(Prayer: W.P. No.26176 of 2019: This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the impugned Award, dated 21.3.2019 passed by the Hon’ble 3rd Additional Labour Court, Bengaluru in I.D. No.17 of 2018 at Annexure-L to this Writ Petition in so far as the Petitioner is concerned and hold that the Petitioner is ‘not’ an ‘Industry’ as defined under Section 2-J of the ID ACT, 1947, and hold that the Petitioner herein is not a proper and necessary party and that no Employer-Employee relationship exists between the Petitioner and the R1 and therefore, question of complying with the impugned Award Annexure-L, dated 21.3.2019 does not arise and etc.

W.P. No.26178 of 2019: This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the impugned Award, dated 23.3.2019 passed by the Hon’ble 3rd Additional Labour Court, Bengaluru in I.D. No.19 of 2018 at Annexure-L to this Writ Petition in so far as the Petitioner is concerned and hold that the Petitioner is ‘not’ an ‘Industry’ as defined under Section 2-J of the ID ACT, 1947, and hold that the Petitioner herein is not a proper and necessary party and that no Employer-Employee relationship exists between the Petitioner and the R1 and therefore, question of complying with the impugned Award Annexure-L, dated 23.3.2019 does not aries and etc.

W.P. No. 26177 of 2019: This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the impugned Award, dated 22.3.2019 passed by the Hon’ble 3rd Additional Labour Court, Bengaluru in I.D. No.18 of 2018 passed by the Hon’ble 3rd Additional Labour Court, Bengaluru in I.D. No.19 of 2018 at Annexure-L to this Writ Petition in so far as the Petitioner is concerned and hold that the Petitioner is ‘not’ an ‘Industry’ as defined under Section 2-J of the ID ACT, 1947, and hold that the Petitioner herein is not a proper and necessary party and that no Employer-Employee relationship exists between the Petitioner and the R1 and therefore, question of complying with the impugned Award Annexure-L, dated 22.3.2019 does not aries and etc.)

(Through Video Conferencing)

1. In all these Petitions, I.A. No.1/2019 are filed claiming Wages under Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the said Act' for short).

Heard the learned Counsel Sri. K.R. Anand, appearing for the Petitioner-Board and Sri. S.B. Mukkannappa, learned Counsel appearing for the Respondent No.1-Workmen.

2. Brief facts of the case leading to filing of the present Petitions are that the Petitioner-Karnataka State Building and Other Construction Workers' Welfare Board (hereinafter referred to as 'the Board' for short), which is a wing of the Labour Department of the State Government, in terms of Section 18 of the said Act, entered into a contract with 2nd and 3rd Respondent, private man power agency for supply of personnel to work in the Board in various capacities for a period of one year initially, which was extended from time to time. The Workmen herein were appointed through 2nd & 3rd Respondent to work in the Petitioner-Board in the years 2007 to 2009 in all these cases.

3. On termination of their services, which came about by an order being passed by 2nd Respondent-man power agency through which they were appointed, approached the Labour Court invoking Section 10(4-A) of the Industrial Disputes (Karnataka Amendment) Act, 1987 in I.D. No.17/2018. The Labour Court framing the issues answered the same holding that the Order of Termination passed by 2nd Respondent-private man power agency to be bad in law and set it aside. Consequently, directed the Petitioner and 2nd Respondent to be jointly and severally liable to reinstatement and payment of full Back Wages from the date of Termination till the date of reinstatement. The Petitioner-Board has called in question the award passed by the Labour Court directing reinstatement and Back Wages, before this Court in all these cases and there is an Interim Order granted staying those awards.

4. During the pendency of the Writ Petition, the Workmen have filed Applications I.A. No.1/2019 seeking wages under Section 17-B of the said Act as the provision mandates that during the pendency of the proceedings before this Court against an award of reinstatement, Workmen would be entitled to Wages that he drew from the date of publication of the award. The applications so filed by the Workmen in these cases are resisted by the Petitioner-Board by filing objections.

5. Learned Counsel appearing for the Petitioner-Board would submit that the award being erroneous in law inasmuch as there is no Employer-Employee relationship between the Workmen and the Petitioner as the Workmen were appointed through the agency i.e., Respondent Nos.2 & 3 and were terminated by the agency and not by or at the instance of the Board. The very issue of Employer-Employee relationship being in doubt on an error committed by the Labour Court, the Board is not obligated to comply the payment of Wages under Section 17-B of the said Act in the peculiar facts. Learned Counsel for the Petitioner has relied upon several Judgments, which are as under:

(1) National Campaign Committee for Central Legislation on Construction Labour [NCCCL] v. Union of India and others, 2018 (2) LLN 1 (SC): 2018 (3) LLJ 13 (SC);

(2) State of Gujarat and others v. Pratamsingh Narsinh Parmar, 2001 (2) LLN 41 (SC): 2001 (1) LLJ 1118 (SC);

(3) Prakash and others v. Superintending Engineer [ELEL] and others, 2001 (89) FLR 458;

(4) State of Rajasthan v. Ganeshi Lal, 2008 (1) 459 (SC): 2008 (1) LLJ 670;

(5) Elpro International Ltd. v. K.B. Joshi and others, 1987 (2) LLJ 210 (DB);

(6) Godrej and Boyce Manufacturing Co. Ltd. Madras v. Principal Labour Court, Madras and another, 1992 (1) LLN 140 (SC): 1992 (2) LLJ 201;

(7) Vysya Bank Ltd. v. General Secretary, All India Vysya Bank Employees' Union and others, 1996 (1) LLJ 420 (DB);

(8) Employer, Management of Central Mine Planning & Design Institute Ltd. v. Union of India and others, 2001 (2) LLN 122 (SC): 2001 (2) LLJ 910; and

(9) Carrit Moran and Co. (P) Ltd. v. State of West Bengal and others, 2009 (4) LLN 562 (SC): 2010 LLR 126 (DB).

6. On the other hand, learned Counsel Sri. S.B. Mukkannappa, appearing for the Workmen would contend that there is no option for the employer but to pay Wages under Section 17-B of the said Act in the light of the reinstatement Order passed by the Labour Court. The award whether is right or wrong is subject to the final disposal of the case. In the interregnum, the Workmen cannot be denied the benefit of the mandate of the Act and would place reliance upon several Judgments to that effect. They are as follows:

(1) A.J. Prakash Murthy v. Karnataka State Agro Corn Products Ltd., W.A. No.2536 of 2005 (L-RES), dated 20.7.2005;

(2) R.H. Hanumantha v. BMTC, W.A. No.3123/2014 (L-TER);

(3) Workmen, rep. by Hindustan V.O. Corporation Ltd. v. Hindustan Vegetable Oils Corporation Ltd. and others, 2000 (3) LLN 1075 (SC): 2000 (9) SCC 534;

(4) Employer, Management of Central Mine Planning and Design Institute Ltd. v. Union of India and another, 2001 (2) LLN 122 (SC): 2001 (2) SCC 588;

(5) Neelaiah G.M. v. Karnataka State Tourism Development Corporation and another, 1999 (1) LLJ 146;

(6) Secretary, Department of Canteen Management v. Krishna Kumar Saxena, 2001 (1) LLJ 896;

(7) Visveswaraya Iron & Steel Co. Ltd. v. M. Chandrappa, 1994 (1) LLN 165 (Kar): 1993 (3) Laws 9 (Kar);

(8) Uttaranchal Forest Development Corpn. and another v. K.B. Singh and others, 2005 (11) SCC 449; and

(9) Workmen Employed under IT Shramik Sena v. Raptakos Brett and Co. Ltd., 2008 (3) LLN 63 (SC): 2008 (3) SCC 499.

7. I have given my anxious consideration to the rival submissions of learned Counsel appearing for the parties and the issue that arises for my consideration in this application is:

“Whether in the facts and circumstances of the case, the application under Section 17-B of the said Act will have to be allowed by directing the Wages to be paid to the Workmen or otherwise' ?

8. It is germane to notice Section 17-B of the said Act, which is extracted hereunder for the purpose of quick reference:

"17-B. 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 be.“

9. Section 17-B of the said Act emphasizes on payment of Wages to any Workmen where the Employer prefers any proceedings against such award in the High Court or the Supreme Court, the Employer shall be liable to pay Wages under Section 17-B of the Act. Interpreting this Section, as to whether it would be obligatory on the part of an Employer to pay Wages under Section 17-B of the said Act notwithstanding and in ignorance of the fact situation is dealt with by plethora of Judgments rendered by various judicial fora.

10. The Division Bench of the High Court of Calcutta in the case of Carrit Moran and Co. (P) Ltd. v. State of West Bengal and others, 2009 (4) LLN 562 (SC): 2010 LLR 126, has held in Paragraph Nos.12 & 13 as under:

”12. Learned Advocate appearing for the Workman submits that although there is no Written Order of Termination of service and although there is no paper to show that such Salary was drawn by the Workman from the Company, even then he is entitled to such relief under Section 17-B of the Industrial Disputes Act, 1947, since he worked in the Company as a Driver.

13. We are unable to accept such contention as we have already said that there is no such paper to show that there was any relationship between Employer and Employee in the present case. In our considered view, the order of the learned Single Judge of this Court, dated May 3, 2007, should be set aside. Accordingly, we allow the Appeal and set aside the impugned Order passed by the learned Single Judge of this Court without any order as to costs.“ (Emphasis supplied)

11. The Division Bench of the High Court of Jharkhand in the case of Employer, Management of Central Mine Planning and Design Institute Ltd. v. Union of India and others, 2001 (2) LLJ 910, has held in Paragraph Nos.9 & 10 as follows:

”9. We are in respectful agreement with the view expressed and the ratio laid down by the Full Bench of Madras High Court in Godrej and Boyce (supra). Similarly in Dena Bank, (supra) their Lordships of the Supreme Court asserted once again the fact that basic power still originates from Article 226 of the Constitution. On a consideration of all the relevant aspects of the matter, therefore, our view is that Section 17-B of the Act does not take away the unfettered power and plenary jurisdiction of the High Court conferred upon it under Article 226 of the Constitution and that Section 17-B of the Act has to be read with Article 226 of the Constitution. We are of the view, therefore, that whenever a Writ Petitioner challenges an Award passed by a Labour Court or an Industrial Tribunal and raises contentions concerning the very basic jurisdictional aspects of the Award or brings to the notice of the Court some patent error of law apparent on the face of the award and thus satisfies the Court, prima facie, with reference to the merits of the aforesaid contentions (duly supported by the material on record) that the Labour Court or the Industrial Tribunal erred in passing the Award (award can thus be termed as a perversity or nullity in the eye-of law) merely because Section 17-B is there on the Statute Book, there is no Mandatory requirement that even in such cases where the High Court, prima facie, is satisfied about such illegality in the Award, it must pass an order directing the Writ Petitioner to pay wages last drawn to the Respondent during the pendency of the proceedings in the High Court. We have thus no hesitation in saying that there can be cases where despite Section 17-B being there on the Statute Book the High Court can decline to grant relief paying wages last drawn to a person. At the same time we must hasten to add that cases where the High Court may decline to pass an order under Section 17-B of the Act, have to be the rarest of the rare. Granting relief under Section 17-B of the Act and passing order directing payment of Wages last drawn, is generally the rule; refusing to grant relief under Section 17-B an exception, as it would be in the rarest of the rare cases. The cases may be only those where an award is challenged on the basic issue of jurisdictional error or errors apparent on the face of the Award. One instance of jurisdictional error can be about the absence of the relationship of Workman and the Employer between the parties. If the Writ Petitioner challenging the Award before the High Court genuinely, bone fide, seriously and gravely raises the question of absence of this relationship and the High Court is satisfied, prima facie in full measure with reference to such contentions of the Writ Petitioner, which have to be duly supported by the material on record and the High Court comes to a prima facie conclusion that indeed very serious and grave doubts do exist with respect to the question of such relationship between the parties, it can refuse to pass an order under Section 17-B of the Act, thus declining to issue a direction to the Writ Petitioner to pay Wages last drawn to the Respondent. Since the satisfaction of the High Court on this score has to be prima facie very clear, it goes without saying that while declining to grant relief under Section 17-B of the Act, we are required to act with utmost circumspection.

10. A perusal of the Judgment of the learned Single Judge under challenge in this Appeal as noticed in the beginning, does suggest that the learned Single Judge did not consider the question as raised by the Appellant that between itself and the Respondent-Workman there was no relationship of the Employer and Workman and on that score the Award of the Tribunal was bad in the eyes of law. In this Appeal we are confronted in this consideration process on a pure question of law and hence, we have not at all gone into the merits of the Appellant's contention as raised before the learned Single Judge. We are, therefore, not expressing any views on the merits of such contention. The issue is left open to be decided by the learned Single Judge.“(Emphasis supplied)

12. The Division Bench of this Court in the case of Vysya Bank Ltd. v. General Secretary, All India Vysya Bank Employees' Union and others, 1996 (1) LLJ 420, has held in Paragraph Nos.4, 5 & 6 as follows:

”4. In Elpro International, Ltd. v. K.B. Joshi, 1987 (2) LLJ 210, a Division Bench of the Bombay High Court has held that Section 17-B of the Act does not in any way impinge upon the extraordinary powers conferred on the High Court under Articles 36 & 226 of the Constitution, much less restricting the said powers. It is held, at p. 215 inter alia that-

“Section nowhere lays down that in extreme cases where it is demonstrated that the Award passed is either without jurisdiction or is otherwise a nullity, or grossly erroneous or perverse, the High Court or the Supreme Court is debarred from exercising its powers under Articles 226 & 136 of the Constitution.”

Similar view is taken by a Full Bench of the Madras High Court in Godrej and Boyce Manufacturing Co. Ltd. v. Principal Labour Court, Madras and another, 1992 (1) LLN 140 (SC): 1992 (2) LLJ 201. The Court has observed thus, [at page 209]:

“....Courts cannot afford to be manipulated and allow the Management/ Employer to use the Interim Order as a weapon to avoid such a statutory liability. Some error of fact or even some error of law alone will not thus be enough to issue any Interim Order. If, however, the error is such that it goes to the root of the jurisdiction of the Tribunal and the Court has got sufficient materials to ignore the effect of Section 17-B of the Act the Court may decline to order payment of the Wages pendente lite...”

Referring to the Bombay High Court case of Elpro International, Ltd., [p. 209] (vide supra), it is observed that:

“the words 'or grossly erroneous or perverse' in that Judgment and in the earlier Judgment of the Division Bench in Chitram and Co., 1991 (1) MLJ 155, have to be understood only to mean illustratively when the Court may treat the award a nullity.”

Having observed thus, the Court has held that Section 17-B of the Act does not in any manner impair or interfere with the powers of the High Court under Article 226 of the Constitution of India and the Court still possesses the discretion to go into the question and award a lesser amount than the exact quantum of last drawn Wages.

5. In G.M. Neelaiah v. Karnataka State Tourism Development Corporation, Ltd. and another, W.A. No.235 of 1995, this Court having cited the case of Elpro International, Ltd. (vide supra), with approval has, inter alia, affirmed that it may be open for the Court to deny the benefit completely if the conditions set out in the Section are not satisfied. But once the conditions set out in the Section are satisfied, no rider can be added to restrict the benefit under Section 17-B of the Act.“(Emphasis supplied)

13. It is also germane to notice the Full Bench decision of the High Court of Madras in the case of Godrej and Boyce Manufacturing Co. Ltd. Madras v. Principal Labour Court, Madras and another, concerning the issue of payment of 17-B Wages 1992 (1) LLN 140 (SC): 1992 (2) LLJ 201, wherein it has been held in Paragraph Nos.11, 12 & 13 as under:

”11. Consensus of judicial opinion is that there is no vice in the rule enshrined in Section 17-B of the Act in as much as it is not unconstitutional and although it does not infringe or makes inroad in any manner in to this Court's power under Article 226 of the Constitution of India, it creates a liability upon the Employer and conversely, a right in the Workman to pay and receive Wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule during the period of pendency of the proceedings in the Court with the exception that if during this period or any part thereof, he was gainfully employed elsewhere, he would not be entitled to such Wages for the period of gainful employment. In Chitram and Co. Ltd's case (supra) it has been rightly stated by a Division Bench of this Court that Section 17-B cannot be construed as in any manner taking away or fettering the plenary powers of the High Court under Articles 226 & 227 of the Constitution of India, to make appropriate orders taking note of the relevant facts. That appropriate order will invariably be to the aid of the Workman for payment of full Wages pending proceedings in the Court unless the Award is demonstrated to be a nullity or made without jurisdiction. The unfettered power of the Court under Article 226 of the Constitution cannot be used to destroy the statutory right granted to a Workmen under Section 17-B of the Act, i.e., a right pendente lite which has been recognised, as we have seen, to remove the hardship and to protect the interests of the Workman. The Workman cannot be left uncared to suffer a total deprivation of Wages merely because the Employer has chosen and accordingly initiated a proceeding under Articles 226 & 227 of the Constitution of India. This beneficial legislation that operates within a limited sphere is subject to conditions laid down by the Section itself and that the Section nowhere lays down that in extreme cases where it is demonstrated that the Award passed is either without jurisdiction or is otherwise a nullity, the High Court or the Supreme Court is debarred from exercising its powers under Articles 226 & 136 of the Constitution.

12. Before we conclude and answer the reference, we feel constrained to observe that any challenge to the award on the ground that it is without jurisdiction or is otherwise a nullity alone will not be sufficient to suspend the operation of Section 17-B of the Act. The final adjudication in a case where the award is without jurisdiction or is otherwise a nullity shall ordinarily meet the ends of justice. The Workman, who shall be waiting for the implementation of the award during the pendency of the proceedings, however, shall receive only the Wages at the rate last paid for the period of the pendency of the proceeding in the Court. It is not a burden of any serious consequence upon the Employer, but will be a deprivation of a sort which may cause havoc to the Workman and his family. If we proceed on the footing that the Court's power to make the final order includes the power to make an Interim Order, then we may say the power will extend to suspending the liability of the Employer under S. 17B of the Act and accordingly the right of the Workman to receive Wages pendente lite. But, this will be possible in the rarest of the rare cases. Otherwise, it will defeat the very purpose for which this Section has been introduced in the Act. There shall be any number of Employers/Managements, who shall successfully contrive Petitions and proceedings challenging the award on some such grounds as the award being without jurisdiction or a nullity. Courts cannot afford to be manipulated and allow the Management/Employer to use the Interim Order as a weapon to avoid such a statutory liability. Some error of fact or even some error of law alone will not thus be enough to issue any Interim Order. If however, the error is such that goes to the root of the jurisdiction of the Tribunal and the Court has got sufficient materials to ignore the effect of Section 17-B of the Act, the Court may decline to order payment of Wages pendente lite. The Bombay High Court in the case of Elpro International Ltd. v. K.B. Joshi and others, (supra) has indicated this caution in the words, Para 8 (p.215) that:

“....extreme cases where it is demonstrated that the award passed is either without jurisdiction or is otherwise a nullity ...”

The Court can decline to make an order in terms of Section 17-B of the Act. The words "or grossly erroneous or perverse" in that Judgment and in the Judgment of the Division Bench of this Court in Chitram and Co. (supra) have to be understood only to mean illustratively when the Court may treat the award a nullity.

13. We thus answer the Reference as follows:

(1) Section 17-B of the Act does not in any manner impair or interfere with the powers of the High Court under Articles 226 of the Constitution of India and the Court still possesses the discretion to go into the question and Award a lesser amount than the exact quantum of last drawn Wages. The Court shall, however, honour the statute and if the three conditions, namely-

(1) the Labour Court directed reinstatement of the Workman

(2) the Employer preferred proceedings against the award of reinstatement in the Court, and

(3) the Workman had not been employed in any establishment during the pendency of the proceedings- are satisfied, the Court shall exercise its power under Article 226 of the Constitution of India to order that the Employer would pay to the Workman during the period of pendency of the proceedings in the Court, full Wages last drawn by him inclusive of any maintenance allowance admissible to him under any Rule. This, however, will be subject to the Workman filing an affidavit that he had not been gainfully employed during such period. In case he is found gainfully employed in any other establishment, the Court shall accordingly order for no Wages to be paid for such period of gainful employment or less wages to be paid, depending upon the nature of the gainful employment.

(2) The Court may make a different order and depart from the above rule only in extreme cases where it is demonstrated that the award is passed either without jurisdiction or is otherwise a nullity. The Court, however, shall be slow and cautious in accepting such allegations of the Employer and except in the rarest of the rare cases, it shall implement the law and grant to the Workman Wages at the rate last drawn by him inclusive of any maintenance allowance admissible to him under any rule except for the period during which he is found to have been gainfully employed elsewhere. (Emphasis supplied)

14. Long before the afore-extracted Judgments, the Division Bench of Bombay High Court in the case of Elpro International Ltd. v. K.B. Joshi and others, 1987 (2) LLJ 210, has held in Paragraph Nos.8, 9 & 10 as follows:

"8. So far as the challenge to Section 17-B of the Act based on the ground that it either interferes or encroaches upon the Constitutional powers of the High Courts or the Supreme Court is concerned, from the bare reading of this Section it is clear that it does not even remotely refer to the powers of the Courts under Articles 136 or 226, much less of restricting the said powers. This Section only guarantees to the Workman the payment of wages by the Employer during the pendency of the proceedings before the High Court or the Supreme Court, and that too subject to the conditions laid down by the said Section and the Proviso, irrespective of the result of the proceedings. It also imposes an obligation upon the Workmen concerned to file an Affidavit before the Court stating that he has not been employed in any establishment during the pendency of the proceedings. It also absolves the Employer of his obligation to pay such Wages, if he is able to prove to the satisfaction of the Court that the Workman had been otherwise employed and had been receiving adequate remuneration. As already observed, Section 17-B operates within a limited sphere. It's operation is subject to conditions laid down by the Section itself. Section nowhere lays down that in extreme cases where it is demonstrated that the award passed is either without jurisdiction or is otherwise nullity, or grossly erroneous or perverse, the High Court or the Supreme Court is debarred from exercising its powers under Articles 226 & 136 of the Constitution. Therefore, it is not possible for us to accept the contention that Section 17-B is void as it encroaches upon or overrides the powers of the High Court or Supreme Court of India under Articles 226 & 136 of the Constitution of India. The powers of the High Courts or the Supreme Court under Articles 226 & 136 of the Constitution are paramount and Section 17-B does not interfere nor restrict the said Constitutional powers.

9. In the view which we taken it is not necessary to make a detailed reference to the cases cited at the Bar. This is more so in view of the decision of the Supreme Court in Bharat Singh case (supra).

10. So far as the merits of the controversy is concerned it is contended by Shri Shrikrishna that the finding recorded by the Tribunal that the case of the Respondent-Workman is covered by Section 25-B(2) of the Act is wholly perverse. According to the learned Counsel, Respondent-Workman was not in continuous service as she had not worked for 240 days within a period of one year. In this context she has drawn our attention to the records produced before the Tribunal for inspection of the representative of the Workman and the inspection report submitted by the said representative. In the said inspection report it is stated that the representative could not see the muster-roll of December 1977 as it was not produced for inspection. It was also noted that during the period from 1st January, 1978 to 2nd February 1978 the Respondent Smt. Joshi has not been given work by the Company even as a Casual Worker but during the period from 3rd February 1978 to 22nd February 1978 she was given job work. Therefore, according to Shri Shrikrishna the learned Presiding Officer committed an error in holding that she was also working in the month of January 1978 and if those working days are added, then she has worked for more than 240 days from 21st January 1977 to 22nd February 1978. It is not possible for us to accept this contention for more than one reason. The Witnesses of the Company has admitted in this deposition that the Muster Rolls from 1st January 1978 to 28th February 1978 are not available. Even during the course of arguments before us we had given liberty to the Petitioner-Company Employer to produce the said muster-rolls before us. However, we are informed that even today the said Muster Rolls are not available. In her evidence the Respondent-Employee has stated that she was in continuous service from 1978 till her dismissal. It is her case that on 28th February 1978 she was informed by the Employer not to join the work from 3rd March 1978. Obviously it was an oral order. Though certain questions were asked in her cross-examination a specific question was not asked to her that in January 1978 she was not working at all. Therefore her statement that she was in continuous service from 1976 till dismissal practically goes unchallenged. The inspection notes prepared by her representative cannot demolish her evidence, because in the inspection notes it is specifically stated that the muster-roll for the said period was not produced for inspection. If this is so then it cannot be said that the finding of fact recorded by the Labour Court is perverse so as to warrant an interference in the extra ordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India. Once this finding is accepted then it will have to be held that the termination of the services of the Respondent-Workman was illegal, since the statutory provisions of Section 25-F of the Industrial Disputes Act, 1947 ware not followed. This will make the termination ab-initio void." (Emphasis supplied)

15. On an analysis of the afore-extracted plethora of Judgments rendered by various High Courts, the unmistakable conclusion that will have to be drawn is payment of Wages under Section 17-B of the said Act to Employees where the Employer files a Writ Petition against an order of reinstatement would not be absolute.

16. Learned Counsel appearing for the Respondent places reliance on the Judgments of various High Courts wherein wages under Section 17-B of the Act is held to be axiomatic. The Division Bench of this Court in A.J. Prakash Murthy v. Karnataka State Agro Corn Products Ltd., W.A. No. 2536/2005 (L-RES), dated 20.7.2005, directed that Interlocutory Application for payment of Wages under Section 17-B of the said Act will have to be considered at the outset before considering the merits of the matter. The learned Division Bench holds in Paragraph No.2 as follows:

"2. By Award, dated October 30, 2003, the Labour Court, Bangalore, had directed the Management-Respondent to reinstate the Workman-Appellant by paying 50% Back Wages from 6.10.1998 till his actual reinstatement. This award was under challenge before the learned Single Judge and its operation had been stayed. During the pendency of the Writ Petition, the Appellant filed I.A. 1/2014 claiming last drawn Wages in terms of Section 17-B of the Act. Workman has also filed an Affidavit stating that he has remained unemployed ever since the date of the award. The learned single Judge has dismissed the application observing that the termination of the Workman appears to be in consonance with the provisions of Section 2(bb). Even if that be so, the Appellant-Workman is entitled to his last drawn Wages under Section 17-B. We, therefore, set aside the Order, dated 9.3.2005 passed by the learned Single Judge dismissing I.A. No.1/2004 and direct the Management to pay the last drawn Wages to the Appellant with effect from the date when the Writ Petition was filed in this Court till such time it is disposed of. Writ Appeal is allowed accordingly. There is no order as to costs. It will, however, be open to either of the parties to request the learned Single Judge to dispose of the Writ Petition at an early date."

17. He would also place reliance on the Judgment of the Hon'ble Apex Court in the case of Workmen rep. by Hindustan V.O. Corpn. Ltd. v. Hindustan Vegetable Oils Corporation Ltd. and others, 2000 (9) SCC 534, wherein the Hon'ble Apex Court has held that the Application under Section 17-B of the said Act for Wages cannot be taken up together with the main matter but will have to be decided at the outset. To the same is the Judgment in the case of Employer, Management of Central Mine Planning and Design Institute Ltd. v. Union of India and another, 2001 (2) SCC 588, where in elaboration, the Hon'ble Apex Court has considered the purport and the necessity of grant of 17-B Wages.

18. A Division Bench of this Court in the case of Neelaiah G.M. v. Karnataka State Tourism Development Corporation and another, 1999 (1) LLJ 146, has held in Paragraph No.8 as follows:

"8. We do not think the Division Bench of the Bombay High Court has taken a different view as contended by the learned Counsel for the Corporation. What all has been stated is that the power under Article 226 is kept intact and while considering the validity of Section 17-B of the Act the Bombay High Court has held that Section 17-B is merely regulatory and it does not interfere with or restrict the constitutional powers under Article 226 of the Constitution. In fact, the Bombay High Court has held that Section 17-B guarantees the workmen the payment of wages by the Employer during the pendency of the proceedings before the High Court or the Supreme Court subject to the conditions laid down by the said Section. The view we take is that no discretion is vested on this Court whenever an application is made under Section 17-B of the Act. It may be open to this Court to deny the benefit completely if the conditions set out in the Section are not satisfied. But once the conditions set out in the Section are satisfied we do not think any rider can be added under Section 17-B of the Act as has been done by the learned Single Judge. In view of that, that portion of the order of the learned Single Judge imposing condition with regard to reimbursement is set aside. The Appeal is allowed."

19. Much emphasis is placed on the Judgment of the Division Bench of the Rajasthan High Court in the case of Secretary, Department of Canteen Management v. Krishna Kumar Saxena, 2001 (1) LLJ 896, wherein at Paragraph Nos.14, 15 & 16, it has been held as follows:

"14. As regards merits of the impugned Order passed under Section 17-B of the Act, as enumerated above, in fact, Section 17-B gives a mandate to the Courts to award Wages if the conditions stipulated in this Section are satisfied, irrespective of the result of the proceedings pending before the High Court or the Supreme Court, even in extreme cases where if it is demonstrated that the Award passed is either without jurisdiction or is otherwise a nullity or grossly erroneous or perverse. Thus, though we refrain to examine the validity of the Award impugned in the Writ Petition wherein the impugned Order granting interim relief under Section 17-B is passed, but in our considered view merely because as has been contended by Mr. Rafiq that the Award impugned in the Writ Petition itself was not only without jurisdiction in view of the application of the statutory Canteen Rules and exclusion of operation of the Industrial Disputes Act under which the Award had been passed by the Labour Court, or the Industrial Award is otherwise a nullity or grossly erroneous or perverse, it cannot be held that the learned Single Judge is debarred from exercising its powers under Article 226 of the Constitution to invoke Section 17-B of the Act, we are fortified from the decision of the Apex Court in Bharat Singh's case (supra).

15. The provision in Section 17-B is, therefore, intended to be invoked in the course of the proceedings in the High Court and the High Court is entitled to make an order as contemplated by Section 17-B in the proceedings taken by the Employer challenging the order of the Labour Court in the High Court. It is thus clearly permissible for the High Court to make an order requiring the Employer to comply with the provisions of Section 17-B of the Act.

16. In the instant case, it is no doubt true rather an admitted position that under the impugned Award, dated 26.9.95 (Ann. 5) the Central Industrial Tribunal has directed reinstatement of the Employee (Respondent) and the Employer (present Appellant) has preferred Writ Petition proceeding against such an Award of reinstatement, wherein the order granting interim relief under Section 17-B has been passed. The Respondent-Employee has filed an applicatio

n duly supported by his Affidavit under Section 17-B of the Act stating therein as to his non-employment pending the proceedings. In this manner the Respondent-Employee has absolved his obligation as imposed in Section 17-B by satisfying the requisite conditions whereas the Appellant-Employer has failed to satisfy the Court that the Employee had been otherwise employed receiving adequate remuneration. Hence, in our view, the Respondent-Employee was clearly entitled to an order under Section 17-B of the Act and the Employer (Appellant) cannot be absolved of the obligation/liability to pay full Wages last drawn to the Employee during the pendency of Writ Petition. We do not find any illegality or perversity in the impugned Order under Section 17-B of the Act passed by the learned Single Judge. Since we have held supra that Section 17-B of the Act gives a mandate to the Courts to award Wages irrespective of the result of the proceedings before the High Court or the Supreme Court as to the validity of the impugned Award, we have refrained from examining the questions at controversy in the Writ Petition, itself, as to whether the Award is either without jurisdiction in view of applicability of the Canteen Rules and/or exclusion of operation of the Industrial Disputes Act, or is otherwise a nullity or grossly erroneous or perverse in view of the contentions advanced by Mr. Rafiq and, therefore, it is made clear that all such questions which go to the merits of validity of the Award, itself, assailed in the pending Writ Petition, are left open to be adjudicated upon by the learned Single Judge and that being so, we need not refer in details here the ratio of decisions cited by Mr. Mohd. Rafiq viz. (7) M. Venugopal v. Divisional Manager LIC, 1994 (2) SCC 323, (8) Sub-Divisional Inspector of Post Vaikam v. Theyyam Joseph, 1996 (8) SCC 489; and (9) Himanshu Kumar v. State of Bihar, 1997 (4) SCC 391." 20. Relying on the aforesaid Judgments, learned Counsel would submit that the Employer has no other option but to pay Wages under Section 17-B of the said Act, in the light of the award being challenged by the Employer. Section 17-B creates an obligation on the part of the Employer for payment of Wages when the Employer has filed a Writ Petition challenging the award of re-instatement in favour of the Workmen and an Interim Order of stay being granted. 21. The Judgments relied on by learned Counsel appearing for Workmen were all cases where 17-B Wages were directed to be paid as they were employed by the State or private Employers. The issue in the case on hand is whether the Workmen were Employees of the Board at all, which has to be decided at the time when the final disposal of the case would happen as on a cursory perusal of the award and the Order of Termination would disclose that the employment is made by 2nd Respondent-private Employer and the termination order by the private Employer. Therefore, the issue whether the Workmen are the Employees of the Board i.e., the Employer will have to be decided. Without a decision on whether the Workmen are the Employees of the Board as ostensibly the Workmen were employed through 2nd & 3rd Respondents-man power agencies, a direction to pay 17-B Wages, in my considered view in the facts of the case, cannot be granted. 22. As elaborated by the Judgments relied on by learned Counsel appearing for the Petitioner-Board, merely because 17-B is in the statute book and power under Article 226 of the Constitution to direct grant of 17-B Wages can be exercised, it need not be exercised. Therefore, I find no good ground to direct payment of Wages under Section 17-B of the said Act to these Workmen in the peculiar facts and circumstances of the case. However, it cannot be construed by any employer that payment of Wages under Section 17-B of the said Act, is always subject to objection of the kind that is noticed hereinabove, it is only subject to whether the Employee or Workmen is in gainful employment or otherwise. In the peculiar facts of the case and for the reasons aforesaid, the applications seeking Wages under Section 17-B of the Act is turned down. The applications are accordingly dismissed.