* HIGH COURT OF DELHI : NEW DELHI
+ CM No.12017/2007 in WP (C) No. 15212 of 2006
% Decided on: 19th August, 2010
AMERICAN INSTITUTE OF INDIAN STUDIES
........Petitioner
Through: Mr. Jitesh Pandey, Adv. with
Mr. Dipesh Sharma, Adv.
Versus
RAJESH KAUSHIK ....Respondent
Through: Mr. Sanjiv Kakra, Adv. with
Mr. Abhinav Malhotra, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
MANMOHAN SINGH, J.
1. This application has been filed by the respondent under Section 17-B of the Industrial Disputes Act, 1947 asserting that the petitioner has challenged an industrial award dated 18.02.2006 passed in favour of the respondent whereby the relief of reinstatement into service with continuity and 50% back wages was granted to the workman. It is contended that the workman is not employed in any establishment after the illegal termination of his services and due to his unemployment it is difficult for him to support his family. The last drawn salary of the petitioner was Rs.5500/- per month.
2. This application has been opposed by the petitioner. It is submitted by the petitioner that the applicant is working under one CM No.12017/2007 in W.P.(C) No. 15212/2006 Page 1 of 4 of the subcontractors namely Shri Manoj Bharadwaj of the Company M/s A to Z. The said Shri Manoj Bharadwaj to whom work has been outsourced by M/s A to Z Company is entrusted with the work of cleaning and maintenance of various Metro Railway Stations, one of which Metro Station is at Najafgarh. It is submitted by the petitioner that the applicant is incharge of the maintenance and cleaning of Najafgarh Metro Station and is working with Shri Manoj Bharadwaj who also happens to be a close relative of the applicant. It is admitted fact by the petitioner that the monthly emoluments of the applicant were Rs.5500/-per month.
3. In rejoinder, the respondent has specifically denied the fact that he is working with Mr. Manoj Bhardwaj who is a close relative of the respondent. Rather it is stated in the rejoinder that the respondent is the sole bread earner in a family of five members consisting of the respondent, his wife, two daughters and one minor son and at present the respondent is neither gainfully employed nor has any other source of income for sustaining himself and his family.
4. It appears from the record that the petitioner has not placed any documentary evidence in order to support his contention raised during the course of arguments. Learned counsel for the petitioner also argued that the labour court did not have the requisite territorial jurisdiction to entertain the said industrial dispute. Learned counsel for the petitioner submitted that he has already filed an application under Order 6 Rule 17 CPC for amendment of the writ petition.
5. I have gone through the reply filed by the petitioner to the application under Section 17-B of the Industrial Disputes Act CM No.12017/2007 in W.P.(C) No. 15212/2006 Page 2 of 4 filed by the respondent. No such point has been raised in the reply. It is a matter of fact that the application for the amendment of the writ petition has been filed subsequent to the completion of the pleadings of the application under Section 17-B of the ID Act, 1947 filed by the respondent. Therefore, the oral submission of the petitioner in this regard cannot be considered while deciding the present application in the absence of any averment in the reply.
6. A reading of section 17-B of ID Act, 1947 shows that the workman is entitled to full wages last drawn by him inclusive of any maintenance allowances payable to him under any rule if the workman has not been employed in any establishment during the period of pendency against any award directing reinstatement of the workman in a High Court or the Supreme Court, provided that workman also files an affidavit to that effect. The applicant in his additional affidavit has declared that he is neither gainfully employed nor have any other source of income. It is also submitted by the applicant that he is not working with Shri Manoj Bharadwaj as alleged by the petitioner. It is, therefore obvious that the requirements of section 17-B of the ID Act, 1947 are fulfiled in this case.
7. This Court has reiterated in its numerous decisions the very well settled law laid down in Regional Authority, Dena Bank & Anr. Vs. Ghanshyam; AIR 2001 SC 2270 by the Apex Court while analyzing the statement of objects and reasons for inserting Section 17-B it held:
"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 case where the court is not inclined to stay such award in toto the workman has two options CM No.12017/2007 in W.P.(C) No. 15212/2006 Page 3 of 4 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 against the award till he is reinstated or proceedings are terminated in his favour, whichever is earlier."
8. In the light of the above, the application is allowed. The petitioner is directed to deposit the last drawn wages or the minimum wages whichever is higher from the date of award till the disposal of the writ petition. The respondent is also directed to give an undertaking with an advance copy to the learned counsel for the petitioner to the effect that in case the petitioner ultimately succeeds in the writ petition, the respondent shall refund/repay the difference of amount of last drawn wages and the minimum wages. The undertaking be filed by the respondent within six weeks from the date of this order. The arrear of the wages shall be released to the respondent on furnishing an undertaking. With these directions, the application is disposed of. Dasti. W.P.(C) 15212/2006 List on 23rd September, 2010, the date already fixed.
MANMOHAN SINGH, J.
AUGUST 19, 2010 Jk/dp CM No.12017/2007 in W.P.(C) No. 15212/2006 Page 4 of 4