New India Assurance Co. Ltd. vs Narender Kumar
2006 Latest Caselaw 1595 Del

JUDGMENT

S. Muralidhar, J.

1. This letters patent appeal is directed against the impugned judgment dated 3.9.2005 passed by learned Single Judge in CM No. 16042 of 2005 in Writ Petition (C) No. 6293 of 2001. By the impugned order the learned Single Judge varied an earlier order dated 10.5.2002 and directed that the Respondent workman shall be paid wages at the minimum wage rate notified by the Statutory Authority from time to time with effect from the date of the award.

2. The brief facts leading to the filing of the present appeal are that the Respondent workman was appointed as an Assistant (Clerical) on daily wage basis with effect from 12.8.1985. He claimed that he was continued till 16.5.1996 with artificial breaks and had completed more than 240 days of service. By its award dated 21.8.2001, the Labour Court held that the termination of the services of Respondent workman was illegal and directed that he would be entitled to be continued in service with full back wages.

3. Aggrieved by the award dated 21.8.2001, the appellant filed Writ Petition (Civil) No. 6293 of 2001 in this Court. On 18.12.2001 Rule was issued and the operation of the award was stayed subject to the condition that the appellant would deposit in the Court a sum of Rs 1,70,000/- within two weeks. It was made clear that however, this shall not affect the Court's jurisdiction to pass appropriate orders under Section 17B of the Industrial Dispute Act if so invoked. An appeal preferred by the appellant against the said stay order, was dismissed on 28.1.2002 with the following observation:

We note that the learned Single Judge has not given any direction so far as the relief under Section 17B of the Industrial Disputes Act, 1947 is concerned. It will be open to the appellant to raise such plea as may be available to him in law before the learned Single Judge in case the respondent invokes Section 17B of the Industrial Dispute Act, 1947.

In view of the above observations, the appeal fails and is hereby dismissed.

4. Thereafter the Respondent filed an application under Section 17B of the Industrial Dispute Act ('IDAct'). By an order dated 10.5.2002 a learned Single Judge allowed the application and directed as under:

In view of the aforesaid submissions as noted above, the ends of justice would be met by payment of the last drawn wage by the petitioner to the respondent/workman w.e.f. 12.10.2001 @ Rs 720/- per month. Arrears be paid within six weeks from today and thereafter the payment be made month by month during the pendency of the writ petition, unless the petitioner finds thats the respondent is gainfully employed. In case, it is so, petitioner is at liberty to move the Court.

The amount deposited by the petitioner be kept in an FDR to be made from UCO Bank, Delhi High Court branch, New Delhi, initially for a period of one year.

Application stands disposed of.

5. Thereafter the Respondent workman on 17.8.2004 filed an application being CM No. 10620 of 2004 in which the Respondent pointed out that the sum of Rs 720/- per month being the last drawn wages was not sufficient to meet even the barest need of the workman and his family. He accordingly prayed that at least half of the sum of Rs 1,70,000/- deposited by the appellant be released to the Respondent workman pending disposal in the writ petition. By the impugned order dated 3.9.2005, the learned Single Judge disposed of the said application in the manner noted at the beginning of the judgment.

6. Learned Counsel for the appellant assails the orders of the learned Single Judge first on the ground that the application moved by the Respondent workman for release of a part of sum of Rs 1,70,000/- was not maintainable as there was no provision other than under Section 17B of the ID Act which could be invoked by the workman for payment of wages pending the disposal of the writ petition. Next, it was submitted that in any event the order dated 10.5.2002 directing the last wages to be drawn from the date of the award ought not to be modified or varied as has been done by the learned Single Judge in the impugned order. In other words, it is submitted that the learned Single Judge could not have ordered the payment of a sum over and above the last wages drawn, viz., the minimum wages, to be payable from the date of the passing of the award.

7. We do not find any merit in the submissions of learned Counsel for the appellant. The law in relation to payment to be made under Section 17B of the ID Act is fairly well settled. Section 17B of the ID Act reads as under:

Section 17B 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.

8. The expression full wages last drawn was considered in detail in Dena Bank (I) v. Kiritikumar T. Patel . After noticing the Statement of Objects and Reasons for the insertion of Section 17B and several decisions of the High Courts as well as the Hon'ble Supreme Court, it was held as under (SCC p.226 para 22):

22. In our opinion, the expression full only emphasizes that all the emoluments which was included in wages as defined in Clause (rr) of Section 2 of the Act so as to include the amounts referred to in sub-clauses (i) to (iv) are required to be paid. In this context, it may also be mentioned that in Section 17B Parliament has also used the words inclusive of any maintenance allowance admissible to him under any rule. These words indicate that maintenance allowance that is admissible under any rule is required to be paid irrespective of the amount which was actually being paid as maintenance allowance to the workman. But with regard to wages, Parliament has used the words full wages last drawn indicating that the wages that were actually paid and not the amount that would be payable are required to be paid.

As regards the powers of the High Court and the Supreme Court to award an amount higher than the last drawn wages, it was held as under (SCC p.116, para 23):

23. As regards the powers of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution, it may be stated that Section 17B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour Court, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass an order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be de-hors the provisions contained in Section 17B and while giving the direction, the court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. that in exercise of the power under Articles 226 and 136 of the Constitution, an order can be passed denying the workman the benefit granted under Section 17B. The enforcement of such a right under Section 17B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Articles 226 and 136 of the Constitution.

9. The above decision was reiterated in Dena Bank (II) v. Ghanshyam in the following words:

12. 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 an interim order the High Court did not grant relief in terms of Section 17B, 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.

10. Therefore, Dena Bank (II) settled the legal position that the High Court can direct payment of an amount higher than last drawn wages mentioned in an application under Section 17B ID Act. It was further made clear that a workman could get relief in terms of Section 17B of the ID Act, from the date of the award till the challenge to the award was finally decided. The learned Counsel for the appellant relied on decisions of two Division Benches of this Court in Indra Perfumery Co. v. Presiding Officer and Ashok Hotel v. Govt. of NCT of Delhi to suggest that in those cases the order was only for the payment of the last wages drawn. In neither of those cases has the Court refused to award minimum wages, where the minimum wages were higher than the last drawn wages. In any event, those decisions will have to be understood in the light of the settled law laid down by the Hon'ble Supreme Court in Dena Bank (I) and (II, which are binding on this Court.

11. Reverting to the facts of the present case there is no manner of doubt that the workman has satisfied the conditions set out in Section 17B and the learned Single Judge rightly allowed the said application of the workman on 10.5.2002 directing that he would be paid the last drawn wages. However, the direction was that he would be paid with effect from 12.10.2001 whereas it should have been from 21.8.2001, the date of the award. Secondly, the direction should have been to pay the last drawn wages or the minimum wages whichever is higher. In those circumstances, the Respondent workman was justified in seeking the modification of the order dated 10.5.2002. In our view, the impugned order dated 30.9.2005 of the learned Single Judge directing that the workman should be paid statutory minimum wages which is higher than the last wages drawn and that such payment should be made from the date of award, i.e. 21.8.2001, is in conformity with the law laid down by the Hon'ble Supreme Court and calls for no interference. Also, in exercise of the wide jurisdiction under Article 226 the learned Single Judge was justified, in the interests of justice to modify the earlier order to bring it in conformity with the settled law.

12. In that view of the matter, no ground is made out for interfering with the impugned order of the learned Single Judge. The appeal is dismissed with no order as to costs.