Delhi Transport Corporation vs Sh. Nirmal Singh And Ors.
2008 Latest Caselaw 169 Del

JUDGMENT

Anil Kumar, J.

1. The respondent No. 1/workman has filed this application under Section 17B of the Industrial Disputes Act, 1947 seeking a direction to the petitioner to pay minimum wages as per the Minimum wages Act in terms of the statutory notification issued in respect thereto till the final disposal of the writ petition.

2. The respondent No. 1/applicant contended that he has been unemployed since the date of his removal being 17th October, 1994, and that he has not been able to acquire employment in any establishment and has no other source of livelihood because of which he and his family members are facing acute financial hardship and mental torture. According to the respondent No. 1 he is entitled to be paid full salary including the revised pay scale in terms of the 5th Pay Commission Report.

3. A reply has been filed on behalf of petitioner/non applicant contending that the applicant/respondent No. 1 being a driver cannot remain unemployed since 17th October, 1994. The petitioner also contended that the impugned award dated 2nd November, 2004 passed by the Labor Court is illegal and thus the applicant/workman is not entitled for any relief claimed under Section 17B of the Industrial Disputes Act.

4. Section 17B of the Industrial Disputes Act, 1947 comes into operation when an Award directing reinstatement of a workman is assailed in further proceedings by the employer. Section 17B of the Industrial Disputes Act is as under:

17-B. 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 hall be payable under this section for such period or part, as the case may be.

Thus a workman would be entitled for relief under Section 17B of the Industrial Disputes Act, if there is an award directing reinstatement of the workman and the employer has preferred proceedings against such award at the High Court or Supreme Court and that the workman had not been employed in any establishment during the period of pendency of such proceedings and an affidavit to that effect has been filed by the workman. On satisfaction of the requisites as laid down under Section 17B, the court is bound to grant relief to the workman in terms of the provision as laid down under Section 17B of the Industrial Disputes Act. Also the Court cannot go into the merits of the case/writ petition while deciding an application under Section 17B of the Act as was held in , Anil Jain v. Jagdish Chander.

5. The object underlying Section 17B of the Industrial Disputes Act, 1947 is to mitigate and relieve, to a certain extent, the hardship which would be caused 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. Section 17B 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 as the statutory provision provides no inherent right of assailing an order or an award by an industrial adjudicator by way of an appeal.

6. Also 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 the relief could be denied only in the rarest of the rare cases of jurisdictional error where there is no relationship of employer and employee between the parties.

7. In the present case the workman has categorically averred that he has been unemployed since the date of termination of his services. The only plea taken by the petitioner refuting the factum of unemployment of the respondent No. 1 is that being a driver the respondent/workman could not have remained unemployed, is not sustainable as the same is not supported by any material particulars. On the basis of the bald allegation of the petitioner the relief under Section 17B cannot be denied to the workman. The applicant, therefore, 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, no order can be passed denying the workman the benefit of statutory provisions of Section 17B of the Industrial Disputes Act, 1947.

8. 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 to the respondent No. 1/workman the last drawn wages or the minimum wages whichever is higher from the date of award dated 2nd November, 2004 Arrears of last drawn wages or the minimum wages be paid within eight weeks. Future last drawn wages or the minimum wages whichever is higher be paid by 10th of every month. Respondent No. 1/workman is also directed to file an undertaking that in case the petition is allowed, the respondent/workman shall refund/repay to the petitioner the difference of last drawn wages and minimum wages within the time allowed by this Court. The undertaking to this effect be filed by the respondent No. 1/workman within two weeks.

With these directions, the application is disposed of.

W.P. (C) No. 2177/2006