Hindaloo Indutsties Ltd. vs Suman Lata Tuteja And Ors.
2006 Latest Caselaw 718 Del

JUDGMENT

Gita Mittal, J

1. The respondent/workman by this application has sought enhancement of the wages which have been directed to paid to her under Section 17-B of the Industrial Disputes Act. It has been submitted by the respondent that by the order dated 30th July, 2001 which was passed on her application under Section 17-B of the Industrial Disputes Act, this Court had placed reliance on the pronouncement of the Supreme Court reported at 1999 II SCC 106 Dena Bank v. Kirtikumar to hold that the workman was entitled to wages last drawn which was Rs. 1525/- per month from the date of the award until further orders. There is no dispute that the workman has been paid wages in compliance of the orders passed and that she is receiving month by month wages on the same basis.

2. It has been contended that since the passing of the order, several pronouncements of the Apex Court and of this Court have held that the interim wages to which a workman would be entitled would be at the rate of minimum wages which are notified by the statutory authorities from time to time. The applicant averred that she is under treatment for Cancer and is in dire need of money on this account. The delay in filing the application has been explained by the stress, strain and tension from the disease and her dix financial straits. The workman has sought a direction to the respondent to make payment of a sum of Rs. 1,15,669/- till December, 2004 based on the minimum wages which have been notified by the authorities from time to time after adjustment of the amount which she has received and a direction to the respondent to make payment of the wages at the rate notified by the statutory authorities thereafter as per the notifications issued from time to time.

3. The respondent has vehemently opposed this application primarily on the ground that the application of the workman stands duly considered and that on applicability of principles of resjudicata, this application is not maintainable. It is also contended that Section 17-B grant of only wages which are at the rate of wages which were last drawn by the workman at the time of termination of the service and nothing beyond the same is permissible or admissible.

4. I have heard learned Counsel for the parties at great length. The issue raised before this Court relates to the jurisdiction of this Court to vary on order of interim wages granted in favor of the workman and the extent thereof.

5. In this behalf, I may also usefully advert to the pronouncement of the Apex Court in Dena Bank v. Kirtikumar wherein the court held thus:

7. ...It would thus appear that the object underlying the enacting of the provisions contained in Section 17-B is to give relief to the workman in whose favor an award of reinstatement has been passed by the Labour Court and the said award is under challenge in the High Court or this Court. The said relief has been given with a view to relieve the hardship that would be caused to a workman on account of delay in implementation of the award as a result of the pendency of the proceedings in the High Court or this Court. The question for consideration is : what is the extent to which such relief has been granted to a workman under this provision? The Objects and Reasons do not indicate an answer to this question and its answer has to be found in the provisions of the enactment. Since the expression full wages last drawn in Section 17-B has been construed by the various High Courts in the decisions referred to above we would briefly refer to the same.

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 to 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 words to mean wags 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.

6. The law was further elucidated by the Apex Court in Dena Bank v. Ghanshyam wherein the court has directed thus:

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.

13. It must, however, be pointed out that while passing an interlocutory order the interests of the employer should not be lost sight of. Even though the amount paid by the employer under Section 17-B to the workman cannot be directed to be refunded in the event he loses the case in the writ petition (see Dena Bank case) any amount over and above the sum payable under the said provision, has to be refunded by him. It will, therefore, be in the interests of justice to ensure, if the facts of the case so justify, that payment of any amount over and above the amount payable under Section 17-B to him, is ordered to be paid on such terms and conditions as would enable the employer to recover the same.

Therefore, there can be no dispute and has been so clearly laid down by the Apex Court that in exercise of its powers and jurisdiction while entertaining a writ petition under Article 226 of the Constitution of India, this Court can appropriately make an interim order directing payment of wages to the workman which is beyond the last drawn wages.

7. The issues raised before this Court have arisen for consideration in several cases and the principles thereof also stand settled in several judicial pronouncements of this Court as well. I may advert to the judgment of this Court reported at 2002 II AD Delhi 112 DTC v. Presiding Officer, Labour Court No. 1, Delhi and Ors. wherein the court held thus:

7. Management counsel have belaboured the observations of the Hon'ble Supreme Court in Dena Bank 1 (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 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, 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) LJJ 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 quire 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 AIR 1983 SC 328 it has been observed that in so far as Rajasthan Famine Relief Works Employees (Ememption 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 inescapable that wherever wages are in contemplation, they cannot fall below the minimum wages, whether the inquiry is on wage fixation, fair wage or interim relief under Section 17-B of the I.D. Act, or whatever.

8. The view taken in this judgment was affirmed in 2005 IV AD Delhi 184 Delhi Gymkhana Club Limited v. The Government of NCT of Delhi and Ors. It was also observed that inasmuch as there was no concealment of material facts by the workman or objection in the written statement pertaining to the issue as to gainful employment during the pendency of the proceedings of the labour department by the workman, the management should be better advised to utilize the services of a workman while writ petitions are pending assailing industrial, labour or industrial awards less the latter and subsequently feel the pinch of having to pay wages to whose services have not been availed of for any fault of the workman concerned. It was held that there can be no reason to expect the workman to starve himself and his family to death because the management filed a writ petition assailing the award.

9. The judgment of the learned Single Judge in DTC v. Presiding Officer, Labour Court I and Ors. was assailed before the Division Bench which rejected the challenge thereto in its judgment reported at 2003 VI AD Delhi 2005 also entitled DTC v. Presiding Officer. The Division Bench held thus:

6. On the issue of whether the payment under Section 17-B of the Act should be from the date of the award, the learned Single Judge's judgment analyzing the legislative intendment is unassailable. The learned Single Judge in our view has rightly come to the following finding after taking into account the law laid down by the Hon'ble Supreme Court in Dena Bank II:

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 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.

Thus on the issue of the date from which payment under Section 17-B is to be made, we affirm the view taken by the learned Single Judge.

7. In so far as reliance by the appellants on Dena Bank I on the question of minimum wages exceeding last drawn wages is concerned, the issue was crystallized by the Hon'ble Supreme Court as to whether the 'full wages drawn' contemplated by Section 17-B of the Act meant wages drawn at the time of termination of employment or wages which would have been drawn on the date of the Award. It is only in this context that the Hon'ble Supreme Court observed that the phrase full wages last drawn' must be given its plain and material meaning.

10. The issue then remains as to what would be the quantum of wages which would be considered a fair and reasonable amount necessary for subsistence of a workman. In this behalf, the principles of law laid down in Sanjit Roy v. State of Rajasthan and People's Union for Democratic Rights v. The Union of India AIR 1982 SC 1472 may be usefully adverted to.

11. The Sanjit Roy case (supra) related to a case where the workman was engaged for famine relief and it was urged by the state that for this reason applicability of the Minimum Wages Act was to be excluded. Even in these facts the final court held thus:

4. If this be the correct position in law, it is difficult to see how the constitutional validity of the Exemption Act in so far as it excludes the applicability of the Minimum Wages Act, 1948 to the workmen employed in famine relief works can be sustained. Article 23, as pointed out above, mandates that no person shall be required or permitted to provide labour or service to another on payment of anything less than the minimum wage and if the Exemption Act, by excluding the applicability of the Minimum Wages Act, 1948, provides that minimum wage may not be paid to a workman employed in any famine relief work, it would be clearly violative of Article 23. The respondent however contended that when the State undertakes famine relief work with a view to providing help to the persons affected by drought and scarcity conditions, it would be difficult for the State to comply with the labour laws, because if the State were required to observe the labour laws, the potential of the State to provide employment to the affected persons would be crippled and the State would not be able to render help to the maximum number of affected persons and it was for this reason that the applicability of the Minimum Wages Act, 1948 was excluded in relation to workmen employed in famine relief work. This contention, plausible though it may seem is, in my opinion, unsustainable and cannot be accepted. When the State undertake famine relief work, it is no doubt true that it does so in order to provide relief to persons affected by drought and scarcity conditions but nonetheless, it is work which enures for the benefit of the State representing the society and if labour or service is provided by the affected persons for carrying out such work, there is no reason why the State should pay anything less than the minimum wage to the affected persons. It is not as if a dole or bounty is given by the State should pay anything less than the minimum wage to the affected persons. It is not as if a dole or bounty is given by the State to the affected persons in order to provide relief to them against drought and scarcity conditions nor is the work to be carried out by the affected persons worthless or useless to the society so that under the guise of providing work what the State in effect and substance seeks to do is to give a dole or bounty to the affected persons. The Court cannot proceed on the basis that the State would undertake by way of famine relief, work which is worthless and without utility for the society and indeed no democratic State which is administered by a sane and sensible Government would do so because it would be sheer waste of human labour and resource which can usefully be diverted into fruitful and productive channcels leading to the welfare of the community and creation of national asset or wealth. It is difficult to appreciate why the State should require the affected persons to provide labour or service on work which is of no use to the society, instead of simply distributing dole or bounty amongst the affected persons. There is no reason why the State should resort to such a camouflage. The presumption therefore must be that the work undertaken by the State by way of famine relief is useful to the society and productive in terms of creation of some asset or wealth and when the State exacts labour or service from the affected persons for carrying out such work, for example, a bridge or a road, which has utility for the society and which is going to augment the wealth of the State, there can be no justification for the State not to pay the minimum wage to the affected persons. The State cannot be permitted to take advantage of the helpless condition of the affected persons and exact labour or service from them on payment of less than the minimum wage. No work of utility and value can be allowed to be constructed on the blood and sweat of persons who are reduced to a state of helplessness on account of drought and scarcity conditions. The State cannot under the guise of helping these affected persons exact work of utility and value from them without paying them the minimum wage. Whenever any labour or service is taken by the State from any person, whether he be affected by drought and scarcity conditions or not, the State must pay, at the least, minimum wage to such person on pain of violation of Article 23 and the Exemption Act in so far as it excludes the applicability of the Minimum Wages Act, 1948 to workmen employed on famine relief work and permits payment of less than the minimum wage to such workmen, must be held to be invalid as offending the provisions of Article 23. The Exemption Act cannot in the circumstances be relied upon by the respondent as exempting it from the liability to pay minimum wage to the workmen engaged in the construction work of Madanganj Harmara Road.

12. In People's Union for Democratic Rights v. Union of India AIR 1982 SC 1472, it was held by the Supreme Court that:

...we are, therefore, are of the view that where a person provides labour of service to another for remuneration which is less than the minimum wages, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right minimum wages to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied.

I must, therefore, hold consistently with this decision that where as person provides labour or service to another for remuneration which is less than the minimum wages, the labour or service provided by him clearly falls within the meaning of the words 'forced labour' and attracts the condemnation of Article 23. Every person who provides labour or service to another is entitled at the least to the minimum wage and if anything less than the minimum wage is paid to him he can complain of violation of his fundamental right under Article 23 and ask the court to direct payment of the minimum wages to him so that the breach of Article 23 may be abated.

13. A learned single Judge of this Court also had an occasion to consider this issue. By the judgment dated 3rd January, 2003 in writ petition(civil) No. 3654 & 3675/1999 in Delhi Council for Child Welfare v. Union of India, it was held that minimum wages is the bare minimum which can be ordered to be paid in favor of a workman. Therefore, it has been repeatedly pronounced by the Apex Court and this Court that such wages deserved to be awarded as an interim order where a writ petition is filed by an establishment impugning an award directing reinstatement into service of the workman.

14. In this view of the matter, the obligation to pay minimum wages is derived from the provisions of the Constitution of India. Such minimum wages have been held by the Apex Court as being the bare minimum which is necessary to enable a workman to subsist. Therefore, the minimum wages which are notified by the statutory authorities from time to time would be a fair amount of wages to which a workman would be entitled to keep body and soul together during the pendency of the management's challenge. Consequently, for the sole purpose of arriving at a fair and reasonable amount which would be necessary to be awarded to a workman as an interim measure towards the non-refundable subsistence allowance, the minimum wages notified by the authorities would be a reasonable amount.

15. In view of the principles of law laid down by the Apex Court, I am unable to agree with learned Counsel for the respondent that the workman is required to be given only the last drawn wages.

16. The question which remains to be answered is as to whether an order dated 30th July, 2001 having been passed on the application of the workman seeking interim wages, whether the same can be varied by and subsequent application filed by the workman. At this stage, it is also necessary to examine the averments which have been made by the workman seeking the relief sought in the present application. The applicant has placed on record the submission that she is under treatment for cancer at the Appollo Hospital. The copy of the treatment sheet has been placed before this Court which shows that the workman is undergoing continuous treatment. This disease is undoubtedly life endangering and the treatment for the same is expensive and difficult. There is no reason to disbelieve the statement of the workman that she is under tremendous stress, strain and tension and for this reason was unable to file the application earlier. She is undergoing treatment at the Inderprastha Appollo Hospital and would obviously be expending both time and money on the same. The workman has stated that she is in dire need of money.

17. The very fact that the order dated 30th July, 2001 records that the workman is not gainfully employed and that the petitioner has continued to comply with the order made would also show that the workman remains unemployed.

18. There is also no dispute that the workman could have couched the prayer made in the present application differently. She could have made and maintained a prayer for modification or review of the order dated 30th July, 2001. It is not disputed that such applications would be maintainable. There is also no dispute that the pronouncements of the Apex Court in Dena Bank v. Ghanshyam was reported subsequent to the passing of the order on 30th July, 2001 and the judgment of this Court in DTC v. Presiding Officer, Labour Court 96 2002 DLT and of the Division Bench in DTC v. P.O. L.C. 2003 6 AD (Delhi) 2005 equivalent to as well as in Indra Perfumary Co. Through Sudershan Oberoi v. Presiding Officer and Ors. reported in 2004 III AD (Delhi) 337 were subsequent to the date on which the order dated 30th July, 2001 was passed.

19. It cannot be disputed that on account of the escalation of cost of living index from 1986 when the respondent's services were terminated, the amount of Rs. 1525/- which was being paid at that time would be grossly insufficient in order to even subsist in 2000. By the order dated 30th July, 2001, the petitioner has been directed to pay only last drawn wages to the workman. Coupled with the fact that the respondent/workman is having to spend money on a treatment, her financial state would be rendered more precarious with every passing day. For all these reasons, the contention of the petitioner that the application under consideration is not maintainable is also hereby rejected.

20. It has well settled that upon change of status or change in the need, a person is entitled to seek variation in an order of maintenance or subsistence which may have been passed in his/her favor.

21. It is equally well settled that principles of resjudicata would be applicable to industrial adjudication and that the same may apply even at different stages of the same proceedings. However in the instant case, the same are neither attracted nor applicable. The argument urged on behalf of the petitioner can be tested from yet another angle. Assuming that after the passing of an order under Section 17-B of the Industrial Disputes Act, the workman obtains gainful engagement/employment and information and evidence in respect thereof is obtained by the management. If the submission made on behalf of the petitioner was accepted, then the management would be precluded from seeking a variation or vacation of the orders granting interim wages in favor of the workman despite the workman obtaining employment at a date after the passing of the order in his favor. This can never be so.

22. In any case, I have found that the workman has relied on facts and judicial pronouncements which are subsequent to the passing of the order to seek the relief which had been sought in the application. Therefore, in the instant case, it has to be held that the workman would be entitled to grant of minimum wages which are notified by the statutory authorities from time to time. So far as the date from which such an order would required to be passed, the workman has prayed for grant of such wages with effect from the date of the award.

23. The wages granted to a workman on its application are in the nature of non-refundable subsistence allowance. The order was passed in favor of the workman on 30th July, 2001. The workman has pleaded impoverishment and dire financial straits. Whatever be the reason, however this application has been filed on or around the 10th January, 2005. In the stated circumstances, keeping in view the purpose for which the power of the court is to be exercised, delay ought not to defeat relief. In my view, ends of justice would be met if the application is granted with effect from the date on which the order The petitioner shall be entitled to adjust the amount of wages which stand paid to the workman while computing the amount to which the workman would be entitled in terms of the orders passed today.

24. The interest of the petitioner is required to be also protected while making an order granting the wages. In view thereof, it is directed that the respondent/workman shall be entitled to wages in terms of the order upon her filing an undertaking in this Court to the effect that in the event of this Court holding in favor of the petitioner in the main petition, the respondent/workman shall be liable to reimburse the differential between the last drawn wages and the wages which are received by her under orders of this Court to the petitioner.

This undertaking shall be filed within a period of two weeks from today.

Arrears in terms of the order passed today shall be paid to the workman within a period of four weeks thereafter. Month by month wages shall be paid to the workman at the same address on or before the 10th day of each English calender month at the same address.

This application is allowed in the above terms.