Delhi Transport Corporation vs Presiding Officer & Anr.
2010 Latest Caselaw 2293 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 CM NO.13510/2009 IN W.P.(C) 6647/2003

%                                           Date of decision: 29th April, 2010

DELHI TRANSPORT CORPORATION                ..... PETITIONER
                 Through: Mr. J.B. Malik, Advocate

                       Versus
PRESIDING OFFICER & ANR.             ..... RESPONDENTS
                 Through: Mr. N.A. Sebastian, Advocate for
                         Respondent No.2.

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

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

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

RAJIV SAHAI ENDLAW, J.

1. The petitioner DTC has preferred this writ petition impugning the

order dated 31st March, 2003 of the Industrial Tribunal rejecting the

application of the petitioner DTC under Section 33(2)(b) of the I.D. Act.

This Court vide ex parte order dated 3rd December, 2003, while issuing

notice of the writ petition stayed the operation of the order aforesaid of the

Industrial Tribunal. The respondent no.2 workman applied under Section

17B of the I.D. Act. Vide order dated 3rd September, 2008, the application

of the respondent no.2 workman under Section 17 B of the I.D. Act was

allowed and the petitioner DTC was directed to pay to the respondent no.2

workman his last drawn wages or minimum wages whichever is higher

with effect from 31st March, 2003 till the pendency of the petition. On the

same day, Rule was issued in the petition and the interim order made

absolute.

2. The respondent no.2 workman has now filed this application stating

that the petitioner DTC has reinstated the respondent no.2 workman in

service on 17th June, 2009 without prejudice to its rights and contentions in

the present petition and the respondent no.2 workman has so joined the

duties of the petitioner DTC. The grievance of the respondent no.2

workman is that inspite of his so working for the petitioner DTC, he is

being paid a sum of Rs.3,591/- per month only after the deduction of

provident fund, though he is working as full time driver. He contends that

else DTC is paying an entry level salary of Rs.12,284/- gross to the drivers

employed with it. He claims that owing to his past experience with DTC,

he is being assigned duties requiring better skills and experience as

compared to new recruits. The respondent no.2 workman has therefore

applied for a direction to the petitioner DTC to make payment of wages to

him at the rate of Rs.12,284/- gross, being the wage paid to new entrants by

the petitioner DTC. Notice of the said application was issued to the

petitioner DTC on 30th October, 2009. Inspite of opportunities, reply

thereto has not been filed. The counsels have been heard.

3. The counsel for the petitioner DTC has during the hearing admitted

that DTC is now taking work from the respondent no.2 workman. He

however urges that since the respondent no.2 workman stood removed

from the service of DTC and validity / legality of which action is pending

adjudication, the respondent no.2 workman has no right to claim more than

the amounts due under Section 17B of the I.D. Act.

4. The counsel for the petitioner DTC has been informed that this Court

in Delhi Transport Corporation Vs. Phool Singh CM No.11188/2009 in

WP(C) No.5183/2003 decided on 17th February, 2010 has taken a contrary

view. The counsel for the petitioner has in response thereto relied upon the

order dated 15th April, 2004 in CM No.10946/2003 in WP(C)

No.3723/2000 titled Delhi Transport Corporation Vs. Hari Prakash. In

that case the DTC had shown inclination for the respondent no.2 workman

to rejoin duty. The respondent no.2 workman had stated that he was

willing to so rejoin only if paid 50% of the back wages. A Single Judge of

this Court held that the respondent workman cannot be allowed to put such

conditions. Also since the respondent workman had not accepted the offer

of DTC, he was not held entitled to the benefits under Section 17B of the

I.D. Act. The counsel for the petitioner DTC also relies on order dated 4th

December, 2009 in CM No.13976/2008 in WP(C) No.21255/2005 titled

Delhi Transport Corporation Vs. Laxman Singh; in this case also DTC

had sought direction from the Court for the workman to report for duty in

lieu of the amounts being received by him under Section 17 B of the I.D.

Act. The workman had contended that he was prepared to so join duty if

he was paid wages equivalent to other workmen in the same category. This

Court held that the workman cannot refuse to join duty while drawing

allowances under Section 17B of the I.D. Act which is a sort of

unemployment allowance. The petitioner DTC was directed to pay the

minimum wages / last drawn wages to the workman on his joining duty and

working with petitioner DTC.

5. Undoubtedly, the aforesaid two orders were not brought to the

attention of the undersigned while pronouncing the order dated 17 th

February, 2010 in Phool Singh (supra). The orders in Hari Prakash &

Laxman Singh (supra) appear to be contrary to the reasoning adopted by

the undersigned in Phool Singh. However, having already taken a

different view in Phool Singh, it is not deemed expedient to now refer the

matter to the Division Bench.

6. The Supreme Court in Dena Bank Vs. Kiritikumar T. Patel (1999) 2

SCC 106 has held that object of Section 17 B of the I.D. Act is to relieve to

a certain extent the hardship that is caused to the workman due to delay in

implementation of the award during the pendency of proceedings in which

the said award is under challenge before the High Court or the Supreme

Court; 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 the Supreme Court.

7. Thus the payment under Section 17B of the Act at the rate of last

drawn wages or as interpreted by the courts at the rate of minimum wages

envisages a situation of the award of reinstatement of the workman and

resultant payment of wages being held up and/or stayed by the High Court

or the Supreme Court. The payment is for a situation when the workman is

not working. This is further made clear from the proviso to Section 17B of

the Act. Such payment under Section 17B is not payable if the workman is

employed and has been receiving adequate remuneration during the period

of stay of implementation of the award of reinstatement. It is significant

that the proviso to Section 17B denies payment thereunder to the workman

not merely when he is receiving remuneration for any employment but

when remuneration for such other employment is "adequate". The

payment under Section 17B is thus for a situation when a workman is

sitting idle, at home. Whether it should remain the only payment when the

Management/employer, as in the present case, subject to final decision of

the challenge to the award of reinstatement, seeks to take work from the

workman and benefit therefrom?

8. The policy of the petitioner DTC to take work from such employees

to whom payment under Section 17B of the Act has been directed is

understandable. The DTC does not want to pay under 17B to its own loss.

However, DTC cannot at the same time be permitted to, by so calling the

workman for joining duties, cause loss to the workman. Experience of life

shows that stepping out of the house is an expensive affair and involves

incurring of expenditure not only for transportation to and fro the place of

work but also on making oneself presentable to the outside world in terms

of clothing, personal hygiene and social niceties. Stepping out of the house

and engaging in regular work requires a workman to stay in a good state of

health and requires him to spend on that also. What the legislature compels

the employer to pay to the employee by way of condition for challenging

the award of reinstatement and thereby in the interregnum depriving the

workman of the benefit under the award, cannot form a scale/measurement

of payment which the employer is required to make for availing such

services. A provision of law intended to be beneficial to the workman in a

social welfare statute cannot be made to work against the workman. What

was given to the workman by one hand cannot be permitted to be taken

away by the other. Allowing DTC to, while paying last drawn / minimum

wages (which are found to be less than ¼th of the wages being paid by DTC

to others doing similar work) would result in exploitation of the workman.

9. In Regional Authority, Dena Bank v. Ghanshyam AIR 2001 SC

2270, the operation of the award of reinstatement of the workman was

stayed by the High Court on condition of the employer bank reinstating the

workman in service and paying him salary regularly in accordance with the

law. It was the contention of the employer bank that it, under Section 17B

of the I.D. Act was liable to pay only the last drawn / minimum wages and

thus the order of stay should be construed as payment of salary at the last

drawn/ minimum wages rate only. The workman contended that he, in

pursuance to the said order, was entitled to the salary equivalent to what the

employer bank was paying for equivalent work. The Supreme Court was

thus merely interpreting the order of stay granted by the High Court and

not directly concerned with the issue which has arisen for consideration in

the present case. The Supreme Court however held that Section 17B of

the I.D. Act was inserted in the Act to mitigate the hardship that would be

caused to the workman due to delay in implementation of the award. It

was further held that, in the event of an employer not reinstating the

workman and not seeking any interim relief in respect of the award

directing reinstatement of the workman or in case where the court is not

inclined to stay such award in toto, the workman has two options; either to

initiate proceeding to enforce the award or be content with receiving the

full wages last drawn by him without prejudice to the result of the

proceedings preferred by the employer against the award till he is

reinstated or proceedings are terminated in his favour, whichever is earlier.

It was further held that Section 17B does not preclude the High Court

under Article 226 of the Constitution of India from passing appropriate

interlocutory orders, having regard to the facts of the case, in the interest of

justice. It was further held that the question whether a workman is entitled

to the full wages last drawn or full salary which he would be entitled to in

the event of reinstatement while the award is under challenge in the High

Court, depends upon the terms of the order passed by the Court, which has

to be determined on interpretation of the order granting relief. On

interpretation of the order in that case, it was held that the salary to be paid

to the workman could not be anything other than the salary which he would

be entitled to on reinstatement. It was also held that the order of the High

Court was not under Section 17B of the I.D. Act. In my view the judgment

aforesaid of the Supreme Court leans in favour of the view taken by the

undersigned in Phool Singh (supra) rather than in favour of the view taken

in the orders in Hari Prakash & Laxman Singh (supra) cited by the

counsel for the petitioner.

10. In the present case also, the petitioner DTC reinstated the respondent

no.2 workman of its own. There is no reference or direction with respect

thereto in any of the orders of this Court. The same also has no co-relation

to the order under Section 17B of the I.D. Act. When the petitioner DTC

has decided to take work from the respondent no.2 workman, though

without prejudice to its rights and contentions in this petition, the

respondent no.2 workman is entitled to seek a direction for payment of

wages being paid to others for the same work. This Court, de hors the

power under Section 17B of the I.D. Act can pass an order directing

payment of amount higher than the last drawn wages to the workman.

Besides Kiritikumar T. Patel (supra) reliance in this regard can also be

placed on para 64 of the judgment in Food Craft Institute. Vs. Rameshwar

Sharma 134 (2006) DLT 49.

11. The application, therefore, succeeds. The petitioner DTC is directed

to pay to the respondent no.2 workman wages at the rate of Rs.12,284/-

gross, as claimed, with effect from the date the respondent no.2 workman

was reinstated by the petitioner DTC. DTC is further directed to continue

to pay to the respondent no.2 workman till the time he performs duty for

the DTC or till the decision of this petition, wages as paid to the drivers

employed by it at entry level. The arrears to be paid within four weeks of

today failing which the same shall incur simple interest at 7% per annum.

The application is disposed of.

RAJIV SAHAI ENDLAW (JUDGE) 29th April, 2010 gsr