Anil Engineering Works vs Secretary Labour & Labour ...
2011 Latest Caselaw 2465 Del

Citation : 2011 Latest Caselaw 2465 Del
Judgement Date : 9 May, 2011

Delhi High Court

Anil Engineering Works vs Secretary Labour & Labour ... on 9 May, 2011

Author: Rajiv Sahai Endlaw

      *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of decision: 9th May, 2011

                            W.P.(C) 22627/2005

ANIL ENGINEERING WORKS                                          ..... Petitioner
                                Through: Mr. Sanjay Budhiraja, Advocate.

                                   versus

SECRETARY LABOUR & LABOUR COMMR.
AND ANR.                                                      ..... Respondents
                                Through: Mr. Krishna Mohan, Advocate.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may                        No
      be allowed to see the judgment?

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.

CM No.8026/2006 (U/S 17B of the ID Act)

1. The writ petition impugns the award dated 4 th August, 2004 of the

Industrial Adjudicator directing the petitioner to reinstate the respondent

no. 3 workman with continuity of service and full back wages. This Court

vide interim order dated 28th November, 2005 stayed the operation of the

said award. The said order has continued in force till now.

2. The respondent workman has in the application stated that since his

illegal termination he has remained unemployed and has not been able to get

employment anywhere. The application is accompanied with an affidavit in

support of the contents thereof.

3. The petitioner in reply to the application though has pleaded that the

respondent workman is employed elsewhere but has not been able to give

particulars thereof.

4. In the circumstances, the necessary ingredients of Section 17B of the

ID Act are satisfied.

5. The counsel for the petitioner invites attention to the order dated 13 th

January, 2011 wherein it was recorded that the respondent workman inspite

of offer of the petitioner to join back service had not so joined back. It was

the plea of the counsel for the respondent workman that though the

respondent workman was willing but the petitioner did not allow so. This

Court had asked the respondent workman to furnish his Bank Account

details and other particulars about his subsistence.

6. In pursuance thereto the respondent workman has filed

CM No.5834/2011 annexing the photocopy of his passbook.

7. The counsel for the petitioner contends that the respondent workman

has not given other particulars which he was directed to give as to his

subsistence since the award.

8. The Supreme Court in Kaivalyadham Employees Association v.

Kaivalyadham S.M.Y.M. Samity MANU/SC/1656/2009 has held that the

inquiry as sought to be conducted by the employer cannot be conducted in a

proceedings under Section 17B of the ID Act and once an affidavit of non-

employment has been filed by the workman and the employer is unable to

give particulars of employment elsewhere, the order under Section 17B

follows.

9. Reference in this regard may also made to the following:-

a.) Narendra Kumar v. Management of Taj Services Ltd. (2001)

II LLJ 417 SC where the Supreme Court has held that the provision of

Section 17B does not postulate that the workman at every point of

time would be required to file the affidavit - once the workman, by

filing an affidavit that he has not been employed, discharges the onus,

the Court will pass the order in terms of Section 17B until the

employer by positive assertions files an affidavit and establishes that

the workman who had been given the benefit of Section 17B is

employed elsewhere and as such has disentitled himself/herself to the

benefit in question.

b.) DTC v. Delhi Administration 46 (1992) DLT 109 holding that

the affidavit accompanying the application under Section 17B has to

be countered by an affidavit by the employer indicating the place or

places where the workman has been working since the date of the

award and as such it does not call for cross-examination of the

workman.

c.) Dy. General Manager, State Bank v. Vijay Singh

MANU/DE/1023/2011 holding that the workman in order to claim

wages under Section 17B has only to file an affidavit to the effect that

he had not been employed in any establishment and has to do nothing

more - it is for the employer to prove that the workman had taken

employment elsewhere after his termination and had been receiving

adequate remuneration.

d.) Taj Services Ltd. v. Industrial Tribunal-I 82 (1999) DLT 378

where this Court held the workmen running their own business also

entitled to Section 17B wages for the reason that what under the

proviso to Section 17B is required to be proved is that the workman

had been employed in any establishment and had been receiving

adequate remuneration from such employment.

e.) Pro Interactive Service (India) Ltd. v. GNCTD 166 (2009)

DLT 117 where this Court held that merely an averment in the reply

of the employer to the application under Section 17B that the

workman is having a good experience would not be sufficient to

assume that the workman has not remained unemployed and the onus

to prove the same is on the employer.

10. Accordingly, the application is allowed on the following terms:-

a) The respondent no. 3 workman to within two weeks of today

file an affidavit by way of undertaking to this Court with

advance copy to the counsel for the petitioner, to in the event

of the petition succeeding pay/refund to the petitioner the

excess amount, if any received in pursuance to this order, over

and above the last drawn wages.

b) The petitioner is directed to within six weeks of today subject

of course filing of undertaking aforesaid pay to the respondent

workman the arrears of 17B wages calculated at last

drawn/minimum wages whichever is higher from 4th August,

2004 till 30th April, 2011 failing which the same besides other

remedies of the respondent no.2 workman shall incur interest

@ 10% per annum;

c) The petitioner is also directed to with effect from the month of

May, 2011 and till the disposal of the writ petition pay to the

respondent workman month by month by the 15th day of the

succeeding month the 17B wages at the rate aforesaid failing

which the same shall also incur interest @10% per annum.

The application is disposed of.

W.P.(C) 22627/2005.

Rule.

List in the category of 'Regulars' as per turn.

The counsel for the petitioner has today again stated that the petitioner

is willing to take back the respondent workman in employment without

prejudice to the rights and contentions of the petitioner. The petitioner is

made aware of the judgments in DTC v. Phool Singh 2010 IV AD (Delhi)

223 and in judgement dated 29th April, 2010 in W.P.(C) No.6647/2003

titled DTC v. Presiding Officer laying down that upon so taking work the

employer shall be liable to pay to the workman not merely 17B wages but

wages as being paid to employees of same seniority as the workman and

performing the same work as intended to be taken from the workman. The