Delhi Transport Corporation vs Sh. Rohtash Singh
2008 Latest Caselaw 569 Del

JUDGMENT

Anil Kumar, J.

CM No. 641/2007

1. This is an application by the respondent applicant under Section 17B of the Industrial Disputes Act, 1947. The applicant has contended that by award dated 11th March, 2004 the respondent was directed to be reinstated with continuity in service along with 25% back wages.

2. The plea of the respondent applicant is that he is out of job since his removal from service on 5th May, 1989 and he has not been employed in any establishment ever since. He has pleaded that he has five daughters and no means of livelihood. The applicant has also contended that he fulfillls the requirement under Section 17B to get direction to the petitioner to pay wages at Rs. 3000/- per month and at present at Rs. 10,000/- per month which a conductor with Delhi Transport Corporation is receiving.

3. The application is supported by the affidavit of the respondent deposing categorically that he has been out of job since his removal from service on 5th May, 1989 and even from the date of the award 11th March, 2004 and he has not been employed in any establishment ever since.

4. The application is contested by the petitioner contending inter-alia that the allegation of the applicant that he has been out of job and not employed in any establishment since his dismissal is not admitted as the petitioner has no knowledge about the same. The allegation of the applicant that his daughters/legal heirs are entirely dependent on him has also been denied.

5. 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.

6. 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.

7. 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

8. 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.

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

10. The respondent/applicant has deposed that he has remained unemployed from the date of his dismissal and also from the date of award. The award was in his favor directing his reinstatement which has not been done because the stay of implementation of the award sought by the petitioner and which was granted by order dated 4th April, 2005. There is nothing to show that the applicant is employed in any establishment. The applicant fulfillls all the criteria for granting relief under Section 17B of the Industrial Disputes Act, 1947 in the facts and circumstances.

11. Considering the facts and circumstances and for the reasons as stated hereinabove the application is allowed. The petitioner is directed to pay the last drawn wages or minimum wages whichever is higher from the date of award, 11th March, 2004 to the respondent. 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 is also directed to give an undertaking to the effect that in case the writ petition is allowed the difference in minimum wages and the last drawn wages shall be repaid/refunded by the respondent/applicant within such time as shall be permitted by this Court. The undertaking by the respondent be filed within four weeks. With these directions the application is disposed of.

WP(C) No. 5368/2005

The learned Counsel for the petitioner states that the representation of the respondent has been rejected by order dated 24th March, 2008. The learned Counsel for the petitioner seeks time to file rejoinder to the counter affidavit of the respondent. Rejoinder be filed within eight weeks.

List on 5th September, 2008.