Superhouse Leathers Limited vs Rana Pratap Singh & Anr.
2011 Latest Caselaw 5382 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%             CM Nos. 2174/2011 & 7206/2006 in W.P. (C) 7976/2003

+                                   Date of Decision: 8th November, 2011



#      SUPERHOUSE LEATHERS LIMITED            ...Petitioner
!                      Through: Mr. Rajiv Dewan, Advocate


                                    Versus

$     RANA PRATAP SINGH & ANR.                ....Respondents
                         Through:Mr. Anuj Aggarwal, Advocate

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

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 in the digest? (No)


                                 ORDER

P.K BHASIN,J:

By this common order two applications, one of which is filed on

behalf of petitioner-management(being C.M. No. 2174/2011) under

Section 151 of the Code of Civil Procedure for a direction to HDFC Bank

to produce the records relating to the grant of vehicle loan to respondent

no.1-workman(who shall hereinafter be referred to as 'the workman') to

show that he was gainfully employed during the relevant period and the

other application(being C.M. No. 7206/2006) is by the workman under

Section 17-B of the Industrial Disputes Act, 1957(in short 'the Act'), are

being disposed of.

2. The workman had raised an industrial dispute that his services were

terminated illegally on 05.08.1994 by his employer M/s Super Garments

Limited, of which Company the petitioner claims to be the successor-in-

interest. That dispute was referred to the labour court where the reference

was registered as I.D.No. 220/96. The labour court decided the reference

in favour of the workman vide award dated 10.09.2001 and he was ordered

to be re-instated in service with all back wages. That award has been

challenged by the petitioner-management by filing the present writ

petition. While entertaining the writ petition this Court had stayed the

operation of the award of the labour court vide order dated 28th November,

2003.

3. The workman entered appearance on 16-03-05 and then filed an

application under Section 17-B of the Act in April, 2006 alleging therein

that he had remained unemployed since the termination of his services and

so he was entitled to back wages and allowances from the date of

termination of his services and also monthly wages during the pendency

of the writ petition. That application was supported by his affidavit.

4. The petitioner filed its reply to the application under Section 17-B

of the Act and opposed the same on the grounds that the respondent-

workman's employer Company had ceased to exist, he himself had

deserted his job w.e.f. 06.08.1994 and also because it had come to its

knowledge that the workman was gainfully employed. The plea of the

application having been filed belatedly was also taken.

5. During the course of one of the hearings on the application under

Section 17-B of the Act the respondent no.1-workman had filed an

additional affidavit pursuant to the directions of the Court to the effect that

all these years he had been surviving with the financial assistance given to

him by his mother and brothers. When in the reply-affidavit filed on behalf

of the petitioner-management it was claimed that the workman had

purchased some property and a motorcycle after the termination of his

services the workman had clarified also that in the year 1996 he had

purchased one plot for Rs.54,000/- from his own savings and withdrawal

from his provident fund account as also with the contributions by his

mother and brother and also that the motorcycle which was purchased in

his name was in fact purchased by his son with his own money but only as

a mark of respect his son had purchased the motorcycle in his(workman's)

name. In view of this clarification given by the workman the petitioner

moved I.A.No.2174 of 2011 for directions to HDFC Bank produce the

relevant records relating to the grant of vehicle loan of Rs.59,973/- to the

workman in the year 2007 as those documents would show that the

workman must be gainfully employed as otherwise he would not have got

the loan. In reply to that application the workman had claimed that his

loan request was in fact rejected by the bank since he was unemployed.

6. I have heard the counsels for both the workman and the petitioner -

management.

7. The only point urged by the learned counsel for the petitioner -

management in support of the application for a direction to HDFC Bank to

produce the record relating to the grant of vehicle loan to the workman and

in opposition to the workman's application under Section 17-B was that

normally banks do not give any loan to an unemployed person and so the

necessary loan record should be summoned to see if the workman had

given and details of his source of income to ensure the bank that he would

be in a position to repay the loan. The learned counsel for the workman

had contended that no loan was given to the workman since he was

unemployed and in any case no direction to the bank for producing any

record could be given in view of the decisions of the Supreme Court

reported in 2009 LLR 340, "Kaivalyadham Exployees Association vs.

Kaivalyadham S.M.Y.M. Samity" which was followed by a Single Judge

Bench of this Court in an unreported decision in WP(C) No. 5658 of 2008

rendered on 06-09-2011.

8. In the present case, as noticed already, even though the petitioner-

management had averred in its reply to the workman's application under

Section 17-B of the Act that it had come to its knowledge that the

workman was gainfully employed but still no particulars of his employee

or his employment were given. The petitioner-management is now

claiming the assistance of this Court in collecting evidence for it by

requiring HDFC bank to come to the Court along with the records of

vehicle loan which petitioner claims to have been sanctioned to the

workman. However, no such assistance can be rendered to the petitioner-

management as no kind of investigation is envisaged under Section 17-B

of the Act and the judgment of the Hon'ble Supreme Court referred to

above and which was followed by a Single Judge Bench of this Court also,

which was relied upon by the counsel for the workman, do support this

conclusion.

9. The management's application for summoning of the record is,

therefore, dismissed while the workman's application under Section 17-B

of the Act is allowed. The petitioner-management is directed to pay to the

workman last drawn wages or the minimum wages fixed from time to time

by the Competent Authority, whichever is higher, from the date of the

passing of the impugned award till the disposal of this writ petition. The

arrears upto the month of November, 2011 shall be cleared within four

weeks while future wages shall be paid on or before 7 th of each English

calendar month. The workman, however, is directed to give an undertaking

to refund the wages in the event of petitioner succeeding in this writ

petition and he is found to have received in excess of the wages payable to

him under Section 17-B of the Act. This undertaking shall be furnished

within two weeks. In case arrears are not cleared within the given time, the

petitioner shall become liable to pay interest on the amount of arrears @

10% per annum.

P.K. BHASIN, J

November 08, 2011