Management Of National Council ... vs Divyash Pandit
1999 Latest Caselaw 551 Del

ORDER

Cyriac Joseph, J.

1. The petitioner in the writ petition is the Management of the National Council for Cement and Building Materials. Respondent No.1 was an employee of the petitioner. Respondent No. 2 is the Presiding Officer of the Labour Court. Respondent No.3 is the Government of NCT of Delhi. Respondent No. 4 is the Assistant Collector, Tis Hazari Courts, Delhi. In the writ petition the petitioner challenges an award dated 8.4.1996 passed by respondent No. 2 holding that respondent No.1 is entitled for reinstatement with continuity of service and full backwages. By order dated 30.9.1996 passed in C.M. No. 6519/96 this Court stayed the operation of the impugned award on condition that the petitioner would deposit the amount of back wages in terms of the award in the Registry of this Court within two weeks. By order dated 18.2.1998 the writ petition was admitted and the interim order dated 30.9.1996 was extended until further orders. One of the prayers in the present application C.M. No.1454/97 filed by respondent No.1, for a direction to release to the applicant the amount of Rs. 6,31,976-00 deposited by the petitioner pursuant to this Court's order dated 30.9.1996. The applicant has also prayed for the benefit under Section 17-B of the Industrial Disputes Act. He has also filed an affidavit in terms of Section 17-B of the Industrial Disputes Act.

2. According to the averments in the writ petition the petitioner is a Research and Educational Institute registered under the Societies Registration Act, 1860 and is functioning under the administrative and financial control of the Ministry of Industry, Government of India. Respondent No.1 was employed by the petitioner in February 1982. He was designated as NCB Cadre Officer, Level - M, which is a senior post in the officer category. Respondent No.1 is a graduate in Chemical Engineering and had special knowledge in the type of research work undertaken by the petitioner. He was a qualified scientist to carry out research work. He was not a 'workman' as defined in Section 2(s) of the Industrial Disputes Act. While he was working in the Madras Unit of the petitioner, respondent No.1 committed certain acts of mis-conduct and hence a charge sheet dated 21.7.1986 was served on him. An enquiry was held in accordance with the CRI Service Rules by the Enquiry Officer and the Enquiry Officer submitted his report dated 12.11.1986. The Enquiry Officer found respondent No.1 guilty of all the charges mentioned in the charge sheet. On the basis of the enquiry report the Disciplinary Authority vide memo dated 29.1.1987 imposed on respondent No.1 the penalty of his removal from service with immediate effect. Though respondent No.1 submitted an appeal, the said appeal was rejected on 29.4.1987. Thereafter, respondent No.1 raised an industrial dispute and it was referred to the labour court for adjudication as per reference order dated 11.8.1988. The dispute referred is whether the dismissal of service of Shri Divyash Pandit is illegal or unjustified and if so to what relief is he entitled and what directions are necessary in this respect. Respondent No.1 filed his statement of claim and the petitioner filed the written statement. On the basis of the pleadings the following issues were framed :-

(1) Whether the management is not an industry within the meaning of Section 2(j) of the I.D. Act ?

(2) Whether the Delhi Administration is not the "appropriate Govt.," as alleged in preliminary objection No. 27.

(3) Whether the petitioner is a 'workman' within the meaning of Sec. 2(s) of the I.D. Act ?

(4) Whether the domestic enquiry held by the Management is improper and invalid and whether the finding is perverse ?

(5) As in terms of reference.

Issue No. 4 was treated as preliminary issue and evidence was led on that issue. Out of the other three issues the petitioner had given up issue No.1 The petitioner was always under the presumption that issue Nos. 2 and 3 would be decided by the labour court in due course, by allowing the parties to lead their evidence. The petitioner remained under the bona fide impression that in case the issue of validity of the enquiry is decided against the petitioner it would seek appropriate permission to lead evidence to prove the charges before the labour court. Accordingly issue No.4 only was discussed and argued. However, after hearing the arguments on issue No. 4, the labour court passed the impugned award deciding the case finally observing that the petitioner had foregone issued Nos. 1 to 3. On receipt of the impugned award the petitioner moved an application before the labour court for review of the award dated 8.4.1996. However, the said application was rejected by the labour court. Hence the petitioner filed this writ petition praying to set aside the impugned award dated 8.4.1996 and to remand the case back to the labour court for deciding issue Nos. 2 and 3.

3. In the counter affidavit filed by respondent No.1 it is stated that the petitioner had given up not only issued No.1 but also issue Nos. 2 and 3. It is also stated that the learned counsel appearing on behalf of the petitioner had given up issue Nos. 1, 2 and 3 and the labour court was not required to record a specific statement under the signature of an official of the petitioner or answering respondent to that effect.

4. Finding that the petitioner made out a prima facie case and that substantial questions were raised in the writ petition, the writ petition has been admitted by this Court and the interim order of stay has been extended until further orders. The validity of the reference order itself is in dispute. The vital issue whether respondent No.1 was a 'workman' as defined in Section 2(s) of the I.D. Act was not considered by the labour court on the ground that the management had given up the said issue. According to the petitioner he had not given up that issue. In such circumstances I do not consider it just or proper to direct the release of the amount of back wages to the petitioner before the writ petition is finally disposed of.

5. In the present application respondent No.1 has also claimed the benefit under Section 17-B of the I.D. Act. He has filed an affidavit dated 7.2.1997 in terms of Section 17-B of the I.D. Act. In the said affidavit the respondent has stated that he is unemployed and that he remained unemployed during the period of adjudication of the industrial dispute by the labour court. In the application also respondent No.1 has stated that he has been unemployed and that he had to raise loans from his relatives and friends during the period of adjudication before the labour court and that they are to be repaid. In the writ petition the petitioner has stated that, after leaving the petitioner's company in 1987 respondent No.1 was working in different firms on a temporary basis till 1991. It is further stated that respondent No.1 joined M/s. Kaushik Compcraft Pvt. Ltd. as a Faculty Member. M/s. Kaushik Compcraft Pvt. Ltd. has its head office at 654/1/16, Civil Lines, Court Road, Gurgaon. The said firm is working in the field of computer education. Respondent No.1 started teaching there since February 1991 and is drawing lumpsum salary of Rs. 8,000/- per month. In the reply to the present application also the writ petitioner has repeated the above mentioned averments in the writ petition, though the name of the firm is wrongly mentioned as M/s. Kufikcomp Kraft Pvt. Ltd. The writ petitioner has filed an additional affidavit stating that the name of the firm was wrongly stated due to a typographical error. In the additional affidavit the petitioner has also stated that the petitioner had availed the services of M/s. Sentinel Consultancy Pvt. Ltd. to enquire about the employment of respondent No.1 and that after investigation they have submitted a report stating that Shri Divyash Pandit (respondent No.1) is working as a Member of the Faculty at Kaushik Compcraft Pvt. Ltd. since February 1991 . A copy of the report dated 29.8.1996 submitted by M/s. Sentinel Pvt. Ltd. has been produced along with the additional affidavit. However, respondent No.1 has filed a reply to the additional affidavit of the petitioner denying the allegation that he is employed with M/s. Kaushik Compcraft Pvt. Ltd. He has also produced the photocopy of the letter dated 8.9.1997 from M/s. Kaushik Compcraft pvt. Ltd. stating that any person by name Divyash Pandit was never in their employment. In view of the said letter dated 8.9.1997, the report of M/s. Sentinal Pvt. Ltd. cannot be accepted by this Court. There is no acceptable evidence to show that Respondent No.1 is employed with M/s. Kaushik Compcraft Pvt. Ltd. In the light of the above facts, I am of the view that the petitioner could not prove to the satisfaction of this Court that respondent No.1 has been employed and has been receiving adequate remuneration during the pendency of this writ petition. I do not find any reason to disbelieve or reject the statement of respondent No.1 that he is not employed in any establishment.

6. According to Section 17B of the Industrial Disputes Act, 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. In this case there is an award of the labour court directing reinstatement of respondent workman and the employer has preferred the writ petition against the said award. According to respondent No.1 he had not been employed in establishment during the pendency of the writ petition. Respondent No.1 has also filed an affidavit to the effect that he had not been employed in any establishment since his removal from services. Thus the workman has satisfied all the requirements under Section 17B entitling him to the benefit under that Section. The petitioner-employer has not proved to the satisfaction of this Court that respondent No.1 had been employed and had been receiving adequate remuneration during the pendency of this writ petition. Therefore this Court cannot deny the benefit under Section 17B to respondent No.1. Hence in compliance with the provisions contained in Section 17B of the I.D. Act, the petitioner is liable to pay to respondent No.1 during the period of pendency of this writ petition full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule.

7. Notice of this writ petition was ordered to the respondents on 30th September, 1996. The affidavit filed by respondent No.1 in terms of Section 17B of the I.D. Act is dated 7th February, 1997. Therefore, the petitioner is liable to pay wages to respondent No.1 in terms of Section 17B of the I.D. Act for the period from 30.6.1996 to 17.2.1997. The amount so due to respondent No.1 shall be paid to respondent No.1 by the petitioner within a period of one month from today. If the said amount is not paid within a period of one month from today, the said amount shall be released to respondent No.1 from the amount deposited by the petitioner in the Registry of this Court, if and when an appropriate application for the purpose is filed by respondent No.1. The claim of respondent No.1. for wages in terms of Section 17B of the I.D. Act for the period after 7.2.1997 cannot be considered in this application since there is no affidavsit as required under Section 17B in respect of the said period.

8. The application C.M.No. 1454/97 is disposed of in the above terms.

In the circumstances of this case it is just and necessary that the writ petition is disposed at the earliest. Hence the Registry is directed to list the writ petition for directions before the 'Regular Court' on 26th July, 1999.