Delhi Development Authority vs The Labour Commissioner And Ors.
2008 Latest Caselaw 102 Del

JUDGMENT

Anil Kumar, J.

CM No. 6664/2007

The learned counsel for the respondents does not press the application.

Application is Dismissed as withdrawn.

CM No. 2279/2006

1. This is an application by respondent No. 4, (Sh. Virender); Respondent No. 8, (Smt. Daya); Respondent No. 9, (Smt. Santosh); Respondent No. 10, (Smt. Bimla); Respondent No. 11, (Mr. Kishan Lal); Respondent No. 24, (Mr. Hari Om); Respondent No. 25, (Mr. Satpal Singh); Respondent No. 43, (Mr. Dal Chand); Respondent No. 44, (Mr. Mukesh Grover); Respondent No. 45, (Mohd. Abid); Respondent No. 46, (Smt. Raj); Respondent No. 49, (Mr. Pritam); Respondent No. 50, (Mr. Subhash Chand); Respondent No. 51, (Mr. Vijay Bakshi) and Respondent No. 52, (Mr. Pushap Kumar) under Section 17B of Industrial Disputes Act, 1947 for a direction to the petitioner/Delhi Development Authority to pay full wages last drawn or minimum wages whichever is higher as the respondents/applicants are unable to maintain themselves and their family members although all efforts are being made by them to secure some sort of employment but they have not succeeded in getting any employment.

2. The application is supported by the affidavits of these respondents deposing categorically that they could not get any employment after termination of their services though they have been continuously trying to obtain the same at every possible place and they are not engaged with any other employers/firms/companies/establishments.

3. The reply to the application was not filed despite opportunity given from time to time. On 9th May, 2007 last and final opportunity was granted to the petitioner to file the reply, however, reply was not filed. On 13th September, 2007 the counsel for the petitioners/non-applicants, however, stated that she does not want to file any reply to the application of the respondents/applicants to their application under Section 17B of the Industrial Disputes Act, 1947.

4. Though the counsel for the petitioners/non-applicants had contended that reply is not to be filed on 13th September, 2007 but on 8th January, 2008 counsel for the petitioner again sought time to take instructions.

5. Today the learned counsel for the petitioners states that the addresses of the respondents/applicants were not available and, therefore, it could not be ascertained whether they are gainfully employed or not.

6. Perusal of the application filed by the above noted respondents/applicants reflect that the plea of the counsel for the petitioner is contrary to the record. The application dated 7th February, 2006 is supported by the individual affidavits of above noted respondents/applicants. In the affidavits, addresses of the respondents/applicants have been given. The petitioners/non-applicants despite various opportunities did not file any reply to the application and did not take any steps to ascertain whether these respondents were gainfully employed or not in any of the establishments.

7. In these circumstances the only plausible inference that can be drawn is that the depositions made by all the above noted respondents/applicants in their affidavits that they are not gainfully employed in any establishment, is correct and the objection raised by the petitioner is rejected.

8. It is no more res integra that the provisions of Section 17B of the Industrial Disputes Act, 1947 comes into operation when an award directing reinstatement of a workman is assailed in further proceedings. The statute requires satisfaction of the following four conditions:

(i) an Award by a Labour Court, Tribunal or National Tribunal directing reinstatement of a workman is assailed in proceedings in a High Court or the Supreme Court;

(ii) during the pendency of such proceedings, employer is required to pay full wages to the workman;

(iii) the wages stipulated under Section 17B are full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any Rule;

(iv) such wages would be admissible only if the workman had not been employed in any establishment during such period and an affidavit had been filed to such effect

9. While considering an application under this provision it is necessary to bear in mind that the spirit, intendment and object underlying the statutory provision of Section 17B is to mitigate and relieve, to a certain extent, the hardship resulting to a workman due to delay in the implementation of an award directing reinstatement of his services on account of the challenge made to it by the employer. The preliminary consideration for making available such a relief to a workman is to be found in the benevolent purpose of the enactment. It recognizes a workman's right to a bare minimum to keep body and soul together when a challenge has been made to an Award directing his reinstatement. The statutory provisions provide no inherent right of assailing an order or an award by an industrial adjudicator by way of an appeal. The payment which is required to be made by the employer to the workman has been held to be akin to a subsistence allowance which is neither refundable nor recoverable from a workman even if the Award in favor of the workman is set aside by the High Court. In , Dena Bank v. Kiritikumar T. Patel the Apex Court was of the view that the object under Section 17B of the Industrial Disputes Act, 1947 is only to relieve to a certain extent, the hardship that is caused to the workman due to the delay in implementation of the Award.

10. While considering an application under Section 17B of the Industrial Disputes Act, 1947 the Court cannot go into the merits of the case in the writ petition. It was so held in , Anil Jain v. Jagdish Chander.

11. Now how much would the respondents/applicants will be entitled for, whether they are entitled for last drawn wages or something more. In the award dated 9th May, 1994 impugned by the petitioner, the Labor Court had awarded the wages in accordance with Minimum Wages Act. The Apex Court in titled Town Municipal, Athani v. P.O. LC Hugli and Ors. had held that a workman has a legal right to wages under the Minimum Wages Act, 1948 and cannot be diverted to a remedy under Section 20 of the Minimum Wages Act for enforcing such right. The principles laid down by the Supreme Court would have a bearing on the issues raised before this Court as well. From a conspectus of the authoritative pronouncements of the Apex Court, the right of a workman to an amount equivalent to the wages notified under the Minimum Wages Act, 1948 is thus, in fact, recognition of the constitutional mandate and nothing more. It is undoubtedly, the bare minimum which is required by the workman to subsist and is nothing more. Full wages last drawn can therefore only mean all the wages that have fallen due at least from the date of the Award.

12. This also cannot be disputed that granting relief under Section 17B of the Act and passing orders directing payment of wages last drawn, is generally the rule; refusing to grant relief under Section 17B is an exception, as it could be passed only in the rarest of the rare cases of jurisdictional error where there is no relationship between the parties.

13. In the present case the applicants being employees can not be denied. This has also been inferred that they are not employed in any establishment after the award was passed in their favor directing their reinstatement with full back wages. Considering the facts and circumstances and for the foregoing reasons the application is allowed and the petitioner is directed to pay the last drawn wages or the minimum wages whichever is higher to the applicants/respondent No. 4, (Sh. Virender); Respondent No. 8, (Smt.Daya); Respondent No. 9, (Smt. Santosh); Respondent No. 10, (Smt. Bimla); Respondent No. 11, (Mr. Kishan Lal); Respondent No. 24, (Mr. Hari Om); Respondent No. 25, (Mr. Satpal Singh); Respondent No. 43, (Mr. Dal Chand); Respondent No. 44, (Mr. Mukesh Grover); Respondent No. 45, (Mohd. Abid); Respondent No. 46, (Smt. Raj); Respondent No. 49, (Mr. Pritam); Respondent No. 50, (Mr. Subhash Chand); Respondent No. 51, (Mr. Vijay Bakshi) and Respondent No. 52, (Mr. Pushap Kumar) from the date of award dated 9th May, 1994 in ID No. 185/1987 and continue to pay last drawn wages or minimum wages whichever is higher during the pendency of the present petition.

14. The arrears of the last drawn wages or the minimum wages whichever is higher be paid from the date of the award within four weeks. The petitioners shall also continue to pay the last drawn wages or minimum wages whichever is higher in future by 10th day of every month during the pendency of the present petition.

15. The respondents/applicants are also directed to file an affidavit undertaking to return/refund the difference of the last drawn wages and minimum wages in case the petition is allowed and the respondents/applicants are directed to repay the amount within the time granted by this Court.

16. The learned counsel for the petitioner also contended that an amount of about Rs. 40 lakhs has already been deposited. The learned counsel for the respondents/applicants has contended that while admitting the writ petition by order dated 6th January, 2006 the petitioners were directed to deposit 20% of the total amount awarded under the award though an amount of about Rs. 2 crores was due. It is also contended that since the last drawn wages or minimum wages whichever is higher has been ordered by this Court from 9th May, 1994, the date of the award, and the claim petition was filed in 1987 the amount deposited is prior to the award dated 9th May, 1994.

17. Since only 20% of the amount awarded was deposited by the petitioner in terms of order dated 6th January, 2006 which has not been modified or reviewed or set aside, therefore, the petitioner is liable to pay the arrears of last drawn wages or minimum wages whichever is higher in terms of order already passed hereinabove. With these directions the application is disposed of.

WP(C) No. 135/2006

The learned counsel for the petitioner seeks time to file the rejoinder. Rejoinder be filed within eight weeks.