The Management Of Delhi Transport ... vs Sh. Suresh Kumar
2008 Latest Caselaw 555 Del

JUDGMENT

Anil Kumar, J.

CM No. 7856/2007

1. The petitioner has filed this application under Section 17B of the Industrial Disputes Act, 1947 seeking petitioner Corporation to pay wages as per the revised rate from the date of award till the pendency of the petition.

2. The petitioner has contended that despite the award dated 10th May, 2005 the petitioner refused to take the respondent on duty and filed the present petition challenging the award dated 10th May, 2005.

3. The respondent applicant has contended that he has no other source of livelihood and he has not been able to seek any employment in any of the establishment. It is asserted that the respondent applicant is facing extreme hardship and mental torture and in the circumstances he has sought payment of revised pay. The application is supported by the affidavit of the respondent workman.

4. The application is contested by the petitioner/corporation on the ground that the relief prayed is not covered under Section 17B of the Act. The application is also opposed on the ground that an affidavit has not filed deposing categorically that the respondent workman is not employed in any establishment and for how long the respondent is unemployed. According to the petitioner/management filing of an affidavit is a condition precedent for grant of any relief under Section 17B of the I.D Act, 1947.

5. The petitioner/non-applicant has also challenged the award on merits. The fact that the workman is unemployed and his family members are facing hardship has been denied. According to the petitioner/non-applicant neither the workman is entitled to be taken on duty nor he is entitled to be paid any arrears of salary or allowances.

6. The petitioner/non-applicant has also contended that even if the respondent workman is entitled to receive any amount, the same can only be at the rate of last drawn wages or minimum wages subject to furnishing/submitting of security and not at the revised pay scale.

7. The writ petition was filed by the petitioner challenging the award dated 10th May, 2005 directing the reinstatement of the petitioner which award was stayed by this Court by order dated 17th April, 2006.

8. Perusal of Section 17B of the Industrial Disputes Act, 1947 reveals that it comes into operation when an Award directing reinstatement of a workman is assailed in further proceedings by the employer. The preliminary consideration for making available such a relief under Section 17B to a workman is to be found in the benevolent purpose of the enactment, its spirit, intendment and object underlying, which 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. 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. Moreover 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.

10. Thus if the requisites of Section 17B of the Industrial Disputes Act, 1947 are satisfied then no order can be passed denying the workman the benefit of statutory provisions of Section 17B of the Industrial Disputes Act, 1947. 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

11. 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. 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.

12. Whether the applicant is entitled for last drawn wages or something more. In 1970 1 SCR 51 entitled 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 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. Full wages last drawn can therefore only mean all the wages that have fallen due at least from the date of the Award.

13. The petitioner therefore, cannot oppose the relief prayed by the respondent on the ground that the application under 17B is not maintainable. The Labor Court directed reinstatement of the respondent which has been stayed by this Court and the respondent has remained unemployed. The application of the respondent categorically pleads about his unemployment and the application is supported by an affidavit. Therefore, in the circumstances, it cannot be inferred that the respondent has not stated on affidavit that he is unemployed. The Learned Counsel for the petitioner has also contended that the application has been filed after considerable delay and therefore the respondent is not entitled for relief from the date of the award. Perusal of the record shows that the litigation expenses were paid to the respondent by order dated 31st July, 2007 as on filing the writ petition, the petitioner had not paid the litigation expenses. After the order dated 31st July, 2007 the litigation expenses were paid to the respondent. The present application was filed by the respondent in May, 2007. In the circumstances the respondent shall be entitled for relief under Section 17B from the date of the award. The respondent fulfillls the requirement for grant of relief under Section 17B of the Act.

14. For the foregoing reasons the application is allowed and the petitioner is directed to pay the last drawn wages or minimum wages revised from time to time whichever is higher from 10th May, 2005 the date of award. Arrears of last drawn wages or minimum wages be paid within eight weeks. Petitioner shall continue to pay last drawn wages or minimum wages whichever is higher by the 15th of every English Calendar month in future during the pendency of the writ petition. The respondent/workman is also directed to give an undertaking that in case the writ petition is allowed, the difference in last drawn wages and minimum wages shall be refunded/repaid by the respondent workman to the petitioner within such time as shall be permitted by this Court. The undertaking be filed by the respondent/ workman within four weeks. The application is disposed of with these directions.

W.P(C) No. 5589/2006

List for hearing on 20th October, 2008.