Moolchand Khairati Ram Hospital & ... vs Govt. Of Nct Of Delhi & Anr
2011 Latest Caselaw 2213 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of decision: 26th April, 2011

+         REVIEW PETITION NO.238/2011 IN W.P.(C) 18152/2006

          MOOLCHAND KHAIRATI RAM HOSPITAL &
          AYURVEDIC RESEARCH INSTITUTE            ..... Petitioner
                      Through: Mr. Raj Birbal, Sr. Advocate with
                               Ms. Raavi Birbal, Advocate

                                          Versus

          GOVT. OF NCT OF DELHI & ANR             ..... Respondents
                       Through: Mr. Shyam Moorjani, Adv. for R-2
                                with R-2 in person.

                                          AND

+         REVIEW PETITION NO.239/2011 IN W.P.(C) 1393/2007

          MOOLCHAND KHAIRATI RAM HOSPITAL &
          AYURVEDIC RESEARCH INSTITUTE            ..... Petitioner
                      Through: Mr. Raj Birbal, Sr. Advocate with
                               Ms. Raavi Birbal, Advocate

                                          Versus

          GOVT. OF NCT OF DELHI & ANR              ..... Respondents
                       Through: Mr. Shyam Moorjani, Adv. for R-2
                                with R-2 in person.




Review Petitions No.238/2011 & 239/2011                                   Page 1 of 8
 CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may                    Yes
          be allowed to see the judgment?

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 respondent No.2 workman in each case seeks review of the

order dated 25th March, 2011 disposing of the applications of the

respondent workmen in terms of the judgment of this Court in DTC Vs.

Phool Singh 2010 (IV) AD (Delhi) 223 and judgment dated 29th April,

2010 in W.P.(C) No.6647/2003 titled DTC Vs. Presiding Officer.

2. It was held by this Court in Phool Singh (supra) that if the employer

during the pendency of a writ petition impugning the award of the

Industrial Adjudicator of reinstatement takes work from the workman, the

workman becomes entitled not merely to 17B wages but to wages as being

paid by the employer to others of similar seniority as the workman and

performing the same work. The said measure was adopted on the principle

of equal pay for equal work.

3. The respondent workmen in the present case were also given an

offer to so work for the petitioner employer and had accepted the said

offer, without prejudice to their respective rights and contentions. In the

orders to the said effect, there was no mention whatsoever as to the wages

which shall be paid to the respondent workmen upon their so joining the

duty with the petitioner.

4. After the judgment in Phool Singh, the respondent workmen applied

and the order dated 25 th March, 2011 directing the petitioner employer to

pay wages in terms of Phool Singh was made.

5. These review petitions have been filed pleading that the petitioner

employer having so made the respondent workmen join duty, is not

entitled to pursue the present petition. However, the attention of the

counsel for the review applicants has been invited to the orders under

which the respondent workmen had joined duty and which clearly record

that the same were without prejudice to their rights and contentions. It

thus cannot be said that merely because the petitioner employer had made

the respondent workmen join duty, the petitioner employer has lost the

right to pursue the present petition.

6. The counsel for the review applicants also states that the aforesaid

plea was never intended to be taken in these applications. What has

however been argued is that once a workman has been made to join duty,

he is entitled to the same emoluments as would have been entitled to upon

reinstatement in terms of the award and nothing less than that. Upon

enquiry as to whether there would be a difference between the two and

what prejudice the respondent workmen would suffer, it is contended that

if the view as contended is accepted, the computation which is inherent in

determining the equal pay for equal work would be eliminated. It is also

contended that the respondent workmen under the said formula would then

be entitled to higher wages than laid down by Phool Singh. It is urged

that there could be no other way of re-employment except under the award

and the respondent workmen cannot be permitted to be exploited by the

employer, on the one hand re-employing / reinstating them and on the

other hand not paying to them the wages to which they would have become

entitled upon such re-employment / reinstatement.

7. The present is a case where the parties under order of this Court

worked out an interim arrangement. The parties at the time of making the

said interim arrangement did not decide the wages which would be paid

upon such re-employment / reinstatement during the pendency of these

proceedings and without prejudice to the rights and contentions of the

parties. Both parties understood that only 17B wages would be paid and

the applications order whereon is sought to be reviewed came to be made

only after the judgment in Phool Singh.

8. I am unable to accept that the reinstatement / joining of duty

pursuant to the orders in these cases would be equivalent to reinstatement

under orders of the Industrial Adjudicator. If the two were to be equated

that would tantamount to deciding the writ petition itself. The respondent

workmen forget that there is stay of operation of the award; there could

thus not be any reinstatement in terms of the awards. What was worked

out by the parties was purely interim arrangement and this Court being of

the view that the respondent workmen under the said interim arrangement,

in the absence of any contract could not be deprived of the dues on the

principle of equal pay for equal work, had in order dated 25th March, 2011

so directed payment.

9. The counsel for the review applicants inspite of repeated asking has

not been able to show as to why the principle of equal pay for equal work

should not be invoked save for contending that once the respondent

workman has his own case, he is not required to prove the wages being

paid to others performing the same work. It is contended that with

reference to such computation Section 33C(2) will not apply.

10. I am unable to agree that in such a situation the rate of wages /

emoluments to which the workman would be entitled to would be the rate

payable on reinstatement in implementation of the award. As aforesaid,

owing to the interim order of stay of implementation of the awards, the

respondent workmen cannot claim any rate in implementation thereof. As

far as the argument of Section 33C(2) being not available for the

computation of the entitlement in terms of Phool Singh is concerned, I

may notice that the order dated 25th March, 2011 under review records the

consent of the petitioner employer that such computation can be done

under Section 33C(2). The respondent workmen thus need not have any

fear of the petitioner employer raising any objection in this regard. It may

also be noticed that though the Apex Court in MCD Vs. Ganesh Razak

(1995) 1 SCC 235 held that claim on the principle of equal pay for equal

work cannot be the subject matter of a proceeding under Section 33C(2)

but in my view the said judgment would not be applicable in the present

case. In Ganesh Razak (supra) the entitlement to equal pay for equal work

was itself disputed. However, in the present case, vide order dated 25 th

March, 2011 the entitlement of the respondent workmen to pay /

emoluments equivalent to those of the same seniority performing the same

work has already been adjudicated. All that now remains is computation

thereof and for which Section 33C(2) is the appropriate remedy. In fact the

Supreme Court in para 13 of Ganesh Razak itself observed that if the

claim for equal pay for equal work had already been settled or recognized,

the provision of Section 33C(2) for the computation thereof would be

available. Such a distinction was noticed by this Court in Jagdish

Chander Anand Vs. M/s Madan Babu & Co. 94(2001) DLT 20.

11. In this regard, I may also notice that the Supreme Court recently in

Kaivalyadham Employees Association Vs. Kaivalyadham S.M.Y.M.

Samity MANU/SC/1656/2009 has held that in certain cases, the provisions

of Section 33C(2) may have to be resorted to in respect of an order under

Section 17B. On the same parity, Section 33(C)2 can be resorted to in the

present situation also.

12. No ground for review is made out. Dismissed.

Dasti under signature of Court Master.

RAJIV SAHAI ENDLAW (JUDGE) APRIL 26, 2011 'gsr'