Hindustan Carbide Pvt. Ltd. vs Government Of Nct Of Delhi And Ors.
2001 Latest Caselaw 1901 Del

JUDGMENT

S.B. Sinha, C.J.

1. This appeal is directed against an order dated 28.05.2001 passed by a learned Single Judge of this Court in CM No. 14481/99 in CWP No. 817/99 whereby and whereunder an application filed by the respondent No. 3 herein under Section 17B of the Industrial Disputes Act (hereinafter referred to as 'the Act' ) was allowed directing the appellant herein to pay full wages last drawn inclusive of maintenance allowance admissible under the rules.

It was further directed as follows:-

"These payments shall be made w.e.f. 12th February, 1999, as per the submission made by ld. Counsel for the respondent/workman. It is arguable that they should be w.e.f. the date of the Award, as otherwise a delayed challenge to it would result in a pecuniary advantage to the Management that has lost before the Labour Court. The wages last drawn shall not be below the minimum wages payable from time to time. In ordering so, I am fully mindful of the opinion of the Hon'ble S.C. that the Court is no empowered to grant any or and above the wages last drawn while exercising powers under Section 17B. However, every judicial order must be in consonance with the law, which in this case is the Minimum Wages Act. The payment of arrears should be made within four weeks, and, thereafter, month by month."

2. The basic fact of the matter is not in dispute.

The respondent No. 3 was a workman. He was at all material times working under the appellant. He was retrenched by the appellant on 05.02.1987. An industrial dispute was raised. The said industrial dispute was referred to the Labour Court and by an award dated 08.05.1998 made in I.D. No. 566/1988, it inter alia directed that the respondent No. 3 be reinstated in service. Questioning the said award, the writ petition was filed. An interim order upon an application made by the appellant herein was passed staying the operation of the said award subject to the condition that the appellant pays a sum of Rs. 5,000/- towards litigation expenses and the amount of back wages be directed in the form of fixed deposit in the Registry of this Court.

The respondent No. 3 filed the application on or before 02.11.1999 in the said writ petition purported to be under Section 17B of the Act, which was marked as C.M. No. 14481 of 1999 alleging therein that he had all along been unemployed since his date of illegal retrenchment/termination of 05.02.1987 and had been unable to find a job despite his best efforts.

On the afore-mentioned application, the impugned order has been passed.

3. Mr. A.K. Singla, the learned counsel appearing on behalf of the appellant, submitted that the workman should have reported for duty and as he had taken no initiative in this regard, the provisions of Section 17B of the Act cannot be said to have any application whatsoever. The learned counsel further submitted that having regard to the fact that the operation of the impugned order have been stayed, the question of entertaining any application under Section 17B of the Act did not arise. Strong reliance in this connection has been placed on a decision of learned Single Judge of Punjab & Haryana High Court in the case titled ' Punjab State Electricity Board, Patiala, through its Secretary v. Presiding Officer Labour Court Bhatinda, Vol. C (1991-92) PLR 591 '. The learned counsel further urged that in any event the learned Single Judge could not have directed payment of back wages as also the current wages at the proscribed rate under the Minimum Wages Act having regard to the fact that in terms of Section 17B of the Act the workman was only entitled to the 'last wages drawn by him'. In support of the said contention, strong reliance has been placed on Dena Bank v. Kiritikumar T. Patel reported in 1997 (7) Scale 56 and Regional Authority, Dena Bank and Anr. v. Ghanshyam reported in Judgment Today 2000 2001 (Supll.1) SC 229 .

4. Mr. Sunita Bhardwaj, learned counsel appearing on behalf of the respondent No. 3, on the other hand, submitted that the appellant did not take the respondent No. 3 in service despite his reporting for duties in terms of the Order passed by this Court. The learned counsel further submitted that the Apex Court in its decision in Dena Bank (Supra) has categorically held that the High Court in exercise of jurisdiction under Article 226 of the Constitution of India can grant any other and further benefit other than contemplated under Section 17B of the Act. The learned counsel further submitted that the appellant in any event is not entitled to an equitable relief from this Court, as it has not complied with the Order passed by this Court.

Section 17B of the Act reads as follows:-

"Section 17B Payment of full wages to workman pending proceedings is higher courts.-

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 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."

The object and reason for enacting the said provisions has been dealt with by the Apex Court in Dena Bank (Supra) . By reason of the said provisions, some relief is to be granted to the workman in a situation mentioned in Section 17B of the Act to mitigate the hardship of the workman, which is caused to him owing to delay in implementation of the award. Such payment is to be made by way of subsistence allowance, which would not be refundable or recoverable from the workman, even if ultimately the writ petition of the Management succeeds. Section 17B of the Act, however, does not preclude the Court from granting further relief, if the exigency of the situation so demands and in the event the Court finds the same to be more just and equitable.

6. Before adverting to the question involved, we may notice that the contention of the learned counsel for respondent No. 3 to the effect that the appellant had not complied with the Order of this Court is not correct. The appellant herein pursuant to the Order of the learned Single Judge in C.W.P. No. 817 of 1999 deposited a sum of Rs. 5,000/- towards litigation expenses and also deposited a sum of Rs. 7,600/- pursuant to the Order dated 08.03.1999. The relevant portion of the Order dated 09.08.2001 passed by the Division Bench of this Court is as follows:-

"Learned counsel for the appellant undertakes to deposit the entire awarded within six weeks from today. On depositing the amount, there shall be stay of the operation of the impugned order."

However, the Division Bench of this Court in terms of its Order dated 15.10.2001 noted the submission of the learned counsel appearing for respondent No. 3 that he shall report for duty on 17th October, 2001 at 10.00 a.m. before Mr. Ramesh Kalra, Managing Director of the Company. Allegations have been made that respondent No. 3 had not jointed duty, whereas the contention of respondent No. 3 is that he had not been allowed to do so.

In the aforementioned situation, this Bench vide Order dated 26.11.2001 directed that the concerned workman would join the establishment of the appellant and report to Mr. Punit, Security Officer of the appellant at 9.30 a.m. on 27th November, 2001. Yet again, a controversy has been raised that respondent No. 3 did not comply with the Order of this Court. Before us, a purported note of the Duty Officer (Gate) dated 27.11.2001 was filed stating that when respondent No. 3 came to join his duty, he was asked to wait for a few minutes, but he then left the place on the ground that the concerned Officer had gone out of factory for some work for about half an hour, but he left the place. On the other hand, Ms. Sunita Bhardwaj stated that respondent No. 3 was not allowed to join his duties.

7. Keeping in view the conduct of the parties, we are of the opinion that it may be futile to direct the appellant herein to allow respondent No. 3 to join his duties.

The award has been passed against the appellant. In terms of the said award, it was for the appellant to offer a job to the workman. The appellant did not issue any letter making its offer of reinstatement to the workman. On the other hand, the appellant filed an application for grant of stay of the operation of the award, which was passed on certain conditions. It is, therefore, evident that the appellant at the relevant time did not exercise its option in directing reinstatement of respondent No. 3. It, therefore, was bound to comply with the directions of this Court issued in terms of Section 17B of the Act. We thus find no illegality in he impugned order.

8. The submission of Mr. A.K. Singla to the effect that once an order has been passed staying the operation of the award, Section 17B of the Act will have no application whatsoever cannot be accepted. In terms of Section 17B of the Act, the employer must file an affidavit and establish that the employee who had been given the benefit of Section 17B of the Act is employed somewhere else and as such has disentitled himself from obtaining the benefit. It is enough if the assertion of the workman to the effect that he is unemployed is accepted by the Court, so as to enable it to pass an Order in terms of Section 17B of the Act. Reference in this connection may be made to Narender Kumar and Ors. v. Management of Taj Services Ltd. and Anr. reported in 2001 2nd 750 .

9. As noted supra, the Apex Court in Dena Bank has stated that the provisions of Section 17B of the Act is meant to grant some minimum benefit to the workman, so as to enable him to survive. Section 17B of the Act is mandatory in nature. As per the provisions of Section 17B of the Act, the workman is entitled to ' last drawn pay '. Even if an Order is passed in terms of Section 17B of the Act, the same per se would not preclude the Court from passing any other or further order.

10. The Apex Court in Regional Authority, Dena Bank (Supra) has clearly held:-

"We have mentioned above that the import of Section 17B admits of no doubt that Parliament intended that the workman should get the last drawn wages from the date of the Award till the challenge to the Award is finally decided which is in accord with the Statement of Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17B was inserted in the Act. We have also pointed out above that Section 17B does not preclude the High Courts or this Court from granting better benefits - more just and equitable on the facts of a case - than contemplated by that provision to a workman. By interim order, the High Court did not grant relief in terms of Section 17B, may, there is no reference to that Section in the orders of the High Court, therefore, in this case the question of payment of "full wages last drawn" to the respondent does no arise. In the light of the above discussion, the power of the High Court to pass the impugned order cannot but be upheld so the respondent is entitled to his salary in terms of the said order."

11. The Apex Court, however, has observed that any amount over and above the sum payable under the said provision being refundable, the Court may impose such terms and conditions, as it enable the employer to recover the same keeping in view the interest of justice.

12. In that view of the matter, in modification of the Order passed by the learned Single Judge, we direct that the difference in respect of amount between the minimum wages and the last wages drawn by him, respondent No. 3 shall offer security to the satisfaction of the Registrar (General) of this Court. The Registrar (General), however, shall permit respondent No. 3 to withdraw the amount of last wages drawn and arrears of last wages as also the current and future amount deposited in terms of Section 17B of the Act, as also the sum of Rs. 5,000/-, which was directed to be deposited towards litigation expenses unconditionally without furnishing any security. The rest of the amount, however, we clarify, may be permitted to be withdrawn subject to furnishing of the security, but the appellant shall not be entitled to encash the FDRs.

13. In the facts and circumstances, we would request the appropriate Bench to consider the desirability of disposing of the main writ petition as expeditiously as possible and preferably within a period of eight weeks from the date of communication of this Order. The parties shall be at liberty to mention the matter before the appropriate Bench for early hearing.

14. This LPA is accordingly disposed of.