Delhi High Court
The Hongkong & Shanghai Banking ... vs Uoi & Ors. on 27 July, 2012
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% CM NO. 15275/2009 in
W.P.(C) 11344/2009
+ Date of Decision: 27th July, 2012
# THE HONGKONG & SHANGHAI BANKING
CORPORATION LTD. ....Petitioner
! Through: Mr. Rajiv Nayyar & Mr.Sandeep
Sethi, Sr. Advocates with
Mr. Syed Naqvi & Mr. P.P.
Kanwar, Advocates
Versus
$ UOI & ORS. ...Respondents
Through: Respondent no.2 in person
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
ORDER
P.K.BHASIN, J:
This application has been filed by respondent no. 2 in
this writ petition, which was filed by the petitioner bank
impugning the award dated 01.06.2009 of the Central
Government Industrial Tribunal-cum-Labour Court whereby
it has been directed to reinstate the respondent no.2 alongwith
full back wages and other benefits after declaring the
termination of her services w.e.f. 01.10.2005 to be illegal and
unjustified, for directing the petitioner bank to pay to her
during the pendency of this writ petition the salary which she
would have been getting in the year 2009 if her services had
not been terminated.
2. The petitioner-employer had admittedly terminated the
services of respondent no.2 herein w.e.f. 01.10.2005 and
upon her raising an industrial dispute challenging the
termination of her services the Central Government had
referred the dispute her and her employer, petitioner herein,
for adjudication to the CGIT. After trial, the CGIT passed an
award in favour of respondent no.2 herein after the main
objection raised by the petitioner-employer that she was a
„workman‟ was rejected and termination of her services was
found to be illegal. Accordingly, she was directed to be
reinstated in service. The petitioner-employer then
approached this Court by filing this writ petition and this
Court had vide order dated 03.09.2009 stayed the operation
of the award of CGIT, though subject to the petitioner bank
depositing in Court the entire amount of wages payable under
the impugned award.
3. The respondent no. 2 filed the present application under
Section 17-B of the Industrial Disputes Act, 1947 for
directions to the petitioner to pay wages to her during the
pendency of this writ petition but the she did not claim her
last drawn wages and instead her prayer was for payment of
wages which she would have been getting in the year 2009,
when the CGIT held the termination of her services to be
illegal. According to her case she would have been getting
wages of ` 4,08,310/- per month in the year 2009.
4. The petitioner bank did not oppose this application as
far as the payment of her last drawn wages is concerned and
in fact it was pointed out by the learned senior counsel for the
bank that even without any order of this Court it has been
paying to the respondent no. 2 her last drawn wages as per
Section 17-B of Industrial Disputes Act. However, the prayer
of the respondent no. 2 for payment to her of wages which
she would have been getting in 2009 if her services had not
been terminated was strongly opposed on the ground that she
cannot be given any amount over and above her last drawn
wages which were ` 58,330/- per month.
5. Respondent no. 2, on the other hand, contended that
even though under Section 17-B of Industrial Disputes Act
last drawn wages are to be paid to the workman during the
pendency of the proceedings before the High Court when the
employer challenges the award of the Industrial Adjudicator
directing reinstatement of the workman, whose services are
terminated illegally, but the Hon'ble Supreme Court in the
case of "Dena Bank Vs. Kiriti Kumar T. Patel", (1999) 2
SCC 106 had held that the High Court or the Supreme Court
can pass an order directing payment of a higher amount to the
workman if that direction is considered to be in the interest of
justice.
6. In the present case the services of the respondent no. 2
were terminated way back in the year 2005 and at that time
her last drawn wages were ` 58,330/- per month. During all
these years the cost of living has gone very high and since the
Supreme Court has held in Dena Bank‟s case (supra) that
High Court can grant better relief other than the one provided
under Section 17-B of I.D. Act the respondent no. 2, herein,
deserves to be granted more than what is contemplated under
Section 17-B. For taking this view I derive strength from a
judgment of the Hon'ble Supreme Court in the case of
"Narendra Kumar Vs. Regional Manager, Punjab National
Bank and Others", (2009) 14 SCC 219 wherein the Supreme
Court had taken note of the increased cost of living while
enhancing the amount awarded by the Industrial Adjudicator
in favour of the concerned workman. This is what was
observed by the Hon'ble Supreme Court:-
"4. The Labour Court vide its order dated 31-12-2007,
while allowing the claim in part, has directed the respondents to
pay a sum of rupees fifty thousand only (Rs 50,000) by way of
compensation in lieu of reinstatement into service. The award
passed by the Labour Court was the subject-matter of the writ
petition before the High Court at the instance of the workman.
The High Court has dismissed the writ petition in limine and
thereby has affirmed the award passed by the Labour Court.
5. The learned counsel for the appellant submits that the amount
of compensation awarded by the Labour Court in lieu of
reinstatement into service vide its order dated 31-12-2007 is
meagre and therefore, this Court may exercise its discretion and
enhance the compensation awarded by the Labour Court.
6. Ordinarily, we would not have interfered with the concurrent
findings of the Labour Court and the High Court. At the same
time, we cannot be obdurate to the hard realities of life. In
matters of this nature, a humane and pragmatic approach to the
various factors, including the steep escalation in prices in the
commodity market, the cost of living, the cost of education of
children, etc. is required."
(emphasis supplied)
7. So, this Court is of the view that it will be in the interest
of justice to direct the petitioner bank to pay to respondent
no. 2 a sum of ` 75,000 per month from the date of award of
CGIT till the disposal of this writ petition. While making the
payment the petitioner bank, however, shall be entitled to
adjust whatever amount it has already paid to respondent no.
2, as had been submitted on its behalf by its learned senior
counsel and which was not disputed also by the respondent
no. 2. However, before the petitioner makes the payment, as
aforesaid, the respondent no. 2 shall give an undertaking to
the effect that she will refund the amount to be received by
her over and above her last drawn wages in the event of this
writ petition being allowed. The undertaking shall be
furnished by her within two weeks and thereafter the arrears
upto July, 2012 shall be cleared by the petitioner bank within
four weeks and it shall continue to pay the future payments
month by month on or before 10th day of each succeeding
month. In case respondent no. 2 fails to give the undertaking
within the given period the petitioner‟s liability shall be only
to pay her last drawn wages. This application stands disposed
of accordingly.
P.K. BHASIN, J
JULY 27, 2012
