Delhi High Court
Municipal Corporation Of Delhi vs Santosh Kumari & Anr. on 24 August, 2012
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA No.165 of 2012, LPA No.345 of 2012 & LPA No.342 of 2012
Reserved on: 23rd July, 2012
% Pronounced on: 24th August, 2012
1) LPA No.165 of 2012
MUNICIPAL CORPORATION OF DELHI . . . Appellant
through : Mr. Gaurang Kanth, Advocate.
VERSUS
SANTOSH KUMARI & ANR. . . .Respondent
through: Mr. Anuj Aggarwal, Advocate
2) LPA No.345 of 2012
GAIL (INDIA) LTD. . . . Appellant
through : Mr. Aman Lekhi, Sr. Advocate
with Mr. Sanjeev Sagar,
Advocate.
VERSUS
TARKESHWAR PRASAD KHARAWAR . . .Respondent
through: Mr. Anuj Aggarwal, Advocate
3) LPA No.342 of 2012
MANAGEMENT OF INTERNATIONAL
STUDENTS HOUSE . . . Appellant
through : Mr. Pawan Kumar Agarwal,
Advocate.
VERSUS
FAKRUDDIN FAROOQUI . . .Respondent
through: Ms. Jyoti Dutt Sharma,
Advocate
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI (Acting Chief Justice)
1. The legal issue raised in all these appeals is common, though the
facts in each of the appeals would be different. Having regard to the
commonality of the legal issue, these appeals are being disposed of
by this common judgment. Of course, after stating the position of
law, we would be taking each appeal of decision on the application
of principle of law to the facts of each of the appeal.
2. The question touches upon the interpretation that is to be given
under Section 17B of the Industrial Disputes Act (hereinafter
referred to as „the ID Act‟). To put it in precise, the issue is as to
whether the order of payment of wages under Section 17B of the ID
Act should be from the date of the award or from the date of filing
of the application under Section 17B of the ID Act by the concerned
workman or there could be any other date, like the date of filing the
writ petition, etc. We would first like to reproduce the facts of each
of the appeal.
LPA No.165/2012
3. The appellant in this case is the Municipal Corporation of Delhi with
whom the Respondent No.1 was engaged as part-time Safai
Karamchari with effect from 01.7.1975. She was engaged for
cleanliness of the Terminal Tax Post at Nizampur and her duty was
only for half an hour a day in the morning, as she was only required
to clean the terminal tax post at Nizampur. The said terminal tax
post was abolished from Delhi with effect from 31.1.1993 which
resulted into termination from service of the workman as well. The
workman raised industrial dispute, which was referred to the
Industrial Tribunal for adjudication with the following terms of
reference:
"Whether the services of Smt. Santosh Kumari (part-time
Safai Karamchari) have been terminated illegally and/or
unjustifiably by the management and if so, to what relief is
she entitled and what directions are necessary in this
respect?"
4. Both the parties filed their respective pleadings and led their
respective evidences. On the basis of the said evidence, the learned
Tribunal was pleased to pass the award dated 03.11.2001 with the
following observations:
"In view of my above discussion as since I have already been
held that action of the management in termination the services
of the claimant is illegal as no notice pay and retrenchment
compensation has been paid and that other employees of the
Terminal Tax Department have been absorbed by MCD in its
other departments, so present claimant Smt. Santosh Kumar is
also entitled to be absorbed by the MCD in any of its other
Department will all consequential benefits. Award is passed
accordingly........"
5. The appellant-management challenged the said award dated
03.11.2001 before the learned Single Judge by filing Writ Petition
(C) No.9789/2006 titled MCD Vs. Santosh Kumari & Anr. The
respondent workman herein after four and a half years of the filing
of writ petition on 22.11.2010 filed an application under Section
17B of the ID Act (CM No.20328/2010) claiming that after her
termination, she was not gainfully employed anywhere and hence
entitled for the 17B payment.
6. After hearing the parties, the learned Single Judge vide orders dated
30.11.2011 allowed the said CM and directed the appellant to pay to
the workman last drawn wages or the minimum wages which ever
are higher from the date of passing the award. Being aggrieved by
the said orders dated 30.11.2011, the appellant filed a review
petition (Review Petition No.34/2012) praying, inter alia, from
restricting the 17B payment from the date of order of the learned
Single Judge, i.e., 30.11.2011. The learned Single Judge vide orders
dated 16.1.2012 dismissed the said review petition with a cost of
`10,000/-.
7. It is in these circumstances, challenging the orders dated 30.11.2011
directing payment of wages from the date of the award, and not from
the date of the order as claimed by the appellant, the present appeal
is preferred.
LPA No.342/2012
8. The appellant in this case is the Management of International
Students House, University of Delhi. The respondent (hereinafter
referred to as „the workman) was working with the management as a
Security Guard since January, 1995 whose services were terminated
allegedly with effect from 31.5.1997 by way of refusal of duties. He
raised industrial dispute which was referred to the Labour Court
No.-III, Karkardooma Courts, Delhi with the following terms of
reference:
"Whether the services of Shri Fakruddin Farooqui have been
terminated illegally and/or unjustifiably by the management,
and if so to what relief is he entitled and what directions are
necessary in this respect?"
9. After adjudication, the Labour Court passed the award dated
01.2.2003 holding termination of the workman to be illegal and
unjustified as it was in violation of provisions of Section 25F of the
ID Act as well as principles of natural justice. The Labour Court,
thus, rendered the award directing reinstatement of the workman in
service with 50% of backwages.
10. Challenging this award, the appellant has filed the writ petition
which was filed on 09.9.2003. Show cause notice in this writ
petition was issued on 12.9.2003. Workman was served who filed
his reply/counter affidavit on 26.10.2004. Thereafter, matter was
heard and Rule was issued on 12.11.2007. The workman, however,
field application under Section 17B of the ID Act on 21.5.2010.
Orders dated 21.3.2012 have been passed by the learned Single
Judge directing the appellant to pay him either his last drawn wages
or the minimum wages fixed by the competent authority from time
to time, whichever is higher, from the date of the impugned award
till the disposal of the writ petition. The appellant was also directed
to clear the arrears within four weeks and in case of delay, the
appellant shall also become liable to pay interest @ 10% per annum.
11. Again challenging that order, the contention of the appellant in the
present appeal is that the direction to pay the wages under Section
17B of the Act should have been from the date of application filed
under Section 17B of the Act, i.e., 21.5.2010 and not from the
award, i.e., 30.6.2003, as directed by the learned Single Judge.
LPA No.345/2012
12. The respondent-workman was appointed with the appellant GAIL
(India) Ltd. as Attendant Grade III against the post reserved for
Scheduled Tribe with effect from 27.11.1989. His name was
sponsored by the Employment Exchange, New Delhi and was
allowed to join the appellant provisionally subject to verification of
C & A and Caste Certificate submitted by him at the time of joining
in terms of Ministry of Home Affairs vide OM No.42/34/52-NGS
dated 17.4.1953. The copy of Caste Certificate No.116 dated
11.9.1979 submitted by the respondent issued by the Office of
District Magistrate, District Siwan, Bihar was forwarded for
verification vide appellant‟s letter dated 19.3.1993 to the District
Magistrate, Siwan, Bihar. District Magistrate, Siwan vide his letter
dated 13.7.1993 informed that the Caste Certificate No.116 dated
11.9.1979 submitted by the workman is totally forged including
signature and seal. The workman on being informed that the
Certificate No.116 dated 11.9.1979 was forged, requested for an
opportunity to produce a fresh Caste Certificate issued by the
Competent Authority. The workman then submitted another
Certificate No.776 dated 30.8.1994 issued by the Sub-Divisional
Officer, Siwan, Bihar. This certificate was also sent on 09.12.1994
to the Sub-Divisional Magistrate‟s Office, Siwan for verification. In
reply, SDM, Siwan vide letter dated 20.12.1994 informed that the
Certificate No.779 is false and fabricated. Further, another letter
dated 08.3.1995 purported to have been issued by SDO, Siwan was
received by the appellant along with an application of one one Shri
Neeraj Prasad claiming to be the brother of the workman. On
verification, this letter of 08.3.1995 was also found to be false as
confirmed by the SDM, Siwan vide letter No.351/C dated 24.5.1995.
Later, the Vigilance Officer of the appellant met the District
Magistrate and SDM, Siwan, Bihar and confirmed that the Caste
Certificate submitted by the workman was not issued by their
offices.
13. Thereafter, the Disciplinary Authority ordered for holding an inquiry
against the workman for submitting false caste certificate in
accordance with GAIL Employees‟ (Conduct, Discipline and
Appeal) Rules vide Memorandum dated 29.8.1995. Since the
workman denied the charges, the Disciplinary Authority then vide
his order dated 06.10.1995 appointed an Inquiry Officer and a
Presiding Officer for conducting the inquiries as per GAIL
Employees‟ (Conduct, Discipline & Appeal) Rules, 1986.
14. The inquiry was conducted and the Inquiry Officer returned the
finding holding that the charge was proved. On that basis, the
Disciplinary Authority awarded the penalty of dismissal from
service upon the workman. His statutory appeal was also dismissed
by the Appellate Authority. Thereafter, he raised industrial dispute
under Section 17B of the ID Act, which was referred to the Labour
Court with following terms:
"Whether dismissing the services of Sh. Tarkeshwar Prasad
Kharwar by the Gas Authority of India is legal and justified?
If not, to what relief is the workman entitled."
15. The Labour Court, after adjudication, passed the award dated
22.11.2005 holding that the workman belongs to Kharwar Caste,
which was Scheduled Tribe in view of the Notification of 1956
issued by the Government of India, Ministry of Home Affairs. It,
thus, held that since the workman belongs to Scheduled Tribe, he
was rightly appointed against the post reserved for this category and
his services could not have been terminated. The award was
accordingly given directing reinstatement of the workman with
continuity of service, but without any backwages on the ground that
it was the fault of the workman in not able to place the aforesaid
Notification of 1956 before the appellant.
16. The appellant has challenged this award by filing Writ Petition (C)
No.1929/2006. Four years after the filing of the writ petition, the
workman moved application in December, 2010 under Section 17B
of the ID Act. The learned Single Judge has allowed that
application directing the appellant to pay backwages from the date
of the award till the disposal of the writ petition.
17. From the factual matrix taken note of from all these appeals, it
would transpire that the applications under Section 17B of the ID
Act were filed by the concerned workmen much after the filing of
the writ petitions. Since applications were filed immediately after
service upon the workmen in the writ petitions preferred by the
appellant-Management, the contention of the appellants is that the
order of backwages under Section 17B of the ID Act should not be
from the date of award, but from the date of the application. In
support of this plea, learned counsel for the appellants have made
various submissions.
18. Before we take note of these submissions as well as rebuttal thereof
given by Mr. Anuj Aggarwal and Ms. Jyoti Dutt Sharma, who
appeared on behalf of the workmen in these appeals, we would like
to reproduce Section 17B of the ID Act in order to take note of the
plain language of this provision:
"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 or 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:
Provided that where it is proved to the satisfaction of the High
Court or the Supreme Court that such workman had been
employed and had been receiving adequate remuneration
during any such period or part thereof, the court shall order
that no wages shall be payable under this section for such
period or part, as the case may be.
(i) It is commenced or declared in contravention of
section 22 or section 23; or
(ii) It is continued in contravention of an order
made under sub-section (3) of section 10 or sub-
section (4A) of section 10A.
(2) Where a strike or lock-out in pursuance of an industrial
dispute has already commenced and is in existence at the time
of the reference of the dispute to a Board, an arbitrator, a
Labour Court, Tribunal or National Tribunal, the continuance
of such strike or lock-out shall not be deemed to be illegal,
provided that such strike or lock-out was not at its
commencement in contravention of the provisions of this Act
or the continuance thereof was not prohibited under sub-
section (3) of section 10 or sub-section (4A) of section 10A.
(3) A lock-out declared in consequence of an illegal strike or
a strike declared in consequence of an illegal lock-out shall
not be deemed to be illegal."
19. This provision has repeatedly come up for interpretation in its
various hues and facets before the High Courts as well as the
Supreme Court. It may not be necessary to take note of all those
judgments laying down the ratio and the various aspects which have
been clarified in those judgments laying down certain specific
principles. Since in these appeals, we are concerned with a limited
issue, viz., the date from which the benefit under Section 17B of the
ID Act is to be made available to the concerned workman, our
discussion would revolve around this central issue. However, while
considering an application under Section 17B of the ID Act, it is
necessary to bear in mind that the spirit, intendment and object
underlying the statutory provision of Section 17B is to mitigate and
relieve, to a certain extent, the hardship resulting to a workman due
to delay in the implementation of an award directing reinstatement
of his services on account of the challenge made to it by the
employer. The preliminary consideration for making available such
a relief to a workman is to be found in the benevolent purpose of the
enactment. It recognizes a workman‟s right to a bare minimum to
keep body and soul together when a challenge has been made to an
Award directing his reinstatement. The statutory provisions provide
no inherent right of assailing an order or an award by an industrial
adjudicator by way of an appeal. The payment which is required to
be made by the employer to the workman has been held to be akin to
a subsistence allowance which is neither refundable nor recoverable
from a workman even if the Award in favour of the workman is set
aside by the High Court. In Dena Bank Vs. Kiriti Kumar T. Patel
[(1999) 2 SCC 106], the Apex Court was of the view that the object
under Section 17B of the ID Act is only to relieve to a certain extent,
the hardship that is caused to the workman due to the delay in
implementation of the Award.
20. Further, the statute requires satisfaction of the following conditions:
(i) An award by a Labour Court, Tribunal or National
Tribunal directing reinstatement of a workman is
assailed in proceedings in a High Court or the Supreme
Court;
(ii) During the pendency of such proceedings, employer is
required to pay full wages to the workman;
(iii) The wages stipulated under Section 17B are full wages
last drawn by him, inclusive of any maintenance
allowance admissible to him under any Rule;
(iv) Such wages would be admissible only if the workman
had not be employed in any establishment during such
period and an affidavit had been filed to such effect.
21. A Single Bench of this Court in Food Craft Instt. Vs. Remeshwar
Sharma and Anr. [(2007) 2 LLJ 350 Del] culled out the following
principles, from various judicial pronouncements touching upon
various facets for grant of interim relief under Section 17B of the ID
Act, in the following manner:
"(i) An application under Section 17B can be made only in
proceedings wherein an industrial award directing
reinstatement of the workman has been assailed.
(ii) This Court has no jurisdiction not to direct compliance
with the provisions of Section 17B of the Industrial Disputes
Act if all the other conditions precedent for passing an order
in terms of the Section 17B of the Act are satisfied [Re :
(1999) 9 SCC 229 entitled Choudhary Sharai v. Executive
Engineer, Panchayati Raj Department & Anr.].
(iii) As the interim relief is being granted in exercise of
jurisdiction under Article 226 of the Constitution of India, the
High Court can grant better benefits which may be more just
and equitable on the facts of the case than the relief
contemplated by Section 17B. Therefore, dehors the powers
of the Court under Section 17B, the Court can pass an order
directing payment of an amount higher than the last drawn
wages to the workman [Re : (1999) 2 SCC 106 (para 22),
Dena Bank v. Kirtikumar T. Patel].
(iv) Such higher amount has to be considered necessary
W.P(C) No.11803/2005 Page 6 of 11in the interest of justice
and the workman must plead and make out a case that such an
order is necessary in the facts of the case.
(v) The Court can enforce the spirit, intendment and purpose
of legislation that the workman who is to get the wages from
the date of the award till the challenge to the award is finally
decided as per the statement of the objections and reasons of
the Industrial Disputes(Amendment) Act, 1982 by which
Section 17B was inserted in the Act [Re : JT 2001 (Suppl.1)
SC 229, Dena Bank v. Ghanshyam (para 12)].
(vi) An application under Section 17B should be disposed of
expeditiously and before disposal of the writ petition [Re :
2000 (9) SCC 534 entitled Workman v. Hindustan Vegetable
Oil Corporation Ltd.].
(vii) Interim relief can be granted with effect from the date
of the Award [Re : JT 2001 Supplementary (1) SC entitled
Regional Authority, Dena Bank v. Ghanshyam; 2004 (3) AD
(DELHI) 337 entitled Indra Perfumery Company v.
Sudarshab Oberoi v. Presiding Officer].
(viii) Transient employment and self-employment would not
be a bar to relief under Section 17B of the Industrial Disputes
Act [Re : 2000 (1) LLJ 1012 entitled Taj Services Limited v.
Industrial Tribunal; 1984 (4) SCC 635 entitled Rajinder
Kumar Kundra v. Delhi Administration; 109 (2004) DLT 1
entitled M/s. Birdhi Chand Naunag Ram Jain v. P.O., Labour
Court No. IV & Others].
(ix) The Court while considering an application under Section
17B of the ID Act cannot go into the merits of the case, the
Court can only consider whether the requirements mentioned
in Section 17B have been satisfied or not and, if it is so, then
the Court has no option but to direct the employer to pass an
order in terms of the statute. It would be immaterial as to
whether the petitioner had a very good case on merits [Re :
2000 W.P(C) No.11803/2005 Page 7 of 11(5) AD Delhi 413
entitled Anil Jain v. Jagdish Chander].
(x) A reasonable standard for arriving at the conclusion of the
quantum of a fair amount towards subsistence allowance
payable to a workman would be the minimum wages notified
by the statutory authorities under the provisions of the
Minimum Wages Act, 1948 in respect of an employee who
may be performing the same or similar functions in scheduled
employments. [Re: Rajinder Kumar Kundra v. Delhi
Administration, (1984) 4 SCC 635; Sanjit Roy v. State of
Rajasthan, AIR 1983 SC 328;decision dated 3rd January,
2003 in Writ Petition (Civil) Nos. 3654 & 3675/1999 entitled
Delhi Council for Child Welfare v. Union of India; DTC v.
The P.O., Labour Court No. 1, Delhi & Ors., 2002 II AD
(Delhi) 112 (para 12, 13)]
(xi) Interim orders directing payment to a workman can be
made even on the application of the management seeking stay
of the operation and effect of the industrial Award and order.
Such interim orders of stay sought by the employer can be
granted unconditionally or made conditional subject to
payment or deposits of the entire or portion of the awarded
amount together with a direction to the petitioner employer to
make payment of the wages at an appropriate rate to the
workman. Such an order would be based on considerations of
interests of justice when balancing equities.
(xii) For the same reason, I find that there is no
prohibition in law to a direction by the Court to make an
order directing payment of the wages with effect from the
date of the Award. On the contrary, it has been so held in
several judgments that this would be the proper course
[Re : Regional Authority, Dena Bank & Anr. v.
Ghanshyam, reported at JT 2001 (Suppl. 1) SC 229 and
Indra Perfumery Co. Thr. Sudershab Oberoi v. Presiding
Officer & Ors., 2004 III AD (Delhi) 337].
(xiii) While passing an interlocutory direction for payment of
wages, the Court may also secure the interests of the W.P(C)
No.11803/2005 Page 8 of 11employer by making orders
regarding refund or recovery of the amount which is in excess
of the last drawn wages in the event of the industrial award
being set aside so as to do justice to the employer.
(xiv) A repayment to the employer could be secured by
directing a workman to given an undertaking or offer security
to the satisfaction of the Registrar (General) of the Court or
any other authority [Re : para 12, 2002 (61) DRJ 521 (DB),
Hindustan Carbide Pvt. Ltd. v. Govt. of NCT of Delhi &
Ors.(supra)]
(xv) In exercise of powers under Article 226 and Article 136
of the Constitution, if the requisites of Section 17B of the
Industrial Disputes Act, 1947 are satisfied, no order can be
passed denying the workman the benefit granted under the
statutory provisions of Section 17B of the Industrial Disputes
Act, 1947 [Re: 1999 (2) SCC 106, Dena Bank v. Kirtikumar
T. Patel (para 23)].
(xvi) Gainful employment of the workman; unreasonable
and unexplained delay in making the application by the
workman after the filing of the petition challenging the
award/order; offer by the employer to give employment to
the workman would be a relevant factors and
consideration for the date from which the wages are to be
permitted.
(xvii)It will be in the interest of justice to ensure if the facts of
the case so justify, that payment of the amount over and
above the amount which could be directed to be paid under
Section 17B to a workman, is ordered to be paid only on
satisfaction of terms and conditions as would enable the
employer to recover the same [para 13 of Regional Manager,
Dena Bank v. Ghanshyam].
(xviii)The same principles would apply to any interim order
in respect of a pendent lite payment in favour of the
Workman." [emphasis supplied]
22. In respect of the issue, with which we are concerned, the learned
Single Judge in the aforesaid judgment held that there was no
prohibition in law to a direction by the Court to make an order
directing payment of the wages with effect from the date of the
Award. At the same time, it was also held that unreasonable and
unexplained delay in making the application by the workman after
the filing of the petition challenging the award/order; offer by the
employer to give employment to the workman would be a relevant
factors and consideration for the date from which the wages are to
be permitted. Following this judgment, another Single Judge of this
Court in the case of Delhi Transport Corporation Vs. Sh. Ramesh
Chander [W.P.(C) No.11803/2005, decided on 09.1.2008] granted
the wages from the date of application and not from the date of
award.
23. Learned counsel for the appellant also referred to the judgment of
the Supreme Court in the case of Uttaranchal Forest Development
Corpn. and Another Vs. K.B. Singh and Others [(2005) 11 SCC
449] directing entitlement for wages under Section 17B of the ID
Act from the respective dates of filing the affidavit in compliance
with Section 17B of the Act.
24. However, as pointed out above by Mr. Anuj Aggarwal that this
judgment was considered by a Division Bench in Delhi Transport
Corporation Vs. Inderjeet Singh (decided on 29.7.2008) holding
that the aforesaid decision of the Supreme Court was a short order,
which did not discuss other Supreme Court decisions. The Division
Bench in this case also negated the contention that merely by filing
delayed application, the workman should be given wages from the
date of affidavit and not from the date of the Award. Following
discussion contained in the said judgment was relied upon:
"5. The decisions in Uttaranchal Forest Development
Corporation as well as Raptakos Brett & Co. Limited are
short orders that do not discuss either of the above Supreme
Court decisions. A reading of the orders would show that they
were peculiar to the facts of those cases and did not alter the
law as explained in Dena Bank-I and Dena Bank-II. As
regards the date from which the amount under Section 17-
B ID Act would become payable, the following passage in the
decision in Dena Bank-II is a complete answer (SCC p.174):
"12. We have mentioned above that the import of
Section 17-B admits of no doubt that Parliament
intended that the workman should get the last
drawn wages from the date of the award till the
challenge to the award is finally decided which is
in accord with the Statement of Objects and
Reasons of the Industrial Disputes (Amendment)
Act, 1982 by which Section 17-B was inserted in
the Act. We have also pointed out above that
Section 17-B does not preclude the High Courts
or this Court from granting better benefits - more
just and equitable on the facts of a case than
contemplated by that provision to a workman. By
an interim order the High Court did not grant
relief in terms of Section 17-B, nay, there is no
reference to that section in the orders of the High
Court, therefore, in this case the question of
payment of full wages last drawn" to the
respondent does not arise. In the light of the
above discussion the power of the High Court to
pass the impugned order cannot but be upheld so
the respondent is entitled to his salary in terms of
the said order."
6. As regards the delay by the workman in approaching the
Court for relief under Section 17-B ID Act, it requires to be
recalled that the workman could have filed such an
application only after the DTC filed its writ petition. The
object of the provision is that the wages should not be denied
to the workman when he has been able to state on affidavit
that he has remained unemployed and the employer is unable
to show anything to the contrary. In the circumstances, the
benefit under Section 17B ID Act cannot be denied to the
workman on the ground that he filed the application three
years after the writ petition was filed by the DTC. The
entitlement of the workman to wages under
Section 17B hinges on whether in fact he remained
unemployed since his termination. That it is a question of
fact. In light of the unrebutted claim of the workman to that
effect in the instant case, his application under
Section 17B ID Act had to be allowed."
25. We would like to remark at this stage that there are many judgments
cited by both the parties in support of their submissions. However,
in none of those judgments, issue arises directly for consideration.
In some cases, without discussion, the benefit of Section 17B of the
ID Act was given from the date of application/filing of the affidavit
as required under Section 17B of the ID Act in some other cases, it
was given from the date of award, again routinely and without
discussing as to whether in a given case, it could be given from the
later date and not from the date of award. In this backdrop, we have
to give answer to the issue that has arisen.
26. We may record, at the outset, that normally such a benefit of
payment under Section 17B of the ID Act is to be from the date of
award which is not only the plain language of the provision, but so
recorded in the objects and reasons for enacting this Section.
Therefore, when the application is filed by the workman with
promptitude after the receipt of the notice of the filing of the petition
by the Management, he would be entitled to the benefit of Section
17B of the ID Act from the date of the award. Problem arises when
such an application is not filed for years together and by filing a
belated application, still the claim is made from the date of the
award, which is resisted by the management on the ground that it
should be given, if at all, from the date of the application.
27. We are of the considered view that the Single Bench in Food Craft
Instt. (supra) gave a balanced interpretation to the aforesaid
provision taking into consideration the interest of both the workman
as well as the employer. It is the most equitable. What follows from
a conjoint reading of Para (xii) and (xvi) enumerated therein that
normally, the workman would be paid wages with effect from the
date of the award. It should be in those cases where application is
filed with promptitude and immediately on notice of writ petition
staying the operation of the order of reinstatement or proceedings
against such an award. It should be within reasonable period.
Thereafter, that would mean that such an application should
normally be filed with the filing of the counter affidavit or reply to
an application for interim relief and in the case of absence of such
counter affidavit or reply, within the reasonable period from the date
when workman has appeared himself or through counsel in the writ
proceedings. This would be so even when the management has
delayed in filing the writ petition challenging the award inasmuch as
with such a delay, it cannot deprive the workman under Section 17B
from the date of award. Thus, the expression "during the pendency
of proceedings before the High Court" under Section 17B of the ID
Act would not mean from the date of filing the writ petition.
However, if there is a long or abnormal delay in filing application
under Section 17B of the ID Act, we are of the opinion that in such
an eventuality, it becomes an obligation of the workman to
satisfactorily explain the delay. It would become relevant
consideration for deciding as to whether the benefit is to be accorded
from the date of application or the award. In case, it is unreasonable
and unexplained delay, it would be within the discretion of the writ
Court to direct payment of wages from the date of the application.
There could be several reasons for adopting this course of action.
One of us (Rajiv Sahai Endlaw, J.) had taken the justification by
providing following reasons:
"12.3.......
A. Section 17B is in the nature of a subsistence allowance. It
is intended to provide to the workman whose reinstatement
has been directed by the Industrial Adjudicator, at least
minimum wages, during the time that the judicial review of
the award of the Industrial Adjudicator is pending
consideration before this Court. The payment thereunder is a
month by month payment and is not a payment of any
lumpsum amount. Further, the said payment is subject to the
workman, on affidavit, stating that he is unemployed and/or
has been unable to find employment. The employer has a
right to rebut the said averment of the workman and if
succeeds in rebutting the same, the workman under Section
17B would not be entitled to payment.
B. The payment under Section 17B is not an automatic
payment which starts running immediately on institution of
proceedings to challenge the award. For the workman to be
entitled to such payment, he is required to file an affidavit.
Thus, payment is dependent upon a positive act of the
workman. The High Court is not empowered to make the
payment till such affidavit has been filed by the workman.
C. Once payment/order requires a positive act of the
workman, entitled to such payment of filing in court such
affidavit, the ordinary rule of litigation is (as reiterated in
Beg Raj Singh Vs. State of U.P. AIR 2003 SC 833) that the
right to relief should be decided by reference to the date on
which the party approaches the Court. The Supreme Court in
Mukund Lal Bhandari Vs. U.O.I. AIR 1993 SC 2127, in
relation to the pension of Freedom Fighters also held that the
"benefit should flow only from the date of application and not
from any date earlier". Thus but for Section 17B providing
for payment during pendency of the writ proceeding (and
which has been interpreted as not from date of institution of
the writ petition but from the date of the award impugned
therein) under general law, an order under Section 17B
would have been only from the date of the application under
Section 17B.
D. However such benefit given to the workman, of
direction/order for payment from a date anterior to the filing
of application should not be tilted against the employer by
interpreting it to mean that the workman can apply under
Section 17B at his whim and fancy and at any time. The
workman cannot be permitted to apply under Section 17B
when the writ petition matures for hearing and be held
entitled to payment for several years together. To allow so,
would be inequitable to the employer.
E. In most cases, it is impossible for the employer to verify
whether the workman is employed in another establishment
or not. It would be more so difficult if the employer is
required to verify the employment, if any, for say the last 10
years, as the petitioner herein would be required to, to rebut
the affidavit filed by the workman.
F. If the application under Section 17B is made within a
reasonable time, the employer can make arrangements for the
payment. However, non-filing of the application by the
workman can reasonably entitle the employer to believe that
the employee is employed in another establishment and will
not make any claim under Section 17B. The employer may
arrange its financial affairs accordingly. An employer who
has acted on the basis of such a representation of the
workman cannot after a long period, 10 years as in the
present case, be burdened with the liability under Section 17B
from a back date which as a lump sum may represent an
enormous amount and wreck the employer. Moreover it will
provide a bounty rather than subsistence.
G. The Supreme Court in Excel Wear Vs. U.O.I. AIR 1979
SC 25 held that principles of socialism and social justice
cannot be pushed to such an extreme so as to ignore
completely or to a very large extent the interests of the
employer."
28. We are quite in agreement with this approach. Applying this
principle, we proceed to state the outcome in each of the appeal.
LPA No.165/2012
29. In this case, as noted above, Award was passed vide orders dated
03.11.2001. Writ petition was, however, filed in the year 2006, i.e.,
after five years from the date of the Award. The respondent
workman also took four years in filing the application, which was
filed only on 22.11.2010. However, if the wages are awarded from
the date of the application, the management would get undue benefit
of delay attributed to it in filing the writ petition. Therefore, in the
facts of this case, we would not like to interfere with the discretion
exercised by the learned Single Judge in granting pay to the
workman.
30. This appeal is, accordingly, dismissed.
LPA No.342/2011
31. In this case, the Award was passed on 01.2.2003; writ petition was
filed on 09.2.2003; workman filed the counter affidavit on
26.10.2004, but the application under Section 17B of the ID Act was
filed only on 21.5.2010. After filing the counter affidavit, matter
was taken up for hearing on number of times. Rule was issue on
12.11.2007 and till that date, no such application came to be filed
which was filed much after the issuance of even the Rule. No
explanation is forthcoming for such a delay.
32. In this case, therefore, we are of the view that the workman should
be allowed benefit of Section 17B of the ID Act only from the date
of application, i.e., 21.5.2010 when the affidavit of non-employment
was filed along with this application. This appeal is allowed and the
order of the learned Single Judge is modified accordingly.
LPA No.345/2012
33. In the instant case, Award was passed on 22.11.2005. Writ is filed
immediately thereafter in early, 2006. However, application under
Section 17B was filed only in December, 2010 more than 4 ½ years
of the filing of the writ petition. Again, this is a case where the
wages should be awarded from the date of the application.
However, in this case, Mr. Aman Lekhi, learned Senior Counsel
argued that no order under Section 17B of the ID Act need to be
passed at all. His submission was that jurisdiction under Article 226
is discretionary and not only the application was filed belatedly, but
in this case, the respondent workman has played upon the
management not only while seeking employment, but even when he
filed application under Section 17B of the ID Act, he gave wrong
address. It was further submitted that the workman is gainfully
employed, i.e., self-employed. Insofar as plea that the workman
obtained employment on the basis of forged certificate, going into
the same amounts to touching the awards or for that matter, writ
petition which is not the scope of inquiry under Section 17B of the
ID Act. No doubt, three caste certificates given by the workman and
all are found to be forged. Notwithstanding, the Labour Court has
given the award in favour of the workman on the ground that the
workman actually belongs to Scheduled Tribe category. He was
rightly appointed against the posts reserved for Scheduled Tribe and
the services could not have been terminated. Commenting upon this
approach of the learned Labour Court, while deciding the
application under Section 17B of the ID Act would be going into the
merits of the award and the same is impermissible.
34. Coming to the aspect of the gainful employment of the workman, we
find that on the plea taken by the management that the respondent
workman was self-employed and was earning in handsome income.
Learned Single Judge passed the following orders date 13.01.2011:
"Though process fee is not filed, the advocate on record of
the petitioner accepts notice. The workman is directed to file
copies his bank accounts since the date of passing of the
award till date. The workman is also directed to file details of
his residence from the date of the award till date as to whether
he was living in a self-owned accommodation or in a rented
accommodation. Necessary affidavit be filed within a period
of four weeks from today. Reply to the application and the
additional affidavit be filed within four weeks thereafter.
List the CM for arguments on 3rd May, 2011."
35. It was followed by 03.5.2011. By this order, the workman was
directed to file the bank accounts. When the matter came up for
hearing on 13.12.2011, the learned Single Judge noted that the
workman had not complied with the order dated 13.1.2011 and more
time was prayed by the counsel for the workman. This was
specifically rejected, as no reason was given for non-compliance of
the said order. The learned Single Judge directed that "application
under Section 17B will be heard without all these details and of
course, the fact of non-compliance of the aforesaid direction shall be
considered after hearing the management‟s counsel and the
workman‟s counsel and appropriate orders will be passed". In the
impugned order, while allowing the application, the effect of non-
filing of the affidavit in terms of order dated 13.1.2011 is stated as
under:
"5............There is no doubt that the respondent - workman
had failed to file an affidavit disclosing his bank accounts
etc. as he was directed to file by this Court but in my view
that fact also cannot disentitle him from getting the relief
under Section 17-B in view of the fact that in his application
itself he had stated that he was dependent upon the income of
his children while claiming that he himself was unemployed.
During the course of hearing on this application counsel for
the respondent - workman had in case produced a passbook
of his bank account with Bank of Baroda in which the balance
amount credit was less than `2000. Even otherwise I am of
the view that no adverse inference can be raised against
the respondent - workman because of his not filing the
affidavit as directed by this Court in view of the fact that in a
judgment of a Division Bench of this Court it has been held
that no such direction could be given to a workman at the
time of disposal of the application under Section 17-B. That
decision was given on 25th April, 2011 in LPA 378/11, "S.K.
Mitra vs. Assistant General Manager, State Bank of India"
which was an appeal against the order of the Single Judge
Bench of this Court giving a similar direction to the workman
involved in that case for disclosing his source of income etc.
The workman had challenged that direction in appeal and the
Division Bench had set aside that direction by observing
that such a roving enquiry is unwarranted."
36. It is clear from the above that insofar as application under Section
17B of the ID Act is concerned, it was filed more than 4 ½ years
of filing of the writ petition. In view of our above mentioned
detailed discussion, the workman can, at the most, be granted benefit
of the wages under Section 17B of the ID Act from the date of filing
the application. However, whether the workman be given even this
benefit or not depends upon the outcome of the other plea raised by
the appellant about the gainful employment of the workman. The
provisions of Section 17B of the ID Act are very clear in this behalf
and the legal position as set addressed in enough judgments, which
is as follows:
Insofar as the workman is concerned, the only obligation put
on him is to file an affidavit to the effect that he is not gainfully
employed elsewhere. He does not have to prove anything else and
the reason is obvious. No person can asked to give the proof of
negative. Under Section 17B of the ID Act, it is an impossible for
an employee to prove that he is not gainfully employed. Therefore,
the moment such an affidavit is given by the employee, onus shifts
upon the management contesting the application and intends to
make out a case that the workman is not entitled to benefit of
language under Section 17B of the ID Act because of this reason.
An important question arises at this stage, viz., what kind of proof to
show the gainful employment is to be furnished by the employer?
If there is a direct proof and evidence to show that the workman is
under the employment of some other employer, and such proof is
available with the employer and employer furnishes the same, that
would be clinching. Difficulty, however, arises when clear-cut
proof is not available with the employer, though some semblance of
evidence is furnished, which would indicate that the workman is
employed somewhere but to arrive at definite finding, some more
reliable evidence is needed. We have come across the cases where
photographs of such a workman working in some establishments are
filed and even the particulars of the employer are given, but it is
stated by the management that the said employer with whom the
concerned workman is purportedly employed is not ready to furnish
any proof of the employment. Situation gets more complicated
when the management pleads self-employment. In such cases also,
some proof of workman running some small scale business or other
such activity is furnished in the form of photographs or the
ownership of shop, etc. without any further evidence. Invariably, in
all such cases, the management seeks proof against the employer
where the workman is purportedly working at present to prove the
records and state about the said employment. Managements, in case
of self-employment, also press the Court at times to summon the
final records in the form of sales tax registration, registration under
Shops and Establishments Act, etc. to find out whether the workman
is doing the business under the provisions of the said Act. Such
moves are normally resisted on the ground that the Court cannot
hold inquiries into the aforesaid aspects and to determine and collect
evidence on such aspects, viz., whether workman is working or not.
Normally, such requests are rejected on the ground that the Court
cannot hold inquiry once the workman has denied any gainful
employment or self-employment.
37. We would like to point out at this stage that many cases have come
across where workman initially doing any employment, but when
confronted with some documentary evidence, they have accepted
gainful employment. There is a tendency on the part of the
workman to deny even when some semblance of evidence produced
by the management which gives the indication some
employment/self-employment.
38. No doubt, when the employer takes a vague plea that a workman is
gainfully employed without furnishing any material or in support of
this plea, the employer cannot take the help of the Court making the
Court to undertake the exercise as to whether the workman is
employed or not by indulging roving & fishing inquiry. We are of
the view that interest of both the parties can be balanced by calling
upon the workman to produce those documents, which are in
exclusive possession of the workman and when the disclosure
thereof is relevant to delineate the issue of gainful employment or
self-employment. But it should be done only when the management
produces some evidence in that behalf justifying further inquiry to
know the truth. In such a situation, it would amount to finding the
truth when on the one hand workman comes with complete denial
and on the other hand, management has secured some evidence
which may point towards the plausible/gainful employment. Such a
course is not to be resorted to on the ipsi dixit of the management as
no fishing and roving inquiry is to be conducted by the Court.
39. This, therefore according to us, is the balanced approach which
needs to be adopted by the Court, viz., it does not amount to become
a proof or a tool for fishing and roving inquiry, but whether the
cases so demand calling upon his workman to produce the evidence
in his possession when on the basis of some evidence produced by
the management, a doubt arises that workman may be employed and
the affidavit filed by him may not be wholly correct.
40. Examining the present case in this respect, we find that the reply to
the application under Section 17B of the ID Act, it was stated that
the workman is staying in village and therefore, he may be having
agricultural or farming activities or may be operating a shop. This
plea was taken on the premise that since the workman had been
dismissed from the service more than 15 years again without any
income, it was not possible for him to raise his family. This was a
bald plea taken without even the semblance of evidence to support
the same. Though we do not entirely agree with the view of the
learned Single Judge that in no case, there can be a direction to the
workman to file bank accounts, etc. and such a general observation
may not be correct having regard to what we have observed above,
in the facts of this case, we are of the opinion that the
appellant/management could not ask for filing the bank accounts,
etc. unless it had furnished some evidence to show that the workman
was self-employed either in agriculture activity or was running a
shop. Therefore, in the facts of this case, we are of the view that the
learned Single Judge is right in holding that no adverse inference
can drawn against the workman for not filing the affidavit.
41. Insofar as merits of the wages are concerned, viz., the plea of the
management that the workman could not have been given any relief
as he had secured the employment producing the forged certificate;
that aspect touches the merits of the writ petition and cannot be gone
into proceedings under Section 17B of the ID Act. We, thus, are of
the opinion that the workman is entitled to wages under Section 17B
of the ID Act. However, the same shall be payable from the date of
filing the application under Section 17B of the ID Act, i.e., from
December, 2010.
42. Appeal is partly allowed. Orders of the learned Single Judge are
modified to this extent. Having regard to the nature of dispute,
insofar as Award is concerned, we are of the opinion that it is a fit
case where the matter be heard expeditiously on filing the
application for early hearing. We expect the learned Single Judge to
hear the writ petition at an early date.
43. There shall be no orders as to cost in any of these appeals.
ACTING CHIEF JUSTICE
(RAJIV SAHAI ENDLAW)
JUDGE
AUGUST 24, 2012
pmc
