Delhi High Court
American Institute Of Indian ... vs Rajesh Kaushik on 19 August, 2010
Author: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ CM No.12017/2007 in WP (C) No. 15212 of 2006
% Decided on: 19th August, 2010
AMERICAN INSTITUTE OF INDIAN STUDIES
........Petitioner
Through: Mr. Jitesh Pandey, Adv. with
Mr. Dipesh Sharma, Adv.
Versus
RAJESH KAUSHIK ....Respondent
Through: Mr. Sanjiv Kakra, Adv. with
Mr. Abhinav Malhotra, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
MANMOHAN SINGH, J.
1. This application has been filed by the respondent under
Section 17-B of the Industrial Disputes Act, 1947 asserting that the
petitioner has challenged an industrial award dated 18.02.2006
passed in favour of the respondent whereby the relief of
reinstatement into service with continuity and 50% back wages was
granted to the workman. It is contended that the workman is not
employed in any establishment after the illegal termination of his
services and due to his unemployment it is difficult for him to
support his family. The last drawn salary of the petitioner was
Rs.5500/- per month.
2. This application has been opposed by the petitioner. It is
submitted by the petitioner that the applicant is working under one
of the subcontractors namely Shri Manoj Bharadwaj of the
Company M/s A to Z. The said Shri Manoj Bharadwaj to whom work
has been outsourced by M/s A to Z Company is entrusted with the
work of cleaning and maintenance of various Metro Railway
Stations, one of which Metro Station is at Najafgarh. It is submitted
by the petitioner that the applicant is incharge of the maintenance
and cleaning of Najafgarh Metro Station and is working with Shri
Manoj Bharadwaj who also happens to be a close relative of the
applicant. It is admitted fact by the petitioner that the monthly
emoluments of the applicant were Rs.5500/-per month.
3. In rejoinder, the respondent has specifically denied the
fact that he is working with Mr. Manoj Bhardwaj who is a close
relative of the respondent. Rather it is stated in the rejoinder that
the respondent is the sole bread earner in a family of five members
consisting of the respondent, his wife, two daughters and one minor
son and at present the respondent is neither gainfully employed
nor has any other source of income for sustaining himself and his
family.
4. It appears from the record that the petitioner has not
placed any documentary evidence in order to support his
contention raised during the course of arguments. Learned counsel
for the petitioner also argued that the labour court did not have the
requisite territorial jurisdiction to entertain the said industrial
dispute. Learned counsel for the petitioner submitted that he has
already filed an application under Order 6 Rule 17 CPC for
amendment of the writ petition.
5. I have gone through the reply filed by the petitioner to
the application under Section 17-B of the Industrial Disputes Act
filed by the respondent. No such point has been raised in the reply.
It is a matter of fact that the application for the amendment of the
writ petition has been filed subsequent to the completion of the
pleadings of the application under Section 17-B of the ID Act, 1947
filed by the respondent. Therefore, the oral submission of the
petitioner in this regard cannot be considered while deciding the
present application in the absence of any averment in the reply.
6. A reading of section 17-B of ID Act, 1947 shows that the
workman is entitled to full wages last drawn by him inclusive of any
maintenance allowances payable to him under any rule if the
workman has not been employed in any establishment during the
period of pendency against any award directing reinstatement of
the workman in a High Court or the Supreme Court, provided that
workman also files an affidavit to that effect. The applicant in his
additional affidavit has declared that he is neither gainfully
employed nor have any other source of income. It is also submitted
by the applicant that he is not working with Shri Manoj Bharadwaj
as alleged by the petitioner. It is, therefore obvious that the
requirements of section 17-B of the ID Act, 1947 are fulfiled in this
case.
7. This Court has reiterated in its numerous decisions the
very well settled law laid down in Regional Authority, Dena
Bank & Anr. Vs. Ghanshyam; AIR 2001 SC 2270 by the Apex
Court while analyzing the statement of objects and reasons for
inserting Section 17-B it held:
"It follows that in the event of an employer not
reinstating the workman and not seeking any interim
relief in respect of the award directing reinstatement of
the workman or in 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."
8. In the light of the above, the application is allowed. The
petitioner is directed to deposit the last drawn wages or the
minimum wages whichever is higher from the date of award till the
disposal of the writ petition. The respondent is also directed to
give an undertaking with an advance copy to the learned counsel
for the petitioner to the effect that in case the petitioner ultimately
succeeds in the writ petition, the respondent shall refund/repay the
difference of amount of last drawn wages and the minimum wages.
The undertaking be filed by the respondent within six weeks from
the date of this order. The arrear of the wages shall be released to
the respondent on furnishing an undertaking. With these
directions, the application is disposed of. Dasti.
W.P.(C) 15212/2006
List on 23rd September, 2010, the date already fixed.
MANMOHAN SINGH, J.
AUGUST 19, 2010
Jk/dp
