Dtc vs Hukum Singh
2009 Latest Caselaw 2148 Del

          * IN THE HIGH COURT OF DELHI AT NEW DELHI

                + CM No. 8922/2008 in WPC No. 1663/2008


                                       Judgment reserved on: April 27, 2009
                                       Judgment delivered on:19.05.2009
%


DTC                                                     ...... Petitioner


                                Through: Mr. Sumeet Pushkarna, Advocate


                                       Versus


Hukum Singh                                             ..... Respondents


                                Through: Mr. Anil Mittal, Advocate


CORAM:


HON'BLE MR. JUSTICE KAILASH GAMBHIR


     1. Whether the Reporters of local papers may be allowed to see the
        judgment?                                                     Yes
     2. To be referred to Reporter or not?                            Yes
     3. Whether the judgment should be reported in the Digest?        Yes

KAILASH GAMBHIR, J.

1. The present application has been filed by the respondent workman

under section 17-B of the Industrial Disputes Act for claiming benefits

under the said section.

2. The counsel for the respondent applicant contended that the

workman has been out of job since his removal from service on

19/1/1995 and has not been employed in any establishment ever since

and has no means of livelihood. The applicant has one school going

son, one unemployed son and one widowed daughter to support. The

counsel urged that since this court has stayed the operation of the

award thus, the workman be paid his full monthly wages by the DTC in

view of S. 17-B ID Act. The counsel maintained that the workman was

getting about Rs. 4,000/- pm at the time of termination of his services.

The counsel also submitted that at present about Rs. 15,000/- is the

salary of a driver under the employment of DTC.

3. Per contra, counsel for the petitioner DTC contended that in the

present case the respondent workman attained the age of 55 years,

which is the retirement age as per DTC, in the year 2006, thus, relief

under S. 17-B cannot be granted to the applicant. The counsel relied

on Sri Varadaraja Textiles (P) Ltd. vs. P.O. Labour Court - 1998 (4) LLN

302; Hind Ractifiers Ltd. vs. POLC - (2001) 1 LLN 155; Ram Goel vs.

POLC in WPC No. 4814/2002; SBI vs. G.D. Sharma - WPC No.

16139/2004 and State Bank of Travancore vs. Prem Singh - WPC No.

11160/2004 in support of his contention. The counsel maintained that

the applicant workman is gainfully employed as his skills are very

much in demand in the city of Delhi. The counsel also urged that even

if gainful employment of the workman is not proved then also relief

under S. 17B can be granted only till the date of his retirement form

the date of filing of the affidavit. In this regard, the counsel relied on

Uttranchal Forest Corpn.'s case - 2005 (11) SCC 449; Raptakos Brett's

case - JT 2008 (3) SC 469; Kondungalloor Tower Co-operation Bank Ltd.

vs. Surender Babu - 2007 (2) LLJ 337; decision of this Court in 2007 (4)

AD (Delhi) 557 and 2006 (8) AD (Delhi) 503. The counsel also

submitted that the relief in the present application may be granted

keeping in mind that part amount of back wages have already been

deposited by the petitioner in this court.

4. In rejoinder, the counsel for the applicant respondent submitted

that in May 2008, the applicant filed application under S. 17-B ID Act

and prior to any decision thereon, the petitioner itself passed an office

order dated 2/9/2008 directing applicant workman to report for duty,

without prejudice to the rights and contentions of the parties in the

present petition pending before this court and for performance of his

duties, the DTC decided to pay minimum wages. The counsel

maintained that pursuant to the said order, the workman joined duties

but he is being paid Rs. 3,591/-pm for performing the same duties

while his other colleagues of his seniority are being paid Rs. 19,000/-

pm although discharging same duties. The counsel urged that the

petitioner's conduct in this regard is violative of the cardinal principle

of equal pay for equal work. The counsel thus urged for direction to be

given to the management to pay him the same monthly amount as is

being paid to his other colleagues of his seniority, who are performing

the same duties.

5. I have heard learned counsel for the parties and perused the

record.

6. Section 17-B of the ID Act confers valuable rights on the workmen

and correspondingly imposes onerous duty on the employer. In order

to appreciate the contention of the learned counsel for the parties, it

would be proper to read Section 17-B.

Section 17-B :

Payment of full wages to workman pending proceedings in higher Courts :--

Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court :

Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be."

7. A perusal of the above provision would make it clear that when

an award directing reinstatement is made by the Labour Court or

Tribunal or National Tribunal and if that award is challenged in any

proceedings in the High Court or Supreme Court this section makes it

obligatory for the employer to pay the workman during the pendency

of the proceedings in the High Court or the Supreme Court, full wages

last drawn by him. The Phraseology of Section 17-B is very clear. It

leaves no discretion to the court where proceedings are pending. The

employer is required to pay the workman full wages last drawn by him

or the minimum wages during the pendency of the proceedings in High

Court of Supreme Court.

8. Section, 17-B, relates to the period during which proceedings

remain pending before the High Court or the Supreme Court. During

the pendency of proceedings, the employer is under obligation to pay

full back wages last drawn by the employer.

9. In Dena Bank v. Ghanshyam,(2001) 5 SCC 169, the Hon'ble

Apex Court dealt in detail with the object and purpose of the said

provision, which is reproduced as under:

8. Section 17-B provides that where the employer prefers any proceedings against an award directing reinstatement of any workman, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court. The proviso says that if the High Court or the Supreme Court is satisfied that the workman had been employed and had been receiving adequate remuneration during such period or part thereof, the Court shall order that no wages shall be payable under that section for such period or part, as the case may be.

9. The Statement of Objects and Reasons for inserting the said provision indicates that when Labour Courts pass awards of reinstatement, they are often contested by employers in the Supreme Court and High Courts. To mitigate the hardship that would be caused due to delay in implementation of the award, it was proposed to provide for payment of wages last drawn by the workman concerned from the date of the award till the dispute between the parties is finally decided in the High Courts or the Supreme Court. It follows that in the event of an employer not reinstating the workman and not seeking any interim relief in respect of the award directing reinstatement of the workman or in a case where the Court is not inclined to stay such award in toto the workman has two options, either to initiate proceedings to enforce the award or be content with receiving the full wages last drawn by him without prejudice to the result of the proceedings preferred by the employer against the award till he is reinstated or proceedings are terminated in his favour, whichever is earlier. In Dena Bank case1 this Court elucidated the expression "full wages last drawn" as follows:

(SCC p. 115, para 21)

"... Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was in service and when his services were terminated and therefore used the words „full wages last drawn‟."

10. It may be noticed that Section 17-B of the Act does not preclude the High Courts or this Court under Articles 226 and 136 of the Constitution respectively from passing appropriate interlocutory orders, having regard to the facts and circumstances of the case, in the interests of justice (Dena Bank case1). The High Court or this Court may, while entertaining the employer‟s challenge to the award, in its discretion, in appropriate cases, stay the operation of the award in its entirety or in regard to back wages only or in regard to reinstatement without interfering with payment of back wages or on payment of wages in future irrespective of the result of the proceedings before it etc. and/or impose such conditions as to the payment of the salary as on the date of the order or a part of the back wages and its withdrawal by the workman as it may deem fit in the interests of justice. The Court may, depending on the facts of a case, direct payment of full wages last drawn under Section 17-B of the Act only by the employer to the workman. The question whether a workman is entitled to the full wages last drawn or full salary which he would be entitled to in the event of reinstatement while the award is under challenge in the High Courts or this Court depends upon the terms of the order passed by the court, which has to be determined on interpretation of the order granting relief.

10. Further, 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.

11. From the above discussion, it is manifest that the following

ingredients must be satisfied for the operation of Section 17-B of the ID

Act:

(i) An Award is passed by a Labour Court, Tribunal or National Tribunal

directing reinstatement of a workman;

(ii) Such award is challenged by the employer in the High Court or

before the Supreme Court;

(iii) The workman had not been employed in any establishment during

such period and an affidavit had been filed by the workman to such

effect.

(iv) Then, during the pendency of such proceedings before High Court

or Supreme Court, employer is required to pay the wages stipulated

under Section 17B which are full wages last drawn by him, inclusive of

any maintenance allowance is admissible to him under any Rule;

12. In the instant case, the petitioner management vide memo no.

PLD-III/Ex.Driver/2008/2581 dated 2.9.2008 offered the respondent

workman to resume his duty in lieu of payment under section 17B of

the I.D. Act. The respondent workman was directed vide the said

memo to report to the depot manager along with the valid driving

licence within 10 days of receipt of the memo. Thus, clearly, the

respondent was found fit as per the rules to work on the post of driver

even after his attaining the age of 55 years in 2006. Therefore, there is

no ground to withhold the benefit of Section 17B, ID Act from the

workman.

13. The decision in Dharapal's case (supra), Nirmal Singh's case

(Supra) and Yashpal Singh's case (Supra) are not applicable in the

facts of the case. These cases are distinguishable since in none of

these cases such a memo, as mentioned in the instant case, offering

resumption of duties was sent to the workman. Since, the facts of the

case are distinguishable, as discussed above, therefore, the ratio in the

said judgments is of no help to the petitioner management.

14. In the case at hand, the applicant joined back the management

in reply to the order dated 2/9/2008 passed by the management DTC

directing applicant workman to report for the duty on the condition

that the same would be without prejudice to the rights and contentions

of the parties in the present petition pending before this court and for

performance of such duties and for which he shall be paid minimum

wages. Since, as discussed above, the applicant respondent has been

found fit to join back DTC as a driver and has been discharging the

duties as a driver on payment of wages under the Minimum Wages Act.

15. In the circumstances, the petitioner has not been able to make

out any cogent reason for denying the relief claimed by the applicant.

Consequently, for the foregoing reasons, the petitioner is directed to

pay the last drawn wages or minimum wages whichever, are higher, to

the respondent/applicant from the date of award i.e. 24/5/2007 till the

time applicant remain fit for the post of driver as per the rules of DTC.

Arrears be paid to the applicant within eight weeks. The petitioner shall

continue to pay the last drawn wages or minimum wages whichever

are higher by the 15th day of every English Calendar month during the

pendency of the present writ petition unless this order is set aside or

modified or the applicant is found unfit for the post of the driver as per

the rules of DTC. The respondent/applicant is also directed to give an

undertaking that in case the petition is allowed, then he shall

refund/repay the difference of amount of last drawn wages and the

minimum wages whichever, is higher within such time which may be

permitted by this Court. The undertaking be filed by the

respondent/applicant within four weeks before Registrar.

16. In view of the foregoing discussion, the application is allowed with

above directions.

May 19,2009                                  KAILASH GAMBHIR, J.