Delhi Transport Corporation vs Phool Singh & Anr.
2010 Latest Caselaw 918 Del

                    *IN THE HIGH COURT OF DELHI AT NEW DELHI
+                  CM No.11188/2009 in W.P.(C) No.5183/2003

%                                             Date of decision: 17th February, 2010

DELHI TRANSPORT CORPORATION                                                  ..... Petitioner
              Through: Mr. Uday N. Tiwary, Advocate.

                                              Versus

PHOOL SINGH & ANR.                                                          .... Respondents

                            Through:       Mr. Pradeep Kumar, Advocate for R-1.

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 application of the respondent workman for appropriate directions to the

petitioner DTC is for consideration.

2. This writ petition has been preferred by the petitioner DTC challenging the award

dated 7th October, 2002 of the Labour Court, finding the removal of the respondent

workman from service by the petitioner DTC to be illegal and directing reinstatement of

the respondent workman with 75% back wages. The respondent workman at the time of

termination of his employment was working as a conductor with the petitioner DTC.

3. This Court vide ex parte order dated 18th August, 2003, while issuing notice of

the petition stayed the operation of the award aforesaid. The said order has been

confirmed till the disposal of the writ petition and rule has been ordered in the writ

petition. The respondent workman in or about the year 2003 applied under Section 17B

of the I.D. Act. This court vide order dated 25th October, 2004 directed payment at the

rate of last drawn wages, from the date of the award and till the pendency of the writ

petition. In appeal preferred by the respondent workman being LPA 189/2008, vide order

dated 7th November, 2008 the order under Section 17B of the Act was modified and

payment was directed to be made at the rate of minimum wages instead of last drawn

wages and subject to the undertaking of the respondent workman to, in the event of the

writ petition being allowed, refund the difference between the last drawn wages and the

minimum wages.

4. The petitioner DTC vide communication dated 17th March, 2009 without

prejudice to its rights and contentions allowed the respondent workman to resume duty in

lieu of payment under payment under Section 17B of the I.D. Act during the pendency of

the writ petition. Consequently, the respondent workman was also directed to make the

security deposit and to report for duty along with a valid conductor‟s licence. It was

further informed that in case the respondent workman did not report for duty as called, it

will be assumed that he is not interested to join his duty.

5. It is the case of the respondent workman that being unemployed and suffering

serious financial hardship, he got his conductor‟s lincence renewed and reported for duty

on 24th March, 2009 and since then has been discharging his duties as a conductor. He

however claims that he is being paid the minimum wages only as directed by the Division

Bench in spite of the petitioner DTC availing his services. He applied to the DTC for

payment to him of the same emoluments as being paid to others performing the same

function but the said request has not been granted. He contends that the petitioner DTC is

in the circumstances exploiting him; the petitioner DTC has on the one hand obtained an

order from this Court of stay of operation of the award of the Labour Court directing his

reinstatement and on the other hand is availing his services without paying him equally

for doing the equal work being done by the other conductors employed with the petitioner

DTC. In fact, it is his plea that he is also not being given the weekly off days and the

gazetted holidays enjoyed by the others and is not being paid for working on holidays as

the others are. This application has accordingly been filed seeking directions for payment

as to the other conductors who were taken into employment on the date the applicant so

joined the duties and for grant of weekly off and other holidays in accordance with rules.

6. The petitioner DTC has contested this application by filing a reply affidavit. It is

contended that its decision to call the respondent workman to resume the duties in lieu of

payment under Section 17B of the Act cannot confer any right on the respondent

workman to claim full wages or other benefits that accrue to a regular employee of the

petitioner DTC and it would suffer grave prejudice if directed to pay full wages and other

service benefits to the respondent workman whose services are being utilized purely in

lieu of wages being paid under Section 17B of the Act. It is also pleaded that the

petitioner DTC has large number of other such employees who have been similarly asked

to report for duty in lieu of the payment under Section 17B and if the request of the

respondent workman is granted it would have financial implications for the petitioner

DTC.

7. The counsel for the respondent workman has, to the application itself annexed a

copy of the order dated 15th December, 2005 of a single judge of this Court in

W.P.(C)11280/2004 titled Navodaya Vidayalaya Samiti Vs. Bijender Kumar. In that

case also the workman was instructed to report for duty during the pendency of the writ

petition and it was made clear that during the period the respondent workman is assigned

duties, he shall be paid wages as would be admissible to any other employee who is taken

into employment on the date on which the workman joins the duties. There is a

controversy between the counsels as to whether the order for payment of wages as

aforesaid is a consent order or not, with the counsel for the petitioner contending that it is

and the counsel for the respondent workman contending that it is not. I may however add

that in the said order there is no discussion whatsoever as to whether in such a situation

the respondent workman is liable to be paid wages in terms of Section 17B of the Act

only or wages commensurate to the work being taken from him and there is absolutely no

discussion whatsoever on the subject. Such an order which does not give any reasons

and/or does not weigh the rival contentions on the merits of a particular proposition

and/or which does not disclose that the said proposition had fallen for adjudication in that

lis cannot be treated as a precedent.

8. No other judgment or order in this regard has been cited. The counsel for the

respondent workman has referred to para 64 of the judgment in Food Craft Institute Vs.

Rameshwar Sharma 134(2006) DLT 49 where it has been observed that by way of

interim relief 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 of the Act; that de hors the powers

of the court under Section 17B of the Act, the court can pass an order directing payment

of an amount higher than the last drawn wages to the workman. Reliance in this regard

was placed on Dena Bank Vs. Kiritikumar T. Patel (1999) 2 SCC 106 specifically on the

observations in paragraph 22.

9. However the question which arises is, whether this Court in dealing with the

application aforesaid is to apply the parameters of Section 17B of the Act. The Supreme

Court in Dena Bank (supra) has held that the object of Section 17B 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. 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.

10. 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. 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.

11. The counsel for the respondent workman in the present case has contended that

out of the sum of Rs.4,382/- payable to him under Section 17B of the Act, a sum of

Rs.526/- is being deducted towards contribution to Provident Fund leaving him with

Rs.3,856/- per month only. I may also notice that the respondent workman was called

upon to have his conductor‟s licence renewed and all of which also results in incurring

expenditure. Stepping out of the house and engaging in regular work would also require

the workman to stay in a good state of health and require him to spend on that also.

12. The petitioner has to make a choice. The employer, under Section 17B has no

right to take work from the workman against the liability to make payment. If the

employer wants to take work from the workman, the workman has to be paid for the

same. Else the counsel for the respondent workman is right in contending that it would

result in exploitation of the respondent workman.

13. The question which arises is as to what should be the payment for such work. On

first blush, it appeared that if the writ petition ultimately succeeds, if the workman is

directed to be paid anything more, how will the employer recover the same. An

undertaking from the employee for payment of difference between the last drawn wages

and minimum wages has already been taken. There does not appear to be any mode from

which such monies can be recovered from the workman. However on deeper analysis, it

is found that the monies so paid for the work would not be refundable, whatsoever may

be the fate of the writ petition. Thus the question of taking any security from the

workman for refund also does not arise.

14. I have also considered whether a condition for payment of the said amounts with

interest for late payment can be imposed on the employer. However in the event of the

writ petition being dismissed the respondent workman would, in any case, ordinarily be

entitled to the wages. There is no reason for deferring the payment for work done today

till tomorrow.

15. The next question is as to what should be the payment for the work so taken from

the workman. The proviso of Section 17B suggests that it has to be an adequate payment.

There could be no better measure of „adequate‟ than what is being paid to the others for

the same work. There appears to be no justification for paying any lesser amount to the

workman for the same.

16. The argument of the counsel for the petitioner DTC that it cannot be directed to

pay anything more than the amount under Section 17B of the Act is not found to be

correct. The petitioner DTC of its own volition has changed the situation from that

envisaged under Section 17B of the Act. The petitioner DTC is being directed to make

payment for such changed circumstance of its own creation and not under the provisions

of Section 17B of the Act.

17. I feel that the step that has been taken by the petitioner DTC ought to be

encouraged. The services of the respondent workman were terminated by the petitioner

DTC way back in 1993. Even if it were to be believed that the respondent workman was

guilty of the charge then levied against him, over the years and with advancing age, the

possibility of the respondent workman improving and/or repenting his deeds cannot be

ruled out. The arrangement whereby the employer engages the services of the workman

during the pendency of the lis can rebuild the confidence between the parties and lead to

an amicable solution to the lis, and is found to be advantageous to both the parties. While

the employer has the benefit of service of an experienced workman, the

employee/workman is relieved, at least temporarily, of the hardship caused by delays and

is given another opportunity to prove himself with the employer. Even otherwise it defies

reasoning as to why a workman should sit idle. The old adage of „An empty mind is a

devil‟s workshop‟ also holds good. Such offers as given by the petitioner can also be used

in some cases to call the bluff of the employee. Often it is found that though the employer

is able to raise sufficient doubt in the mind of the court of the employee having alternate

and more lucrative employment, such material does not pass the legal test of proof. The

refusal by the workman to join the duties in such case, may in certain cases, be proof of

his having other lucrative employment.

18. The principle of equal work for equal pay may also be invoked. The petitioner

DTC is clearly taking the work of a conductor from the workman as is evident from its

request to the workman to have renewed his conductor‟s licence. There is no justification

for paying him lesser than the others doing the same work, even though the status of the

respondent workman cannot be equated to that of a permanent employee. However the

Supreme Court in State of Haryana Vs. Charanjit Singh AIR 2006 SC 161 has held that

for application of said principle, the quality of work is the test. The status is immaterial.

There can be no difference in the quality of work by the respondent and other conductors.

Moreover, the respondent is seeking equality with those appointed on the date he so

joined i.e. w.e.f. 24th March, 2009 and not of those with seniority as of the respondent, if

the award were to be implemented.

19. The application, therefore, succeeds. It is held that the petitioner, if takes the work

from the respondent workman is liable to pay therefor to the workman equal

wages/emoluments as being paid to the others. The respondent workman has claimed

same emoluments as those paid to conductors appointed at the time when the respondent

workman was asked to join vide letter dated 17th March, 2009 (supra). The said request of

the workman is allowed. Similarly it is directed that the respondent workman would be

entitled to same holidays as other conductors of his standing as aforesaid. The arrears so

worked out from the date of the respondent workman joining duty till date be paid to the

respondent workman within four weeks herefrom. However, since the petitioner DTC

had asked the respondent workman to join the duties apparently without knowledge that

it may be called upon to pay the same emoluments as paid to its other workmen of the

same class, an option is given to the petitioner DTC to within four weeks herefrom

withdraw the said option failing which it shall remain liable to pay the

wages/emoluments in terms of the above. The respondent workman is also warned that if

the respondent workman is found to be in dereliction of his duty and/or seeking to earn

without working, it will be presumed that he has an alternative adequate source of

employment and which may result in recall even of the order under Section 17B of the

Act.

RAJIV SAHAI ENDLAW (JUDGE) February 17th, 2010 pp