*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM.No.9204/2004 in WP(C)2217/2000
% Date of decision: 3rd May, 2010
MANAGEMENT OF M/S MOOL CHAND
KHAIRATI RAM HOSPITAL ..... Petitioner
Through: Mr. M.Y. Khan, Advocate.
Versus
DELHI ADMINISTRATION & ORS ..... Respondents
Through: Mr. N.D. Pancholi, Advocate for R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No.
2. To be referred to the reporter or not? No.
3. Whether the judgment should be reported
in the Digest? No.
RAJIV SAHAI ENDLAW, J.
1. The challenge in this writ petition is to the award dated 26th May, 1999 of the Labour Court of reinstatement of the respondent no.3 workman and for back wages from the date of termination i.e. 5th December, 1985 till January, 1997. This court stayed the operation of the award subject to the petitioner paying Rs.50,000/- to the respondent no.3 workman (which has been paid) and depositing another Rs.50,000/- in this court, which has been deposited. The counsel for the respondent no.3 workman states that the back wages due under the award were approximately in the sum of Rs.1,74,000/-. The order under Section 17B of the ID Act was made on 11th July, 2003 directing payment at the rate of minimum wages from the date of the award onwards.
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2. CM.No.11544/2003 was filed by the petitioner informing that pursuant to the order under Section 17B of the ID Act, the petitioner vide its letter dated 27th August, 2003 had, without prejudice to its rights and contentions in the writ petition, offered to the respondent no.3 workman the job of Laboratory Technician on prevailing minimum wages for this category, but the respondent no.3 workman had not accepted the said offer. The petitioner thus sought a direction from this court that either the respondent no.3 workman join duties as aforesaid or if he does not accept the said offer, the order under Section 17B of the ID Act may be recalled. The said application came up before this court on 22nd October, 2003. Without prejudice to the pleas of the parties it was directed that the respondent no.3 workman shall join the services of the petitioner w.e.f. 1st November, 2003. It is recorded in the order dated 13th February, 2004 that the respondent no.3 workman so joined the duties on 1st November, 2003.
3. CM.No.9204/2004 has been filed by the respondent no.3 workman stating that inspite of his joining duties w.e.f. 1st November, 2003 and working for the petitioner as a Lab Technician, he was being paid wages from 1st November, 2003 onwards at the rate of Rs.2180/- per month only and w.e.f. 1st April, 2004 at the rate of Rs.2823/- per month only. He contends that he is entitled to the same wages as is being paid to the other Lab Technicians in the petitioner hospital who are performing the same work as him. The petitioner has contested the said application. It is contended that the respondent no.3 workman is seeking review of the order dated 22nd October, 2003 and which is not permissible. It is further contended that the respondent no.3 workman under the law is entitled only to wages under Section 17B of the Act and to nothing else and his claim for the CM.9204/2004 IN W.P.(C)2217/2000 Page 2 of 5 same wages as being drawn by other Lab Technicians is disputed/controverted. It is contended that the principle of equal pay for equal work does not apply in the present situation. It is however stated that the medical facility as extended by the petitioner hospital to other employees is being extended to the respondent no.3 workman also and the respondent no.3 workman is also being given casual and earned leave as to the other employees. Similarly it is stated that tax in accordance with law is being deducted from the payments to the respondent no.3 workman.
4. The matter was heard first on 29th April, 2010. The counsel for the petitioner was informed of the order dated 17th February, 2010 in CM.No.11188/2009 in WP(C)5183/2003 titled Delhi Transport Corporation Vs. Phool Singh where the undersigned has taken a view that when an employer makes the workman work, even if against 17B wages, the workman is entitled to wages for the work taken and not merely to 17B wages. However, on that date certain negotiations for amicable settlement had started and the matter was adjourned. Today the counsel for the petitioner has informed that amicable settlement is not possible. Further arguments have been heard from the counsel for the petitioner. He has contended that the claim of the respondent no.3 workman in the application also raises disputed questions of fact and which cannot be adjudicated in this proceeding.
5. I am unable to accept the contentions of the petitioner. The application under consideration of the respondent no.3 does not tantamount to review of the order dated 22nd August, 2003. The said order was made without prejudice to the CM.9204/2004 IN W.P.(C)2217/2000 Page 3 of 5 rights and contentions of the parties and does not prevent the respondent no.3 workman from moving the application under consideration.
6. I do not find merit in the contention that the principle of equal pay for equal work will not apply. The respondent no.3 workman, if performing equal work as other Lab Technicians, would be entitled to equal pay notwithstanding pendency of this petition. As far as the contention of the counsel that disputed questions of fact arise as to what work the respondent no.3 workman is doing, the same is also found to be an afterthought and an attempt to wriggle out of the obligations as held by this court in the order in Phool Singh (supra). The petitioner in its application being CM.No.11554/2003 had categorically stated that the respondent no.3 workman prior to his termination was working as a Lab Technician and was in the letter issued by the petitioner offered to work as a Lab Technician only and in the application also it was mentioned that the respondent no.3 workman is called to work as a Lab Technician. There is no averment that after being called upon to work as Lab Technician, any other work was being taken from the respondent no.3 workman. Thus whatever is being paid by the petitioner to other Lab Technician would be payable to the respondent no.3 workman also and no questions of fact arise for consideration.
7. I have since the order in Phool Singh, in order dated 29th April, 2010 in CM.No. 13510/2009 in WP(C) 6647/2003 titled D.T.C. Vs. Presiding Officer and Another, again dealt with the legal aspect as herein. The matter having been discussed in the said two orders, it is not deemed expedient to repeat the legal position as analyzed in the said two orders.
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8. The counsel for the petitioner has lastly contended that the order for payment as to other Lab Technicians cannot be made retrospectively. However, it is found that the application under consideration was moved by the respondent no.3 workman soon after joining on 1st November, 2003 and merely because the application has remained pending for the last six years is no ground for depriving the respondent no.3 workman of the arrears.
9. The application is therefore allowed. The petitioner is directed to, within six weeks of today, pay to the respondent no.3 workman the wages/emoluments w.e.f. 1st November, 2003 till 30th April, 2010 as being paid to other Lab Technicians, minus the amount already paid to the respondent no.3 workman. The petitioner is further directed to, as long as it continues to take work from the respondent no.3 workman pursuant to the letter dated 27th August, 2003 to pay to the respondent no.3 workman emoluments as being paid to the other Lab Technicians performing the same work as being performed by/taken from the respondent no.3 workman. If the arrears are not paid within six weeks, the same shall also incur simple interest at 9% per annum till the date of payments.
The application is disposed of.
RAJIV SAHAI ENDLAW (JUDGE) 3rd May, 2010 M CM.9204/2004 IN W.P.(C)2217/2000 Page 5 of 5