M/S O.P. Agency vs Ram Avtar Singh & Ors.
2011 Latest Caselaw 755 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 8th February, 2011

+                   CM No.1723/2010 in W.P.(C) 9220/2006

M/S O.P. AGENCY                                             ..... Petitioner
                                Through:    Mr. Abhinav Lohia with Mr.
                                            Abhay Singh & Ms. Yasmin
                                            Zafar, Advocate

                                     Versus

RAM AVTAR SINGH & ORS.                      ..... Respondents
                   Through: Mr. Prabhakar, 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?                     No

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

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

RAJIV SAHAI ENDLAW, J.

1. The application of the respondent No.1 workman under Section 17B of the Industrial Disputes Act, 1947 is for consideration.

2. The petitioner employer by this writ petition impugns the award dated 17th March, 2005 of the Labour Court directing reinstatement of the respondent No.1 workman with full back wages from the date of the termination and with continuity of service. Notice of the petition was issued and subject to the petitioner employer depositing full awarded amount, the operation of the award stayed. The award amount is stated to have been deposited. The respondent No.1 workman appeared before this Court first on 3rd April, 2007 and several opportunities were granted for filing counter affidavit. Advance copy of the application under Section 17B of the I.D. Act though served on the counsel for the petitioner employer on 4th May, 2009 (the affidavit is attested on 18th April, 2009) but remained under objection for long and came up before this Court only on 8th February, 2010. The application states that the respondent No.1 workman is not employed anywhere and is living in penury. The application is duly supported by an affidavit.

3. The petitioner employer in their reply though have denied that the respondent No.1 workman is unemployed but have been unable to give particulars of the employment, if any, of the respondent No.1 workman.

4. The counsels for the parties have been heard.

5. The counsel for the petitioner employer has contended that the

respondent No.1 was never an employee of the petitioner employer and the ex parte award is liable to be set aside. However, the said question cannot be gone into at this stage.

6. It has been enquired from the counsel for the respondent No.1 workman as to why the order under Section 17B of the I.D. Act be not made from the date when the application was filed and not from the date of the award as claimed. The counsel for the respondent No.1 workman relies on:

         (i)        MCD Vs. Sh. Ramkishan 2001 LLR 405 (Delhi).

         (ii)       Indra Perfumery Co. Vs. Presiding Officer 2004-II-LLJ 413

                    (Delhi).

7. The Division Bench of this Court in Delhi Transport Corporation Vs. Inderjeet Singh MANU/DE/1088/2008, where the writ petition challenging the award was filed after three years of the date of the award, has held that the workman could have filed the application under Section 17B of the I.D. Act only after the writ petition was filed and the benefit under Section 17B could not be denied to the workman from the date of the award. The question of the respondent No.1 workman filing an application under Section 17B did not arise till the service of the notice of present writ petition. Thus the delay from the date of award, till April,

2007 is not attributable to respondent No.1 workman. Thereafter there is of course delay of two years in filing the application. The application does not set out any reason for the delay. It however appears that the application was not filed earlier pending the filing of the counter affidavit. The delay in the present case is not found to be long or unexplained or such so as to show that the respondent No.1 workman has deprived himself of the benefit under Section 17B of the I.D. Act. I have in Management of M/s Municipal Corporation of Delhi Vs. Shri Bhanwar Singh MANU/DE/1533/2010 dealt with the said aspect. It was held that an unusual and unexplained delay in filing the application under Section 17B of the I.D. Act can lead the Court to direct payment from the date when the application was filed. The respondent No.1 workman is therefore found entitled to wages under Section 17B of the I.D. Act with effect from the date of the award.

8. The application is accordingly allowed, the petitioner is directed to within 30 days hereof pay to the respondent No.1 workman the arrears of last drawn / minimum wages whichever is higher from the date of the award and till 31st January, 2011 and to with effect from 1 st February, 2011 pay to the respondent No.1 workman by the 7th day of each succeeding month the last drawn / minimum wages whichever is higher month by month till the decision of the writ petition.

9. For the delay, if any, in payment, the petitioner employer besides other remedies of the respondent No.1 workman shall also be liable for interest on arrears at the rate of 10% per annum. The application is disposed of.

W.P.(C) 9220/2006 List for hearing on 18th October, 2011.

RAJIV SAHAI ENDLAW (JUDGE) FEBRUARY 08, 2011 'gsr'