Delhi High Court
The Institute Of Human Behavior ... vs Rameshwar And Anr. on 21 January, 2008
Author: A Kumar
Bench: A Kumar
JUDGMENT
Anil Kumar, J.
1. This is an application filed by the respondent No. 1/workman under Section 17B of the Industrial Disputes Act, 1947 seeking direction to the petitioner to pay full back wages last drawn by the respondent No. 1 or the minimum wages whichever is higher from the date of the award to the applicant/respondent No. 1 during the pendency of the writ petition.
2. The respondent No. 1/applicant contended that he has not been in any employment anywhere since termination of his services nor he has been working in any establishment since the date of his termination and that he has been facing great financial hardships. In the circumstances the applicant has prayed for payment of full back wages last drawn by him with effect from the date of award that is 2nd September, 2004
3. No reply to the application has been filed by the petitioner despite several opportunities granted. The counsel for the respondents, however, orally submits that since the award passed in favor of the respondent No. 1 is unsustainable and as the operation of the award has already been stayed by this court thus the application of the respondent No. 1 under Section 17B of the Industrial Disputes Act, 1947 is not maintainable and that the relief as prayed for in the application cannot be granted. The petitioner has also denied the factum of unemployment of the respondent No. 1.
4. 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.
5. 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 the bare minimum to keep the 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 his favor 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.
6. While considering an application under Section 17B of the Industrial Disputes Act, the Court cannot go into the merits of the case in the writ petition. It was so held in , Anil Jain v. Jagdish Chander.
7. Whether the applicant is entitled for last drawn wages or something more. In entitled Town Municipal, Athani v. P.O. LC Hugli and Ors. it was held by the Apex Court 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. In this case, the Apex Court was concerned with the power of the Act under Section 33(C)(2) of the Industrial Disputes Act, 1947 and the principles laid down by the 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 atleast from the date of the Award.
8. 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.
9. In the present case the applicant has contended that he is not employed in any establishment since the date of termination of his services. The petitioner apart from bald denial of the same has produced no material facts to show that the he is gainfully employed and that he is not entitled for last drawn back wages from the date of the award. The plea of the petitioner that since the operation of the award has been stayed, the respondent/workman is not entitled for an order under Section 17B of the Industrial Disputes Act, 1947 is also without any legal basis. In the facts and circumstances, the applicant fulfillls the criteria for availing the benefit under Section 17B of the Act and in exercise of powers under Article 226 of the Constitution, if the requisites of Section 17B of the Industrial Disputes Act, 1947 are satisfied, order cannot be denied to the workman granting benefit under the statutory provisions of Section 17B of the Industrial Disputes Act, 1947.
10. Consequently, the application of the workman/respondent No. 1 under Section 17B of the Industrial Disputes Act, 1947 is allowed and the petitioner is directed to pay the last drawn wages or the minimum wages whichever is higher from the date of the award dated 2nd September, 2004 to the respondent/workman. The arrears of the last drawn wages or the minimum wages, whichever is higher, be paid within eight weeks. The last drawn wages or the minimum wages in future be paid on 10th day of every month. However, if the writ petition is subsequently allowed and it is held that the respondent No. 1/applicant is not entitled for minimum wages, the respondent No. 1 shall refund the difference of the last drawn wages and the minimum wages within such time as shall be allowed by this Court. The undertaking to this effect be filed by the respondent No. 1/applicant within four weeks. With these directions, the application is disposed of.
