Management Of M/S Mool Chand ... vs Delhi Administration & Ors
2010 Latest Caselaw 2335 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                  CM.No.9204/2004 in WP(C)2217/2000

%                                                  Date of decision: 3rd May, 2010

MANAGEMENT OF M/S MOOL CHAND
KHAIRATI RAM HOSPITAL                               ..... Petitioner
                  Through: Mr. M.Y. Khan, Advocate.

                                          Versus

DELHI ADMINISTRATION & ORS                       ..... Respondents
                  Through: Mr. N.D. Pancholi, Advocate for R-3.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No.

2.       To be referred to the reporter or not?             No.

3.       Whether the judgment should be reported
         in the Digest?                                     No.

RAJIV SAHAI ENDLAW, J.

1. The challenge in this writ petition is to the award dated 26th May, 1999 of

the Labour Court of reinstatement of the respondent no.3 workman and for back

wages from the date of termination i.e. 5th December, 1985 till January, 1997.

This court stayed the operation of the award subject to the petitioner paying

Rs.50,000/- to the respondent no.3 workman (which has been paid) and

depositing another Rs.50,000/- in this court, which has been deposited. The

counsel for the respondent no.3 workman states that the back wages due under

the award were approximately in the sum of Rs.1,74,000/-. The order under

Section 17B of the ID Act was made on 11th July, 2003 directing payment at the

rate of minimum wages from the date of the award onwards.

2. CM.No.11544/2003 was filed by the petitioner informing that pursuant to

the order under Section 17B of the ID Act, the petitioner vide its letter dated 27th

August, 2003 had, without prejudice to its rights and contentions in the writ

petition, offered to the respondent no.3 workman the job of Laboratory

Technician on prevailing minimum wages for this category, but the respondent

no.3 workman had not accepted the said offer. The petitioner thus sought a

direction from this court that either the respondent no.3 workman join duties as

aforesaid or if he does not accept the said offer, the order under Section 17B of

the ID Act may be recalled. The said application came up before this court on

22nd October, 2003. Without prejudice to the pleas of the parties it was directed

that the respondent no.3 workman shall join the services of the petitioner w.e.f.

1st November, 2003. It is recorded in the order dated 13th February, 2004 that the

respondent no.3 workman so joined the duties on 1st November, 2003.

3. CM.No.9204/2004 has been filed by the respondent no.3 workman stating

that inspite of his joining duties w.e.f. 1st November, 2003 and working for the

petitioner as a Lab Technician, he was being paid wages from 1st November,

2003 onwards at the rate of Rs.2180/- per month only and w.e.f. 1st April, 2004 at

the rate of Rs.2823/- per month only. He contends that he is entitled to the same

wages as is being paid to the other Lab Technicians in the petitioner hospital who

are performing the same work as him. The petitioner has contested the said

application. It is contended that the respondent no.3 workman is seeking review

of the order dated 22nd October, 2003 and which is not permissible. It is further

contended that the respondent no.3 workman under the law is entitled only to

wages under Section 17B of the Act and to nothing else and his claim for the

same wages as being drawn by other Lab Technicians is disputed/controverted.

It is contended that the principle of equal pay for equal work does not apply in

the present situation. It is however stated that the medical facility as extended by

the petitioner hospital to other employees is being extended to the respondent

no.3 workman also and the respondent no.3 workman is also being given casual

and earned leave as to the other employees. Similarly it is stated that tax in

accordance with law is being deducted from the payments to the respondent no.3

workman.

4. The matter was heard first on 29th April, 2010. The counsel for the

petitioner was informed of the order dated 17th February, 2010 in

CM.No.11188/2009 in WP(C)5183/2003 titled Delhi Transport Corporation Vs.

Phool Singh where the undersigned has taken a view that when an employer

makes the workman work, even if against 17B wages, the workman is entitled to

wages for the work taken and not merely to 17B wages. However, on that date

certain negotiations for amicable settlement had started and the matter was

adjourned. Today the counsel for the petitioner has informed that amicable

settlement is not possible. Further arguments have been heard from the counsel

for the petitioner. He has contended that the claim of the respondent no.3

workman in the application also raises disputed questions of fact and which

cannot be adjudicated in this proceeding.

5. I am unable to accept the contentions of the petitioner. The application

under consideration of the respondent no.3 does not tantamount to review of the

order dated 22nd August, 2003. The said order was made without prejudice to the

rights and contentions of the parties and does not prevent the respondent no.3

workman from moving the application under consideration.

6. I do not find merit in the contention that the principle of equal pay for

equal work will not apply. The respondent no.3 workman, if performing equal

work as other Lab Technicians, would be entitled to equal pay notwithstanding

pendency of this petition. As far as the contention of the counsel that disputed

questions of fact arise as to what work the respondent no.3 workman is doing, the

same is also found to be an afterthought and an attempt to wriggle out of the

obligations as held by this court in the order in Phool Singh (supra). The

petitioner in its application being CM.No.11554/2003 had categorically stated

that the respondent no.3 workman prior to his termination was working as a Lab

Technician and was in the letter issued by the petitioner offered to work as a Lab

Technician only and in the application also it was mentioned that the respondent

no.3 workman is called to work as a Lab Technician. There is no averment that

after being called upon to work as Lab Technician, any other work was being

taken from the respondent no.3 workman. Thus whatever is being paid by the

petitioner to other Lab Technician would be payable to the respondent no.3

workman also and no questions of fact arise for consideration.

7. I have since the order in Phool Singh, in order dated 29th April, 2010 in

CM.No. 13510/2009 in WP(C) 6647/2003 titled D.T.C. Vs. Presiding Officer

and Another, again dealt with the legal aspect as herein. The matter having been

discussed in the said two orders, it is not deemed expedient to repeat the legal

position as analyzed in the said two orders.

8. The counsel for the petitioner has lastly contended that the order for

payment as to other Lab Technicians cannot be made retrospectively. However,

it is found that the application under consideration was moved by the respondent

no.3 workman soon after joining on 1st November, 2003 and merely because the

application has remained pending for the last six years is no ground for depriving

the respondent no.3 workman of the arrears.

9. The application is therefore allowed. The petitioner is directed to, within

six weeks of today, pay to the respondent no.3 workman the wages/emoluments

w.e.f. 1st November, 2003 till 30th April, 2010 as being paid to other Lab

Technicians, minus the amount already paid to the respondent no.3 workman.

The petitioner is further directed to, as long as it continues to take work from the

respondent no.3 workman pursuant to the letter dated 27th August, 2003 to pay to

the respondent no.3 workman emoluments as being paid to the other Lab

Technicians performing the same work as being performed by/taken from the

respondent no.3 workman. If the arrears are not paid within six weeks, the same

shall also incur simple interest at 9% per annum till the date of payments.

The application is disposed of.

RAJIV SAHAI ENDLAW (JUDGE) 3rd May, 2010 M