Vallabhbhai Patel Chest ... vs Nishikesh Tyagi
2010 Latest Caselaw 2377 Del

                  *IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CM No.12460/2003 (u/S 151 CPC for stay) & CM No.14012/2005 (u/S
17B of the I.D. Act) IN W.P.(C) 7161/2003

%                                                     Date of decision: 4th May, 2010

VALLABHBHAI PATEL CHEST INSTITUTE            ..... Petitioner
                  Through: Mr. A.K. Sakhuja & Mr. Puneet
                           Saini, Advocates

                                             Versus
NISHIKESH TYAGI                                                ..... Respondent
                                 Through: Mr. Rajiv Aggarwal, Advocate

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 petitioner in this writ petition impugns the award dated 29th July, 2002 of the Labour Court holding the termination by the petitioner of the services of the respondent workman to be illegal and directing reinstatement of the respondent workman with full back wages and continuity of service. This Court while issuing notice of the petition, vide order dated 10th November, 2003 stayed the operation of the award and / or recovery in enforcement thereof. The said order continues to remain in force.

2. The petitioner has opposed the application under Section 17B of the I.D. Act on the following grounds:

(i) That the application has been filed belatedly and the respondent workman is not entitled to the order for payment w.e.f. the date of

the award and is entitled at best from the date of filing of the application.

(ii) That the petitioner is not an industry and thus the order under Section 17B of the I.D. Act cannot be made. Reliance in this regard is placed on order dated 30th August, 2005 of the Division Bench of this Court in LPA No.1113/2005. The said LPA was preferred by the petitioner herein against the order of a Single Judge in a writ petition preferred by the petitioner against an award in favour of another employee of the petitioner. It appears that the Single Judge of this Court against whose order that appeal was preferred had directed payment under Section 17B of the I.D. Act at the rate of last drawn wages pending the final adjudication of the application. The petitioner before the Division Bench contended that since it was not an industry, the order even at the rate of last drawn wages could not have been made. The Division Bench without intervening with the said order observed that since the application under Section 17B of the I.D. Act was still pending, it would be open to the petitioner to contend before the Single Judge that it would not be liable under Section 17B of the I.D. Act for the reason of being not an industry. Reliance in this regard is also placed on Lady Irwin College Society Vs. Sushila Devi 2006 LLR 1146 (Delhi) where another Single Judge of this Court allowed the writ petition of the employer college in that case on the ground that the teacher / lecturer in whose favour the award was made was not a workman. It was also observed in the judgment that in view of the finding that the industrial adjudicator had no jurisdiction, though the application under Section 17B of the I.D. Act was pending, no relief could be given therein. The counsel for the petitioner contends that similarly in the present case, though the respondent workman is admitted to be a workman within the meaning of the I.D. Act, but since it is the

contention of the petitioner that it is not an "industry", the writ petition itself be heard first before considering the application under Section 17B of the I.D. Act.

(iii) Lastly, it is contended that the order, if at all, be made at the rate of last drawn wages only and not at the rate of minimum wages. It is contended that the petitioner has not been notified under the Minimum Wages Act and in any case the law under Section 17B is of payment at the rate of last drawn wages and not at the rate of minimum wages and the Courts have started passing orders at the rate of minimum wages only in the exercise of jurisdiction under Article 226 and which ought not to be exercised in the present case for the reasons aforesaid.

3. Per contra, the counsel for the respondent workman has contended that queries under the Right to Information Act were made from Kirori Mal College and it was replied that the Minimum Wages Act applies to the college. It is argued that on same basis, the said Act applies to petitioner also. Attention is also invited to the claim petition before the Labour Court where it was pleaded that the respondent workman was being paid minimum wages as prescribed by Delhi Administration from time to time and to the express admission to the said effect in the reply filed by the petitioner before the Labour Court. The counsel for the respondent workman also relies upon Ramjas College Vs. Presiding Officer 118 (2005) DLT 605 where a Single Judge of this Court held that it is settled law that payment under Section 17B was to be at the rate of minimum wages or last drawn wages whichever is higher.

4. I have enquired from the counsel for the petitioner whether it was the plea of the petitioner before the Labour Court also that it is not an industry. The counsel for the petitioner states that a plea was taken and a finding returned against the petitioner.

5. I am unable to read in Section 17B of the I.D. Act an exception that if the employer challenges in the writ petition against the award that it is not an industry, the order under Section 17B of the I.D. Act is not to be made. As far as the order aforesaid of the Division Bench in LPA No.1113/2005 is concerned, the same has not interfered with the order of the Single judge in that case directing payment under Section 17B of the I.D. Act inspite of the similar plea of the petitioner before the Division Bench also, of not being an industry. Merely because it was observed that it will be open to the petitioner to urge before the Single Judge that the application under Section 17B of the I.D. Act was liable to be dismissed because it was not an industry, does not amount to the Division Bench laying down that when such plea is urged, order under Section 17B is not to be made. Having concluded that no exception is carved out in Section 17B of the I.D. Act, the order aforesaid of the Division Bench does not come in the way.

6. Similarly, as far as the reliance on the judgment of the Single Judge of this Court in Lady Irwin College Society (supra) is concerned, the same goes contrary to the settled law of the Section 17B application being required to be decided first and which position the counsel for the petitioner also does not dispute. He however contends that the application is not to be considered first, if the award is challenged on the ground of the petitioner being not an industry. The said contention has already been negated herein above. Moreover, it appears that in the Lady Irwin College Society case the counsel for the respondent therein had joined in the hearing of the writ petition without pressing for the application under Section 17B of the I.D. Act. Thus, the question did not fall for consideration in that case and what was not agitated and considered by the Court cannot be a precedent.

7. The contention of the counsel for the petitioner of the order being required to be made at the rate of last drawn wages only and not at the rate of minimum wages is also not found to be correct. Notwithstanding the language of Section 17B requiring payment at the rate of last drawn wages, the Courts

have construed the same to be amounting to payment at the rate of minimum wages. Experience shows that the writ petitions and the 17B applications remain pending for years and the purport and sprit of Section 17B would not be satisfied by directing payment at the rate of last drawn wages only. The petitioner is also found to have admitted before the Labour Court that it was, prior to termination paying the respondent workman at the rate of minimum wages.

8. That leaves the contention of the counsel for the petitioner of the date with effect from which the order is to be made. Though the award is dated 29th July, 2002 but the writ petition impugning the same was got listed before this Court first on 10th November, 2003. The application under Section 17B was filed on or about 1st October, 2005. It thus cannot be said that there is any unusual delay in filing the application so as to invite the order only from the date of the application and not from the date of the award as is the language of the statute. Moreover, the petitioner has not made out any case of the respondent workman being employed anywhere else.

9. The application under Section 17B of the I.D. Act is accordingly allowed. The petitioner is directed to, within eight weeks of today, pay to the respondent workman the arrears at the rate of last drawn / minimum wages whichever is higher, with effect from 29th July, 2002 till 30th April, 2010, failing which the same shall incur simple interest at 9% per annum. The petitioner is also directed to continue to pay w.e.f. 1st May, 2010 at the said rate till the disposal of the writ petition and / or till the order is modified by this Court. The said payment be made month by month by the 15th day of the succeeding month, i.e. such payment for month of May, 2010 be made by 15 th June, 2010. The respondent workman is directed to within one week of today file an affidavit by way of an undertaking to this Court to refund the excess amount so received by him over and above the last drawn wages, in the event of this petition succeeding. Advance copy of the said affidavit be furnished to the counsel for the petitioner.

10. Consequently, the CM No.12460/2003 is allowed. The interim order staying the operation of the award is confirmed till the disposal of the writ petition. The applications are disposed of.

W.P.(C) 7161/2003 Rule.

The counsel for the petitioner states that the petition be taken up for hearing along with WP(C) No.7189/2003 already listed in the category of regulars. The counsel for the respondent workman has no objection.

List in the category of 'regulars' along with WP(C) No.7189/2003 as per their turn.

Dasti under signature of the Court Master to the counsel for the parties.

RAJIV SAHAI ENDLAW (JUDGE) 4th May, 2010 gsr