Delhi High Court
Kishan Lal & Sons vs Govt. Of. Nct. Of Delhi & Ors. on 28 April, 2010
Author: Gita Mittal
IN THE HIGH COURT OF DELHI
CM No. 48/2005 in WRIT PETITION (CIVIL) NO.
2211/1998
Date of decision: April 28, 2006
FOOD CRAFT INSTT. ... Petitioner
through Mr. S.N.Bhandari,Sr.Adv. With
Mr. Amit Seth, Advocate
VERSUS
RAMESHWAR SHARMA & ANR. ..Respondents
through Mr. Jayant Mehta, Adv. for
respondent no. 1/workman
WITH
CM No. 5169/2004 in WRIT PETITION (CIVIL) NO.
52/1997
KISHAN LAL & SONS ... Petitioner
through Mr. S.N.Bhandari,Sr.Adv. With
Mr. Amit Seth, Advocate
VERSUS
GOVT. OF. NCT. OF DELHI & ORS. ...Respondents
through Mr. H.K. Chaturvedi, adv. with
Mr. B.K. Pandey, Adv. and
Mr. S.K. Shukla, Adv. for the respondent
no. 3/workman
AND
CM No. 10456/2004 in WRIT PETITION (CIVIL) NO.
9491/2004
W.P. (C) 2211/1998 1
NISSHOIWAI CORPORATION ... Petitioner
through Mr. S.N.Bhandari,Sr.Adv. With
Mr. Amit Seth, Advocate
VERSUS
DELHI ADMN. & ORS. ...Respondents
through Mr. M.P. Raju, Adv. with
Mr. Sudharshan Rajan, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL.
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 in the
Digest? Yes
GITA MITTAL, J.
1. These applications raised questions as to the jurisdiction of this
court to grant relief to a workman on his application seeking grant of
wages during the pendency of the management's challenge to
industrial awards in favour of the workman directing his
reinstatement into service. Inasmuch as counsels have urged
identical issues of law, these applications are being taken up for
decision together. A composite view with regard to the jurisdiction of
this court covering different aspects of this principal question has
been required to be considered. Before proceeding to consider the
individual fact situation and relief sought in these three applications,
it would be appropriate to consider the general principles of law
which have been evolved by the courts.
2. The issue of permissibility of grant to interim relief to a
workman in the nature of wages in petitions before either the Apex
Court or the High Court under its jurisdiction under Article 226 of
the Constitution of India assailing an award directing reinstatement
in service has been made in favour of a workman has arisen before
the Supreme Court and the High Courts in several cases. The law on
every aspect of the matter is well settled. However discretion has
been left to the court so far as the quantum of wages to be given to
the workman as an interim measure and the date from which such
relief is to be given to the workman. This area remains contentious
and elaborate arguments are addressed on this issue.
3. The statutory powers to grant interim relief by this court is
derived from Section 17B of the Industrial Disputes Act, 1947. In
order to appreciate the respective contentions of both parties, it
would be useful to set out the relevant statutory portion in extenso :-
"17B. 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."
4. A question has also been repeatedly raised as to the jurisdiction
of a High Court, in exercise of its extraordinary jurisdiction under
Article 226 of the Constitution of India, to grant interim relief beyond
the restrictions of Section 17B of the statute.
5. The provisions of Section 17 B of the Industrial Disputes Act,
1947 comes into operation when an Award directing reinstatement of
a workman is assailed in further proceedings. 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 ;
6. While considering the contentions urged it is necessary to bear
in mind that the spirit, intendment and object underlying the
statutory provision of Section 17B is to mitigate and relieve, to a
certain extent, the hardship resulting to a workman due to delay in
the implementation of an award directing reinstatement of his
services on account of the challenge laid to it by the employer. While
enacting Section 17B, the parliament thought it proper to limit relief
thereunder to the extent of wages which were drawn by the workman
when he was in service when his services were terminated, and
therefore used the expression "full wages last drawn".
7. The preliminary consideration for making available such a
relief to a workman is to be found in the benovelent purpose of the
enactment. It recognises a workman's right to the bare minimum to
keep body and soul together when a challenge has been laid 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. Examination of the statutory
provisions of appeal in revenue matters would show that pre-deposit
of the impugned levy prior to consideration of an appeal is the
statutory mandate.
8. Upon consideration of these issues, by judicial interpretation, a
workman's right to grant of interim wages, when an award in his
favour directing reinstatement is challenged before the High Court or
before the Apex Court, has been expanded and recognised as an
integral part of the inherent power of the court under Article 226 of
the Constitution of India to grant appropriate interim/pendentelite
relief to a workman, having regard to the fact situation placed before
the court. By judicial interpretation the jurisdiction of the court or the
admissible relief which is to be granted as an interim order has been
held to be beyond the parameters of and the restrictions placed on
the court under Section 17B of the Industrial Disputes Act.
9. 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 favour is set aside by the High Court.
10. The expression full wages in Section 17B would mean such
emoluments as are included in wages as defined in clause (rr) in
Section 2 of the Act and it has been held that the Parliament has used
the word "full wages last drawn" indicating that wages are those that
were actually paid and not the amount that would be payable are
required to be paid. This principle was laid down in 1999 (2) SCC
106 (para 22) Dena Bank vs Kiritikumar T. Patel. The Apex
Court overruled the judgments of the High Court of Karnataka in the
judgment reported at 1994 (1) LLJ 555 in Visveswaraya Iron and
Steel Limited M. Chandrappa and by the High Court of Gujarat in
1995 (2) Guj.LR 1362 entitled Kirtiben B. Amin vs Mafatlal Apparels
giving an extended meaning to the expression "full wages last drawn"
as to mean wages drawn on the date of termination of the services
plus the annual increment and the dearness allowance to be worked
out till the date of the award.
11. In 1994 (2) LLN 834 entitled Carona Sahu Company Limited
vs Abdul Karim Manafkhan, a judgment of the Bombay High Court;
the pronouncement of the High Court of Judicature at Madras
reported at 1995 (1) LLN 1014 in the case entitled Macneil and Megor
Limited vs First Additional Labour Court and that of the High Court
of Andhra Pradesh in 1996 (2) LLJ 240 entitled P. Chennaiah vs Dy.
Executive Engineer it had been held that under Section 17B, the
workman was entitled to the full wages which the workman would
have drawn in pursuance of the Award, implementation whereof is
suspended during the pendency of the proceedings. This view was
also overruled by the Apex Court in Dena Bank vs Kirti Kumar
(supra) observing that the plain and material meaning of the
expression "full wages last drawn" has to be given.
12. In so holding 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. While
consideration of the payment which is required to be made by the
employer to the workman in this behalf, the Apex Court observed as
follows :-
"21. As indicated earlier Section 17-B has been
enacted by Parliament with a view to give relief to a
workman who has been ordered to be reinstated
under the Award of a Labour Court or the
Industrial Tribunal during the pendency of
proceedings in which the said award is under
challenge before the High Court or the Supreme
Court. The object underlying the provision is to
relieve to a certain extent the hardship that is
caused to the workman due to delay in the
implementation of the award. The payment which
is required to be made by the employer to the
workman is in the nature of subsistence allowance
which would not be refundable or recoverable from
the workman even if the award is set aside by the
High Court or this Court. Since the payment is of
such a character, 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". To read
these words to mean wages which would have been
drawn by the workman if he had continued in
service if the order terminating his services had not
passed since it has been set aside by the award of
the Labour Court or the Industrial Tribunal, would
result in so enlarging the benefit as to comprehend
the relief that has been granted under the award
that is under challenge. Since the amount is not
refundable or recoverable in the event of the award
being set aside, it would result in the employer
being required to give effect to the award during
the pendency of the proceedings challenging the
award before the High Court or the Supreme Court
without his being able to recover he said amount in
the event of the award being set aside. We are
unable to construe the provisions contained in
Section 17-B to cast such a burden on the
employer. In our opinion, therefore, the words
"full wages last drawn" must be given their plain
and material meaning and they cannot be given the
extended meaning as given by the Karnataka High
Court in Visveswaraya Iron & Steel Ltd. or the
Bombay High Court in Corona Sahu Co. Ltd.
22. xxxx
23. As regards the powers of the High Court and
the Supreme Court under Article 226 and 136 of
the Constitution, it may be stated that Section 17-
B, by conferring a right on the workman to be paid
the amount of full wages last drawn by him during
the pendency of the proceedings involving
challenge tot he award of the Labour Court,
Industrial Tribunal or National Tribunal in the
High Court or the Supreme Court which amount is
not refundable or recoverable in the event of the
award being set aside, does not in any way
preclude the High Court or the Supreme Court to
pas an order directing payment of a higher amount
to the workman if such higher amount is
considered necessary in the interest of justice.
Such a direction would be dehors the provisions
contained in Section 17-B and while giving the
direction, the court may also give directions
regarding refund or recovery of the excess amount
in the event of the award being set aside. But we
are unable to agree with the view of the Bombay
High Court in Elpro International Ltd. that in
exercise of the power under Articles 226 and 136
granted under Section 17-B. The conferment of
such a right under Section 17-B cannot be regarded
as a restriction on the powers of the High Court or
the Supreme Court under Article 226 and 136 of
the Constitution."
13. Therefore, the jurisdiction of the High Court to make an
appropriate order granting interim wages to a workman who has an
award directing his reinstatement into service is derived not only
from Section 17B of the Industrial Disputes Act, 1947. Such source of
power is to be found in the inherent power of the High Court to grant
and mould appropriate interim relief in exercise of its jurisdiction
under Article 226 of the Constitution which is called upon to test the
legality and validity of industrial awards.
14. These issues arose for consideration before the Apex Court in
JT 2001 (Supp. I) SC 229 entitled Regional Authority,
Dena Bank & Anr. Vs Ghanshyam. After a discussion and
reiteration of the principles laid down in the prior judgments, the
court cautioned that the interests of the employer could not be
ignored and held thus:-
"12. We have mentioned above that the import of
Section 17-B admits of no doubt that Parliament
intended that the workman should get the last
drawn wages from the date of the Award till the
challenge to the Award is finally decided which is
in accord with the Statement of the Objects and
Reasons of the Industrial Disputes (Amendment)
Act, 1982 by which Section 17-B was inserted in the
Act. We have also pointed out above that Section
17-B does not preclude the High Courts or this
Court from granting better benefits - more just
and equitable on the facts of a case - than
contemplated by that provision to a workman. By
interim orders the High Court did not grant relief
in terms of Section 17-B, nay, there is no reference
to that Section in this case the question of payment
of "full wages last drawn" to the respondent does
not arise. In the light of the above discussion the
power of the High Court to pass the impugned
order cannot but be upheld so the respondent is
entitled to his salary in terms of the said order."
15. Upon consideration of the facts before it, the Supreme court
passed the following directions to do justice between the parties :-
"13. It must, however, be pointed out that while
passing an interlocutory order the interests of the
employer should not be lost sight of. Even though
the amount paid by the employer under Section 17-
B to the workman cannot be directed to be
refunded in the event he loses the case in the writ
petition (see Dena Bank case) any amount over
and above the sum payable under the said
provision, has to be refunded by him. It will,
therefore, be in the interests of justice to ensure, if
the facts of the case so justify, that payment of any
amount over and above the amount payable under
Section 17-B to him, is ordered to be paid on such
terms and conditions as would enable the employer
to recover the same.
14. It is brought to our notice that pursuant to
the orders of the High Court under challenge the
appellant had paid the amount to the respondent.
It is clarified that if the appellant succeeds in the
writ petition, it will be entitled to recover the
difference of amount (i.e. amount paid under the
impugned order less the amount payable under
Section 17B of the Act) from the respondent in
accordance with law."
16. So far as the expression "gainful employment in an
establishment" is concerned, it has been held by the courts that the
self-employment too is not employment in an establishment. This
question fell for consideration before the Apex Court in (1984) 4
SCC 635 entitled Rajinder Kumar Kundra Vs. Delhi
Administration while considering the question relating to award of
back wages, the court noticed thus:-
"I t was next contended on behalf of the
appellant that reinstatement with full back
wages be awarded to him. Mr. P.K. Jain, learned
counsel for the employer countered urging that
there is evidence to show that the appellant was
gainfully employed since the termination of
service and therefore he was not entitled to
back wages. In support of this submission Mr.
Jain pointed out that the appellant in his cross-
examination has admitted that during his forced
absence from employment since the date of
termination of his service, he was maintaining
his family by helping his father-in-law Tara
Chand who owns a coal depot, and that he and
the members of his family lived with his father-
in-law and that he had no alternative source of
maintenance. If this is gainful
employment, the employer can contend
that the dismissed employee in order to
keep his body and soul together had
taken to begging and that would as well
be a gainful employment. The gross
perversity with which the employer had
approached this case has left us stunned. If the
employer after an utterly unsustainable
termination order of service wants to deny back
wages on the ground that the appellant and the
members of his family were staying with the
father-in-law of the appellant as there was no
alternative source of maintenance and during
this period appellant was helping his father-in-
law of the appellant as there was no alternative
source of maintenance and during this period
appellant was helping his father-in-law Tara
Chand who had a coal depot, it cannot be said
that the appellant was gainfully employed. This
cannot be said to be gainful employment so as to
reject the claim for back wages. There is no
evidence on the record to show that the
appellant was gainfully employed during the
period of his absence from service. Therefore,
the appellant would be entitled to full back
wages and all consequential benefits."
On the same issue, in DTC vs The Presiding Officer,
Labour Court No. 1, Delhi & Ors. 2002 II AD (Delhi) 112, it
was held by this court as hereafter :
"13. It is Mr. Sabharwal's contention that
this precedent would not be applicable because
the court was considering the grant of full back
wages and Section 17-B of the I.D. Act had not
been called into question. However, as I see it,
since the above opinion has been expressed in the
context of the Labour Court/Tribunal having
granted reinstatement with fullback wages, the
observations in Rajinder Kumar Kindra's
case (supra) would apply a fortiori to all cases
where this Section has been invoked.
Furthermore, the right of an appeal has been
taken away by an amendment to the Industrial
Disputes Act, and Section 17-B of the I.D. Act has
been introduced. The legislature intended a
finality in the determination of the dispute by the
Industrial Tribunal/Labour Court and to impart
he narrow interpretation advocated by
Mr.Sabharwal would wholly emasculate the
statute. Even where an appeal is permitted from a
money decree the jural rule is that a stay against
payment/deposit of the decretal amount should
not be given. All the more so when a person's
livelihood and his existence is at stake. If a
workman's income from transitory work is tobe
taken into consideration because the Section
envisages only subsistence, the logical extension
of the argument is that in all cases where
subsistence allowance is to be granted, the
alternative and other income of the delinquent
workman/officer should also be investigated and
then adjusted. Is the employer to be allowed to
circumvent his liability to pay the subsistence
allowance because the employee has an income
from sources other than his salary. No such
argument has as yet been advanced in service law,
quite obviously because of its inherent absurdity.
Section 17-B of the I.D. Act is attracted as soon as
it is stated on affidavit that the concerned
workman has not been 'employed in any
establishment.' The legislature could have simply
stated that it is attracted only if the workman has
had no earnings in the said period. Alternatively
the legislature need not have specifieid that the
employment should be in 'an undertaking',
thereby leaving room for the Courts to construe
the word 'employment' as synonymous with 'self-
employment'. In the proviso to the Section
instead of 'remuneration', the words 'earnings' or
'income' could have ben employed. Apart from
Rajinder Kumar Kindra's case (supra) it has
been held in Taj Services Limited vs.
Industrial Tribunal-1 and others, 2000-1-
LLJ-198, that "under the proviso to Section 17-B
of the Industrial Disputes Act what is required to
be proved by the employer is that the owrkman
had been employed in any establishment and had
been receiving adequate remuneration from such
employment. Being employed for remuneration
in an establishment means employment under
another employer. It is different from running
one's own business or trade in order to remain
alive to see the ned of the litigation. Hence I
accept the contention of the learned counsel for
workman that respondents 2, 4 and 10 cannot be
denied the benefit under Section 17-B of the
Industrial Disputes Act on the ground that they
are running their own business and are receiving
profit from such business." Although the question
in M/s Singareni Collieries Co. Ltd. vs Sk.
Anwar Basha & Ors., 1996-III-L.L.J. (Suppl.)
971 (H.C.) related to back wages which in the
opinion of the Division Bench excluded
"employment for short periods in order to save
himself from starvation", the reasoning would
also apply a fortiori to the presnet case. A
Division Bench of the Kerala High Court in K.
Jayaraman vs Quilon Gas Service and
Anr., 1995-II-L.L.J. 1150 has held that "despite
the counter affidavit, there is no acceptable
evidence to hold that the appellant was employed
in the garment making unit of his wife. Assuming
that he was so employed there is hardly any
evidence with regard to the adequacy of the
remuneration which he had obtained from that
concern. Even if it is assumed that the appellant
was getting some income from auto-rickshaws as
alleged in the counter-affidavit, it would not be
sufficient to hold that the proviso to Section 17-B
is attracted," Self-employment quite apparently is
not in contemplation since the Section itself
mentions 'employment in any establishment'."
17. In 2000 1 LLJ 1012 entitled Taj Services Limited Vs.
Industrtial Tribunal - 1 & Others it has been held that:-
" 6. Workmen can be denied the benefits under
Section 17-B of the Industrial Disputes Act only
when it is proved to the satisfaction of
the Court that the workmen have been
employed and have been receiving
adequate remuneration during the
period of pendency of the writ petition.
In the case of workmen other than
respondent Nos. 2, 4 & 10 there is no
allegation by the management that they
have been employed and have been
receiving adequate remuneration during
the pendency of the writ petition. Even in
the case of the respondent Nos.2, 4 & 10 the
allegation is that they are running their own
business but the said allegation is denied by the
learned Counsel for the respondents. According
to the learned Counsel for the respondents, even
if the survival of himself and his family, it will
not disentitle the workman for the benefits
under Section 17-B of the Industrial Disputes
Act. The learned Counsel for the respondents
also contended that the proviso to Section 17-B
of the Industrial Disputes Act would be attracted
only in the case of the employment under
another employer and receivinHg adequate
remuneration. I find force in the contention of
the learned Counsel. As per Section 17-B the
workman is required to file an affidavit to the
effect that he had not been "employed in any
establishment". Hence under the proviso to
Section 17-B of the Industrial Disputes
Act what is required to be proved by the
employer is that the workman had been
employed in any establishment and had
been receiving adequate remuneration
from such employment. Being employed
for remuneration in an establishment
means employment under another
employer. It is different from running
one's own business or trade in order to
remain alive to see the end of the
litigation. Hence I accept the contention of the
learned Counsel for workmen that respondents
2, 4 and 10 cannot be denied the benefit under
Section 17-B of the Industrial Disputes Act on
the ground that they are running their own
business and are receiving profit from such
business.
7. At any rate, apart from the
averments in the reply of the employer,
there is no sufficient material before this
Court to come to the conclusion that
respondent Nos. 2, 4 and 10 have been
running the alleged business. Also there is
nothing to prove that they have been receiving
adequate remuneration. Once the workman has
filed an affidavit to the effect that he had not
been employed in any establishment during the
period of pendency of the proceedings in Court, t
he onus is on the employer to prove to the
satisfaction of the Court that the workman had
been so employed and had been receiving
adequate remuneration. In this case the
employer has not discharged his duty of
proving to the satisfaction of this Court
that the above mentioned three workmen
had been employed in any establishment
and had been receiving adequate
remuneration during the pendency of the
writ petition. Hence I do not find any reason
to deny the benefits of Section 17-B of the
Industrial Disputes Act to the workmen
including respondent Nos. 2, 4 & 10."
18. It would be useful to advert to the pronouncement of this court
reported at 109 (2004) DLT 1 entitled M/s Birdhi Chand
Naunag Ram Jain Vs. P.O., Labour Court No.IV & Others.
In this case in answer to the workman's application under Section 17-
B of the Industrial Disputes Act, 1947 management allegation that
the workman was selling miscellaneous items in front of Birla
Mandir, New Delhi, the workman filed a rejoinder that the amount
generated by this activity was not sufficient to sustain his family.
Upon consideration of the rival contentions and judicial
pronouncements on this issue, the court held thus:-
"In any event, self-employment is not a norm for
denying back wages as the Section 17-B of the ID
Act clearly stipulates employment in an
establishment. Respondent No.3/applicant is
clearly not employed in any establishment. If in
order to sustain himself, the respondent
no.3enters into a self-employed vocation, it cannot
be termed as `employment in an establishment'
contemplated by Section 17-B of the ID Act.
However, therefore the plea of Mr. Sabharwal
which merits consideration is that the writ petition
was filed in September, 1999 and the application
under Section 17-B of the ID Act was filed only on
1st September, 2001. There is no explanation given
for this delay. Accordingly, payment under Section
17-B is not to be made for the period starting from
October, 1999 to August, 2001 as as the
respondent No.3/applicant has failed to give any
reason for not filing the application earlier."
19. The principles laid down in these judgments were reiterated in
2005 (8) DRJ 63 Management of Delhi Gymkhana Club
Ltd. vs. The Government of NCT of Delhi & Ors.
20. In this pronouncement in para 5 it was held by a learned single
Judge of this court that inasmuch as there was no concealment of
material facts by the workman nor any objection in the written
statement pertaining to the issue as to gainful employment of the
workman during the pendency of the proceedings before the labour
court, the management should be better advised to utilise the
services of a workman while writ petitions are pending assailing
labour or industrial awards lest the latter subsequently feels the
pinch of having to pay wages to whose services have not been availed
of for no fault of the workman concerned. It was held that there can
be no reason to expect the workman to starve himself and his family
to death because the management filed a writ petition assailing the
award.
It is thus well settled that transient employment by the
workman does not affect his entitlement to receive wages pending
decision; that is to say that, the benefit of Section 17B of the Act
cannot be denied merely because the workman is engaged in some
activity or in some vocation to eke out his livelihood. Such relief can
be denied only if it is proved that the workman is gainfully employed
in some establishment and is receiving adequate and regular
remuneration.
21. Petitioners also oppose consideration of the application under
Section 17B on the ground that they have a good case on merits and
that the writ petition be first or simultaneously considered. The
practice of disposal of the petition as well as the application under
Section 17B of the Act contemporaneously was deprecated 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 JT 2000 (8) SC 501 Hindustan Vegetable Oil
Corporation Ltd. vs Hindustan Vegetable Oil Corporation
Ltd. & Ors.
22. 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 petitioner. It was so held in 2000 (5) AD (Delhi)
413 Anil Jain vs Jagdish Chander.
23. In 2000 Lab. I.C. 3352 Prabhakar Baburao Bokde vs
Bank of Baroda, Nagpur, the Apex Court set aside the rejection
of the Section 17B application by a non-speaking order directed the
High Court to decide the case on merits.
24. The issue that arises after consideration of such principles of
law is the quantum of wages which an employer should be directed to
be paid on account of subsistence allowance which may be payable to
a workman.
25. It has been urged at great length on behalf of the petitioner that
the Minimum Wages Act, 1948 is not applicable as its establishment
is not scheduled employment for the purposes of the enactment.
26. Mr. S.N. Bhandari, learned senior counsel for the petitioner has
urged that grant of wages as an interim relief, under Section 17B of
the Industrial Disputes Act beyond the last drawn wages which were
being paid to the workman, is contrary to the pronouncements of the
Apex Court and the applicable law.
27. It has been held that this court under Article 226 has the
jurisdiction to grant wages beyond the limits under Section 17B.
There is no dispute that this court was competent to, albeit under
Article 226 of the Constitution of India, to grant interim relief beyond
the parameters set down by Section 17B. This being the position, the
jurisdiction and the power to grant wages in excess of last drawn
wages exists.
28. Learned counsel for the workmen-applicants have submitted
that the Industrial disputes remain pending before Industrial
Adjudicator for over decades. The wages last drawn by the workman
are rendered meaningless in the context of subsistence of the
workman concerned as the cost of living index and inflation
escalates. It has been contended that looked at from any angle, the
only relevant index of what would be fair and just wages would be the
assessment by the competent authority under the Minimum Wages
Act, 1972 of the minimum wages to which a workman would be
entitled.
29. In order to appreciate the respective contentions, it is necessary
to understand the meaning of the expression "minimum wages"and
to examine the background in which the concept evolved.
30. Norms in respect of the wage policy to be followed under the
Second Five Year Plan were laid down in the Tripartite Committee by
the Indian Labour Conference held in New Delhi in 1957 to include
the following :-
"(i) In calculating the minimum wage, the
standard working class family should be taken to
consist of 3 consumption units for one earner; the
earnings of women, children and adolescents
should be disregarded.
(ii) Minimum food requirement should be
calculated on the basis of a net intake of calories, as
recommended by Dr. Aykroyd for an average
Indian adult of moderate activity.
(iii) Clothing requirements should be estimated at
per capita consumption of 18 yards per annum
which would give for the average workers' family of
four, a total of 72 yards.
(iv) In respect of housing, the rent corresponding
to the minimum area provided for under
Government's Industrial Housing Scheme should
be taken into consideration in fixing the minimum
wage.
(v) Fuel, lighting and other 'miscellaneous' items
of expenditure should constitute 20 per cent of the
total minimum wage."
31. I find that wage structures have been divided into three
categories. 'minimum wage' is such wage which provides bare
subsistence and is at poverty line'; "fair wage" which is a little above
the minimum wage and finally comfort level wage which is known as
the 'living wage'. The minimum wage is restrictive and should
provide not only for the bare sustenance of life but for preservation of
the efficiency of the worker and provide some measure of education,
medical requirements and amenities.
32. In the judgment of the Apex Court reported at 1992 (1) SCC
290 entitled Workman represented by Secretary vs
Reptacos Bret & Company Limited & Anr., the Apex Court
cited these norms with approval and added an additional component
as a guide for fixing the minimum wage which was in the nature of:-
"(vi) children's education, medical requirement
minimum recreation including
festivals/ceremonies and provision for old age
marriages etc. should further constitute 25 per cent
of the total minimum wage."
33. It was held by the Apex Court that a wage structure which
approximately answers the six components noticed above is nothing
more than a minimum wage at subsistence level. The
employees are entitled to such minimum wages at all times and in all
circumstances and an employer who has not paid the minimum wage
should not be permitted to run the industry.
34. The concerned experts in industrial workers welfare have
emphasised these standards in the matter of wage fixation in keeping
true to the two points of social philosophy and economic necessities.
The minimum basic wage is at the bottom of the ladder of a payment
which ought to be paid to the industrial worker. The principles
noticed above have received judicial recognition and approval. In the
pronouncement reported at AIR 1983 SC 328 entitled Sanjit
Roy vs State of Rajasthan, it was held by the Supreme Court that
provision of labour or service to any person or authority at payment
which is less than the minimum wage for it, would amount to a
breach of Article 23 and of the prescription of equality under Article
14 of the Constitution of India. In this behalf the court observed thus
:
"4. If this be the correct position in law, it is
difficult to see how the constitutional validity of the
Exemption Act in so far as it excludes the
applicability of the Minimum Wages Act, 1948 to the
workmen employed in famine relief works can be
sustained. Article 23, as pointed out above,
mandates that no person shall be required or
permitted to provide labour or service to another on
payment of anything less than the minimum wage
and if the Exemption Act, by excluding the
applicability of the Minimum Wages Act, 1948,
provides that minimum wage may not be paid to a
workman employed in any famine relief work, it
would be clearly violative of Article 23. The
respondent however contended that when the State
undertakes famine relief work with a view to
providing help to the persons affected by drought
and scarcity conditions, it would be difficult for the
State to comply with the labour laws, because if the
State were required to observe the labour laws, the
potential of the State to provide employment to the
affected persons would be crippled and the State
would not be able to render help to the maximum
number of affected persons and it was for this reason
that the applicability of the Minimum Wages Act,
1948 was excluded in relation to workmen employed
in famine relief work. This contention, plausible
though it may seem is, in my opinion, unsustainable
and cannot be accepted. When the State undertake
famine relief work, it is no doubt true that it does so
in order to provide relief to persons affected by
drought and scarcity conditions but nonetheless, it is
work which enures for the benefit of the State
representing the society and if labour or service is
provided by the affected persons for carrying out
such work, there is no reason why the State should
pay anything less than the minimum wage to the
affected persons. It is not as if a dole or bounty is
given by the State should pay anything less than the
minimum wage to the affected persons. It is not as if
a dole or bounty is given by the State to the affected
persons in order to provide relief to them against
drought and scarcity conditions nor is the work to be
carried out by the affected persons worthless or
useless to the society so that under the guise of
providing work what the State in effect and
substance seeks to do is to give a dole or bounty to
the affected persons. The Court cannot proceed on
the basis that the State would undertake by way of
famine relief, work which is worthless and without
utility for the society and indeed no democratic State
which is administered by a sane and sensible
Government would do so because it would be sheer
waste of human labour and resource which can
usefully be diverted into fruitful and productive
channcels leading to the welfare of the community
and creation of national asset or wealth. It is
difficult to appreciate why the State should require
the affected persons to provide labour or service on
work which is of no use to the society, instead of
simply distributing dole or bounty amongst the
affected persons. There is no reason why the State
should resort to such a camouflage. The
presumption therefore must be that the work
undertaken by the State by way of famine relief is
useful to the society and productive in terms of
creation of some asset or wealth and when the State
exacts labour or service from the affected persons for
carrying out such work, for example, a bridge or a
road, which has utility for the society and which is
going to augment the wealth of the State, there can
be no justification for the State not to pay the
minimum wage to the affected persons. The State
cannot be permitted to take advantage of the
helpless condition of the affected persons and exact
labour or service from them on payment of less than
the minimum wage. No work of utility and value can
be allowed to be constructed on the blood and sweat
of persons who are reduced to a state of helplessness
on account of drought and scarcity conditions. The
State cannot under the guise of helping these
affected persons exact work of utility and value from
them without paying them the minimum wage.
Whenever any labour or service is taken by the State
from any person, whether he be affected by drought
and scarcity conditions or not, the State must pay, at
the least, minimum wage to such person on pain of
violation of Article 23 and the Exemption Act in so
far as it excludes the applicability of the Minimum
Wages Act, 1948 to workmen employed on famine
relief work and permits payment of less than the
minimum wage to such workmen, must be held to be
invalid as offending the provisions of Article 23. The
Exemption Act cannot in the circumstances be relied
upon by the respondent as exempting it from the
liability to pay minimum wage to the workmen
engaged in the construction work of Madanganj
Harmara Road."
35. In People's Union for Democratic Rights vs Union of
India AIR 1982 SC 1472, it was held by the Supreme Court that :-
"......we are, therefore, are of the view that where a
person provides labour of service to another for
remuneration which is less than the minimum wages,
the labour or service provided by him clearly falls
within the scope and ambit of the words 'forced
labour' under Article 23. Such a person would be
entitled to come to the court for enforcement of his
fundamental right minimum wages to him so that the
labour or service provided by him ceases to be 'forced
labour' and the breach of Article 23 is remedied.
I must, therefore, hold consistently with this
decision that where as person provides labour or
service to another for remuneration which is less
than the minimum wages, the labour or service
provided by him clearly falls within the meaning of
the words 'forced labour' and attracts the
condemnation of Article 23. Every person who
provides labour or service to another is entitled at the
least to the minimum wage and if anything less than
the minimum wage is paid to him he can complain of
violation of his fundamental right under Article 23
and ask the court to direct payment of the minimum
wages to him so that the breach of Article 23 may be
abated."
36. In 1970 1 SCR 51 entitled Town Municipal Athani vs
P.O. LC Hugli & 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.
37. I find that in 1995 1 LLJ 395 entitled Municipal
Corporation of Delhi vs Ganesh Razak, it was held by the
Supreme Court that the entitlement to minimum wages under the
Minimum Wages Act is an "existing right" of the workman which
does not require any further adjudication and that the Labour Court
would have the jurisdiction to grant such a relief under Section 33 (C)
(2) of the Industrial Disputes Act.
38. In 1983 1 SCR 456 entitled Peoples Union for
Democratic Rights & Ors. vs Union of India & Ors., the court
held that requiring a workman to discharge duties at rates which are
less than the minimum wages notified under the statutory
enactments, amounts to violation of Article 23 of the Constitution of
India.
39. From a conspectus of 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 and nothing more. It is
undoubtedly, the bare minimum which is required by the workman
to subsist and is nothing more.
40. The question to what would be an appropriate amount that
should be awarded while considering interim relief of grant of wages
where an Award in favour of workman has been considered by this
Court in a judgment reported at 2002 II AD Delhi 112 entitled
Delhi Transport corporation vs the Presiding Officer,
Labour Court I. Placing reliance on adjudication in labour
matters requiring the court to decide on principles of social welfare it
was thus noticed in paras 7, 9 and 10 of the report.
"7. Management counsel have belaboured the
observations of the Hon'ble Supreme Court in
Dena Bank 1 (supra) to the effect that the wages
contemplated under Section 17-B of the I.D. Act
partake of the nature of a subsistence allowance
and hence should not exceed the actual wages last
drawn by the workman at that point of time when
his employment was terminated. In the first place,
this observation was made in the context of the
payments made pursuant to orders under Section
17-B of the I.D. Act being non-recoverable and
non-adjustable. Secondly, the Court must
endeavour to give a purposeful interpretation to a
statutory provision, in conformity with its Objects.
The only exception or limitation is where the
language used is such that the only meaning
extractable does not permit such an interpretation.
Thus, if a subsistence allowance was intended to be
given in Section 17-B of the I.D. Act, it could have
been easily stated so. A pedantic approach is
always to be deprecated. In C.W.P. No. 2112 of
1999 it has been highlighted by Mr. Sabharwal
himself that the workperson was a daily-wager and
she was earning only Rs.11/- and that the DDA
would submit that it is these wages that should be
granted to her. Even if Mr. Sabharwal's arguments
were to be accepted, can this sum of Rs.11/- be
considered as a 'subsistence allowance'. This
submission has strengthened my resolve and
understanding that under Section 17-B of the I.D.
Act, the wages should not fall below the time when
orders under the Section are to be passed, a
moderation may reasonably be effected. It was his
contention, however, that while minimum wages
could be ordered in place of `last drawn wages' if
these are below the minimum wages, once this is
carried out there would be no further justification
for ordering the payments under Section 17-B of
the I.D. Act to keep pace with the increase in the
minimum wages, once this is carried out there
would be no further justification for ordering the
payments under Section 17-B of the I.D. Act to
keep pace with the increase in the minimum
wages. To the contrary, Ms. Sunita Bhardwaj, who
appears for the workmen drew attention to the
enduring observations of the Hon'ble Supreme
Court in Crown Aluminium Works Vs. Their
workemn, 1958 (1) LJJ 1 to the effect that there is
"one principle which admits of no exceptions. No
industry has a right to exist unless it is able to pay
to its workmen at least a bare minimum wages. It
is quire likely that in under-developed countries,
where unemployment prevails on a very large
scale, unorganised labour may be available on
starvation wages, but the employment of labour on
starvation wages cannot be encouraged or favoured
in a modern democratic welfare State." Even
though these observations were made whilst the
Court was concerned with the fixation of a wage
structure, they are of ubiquitous application. In
Sanjit Roy Vs. State of Rajasthan, AIR 1983 SC
328 it has been observed that in so far as
Rajasthan Famine Relief Works Employees
(Ememption from Labour Laws) Act exempts and
excludes the applicability of the Minimum Wages
Act in relation to workmen employed in famine
relief work and permits payment less than the
Minimum Wages, it offends Article 23 of the
Constitution and is ultra vires. Similar views have
also been expressed in Peoples Union for
Democratic Rights and others Vs. Union of India
and others, AIR 1982 SC 1473. On the strength of
all these precedents it appears inevitable and
inescapable that wherever wages are in
contemplation, they cannot fall below the
minimum wages, whether the inquiry is on wage
fixation, fair wage or interim relief under Section
17-B of the I.D. Act, or whatever.
8. xxxx
9. From a perusal of these definitions it will be
clear that whatever be the extent of the 'wages'
granted under Section 17-B of the I.D. Act they
would fall within the ambit of the definition of
wages contained in these enactments. What then
is the application to be placed on the word 'full' in
the phrase 'full wages last drawn'. In Dena Bank I
(supra) the Hon'ble Supreme Court has not
favoured the view that 'full' can be read as
indicative of the wages currently payable
contemporaneously with the filing of the
application under Section 17-B of the I.D. Act. The
words employed must be given their plain meaning
and every word must be taken to have been
purposefully and not superfluously used; this is a
fundamental principle of statutory interpretation.
Since the definition of 'wages' appears to be all
encompassing, the role ascribable to the word 'full'
seems to then enjoin that the wages should be for
the full period in question. Section 33-C (1) of the
I.D. Act already provides for an execution
procedure if the Award is not implemented. Full
wages last drawn can therefore only mean all the
wages that have fallen due atleast from the date of
the Award. This interpretation appeals to me as it
is pragmatic. The Apex Court did not set aside the
other observation in paragraph 7 of the judgment
in Visveswaraya's case (supra) that although "in
Section 17-B of the Act the words "from the date of
the award" are not found, having regard to the
Objects and Reasons stated for inserting this
provision, we can, without any difficulty, come to
the conclusion that the date from which the full
wages last drawn to be paid should be from the
date of the award till disposal of the proceedings."
10. The Apex Court had earlier opined in Bharat
Singh vs. Management of New Delhi Tuberculosis
Centre, New Delhi and others, 1986-II-LLJ-217,
that the power to grant back wages was possessed
and employed by the High Courts and the Supreme
Court even prior to Section 17-B of the I.D. Act,
which therefore merely codified the law. The
Hon'ble Court had observed that "the conferment
of a new jurisdiction can take effect only
prospectively except when a contrary intention
appears on the face of the statute. S. 11-A plainly
indicates its prospective operation. This is made
clear in the proviso to the section when it says
'provided that in any proceeding under this
Section'. This can only mean something relatable
to a stage after the Section came into being. That is
not the case with S. 17-B. Here it is not the
conferment of a new jurisdiction but the
codification in statutory form of a right available to
the workmen to get back wages when certain given
conditions are satisfied. There are no words in the
Section to compel the Court to hold that it cannot
operate retrospectively. Before S.17-B was
introduced there was no bar for Courts for
awarding wages. Of course the workmen had no
right to claim it. This Section recognizes such a
right. To construe it in a manner detrimental to
workmen would be to defeat its object." This
further fortifies the view that the wages to be
granted in this Section can be from the date of the
Award especially since the 'Objects' of the
amendment clearly indicate/specify so. In
Regional Authority, Dena Bank & Another Vs.
Ghanshyam, JT 2001 (Suppl. 1) SC 229, the
Hon'ble Supreme Court has considered its
previous view in Dena Bank I (supra) and observed
that "the import of Section 17-B admits of no doubt
that Parliament intended that the workman should
get the last drawn wages from the date of the
Award till the challenge to the Award is finally
decided". On first principles, the Apex Court has
held that Orders under Section 17-B of the I.D. Act
should commence with effect from the date of the
Award, thus leaving no scope any longer for
debate."
41. This judgment of the learned Single Judge was assailed in a
writ appeal which was dismissed. The judgment of the Division
Bench in the appeal is reported at 2003 VI AD Delhi 205 entitled
Delhi Transport Corporation vs P.O. Labour Court I & Ors.
where the court held thus :
"6. On the issue of whether the payment under
Section 17B of the Act should be from the date of
the award, the learned Single Judge's judgment
analyzing the legislative intendment is
unassailable. The learned Single Judge in our
view has rightly come to the following finding
after taking into account the law laid down by
the Hon'ble Supreme Court in Dena Bank II:
"Before S.17B was introduced there
was no bar for Courts for awarding
wages. Of course the workmen had no
right to claim it, this section recognizes
such a right. To construe it in a manner
detrimental to workmen would be to
defeat its object." This further fortifies
the view that the wages to be granted in
this Section can be from the date of the
Award especially since the 'Objects' of the
amendment clearly indicate/specify so.
In Regional Authority, Dena Bank &
Another V.Ghanshyam, JT 2001
(Suppl.1) SC 229, the Hon'ble Supreme
Court has considered its previous view in
Dena Bank I (supra) and observed that
"the import of Section 17B admits of no
doubt that Parliament intended that the
workman should get the last drawn
wages from the date of the Award till the
challenge to the Award is finally
decided...". On first principles, the Apex
Court has held that Orders, under
Section 17B of the I.D.Act should
commence with effect from the date of
the Award, thus leaving no scope any
longer for debate."
7. In so far as reliance by the appellants on Dena
Bank I on the question of minimum wages
exceeding last drawn wages is concerned, the
issue was crystallized by the Hon'ble Supreme
Court as to whether the 'full drawn wages'
contemplated by Section 17B of the Act meant
wages drawn at the time of termination of
employment or wages which would have been
drawn on the date of the Award. It is only in this
context that the Hon'ble Supreme Court
observed that the phrase "full wages last drawn"
must be given its plain and material meaning.
" xxxx In Sanjit Roy vs State of Rajasthan, AIR
1983 SC 328 it has been observed that in so far as
the Rajasthan Famine Relief Works Employees
(Exemption from Labour Laws) Act exempts and
excludes the applicability of the Minimum Wages
Act in relation to workmen employed in famine
relief work and permits payment less than the
Minimum Wages, it offends Article 23 of the
Constitution and is ultra vires. Similar views have
also been expressed in Peoples Union for
Democratic Rights and Others vs Union of India
and others, AIR 1982 SC 1473. On the strength of
all these precedents it appears inevitable and
inescapable that wherever wages are in
contemplation they cannot fall below the
minimum wages, whether the enquiry is on wage
fixation, fair wage or interim relief under Section
17-B of the I.D. Act, or whatever.
9. The learned Single Judge has in our opinion
in his judgment felicitously eschewed the narrow
interpretation so as to discourage the propensity of
the financially stronger management to thwart the
employee who is a weaker section of the society by
passage of time and expenditure and energy in
prolonged litigation. We, therefore, affirm the
judgment of the learned Single Judge.
10. It was finally urged by the appellants that in
any event, even if minimum wages beyond wages
last drawn are awarded, such payment must be
secured by such terms and conditions which
would enable the employer to recover the same
from the employee in the event of success in the
writ petition. The respondents' counsel Shri
Sanjoy Ghose, however, contended that such
terms could only be imposed if the payment
ordered under Section 17-B in accordance with
Dena Bank II judgment is more than the
minimum wages.
11. Reliance was placed by the counsel for the
appellants on paragraph 12 of the Division Bench
judgment of Hindustan Carbide Pvt. Ltd. vs Govt.
of NCT of Delhi, reported as 2002 61 DRJ 521
which following the decision in Dena Bank II held
as under:
"11. The Apex Court, however,
has observed that any amount over and
above the sum payable under the said
provision being refundable, the court
may impose such terms and conditions,
as it enable the employer to recover the
same keeping in view the interest of
justice.
12. In that view of the matter, in
modification of the Order passed by the
learned Single Judge, we direct that the
difference in respect of amount between
the minimum wages and the last wages
drawn by him, respondent no. 3, shall
offer security to the satisfaction of the
Registrar (General) of this Court. The
Registrar (General), however, shall
permit respondent no. 3 to withdraw the
amount of last wages drawn and arrears
of last wages as also the current and
future amount, deposited in terms of
Section 17B of the Act, as also the sum of
Rs.5,000/- which was directed to be
deposited towards litigation expenses
unconditionally without furnishing any
security. The rest of the amount
however, we clarify, may be permitted to
be withdraw subject to furnishing of the
security, but the appellant shall not be
entitled to encash the FDRs.
12. It is, therefore, submitted by the appellants
that such a course should be followed in the
present case also. In our view the above direction
in the judgment has only been made on the facts
and circumstances of the case and there is no
discussion in the judgement as to the rational for
securing payment beyond wages last drawn, even
if minimum wages were payable. The Division
Bench's direction for securing the amount beyond
wages last drawn i.e., minimum wages, was made
on the facts of the above case and does not
constitute any binding precedent. The above
judgement in Hindustan Carbide (supra) does not
hold that all payments beyond wages last drawn,
whether it be minimum wages or more must be
secured. In fact the relevant finding of the
Hon'ble Supreme Court in Dena Bank II is as
follows :-
"It will, therefore, be in the interests of justice to
ensure, if the facts of the case so justify, that
payment of any amount over and above the
amount payable under section 17-B to him, he is
ordered to be paid on such terms and conditions
as would enable the employer to recover the
same."
The position of law laid down in Dena Bank II
clearly grants a discretion on the facts of the case
and in the interest of justice to make an order for
payment on terms and conditions. In our view
the facts o the present cases which indicate that
only minimum wages have been ordered and the
interest of justice and mandate of the Minimum
Wages Act which require that minimum wages
must be paid, clearly leads to the conclusion that
for payment upto minimum wages, no terms and
conditions ought to be imposed. Consequently,
we are of the opinion that the view taken in the
Hindustan Carbide (supra) for securing the
payment of minimum wages over and above wages
last drawn was made on the facts and
circumstances of that case.
13. Therefore, in our view only if the payment
ordered under Section 17_b is more than the
minimum wages, then the amount so paid beyond
the minimum wages may be secured so as to make
its recovery possible for the employer as per the
law laid down in Dena Bank II decision.
However, in light of our discussion, the statutorily
mandated minimum wages are bound to be paid
by the employer without terms and conditions and
therefore cannot come under the ambit of the
provision of security for its repayment.
14. However, since another Division Bench of
this Court in Hindustan Carbide's case (supra) has
ordered that payment of minimum wages beyond
and greater than the wages last drawn must be
secured by imposing terms and conditions and
even though we are of the view that there is no
binding pricniple and precedent which emerges
from the said judgment which was confined to the
facts of that case, nevertheless in order to avoid
any possible divergence of views, we direct that
only the issue as to whether payment by way of
minimum wages directed to be made beyond
wages last drawn must be on terms and
conditions, ought to be referred to a Full Bench.
15. We further direct that even though we are of
the view that payment upto minimum wages does
not require any terms and conditions to be
imposed, yet to avoid any possible divergence of
opinions between our judgment and that of
Hindustan Carbide's judgment (supra), we think
that in th interest of justice since the employees
concerned are being granted relief on the basis of
Section 17-B which postulates unemployment, the
amount of minimum wages payable as per the
Single Judge's judgment be secured, only to the
extent it is beyond the wages last drawn on
furnishing of security by way of an undertaking on
affidavit, to refund such amount, to be given by the
concerned employee. We hold the view that
requirement of any other form of security for the
difference between wages last drawn and
minimum wages are not warranted by the facts of
the case and the interest of justice as the recipient
is without employment. Indeed furnishing of any
other form of security by an unemployed employee
for securing payment of minimum wages would
make such payment illusory."
42. The principles laid down in these authoritative judicial
pronouncements are binding on this court. There can be no manner
of doubt that in consideration of an application seeking grant of
interim relief in a writ petition, the court can issue only such
directives as are permissible constitutionally and legally. It is settled
law that the minimum wages as are notified by the statutory
authorities under the Minimum Wages Act, 1972 are a reasonable
assessment of the subsistence allowance. Consequently, it has to be
held that irrespective of the description under which the order
granting minimum wages is passed or the statutory provision under
which the application is made. Such order would be equitable, fair
and legally correct.
43. In this behalf, the applicability of the Minimum Wages Act,
1948 is not the issue. Reference has been made to the prescription of
the wages under this enactment only for the purposes of arriving at a
reasonable and fair quantum of wages which could be considered as a
standard or a bench mark while granting interim relief to a workman.
Using the wages fixed under this enactment as a fair standard does
not mean that an employer becomes covered under the statute.
44. So far as the issue as to the date from which the order can be
passed, the same has also been the subject matter of consideration in
several cases prior hitherto. In this behalf, it has been held by the
Apex Court in Regional Authority, Dena Bank & Anr. vs
Ghanshyam reported at JT 2001 (Suppl. 1) SC 229 and by
the Division Bench of this court in Indra Perfumery Co. Thr.
Sudershab Oberoi vs. Presiding Officer & Ors. 2004 III AD
(Delhi) 337 that the court would be fully justified in directing
payment of the interim wages from the date of passing of the award
which has been assailed in the writ petition.
45. In Regional Authority, Dena Bank & Anr. vs
Ghanshyam reported at JT 2001 (Suppl. 1) SC 229 wherein
the court held thus :-
"12. We have mentioned above that the
import of Section 17-B admits of no doubt that
Parliament intended that the workman should get
the last drawn wages from the date of the Award till
the challenge to the Award is finally decided which
is in accord with the Statement of the Objections
and Reasons of the Industrial Disputes
(Amendment) Act, 1982 by which Section 17-B was
inserted in the Act. We have also pointed out above
that Section 17-B does not preclude the High
Courts or this Court from granting better benefits -
more just and equitable on the facts of a case - than
contemplated by that provision to a workman. By
interim order the High Court did not grant relief in
terms of Section 17-B, nay, there is no reference to
that Section in the orders of the High Court,
therefore, in this case the question of payment of
"full wages last drawn" to the respondent does not
arise. In the light of the above discussion the
power of the High Court to pass the impugned
order cannot but be upheld so the respondent is
entitled to his salary in terms of the said order."
46. The court in Indra Perfumery Co. Thr. Sudershab
Oberoi vs. Presiding Officer & Ors. 2004 III AD (Delhi) 337
held:-
"7. Thus, with regard to the back wages, under the
award, order was made directing the petitioner to
deposit the amount and at the same time, stay was
granted. Naturally, the benefit under Section 18B
may not have been granted at that point of time as
there was no affidavit by workman as contemplated
under Section 17B of the Act, but after the affidavit is
filed, workman is entitled to get the benefit if it is
proved to the satisfaction of the Court that workman
had not been employed anywhere. Had he been
employed and was receiving adequate remuneration
during any such period or part thereof, the situation
would have been quite different. But, here affidavit
is filed and no affidavit-in-reply is filed by the
employer. During this period (i.e. after the award
when the matter is admitted by the Court), the Court
can pass the order. Therefore, we think it proper to
take up this application.
8. No doubt, the language of Section 17B of the
act particularly, the words "during the period of
pendency of proceedings in the High Court" gives an
impression that order regarding payment has to be
made for the period when proceedings were pending
in this Court. However, in the case of Regional
Authority, Dena Bank and another vs
Ghanshyam, reported in IV (2001) SLT 392 = JT
2001 (Supp. 1) SC 229, wherein the Apex Court had
examined this question in paras 7, 8 and 9.
Considering the statement and objects and reasons
for inserting the said provision and to mitigate the
hardship that would be caused to delay in
implementation of the award, the Apex Court
pointed out that it was proposed to provide the
payment of wages last drawn by the workman
concerned from the date of the award till the
disputes between the parties finally decided either in
the High Court or the Supreme Court. It may be
noted that after the award is made by the competent
Forum, it becomes the bounden duty of the
employer, either to take back the workman in service
as per the directions made by the court or to pay the
wages. It is keeping this aspect in mind, Section 17B,
came to be inserted. After the award is made, this
Court is of the opinion that unless the stay is granted
by the Court, it is the duty of the employer to
implement the award and the moment he challenges,
it becomes his bounden duty to follow the mandate
of Section 17B, when there is an affidavit filed by the
workman that he was not gainfully employed, as
indicated in Section 17B of the act.
9. We may observe that the Apex Court in the
case of Dena Bank (supra), was not directly
examining the issue namely whether the order under
Section 17B can be made from the date of the award
or from the date of the filing of the writ petition.
However, we note from paras 7,8 and 9 of the
judgment that the Court has indicated that such
payment is to be made from the date of the award.
10. The Court is examining the legislation, which is
a welfare legislation. The Labour Court on arriving
at a conclusion that dismissal/termination is illegal,
has to direct reinstatement of the workman with full
back wages. In the instant case, in view of the order,
the workman was entitled to not only the back
wages, but was also entitled to get current wages,
unless he had refused to work. If the employer,
instead of reinstating the workman, challenges the
award and obtains stay order, the workman will not
get the benefit of the order which ought to flow from
the date of the order. It is in view of this, when an
order is made by the Labour Court, the benefit must
flow from the date of the order passed. Section 17B
of the Act protects both the sides during the
pendency of the proceedings in the High Court and if
the proceedings are not pending, then the workman
cannot be denied the denied the benefit of the order
made by the Labour Court. It is in view of this, it
would be just and proper to say that the workman is
entitled to get the benefit of the order from the date
of the passing of the order."
47. The grant of wages to a workman during the pendency of a
challenge by the management to the industrial award have been
statutorily granted under Section 17B of the Act. This pendentelite
right has been recognised to remove hardship and to protect the
interest of the workman. The principle underlying this right is that
the workman cannot be left uncared to suffer a total deprivation of
wages merely because the employer has chosen and initiated
proceedings under Article 226 and 136 of the Constitution. The
courts have taken a view that merely because there is no provision as
to what will happen to the amount paid under Section 17B of the ID
Act, if the employer ultimately succeeds in the litigation, will not
make the section either vague or arbitrary.
48. However, in a pronouncement of the High Court of Judicature
at Madras reported in 1992 II LLJ 201 Godrej and Boyce
Manufacturing Co. Ltd. Madras vs Principal Labour
Court, Madras & Anr., the court held that any challenge to the
award on the ground that it is without jurisdiction or his otherwise a
nullity alone will not be sufficient to suspend the operation of Section
17B of the Act. The final adjudication in a case where the award is
without jurisdiction or is otherwise a nullity shall ordinarily meet the
ends of justice. A workman who shall be waiting for the
implementation of the award during the pendency of the
proceedings, shall receive only the wages at the rate last paid for
period of pendency of the proceedings in the court. It is not a burden
of any serious consequence upon the employer, but it will be a
deprivation of a sort which may goes havoc to the workman and his
family. The power to make a final order includes the power to make
an interim order and that power will extend to suspending the
liability of the employer under Section 17B of the Act and accordingly,
the right of the workman to receive wages pendentelite. But this will
be possible only in the rarest of rare cases as, otherwise, it would
defeat the very purpose for which the section has been introduced in
the Act. The court noticed that there shall be any number of
employers/managements, shall successfully contrive petitions and
the proceedings challenging the award on some such ground as the
award being without jurisdiction or a nullity and that courts cannot
afford to be manipulated and allow the employer management to use
the interim order as a weapon to avoid such statutory liability. Some
error of fact or even some error of law alone will not thus be enough
to avoid the liability of the management under Section 17B. If,
however, the error is such that goes to the root of the jurisdiction of
the tribunal and the court has got sufficient materials to ignore the
effect of Section 17B of the Act, only in such a circumstance may the
court decline to order payment of wages pendentelite.
49. To the same effect is the pronouncement of a Division Bench of
the Jharkhand High Court reported at 2001 (90) FLR 67
Employer, The Management of Central Mine Planning and
Design Institute Ltd. vs. Union of India & Ors., it was held :
"9. We are respectful agreement with the view
expressed and the ratio laid down by the Full
Bench of Madras High Court in Godrej and Boyce
(supra). Similarly in Dena Bank, (supra) their
Lordships of the Supreme Court asserted once
again the fact that basic power still originates from
Article 226 of the Constitution. On a
consideration of all the relevant aspects of the
matter, therefore, our view is that Section 17-B of
the Act does not take away the unfettered power
and plenary jurisdiction of the High Court
conferred upon it under Article 226 of the
Constitution and that Section 17-B of the Act has
to be read with Article 226 of the Constitution. We
are of the view, therefore, that whenever a writ
petitioner challenges an award passed by a Labour
Court or an Industrial Tribunal and raises
contentions concerning the very basic
jurisdictional aspects of the Award or brings to the
notice of the Court some patent error of law
apparent on the face of the award and thus
satisfies the Court, prima facie, with reference to
the merits of the aforesaid contentions (duly
supported by the material on record) that the
Labour Court or the Industrial Tribunal erred in
passing the Award (award can thus be termed as a
perversity or nullity in the eye of law) merely
because Section 17-B is there on the Statute Book,
there is no mandatory requirement that even in
such cases where the High Court, prima facie, is
satisfied about such illegality in the Award, it must
pass an order directing the writ petitioner to pay
wages last drawn to the respondent during the
pendency of the proceedings in the High Court.
We have thus no hesitation in saying that there
can be cases where despite Section 17-B being
there on the Statute Book the High Court can
decline to grant relief paying wages last drawn to a
person. At the same time we must hasten to add
that cases where the High Court may decline to
pass an order under Section 17-B of the Act, have
to be the rarest of the rare. Granting relief under
Section 17-B of the Act and passing orders
directing payment of wages last drawn, is
generally the rule; refusing to grant relief under
Section 17-B an exception, as it would be in the
rarest of the rare cases. The cases may be only
those where an award is challenged on the basic
issue of jurisdictional error or errors apparent on
the face of the Award. One instance of
jurisdictional error can be about the absence of the
relationship of workman and the employer
between the parties. If the writ petitioner
challenging the Award before the High Court
genuinely, bona fide, seriously and gravely raises
the question of absence of this relationship and
the High Court is satisfied, prima facie, in full
measure with a reference to such contentions of
the writ petitioner, which have to be duly
supported by the material on record and the High
Court comes to a prima facie conclusion that
indeed very serious and grave doubts do exist with
respect to the question of such relationship
between the parties, it can refuse to pass an order
under Section 17-B of the Act, thus declining to
issue a direction to the writ petitioner to pay wages
last drawn to the respondent. Since the
satisfaction of the High Court on this score has to
be prima facie very clear, it goes without saying
that while declining to grant relief under Section
17-B of the Act, we are required to act with utmost
circumspection."
50. In 1996 I LLJ 420 Vysya Bank Ltd. vs General
Secretary, All India Vysya Bank Employees' Union, & Ors.,
the services of a probationer clerk cum typist had been terminated
from service during the period of a probation and the industrial
award had not resulted out of any basis in law but only out of sheer
compassion. It was in these facts that the court held that Section 17-
B does not in any way impair or interfere with the powers of the High
Court under Article 226 of the Constitution of India and the Court
possesses the discretion to go into the question and award a lesser
amount than the exact quantum of last drawn in case where the
award is passed without the jurisdiction erroneously. It may be open
for the court to deny the benefit completely if the conditions set out
in the Section are not satisfied. But once the conditions set out in the
Section are satisfied, no rider can be added to restrict the benefit
under Section 17-B of the Industrial Disputes Act.
51. I may also notice that often applications are filed by the
workmen seeking entitlement to wages under the provisions of
Section 17B of the Industrial Disputes Act wherein a prayer is made
for award of wages on the basis of the minimum wages notified by the
authorities from time to time and also their grant with effect from the
date of the passing of the award. I have noticed the authoritative
pronouncements by the Apex Court to the effect that this court while
exercising jurisdiction under Article 226 of the Constitution of India
is empowered, to grant as an interim measure, wages on such terms
which may be beyond the parameters laid down by the provisions of
Section 17B of the Industrial Disputes Act.
52. Applications are made by the workmen either only under the
provisions of section 17B of the Industrial Disputes Act or under this
Section read with Section 151 of the Code of Civil Procedure. Other
applications are filed only under Section 151 of the Code of Civil
Procedure.
53. So far as the effect of the application being captioned as an
application under Section 17B of the Industrial Disputes Act, 1947 is
concerned, it has been urged on behalf of the petitioner that such
applications cannot be treated as applications seeking a relief wider
than what is permissible under Section 17B of the Industrial Disputes
Act, 1947.
54. In this behalf, it is a settled principle of law that if the court is
empowered to grant a substantive relief, it has the inherent power to
grant interim relief. The court would be empowered and justified in
granting relief if an order to this effect was required to be made on
the facts laid before it. In this behalf, it could be useful to advert to
several judicial pronouncements on the issue of the power of the
court which is dealing with a petition under Section 20 of the Hindu
Adoptions & Maintenance Act. It has been held that the court has the
power to grant the substantive relief of maintenance to a minor child
against his father. Such court would have the jurisdiction to grant
interim relief to the child under Section 151 of the Code of Civil
Procedure. The question as whether such power is an inherent power
or whether it is a power in aid of the relief remains contentious.
55. In ILR 1978 II Delhi 531 entitled Ravinder Nath
Sharma vs Nagesh Sharma alias Rinkoo (Minor) Through
Smt. Nirmal Sharma, Mother and Natural Guardian, on the
above issue, the court observed and held thus :-
"4. True the Act does not contain any specific
provision conferring power on the Court to grant
interim maintenance, but that would not be
destructive of the power. If the Court had one,
whether inherent or otherwise, in aid of
proceedings pending before it, to grant interim
relief in certain circumstances. In industrial law,
the power of the Tribunal to grant interim relief, in
aid of the final relief, which the Tribunal is entitled
to give, is very well recognised, if there are grounds
which would justify it provided that it is not the
whole of the relief (1). While there is no decision in
which the principles laid down by the Supreme
Court with regard to the grant of interim relief in
industrial law were applied to civil proceedings or
proceedings under the Act, a review of the cases
that arose under the Act itself (2) indicates a
preponderance of judicial opinion in favour of the
proposition that there was ample jurisdiction in a
Court, seized of a claim for maintenance by a wife,
aged or infirm parents or a minor child, to grant
the interim relief during the pendency of the
proceedings, although there has been a sharp
difference of opinion as to whether such a power is
in the nature of an inherent power of the Court or a
power to act in aid of the relief that it is entitled to
give in any cause and, therefore, ancillary to the
substantive provisions of the Act. The question as
to the source of the power is, however, wholly
academic for the purpose of the present case.
Some of the cases which have taken the contrary
view holding that there was no power in the
absence of a specific provision to grant interim
maintenance do not appear to me, with respect, to
represent the true legal position (3). I have,
therefore, no hesitation in holding that the Court
had ample power to grant interim maintenance."
56. In AIR 1989 Orissa 137 entitled Khadal Penthi vs
Hulesh Dei and Anr., the Full Bench of the High Court of Orissa
was called upon to consider the question as to whether in the absence
of any provision in the Hindu Adoptions and Maintenance Act and
the Hindu Marriage Act, the court can exercise jurisdiction under
Section 151 CPC to grant the interim relief for awarding maintenance.
The court held that the statute recognised the substantive right of a
Hindu wife to be maintained by her husband by virtue of Section 18
of the Hindu Adoptions and Maintenance Act, 1956 and that such a
right was an enforceable right. It was held that even though there is
no express provision in any law or in the CPC for grant of interim
maintenance in a suit for maintenance, the court would have the
inherent powers to pass such orders as may be necessary to meet the
ends of justice.
57. In this behalf, it would useful to advert to a decision of the
Supreme Court reported in AIR 1977 SC 1348 entitled Jaipur
Mineral Development, Syndicate, Jaipur vs Commissioner
of I.T., New Delhi, it was observed by the Supreme Court that
every court is constituted for the purpose of justice to law and may be
deemed to possess as a necessary corollary and as inherent in its very
constitution all or such powers as may be necessary to do the right
and to undo a wrong in the course of administration of justice. The
limitation for exercise of inherent powers as has been pointed out in
various decisions is that where there are express provisions in law
dealing with a particular topic and they expressely or impliedly
exhaust the subject of powers of the court or the jurisdiction that may
be exercised in relation to a matter, the inherent power cannot be
invoked in order to cut across such powers.
58. Similarly, the court exercising substantive powers under the
provisions of the Guardians & Wards Act, 1890, has the powers to
make interim orders with regard to custody of the child under
Section 151 of the CPC (Re : 1983 Delhi High Court Digest item
138)
59. In 1975 (i) ILR 811 Gani Devi vs Amar Nath Aggarwal,
it has been held that the court can grant interim maintenance while
the pendency of the issue of pauperism of the petitioner was pending
consideration.
60. The power of the court cannot be ousted or restricted merely by
the caption on the petitioner's application. It is well settled that the
jurisdiction of the court is not limited by the provisions of law under
which an application has been made seeking any particular relief. In
1989 (IV) Delhi Lawyer 202 Smt. Thakuri Bai vs Laxmi Chand & Ors.
it was held by this court that a wrong caption on the petitioner's
application can neither divest the court of its jurisdiction nor can the
same be set up as a defence to defeat the prayer made by the
applicant.
61. There can be no dispute that the Industrial Disputes Act, 1947
confers wide powers on the industrial adjudicator. This court in
exercise of its extraordinary powers under Article 226 of the
Constitution certainly has the substantive power to grant such relief
as the industrial adjudicator can. In the light of the law laid down in
aforenoticed pronouncements, it would thus also have the power to
grant appropriate interim relief to do justice between the parties.
This is also statutorily recognised in the provision of Section 17B of
the Industrial Disputes Act, 1947.
62. It has been held by the Apex Court that the powers of the High
Court to grant interim wages are not restricted, curtailed or
circumscribed by the limits set out in Section 17B of the Act, and that
this court is adequately empowered to grant such subsistence
allowance as is thought justified in the facts and circumstances of the
case. Such power has to be effectuated and purposefully so as to
render meaningful and real justice between the parties.
Therefore, it is well settled that an application may be
captioned and filed under an erroneous or wrong provision of law.
However its admissibility and maintainability is to be decided not by
the provision under which it is filed, but examination of the issue as
to whether the court has the jurisdiction to grant the relief sought,
undeterred and unrestricted by the provisions under which it is
couched or may be filed.
Therefore, the petitioner management cannot possibly contend
that there is any legal or statutory prohibition in grant of the relief
prayed for in the above terms inasmuch as this court is possessed of
the substantive power to grant the relief irrespective of the statutory
provision under which the application may have been brought before
the court.
63. The Full Bench of this court in a judgment reported at 2005 V
AD (DELHI) 261 DTC vs Jagdish Chander held that the
provisions of Section 17B of the Industrial Disputes Act, 1947 will be
applicable in a case where the management in the writ petition has
challenged the order of the labour court/industrial tribunal whereby
its application under Section 33(2)(b) of the Act seeking approval of
the order of dismissal of the workman was dismissed by such court or
tribunal, subject to the conditions stated in Section 17B itself.
64. The principles laid down in the various judicial
pronouncements noticed above for grant of interim relief to a
workman can be culled out thus:-
(i) An application under Section 17B can be made only in
proceedings wherein an industrial award directing reinstatement of
the workman has been assailed.
(ii) This court has no jurisdiction not to direct compliance with the
provisions of Section 17B of the Industrial Disputes Act if all the other
conditions precedent for passing an order in terms of the Section 17B
of the Act are satisfied [Re : (1999) 9 SCC 229 entitled Choudhary
Sharai vs Executive Engineer Panchayati Raj Department & Anr.].
(iii) As the interim relief is being granted in exercise of jurisdiction
under article 226 of the Constitution of India, the High Court can
grant better benefits which may be more just and equitable on the
facts of the case than the relief contemplated by Section 17B.
Therefore, dehors the powers of the court under Section 17B, the
court can pass an order directing payment of an amount higher than
the last drawn wages to the workman (Re : (1999) 2 SCC 106 (para
22) Dena Bank vs Kirtikumar T. Patel
(iv) Such higher amount has to be considered necessary in the
interest of justice and the workman must plead and make out a case
that such an order is necessary in the facts of the case.
(v) The court can enforce the spirit, intendment and purpose of
legislation that the workman who is to get the wages from the date of
the award till the challenge to the award is finally decided as per the
statement of the objections and reasons of the Industrial
Disputes(Amendment) Act, 1982 by which Section 17B was inserted
in the act. [Re : JT 2001 (Suppl.1) SC 229 Dena Bank vs Ghanshyam
(para 12)].
(vi) An application under Section 17B should be disposed of
expeditiously and before disposal of the writ petition [Re : 2000 (9)
SCC 534 entitled Workman vs Hindustan Vegetable Oil Corporation
Ltd.]
(vii) Interim relief can be granted with effect from the date of the
Award [Re : JT 2001 Supplementary (1) SC entitled Regional
Authority Dena Bank vs Ghanshyam; 2004 (3) AD (DELHI) 337
entitled Indra Perfumery Company vs Sudarshab Oberoi vs
Presiding Officer.]
(viii) Transient employment and self employment would not be a bar
to relief under Section 17B of the Industrial Disputes Act [Re : 2000
(1) LLJ 1012 entitled Taj Services Limited vs Industrial Tribunal ;
1984 (4) SCC 635 entitled Rajinder Kumar Kundra vs Delhi
Administration; 109 (2004) DLT 1 entitled M/s Birdhi Chand
Naunag Ram Jain Vs. P.O., Labour Court No.IV & Others].
(ix) The court while considering an application under Section 17B of
the ID Act cannot go into the merits of the case, the court can only
consider whether the requirements mentioned in Section 17B have
been satisfied or not and, if it is so, then the court has no option but
to direct the employer to pass an order in terms of the statute. It
would be immaterial as to whether the petitioner had a very good
case on merits (Re : 2000 (5) AD Delhi 413 entitled Anil Jain vs
Jagdish Chander).
(x) A reasonable standard for arriving at the conclusion of the
quantum of a fair amount towards subsistence allowance payable to a
workman would be the minimum wages notified by the statutory
authorities under the provisions of the Minimum Wages Act, 1948 in
respect of an employee who may be performing the same or similar
functions in scheduled employments.[Re: Rajinder Kumar Kundra
Vs. Delhi Administration (1984) 4 SCC 635; Sanjit Roy Vs. State of
Rajasthan, AIR 1983 SC 328; decision dated 3rd January, 2003 in
writ petition(civil) no. 3654 & 3675/1999 entitled Delhi Council for
Child Welfare vs Union of India; DTC vs The P.O., Labour Court No.
1, Delhi & Ors. 2002 II AD (Delhi) 112( para 12, 13)]
(xi). Interim orders directing payment to a workman can be made
even on the application of the management seeking stay of the
operation and effect of the industrial Award and order. Such interim
orders of stay sought by the employer can be granted unconditionally
or made conditional subject to payment or deposits of the entire or
portion of the awarded amount together with a direction to the
petitioner employer to make payment of the wages at an appropriate
rate to the workman. Such an order would be based on
considerations of interests of justice when balancing equities.
(xii) For the same reason, I find that there is no prohibition in law to
a direction by the court to make an order directing payment of the
wages with effect from the date of the Award. On the contrary, it has
been so held in several judgments that this would be the proper
course. (Re : Regional Authority, Dena Bank & Anr. vs Ghanshyam
reported at JT 2001 (Suppl. 1) SC 229 and Indra Perfumery Co. Thr.
Sudershab Oberoi vs. Presiding Officer & Ors. 2004 III AD (Delhi)
337)
(xiii) while passing an interlocutory direction for payment of wages,
the court may also secure the interests of the employer by making
orders regarding refund or recovery of the amount which is in excess
of the last drawn wages in the event of the industrial award being set
aside so as to do justice to the employer.
(xiv) A repayment to the employer could be secured by directing a
workman to given an undertaking or offer security to the satisfaction
of the Registrar (General) of the court or any other authority [Re :
para 12, 2002 (61) DRJ 521 (DB) Hindustan Carbide Pvt. Ltd. Vs
Govt. of NCT of Delhi & Ors.(supra)]
(xv) in exercise of powers under Article 226 and Article 136 of the
Constitution, if the requisites of Section 17B of the Industrial
Disputes Act, 1947 are satisfied, no order can be passed denying the
workman the benefit granted under the statutory provisions of
Section 17B of the Industrial Disputes Act, 1947. [Re: 1999 (2) SCC
106 Dena Bank vs Kirtikumar T. Patel (para 23)].
(xvi) gainful employment of the workman; unreasonable and
unexplained delay in making the application by the workman after
the filing of the petition challenging the award/order; offer by the
employer to give employment to the workman would be a relevant
factors and consideration for the date from which the wages are to be
permitted.
(xvii) It will be in the interest of justice to ensure if the facts of the
case so justify, that payment of the amount over and above the
amount which could be directed to be paid under Section 17B to a
workman, is ordered to be paid only on satisfaction of terms and
conditions as would enable the employer to recover the same. [para
13 of Regional Manager, Dena Bank vs Ghanshyam].
(xviii) The same principles would apply to any interim order in
respect of a pendentelite payment in favour of the workman.
65. CM No. 48/2005 in Writ Petition(Civil) No. 2211/1998
In this case the petitioner had filed CM 5539/2001 under
Section 17B of the Industrial Disputes Act, 1947 which was granted
vide an order passed on 8th November, 2001 in the following terms :-
"It is stated in the present application by the
respondent/workman that ever since the illegal
termination of the services of the
respondent/workman on 15.2.1988 the workman is
not employed in any establishment till date. The
aforesaid statement is made on oath, which could
not be controverted by the
petitioner/management. Therefore, the requisites
for making an order under Section 17(B) of the Act
stands satisfied. In that view of the matter and
following the ratio of the decision of the Supreme
Court in DENA BANK VS. KIRTIKUMAR T.PATEL
reported in 1999 (2) SCC 106, it is ordered that the
petitioner/management shall pay to the workman
full wages last drawn by him, from the date of filing
of the writ petition in this court till his
reinstatement. The expression 'full wages last
drawn' would have the same meaning as was given
by the Supreme Court in the decision of Dena Bank
vs. Kirtikumar T.Patel (supra). The payment shall
be made by the petitioner/management to the
respondent/workman within six weeks from today.
Application stands disposed of in terms of
the aforesaid order. It is also made clear that any
observation made herein with regard to merit of
the petition shall be considered as tentative for the
purpose of deciding the present application only."
66. Now, by way of the present application, the
applicant/respondent has contended that by virtue of this order, the
workman is being paid a pittance of Rs.1529/- as monthly wages last
drawn which is wholly insufficient for even the bare day to day
minimum expenses. Contending that this amount is even below the
minimum wages statutorily fixed by the government of NCT of Delhi,
the applicant submits that it is opposed to all canons of justice and
frustrates the entire purpose of awarding wages as an interim relief.
On these submissions, the applicant has sought the following reliefs
:-
"(i) Direct the petitioner/management to pay
wages to the respondent/workman at the rate of
the present minimum wages fixed by the
Government of N.C.T.
(ii) Pass any such other or further order as this
Hon'ble Court may deem fit and proper in the
circumstances of the present case."
67. The application has been vehemently opposed on behalf of the
petitioner who has contended that no order directing payment of any
amount higher than the full wages last drawn can be granted to a
workman as an interim relief. An objection has been taken to the
effect that the workman has not filed an affidavit that he is not
gainfully employed.
68. Mr. S.N. Bhandari, learned senior counsel appearing for the
petitioner has submitted that the Division Bench judgment of this
court in (1987) 1 LLJ 485 entitled Fouress Engineering (India) (P)
Limited vs Delhi Administration was not placed before this court in
DTC vs PO LC (supra) and the other judgments relied upon by the
respondent/applicant. He submits that as a
judgments directing payment of anything beyond the wages last
drawn under Section 17B are contrary to the specific statutory
provisions and the law laid down by the Division Bench and as such
cannot be permitted to stand.
Further placing reliance on AIR 2002 SC 651 = (2002) 2 SCC
278 entitled New Indian Assurance Company Limited vs CM Jain &
Ors., it is submitted by learned senior counsel that the statutory
liability cannot be more than what is required under the statute itself.
69. My attention has also been drawn to Section 20(3) of the
Industrial Disputes Act, 1947 which provides that proceedings under
the Industrial Disputes Act, 1947 are deemed to commence on the
date when the reference is made and are deemed to conclude when
the Award becomes enforceable under Section 17A. Therefore,
according to learned senior counsel, the employer management
cannot be directed to make payment with effect from the date of
passing of the Award as the same does not become enforceable till
the same is published in the official gazette in compliance with
Section 17A. For this reason, any order directing payment of wages
with effect from the date of the Award is contrary to statutory
provision.
70. Mr. S.N.Bhandari, learned senior counsel appearing for the
petitioner has further submitted that a workman has a right to make
an application seeking enforcement and recovery of an award in his
favour under Section 33 (C) (1) of the Act while for the period for
which there is a challenge to the award directing reinstatement, the
workman has a right under Section 17B to seek last drawn wages.
Therefore, the legislature having provided a specific remedy for
rights created, the workman has to be diverted to such remedy and
cannot seek enforcement of the award by way of an interim
application in a writ petition filed by the management challenging the
award.
It has been pointed out by learned senior counsel for the
petitioner that the Industrial Employment (Standing Orders) Act,
1946 itself provides for payment of subsistence allowance under
Section 10A. It is pointed out that this section contains only a
reference to wages which the workman was entitled to immediately
preceding the date of his suspension. It does not advert "to wages
last drawn" as is to be found in Section 17B of the Industrial Disputes
Act, 1947.
71. Strong reliance was placed on the Division Bench
pronouncement of this court reported at 43 (1991) 742 Fouress
Engineering (I) Pvt. Ltd. Vs Delhi Administration & Ors.
72. It has further been urged with all the vehemence at the
command of learned senior counsel that the interim relief to which
may be admissible to a workman is in the nature of a subsistence
allowance and the statute has provided a limit of such amount by
using the expression "last drawn wages". under Section 17B of the
Industrial Disputes Act. It is submitted that even in exercise of
powers under Article 226 of the Constitution of India, such interim
relief cannot be beyond the statutory prohibition.
It is urged, that in any case, an employee who is being paid less
than the minimum wages cannot seek minimum wages as an interim
relief during the pendency of the management's writ petition. It is
contended that the remedy of such an employee is under Section 20
of the Minimum Wages Act, 1948 and not by way of an application
under Section 17B of the Industrial Disputes Act, 1947.
Without prejudice to this submission, it was further contended
that the
statutory provisions of the Minimum Wages Act are not applicable to
the petitioner who is not a scheduled employer under this enactment
and consequently an application seeking a prayer for award of
minimum wages based on notifications under this statute is not per
se maintainable.
73. According to learned counsel for the petitioner, the
respondent/workman had sought grant of wages and an order in his
favour was passed on 8th November, 2001 which has been duly
complied with. Merely because latter judgments have expanded the
extent of interim relief to which a workman could be held to be
entitled, the respondent/workman is not entitled to bring the present
application which is really in the nature of a review petition. In this
behalf, the judgment of the High Court of Jammu and Kashmir
reported at 2004 3 JKJ 345 entitled National Insurance Company vs
Mohd. Sultan Asim & Anr. is relied upon.
74. Placing reliance on the judgment of the High Court of Calcutta
reported at 1998 2 LLN 777 entitled Hindustan Paints Supply
Company and State of West Bengal & Ors., it is contended that "last
drawn wages" means wages drawn at the time of termination and
nothing beyond.
75. On the other hand, Mr. Jayant Mehta, learned counsel
appearing for the workman/applicant has contended that the interim
relief which is given to a workman when a challenge to an award in
his favour is made, is in the nature of subsistence allowance and that
the amount which is so paid must be sufficient to enable a workman
to keep body and soul together. Industrial disputes take long
periods, extending to over decades even, for adjudication and, on
behalf of the applicant. Learned counsel has urged that the wages
which were being paid to a workman at the time of his termination
are grossly insufficient for a workman to eke out his living.
According to Mr. Mehta, a fair index of the reasonable amount which
should be so ordered to be paid to the workman pendentelite would
be the statutorily fixed minimum wages under the Minimum Wages
Act, 1948. It has been submitted that the same gives a fair basis for
making an order which would do justice to the parties. In this behalf,
reliance has been placed on the pronouncement of the Apex Court
reported at 1992 1 SCC 290, Workman represented by Secretary vs
Reptacos; AIR 1963 SC 1322 entitled Durga Prasad and another vs
Banaras Bank Ltd.; AIR 1958 SC 30 M/s. Crown Aluminium Works
vs their Workmen and AIR 1967 SC 1175 and AIR 1983 5 SC 328
Sanjit Roy vs State of Rajasthan.
76. I have given my considered though to the submissions made
before me and the available record. The law applicable to the grant of
wages is well settled. It has been authoritatively held in the
pronouncements noticed herein that there is no restriction on the
High Court which is granting relief as an interim measure during the
pendency of a challenge by the management to an award directing
reinstatement of the workman. It is also settled law that the
minimum wages notified by the statutory authorities from time to
time gives a fair index of the wages which should be paid to workman
pendentelite.
77. During the course of submissions, it was pointed out by learned
senior counsel for the petitioner that the services of the
respondent/workman were terminated as back as on 15th February,
1988 on which date he was drawing wages of only Rs.1529/- It is also
not disputed that the litigation has remained pending eversince and
that such amount is grossly insufficient to eke out a bare living. It
was also fairly admitted that such an amount is below the minimum
wages notified by the statutory authorities from time to time.
So far as the submission based on the Industrial Employment
(Standing Order) Act, 1946 is concerned, I find that Section 10A of
the Industrial Employment ( Standing Orders ) Act, 1946 itself
provides for payment of subsistence allowance at the rate of 50% of
the wages immediately preceding the date of such suspension for the
first 90 days and thereafter at the rate of 75% on satisfaction of the
notified stipulations.
Further, on close reading of the pronouncement of the Division
Bench in Fouress Engineering (India) (Pvt.) Ltd. vs Delhi
Administration 42 (1991) DLT 742 shows that in this case the
Division Bench held thus :-
"7. This Section, 17-B, relates to the period during
which proceedings remain pending before the High
Court or the Supreme Court, it does not take into
account any period to the preferring of the
proceedings in 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 employee.
8. xxx
9. From a perusal of the above passage it may
appear that even for back wages Section 17-B makes
a provision. However, as already considered above,
Section 17-B does not deal with the period prior to
the preferring of proceedings before High Court or
Supreme Court.
10. xxx
11. In our opinion, the Court could have
passed such an order with respect to back
wages or arrears payable by the employer to
the employee without taking recourse to
Section 17-B. There is no dispute that back wages
drawn by respondent no. 3 were @ Rs.615/- per
month."
78. This judgment was placed before the Supreme Court in Dena
Bank vs Kiritkumar T. Patel (supra) and the court observed thus :-
" 14. The decision of the Delhi High Court in
Fouress Engineers (India) (P) Ltd. v. Delhi
Admn. on which reliance has been placed by Shri
Sharma, does not throw much light on the
meaning of the expression "Full wages last
drawn"."
Even though the judgment did not elaborate on the expression
back wages, it is noteworthy that the Division Bench noticed that
Section 17B did not prohibit the High Court in exercise of its
extraordinary jurisdiction under Article 226 to make interim orders
without taking recourse to Section 17B of the statute. In my view,
this judgment also fortifies the view I have taken in this matter.
There can be no dispute to the proposition of law laid down in
this judgment to the effect that the language of Section 17B of the
Industrial Disputes Act, 1947 is express and unambiguous and that
no expanded meaning can be given to the expression "full wages last
drawn".
However, I find that the court was not called upon to consider
the issue of the power of the High Court to grant wages dehors and in
excess of the wages which are permissible under Section 17B of the
Industrial Disputes Act, 1947. For this reason, this judgment is of no
application to the case of the petitioner in the instant case.
79. So far as the availability of the remedy under Section 20 of the
Minimum Wages Act, 1948 is concerned, it is to be noticed that this
court is concerned only with the issue of grant of wages as an interim
relief during the pendency of the writ petition and not as a final relief
and its consideration is confined to what would be a reasonable and
fair amount necessary for subsistence which could be granted as
interim relief to a workman while a challenge to an award in his
favour remained pending in this court.
80. I am also of the view that in the instant case, the application of
the respondent/workman is based on fact that he is unable to make
ends meet on the terms on which the order dated 8th November, 2001
was passed. This application, therefore, is based on a fact situation
upon the experience and circumstances of the petitioner after receipt
of the amounts under orders dated 8th November, 2001.
81. Such an application is akin to application seeking orders/award
of maintenance in favour of dependant children for needs which are
liable to change periodically against a parent.
82. The needs of a workman and the fairness of the wages ordered
to be paid even by way of an interim order may also vary, dependant
on the order originally passed on a workman's application dependant
on the needs of the family, the variation in the cost index etc. Such
eventuality can be tested even thus. Assume a situation where, after
the passing of the orders granting wages to the workman, the
management is able to procure positive information of gainful
employment of the workman. If the contention of learned senior
counsel for the petitioner was accepted, then it would be
impermissible for the court to vary the existing order. But, this is not
so. An order modifying the wages ordered to be paid may be passed
even on an application of the employer who is able to lay evidence of
gainful employment of the workman or other, relevant
considerations justifying cancellation of the order in the workman's
favour or variation of the amount directed to be paid. I am,
therefore, unable to agree with learned senior counsel for the
petitioner on the submission that the present application deserves to
be rejected on the ground that it is in the nature of a review petition
or that such review based on a judicial pronouncement is not
maintainable.
83. So far as the submissions based on the provisions of Section 17
and other provisions of the Act is concerned, in my view the
propositions urged are not at all sustainable. Interim wages have
been held to be in the nature of non-refundable subsistence
allowance. The same cannot be compared to the provisions which
relate to execution of the award by any analogy.
84. I find that in compliance of the orders dated 8th November,
2001, the petitioner is admittedly making payment of wages on the
basis of the last drawn wages to the workman. Therein is contained
an admission of the unemployment and need of the workman and the
entitlement of the workman to an order for pendentelite wages. This
application has been made under Section 151 of the Code of Civil
Procedure and is supported by an affidavit. In view of the implied
admission on the part of the management to the effect that the
workman is entitled to wages, and the application not being under
Section 17B of the Industrial Disputes Act, there was no requirement
in law of the affidavit which has been mentioned under Section 17B of
the Industrial Disputes Act, 1947.
85. I find that vide the order dated 8th November, 2001, the
respondent/workman was granted wages with effect from the date of
filing of the writ petition in this court. The writ petition was filed as
back as on 9th May, 1998. CM 5539/2001, the earlier application of
the respondent/workman under Section 17B was filed on 14th May,
2001.
The present application has been filed only on 16th December,
2004. In this view of the matter, I see no reason to vary the date
from which the petitioner shall be entitled to the interim relief as has
been granted vide order dated 8th November, 2001.
86. So far as the prayer for award of wages pendentelite is
concerned, I find that the respondent/workman has established that
the amount being paid to him is grossly insufficient and deserves to
be enhanced. The parties have not placed any fair amount which
could have been granted to the respondent/workman other than the
reliance on the statutory notifications under the Minimum Wages
Act, 1948. In my view, the wages notified by the authorities from
time to time under the Minimum Wages Act, 1948 is a reasonable
and fair index of the wages which should be admissible to the
respondent/workman during the pendency of the litigation. The
same is in consonance with the binding principles laid down by the
Apex Court and this court noticed hereinabove by which this court is
bound.
87. Accordingly, this application is allowed. The order dated 8th
November, 2001 is modified to the extent that the
respondent/workman shall be paid wages with effect from the date of
filing of the writ petition at a rate whichever is higher of the two rates
between the last drawn wages and the minimum wages notified by
the statutory authorities from time to time. The
respondent/workman shall file an undertaking in this court within
one week from today setting out his latest address and undertaking to
this court that in the event of the writ petition being allowed, he shall
be liable to reimburse to the petitioner the differential of the amount
of the wages last drawn and the minimum wages notified by the
authorities from time to time.
Arrears in terms of the orders passed today shall be paid to the
respondent/workman at the address disclosed in his undertaking
within a period of four weeks. Month by month wages in terms of
this order shall be paid to the respondent/workman on or before the
7th of each english calender month at the same address.
88. CM NO. 5169/2004 in Writ Petition(Civil) 52/1997
This application has been filed under Section 17B of the
Industrial Disputes Act, 1947 praying for grant of wages which are
not less than the minimum wages from the date of the award till the
date of reinstatement in terms of the order made on 6th May, 1998. It
is contended that the respondent no. 3 workman remained
unemployed from the date of his first illegal termination till
reinstatement on 6th May, 1998 and from the date of the second
termination on 2nd September, 1999. Placing reliance on the
pronouncement of the Apex Court in the Dena Bank case (supra), it is
prayed that the respondent-workman has a legal right and
entitlement to such relief.
89. This application has been vehemently opposed on behalf of the
respondents. It has been pointed out that the petitioner had filed CM
No. 117/1997 praying for stay of the operation, enforceability and
implementation of the impugned award dated 18th July, 1996. This
application was considered on 6th May, 1998 whereby the interim
order of stay of the industrial award passed in favour of the petitioner
was modified to the extent that it would operate only against the
payment of back wages. It was directed that the petitioner would
forthwith reinstate the workman concerned.
90. It appears that the respondent had earlier also filed an
application under Section 17B of the Industrial Disputes Act being
CM No. 6337/1997 on the 6th May, 1998. As an order requiring the
management to reinstate the workman was passed, this application
was dismissed as having been rendered infructuous.
91. The parties admit that pursuant to the orders dated 6th May,
1998, the respondent no. 3 was reinstated. However, it has been
contended that on 2nd September, 1999, the services of the
respondent no. 3 were again terminated. 92. On the other hand, the
petitioner has submitted that the respondent-workman left service
without any rhyme or reason and has invoked the machinery under
the Industrial Disputes Act, 1947 raising another industrial dispute
alleging illegal termination of service. It has been pointed out that an
order of reference dated 13th September, 1999 has been passed by the
Government of National Capital Territory of Delhi in exercise of its
powers under Section 10 (1) (c) and Section 12 (5) of the Industrial
Disputes Act, 1947. On this grievance of the respondent-workman.
Both parties state that this industrial dispute is still pending before
the Industrial Adjudicator.
93. It is evident that only thereafter, the respondent no. 3 workman
has filed an application being CM 9885/2000 dated 17 th July, 2000
seeking a direction to the management to make payment of at least
75% of the awarded amount to each workman. Subsequently another
application being CM 13481/2003 was filed on 3rd November, 2003
praying for modification of the order dated 6th May, 1998 on its
application under Section 17B and for grant of wages at a rate
whichever is higher of the two rates between the last drawn wages
and the minimum wages till the date of reinstatement.
94. This application, i.e. CM 13481/2003 was withdrawn on 15th
March, 2004.
95. It is only then that the present application has been filed on 9th
April, 2004 seeking wages from the date of passing of the award i.e.
18th July, 1996 till 6th May, 1998.
96. I find force in the submissions made on behalf of learned senior
counsel for the petitioner to the effect that the respondent had earlier
filed an application being CM 6337/1997 which was dismissed as
having been rendered infructuous on 6th May, 1998. By way of this
application, the respondent/workman had sought the same relief as
has been sought in the present application CM 5169/2004. The
respondent was satisfied with the order passed did not assail the
order dated 6th May, 1998 in any further proceedings and the same
has become final between the parties. In my view, therefore having
sought an interim relief and an order thereon having been passed,
the respondent/workman cannot possibly be contended to seek the
same relief as an interim relief in the present application.
97. Matters did not end here. The petitioner again sought the same
relief in CM 13481/2003 which was also dismissed as withdrawn on
15th March, 2004.
98. The petitioner was admittedly reinstated in service pursuant to
the orders dated 6th May, 1998 and as such cannot claim any interim
relief in respect of the period between 6th May, 1998 to 2nd February,
1999.
99. So far as the wages subsequent to 2nd September, 1999 are
concerned, it is noteworthy that the petitioner stood reinstated in
service pursuant to this court's order dated 6th May, 1998. According
to the petitioner his services have been illegally terminated on this
date. It has also been pointed out by learned counsel appearing for
the respondent/workman that such termination has been challenged
before the Industrial Adjudicator and the dispute in respect thereof is
pending. Therefore the admitted position is that there is no
industrial award in respect of the termination allegedly effected on
2nd February, 1999. The present writ petition is not concerned with
the alleged termination of service on 2nd February, 1999 nor any
proceedings thereafter. Consequently, the petitioner at this stage
cannot be held to be entitled to any relief for the period after 2nd
February, 1999.
In this view of the matter, I find no merit in this application
which is hereby dismissed.
100. CM No. 10456/2004 in Writ Petition(civil) No.
9491/2000
By way of this application under Section 17B of the Industrial
Disputes Act read with Section 153 of the Code of Civil Procedure, the
respondent nos. 3, workman seeks an order to the
respondent/management during the pendency of the writ petition
and further orders to meet the ends of justice.
101. The respondents have stated in their affidavit that they had
joined the services of the petitioner in 1983 and their services were
illegally terminated in May, 1990. It has been contended that in the
organisation of the petitioner, the pay of any grade II employee
wherein the respondent was engaged, ranges from Rs.19,000/- to
Rs.35,000/- It is further submitted that even a peon of grade IV
recruited in the year 1997 was drawing approximately Rs.10,000/-
while the applicant's last drawn wages were to the tune of only
Rs.1,285/- In this view of the matter the applicant has prayed for
award of a reasonable amount as monthly wages based on the
pronouncement of the Apex Court in the Dena Bank's case.
102. It has been urged on behalf of the workman that he had
challenged his termination by raising an industrial dispute which was
referred to the Industrial Adjudicator. Vide an industrial award
dated 1st July, 2003 in ID No. 90/1991 by the Labour Court,
reinstatement of the respondent/workman with consequential
benefits and full back wages has been directed. This award has been
impugned in the present proceedings. The petitioner has made a
deposition on affidavit that during the past 14 years since the date of
termination of his services, the workman has not been gainfully
employed and that he remains unemployed. He contends that he has
existed as a parasite upon his father. The workman had also given a
deposition in his affidavit that in the event of this court awarding
wages over and above the last drawn pay, he undertakes to refund the
difference between the two to the employer if the decision in the writ
petition ultimately goes in favour of the management and against the
deponent.
103. This application has been strenuously contested by the
petitioner on all the grounds as have been noticed hereinabove. The
objection primarily is that no order can be made in favour of the
workman as an interim measure in a writ petition filed by the
management which is beyond the strict parameters laid down in
Section 17B of the Industrial Disputes Act.
104. I have noticed hereinabove the jurisdiction of the High Court in
exercise of its extraordinary powers under Article 226 of the
Constitution of India whereby it has the jurisdiction to award or
grant interim wages dehors Section 17B of the Industrial Disputes
Act. I have also noticed and held that there is no prohibition on this
court in granting wages with effect from the date of the award and
that the minimum wages notified by the statutory authorities from
time to time is a fair index of the amount which the management
should be directed to pay to the workman.
105. In the instant case, the petitioner has alleged illegal termination
of his services as back as in May, 1990 and the industrial dispute has
remained pending since 1991 culminating in the award dated 1st July,
2003 which has been impugned before this court. The wages of
Rs.1,285/- which was being paid to the workman in 1990 cannot by
any measure be considered to be a fair and reasonable wage. This
court would take judicial notice of the rising cost of index and
inflation. I have also noticed the authoritative judicial
pronouncements of the Apex Court to the effect that the wages
notified by the statutory authorities under the Payment of Wages Act,
1948 are a reasonable and fair index of fair wages which deserve to
should be granted to a workman.
106. In view of the position in law, as discussed hereinabove, the
opposition to the application cannot be sustained on any legally
tenable grounds and the same is hereby rejected.
107. The undertaking given by the respondent in his affidavit filed
with this application is accepted and he shall remain bound by the
same.
108. The petitioner is accordingly directed to make payment of
wages to the respondent no. 3 at the rate, whichever is higher,
between the last drawn wages and the minimum wages which are
notified by the authorities from time to time. The arrears of the
wages at this rate shall be paid to the respondent/workman at the
address disclosed in his affidavit filed in support of the application
within a period of four weeks from today. Month by month wages in
terms of the order passed today shall be paid to the workman at the
same address on or before the 7th of each english calender month.
This application is allowed in the above terms.
GITA MITTAL
JUDGE
April 28, 2006
kr
