Delhi Transport Corporation vs Shri. Inderjit Singh
2008 Latest Caselaw 488 Del

JUDGMENT

Anil Kumar, J.

1. This is an application by the respondent/applicant under Section 17B of the Industrial Dispute Act, 1947 seeking direction to the petitioner/non-applicant to pay last drawn wages from 25th March, 2003 when the application of the petitioner for approval was dismissed.

2. The brief facts preceding this application are that the respondent/workman was working as a conductor under the petitioner. His services were terminated by the petitioner after enquiry by order dated 5th January, 1994. A previous industrial reference concerning workman was pending, therefore, the petitioner filed an approval application bearing O.P No. 172 of 1994 before the Industrial Tribunal II under Section 33(2)(b) of the Industrial Disputes Act, 1947.

3. The application of the petitioner was dismissed by order dated 25th March, 2003 against which the present writ petition has been filed. The operation of the impugned award was stayed by this Court by order dated 30th September, 2004

4. The present application under Section 17B of the Industrial Disputes Act, 1947 has been filed by the respondent, Shri Inderjeet Singh, contending that he was illegally terminated from his services because of the callous attitude of the petitioner. He has alleged that from the date of his termination he is unemployed and not working under any establishment for any period of time. Applicant submitted that he made efforts to get himself employed but despite his best efforts he has been unable to get employment. The applicant asserted that the petitioner is continuing harassing the applicant by initiating inquiries and filing petitions. He has stated that he is a poor man who is unable to lead is life. An affidavit is also filed by the respondent deposing that he has remained un-employed from the date of termination of services.

5. The petitioner has contested the application pleading that the application is not maintainable as he has not filed the requisite affidavit as required under Section 17B of the I.D. Act. The petitioner vehemently denied the contention of the respondent that he is unemployed since the date of his termination. It is asserted by the petitioner that if it is assumed that he is the only bread earner of his family than there is strong assumption of his employment. The petitioner also argued that the impugned order of the Tribunal is ex-facie wrong and liable to be set aside on the ground that the said order is based on irrelevant facts which also have not been discussed. The petitioner also prayed for the decision in the present petition on the merits along with the application under Section 17B of the Act.

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; 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 pendent 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 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. 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. In the present case the workman has categorically averred in the application that he has been unemployed since the date of termination of his services. The application of the petitioner under Section 33(2)(b) was dismissed against which the present writ petition was filed and the stay of award was granted by order dated 30th September, 2004 The petitioner has raised the disputes on merits of the writ petition to oppose the application of the respondent. As already discussed while considering the application under Section 17B of the Act, the Court is not to go into merits of the writ petition, unless it can be shown in some cases that there is no relationship of employer or employee. This is not disputed in the present case that the respondent was an employee of the petitioner till his services were dismissed. On dismissal of the application of the petitioner under Section 33(2)(b) of the Act, the respondent became entitled for reinstatement, however, this Court has stayed the operation of the award.

12. The respondent can be denied that relief sought in the present application only if it is established that the applicant is employed. Since the section itself mentions employment in establishment even self employment is not contemplated for denying the relief under this section. On the premise that the workman is the head of the family and has to feed the family members, no presumption can be drawn that the workman is employed in an establishment so as to deny him the relief under this Section 17B of the Act. The preliminary consideration for making available such a relief to a workman is to be found in the benevolent purpose of the enactment which recognizes a workman s right to the bare minimum to keep the body and soul together. 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 petition challenging the order of the Court is to be allowed. In the facts and circumstances, 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.

13. The plea of the petitioner that the affidavit filed by the respondent is not in accordance with law is also without any legal basis. The learned Counsel for the petitioner has contended that the affidavit does not disclosed that the respondent has remained un-employed rather it is stated in the application. The affidavit has been given in support of the application and it is stated that whatsoever is stated in the application is correct. In the circumstances, the plea of the petitioner that a proper plea supported by the affidavit has not been taken that the respondent is not employed, is without any legal basis and is liable to be rejected.

14. For the foregoing reasons, the application of the workman/respondent under Section 17B of the Industrial Disputes Act, 1947 is allowed. The petitioner is directed to pay the last drawn wages or minimum wages whichever is higher from 25th March, 2003, the date of the order impugned by the petitioner in this writ petition. Arrears of last drawn wages or the 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 is also directed to give an undertaking that in case the petition is allowed, the difference in last drawn wages and the minimum wages shall be repaid/refunded by the respondent/workman within the time as shall be permitted by this Court. The undertaking be filed by the respondent/workman within four weeks. With these directions, the application is disposed of.

W.P.(C) No. 11742/2004

List for hearing on September 19, 2008.