The Management Of M/S Municipal ... vs Shri Bhanwar Singh & Anr
2010 Latest Caselaw 2747 Del

                *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  C.M. No.16682/2007 in W.P.(C) 5021/1998

%                                                 Date of decision: 24th May, 2010

THE MANAGEMENT OF M/S MUNICIPAL CORPORATION
OF DELHI.                                      ..... Petitioner
                 Through:  Mr. Biji Rajesh for Mr. Gaurang
                           Kanth, Advocate.

                                         Versus

SHRI BHANWAR SINGH & ANR.                                     .... Respondents
                  Through:                   Mr. Rajiv Aggarwal & Mr. Anuj
                                             Aggarwal, Advocates.

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 question falling for adjudication in this application under Section 17B

of the ID Act is, as to the date from which payment is to be directed, when the

application is filed long after the institution and service of the notice of the writ

petition, whether from the date of the award or from the date of the application.

2. The present writ petition impugns the award dated 1st February, 1991

directing inter alia the reinstatement of the respondent no.1 workman. The writ

petition was filed after 7 years from the date of the award, in or about October,

1998. The writ petition came up first before this Court on 5th October, 1998 when

the petitioner was directed to file an affidavit explaining the delay. Subsequently,

on 10th March, 1999 Rule was issued in the writ petition. The counsel for the

respondent workman appeared in the writ petition first on 11th February, 2002, on

which date it was directed that no coercive action be taken by the respondent

workman to realize the amount under the award. On the next date i.e. 16th May,

2002 a sum of Rs.5,000/- was directed to be paid to the respondent workman

towards litigation expenses. The matter was adjourned from time to time; a

counter affidavit was filed by the respondent workman in or about January, 2003

and to which a rejoinder was filed by the petitioner. The interim order was made

absolute on 9th March, 2004 and the writ petition directed to be listed in the

category of „Regulars‟. The writ petition was listed before this Court on 17th

August, 2006 and 4th October, 2006, when none appeared for the petitioner and

resultantly the writ petition was dismissed for non-prosecution. An application

was filed for restoration of the writ petition and notice whereof was issued to the

respondent workman. The writ petition was restored to its original position vide

order dated 16th May, 2007 after hearing the counsel for the respondent workman

and ordered to be listed again in the category of „Regulars‟. Thereafter the

present application under Section 17B of the ID Act was filed in the end of

November, 2007. Though the petitioner in reply pleaded that the respondent

workman is working as a „Raj Mistri‟ and is residing in his own house and has an

income of approximately Rs.10,000/- per month but the said facts have been

denied by the respondent workman in the rejoinder. The respondent workman has

otherwise filed an affidavit to the effect that he is not gainfully employed in any

establishment after unlawful termination of his services till date. Thus though an

order under Section 17B is to be made, the only question, as aforesaid, is with

effect from which date. The counsel for the respondent workman has informed

that though the termination of services in the present case was on 26th November,

1979 but in pursuance of the impugned award dated 1st February, 1991, the

respondent workman has recovered the back wages and wages even after 1st

February, 1991, till 31st August, 1998. He thus seeks the direction for payment,

not from the date of the award but from 1st September, 1998.

3. It was enquired from the respondent workman as to why the order should

be with effect from 1st September, 1998 when the application itself was filed as

aforesaid in November, 2007. Though the counsel for the respondent workman

sought to urge that the reason for the delay has been explained but a perusal of

the application and the rejoinder shows that no reason whatsoever for the delay

of 9 years in filing the application has been stated.

4. The counsel for the respondent workman then contended that the

application could not be filed because the writ petition was dismissed for non-

prosecution. However as aforesaid, the writ petition was dismissed on 4th

October, 2006 and application for restoration filed in December, 2006, notice

whereof served on the respondent workman for 5th March, 2007 and the petition

was restored on 16th May, 2007. Prior thereto the respondent workman had notice

of the writ petition and was contesting the writ petition from 6th November, 2001

for which date the respondent workman was first served and till its dismissal for

non-prosecution on 4th October, 2006. The respondent workman inspite of filing

the counter affidavit and contesting the writ petition did not choose to file the

affidavit which is required to be filed for an order under Section 17B of the ID

Act. The question which arises is whether the order directing payment has to be

necessarily from the date of the award, whensoever the affidavit stating that the

workman has not been employed in any establishment since the date of

termination, may be filed. One thing is for sure. The order under Section 17B is

not to be made automatically while staying the operation of the award for

reinstatement. Notwithstanding the order of stay of award, the order under

Section 17B can be made only when such affidavit is filed. Thus the making of

the order is dependent on filing of an affidavit by the workman and without the

workman taking such a step, the order cannot be made.

5. The counsel for the respondent workman in this regard has relied on:-

(i) Judgment dated 29th July, 2008 of this Court in Delhi Transport

Corporation Vs. Inderjeet Singh. In that case also the application under Section

17B was filed after 3 years of the filing of the writ petition. It was urged that

filing of the application after 3 years showed that there was no financial

constraint faced by the workman. The Division Bench of this Court held that the

workman could have filed the application only after the DTC filed the writ

petition. It was further held that the benefit under Section 17B of the ID Act

cannot be denied to the workman on the ground that he filed the application after

3 years of the writ petition filed by DTC. The entitlement of the workman to

wages under Section 17B was held to hinge only on the fact that he remained

unemployed since his termination from employment.

(ii) Order dated 7th January, 2010 of Single Judge of this Court in Delhi

Jal Board Vs. Sh. Mange Ram. In this case the application under Section 17B

was filed after about 4 years of the filing of the writ petition. The Single Judge

relying on Delhi Transport Corporation Vs. Inderjeet Singh (supra) directed the

payment with effect from the date of the award.

(iii) Judgment dated 21st May, 2008 of the Division Bench of this Court

in Delhi Transport Corporation Vs. Ek Lakh Hussain. The Division Bench held

that as per the judgment in Dena Bank Vs. Ghanshyam JT 2001 (Supp.1) SC

229, the payment has to be made with effect from the date of the award.

The counsel for the respondent workman thus contended that the matter is no

longer res integra.

6. I may however, notice that the Supreme Court in Uttaranchal Forest

Development Corporation Vs. K.B. Singh 2005 (11) SCC 449 and in Workmen

Vs. Raptakos Bretta & Co. Ltd. 2008 (3) SCC 499 had directed payment with

effect from the date of the application. The Division Bench of this Court in

Inderjeet Singh (supra) however, held that the said judgments are short orders

and were based on their peculiar facts and do not alter the law as laid down in

Dena Bank (supra).

7. I find that a Division Bench of this Court in Borman Vs. Presiding

Officer (2003) II LLJ 551 (Delhi) directed payment from the date of the

application. Another Division Bench of this Court in Management of Hotel

Connaught Vs. Mr. Om Prakash MANU/DE/8112/2007 also affirmed the order

of payment with effect from the date of application. A Single Judge of this Court

in Delhi Transport Corporation Vs. Ramesh Chander MANU/DE/0032/2008

also directed payment from the date of the application. Another Single Judge of

this Court in DTC Vs. Sh. Balraj Singh 133 (2006) DLT 273 has held that Dena

Bank Vs. Ghanshyam (2001) 5 SCC 169 does not lay down that the benefit

under Section 17B has to be given from the date of the award.

8. Conversely another Single Judge in DTC Vs. Pratap Singh

MANU/DE/2084/2008 negated the argument of the payment to be made from the

date of the application and held the mandate of the section to be for payment

from the date of the award.

9. Thus there appears to be a dichotomy in the views of the Single Judges as

well as the Division Benches on the issue.

10. The present case is not a case where payment for the period of delay in

filing of the writ petition is being claimed. Though there was a delay of about 7

years in filing the writ petition but as aforesaid, the wages till that date have

already been recovered by the respondent workman.

11. What strikes one in the present case is that though the respondent

workman had recovered back wages as well as future wages in terms of the

award till 31st August, 1998 and the further steps being taken by the respondent

workman for enforcement of the award by recovery of wages for the period

thereafter were stayed vide order dated 11th February, 2002 (supra) in the writ

petition but the respondent workman neither opposed the interim order nor

applied under Section 17B. Such state of affairs continued till the writ petition

was dismissed in default as aforesaid and even for 6 months after its restoration.

Even at the time of restoration of writ petition it was not urged that the same

should be on condition of payment under Section 17B of the ID Act.

12. In my humble opinion:

12.1 The nature of relief under Section 17B demands the workman to apply

immediately on notice of stay of operation of the order of reinstatement or of the

proceedings against such award. „Immediately‟ is not be understood as within a

few days of notice, but as when filing counter affidavit or reply to an application

for interim relief or where the same is not filed, when counsel for the workman

has appeared.

12.2 If the application is so filed immediately, upon the High Court finding

ingredients thereof to be satisfied, the order for payment will be from the date of

the award (as held by the courts) even though Section 17B prescribed payment

only "during the pendency of proceedings before the High Court" and which

pendency ordinarily would have been from date of institution of the proceedings.

Thus the employer, by delaying the filing of the writ petition, cannot deprive the

workman of the benefit of Section 17B from the date of award till the date of

filing of the writ petition.

12.3 This payment under Section 17B is irrespective of the outcome of the writ

petition. Even if the employer succeeds in having the award directing

reinstatement to be set aside, he is still not entitled to recover back the amounts

paid under Section 17B from the workman. (Though Section 17B provides for

payment of last drawn wages but the courts have interpreted it to mean minimum

wages and refund of only excess payment, if any, over last drawn wages is

permitted. However such recovery is also practically impossible).

12.4 However if the application under Section 17B is filed after long delay, as

in the present case, unless delay is satisfactorily explained, the payment cannot

be from a date several years back and will be from the date of the filing of the

application, for the following reasons:-

A. Section 17B is in the nature of a subsistence allowance. It is

intended to provide to the workman whose reinstatement has been directed by the

Industrial Adjudicator, at least minimum wages, during the time that the judicial

review of the award of the Industrial Adjudicator is pending consideration before

this Court. The payment thereunder is a month by month payment and is not a

payment of any lumpsum amount. Further, the said payment is subject to the

workman, on affidavit, stating that he is unemployed and/or has been unable to

find employment. The employer has a right to rebut the said averment of the

workman and if succeeds in rebutting the same, the workman under Section 17B

would not be entitled to payment.

B. The payment under Section 17B is not an automatic payment which

starts running immediately on institution of proceedings to challenge the award.

For the workman to be entitled to such payment, he is required to file an

affidavit. Thus, payment is dependent upon a positive act of the workman. The

High Court is not empowered to make the payment till such affidavit has been

filed by the workman.

C. Once payment/order requires a positive act of the workman,

entitled to such payment of filing in court such affidavit, the ordinary rule of

litigation is (as reiterated in Beg Raj Singh Vs. State of U.P. AIR 2003 SC 833)

that the right to relief should be decided by reference to the date on which the

party approaches the Court. The Supreme Court in Mukund Lal Bhandari Vs.

U.O.I. AIR 1993 SC 2127, in relation to the pension of Freedom Fighters also

held that the "benefit should flow only from the date of application and not from

any date earlier". Thus but for Section 17B providing for payment during

pendency of the writ proceeding (and which has been interpreted as not from date

of institution of the writ petition but from the date of the award impugned

therein) under general law, an order under Section 17B would have been only

from the date of the application under Section 17B.

D. However such benefit given to the workman, of direction/order for

payment from a date anterior to the filing of application should not be tilted

against the employer by interpreting it to mean that the workman can apply under

Section 17B at his whim and fancy and at any time. The workman cannot be

permitted to apply under Section 17B when the writ petition matures for hearing

and be held entitled to payment for several years together. To allow so, would be

inequitable to the employer.

E. In most cases, it is impossible for the employer to verify whether

the workman is employed in another establishment or not. It would be more so

difficult if the employer is required to verify the employment, if any, for say the

last 10 years, as the petitioner herein would be required to, to rebut the affidavit

filed by the workman.

F. If the application under Section 17B is made within a reasonable

time, the employer can make arrangements for the payment. However, non-filing

of the application by the workman can reasonably entitle the employer to believe

that the employee is employed in another establishment and will not make any

claim under Section 17B. The employer may arrange its financial affairs

accordingly. An employer who has acted on the basis of such a representation of

the workman cannot after a long period, 10 years as in the present case, be

burdened with the liability under Section 17B from a back date which as a lump

sum may represent an enormous amount and wreck the employer. Moreover it

will provide a bounty rather than subsistence.

G. The Supreme Court in Excel Wear Vs. U.O.I. AIR 1979 SC 25

held that principles of socialism and social justice cannot be pushed to such an

extreme so as to ignore completely or to a very large extent the interests of the

employer.

13. I thus hold that if there is an unusual and unexplained delay in filing the

application under Section 17B, the Court would be entitled to direct payment

from the date when the affidavit was first filed by the workman stating that he is

unemployed. I may notice that another Single Judge of this Court in Birdhi

Chand Naunag Ram Jain Vs. Presiding Officer (2004) I LLJ 1023 directed

payment from the date of the application in the absence of any reason being

given for not filing the application earlier. To the same effect is Food Craft

Institute Vs. Rameshwar Sharma 134 (2006) DLT 49 laying down that delay in

making the application is a factor to be taken into consideration while

determining the payments to be made under Section 17B.

14. The delay in the present case is unusually long and unexplained. The

workman is thus held entitled to an order only with effect from the date of the

application i.e. from 1st December, 2007. The petitioner is, therefore, direct to pay

to the respondent workman an amount with effect from 1st December, 2007 till

30th May, 2010 to be calculated at the rate of last drawn wages/minimum wages

whichever is higher within six weeks from today, failing which the sum

outstanding shall attract simple interest at 7% per annum, and continue to pay at

the said rate with effect from 1st June 2010 month by month by the 15th day of the

succeeding month till the pendency of the writ petition.

15. The same is subject to the respondent workman within one week from

today, filing an affidavit with advance copy to the petitioner, undertaking to, in

the event of the writ petition succeeding refund the excess amount, if any, over

the last drawn wages so received by the respondent workman.

The application is disposed of.

RAJIV SAHAI ENDLAW (JUDGE) 24th May, 2010 bs

(corrected and released on 31st May, 2010)