Ravi R. Tripathi, J.
1. On 1st October, 2004, this Court issued Rule, returnable on 20th October, 2004 and in the meantime, directed the Office to pay the amount of Rs.65,400=00, deposited by the opponent, to the learned Advocate appearing for the applicant by an account payee cheque in the name of the applicant, Jayantilal Sanubhai Tailor, on or before 6th October, 2004. It is reported that this order directing the Office to pay the amount is challenged by filing a Letters Patent Appeal and stay is granted.
2. Mr. R.P. Mankad, learned Advocate appearing for the applicant, submitted that he is pressing for the relief, prayed for in Clause 6(B), which reads as under: 'Be please to direct the respondent herein to comply with the provisions of Section 17-B of the ID Act from the date of Award (16-4-2003) and make the payment of last drawn wages to the applicant herein during the pendency of the Special Civil Application No.15081 of 2003.'
Mr.Mankad further submitted that the Special Civil Application is already admitted by Order dated 17th October, 2003 and pending the petition, ad interim relief is granted in terms of paragraph-12(B), which reads as under:
'Pending admission and final hearing of the petition, operation and implementation of the impugned award dated 16/4/2003 passed by the Labour Court, Bharuch in Ref. (LCB) No.288 of 1994 (new number is 565 of 2001) may kindly be stayed.'
By the impugned Award dated 16th April, 2003, the learned Judge of the Labour Court has ordered reinstatement of the applicant on his original post with continuity of service, with 50% of back wages along with costs of Rs.1,000=00.
3. Mr. R.P. Mankad, learned Advocate appearing for the applicant, submitted that this is an award against the opponent-Company and there being an order of reinstatement, which is stayed by this Court, provisions of Section-17-B of the Industrial Disputes Act, 1947 ('the Act' for short) are applicable and the applicant-workman is entitled for the benefits accruing thereunder and, therefore, appropriate orders be passed in this regard.
4. Mr. Hasmukh Thakker, learned Advocate appearing for the opponent, original petitioner, submitted that it is the case of the petitioner-Company that it is a `transferree company' and that the services of the applicant-workman were terminated by the `transferor company' and, therefore, when the matter is subjudice before this Court, the opponent-Company be not directed to pay the benefits accruing under Section-17-B of the Act. Mr. Thakker submitted that besides this, the manufacturing activities of the opponent-Company have also come to a halt and taking into consideration that aspect also, the order for making payment under Section-17-B be not passed. Mr. Thakker relied upon Order dated 19th August, 2003 of the Division Bench of this Court (Coram: R.K. Abichandani & K.M. Mehta, JJ.) in the matter of Akbarkhan M. Pathan v. General Manager in Civil Application No.5486 of 2003 in Letters Patent Appeal No.933 of 1999, wherein the Division Bench has observed in paragraph-5 as under:
'5. In our opinion, in the present case, in view of the Undertaking having been declared sick and thereafter having been closed down, there is no scope for making any order under Section 17-B of the Act. The application is, therefore, rejected, without prejudice to the applicant's other rights and remedies in respect of their dues.'
5. In the considered opinion of this Court, none of the submissions made by the learned Advocate for the opponent, original petitioner-Company, can be the basis for not passing an order for complying Section-17-B of the Act. The underlying concept of Section-17-B is to provide subsistence allowance to a workman, who has the order of reinstatement in his favour, and against that order (award), an appeal is filed before the higher forum, in which such order is stayed. From the language of Section-17-B, it is very clear that the aforesaid two grounds cannot be the basis for denying the reliefs under Section-17-B. For the ready reference, Section-17-B is reproduced here under:
'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 any 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 for such workman had been filed to that effect in such Court:'
The only ground on which the High Court or the Supreme Court can deny the passing of an order for payment of benefits accrued under Section-17-B is that, if the High Court or the Supreme Court is satisfied to the fact that such a workman is employed and is receiving adequate remuneration during any such period or part thereof.
6. So far as the order of the Division Bench of this Court in the case of Akbarkhan M. Pathan (supra) is concerned, what weighed with the Division Bench is mentioned and that is, `the undertaking is declared sick and thereafter, it is closed down'. In the opinion of this Court, the fact of the undertaking being declared sick weighed with the Division Bench, hence, the said decision will not be of any help to the opponent-Company herein.
7. In view of the aforesaid discussion, the opponent, original petitioner, is directed to pay the benefits accrued under Section-17-B of the Act from the date of the filing of the affidavit, a copy of which is produced at page-6 of the Civil Application. It is further directed that the opponent-original petitioner shall pay the benefits accrued under Section-17-B of the Act for the month of October-2004, payable in November-2004 as early as possible i.e. on or before 10th November, 2004. Thereafter, it shall continue to pay the same regularly on or before tenth of every month. So far as the arrears from the month of February-2004 to September-2004 are concerned, the same be paid on or before 31st December, 2004.