Delhi High Court
Delhi Technological University vs Dinesh Kumar on 16 October, 2012
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 16th October, 2012
+ LPA No.282/2012
DELHI TECHNOLOGICAL UNIVERSITY ..... Appellant
Through: Ms. Avnish Ahlawat & Ms. Latika
Chaudhary, Advs.
Versus
DINESH KUMAR ..... Respondent
Through: Mr. Rajiv Agarwal & Mr. Anuj
Agarwal, Advs.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. This intra-court appeal impugns the order dated 29.02.2012 of the
learned Single Judge allowing the application of the respondent under
Section 17B of the Industrial Disputes Act, 1947 by directing the
appellant to pay last drawn wages or minimum wages fixed by the
Competent Authority from time to time, whichever is higher from the
date of the Award i.e. 02.12.2004 till the disposal of the writ petition.
2. Notice of the appeal was issued. The counsel for the respondents,
on 16.04.2012 made a statement that the respondent during the pendency
of this appeal shall not enforce the order under Section 17B of the I.D.
Act. The parties were referred to mediation, which has been unsuccessful.
The counsels have been heard.
3. The counsel for the appellant has argued, that the respondent in his
application under Section 17B of the I.D. Act stated that he was not
gainfully employed in any establishment since the termination of his
services by the appellant and was depending on his friends and relatives
for his household expenses; that though it is very difficult for any
employer to find out about the employment of a dismissed workman but
the appellant still made efforts which revealed that the respondent
workman was earlier working with a Reliance Company in Vijay
Building, Bara Khamba Road, New Delhi and has now joined Vatnavi
Company in Gopal Das Building, Delhi and is maintaining a mobile
having No.9953305658 and stated so in its reply to the application under
Section 17B of the I.D. Act; that the respondent in his rejoinder admitted
having worked earlier with Reliance Company and subsequently with
Vatnavi Company but only as intermittent / casual / substitute on
Saturdays and Sundays for `150/- per day and that too subject to
availability of work. It is further argued that the said admission of the
respondent workman in rejoinder showed the falsity of the statement in
the application under Section 17B of the I.D. Act. It is yet further argued
that though the writ petition challenging the Award dated 02.12.2004 was
filed in the year 2006 and counter affidavit thereto was also filed by the
respondent in the year 2006 only but the application under Section 17B of
the I.D. Act was filed after three years, in the year 2009. It is contended
that the same also showed that the respondent workman was employed
and had a source of income and the application under Section 17B of the
I.D. Act was an afterthought. Alternatively, it is contended that the
direction for payment under Section 17B of the I.D. Act could not have
been from the date of the Award and at best could only be from the date
of the application under Section 17B of the I.D. Act.
4. Per contra, the counsel for the respondent workman has argued that
such a casual employment on weekends, from which the respondent at
best earning `450/- to `600/- per month could not be called gainful
employment within the meaning of Section 17B of the I.D. Act and such
as was required to be disclosed in the application. As to the aspect of
delay, it is contended that the same was not argued before the learned
Single Judge. Reliance even otherwise is placed on Airport Authority of
India Vs. Puran Chand MANU/DE/8963/2006 and on Delhi Transport
Corporation Vs. Inderjeet Singh MANU/DE/1088/2008, both of
Division Benches of this Court to contend that delay in filing the
application is immaterial.
5. The learned Single Judge in the impugned order has not dealt with
the aforesaid arguments though we find the same to be arising from the
pleadings in the application under Section 17B of the I.D. Act.
6. A Division Bench of this Court in Municipal Corporation of Delhi
Vs. Santosh Kumari MANU/DE/4960/2012 has held that where there is
unexplained delay in filing the application under Section 17B of the I.D.
Act, this Court is empowered to direct payment from the date of the
application and not from the date of the Award.
7. The counsel for the respondent workman has argued that the
appellant itself had delayed filing of the writ petition for over one year
and the respondent workman cannot be deprived of the 17B wages for the
said period. It is further contended that the application was not filed
along with the counter affidavit as the respondent workman was
expecting the writ petition to be decided expeditiously and was filed
when found that the writ petition was not being disposed of.
8. We are not satisfied with the explanation given by the respondent
workman for delay in filing the application under Section 17B of the I.D.
Act. Even if there was delay by the appellant in filing the writ petition,
that was no cause for the respondent workman to not immediately file the
application under Section 17B of the I.D. Act. Moreover, the liability of
the employer under Section 17B of the I.D. Act accrues only after
challenge is made to the Award of the Industrial Adjudicator of
reinstatement. There indeed is undue delay in filing the application under
Section 17B of the I.D. Act. We thus do not find the respondent
workman to be entitled to 17B wages from the date of the Award.
9. As far as argument of the appellant of concealment by the
respondent workman of the true state of affairs is concerned, though the
Bombay High Court in U.P. State Bridge Corporation Ltd. Vs.
Maharashtra General Kamgar Union 2008 (110) Bom. LR 440 has held
that a workman, in an application under Section 17B of the I.D. Act, has
to make a clean breast of the state of affairs and to disclose all aspects of
his employment including as to self employment but since the appellant
also has been unable to rebut the plea of the respondent workman of his
employment being only casual / intermittent and against vacancy, we are
of the view that the punishment of depriving the respondent workman
altogether from Section 17B wages for not having made a clean breast of
the state of affairs would be too harsh and the ends of justice would be
served by directing payment as aforesaid from the date of the application
and by further directing expeditious disposal of the writ petition.
10. We accordingly, partly allow this appeal and modify the order
dated 29.02.2012 of the learned Single Judge by directing payment under
Section 17B of the I.D. Act not from the date of the Award but from the
date of filing of the application under Section 17B of the I.D. Act and
request the learned Single Judge to dispose of the writ petition which in
any case is of the year 2006 within three months of today. We grant
liberty to the appellant to approach the learned Single Judge for fixing a
date of hearing.
The appeal is disposed of.
No costs.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
OCTOBER 16, 2012
'gsr'
