K.M.Ganguly J. - (1.) This is an application u/s. 17B of the Industrial Disputes Act. The writ petitioner moved the connected writ petition against an order which is Annexure I to the writ petition on an application made by the writ petitioner before the learned Seventh Industrial Tribunal u/s 33(2) (b) of the Industrial Disputes Act for according approval to an order of dismissal passed by the writ petitioner company. The learned Tribunal did not accord any such approval to the order of dismissal and the application u/s. 33(2)(b) was dismissed on contest. Against the aforesaid order of the learned Tribunal the Company moved this court u/Art. 226 of the Constitution of India and obtained a Civil Order. There were certain other interlocutory proceedings regarding payment of money with which we are not concerned in the instant application u/s. 17B. An affidavit-in-opposition has been filed by the writ petitioner to the application u/s. 17B.
(2.) Section 17B, of the Industrial Disputes Act, 1947 reads as 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 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 work- man 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." The proviso to the said section is not material for us.
(3.) There seems to be three criteria to be fulfilled before an application u/s.17B may be entertained by the Court. The first is that there must be an award, secondly the award must be one of reinstatement and thirdly that the workman must satisfy this Court that he was not otherwise gainfully employed in any other establishment during the material period. In the application no such averment of not being gainfully employed elsewhere appears. In matters u/s.33(2)(b) there is neither any award nor any order of reinstatement is involved to it by the Tribunal. If there is no dismissal, the question of reinstatement does not arise. The order of dismissal itself does not take effect until approval is accorded. As such section 17B, in my opinion, is not the appropriate remedy in such a case.;