M/S Pro Interactive Service ... vs Govt. Of Nct Of Delhi & Anr.
2009 Latest Caselaw 1101 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 W.P.(C) NO. 9218/2006 & CM 13042/2008

%
                                       Date of Decision : 01.04.2009

M/S PRO INTERACTIVE SERVICE (INDIA) LTD.               .... Petitioner

                      Through Mr.Pramod Kumar Sharma, Advocate

                                Versus

GOVT. OF NCT OF DELHI & ANR.                           .... Respondents

                      Through Mr.J.P.Karunakaran, Advocate for
                              respondent no.2.


HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether reporters of Local papers may be
      allowed to see the judgment?                            NO
2.    To be referred to the reporter or not?                  NO
3.    Whether the judgment should be reported in
      the Digest?                                             NO


V. K. SHALI, J. (Oral)

*

1. Rule.

2. With the consent of the parties, the matter is taken up for

disposal.

3. This order shall dispose of not only the main writ petition bearing

No. W.P. (C) No. 9218/2006 but also the CM No. 13042/2008 under

Section 17-B of the Industrial Disputes Act, 1947. Before disposing of

the main writ petition on merit the application under Section 17-B of

the Industrial Disputes Act, 1947 is taken up for consideration.

4. Section 17-B lays down that where in any case the Labour Court

by its award directs reinstatement of any workman and the employer

prefers any proceeding against such award in the High Court or the

Supreme Court the employer shall be liable to pay to the workman

during the period of pendency of such proceedings in the High Court or

the Supreme Court the full wages or the wages last drawn by him

inclusive of maintenance allowance admissible to him under the rule, if

the workman had not been employed in any establishment during the

said period and an affidavit to that effect in such Court is filed by the

workman.

5. A perusal of the aforesaid provision would clearly show that a

mandatory duty is cast on the Court to pass an order granting the

full/minimum wages or the last drawn wages which ever is higher in

favour of the workman where the management challenges the award

before the Court, provided an affidavit to the effect that he is not

employed in any establishment is filed.

6. In the instant case, the petitioner/management by the present

writ petition has challenged the award dated 12th July, 2005 by virtue

of which the learned Labour Court had directed the reinstatement of the

respondent/workman with full back wages. The matter was taken up

on 26th May, 2006 and notice was issued to the respondent /workman

for 22nd August, 2006 and a stay against the operation of the impugned

award was granted which is continuing till date. No order was passed

directing the petitioner/management to deposit an amount in

pursuance to the impugned award. The respondent/workman during

the pendency of the writ petition has filed an application on 15th

September, 2008 claiming the benefit of Section 17-B of the Industrial

Disputes Act, 1947 on account of the stay against the operation of the

impugned award. In the application, two important facts have been

mentioned by the respondent/workmen. Firstly, his last drawn wages

were Rs. 2600/- and secondly that he has been unemployed w.e.f. 15th

January, 2003 despite his best efforts.

7. The petitioner/management had filed the reply to the application.

Most of the averments which have been made by the

petitioner/management are to the effect that no valid service has been

effected on them because of the incorrect address having been

furnished by the respondent/workman. With regard to the last drawn

wages, the same is not in dispute, but with regard to the employment it

has been denied that the respondent/workman has continued to

remain unemployed despite best efforts. It has also been stated that the

respondent no. 2 has a good experience in various reputed companies

like Embassy of USA, Five Star Hotel Maurya Sheraton, Surya

International Export, ICICI Bank etc., and therefore, it is not possible

for the respondent/workman to remain unemployed from the date of

termination of his service.

8. I have considered the respective submissions and perused the

record. The requirement of law is met, in case the petitioner files an

application duly supported by an affidavit wherein his last drawn wages

are given as well as the factum that he has not been employed

anywhere in any establishment are sworn. Once this is done, the onus

shifts on to the petitioner/management to show that the

respondent/workman is employed in some establishment or is carrying

on some gainful activity which would disentitle him to the benefit of

Section 17-B.

9. In the instant case, the said onus is not discharged by the

petitioner/management. The only averment which has been made in

the reply is that he has a good experience. Merely on account of the fact

that the respondent/workman is having a good experience would not be

sufficient to assume that he has not remained unemployed. This fact

has to be proved by some prima facie evidence that he was employed.

Therefore, in the facts and circumstances of the case, there is no reason

to disbelieve that the respondent/workman has remained unemployed.

Both the requirements of Section 17-B have been satisfied.

10. The respondent/workman cannot be left to a situation of

vagrancy despite the fact that the award is in his favour and neither the

award has been implemented nor the last drawn wages are being paid

to him. This therefore in the court view to completely squeeze him

financially so that he succumbs to the pressure of the

petitioner/management.

11. I, accordingly, direct that the respondent/workman is entitled to

the last drawn wages w.e.f. 12th July, 2005 i.e.the date of the impugned

award till 31st March, 2009 at the rate of Rs.2592/-. Though the

petitioner has claimed his last drawn wages were Rs. 2600/-, however,

the photocopy of the pay scale which has been exhibited in the Court

below shows that the actual amount payable to him is Rs. 2592/-. The

order for payment of minimum wages is not being passed because this

Court is setting aside the ex-parte award and remanding back the

matter to the learned Labour Court to decide the main matter afresh

after giving an opportunity to the petitioner/management.

12. Coming back to the facts of the case, the petitioner/management

has contended that it was not served on account of the fact that the

address on which the notices were sent by the Court was 31/32

Shivalik, Malviya Nagar, New Delhi while as the record shows that the

actual address of the petitioner/management was 31-32 Village Begum

Pur Park, Shivalik Malviya Nagar, New Delhi.

13. A perusal of the Court record of the I.D. shows that the notices

have been sent at 31-32 Shivalik Park, Malviya Nagar, New Delhi and

not at 31-32 Begum Pur Park, Shivalik Park, Malviya Nagar, New Delhi

despite the correct address being on record. In the absence of notice

having been sent at the correct address the assumption of service on

the basis of the report of the process server by the learned Labour Court

was not at all valid & justified. This was also not in accordance with

Rule 18 of the Industrial Disputes Act.

14. I accordingly, hold that so far as the main matter is concerned,

the petitioner was not validly served and accordingly, the ex-parte

award against the petitioner/management is set aside, subject to

payment of cost of Rs. 10,000/- to the respondent/workman. It is

made clear that in case the back wages calculated @ of last drawn

wages for the period 12th July, 2005 to 31st March, 2009 are not paid

within a period of eight weeks from today before the learned Labour

Court, the learned Labour Court shall strike off of defence of the

petitioner/management.

15. Parties are directed to appear before the learned Labour Court on

30th April, 2009.

APRIL 01, 2009                                        V.K. SHALI, J.
KP