The Management Of M/S Deepak ... vs Surender Kaur
2011 Latest Caselaw 882 Del

                                                               UNREPORTABLE


*              IN THE HIGH COURT OF DELHI AT NEW DELHI


                                W.P. (C) No.6716/2008


                                          Date of Decision: February 14, 2011


       THE MANAGEMENT OF M/S DEEPAK MEMORIAL HOSPITAL &
       RESEARCH CENTRE                 ..... Petitioner
                     through Mr. Raj Birbal, Sr. Advocate with
                     Ms. Raavi Birbal, Mr. Ramnesh Jerath,
                     Mr. Rohit Shukla, Advocates

                       versus


       SURENDER KAUR                           ..... Respondent
                               through Mr. N.A.Sebastian, Advocate

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the 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

REKHA SHARMA, J. (ORAL)

C.M. No.1812/2011

By order dated November 18, 2009, an application filed by the

respondent/workman under Section 17B of the Industrial Disputes

Act, 1947 (hereinafter referred to as the Act) was allowed and

consequently, the petitioner was directed to pay to the respondent last

drawn wages or the minimum wages, whichever were higher, from the

date of the award till the disposal of the writ-petition, subject to her

furnishing an undertaking that she would return the difference

C.M. No.1812/2011 in WP(C) No.6716/2008 Page 1 between the last drawn wages and the minimum wages in the event of

the petitioner succeeding in the writ-petition.

By way of present application, the petitioner is seeking

modification in the order dated November 18, 2009. It is stated that

the operation and the management of the petitioner‟s hospital has

been taken over by Kailash Health Care Limited vide an agreement

entered into between them dated July 21, 2006 which is being

extended from time to time and the parties have agreed to further

extend the same till March 31, 2013. In view of the said agreement,

the petitioner says that pending disposal of the writ-petition, it is

prepared to give employment to the respondent in Kailash Health Care

Limited at H-33, Sector-27, Noida and shall pay her the same salary

which is being paid to the workers of her category. Hence, it is prayed

that the order dated November 18, 2009 directing payment of last

drawn wages or minimum wages to the respondent be suspended, as

she is being offered employment.

The respondent has turned down the offer of the petitioner on

the ground that she will have problems working with Kailash Health

Care Limited, and further on the ground that the petitioner is not

competent to enter into any agreement with Kailash Health Care

Limited. She says that if at all the petitioner wants to give her an

employment, it should be in its own hospital which is still being run at

Vikas Marg Extension, Karkardooma where she was employed at the

time of termination of her service.

Before I proceed further, it will be appropriate to reproduce

Section 17B of the Act. This is how it runs:

C.M. No.1812/2011 in WP(C) No.6716/2008 Page 2 "17B. Payment of full wages to workman pending proceedings in higher courts - Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court and the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court."

The purpose and object of Section 17B is to prevent starvation of

a workman during the pendency of a litigation before the High Court or

the Supreme Court in the event of an employer preferring proceedings

against an award of reinstatement. A workman can have the benefit of

Section 17B only upon his stating on affidavit that he had not been

able to secure employment in any establishment during the pendency

of such proceedings.

The respondent in the present case did file an affidavit that she

had not been able to secure any employment after the passing of the

award in her favour and it was only then that the order dated

November 18, 2009 came to be passed. However, the situation has

changed now. The petitioner is offering employment to the respondent

at Kailash Health Care Limited. The learned counsel for the petitioner

is also prepared to make a statement that if for some reason the

agreement between the petitioner and Kailash Health Care Limited

does not work out, the respondent shall be at liberty to get the order

dated November 18, 2009 revived.

C.M. No.1812/2011 in WP(C) No.6716/2008 Page 3 The respondent is not prepared to join duty at the said hospital.

As noticed above, she says, she will have problems working with the

said establishment. She, however, has not specified the nature of

problems which she is likely to face. She only wants employment in

the petitioner‟s hospital at Vikas Marg Extension, Karkardooma and

nowhere else. Is it a matter of her choice? Should she be allowed to

refuse an offer of employment and at the same time, be paid wages

under Section 17B of the Act? This surely is not the intent of the

Section. It allows payment of last drawn wages only if the workman

has not been able to secure any employment anywhere. Here, the

respondent is being offered an employment but rather than accepting

the same, she is dictating terms. She is only prepared to join in the

hospital where she was working at the time of termination of her

service and nowhere else. But such is not the import of Section 17B of

the Act. The whole basis on which a workman can lay a claim for last

drawn wages under Section 17B of the Act is his inability to find a job

in any establishment. The Section will not come to the aid of a

workman like the respondent who is refusing an offer of employment

on the pretext that she will not be comfortable in the establishment

where she is being sent without even joining that establishment. It

appears from the attitude of the respondent that she wants to reap the

benefit of Section 17B of the Act sitting at home even when she is

being offered employment in an establishment. Such being the

approach, I feel that she has no right to enjoy the benefit of the order

dated November 18, 2009.

C.M. No.1812/2011 in WP(C) No.6716/2008 Page 4 In so far as the objection of the respondent that the petitioner

has no authority to enter into an agreement with Kailash Health Care

Limited, I am of the view that she is nobody to question the

competence of the petitioner. All that she should be concerned with, is

her own employment.

For what has been noticed above, I allow the application of the

petitioner for modification of the order dated November 18, 2009 and

consequently suspend the operation of the said order with effect from

today.

The application is disposed of.

WP(C) No.6716/2008

Rule.

List the writ petition in the category of "Regular Matters" in due

course.

REKHA SHARMA, J.

FEBRUARY 14, 2011 PC/ka

C.M. No.1812/2011 in WP(C) No.6716/2008 Page 5