The Management Of The Delhi ... vs The Govt. Of Nct Of Delhi And Ors.
2005 Latest Caselaw 444 Del

JUDGMENT

Vikramajit Sen, J.

1. This Application has been filed under Section 17 of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act'). The Management of the Delhi Gymkhana Club has preferred this Writ Petition under Article 226 of the Constitution assailing the Award of the Labour Court which held that the services of the Workman/Respondent/Applicant had been terminated illegally/unjustifiably and that he was entitled to reinstatement with full back wages in continuity of service.

2. The ramifications arising out of Section 17 of the Act had been considered in some detail in Delhi Transport Corporation and Ors. v. The Presiding Officer, Labour Court No.1, Delhi and Ors., 2002 (2) AD (Delhi) 112 : 2002(1996) DLT 103 wherein I had expressed the opinion that in money disputes pre-deposit of the amount is the usual practice; that there is no inherent right to an Appeal, and it flows out of a statute; since an Appeal has not been provided under the Industrial Disputes Act, an Award should normally be given effect to immediately, as the Legislature intends to give it finality; while ordering payment of wages last drawn, this should not fall below the minimum wages prescribed by the Administration; self-employment does not per se dis-entitle a person to the benefits under Section 17; and an endeavor to eke out a living by transient employment will also not bar the grant of Relief under Section 17. The precedents on the subject have been discussed in detail in the said Judgment and do not propose to burden this Order with a reiteration thereof.

3. Mention should be made to the decision of the Hon'ble Supreme Court in Workmen reptd. by Hindustan V.O. Corpn. Ltd. v. Hindustan Veg. Oils Corpn. Ltd. and Ors., where the practice of disposal of the Petition as well as the application under Section 17 of the Act contemporaneously had been deprecated and the High Court had been directed to first expeditiously dispose of the application under Section 17 of the Act. A non-speaking one word Order i.e. Rejected, had been set aside by the Hon'ble Supreme Court in Prabhakar Baburao Bokde v. Bank of Baroda, Nagpur, 2000 LAB. I.C. 3352 and the High Court was directed to dispose it of on merits. I did not also have the advantage of the view of the Hon'ble Division Bench of the Kerala High Court in Commandant, defense Security Corps Centre, Cannanore v. Secretary, N.C.C. Group URC Employees Association, Calicut, 2001 LAB. I.C.2002 in which it had been clarified that the full wages last drawn should not be construed to mean wage that may have been drawn had the Workman continued in service, and more importantly, that the benefit of Section 17 of the Act cannot be denied merely because the Workman is engaged in some activity or in some vocation to eke out his livelihood. Relief under Section 17 of the Act can be denied only if it is proved that the Workman is gainfully employed in some Establishment and is receiving adequate and regular remuneration.

4. The decision in DTC's case (supra) was unsuccessfully assailed in a Letter Patent Appeal (LPA) before the Hon'ble Division Bench in Delhi Transport Corporation v. Presiding Officer, Labour Court No.I and Ors., 2003 VI AD (Delhi) 205. The modification that was carried out was that so far as the difference between minimum wages and last wages drawn was concerned some guarantee for recompense/restitution could be ordered from the Workman concerned.

5. So far as the facts of the present case are concerned it has been asseverated that the Petitioner had concealed material facts in that he had worked as an Agent of Herbalife, as a Consultant of Life Insurance Corporation of India (LIC) as well as the Unit Trust of India (UTI). Certificates have been placed on record issued by the LIC of India as well as the UTI stating that the Agencies have been terminated. No proof of regular payments received from Herbalife have been filed by the Management. I do not find that there is any concealment of material facts or wrong statement pertaining to the question of whether the Petitioner had been gainfully employed during the pendency of the proceedings of the Labour disputes. Managements should be better advised to utilise the services of a Workman while Writ Petitions are pending assailing Industrial/Labour Awards lest the latter should subsequently feel the pinch of having to pay wages to a person whose services have not been availed of for no fault of the Workman concerned. There can be no reason to expect the Workman to starve himself and his family to death because the Management has filed a Writ Petition assailing the Award. Court should be loathe to allow Managements, because of their comparative financial power, to misuse judicial proceedings knowing the existing backlog.

6. The Application is allowed. The Petitioner is directed to pay the Applicant/Workman, 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 Writ Petition.