Delhi High Court
Kendriya Vidyalaya Sangathan vs Praveen Kumar on 18 January, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: January 11th, 2018
Pronounced on: January 18th, 2018
+ W.P.(C) 16146/2004
KENDRIYA VIDYALAYA SANGATHAN ..... Petitioner
Through: Mr. Rajappa, Adv.
versus
PRAVEEN KUMAR ..... Respondent
Through: Mr.N.D. Pancholi, Adv.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
%
C. HARI SHANKAR, J.
1 Praveen Kumar, who was employed as a watchman with the
petitioner-Kendriya Vidalaya Sangahthan (hereinafter referred to as
"KVS") since 29th October 1982 raised an industrial dispute,
contending that his services had been unjustly terminated, by the
KVS, on 23rd May 1992. The Ministry of Labour referred the said
dispute, for adjudication, to the Industrial Tribunal (hereinafter
referred to as "the Tribunal"), vide letter dated 05th September 1997.
The term of reference read thus:
"Whether the action of the management of Kendriya Vidyalaya
Sangathan in terminating the services of Sh. Praveen Kumar,
Watchman, Kendriya Vidyalaya at NTPC, Badarpur, New Delhi
WP(C) 16146/2004 page 1 of 14
w.e.f. 23.05.1992 is justified? If not, what relief the workman is
entitled to?"
2. Among other issues, KVS questioned the jurisdiction, of the
Tribunal, to adjudicate on the matter. KVS contended that the
appropriate forum, to adjudicate thereon, was the Central
Administrative Tribunal (hereinafter referred to as "CAT"), and that,
therefore, the Industrial Tribunal was coram non judice. The learned
Tribunal rejected the said contention, relying on Krishan Prasad
Gupta v. Controller, Printing and Stationery, AIR 1996 SC 408. On
merits, the termination, of the services of the respondent, by KVS,
was held to be unjustified and, consequently, the respondent was
directed to be reinstated in service with 50% back wages, with effect
from 23rd May 1992 i.e. the date of his termination. Failure to comply
with the award, within a month from publication thereof, it was
directed, would entail 6% interest per annum on the back wages.
3. KVS challenged the aforementioned award, dated 16th July
2004, before this Court, by means of the present writ petition. The
writ petition does not assail the impugned award on merits, and
confines its challenge to the issue of jurisdiction, reiterating that the
Tribunal was incompetent to hear and adjudicate on the issue, which
lay within the province of jurisdiction of the CAT.
WP(C) 16146/2004 page 2 of 14
4. While issuing notice on the present writ petition, the operation
of the impugned award was stayed, by this Court, vide order dated 06th
October 2004. The said stay order continues till date.
5. As is inevitable in such cases, the respondent moved an
application (CM No.525/2005), in the present proceedings, under
Section 17 of the Industrial Disputes Act, 1947 (hereinafter referred to
as "the ID Act"), for being paid @ Rs. 5,000/- per month, from the
date of the impugned award till the disposal of the petition. The said
application was disposed of, by this Court, vide order dated 04th May
2005, which read thus:
" This is an application under Section 17-B of the Industrial
Disputes Act, 1947 (in short the „ID Act‟) praying that interim
relief/benefits at the rate of Rs. 5000/- per month from the date of
the impugned award dated 16th July, 2004 till disposal of the petition
under Section 17B of the I.D. Act be granted in favour of the
respondent/workman. It is further prayed that petitioner be directed
to release the arrears of back wages in terms of the impugned award.
It is stated that applicant-workman has been unemployed
from the date of his termination. The last drawn wages of the
workman was at Rs. 2600/- and at present a watchman is drawing
about Rs. 7,000/- per month with the petitioner management. The
application is opposed by the petitioner. A bald averment is made to
the effect that respondent-workman is gainfully employed.
However, no material is placed before this Court in support of this
submission.
I have heard learned counsel for the parties.
WP(C) 16146/2004 page 3 of 14
By the impugned award passed in I.D. No. 129/97, the
Presiding Officer, Central Government Industrial Tribunal Cum
Labour Court No. II, New Delhi held that workman deserved to be
reinstated from 23rd May, 1992 with 50% back wages.
The provisions of Section 17-B are mandatory in nature and
wherever the High Court is inclined to grant interim stay of
operation of the award, it will be obligatory on the Court to protect
the workman by payment of last drawn wages under the provisions
of Section 17-B of the Act.
Accordingly, the respondent/workman shall be paid the
arrears of wages last drawn by him or the minimum wages
whichever is higher from the date of the award till date and
thereafter such payment will be continued to be made month to
month. Arrears of wages are directed to be paid to the
respondent/workman within six weeks from today.
The application stands disposed of."
(Emphasis supplied)
6. It appears that, unhappy with the manner in which the petitioner
was complying with the aforementioned order dated 04th May 2005,
the respondent moved this court by way of Cont. Cas. 446/2014. The
said Contempt Case was disposed of, by this Court, vide order dated
02nd July 2014, the relevant portion of which reads as under:
" This contempt petition has been filed by the petitioner for
initiating the contempt proceedings against the respondents for non-
compliance of the order dated May 04, 2005. It is his own case that after
2010, he has been making repeated representations for grant of
the benefits under Section 17-B of the Industrial Disputes Act, 1947
(„Act‟ in short) in terms of the order dated May 04, 2005, which the
respondents have failed to comply.
WP(C) 16146/2004 page 4 of 14
In the application, the petitioner tried to justify the delay on the
ground that the benefits in terms of order dated May 04, 2005 are
payable every month. Hence, it is a continuous cause of action. It is his
submission that the petitioner, who despite award in his favour
for reinstatement, is suffering as there are no means of
sustenance. Having considered the submissions made by the learned
counsel for the petitioner, suffice to state that the benefits, the petitioner
is seeking under the guise of this contempt petition is in effect, are arrears
of wages.
It is a settled position of law that if the employer has denied the
benefits under Section 17-B of the Act despite order in the favour of
the workman on an application under Section 17-B of the Act, the remedy
for the workman is to file an application under Section 33(c)(1)of the Act.
I refer to the judgment of the learned Single Judge of this Court in
case titled as Vimal Kumar Vs. Ramesh Negi and Anr., Cont. Cas.(C)
173/2011, decided on April 01, 2011 (MANU/DE/2041/2011).
In view of the above, I do not see any reason to issue notice in the
present petition. The petitioner is better advised to seek remedy under
Section 33(e)(1) of the Act. The contempt petition along
with miscellaneous application are accordingly dismissed.
No order as to costs."
7. In accordance with the directions contained in the
aforementioned order dated 02nd July 2014, of this Court, the
respondent moved the Regional Labour Commissioner under Section
33 (c) (1) of the Act.
8. Before the Regional Labour Commissioner, it was sought to be
contended, by KVS, that it was not obliged to pay any amount, to the
respondent, in excess of the wages last drawn by him on the date of
his termination i.e. 23rd May 1992. The Regional Labour
WP(C) 16146/2004 page 5 of 14
Commissioner did not accept the said submission, as is reflected in
order dated 23rd April 2015 passed by him, which reads thus:
" It transpired that the Management of Kendriya Vidyalaya has
understood the terminology "last drawn wages or minimum wages"
by the last drawn wages or the minimum in the scale at the time of
termination of services of the workman". It was explained to the
authorized representative of management that minimum wages‟
means the wages fixed by the Govt. under the provision of
Minimum Wages Act, 1948, which at present in respect of the
employee of watch & ward is much more than what they are paying
to the watchman. The A/R of Mgt appears to have been convinced
about the explanation and requested for 3 weeks time either to make
the payment or submit their explanation for not making the payment.
A copy of order fixing the minimum rates of wages issued by
(LCCC) for the employment of watch & ward showing the
minimum rates of wages of watchman(without Arms) in „A‟ class
cities is Rs. 365/- per day w.e.f. 01.04.15 was handed over to the
A/R of Mgt. He was also advised to find out the minimum rates of
wages for the period prior to 01.4.15 and make the payment at these
rates, if these rates are higher than what they have been paying. The
next date is fixed for 25.5.2015 at 11.am".
9. CM No.9195/2015 was, thereafter moved, by the KVS, before
this Court in the present proceedings, seeking stay of the proceedings
pending before the Regional Labour Commissioner under Section 33
(c) (1) of the ID Act. The following order was passed, on the said CM,
by this Court, on 20th May 2015:
"1. Vide the present application the applicant/petitioner has
made a request for stay of the execution proceedings before the
Regional Labour Commissioner under Section 33 (c) (1) of the
Industrial Disputes Act.
WP(C) 16146/2004 page 6 of 14
2. Learned counsel for the petitioner has argued that the
petitioner has been making payment to the respondent/workman
pursuant to the order of this court dated 04.05.2005 passed
under Section 17-B of the Industrial Disputes Act. It is further
submitted that despite that respondent/workman had moved a
contempt application which was dismissed by this court vide
order dated 02.07.2014. It is further submitted that the order of
this court dated 08.05.2009 clearly records the fact that the
applicant/petitioner has complied with the directions of this
court dated 04.05.2005.
3. I have heard the arguments and perused the file.
4. This position that the petitioner had been paying the
wages in compliance of the directions of this court vide order
04.05.2005 is recorded in order dated 08.05.2009 and it was
valid till that date. The order dated 02.07.2014 clearly shows
that the workman was given liberty to take his remedy for
unpaid wages under Section 33 (c) (1) of the Industrial Disputes
Act. The workman accordingly had moved the appropriate
authority under Section 33 (c) (1) of the Industrial Disputes Act.
Vide order dated 23.04.2015, the Regional Labour
Commissioner had asked the petitioner/applicant to find out the
minimum rates of wages for the period prior to 01.04.2015 and
make payment at these rates, if these rates are higher than what
they have been paying. The contention of the petitioner is that
he has been regularly paying the wages to the workman as per
the minimum wages. The petitioner, however, has not placed on
record any document to show the due payment of the wages to
the workman/respondent in compliance of order of this court
under Section 17-B of the Industrial Disputes Act.
5. Learned counsel for the petitioner undertakes to file the
document if time is given. The petitioner is at liberty to place
any such document on record.
6. In view of the above, no ground for passing of the order
of stay exists at this stage.
WP(C) 16146/2004 page 7 of 14
7. On the petitioner taking necessary steps within a week,
issue notice of the application to the non-applicant/respondent
by ordinary process, registered A/D cover and through approved
courier, returnable on 10.07.2015. Dasti be taken.
8. The petitioner seeks liberty to show the payment receipts
of the wages before the concerned authority on the next date i.e.
25.05.2015 fixed there. The liberty is granted."
10. Purportedly in compliance with the directions issued in the
aforementioned order dated 20th May 2015, KVS placed, on record,
details of the wages paid to the workman, pursuant to the order dated
04th May 2005 (supra) passed by this Court. In view thereof, this
Court, vide order dated 10th July 2015, stayed the proceedings, under
Section 33 C (1) of the ID Act, pending before the Regional Labour
Commissioner.
11. Pursuant thereto, reply to CM 9195/2015 was filed by the
respondent and rejoinder, thereto, was filed by the petitioner. The
respondent contended that the amounts paid to him were below the
minimum wages, as revised from time to time. Per contra, the
petitioner‟s submission was that it was not bound to pay the
respondent a penny more than the wages drawn by him at the time of
his termination on 23rd May 1992, though, on its own volition, it had
periodically increased the amount.
WP(C) 16146/2004 page 8 of 14
12. The respondent, too filed an application, (CM 30631/2015),
seeking issuance of directions to KVS to pay him arrears of wages, as
per the minimum wages under the Minimum Wages Act, as amended
from time to time. The said application is also pending, as on date.
13. Insofar as the present writ petition is concerned, KVS has not
chosen to challenge the impugned award, dated 16th July 2004, of the
Tribunal, on merits. Its only submission is that the Tribunal had acted
in excess of jurisdiction, as the proper forum, having jurisdiction to
adjudicate on the claim of the respondent, was the CAT.
14. Mr. Rajappa, appearing for the petitioner, has relied, for this
proposition, on the judgment of the Supreme Court in KVS v.
Subhash Sharma, (2002) 4 SCC 145, which holds that, in respect of
service matters of employees of the KVS, the CAT has jurisdiction, in
view of sub Clause (iii) of Section 14 (1) (b) of the Administrative
Tribunal‟s Act, 1985 (hereinafter referred to as "the AT Act").
15. Per contra, Mr. Pancholi, learned counsel appearing for the
respondent, relies on Section 28 of the AT Act, as also on the
judgment of the Supreme Court in CSIR vs. Padma Ravinder Nath,
(2001) 9 SCC 526, Directors, Government of India vs. General
Secretary Central Government Small Scale Industries Organizations
Employees Union, AIR 1999 SC 553 and Krishan Prasad Gupta
(supra).
WP(C) 16146/2004 page 9 of 14
16. The issue is no longer res integra. A Single Bench of this court
has pronounced, thereon, in Kendriya Vidyalaya v Sushil Kumar,
ILR (2007) II Delhi 339, in which, too, incidentally, reliance had
been placed, by the court, on Krishan Prasad Gupta (supra). Relying
on Section 28 of the AT Act, which excluded the jurisdiction, of all
courts, except the Supreme Court and labour courts/industrial
tribunals, to adjudicate on service matters concerned with notified
organizations, this court held, clearly and unequivocally, that the
jurisdiction, of the labour court or industrial tribunal, in respect of
service matters concerning workmen of the KVS, which were
amenable to adjudication under the ID Act, stood statutorily saved. I
respectfully concur with the said judgement, which demolishes the
submission of Mr. Rajappa, regarding the jurisdiction of the learned
Tribunal to pass the impugned award, in toto.
17. The judgment in KVS v. Subhash Sharma (supra), on which
Mr. Rajappa places reliance, did not deal with an issue which was
amenable to the jurisdiction of the Industrial Tribunal and,
consequently, did not attract Section 29 of the AT Act at all. It held,
generally, that service matters, of employees of the KVS, would be
amenable to the jurisdiction of the CAT; regarding which proposition
there can possibly be no cavil.
18. Resultantly, the sole objection, of Mr. Rajappa, to the impugned
award, is rejected.
WP(C) 16146/2004 page 10 of 14
19. Mr. Rajappa informs me that the respondent workman would,
had he continued in service have superannuated in October 2017.
There can, therefore, be no question of reinstating him in service. At
the same time, as the impugned award has not been challenged on
merits and has been challenged only on the ground of jurisdiction,
which I have rejected hereinabove, the remainder of the said order
would continue to operate against the petitioner and in favor of the
respondent. In other words, the respondent would be entitled to 50 %
back wages, from the date of his termination till the date of his
superannuation. He would also be entitled to fixation of his
pensionary benefits on that basis.
20. In so far as CM Nos.6195/2015 and 30631/2015 are concerned,
the submission that under Section 17B of the ID Act, the KVS would
be liable to pay the respondent only the last drawn wages till the date
of his superannuation, obviously cannot sustain, in view of the order,
dated 04th May 2005, passed by this Court. The said order
categorically directed the respondent be paid arrears of wages last
drawn by him or the minimum wages whichever is higher from the
date of the award, and to continue such payment month to month.
The order dated 4th May 2005 was never challenged by KVS, and it is
too late in the day for KVS to urge, now, that its liability, qua the
respondent, was on the basis of the pay last drawn by him at the time
of his termination. The legal position in this regard is no longer open
WP(C) 16146/2004 page 11 of 14
to doubt; in Authorized Officer (Land Reforms) v M. M. Jacob,
(1998) 9 SCC 138, it has been clearly held thus:
"According to the appellant once the judgment on the basis of which
the High Court had directed to dispose of the dispute relating to the
excess land had been reversed by this Court, the Authorized Officer
was justified in following the judgment of this Court instead of the
judgment of the High Court. It need not be pointed out that the order
passed by the High Court attained finality as it was not challenged
before the Supreme Court. The order passed by the High Court
directing the Authorized Officer to examine the dispute in the light
of the judgment of the High Court in the case of Naganatha
Ayyar v. Authorized Officer [84 LW 69] became final although the
judgment on which the grievance had to be examined itself was
reversed later by this Court. We find no fault with the reasoning of
the High Court. It is well settled that even orders which may not be
strictly legal become final and are binding between the parties if
they are not challenged before the superior courts. In the result the
appeal fails and it is dismissed."
(Emphasis supplied)
Resultantly, in case the minimum wages, payable under the Minimum
Wages Act, as revised from time to time, was, during any month,
more than the wages last drawn by the respondent, the KVS would
clearly be bound to pay the respondent the minimum wages statutorily
fixed, and not the pay last drawn by him. This contention of Mr.
Rajappa is, therefore, rejected.
21. Incidentally, I may note that this Court had, in Paramjit Singh
Ahuja v. P.O. Labour Court, MANU/DE/0797/2001, directed, in a
similar vein, that the respondent (in that case) be paid "the wages last
WP(C) 16146/2004 page 12 of 14
drawn by him which should not be less than the minimum wages
applicable from time to time".
22. It is not possible for this Court to embark on a calculation of the
amount that would be payable to the respondent, by the appellant, on
the above basis. Such an exercise would best be undertaken by the
Tribunal.
23. This writ petition is, therefore, dismissed, subject to the
following directions:
(i) 50% of the wages that the respondent would have drawn,
along pensionary and retiral benefits, worked out on that basis,
from October 2017 (when he would have superannuated in
normal course) till date, shall be disbursed, to him, by the
petitioner, within one week of the date of receipt, by the
petitioner, of a certified copy of this judgement. In doing so,
the amount already paid to the respondent, under Section 17-B
of the Act, shall be adjusted.
(ii) The petitioner shall continue to disburse pensionary and
retiral benefits, to the respondent, on the above basis.
(iii) The matter is remanded to the Industrial Tribunal, having
jurisdiction therein, solely for the purpose of working out the
amount payable to the respondent under Section 17-B of the
Act, in the light of the findings contained in para 22 supra.
WP(C) 16146/2004 page 13 of 14
This exercise shall be completed within a period of 6 months
from the date of presentation, by either party, before the
Tribunal, of a certified copy of this judgement. Parties are
directed to appear, before the Tribunal, for preliminary hearing
on this issue, on 31st January 2018.
(iv) Thus worked out, if it is found that any further payment
is required to be made, to the respondent, under Section 17-B of
the Act, in excess of the amount paid under (i) above, such
amount shall also be disbursed, to the respondent by the
petitioner, within 4 weeks of such determination by the
Tribunal.
24. There shall be no order as to costs.
C.HARI SHANKAR
(JUDGE)
JANUARY 18, 2018
neelam/nitin
WP(C) 16146/2004 page 14 of 14
