Joint Plant Committee vs Shri Ram And Ors.
2008 Latest Caselaw 476 Del

JUDGMENT

Anil Kumar, J.

1. This is an application by the respondent No. 1/workman under Section 17B of Industrial Disputes Act, 1947 seeking direction to the petitioner to pay his last drawn wages during the pendency of the writ petition after the award dated 16th November, 2004 directing his reinstatement with 50% back wages has been stayed by the Court in this petition under Article 226 of the Constitution of India by order dated 18th January, 2006.

2. The respondent No. 1/applicant contended that he was working under the petitioner on the wages of Rs. 1500/- P.M. The respondent No. 1/applicant was terminated by the petitioner on 14th January, 1999 and he is unemployed since then. The applicant contended that he is passing through a very bad phase since the termination of his service and he is living on the mercy of his relatives. He further alleged that he is suffering from various ailments and he has no money even for the proper treatment of his ailments. It is pleaded by him that he tried to get a job but despite his best efforts and running from pillar to post, he has not been able to get any job and he remains unemployed. In the circumstances the applicant has contended that some financial help may be allowed to him so that he may survive otherwise he will die in penury. An affidavit has been filed by the respondent No. 1 in which he stated that he has been unemployed since the date of his termination and he does not have money for treatment of his ailments.

3. An ex-parte award dated 16th November, 2004 was passed by the Labour Court in favor of the respondent No. 1 directing the petitioner to reinstate with 50% back wages which order has since been stayed in this petition. The Labor Court had held that the respondent No. 1 was an employee on the basis of the record of EPF and other record which could not be refuted by the petitioner. An authority letter was filed after the service of notice on the petitioner but despite filing an authority letter of authorized representative, no one had appeared and the Labor Court had proceeded ex-parte against the petitioner.

4. The petitioner has contested the application contending that an ex- parte award was passed against the petitioner and from the record it is clear that no notice was ever issued and served on the petitioner. The petitioner denied that the applicant is out of job since the termination of his service and since the time award has been passed in his favor. It was denied that the applicant is passing through a bad phase in his life and is living on the mercy of his relatives and financial help from them. The petitioner has also contested the application on the ground that there is no relationship of employer and employee between the petitioner and respondent No. 1 on the ground that the applicant has himself stated that he was in employment of respondent No. 2. It has also been asserted that the application is filed with malafide intention and with ulterior motives on false and baseless pleas.

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 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.

6. 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. Consequently whether the Labor Court could proceed ex-parte against the petitioner or not, is not be adjudicated at the stage of deciding this application under Section 17B of the Act. The Labor Court had held that the respondent No. 1 was an employee on the basis of the record of EPF and other record which could not be refuted by the petitioner. The petitioner has contended that the applicant was working as a safai Karamchari at the transit house. This however has not been denied that prior to the agreement executed with the respondent No. 2, the services were provided by different contractors since 1985 when the transit house was taken by the petitioner and the applicant had been working with different contractors. The plea of the petitioner was not considered as the petitioner was proceeded ex-party and prima facie there is relationship of employer and employee in the facts and circumstances. It was for the petitioner to prove that the applicant was an employee of the respondent No. 2 and the different contractors and the petitioner had no control over him and the agreements with different contractors were not sham documents. In absence of any evidence, it cannot be held that there is no relationship of employer and employee so as to deny the benefit under Section 17B of the Act. 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

The practice of disposal of the petition as well as the application under Section 17B of the Act contemporaneously was deprecated by the Apex Court and the High Court was directed to first expeditiously dispose of the application under Section 17B by the Supreme Court by its decision reported at , Workmen Hindustan Vegetable Oil Corporation Ltd. v. Hindustan Vegetable Oil Corporation Ltd. and Ors.

7. Now how much would the respondent No. 1/applicant will be entitled for, whether he is entitled for last drawn wages or something more. In the award dated 16th November, 2004, impugned by the petitioner, the Labor Court had awarded 50% of the back wages with reinstatement. 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.

8. In the present case the workman has categorically averred in the application that he has been unemployed since the date of the award till date. In the facts and circumstances for the forgoing reasons, the applicant fulfillls the criteria for availing the benefit under Section 17B of the act and 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.

9. 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 minimum wages whichever is higher from 16th November, 2004 Arrears of last drawn wages or minimum wages whichever is higher be paid within eight weeks. The petitioner shall continue to pay last drawn wages or minimum wages whichever is higher by the 15th of every English Calendar month during the pendency of the writ petition. The respondent No. 1 is also directed to give an undertaking to the effect that in case the writ petition is allowed, the difference in last drawn wages and the minimum wages shall be repaid/refunded by the respondent No. 1 within the time as shall be permitted by this Court. The undertaking be filed by the respondent No. 1 within four weeks.

With these directions, the application is disposed of.

W.P.(C) No. 674/2006

The learned Counsel for the petitioner seeks time to file the rejoinder.

Rejoinder be filed within eight weeks.

List on 16th October, 2008.