The Management Of M/S Delhi ... vs Sh. Bikram Singh
2010 Latest Caselaw 1808 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

+         W.P.(C) 14715/2004 & CM No.10504/2004 (u/S 17 B of the I.D. Act)
          & CM No.1462/2005 (for direction).

%                                                     Date of decision:7th April, 2010

SH. BIKRAM SINGH                                               ..... PETITIONER
                                      Through: Mr. Umesh Singh, Advocate

                                             Versus
M/S DELHI TRANSPORT
CORPORATION & ANR.                         ..... RESPONDENTS
                  Through: Ms. Arati Mahajan, Advocate

                                             AND

+         W.P.(C) 19645/2005 & CM No.10556/2006 (u/S 17B of the I.D. Act).

THE MANAGEMENT OF M/S DELHI
TRANSPORT CORPORATION                       ..... PETITIONER
                Through: Ms. Arati Mahajan, Advocate

                                             Versus
SH. BIKRAM SINGH                                               ..... RESPONDENT
                                      Through: Mr. Umesh Singh, Advocate

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?                        Yes

2.        To be referred to the reporter or not?                        Yes

3.        Whether the judgment should be reported                       Yes
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The applications of the workman Bikram Singh under Section 17 B of the I.D. Act are for adjudication. The workman Bikram Singh was employed with the DTC. DTC filed an application under Section 33(2)(b) of the I.D. Act before the Industrial Tribunal seeking approval of its decision for removal of the workman from service. The said application of the DTC was dismissed

by the Tribunal vide order dated 9th April, 2002. However DTC neither allowed workman to join duty nor paid his wages. The workman filed WP(C) No.14715/2004 seeking mandamus directing DTC to reinstate the petitioner with full back wages. Along with the said writ petition, CM No.10504/2004 under Section 17 B of the Act for directing the DTC to pay monthly wages to the petitioner during the pendency of the writ petition was also filed. Notice of the writ petition and the application was issued to the DTC.

2. DTC also filed WP(C) No.19645/2005 impugning the order dated 9th April, 2002 (supra) of rejection / dismissal of its application under Section 33(2)(b) of the Act. It is significant that the said writ petition was filed in or about August/September, 2005 i.e. after more than three years of the order of rejection of the application under Section 33(2)(b) of the Act. Vide order dated 3rd October, 2005 in this writ petition, the effect and operation of the order dated 9th April, 2002 was stayed and remains stayed. The workman besides contesting this writ petition in or about August, 2006 filed CM No.10556/2006 under Section 17B of the Act in this petition for direction to the DTC to pay the monthly wages. Notice of the said application under Section 17 B of the I.D. Act was issued to the DTC on 29th August, 2006. DTC filed a reply to the said application. It was inter alia stated in the said reply that the application under Section 17B of the I.D. Act is not accompanied by an affidavit of the workman stating that he had been and continues to be unemployed. Otherwise DTC could not state that the workman was not unemployed or that he was employed elsewhere. On 25th July, 2008, the workman sought time to file an affidavit of compliance in terms of the provisions of Section 17B and this Court permitted the affidavit to be filed within two weeks thereafter. Though an advance copy of the said affidavit was given to the counsel for DTC as noted in the order dated 18th November, 2008 and the affidavit stated to have been filed in the Registry but there is no record of the said affidavit having been filed in the Registry. In the order dated 1st December, 2009 in WP(C) No.14715/2004, it is again noted that the affidavit of non employment as required under Section 17B of the Act has not

been filed. The workman was again directed to file the affidavit. Similarly again on 10th February, 2010, it was noted in the order in WP(C) No.14715/2004 that the affidavit had not been filed. The affidavit was ultimately filed on 3rd March, 2010 and is attested on 15th February, 2010. The DTC has not filed any reply to the affidavit.

3. The counsel for the DTC has contended that the petitioner is attaining the age of superannuation on 15th May, 2010 and till which date only the petitioner would be entitled to payment under Section 17B. The said position is not controverted by the counsel for the workman also. However, the contention of the counsel for the DTC is that the workman having delayed the filing of the affidavit aforesaid ought not to be held entitled to payment under Section 17 B of the Act from the date of the award or even from the date of the filing of the application but should be held entitled to the same only from the date of filing of the affidavit. According to the counsel for DTC, the direction for payment under Section 17B of the Act should be only from 3rd March, 2010 till 15th May, 2010 only. It is argued that filing of affidavit of non employment is the essential requirement of Section 17 B of the Act and in the eyes of law there was no application under Section 17 B of the Act till the said affidavit was filed on 3rd March, 2010. It is contended that if the affidavit had been filed earlier and for which reason the application under Section 17 B of the Act could not be considered till now, DTC could have in lieu of wages under Section 17B of the Act availed work from the workman and which it is now precluded from availing for the reason of the workman shortly attaining the age of superannuation. It is contended that the workman cannot be permitted to so take advantage of the situation.

4. Attention of the counsel for DTC was invited to the fact that DTC itself preferred the writ petition after three years of the rejection of its application under Section 33(2)(b) of the Act. Faced with the same, the counsel states that Section 17B wages can be paid to the workman from the date of the award till the date of the filing of WP(C) 19645/2005. It is contended that wages under

Section 17B of the Act ought not to be paid from the date of filing of the said writ petition and till the date of filing of the affidavit of non employment on 3rd March, 2010. Reliance is placed on Uttaranchal Forest Development Corporation Vs. K.B. Singh (2005) 11 SCC 449 where it has been observed that only such workman who had filed affidavit of their not being in gainful employment shall be entitled to be granted wages from the respective dates.

5. Per Contra, the counsel for the workman has drawn attention to CM No.10556/2006. It is stated in para 2 thereof that the workman has been unemployed throughout since the date of removal from service and could not get employment despite his best effort. The said application is accompanied with the affidavit of the workman where the workman has affirmed the contents of the application as true to his knowledge.

6. Section 17 B of the Act makes the employer liable for payment of the wages there under to the workman if the workman has not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in the court. The question which arises for consideration is whether the fact that the workman has not been employed in any establishment is required to be stated in an affidavit or such statement in the application under Section 17B of the Act, duly supported by an affidavit is sufficient. Experience shows that practice/procedure varies from court to court. While in some courts the practice / procedure is of a short application with a detailed affidavit, in this Court the practice / procedure is of a detailed application with a short affidavit. There is nothing to indicate that Section 17B requires a deviation from the said procedure/practice. The sprit is that the workman should state on oath that he has not been employed in any establishment. The said requirement is satisfied with the said statement being made in the application and supported by an affidavit on oath as to the contents of the application. The purport is to hold the workman responsible for his statement. It cannot be lost sight of that the I.D. Act is a welfare and benevolent legislation and no pedantic interpretation can be given of its

provisions. This Court in cases under Section 25 B of Delhi Rent Control Act, 1958 was also faced with a situation as to whether the grounds on which leave to contest the petition for eviction was sought are required to be stated in the application or in the affidavit or in both. It was held in Vinod Industries Pvt. Ltd. Vs. Suraj Kumari 1993 Raj. LR 495 and in Jijar Singh Vs. Mohinder Kaur AIR 1979 Delhi 245 (DB) that if for the sake of brevity the averments in the application are not reproduced in the affidavit but a specific reference is made to them in the affidavit, there is sufficient compliance.

7. As far as the orders in the present proceedings directing the workman to file the additional affidavit are concerned, I do not find any adjudication therein as to whether the affidavit already filed was sufficient or not. The first order (supra) was on the own asking of the workman, perhaps on such contention being raised by DTC and the second order aforesaid is also on the objection of DTC in that regard without any application of mind by the Court as to whether the existing affidavit was sufficient or not. Similarly the judgment in Uttaranchal Forest Development Corporation (supra) relied upon by the counsel for the DTC is not really a judgment having precedential value and is described in SCC itself as a record of proceeding. There is no discussion therein also in this regard.

8. Accordingly, no merit is found in the objection of DTC. It cannot also be lost sight of that though misconceived, the application under Section 17B of the Act being CM No.10504/2004 was filed by the workman in his writ petition WP(C) No.1475/2004 as far back as in the year 2004. No ground for deviation from the general rule for payment of wages under Section 17B from the date of the award is made out.

9. Accordingly, DTC is directed to within six weeks herefrom pay to the workman wages under Section 17B of the Act at the rate of last drawn wages by the worker or minimum wages from time to time whichever is higher with effect from 9th April, 2002 and till the date of this order and for future also pay

the said wages till the date of superannuation of the workman. The workman is also directed to within four weeks here-from file an affidavit in WP(C) No.19645/2005 with advance copy to the counsel for the DTC to the effect that in the event of approval under Section 33(2)(b) being granted, he will refund to the DTC the excess, if any, over the last drawn wages so received by him. With the said directions the applications are disposed of. WP(C) No.14715/2004 & WP(C) No.19645/2005 Rule.

List in the category of "Regulars" as per their turn on 13th September, 2010.

RAJIV SAHAI ENDLAW (JUDGE) 7th April, 2010 gsr