Ashok Hotel vs Govt. Of Nct Of Delhi And Ors.
2005 Latest Caselaw 1039 Del

JUDGMENT

B.C. Patel, C.J.

CM No. 10102/2005

Allowed, subject to all just exceptions.

LPA No. 1619/2005

1. Admit.

2. At the request of the learned counsel, the appeal is taken up for final disposal.

3. Learned counsel for the respondent waives service. This appeal is preferred against the order made by learned Single Judge under Section 17-B of the Industrial Disputes Act, 1947 (hereinafter referred to as the "said Act"). On 11th April, 2005 in CM No. 7340/2005, the Court after considering the application on merits held that the workman is entitled to relief and that he shall be paid arrears of wages last drawn by him or the minimum wages whichever is higher from the date of award and such payments will be continued to be made month to month.

4. It is against this direction the present appeal is filed.

5. Learned counsel appearing for the appellant/ employer has contended that in view of language of Section 17-B of the said Act the workman is entitled at the most to get last drawn wages from the date on which the Court passed an order. Section 17-B of the said Act reads as under:

"Section 17-B. Payment of full wages to workman pending proceedings in 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 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".

6. This question was considered by Single Judges of this Court and in view of conflicting opinions expressed by them, the matter was referred to a larger Bench in the case of Indra Perfumery Co. v. Presiding Officer and Ors., 109 (2004) DLT 927, wherein the Court after examining the provisions contained in the Act, the policy and the decision of the Apex Court and following the decision of the Apex Court in Dena Bank v. Ghanshyam JT 2001 (Supp. 1) SC 229, held that the employer shall be liable to pay workman during the period of pendency of the proceedings in the High Court full wages last drawn by him inclusive of any maintenance allowance etc., as indicated in Section 17-B of the Act and that too from the date of the award.

7. Learned counsel for the appellant drew our attention to the decision of Division Bench of this Court in the case of Fouress Engineering (I) Pvt. Ltd. Vs. Delhi Administration and Ors., reported in 1992 LLJ 710. In para 9 of the judgment the Division Bench took the view as under :

"9. From a perusal of the above passages, it may appear that even for back wages Section 17-B makes a provision. However, as already considered above, Section 17-B does not deal with the period prior to the preferring of proceedings before High Court or Supreme Court."

8. It is in view of this, learned counsel submitted that this judgment was not brought to the notice of the Division Bench while deciding the issue in the case of Indra Perfumery Co. case (supra). It is true that judgment was not pointed out to the Division Bench while disposing of the matter, nonetheless fact remains that the Division Bench considered the Supreme Court judgment in Dena Bank case (supra). It is also required to be noted that the decision of the Apex Court is subsequent to the decision of the Division Bench of this Court in M/s Fouress Engineering (I) Pvt. Ltd. case, (supra). The Apex Court in Dena Bank case in paras 10 and 12 observed as under :

"10.It may be noticed that Section 17-B of the Act does not preclude the High Courts or this Court under Articles 226 and 136 of the Constitution respectively from passing appropriate interlocutory orders, having regard to the facts and circumstances of the case, in the interests of justice (Dena Bank case). The High Court or this Court may, while entertaining the employer's challenge to the award, in its discretion, in appropriate cases, stay the operation of the award in its entirety or in regard to back wages only or in regard to reinstatement without interfering with payment of back wages or on payment of wages in future irrespective of the result of the proceedings before it etc., and/or impose such conditions as to the payment of the salary as in the date of the order or a part of the back wages and its withdrawal by the workman as it may deem fit in the interests of justice. The Court may, depending on the facts of a case, direct payment of full wages last drawn under Section 17-B of the Act only by the employer to the workman. The question whether a workman is entitled to the full wages last drawn or full salary which he would be entitled to in the event of reinstatement while the award is under challenge in the High Courts or this Court depends upon the terms of the order passed by the Court, which has to be determined on interpretation of the order granting relief."

"12. We have mentioned above 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 which is in accord with the Statement of objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17-B was inserted in the Act. We have also pointed out above that Section 17-B 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 an interim order the High Court did not grant relief in terms of Section 17-B, nay, 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 not 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."

9. Thus it is very clear as pointed out by the Apex Court that while passing interlocutory orders the interest of both the parties are required to be considered. While protecting the interest of the employer the Apex Court directed that if more than the last drawn wages are to be paid then that amount is required to be protected by imposing some conditions with a view to see that the said excess amount can be recovered from the workman. No doubt learned Single Judge while deciding the application has not given such direction and the counsel for the workman has fairly conceded that such direction, if given, the workman could not have objected to the same. It is pointed out by the counsel for the workman that last drawn wages is more than minimum wages.

If he is required to be paid wages more than last drawn wages, in the instant case, he will be required to furnish a personal bond in view of the observations made by the Apex Court in the case of Dena Bank case (supra).

10. In so far as the issue of the relevant date from which the wages have to be paid, in view of the observations made in Dena Bank case (supra) relied upon in Indra Perfumery Co. case (supra), the date of the award which would be relevant date and not the date of filing of the proceedings in the High Court or the date of the order. The earlier judgment of the Division Bench in Fouress Engineering (I) Pvt. Ltd. case, (supra) cannot be said to hold water in view of the judgment of the Supreme Court in Dena Bank case (supra). Learned counsel for the appellant sought to contend that in Dena Bank case (supra), the Apex Court was not concerned with the issue of the date from which such amount is liable to be paid under Section 17-B of the said Act and the only issue was whether amount higher than the minimum wages could be granted.

11. We are unable to accept this plea in view of clear observations on the principle of law in Dena Bank case (supra) where it has been observed that 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 and this is accordance with the Statement of Objects and Reasons of the said Act.

12. The appeal stands disposed of.

13. In view of the decision of Apex Court, the law laid down in case of Fouress Engineering (I) Pvt. Ltd. case (supra) cannot be said to be a good law.

14. In view of what we have stated here-in-above, the appeal stands disposed of.

CM No. 10101/2005

Dismissed.