*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM No.11188/2009 in W.P.(C) No.5183/2003
% Date of decision: 17th February, 2010
DELHI TRANSPORT CORPORATION ..... Petitioner
Through: Mr. Uday N. Tiwary, Advocate.
Versus
PHOOL SINGH & ANR. .... Respondents
Through: Mr. Pradeep Kumar, Advocate for R-1.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The application of the respondent workman for appropriate directions to the petitioner DTC is for consideration.
2. This writ petition has been preferred by the petitioner DTC challenging the award dated 7th October, 2002 of the Labour Court, finding the removal of the respondent workman from service by the petitioner DTC to be illegal and directing reinstatement of the respondent workman with 75% back wages. The respondent workman at the time of termination of his employment was working as a conductor with the petitioner DTC.
3. This Court vide ex parte order dated 18th August, 2003, while issuing notice of the petition stayed the operation of the award aforesaid. The said order has been confirmed till the disposal of the writ petition and rule has been ordered in the writ petition. The respondent workman in or about the year 2003 applied under Section 17B of the I.D. Act. This court vide order dated 25th October, 2004 directed payment at the rate of last drawn wages, from the date of the award and till the pendency of the writ petition. In appeal preferred by the respondent workman being LPA 189/2008, vide order dated 7th November, 2008 the order under Section 17B of the Act was modified and CM No.11188/2009 in W.P.(C) No.5183/2003 Page 1 of 8 payment was directed to be made at the rate of minimum wages instead of last drawn wages and subject to the undertaking of the respondent workman to, in the event of the writ petition being allowed, refund the difference between the last drawn wages and the minimum wages.
4. The petitioner DTC vide communication dated 17th March, 2009 without prejudice to its rights and contentions allowed the respondent workman to resume duty in lieu of payment under payment under Section 17B of the I.D. Act during the pendency of the writ petition. Consequently, the respondent workman was also directed to make the security deposit and to report for duty along with a valid conductor‟s licence. It was further informed that in case the respondent workman did not report for duty as called, it will be assumed that he is not interested to join his duty.
5. It is the case of the respondent workman that being unemployed and suffering serious financial hardship, he got his conductor‟s lincence renewed and reported for duty on 24th March, 2009 and since then has been discharging his duties as a conductor. He however claims that he is being paid the minimum wages only as directed by the Division Bench in spite of the petitioner DTC availing his services. He applied to the DTC for payment to him of the same emoluments as being paid to others performing the same function but the said request has not been granted. He contends that the petitioner DTC is in the circumstances exploiting him; the petitioner DTC has on the one hand obtained an order from this Court of stay of operation of the award of the Labour Court directing his reinstatement and on the other hand is availing his services without paying him equally for doing the equal work being done by the other conductors employed with the petitioner DTC. In fact, it is his plea that he is also not being given the weekly off days and the gazetted holidays enjoyed by the others and is not being paid for working on holidays as the others are. This application has accordingly been filed seeking directions for payment as to the other conductors who were taken into employment on the date the applicant so joined the duties and for grant of weekly off and other holidays in accordance with rules.
6. The petitioner DTC has contested this application by filing a reply affidavit. It is contended that its decision to call the respondent workman to resume the duties in lieu of CM No.11188/2009 in W.P.(C) No.5183/2003 Page 2 of 8 payment under Section 17B of the Act cannot confer any right on the respondent workman to claim full wages or other benefits that accrue to a regular employee of the petitioner DTC and it would suffer grave prejudice if directed to pay full wages and other service benefits to the respondent workman whose services are being utilized purely in lieu of wages being paid under Section 17B of the Act. It is also pleaded that the petitioner DTC has large number of other such employees who have been similarly asked to report for duty in lieu of the payment under Section 17B and if the request of the respondent workman is granted it would have financial implications for the petitioner DTC.
7. The counsel for the respondent workman has, to the application itself annexed a copy of the order dated 15th December, 2005 of a single judge of this Court in W.P.(C)11280/2004 titled Navodaya Vidayalaya Samiti Vs. Bijender Kumar. In that case also the workman was instructed to report for duty during the pendency of the writ petition and it was made clear that during the period the respondent workman is assigned duties, he shall be paid wages as would be admissible to any other employee who is taken into employment on the date on which the workman joins the duties. There is a controversy between the counsels as to whether the order for payment of wages as aforesaid is a consent order or not, with the counsel for the petitioner contending that it is and the counsel for the respondent workman contending that it is not. I may however add that in the said order there is no discussion whatsoever as to whether in such a situation the respondent workman is liable to be paid wages in terms of Section 17B of the Act only or wages commensurate to the work being taken from him and there is absolutely no discussion whatsoever on the subject. Such an order which does not give any reasons and/or does not weigh the rival contentions on the merits of a particular proposition and/or which does not disclose that the said proposition had fallen for adjudication in that lis cannot be treated as a precedent.
8. No other judgment or order in this regard has been cited. The counsel for the respondent workman has referred to para 64 of the judgment in Food Craft Institute Vs. Rameshwar Sharma 134(2006) DLT 49 where it has been observed that by way of CM No.11188/2009 in W.P.(C) No.5183/2003 Page 3 of 8 interim relief in exercise of jurisdiction under Article 226 of the Constitution of India, the High Court can grant better benefits which may be more just and equitable on the facts of the case, than the relief contemplated by Section 17B of the Act; that de hors the powers of the court under Section 17B of the Act, the court can pass an order directing payment of an amount higher than the last drawn wages to the workman. Reliance in this regard was placed on Dena Bank Vs. Kiritikumar T. Patel (1999) 2 SCC 106 specifically on the observations in paragraph 22.
9. However the question which arises is, whether this Court in dealing with the application aforesaid is to apply the parameters of Section 17B of the Act. The Supreme Court in Dena Bank (supra) has held that the object of Section 17B is to relieve to a certain extent the hardship that is caused to the workman due to delay in implementation of the award during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court; the payment which is required to be made by the employer to the workman is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or the Supreme Court. Thus the payment under Section 17B of the Act at the rate of last drawn wages or as interpreted by the courts at the rate of minimum wages envisages a situation of the award of reinstatement of the workman and resultant payment of wages being held up and/or stayed by the High Court or the Supreme Court. The payment is for a situation when the workman is not working. This is further made clear from the proviso to Section 17B of the Act. Such payment under Section 17B is not payable if the workman is employed and has been receiving adequate remuneration during the period of stay of implementation of the award of reinstatement. It is significant that the proviso to Section 17B denies payment thereunder to the workman not merely when he is receiving remuneration for any employment but when remuneration for such other employment is "adequate". The payment under Section 17B is thus for a situation when a workman is sitting idle, at home. Whether it should remain the only payment when the Management/employer as in the present case, subject to final decision of the CM No.11188/2009 in W.P.(C) No.5183/2003 Page 4 of 8 challenge to the award of reinstatement seeks to take work from the workman and benefit therefrom.
10. The policy of the petitioner DTC to take work from such employees to whom payment under Section 17B of the Act has been directed is understandable. The DTC does not want to pay under 17B to its own loss. However, DTC cannot at the same time be permitted to, by so calling the workman for joining duties, cause loss to the workman. Experience of life shows that stepping out of the house is an expensive affair and involves incurring of expenditure not only for transportation to and fro the place of work but also on making oneself presentable to the outside world in terms of clothing, personal hygiene and social niceties. What the legislature compels the employer to pay to the employee by way of condition for challenging the award of reinstatement and thereby in the interregnum depriving the workman of the benefit under the award, cannot form a scale/measurement of payment which the employer is required to make for availing such services. A provision of law intended to be beneficial to the workman in a social welfare statute cannot be made to work against the workman. What was given to the workman by one hand cannot be permitted to be taken away by the other.
11. The counsel for the respondent workman in the present case has contended that out of the sum of Rs.4,382/- payable to him under Section 17B of the Act, a sum of Rs.526/- is being deducted towards contribution to Provident Fund leaving him with Rs.3,856/- per month only. I may also notice that the respondent workman was called upon to have his conductor‟s licence renewed and all of which also results in incurring expenditure. Stepping out of the house and engaging in regular work would also require the workman to stay in a good state of health and require him to spend on that also.
12. The petitioner has to make a choice. The employer, under Section 17B has no right to take work from the workman against the liability to make payment. If the employer wants to take work from the workman, the workman has to be paid for the same. Else the counsel for the respondent workman is right in contending that it would result in exploitation of the respondent workman.
CM No.11188/2009 in W.P.(C) No.5183/2003 Page 5 of 8
13. The question which arises is as to what should be the payment for such work. On first blush, it appeared that if the writ petition ultimately succeeds, if the workman is directed to be paid anything more, how will the employer recover the same. An undertaking from the employee for payment of difference between the last drawn wages and minimum wages has already been taken. There does not appear to be any mode from which such monies can be recovered from the workman. However on deeper analysis, it is found that the monies so paid for the work would not be refundable, whatsoever may be the fate of the writ petition. Thus the question of taking any security from the workman for refund also does not arise.
14. I have also considered whether a condition for payment of the said amounts with interest for late payment can be imposed on the employer. However in the event of the writ petition being dismissed the respondent workman would, in any case, ordinarily be entitled to the wages. There is no reason for deferring the payment for work done today till tomorrow.
15. The next question is as to what should be the payment for the work so taken from the workman. The proviso of Section 17B suggests that it has to be an adequate payment. There could be no better measure of „adequate‟ than what is being paid to the others for the same work. There appears to be no justification for paying any lesser amount to the workman for the same.
16. The argument of the counsel for the petitioner DTC that it cannot be directed to pay anything more than the amount under Section 17B of the Act is not found to be correct. The petitioner DTC of its own volition has changed the situation from that envisaged under Section 17B of the Act. The petitioner DTC is being directed to make payment for such changed circumstance of its own creation and not under the provisions of Section 17B of the Act.
17. I feel that the step that has been taken by the petitioner DTC ought to be encouraged. The services of the respondent workman were terminated by the petitioner DTC way back in 1993. Even if it were to be believed that the respondent workman was guilty of the charge then levied against him, over the years and with advancing age, the CM No.11188/2009 in W.P.(C) No.5183/2003 Page 6 of 8 possibility of the respondent workman improving and/or repenting his deeds cannot be ruled out. The arrangement whereby the employer engages the services of the workman during the pendency of the lis can rebuild the confidence between the parties and lead to an amicable solution to the lis, and is found to be advantageous to both the parties. While the employer has the benefit of service of an experienced workman, the employee/workman is relieved, at least temporarily, of the hardship caused by delays and is given another opportunity to prove himself with the employer. Even otherwise it defies reasoning as to why a workman should sit idle. The old adage of „An empty mind is a devil‟s workshop‟ also holds good. Such offers as given by the petitioner can also be used in some cases to call the bluff of the employee. Often it is found that though the employer is able to raise sufficient doubt in the mind of the court of the employee having alternate and more lucrative employment, such material does not pass the legal test of proof. The refusal by the workman to join the duties in such case, may in certain cases, be proof of his having other lucrative employment.
18. The principle of equal work for equal pay may also be invoked. The petitioner DTC is clearly taking the work of a conductor from the workman as is evident from its request to the workman to have renewed his conductor‟s licence. There is no justification for paying him lesser than the others doing the same work, even though the status of the respondent workman cannot be equated to that of a permanent employee. However the Supreme Court in State of Haryana Vs. Charanjit Singh AIR 2006 SC 161 has held that for application of said principle, the quality of work is the test. The status is immaterial. There can be no difference in the quality of work by the respondent and other conductors. Moreover, the respondent is seeking equality with those appointed on the date he so joined i.e. w.e.f. 24th March, 2009 and not of those with seniority as of the respondent, if the award were to be implemented.
19. The application, therefore, succeeds. It is held that the petitioner, if takes the work from the respondent workman is liable to pay therefor to the workman equal wages/emoluments as being paid to the others. The respondent workman has claimed same emoluments as those paid to conductors appointed at the time when the respondent CM No.11188/2009 in W.P.(C) No.5183/2003 Page 7 of 8 workman was asked to join vide letter dated 17th March, 2009 (supra). The said request of the workman is allowed. Similarly it is directed that the respondent workman would be entitled to same holidays as other conductors of his standing as aforesaid. The arrears so worked out from the date of the respondent workman joining duty till date be paid to the respondent workman within four weeks herefrom. However, since the petitioner DTC had asked the respondent workman to join the duties apparently without knowledge that it may be called upon to pay the same emoluments as paid to its other workmen of the same class, an option is given to the petitioner DTC to within four weeks herefrom withdraw the said option failing which it shall remain liable to pay the wages/emoluments in terms of the above. The respondent workman is also warned that if the respondent workman is found to be in dereliction of his duty and/or seeking to earn without working, it will be presumed that he has an alternative adequate source of employment and which may result in recall even of the order under Section 17B of the Act.
RAJIV SAHAI ENDLAW (JUDGE) February 17th, 2010 pp CM No.11188/2009 in W.P.(C) No.5183/2003 Page 8 of 8