The Management Of Delhi Transport ... vs Workman Kishan Lal
2008 Latest Caselaw 120 Del

JUDGMENT

Anil Kumar, J.

1. This is an application filed by the respondent/workman under Section 17B of the Industrial Disputes Act, 1947 seeking direction to the petitioner to pay full monthly last drawn wages to the applicant/respondent during the pendency of the writ petition.

2. The respondent/applicant contended that he has been out of job and has not been employed in any establishment since the date of termination of his services by the petitioner/non applicant and that he has not been getting any remuneration and has no other means of livelihood. In the circumstances the applicant has prayed that he be paid full monthly wages with effect from 8th January, 1998 the date of the award.

3. A reply has been filed on behalf of petitioner/non applicant denying the plea of the respondent that he is jobless since 1986. The petitioner contended that since the applicant/respondent was holding a license for driving heavy vehicles therefore the plea that the respondent/workman was not getting any remuneration and had no means of livelihood is not true. The petitioner alleged that the respondent was in fact gainfully employed and was engaged in the profession of property dealer in the area of Nangli Skarawati and in support of its plea the petitioner stated that the respondent is a owner of a Car, a two wheeler scooter and also has a mobile phone which cannot be maintained by a person who is not gainfully employed and thus the application of the respondent 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 also pleaded that the respondent be directed to disclose his employment details.

4. 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. Since the section itself mentions ?employment in establishment? self employment quite apparently is not in contemplation. Workman can be denied the benefits under Section 17B of the Industrial Disputes Act only when it is proved to the satisfaction of the Court that the workmen has been employed and has been receiving adequate remuneration during the period of pendency of the writ petition. It is thus well settled that transient employment by the workman does not affect his entitlement to receive wages pending decision; that is to say that, the benefit of Section 17B of the Act cannot be denied merely because the workman is engaged in some activity or in some vocation to eke out his livelihood. Such relief can be denied only if it is proved that the workman is gainfully employed in some establishment and is receiving adequate and regular remuneration which is not the case with the applicant.

7. The plea raised by the petitioner that the applicant has a license and a car and a mobile phone is without any particulars and is based on the assumption on behalf of the petitioner. On the basis of these allegations made by the petitioner in the reply to the application, it cannot be inferred that the respondent is gainfully employed in an establishment as contemplated under Section 17B of the Industrial Disputes Act, 1947 so as to deny him the relief of grant of last drawn wages or minimum wages which so ever is higher.

8. Whether the applicant is entitled for last drawn wages or something more. In , 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 at least from the date of the Award.

9. 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.

10. In the present case the applicant has contended that he is not employed in any establishment since the date of termination of his services. Regarding the plea of the applicant that he is not gainfully employed since the date of termination of his services, the denial by the petitioner is bald without any particulars. Rather it is contended that the applicant should be directed to disclose his employment details. The petitioner/non applicant has also not disclosed any material facts to show that the applicant is gainfully employed and he is not entitled for last drawn back wages from the date of the award. Thus, the applicant fulfillls the criteria for availing the benefit under Section 17B of the Act.

11. Consequently, the application of the workman/respondent 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 as may be applicable from time to time whichever is higher from the date of the award i.e. 8th January, 1998 to the respondent/workman. The arrears of the last drawn wages or the minimum wages whichever is higher be paid within 30 days. The petitioner shall continue to pay the wages in future by 10th of every month during the pendency of the petition. The respondent is also directed to file an undertaking that in case the petition is allowed and it is held that the petitioner is not entitled for minimum wages then difference in the minimum wages and the last drawn wages shall be refunded/returned by the respondent within the time allowed by this Court. The undertaking to this effect be filed by the respondent/applicant within two weeks. With these directions the application is allowed.

W.P(C) No. 3103/1999

Rule has already been issued in the matter on 10th August, 2007. The

record of the lower Court be called for.

List in the category of ?Regular Matters? at its turn.