Delhi High Court
State Of West Bengal vs Government Of Nct Of Delhi And ... on 3 November, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C.) No. 3637/2008
% Date of Decision: 03rd NOVEMBER,2009
# STATE OF WEST BENGAL
.....PETITIONER
! Through: Mr. Avijit Bhattacharjee, Advocate.
VERSUS
$ GOVERNMENT OF NCT OF DELHI & OTHERS
.....RESPONDENTS
^ Through: Mr. Bankey Bihari, Advocate for respondents
No. 5 to 9.
Mr. P.K. Dey for respondent no.11.
Mr. Sanjay Kumar for respondent no.12.
CORAM:
Hon'ble MR. JUSTICE S.N. AGGARWAL
1. Whether reporters of Local paper 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
S.N.AGGARWAL, J (ORAL)
This is an application under Section 17-B filed by the workmen
(respondent nos. 5 to 9) for directions to the State of West Bengal to pay
them wages under Section 17-B which should not be less than the
minimum wages as notified by the Government of NCT of Delhi from the
date of the award, i.e., 27.09.2006 till the decision of the present writ
petition.
2. During the course of the arguments on this application of the
workmen, Mr. Avijit Bhattacharjee, counsel appearing on behalf of the
petitioner (State of West Bengal) contended that the award impugned in
the present writ petition is an ex parte award and it does not record any
finding that the respondent nos. 5 to 9 were its employees. It is
contended by Mr. Bhattacharjee that respondent nos. 5 to 9 were the
employees of the contractors and were never engaged by the petitioner
in its employment.
3. I have repeatedly asked Mr. Bankey Bihari, counsel appearing on
behalf of the workmen (respondent nos. 5 to 9) to show me the findings
in the impugned award whereby the Court below might have come to a
conclusion that the respondent nos. 5 to 9 were the employees of the
petitioner but on being repeatedly asked, the counsel could not point out
the finding in this regard being recorded by the Court below in the
impugned award. In fact, the counsel for the workmen admitted that
there is no specific finding of employer-employee relationship between
the petitioner and the workmen. Being confronted with this factual
position, this Court is of the opinion that directions for payment of wages
under Section 17-B cannot be given to the petitioner management when
it has disputed the relationship of employer and employee and there is
no finding in the impugned award that respondent nos. 5 to 9 were its
employees. This Court, at this stage, is of the opinion that the main writ
petition itself can be finally disposed of.
4. The workmen (respondent nos. 5 to 9) had filed the statement of
claim before the Labour Court against three managements, i.e., two
contractors and one principal employer, being the petitioner herein. The
award assailed by the petitioner in the present writ petition is an ex parte
award. Both the contractors against whom the impugned award was
passed had challenged the said award by filing two separate writ
petitions, being WP(C) Nos. 5228/2007 and WP(C) Nos. 7113/2007 which
were both disposed of by two separate orders both dated 05.11.2007
passed by this Court (orders at pages 119 and 122 of the Paper Book). At
the time of hearing of these writ petitions filed by the contractors, the
counsel appearing on behalf of the workmen on instructions had stated
that it will not proceed or take any action pursuant to the impugned
award against the contractors. A perusal of the orders dated 05.11.2007
passed by this Court in these writ petitions would reveal that these writ
petitions were disposed of in view of the statement made by counsel for
the workmen that the workmen will not proceed against the contractors.
5. Any observations in the said order dated 05.11.2007 contained
against the petitioner will not bind it for the reason that the contention of
the petitioner in those writ petitions were not examined on merits of the
case.
6. The petitioner in the present writ petition has assailed the
impugned ex parte award dated 27.07.2006 inter alia on the ground that
the respondent nos. 5 to 9 were not its employees and, therefore, it is not
liable either to reinstate them or to pay them back wages as ordered in
the said award.
7. I have carefully gone through the impugned award and on going
through the same, I do not find any finding to prove the relationship of
employer and employee between the petitioner on the one hand and
respondent nos. 5 to 9 on the other hand. As to whether the respondent
nos. 5 to 9 were the employees of the petitioner or not is a question of
fact and has to be decided by the Court below on the basis of evidence to
be adduced by the parties on this aspect of the matter. Till the time a
finding regarding relationship of employer and employee is arrived at,
directions for payment of wages under Section 17-B cannot be given.
8. In view of the foregoing, the application of the workmen under
Section 17-B is dismissed. This writ petition is allowed. The case is
remanded back to the concerned Labour Court/Successor Court for fresh
adjudication of disputes between the parties in accordance with law after
giving an opportunity of hearing to both of them.
9. The workmen are given liberty to implead the contractors as well as
the petitioner in the statement of claim, if they so wish, because the
concerned Labour Court has to ascertain whether the respondent nos. 5
to 9 were the employees of the contractors or of the principal employer,
i.e., the petitioner herein.
10. The parties are directed to appear before the concerned Labour
Court/Successor Court for directions at 2 PM on 18.11.209. The Court
below is directed to expedite the hearing and decide the case afresh as
expeditiously as possible preferably within eight months to be reckoned
from 18.11.2009.
This writ petition stands disposed of accordingly in terms referred
above. A copy of this order be sent to the concerned Labour
Court/Successor Court for information and necessary compliance.
NOVEMBER 03, 2009 S.N.AGGARWAL, J
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