Delhi Transport Corporation vs Sh. Ramesh Chander
2008 Latest Caselaw 34 Del

JUDGMENT

Anil Kumar, J.

CM No. 9668/2005 in W.P(C) No. 11803/2005

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

2. The respondent/applicant contended, inter-alia, that he was a conductor in the petitioner corporation and that his services were illegally terminated by order dated 4th August, 1994. The application under Section 33(2)(b) of the Industrial Disputes Act seeking approval to the order terminating his services was, however, declined by the Tribunal by order dated 28th July, 2003 entitling respondent for reinstatement in the service with all the consequential benefits. It is contended that later on the Tribunal decided the industrial dispute by order dated 8th March, 2004 holding that the services of the respondent have been terminated illegally which order has been challenged by the petitioner in the present petition.

3. The respondent has contended that he has been out of job for last many years, without specifying since when he has been out of job. It is also contended that he is suffering grave financial difficulties due to his unemployment and he has not been able to find any job.

4. The application is contested by the petitioner/non-applicant on the ground that the Tribunal has not decided rightly in declining approval to order of removal of the petitioner. The petitioner has also denied that the respondent was not permitted to join the duties by the petitioner. The petitioner also denied that the respondent is facing financial difficulties and is unable to find any job. It is rather contended that huge amounts have been received by the respondent and consequently he is not facing any financial difficulties. However, no particulars as to how much amount has been paid to the respondent and whether he has been gainfully employed anywhere has not been given by the petitioner.

5. The learned Counsel for the petitioner was asked to allow respondent to join, however, on instruction he states that he cannot be allowed to join duties.

6. 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

7. 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.

8. 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.

9. Whether the applicant is entitled for last drawn wages or something more. In titled 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.

10. 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.

11. A single Judge of this Court had culled the principles laid down in various judicial pronouncement for grant of interim relief under Section 17B of the Act in , Food Craft Instt. v. Rameshwar Sharma and Anr. As under:

(i) An application under Section 17B can be made only in proceedings wherein an industrial award directing reinstatement of the workman has been assailed.

(ii) This Court has no jurisdiction not to direct compliance with the provisions of Section 17B of the Industrial Disputes Act if all the other conditions precedent for passing an order in terms of the Section 17B of the Act are satisfied [Re : entitled Choudhary Sharai v. Executive Engineer, Panchayati Raj Department and Anr.].

(iii) As the interim relief is being granted in exercise of jurisdiction under Article 226 of the Constitution of India, the High Court can grant better benefits which may be more just and equitable on the facts of the case than the relief contemplated by Section 17B. Therefore, dehors the powers of the Court under Section 17B, the Court can pass an order directing payment of an amount higher than the last drawn wages to the workman [Re : , Dena Bank v. Kirtikumar T. Patel].

(iv) Such higher amount has to be considered necessary in the interest of justice and the workman must plead and make out a case that such an order is necessary in the facts of the case.

(v) The Court can enforce the spirit, intendment and purpose of legislation that the workman who is to get the wages from the date of the award till the challenge to the award is finally decided as per the statement of the objections and reasons of the Industrial Disputes(Amendment) Act, 1982 by which Section 17B was inserted in the Act [Re : JT 2001 (Suppl.1) SC 229, Dena Bank v. Ghanshyam (para 12)].

(vi) An application under Section 17B should be disposed of expeditiously and before disposal of the writ petition [Re : 2000 (9) SCC 534 entitled Workman v. Hindustan Vegetable Oil Corporation Ltd.].

(vii) Interim relief can be granted with effect from the date of the Award [Re : JT 2001 Supplementary (1) SC entitled Regional Authority, Dena Bank v. Ghanshyam; 2004 (3) AD (DELHI) 337 entitled Indra Perfumery Company v. Sudarshab Oberoi v. Presiding Officer].

(viii) Transient employment and self-employment would not be a bar to relief under Section 17B of the Industrial Disputes Act [Re : 2000 (1) LLJ 1012 entitled Taj Services Limited v. Industrial Tribunal; entitled Rajinder Kumar Kundra v. Delhi Administration; 109 (2004) DLT 1 entitled Birdhi Chand Naunag Ram Jain v. P.O., Labour Court No. IV and Ors.].

(ix) The Court while considering an application under Section 17B of the ID Act cannot go into the merits of the case, the Court can only consider whether the requirements mentioned in Section 17B have been satisfied or not and, if it is so, then the Court has no option but to direct the employer to pass an order in terms of the statute. It would be immaterial as to whether the petitioner had a very good case on merits [Re : 2000 (5) AD Delhi 413 entitled Anil Jain v. Jagdish Chander].

(x) A reasonable standard for arriving at the conclusion of the quantum of a fair amount towards subsistence allowance payable to a workman would be the minimum wages notified by the statutory authorities under the provisions of the Minimum Wages Act, 1948 in respect of an employee who may be performing the same or similar functions in scheduled employments. [Re: Rajinder Kumar Kundra v. Delhi Administration ; Sanjit Roy v. State of Rajasthan ; decision dated 3rd January, 2003 in Writ Petition (Civil) Nos. 3654 and 3675/1999 entitled Delhi Council for Child Welfare v. Union of India; DTC v. The P.O., Labour Court No. 1, Delhi and Ors. 2002 II AD (Delhi) 112 (para 12, 13)]

(xi) Interim orders directing payment to a workman can be made even on the application of the management seeking stay of the operation and effect of the industrial Award and order. Such interim orders of stay sought by the employer can be granted unconditionally or made conditional subject to payment or deposits of the entire or portion of the awarded amount together with a direction to the petitioner employer to make payment of the wages at an appropriate rate to the workman. Such an order would be based on considerations of interests of justice when balancing equities.

(xii) For the same reason, I find that there is no prohibition in law to a direction by the Court to make an order directing payment of the wages with effect from the date of the Award. On the contrary, it has been so held in several judgments that this would be the proper course [Re : Regional Authority, Dena Bank and Anr. v. Ghanshyam, reported at JT 2001 (Suppl. 1) SC 229 and Indra Perfumery Co. Thr. Sudershab Oberoi v. Presiding Officer and Ors. 2004 III AD (Delhi) 337].

(xiii) While passing an interlocutory direction for payment of wages, the Court may also secure the interests of the employer by making orders regarding refund or recovery of the amount which is in excess of the last drawn wages in the event of the industrial award being set aside so as to do justice to the employer.

(xiv) A repayment to the employer could be secured by directing a workman to given an undertaking or offer security to the satisfaction of the Registrar (General) of the Court or any other authority [Re : para 12, 2002 (61) DRJ 521 (DB), Hindustan Carbide Pvt. Ltd. v. Govt. of NCT of Delhi and Ors.(supra)]

(xv) In exercise of powers under Article 226 and Article 136 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 granted under the statutory provisions of Section 17B of the Industrial Disputes Act, 1947 [Re: , Dena Bank v. Kirtikumar T. Patel (para 23)].

(xvi) Gainful employment of the workman; unreasonable and unexplained delay in making the application by the workman after the filing of the petition challenging the award/order; offer by the employer to give employment to the workman would be a relevant factors and consideration for the date from which the wages are to be permitted.

(xvii) It will be in the interest of justice to ensure if the facts of the case so justify, that payment of the amount over and above the amount which could be directed to be paid under Section 17B to a workman, is ordered to be paid only on satisfaction of terms and conditions as would enable the employer to recover the same [para 13 of Regional Manager, Dena Bank v. Ghanshyam].

(xviii) The same principles would apply to any interim order in respect of a pendent lite payment in favor of the workman.

12. In the present case the applicant fulfillls all the criteria for availing the benefit under Section 17B of the Industrial Disputes Act as apart from bald allegations nothing has been shown by the petitioners which will deny the respondent the benefit of Section 17B of the Act. However, the respondent/applicant has not specified the date from which he has been out of job. The learned Counsel for the petitioner, in the circumstances, states that since the plea of the respondent that he has been out of job is not specific about the year from which he has been out of job, therefore the back wages at the rate of last drawn wages or minimum wages be granted to the respondent from the date of application which is 8th August, 2005.

13. Considering the facts and circumstances, it is inevitable to infer that the respondent is entitled for wages from the date of application and to direct the petitioner to pay the last drawn wages or the minimum wages whichever is higher from 8th August, 2005, the date of application. The arrears of the wages if not already paid be paid within four weeks. The petitioner shall continue to pay to the respondent the last drawn wages or minimum wages whichever is higher by 7th of every month. The respondent shall also file an affidavit undertaking that in case the petitioner succeeds in the writ petition and it is held that the respondent is not entitled for minimum wages, then the difference in the last drawn wages and the minimum wages shall be refunded by the respondent within the time granted by this Court. The undertaking to this effect be filed by the respondent within two weeks.

With these directions the application is disposed of.

W.P(C) No. 11803/2005

List for hearing on 26th May, 2008.