and deny him the meager last drawn wages of Rs.300/- p.m, which they were statutorily mandated under Section 17-B, and legally obligated under the interim orders of this Court, would necessitate exemplary costs being imposed on them. The writ petition is dismissed with exemplary costs of Rs.7,500/-(Rupees seven thousand and five hundred only) which the petitioner herein shall pay to the second respondent-workman within one month from the date of receipt of a copy of this order. ____________________________ RAMESH RANGANATHAN, J Date:05.02.2008 Rns/asp [1] 1996(4) ALD 901 [2] 1987(2) LLJ 210 [3] (1994) 2 SCC 481 [4] (2002) 1 SCC 100 [5] AIR 1955 S.C.425 [6] AIR 1987 SC 2235 [7] AIR 1989 SC 1972