Delhi High Court
Delhi Transport Corporation vs The Presiding Officer, Labour ... on 19 November, 2001
Equivalent citations: 96 (2002) DLT 103
Author: V Sen
Bench: V Sen
JUDGMENT
Vikramajit Sen, J.
1. The questions that have arisen for determination in these applications is whether the Court ought to grant, under Section 17-B of the Industrial Disputes Act ('I.D. Act' for short), (a) any amount in excess of the 'full wages last drawn' by the workmen, in particular whether this phrase can be held to assume that the 'wages' should not be less than the minimum wages applicable from time to time; (b) whether this grant should be with effect from the date of the Award or from the date on which the writ petition is filed or from the date on which the application is filed; and (c) if some income has been earned by the workman during the relevant period, would this disentitle the workman to relief under Section 17-B of the I.D. Act or whether the income should be set-off/adjusted against the 'full wages last drawn'.
2. Section 17-B of the I.D. Act reads as under:
"17-B. Payment of full wages to workman pending proceedings in higher courts.-- Where in any case, in 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.
3. Section 17-B was inserted by amendment of the Industrial Disputes Act in 1984 and the Objects and Reasons for enacting the Section are as follows:
"When Labour Courts pass awards of reinstatement, these are often contested by an employer in the Supreme Court and High Courts. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, therefore,e proposed to provide the payment of wages last drawn by the workman concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or High Courts."
(emphasis supplied)
4. Mr. Sabharwal, learned counsel appearing for the Petitioner-Delhi Transport Corporation (for short 'DTC') has virtually rested his case on the pronouncements of the Apex Court in Dena Bank v. Kiritikumar T. Patel, (hereinafter referred to as 'Dena Bank I). Since most of the previous decisions had been collated and considered by the Learned Judges, it would be of advantage to extract the relevant portions of the judgment in extensio.
"2. The question that falls for consideration in this appeal is whether the expression "full wages last drawn" in Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") means wages drawn by a workman at the time of termination of his employment or wages which he would have drawn on the date of the award.
.....
19. As per the decisions of the High Courts referred to above, the expression "full wages last drawn" in Section 17-B can mean as under:
(i) Wages only at the rate last drawn and not at the same rate at which the wages are being paid to the workmen who are actually working. (Daladdi Coop. Agriculture Service Society Ltd. v. Gurcharan Singh)
(ii) Wages drawn on the date of termination of the services plus the yearly increment and the dearness allowance to be worked out till the date of the award. (Visveswaraya Iron and Steel Ltd. v. M. Chandrappa and Kirtiben B. Aminv. Mafatlal Apparels)
(iii) Full wages which the workman was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings. (Carona Sahu Co. Ltd. v. A.K. Munafkhan, Macneil and Magor Ltd. v. First Addl. Labour Court and P. Chennaiah v. Dy. Executive Engineer).
20 The first construction gives to the words "full wages last drawn" their plain and material meaning. The second as well as the third constructions read something more than their plain and material meaning in those words. In substance these constructions read the words "full wages last drawn" as "full wages which would have been drawn". Such an extended meaning to the words "full wages last drawn" does not find support in the language of Section 17-B. Nor can this extended meaning be based on the object underlying the enactment of Section 17-B.
21. As indicated earlier Section 17-B has been enacted by Parliament with a view to give relief to a workman who has been ordered to be reinstated under the award of a Labour Court or the Industrial Tribunal during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award. 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 this Court. Since the payment is of such a character, Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was in service and when his services were terminated and therefore used the words "full wages last drawn". To read these orders to mean wages which would have been drawn by the workman if he had continued in service if the order terminating his services had not passed since it has been set aside by the award of the Labour Court or the Industrial Tribunal, would result in so enlarging the benefit as to comprehend the relief that has been granted under the award that is under challenge. Since the amount is not refundable or recoverable in the event of the award being set aside, it would result in the employer being required to give effect to the award during the pendency of the proceedings challenging the award before the High Court or the Supreme Court without his being able to recover the said amount in the event of the award being set aside. We are unable to construe the provisions contained in Section 17-B to cast such a burden on the employer. In our opinion, therefore, the words "full wages last drawn" must be given their plain and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Visveswaraya Iron & Steel Ltd. or the Bombay High court in Carona Sahu Co. Ltd.
(A) WHAT AMOUNT SHOULD BE ORDERED UNDER
SECTION 17-B OF THE I.D. ACT.
5. The Labour Court/Tribunal has the power and discretion to award only a portion of the back-wages, although in normal circumstances the practice would be to grant them in full. Could it then not be reasonably argued that where only a percentage of back-wage are awarded, in further legal proceedings where the Award has been assailed by the Management, the High Court or the Supreme Court should normally give interim relief under Section 17-B of the I.D. Act only at the scale granted by the Labour Court in the impugned Award. Thus, if only 50 per cent back-wage are granted should this formula not be adhered to in writ proceedings also? Without in any manner diluting the discretion contained in the extraordinary powers vested in the High Court and the Supreme Court, the answer appears to be in the negative. It should not be forgotten that there is no inherent right of appealing/assailing an order/judgment/award and that this is granted by statute. In fiscal matters, the spectrum of statutes insist on the predeposit of tax. It has therefore been argued, but without success till date, in the context of all such taxing statutes that if the predeposit is to be made, the right of appeal is rendered illusory. In the context of property taxation under the Delhi Municipal Corporation Act, and the New Delhi Municipal Council Act, 1994, this very argument was turned down by the majority judgment of the High Court of Delhi in Shyam Kishore v. Municipal Corporation of Delhi and Ors. . This decision was then brought before the Apex Court which upheld the majority view in Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. , . precedents has been considered by the Hon'ble Supreme Court in the course of it reiterating that conditions such as predeposit of the impugned tax can be imposed as a precondition for the entertainment of an appeal. Of these many precedents I shall specifically mention only the pithy observations in Ganga Bai v. Vijay Kumar and Ors. , where it was opined that "there is a basic distinction between the right of a suit and the right of an appeal. There is an inherent right in ever person to bring a suit of a civil nature, but the right of appeal inheres in none and therefore an appeal for its maintainability must have the clear authority of law." These observations apply with added force when the extraordinary writ jurisdiction is invoked. Accordingly, there would not have been any departure from law if a precondition of payment of wages as a prerequisite for the entertainment of an appeal, in the form of a writ, against an industrial award, had been statutorily enunciated. but the situation is even more onerous for a Management which has decided to assail an industrial award as soon as it is recalled that the provision enabling an appeal under the Industrial Disputes (Appellate Tribunal) Act, 1950 was repealed by the amendments effected by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. Once the right to file and appeal stands withdrawn, it is only to be expected that the legislature would indicate for the consideration of the Court stringent, onerous and deterring conditions for the entertainment of writ petition, as contained in Section 17-B of the I.D. Act Although it is not possible to alter the ambit and sweep of the extraordinary writ jurisdiction of High Courts, there appears to me to be sound reason for giving effect to Section 17-B of the I.D. Act, in the widest amplitude. Appeals in fiscal matters generally emanate from a decision taken by the concerned Department itself, with its designated officer exercising quasi-judicial powers. Even in such cases, where it is palpable that the propensity of Department would be to impose and thereafter uphold the greatest amount of taxation, predeposit of the assailed tax has received legislative as well as jural sanction. A fortiori, where a totally independent person such as a Labour Court/Tribunal has adjudicated on a dispute, and where the right to file an appeal has specifically been withdrawn, the advantage that the successful workman has gained should not be disputed by even a meagre measure. Managements have the financial strength and general capacity to protract the litigation. If a narrow interpretation is given to Section 17-B of the I.D. Act, the finality of an industrial Award is endangered and a fillip to continue and prolong litigation is given to an indefatigable management.
6. In Carona Sahu Co. Ltd. v. Abdul Karim Munafkhan and Ors. , F.L.R. 1995 (70) 25, the Management had stated that the monthly wages last drawn by the workman were Rs. 1024.53 but the Court granted Rs. 2558.15, being the wages that would have been drawn by the workman on the date of the award had the workman continued in service. This approach stands overruled by the Hon'ble Supreme Court, but that cannot lead to the conclusion that the Court should not order the payment of minimum wages at the relevant time. This would totally annihilate the purpose of the Minimum Wages Act, whereas it is the duty of the Court to implement this statute. If the actual wages last drawn by a workman fall short of the mandatory measure of minimum wages, the Court must order payment of minimum wages. For the very same reason whenever the minimum wages are increased by the appropriate Government, the escalated minimum wages must be ordered under Section 17-B. There is a clear distinction between escalated minimum wages and escalated wages payable to the workman on his progress and advancement in his pay-scale, or on a general increase of wages in the industrial establishment in which he was working. It is only the latter which has been proscribed by the Apex Court in Dena Bank I (supra).
7. Management Counsel have belaboured the observations of the Hon'ble Supreme Court in Dena Bank I (supra) to the effect that the wages contemplated under Section 17-B of the I.d. Act partake of the nature of a subsistence allowance and hence should not exceed the actual wages last drawn by the workman at that point of time when his employment was terminated. In the first place, this observation was made in the context of the payments made pursuant to orders under Section 17-B of the I.D. Act being non-recoverable and non-adjustable. Secondly, the Court must endeavor to give a purposeful interpretation to a statutory provision, in conformity with its objects. The only exception or limitation is where the language used is such that the only meaning extractable does not permit such an interpretation. Thus, if a subsistence allowance was intended to be given in Section 17-B of the I.D. Act, it could have been easily stated so. A pedantic approach is always to be deprecated. In C.W.P. No. 2112 of 1999 it has been highlighted by Mr. Sabharwal himself that the workperson was a daily-wager and she was earning only Rs. 11/- and that the DDA would submit that it is these wages that should be granted to her. Even if Mr. Sabharwal's arguments were to be accepted, can this sum of Rs. 11/- be considered as a 'subsistence allowance'. This submission has strengthened my resolve and understanding that under Section 17-B of the I.D. Act, the wages should not fall below the minimum wages. mr. Birbal had contended that the Court ought to effect a balance and where the last drawn wages such as Rs. 11/- are a pittance at the time when orders under the Section are to be passed, a moderation may reasonably be effected. It was his contention, however, that while minimum wages could be ordered in place of 'last drawn wages' if these are below the minimum wages, once this is carried out there would be no further justification for ordering the payments under Section 17-B of the I.D. Act to keep pace with the increase in the minimum wages. To the contrary, Ms. Sunita Bhardwaj, who appears for the workmen drew attention to the enduring observations of the Hon'ble Supreme Court in Crown Aluminium Works v. Their workmen, 1958 (1) LLJ 1 to the effect that there is "one principle which admits of no exceptions. No industry has a right to exist unless it is able to pay to its workmen at least a bare minimum wages. It is quite likely that in under-developed countries, where unemployment prevails on a very large scale, unorganized labour may be available on starvation wages, but the employment of labour on starvation wages cannot be encouraged or favored in a modern democratic welfare State." Even though these observations were made whilst the Court was concerned with the fixation of a wage structure, they are of ubiquitous application. In Sanjit Roy v. State of Rajasthan, it has been observed that in so far as the Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act exempts and excludes the applicability of the Minimum Wages Act in relation to workmen employed in famine relief work and permits payment less than the Minimum Wages, it offends Article 23 of the Constitution and is ultra vires. Similar views have also been expressed in Peoples Union for Democratic Rights and Ors. v. Union of India and Ors. , . On the strength of all these precedents it appears inevitable and unescapable that wherever wages are in contemplation, they cannot fall below the minimum wages, whether the enquiry is on wage fixation, fair wage or interim relief under Section 17-B of the I.D. Act, or whatever.
(B) WAGES UNDER SECTION 17-B MUST BE
GRANTED FROM THE DATE OF AWARD
8. As Vishveswaraya Iron and Steel Ltd. v. M. Chandrappa and Anr. , 1994(84) FJR 46 (Kar) , has been held to have been wrongly decided it needs clarification that this was so observed by the Apex Court in Dena Bank I (supra) only in the context of the grant of 'yearly increments and the dearness allowance to be worked out till the date of the award', since this is how the court had summarised it in paragraph 19 of its judgment. The Apex Court had simultaneously overruled Elpro International Ltd. v. K.B. Joshi [1987] II L.L.J. 210 (Bombay) (D.B.) but also on the same pint. In this very case the Division Bench of the Bombay High Court had adverted to Section 10A of the Industrial Employment (Standing Orders) Act, 1946 and had observed that since subsistence allowances are neither refundable nor recoverable irrespective of the result of the enquiry, the same situation can prevail in Section 17-B. In Dena Bank I (supra) the Hon'ble Court has similarly opined that payments made pursuant to orders passed under Section 17-B are not recoverable. The ratio of Dena Bank I (supra) can only be that the wages to be granted would include all the allowances etc. payable to the workman at the time of this dismissal in contradistinction to the time of the Section 17-B application, and not wages and allowances as incremented thereafter. The definition of 'wages' in the Industrial Disputes Act, Payment of Wages Act and the Minimum Wages Act are reproduced below in juxtaposition in order to demonstrate that the ambit and sweep of the word 'wages' is so wide in these Acts, that some meaning must be found for the word 'full' preceding it.
Definition of wages Definition of wages Definition of wages under
under the Industrial under the Minimum Wages the Payment of Wages
Disputes Act, 1947 Act, 1948 Act, 1936
"wages" means all "wages" means all "wages means all
remuneration capable remuneration, capable remuneration (whether by
of being expressed of being expressed in way of salary,
in terms of money, terms of money, which allowances, or otherwise)
which would, if the would, if the terms of expressed in terms of
terms of employment, the contract of money or capable of being
expressed or employment, express or so expressed which would,
implied, were implied, were if the terms of
fulfilled, be fulfillled, be payable employment, express or
payable to a workman to a person employed in implied, were fulfillled,
in respect of his respect of his be payable to a person
employment or of employment or of work employed in respect of
work done in such done in such employment his employment or of work
employment, and and includes house rent done in such employment,
includes-- allowance, but does not and includes--
includes--
(i) such allowance (i) the value of (a) any remuneration
(including dearness payable under any award
allowance) as the (a) any house or settlement between the
workman is for the accommodation, supply parties or order of a
time being entitled of light, water, Court;
to; medical attendance, or
(ii) the value of (b) any other amenity (b) any remuneration to
any house or any service excluded which the person employed
accommodation, or of by general or special is entitled in respect of
supply of light, order of the overtime work or holidays
water, medical appropriate Government. or any leave period:
attendance or other
amenity or of any (ii) any contribution (c) any additional
service or of any paid by the employer to remuneration payable
concessional supply any Pension Fund or under the terms of
of foodgrains or Provident Fund or under employment (whether
other articles; any scheme of social called a bonus or by any
insurance; other name):
(iii) any traveling (iii) any traveling (d) any sum which by
concession; allowance or the value reason of the termination
of any traveling of employment of the
concession; person employed is
payable under any law,
(iv) any commission (iv) any sum paid to contract or instrument
payable on the the person employed to which provides for the
promotion of sales defray special expenses payment of such sum,
or business or both; entailed on him by the whether with or without
nature of his deductions, but does not
but does not employment: or provide for the time
include-- within which the payment
(v) any gratuity is to be made;
(a) any bonus; payable on discharge
(b) any contribution (e) any sum to which the
paid or payable by person employed is
the employer to any entitled under any scheme
pension fund or framed under any law for
provident fund or the time being in force,
for the benefit of but does not include--
the workman under (1) any bonus (whether
any law for the time under a scheme of profit
being in force; sharing or otherwise)
(c) any gratuity which does not form part
payable on the of the remuneration
termination of his payable under the terms
service. of employment or which is
not payable under any
award or settlement
between the parties or
order of a Court;
(2) the value of any
house-accommodation, or
of the supply of light,
water, medical attendance
or other amenity or of
any service excluded from
the computation of wages
by a general or special
order of the State
Government:
(3) any contribution paid
by the employer to any
pension or provident
fund, and the interest
which may have accrued
thereon:
(4) any traveling
allowance or the value of
any traveling
concession:
(5) any sum paid to the
employed person to defray
special expenses entailed
on him by the nature of
his employment; or
(6) any gratuity payable
on the termination of
employment in cases other
than those specified in
Sub-clause (d).
9. From a perusal of these definitions it will be clear that whatever be the extent of the 'wages' granted under Section 17-B of the I.D. Act they would fall within the ambit of the definition of wages contained in these enactments. What then is the application to be placed on the word 'full' in the phrase 'full wages last drawn'. In Dena Bank I (supra) the Hon'ble Supreme court has not favored the view that 'full' can be read as indicative of the wages currently payable contemporaneously with the filing of the application under Section 17-B of the I.D. Act. The words employed must be given their plain meaning and every word must be taken to have been purposefully and not superfluously used; this is a fundamental principle of statutory interpretation. Since the definition of 'wages' appears to be all encompassing, the role ascribable to the word 'full' seems to then enjoin that the wages should be for the full period in question. Section 33-C(1) of the I.D. Act already provides for an execution procedure if the Award is not implemented. Full wages last drawn can therefore only mean all the wages that have fallen due atleast from the date of the Award. This interpretation appeals to me as it is pragmatic. The Apex Courts did not set aside the other observation in paragraph 7 of the judgment in Visveswaraya's case (supra) that although "in Section 17-B of the Act the words "from the date of the award" are not found, having regard to the Objects and Reasons stated for inserting this provision, we can, without any difficulty, come to the conclusion that the date from which the full wages last drawn to be paid should be from the date of the award till disposal of the proceedings."
10. The Apex Court had earlier opined in Bharat Singh v. Management of New Delhi Tuberculosis Centre, New Delhi and Ors. , 1986-II-LLJ-217, that the power to grant back wages was possessed and employed by the High Courts and the Supreme Court even prior to Section 17-B of the I.D. Act, which therefore merely codified the law. The Hon'ble Court had observed that "the conferment of a new jurisdiction can take effect only prospectively except when a contrary intention appears on the face of the statute. Section 11-A plainly indicates its prospective operation. This is made clear in the proviso to the section when it says 'provided that in any proceeding under this Section'. This can only mean something relatable to a stage after the Section came into being. That is not the case with Section 17-B. Here it is not the conferment of a new jurisdiction but the codification in statutory form of a right available to the workmen to get back wages when certain given conditions are satisfied. There are no words in the Section to compel the Court to hold that it cannot operate retrospectively. Before Section 17-B was introduced there was no bar for Courts for awarding wages. Of course the workmen had no right to claim it. This Section recognizes such a right. To construe it in a manner detrimental to workmen would be to defeat its object." This further fortifies the view that the wages to be granted in this Section can be from the date of the Award especially since the 'Objects' of the amendment clearly indicate/specify so. In Regional Authority, Dena Bank and Anr. v. Ghanshyam, JT 2001 (Suppl. 1) SC 229, the Hon'ble Supreme Court has considered its previous view in Dena Bank I (supra) and observed that "the import of Section 17-B 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...". On first principles, the Apex Court has held that Orders under Section 17-B of the I.D. Act should commence with effect from the date of the Award, thus leaving no scope any longer for debate.
(C) SHOULD THE INCOME OF THE
WORKMAN BE TAKEN INTO ACCOUNT
11. It has been contended that since the Workman has himself pleaded that he had managed to obtain some temporary driving assignments, he is not entitled to claim any amount under Section 17-B of the I.D. Act. This is a repetition of the arguments raised by him in previous hearings, and the relevant portion of the Order passed on 24.5.2001 needs to be reiterated. Even after the passage of several months, in which period I had the advantage of hearing several other Counsel on this very issue, I find no reason to depart from the view expressed by me earlier. While considering this very application it had been recorded in the said Order dated 24.5.2001 that "Mr. J.C. Seth, learned amices Curiae draws the support of a decision of the Supreme Court in Rajinder Kumar Kindra v. Delhi Administration Through Secretary (Labour) and Ors. , , in which it has been observed that if the Workman concerned derives some income while staying with father-in-law and helping him in the family business, that cannot be treated as a 'gainful employment'. Hence he would still be entitled to full back wages. Mr. Sabharwal, learned counsel for the Petitioner points out that this case has not been decided under Section 17-B of the Act and would have no application. The argument put forward today as well as at the previous hearings was that Section 17-B of the Act is not attracted for the reason that the Workman has himself stated that the obtained temporary work of approximately 7 to 12 days in a month. Mr. Sabharwal's contention is that in this manner, on the basis of the pleadings of the Workman, it is palpably clear that he was earning an income within which he could subsist. He further submits that full particulars of the employment ought to have been given. In my view this is a case where the Applicant/Workman has been candid enough to state that he was earning some income. This should not relegate him to a position where he would be disentitled to relief under Section 17-B of the Act merely because he was endeavoring to eke out a living. The analogy to Rajinder Kumar Kindra's case (supra) is at once obvious and apposite. Furthermore, it is only in the rarest of rare cases where a Workman states that he has earned some income. The usual stance adopted by the Workmen is that they have been unemployed since the filing of the petition. It would thus be most unfair to put the Applicant/Workman in a position of disadvantage because of his forthright statement. The decision of the Supreme Court in Dena Bank v. Kiritikumar T. Patel has been relied upon by both sides. As I understand it the question before the Court was whether "full wages which would have been drawn" should be awarded in contradistinction to "full wages last drawn". It was in this context that the Court observed that orders under Section 17-B of the Act are in the nature of grant of a subsistence allowance. It therefore, rejected the plea that it should be "full wages which would have been drawn" that should be awarded under Section 17-B of the Act. At this stage Mr. Sabharwal, learned counsel appearing on behalf of DTC, states that another opportunity to file a Reply to the application be granted. Subject to payment of Rs. 1000/- as costs to be paid within 15 days, Reply, if any, be filed within six weeks. Rejoinder, if any, within one week thereafter. I am also not impressed with the submission on behalf of the Management that payments under Section 17-B of the Act, since they are unrecoverable even in the event of the Workman losing, should be granted with great circumspection. That may be partially correct, but one should not lose sight of the fact that the Award in all these cases is for the Reinstatement of the Workman. The right to file an appeal against the Award has now been taken away, since it was felt that there should be a finality to this adjudication. Inspite of this, Managements adopt an obdurate stance and refuse reinstatement with the result that they are subjected to make payments under Section 17-B of the Act without having the advantage of taking work from the Workman concerned".
12. Finally, as has been observed in Rajinder Kumar Kindra's case (supra), the income earned from irregular temporary assignments of work cannot be taken to defeat the grant of wages envisaged in Section 17-B of the I.D. Act. The opinion of the Hon'ble Supreme Court is contained in the following passage:
"21. It was next contended on behalf of the appellant that reinstatement with full back wages be awarded to him. Mr. P.K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his cross=-examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal depot, and that he and the members of his family lived with his father-in-law and that he had no alternative source of maintenance. if this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for back wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back wages and all consequential benefits."
13. It is Mr. Sabharwal's contention that this precedent would not be applicable because the Court was considering the grant of full back wages and Section 17-B of the I.D. Act had not been called into question. However, as I see it, since the above opinion has been expressed in the context of the Labour Court/Tribunal having granted reinstatement with full back wages, the observations in Rajinder Kumar Kindra's case (supra) would apply a fortiori to all cases where this Section has been invoked. Furthermore, the right of an appeal has been taken away by an amendment to he Industrial Disputes Act, and Section 17-B of the I.D. Act has been introduced. The legislature intended a finality in the determination of the dispute by the Industrial Tribunal/Labour Court and to impart the narrow interpretation advocated by Mr. Sabharwal would wholly emasculate the statute. Even where an appeal is permitted from a money decree the jural rule is that a stay against payment/deposit of the decretal amount should not be given. All the more so when a person's livelihood and his existence is at stake. If a workman's income form transitory work is to be taken into consideration because the Section envisages only subsistence, the logical extension of the argument is that in all cases where subsistence allowance is to be granted, the alternative and other income of the delinquent workman/officer should also be investigated and then adjusted. Is the employer to be allowed to circumvent his liability to pay the subsistence allowance because the employee has an income from sources other than his salary. No such argument has as yet been advanced in service law, quite obviously because of its inherent absurdity. Section 17-B of the I.D. Act is attracted as soon as it is stated on affidavit that the concerned workman has not been 'employed in any establishment.' The legislature could have simply stated that it is attracted only if the workman has had no earnings in the said period. Alternatively the legislature need not have specified that the employment should be in 'an undertaking', thereby leaving room for the Court to construe the word 'employment' as synonymous with 'self-employment.' In the proviso to the Section instead of 'remuneration', the words 'earnings' or 'income' could have been employed. Apart from Rajinder Kumar Kindra's case (supra) it has been held in Taj Services Limited v. Industrial Tribunal-1 and Ors. , 2000-I-LLJ 198, that "under the proviso to Section 17-B of the Industrial Disputes Act what is required to be proved by the employer is that the workman had been employed in any establishment and had been receiving adequate remuneration from such employment. Being employed for remuneration in an establishment means employment under another employer. It is different from running one's own business or trade in order to remain alive to see the end of the litigation. Hence I accept the contention of the learned Counsel for workmen that respondents 2, 4 and 10 cannot be denied the benefit under Section 17-B of the Industrial Disputes Act on the ground that they are running their own business and are receiving profit from such business." Although the question in Singareni Collieries Co. ltd. v. Sk. Anwar Basha and Ors. , 1996-III-L.L.J. (Suppl.) 971 (H.C.) related to back wages which in the opinion of the Division Bench excluded "employment for short periods in order to save himself from starvation", the reasoning would also apply a fortiori to the present case. A Division Bench of the Kerala High Court in K. Jayaraman v. Quilon Gas Service and Anr. , 1995-II-L.L.J. 1150 has held that "despite the counter affidavit, there is no acceptable evidence to hold that the appellant was employed in the garment making unit of his wife. Assuming that he was so employed there is hardly any evidence with regard to the adequacy of the remuneration which he had obtained from that concern. Even if it is assumed that the appellant was getting some income from auto-rickshaws as alleged in the counter-affidavit, it would not be sufficient to hold that the proviso to Section 17-B is attracted." Self-employment quite apparently is not in contemplation since the Section itself mentions 'employment in any establishment'.
In this analysis C.M. 9585/2000 in C.W. 5556 of 1999 is allowed. The Petitioner is directed to pay the applicant, within four weeks from today the full wages last drawn by him which will not be less than the minimum wages applicable from time to time, commencing from the date of the Award till the disposal of this petition. If the workman is reinstated the Petitioner may approach the Court for a modification of the Order.
C.M. 4602/2001 in C.W. 4647/2000
14. Mr. Raj Birbal, learned Senior counsel appearing on behalf of Petitioner, contends that the Minimum Wages Act, 1948 is not applicable to the Petitioner, namely, Bal Bhavan Society India. From a reading of the petition it is evident that the Petitioner is engaged in the education of under privileged children. It is his contention that since the Petitioner is not a 'scheduled' employer', it is not liable to pay the minimum wages. In the first place the observations of the Hon'ble Supreme Court in its numerous judgments, that minimum wages must be paid regardless of whether the industry is driven by profit motive or by charitable objectives, immediately comes to mind. Furthermore, the definition of 'wages' in the three Statutes does not in any manner carve out any exception to the payment of minimum wages. Therefore, it is not necessary to delve further into the circumstances in which the Minimum wages Act would be attracted. On a perusal of the Notifications on the minimum rates of wages in Delhi, the Schedule in respect of - 'Employment in Private Unrecognised Teaching Institutions' - when perused would show that the Respondent-Workman can legitimately claim the wages payable to graduates under the category of teaching staff. It will be relevant to mention the whereas the Petitioner has alleged that the Respondent-Workman is a Registered Medical Practitioner this fact has been controverter and counsel for the Workman submits that the Workman is only a graduate.
15. The facts of this case will also fortify and strengthen the view that I have taken, namely, that at least minimum wages, as notified from time to time, must be granted and these must be with effect from the date of the passing of the Award. The Reference before the Labour Court is stated to have been pending since 1986, that is, for one and a half decades, and after cross-examining the Workman, the Management failed to appear and hence was set ex parte. NO satisfactory explanation has been tendered in respect to why the Petitioner was absent on the date when he was set ex pate and also as to why no action for setting aside the ex parte order was taken between 22.11.1999 and 22.2.2000. The intention of the Petitioner, prima facie, appears to be to protract the litigation. On 5.1.2001 the operation of the impugned order had been stayed. The effect is that the Workman may find it problematic to claim either backwages or reinstatement. If relief under Section 17-B of the I.D. Act is not granted, in its fullest dimensions, a travesty of justice would occur. It cannot be gainsaid that the interim Orders can be declined or recalled since the presumption is that the Management would prefer not to reinstate the workman even though it would nonetheless have to pay his 'wages last drawn'.
16. The Petitioner is directed to pay the Applicant, within four weeks from today, the full wages last drawn by him which will not be less than the minimum wages applicable from time to time commencing form the date of the Award till the disposal of the petition.
C.M. 4602/2001 is allowed accordingly.
C.M. 2971/2001 in C.W. 2112/99.
17. For the reasons stated above C.M. 2971/2001 is allowed. The Petitioner is directed to pay the Applicant, within four weeks form today, the full wags last drawn by him which will not be less than the minimum wages applicable from time to time commencing from the date of the Award till the disposal of the petition.
C.M. 10197/2001 in C.W. 3064/2001.
18. For the reasons stated above C.M. 10197/2001 is allowed. The Petitioner is directed to pay the Applicant, within four weeks from today, the full wages last drawn by him which will not be less than the minimum wages applicable from time to time commencing from the date of the Award till the disposal of the petition.
