Super Auto Corporation vs Govt. Of Nct Of Delhi And Anr.
2008 Latest Caselaw 482 Del

JUDGMENT

Anil Kumar, J.

CM No. 14116 of 2006 in W.P.(C) No. 4740/2004

1. This is an application by the petitioner applicant seeking amendment to the petition.

2. The applicant contended that respondent No. 2 in reply to the writ petition has relied on the judgment of the Supreme Court in Sangham Tape Co. v. Hans Raj holding that on the expiry of 30 days from the date of publication the Labor Court delivering the award became functus officio and, therefore, he cannot entertain any objection to the award.

3. According to the petitioner he had filed the writ petition prior to the delivery of the said judgment and, therefore, in the present writ petition he has only sought quashing of order dated 20th January, 2004 passed by the Labour Court dismissing the application of the petitioner management under Order 9 Rule 13 for setting aside the ex-parte award on the ground that it has become functus officio.

4. The petitioner applicant has contended that since the award dated 6th October, 2003 has also been passed against the petitioner, the applicant petitioner seeks to challenge the award also and consequently wants to carry out amendments to the prayer clause of the writ petition and also wants to incorporate the facts as to how the petitioner was proceeded ex-parte and other facts to show that there is sufficient cause for setting aside the ex-parte order against the petitioner and that the award passed in favor of respondent No. 2 is liable to be set aside.

5. The amendments sought by the petitioner in the facts and circumstances are necessary for determination of real controversies between the parties. The petitioner has already sought the quashing of order dated 20th January, 2004 whereby the application of the petitioner under Order 9 Rule 13 was not entertained and dismissed seeking quashing of award dated 6th October, 2003.

6. The reply to the application has not been filed by the respondent No. 2/non-applicant/workman. The learned Counsel for the respondent No. 2 contends that the petitioner should not be allowed to amend the writ petition so as to challenge the award dated 6th October, 2003 as allowing the petitioner to seek challenge of the said award will tantamount to stay of the said award.

7. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down in various precedents. Though the amendment cannot be claimed as a matter of right and under all circumstances but the Courts while deciding such prayer do not adopt a hyper technical approach. The purpose and object of Order 6 Rule 17 is to allow either party to alter or amend his pleading in such manner and on such terms as may be just. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. Allowing the application for amendment in 1998 (5) AD (Delhi) 708, Sushil Kumar Gupta v. Anil Kumar Gupta it was held that amendment necessitated because of subsequent events should be allowed as no serious injustice or irreparable loss is caused to the other side as the amendment applications are to be allowed to avoid multiplicity of litigation. A Division Bench of this Court in , Bajaj Auto Limited v. Vikram Singh Mehta and Anr. had held that introduction of subsequent events, resulting into different approach or set of ideas claiming same relief should be permitted in order to shorten the litigation and discretion exercised by a Judge to allow amendment in order to incorporate subsequent events cannot be termed arbitrary, perverse or irregular. This also cannot be disputed that the correctness of plea is not to be adjudicated at the time of considering whether the amendment to a petition should be allowed or not.

8. The petitioner in a way has already challenged the award dated 6th October, 2003. In any case even if the petitioner is allowed the amendments sought and petitioner incorporates the plea challenging the award dated 6th October, 2003, this itself will not result into the stay of the operation of award dated 6th October, 2003. Whether the award is to be stayed or not on these grounds, shall be considered only if an application is filed by the petitioner management for the stay of the award. Merely allowing the petitioner to incorporate the challenge to the award dated 6th October, 2003 on these pleas now sought to be taken by the petitioner will not be the stay of the award on these pleas. The operation of order dismissing the application of the petitioner under Order 9 Rule 13 of the Code of Civil Procedure has already been stayed by order dated 19th April, 2004 of this Court. Consequently, the objection by the learned Counsel for the respondent No. 2/workman is unfounded and on that ground, the petitioner cannot be denied the right to amend the petition so as to incorporate the challenge to the award dated 6th October, 2003.

9. For the foregoing reasons the application for amendment of the writ petition is allowed and the petitioner is allowed to carry out the amendments as incorporated in the application. Amended petition be filed.

CM No.../2008 (Under Section 17B of I.D Act)

1. The registry is directed to number the application dated 18th October, 2005 which is at page No. 118 of the paper book which is under Section 17B of the Industrial Disputes Act, 1947.

2. The learned Counsel for the petitioner has given a copy of the reply contesting the application of the respondent No. 2, Shri Karan Singh. A copy of the reply has been given to the counsel for the respondent/applicant who does not want to file any rejoinder.

3. The applicant contended that the petitioner has impugned the award dated 6th October, 2003 with the sole motive to deprive the applicant of his legal entitlement and to harass him by dragging him in the litigation. The applicant has asserted that he is still unemployed since the time of his dismissal and despite his best effort he is not able to find any other regular employment for himself. He has pleaded that he has a family of more than six persons who are solely dependent upon him for their survival.

4. Applicant/respondent No. 2 pleaded that he is a trained mechanic and he was working on the technical post with the petitioner management and therefore he should be paid at least Rs. 4500/- per month. It is also contended by him that in any case he is entitled for minimum wages though his monthly salary was Rs. 650 per month.

5. The petitioner has opposed the application on the ground that the application is a gross abuse of process of law, as the application has been filed even without filing the counter affidavit. It is further contended in the reply that later on the applicant had filed the reply to the amended petition. The plea of the petitioner is that the respondent No. 2 is able to maintain himself and his family comprising of six members. It is stated that the application was filed in 2005 though the award was passed on 6th October, 2003. The plea of the petitioner is that the petitioner has a good case and the writ petition is likely to be allowed. Without disclosing as to where the applicant is employed, it is stated that the applicant is gainfully employed and the application is an abuse of process of law. It is stated that it defies the conviction to believe that the respondent No. 2 is not gainfully employed and still he is maintaining his family comprising of six persons for last many years. It is pleaded that the applicant is technically qualified and therefore, it is unbelievable that he is not employed. Relying on the conduct of the applicant it is the stated that he is not interested in settlement and in the circumstances he cannot be granted any benefit under Section 17B of the act in the present facts and circumstances.

6. 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. which are 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 Co. 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 : , 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 pendente lite payment in favor of the workman.

7. It cannot be disputed 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.

8. 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.

9. 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.

10. 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 33c 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. 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. The plea of the petitioner that respondent No. 2 is gainfully employed is without any basis. On the presumption as has been raised by the petitioner, it cannot be inferred. The respondent No. 2 fulfillls all the requirement for grant of benefit under Section 17B of the Act.

12. For the reasons stated hereinabove the application of the respondent applicant under Section 17B of Industrial Disputes Act is allowed. The petitioner is directed to pay the last drawn wages or minimum wages whichever is higher from the date of award, 16th October, 2003. Arrears of last drawn wages or minimum wages be paid to the respondent No. 2/applicant within eight weeks. The petitioner shall continue to pay last drawn wages or minimum wages by the 15th of every English Calendar month during the pendency of the writ petition. The respondent is also directed to give an undertaking that in case the writ petition is allowed, the respondent No. 2 shall refund the difference of last drawn wages and minimum wages within the time as shall be permitted by this Court. The undertaking by respondent No. 2 be filed within four weeks.

With these directions the application is disposed of.

W.P.(C) No. 4740/2004

Amended petition dated 14th November, 2006 is taken on record. The learned Counsel for the respondent No. 2 states that the reply to the amended petition has also been filed. The learned Counsel for the petitioner seeks time to file the rejoinder to the reply to the amended petition during the course of the day. Rejoinder be filed during the course of the day. List for hearing on 12th September, 2008.