Central Warehousing Corporation vs Ekpal Singh
2014 Latest Caselaw 1984 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 Decided on April 21, 2014
+                            W.P.(C) 3101/2013
CENTRAL WAREHOUSING CORPORATION              ..... Petitioner
            Represented by: Mr. K.K.Tyagi, Advocate with
                            Mr.Iftikhar Ahmed, Advocate

                    versus

EKPAL SINGH                                              ..... Respondent
                    Represented by:     Mr.Shesh Dutt Sharma, Advocate

CORAM:
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)

1. The challenge in this writ petition is to the award dated December 06, 2012 passed by the Central Govt. Industrial Tribunal (Tribunal in short) on an application filed by the respondent under Section 33(c)(2) of the Industrial Disputes Act, 1947 (Act in short).

2. Some of the relevant facts are, the services of the respondent were terminated by the petitioner-Corporation on August 20, 1996. He raised an Industrial Dispute, which ultimately culminated in the award dated May 06, 2004 whereby, the Tribunal has awarded his reinstatement with 10% back wages. The award has been assailed by the petitioner before this Court and the operation has been stayed.

3. The respondent moved an application under Section 17-B of the Act before this Court, which was granted vide order dated July 27, 2009, by directing that the respondent be given the last drawn wages or the minimum wages, whichever is higher.

4. The petitioner made a payment of last drawn wages of Rs. 3047/-

per month to the respondent. It is this amount, which is disputed by the respondent and has accordingly filed a claim under Section 33(c)(2) of the Act.

5. According to the petitioner, the wages of Rs. 3047/- being higher, were being paid. I note that the claim of the petitioner was allowed on the ground that the minimum wages of skilled category has been notified as Rs. 3082/- and subsequently increased to Rs. 3287/-, Rs.3367/-, Rs.3706/-, Rs.4368/-, Rs.4578/-, Rs.4719/-. The said amount being higher to the last wages drawn, the respondent was entitled to the difference of the amount between the last wages drawn and the minimum wages of skilled category, and accordingly directed that the respondent shall be entitled to a sum of Rs. 29,652/-.

6. It is the contention of the learned counsel for the petitioner that the respondent is not entitled to the amount of minimum wages of a skilled worker inasmuch as the respondent was working as a Chowkidar before his termination. It does not involve any skilled work.

7. On the other hand, the learned counsel for the respondent would state that he being a land oustee, he got an appointment with the petitioner-Corporation. He would further submit that the respondent would be entitled to wages @ Rs. 8000/- per month. In fact, he would state that he had also made a prayer in his counter affidavit for modifying the award to that extent. He would rely upon the judgment of the Supreme Court in the case of S.P.Chengalvaraya Naidu (Dead) by LRs Vs. Jagganath (Dead) by LRs and Anr., AIR 1994 SC 853 to contend that the petitioner has not come with clean hands and concealed the relevant facts.

8. Having considered the rival submissions made by the learned

counsel for the parties, the only issue which arises for consideration of this Court is whether the respondent was doing skilled duties so as to justify the award of the Tribunal, or he would be entitled to the wages @ Rs. 8000/- p.m. At the outset, I may state here that the respondent has not challenged the award by way of a substantive writ petition. In his counter affidavit, he has sought for modification of the award and grant of Rs. 8000/- as wages to him. This is not tenable. In the absence of any challenge by way of a writ petition, the prayer made by the respondent cannot be taken into consideration. It is not denied that the respondent was drawing last wages at Rs. 3047/- per month. Whether the respondent was doing a skilled duties, is a pure question of fact. On a query to the learned counsel for the respondent, as to what were the nature of duties being performed by the respondent, the answer was that he was doing watch and ward duties. Surely, such a work does not require any skilled expertise, nor it is the case of the respondent that because of special expertise, which he has possessed like an Ex- serviceman etc., he could able to keep effective security of the area. Watch and ward in the given facts, is an unskilled nature of work and the minimum wages which he is entitled to be paid, would be of unskilled category. Since the said wages were less than the last wages drawn by him, he was rightly given an amount of Rs. 3047/- per month. I do not see any justification for the Tribunal to interfere with such a decision of the petitioner-Corporation. Unfortunately, the Tribunal does not give a finding on the aspect whether the respondent was doing work of a skilled or unskilled category. The basis for the Tribunal to grant the minimum wages of skilled category is that the respondent was working as a regular Chowkidar. Such a finding is also erroneous as doing a

regular work does not necessarily imply that the person is doing the skilled work. Since I have held that the nature of duties being of a unskilled category, the respondent was rightly given the last wages drawn as benefit under Section 17-B of the Act. Insofar as the judgment referred by the learned counsel for ht respondent in S.P.Chengalvaraya Naidu's case (supra), the same may not have any relevance in the facts of this case. The writ petition is allowed. The order of the Tribunal dated December 06, 2012 is set aside.

9. No order as to costs.

CM Nos. 5877-78/2013 10 In view of the order passed in the writ petition, these applications are disposed of as infructuous.

(V.KAMESWAR RAO) JUDGE

APRIL 21, 2014 akb