North Delhi Municipal ... vs Surender Kumar
2021 Latest Caselaw 3320 Del

                                                            Digitally Signed By:DEVANSHU
                                                            JOSHI
                                                            Signing Date:07.12.2021 19:12:29

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Date of decision: 6th December, 2021
+                  W.P.(C) 535/2020 & CM APPL. 31264/2020
       NORTH DELHI MUNICIPAL CORPORATION           ..... Petitioner
                    Through: Ms. Namrata Mukim, SC/NDMC
                             with Ms. Garima Jindal & Ms. Anita
                             Ved, Advocates
                    versus

       SURENDER KUMAR                                     ..... Respondent

Through: Mr. Jawahar Raja, Ms. Meghna De & Ms. L. Gangmei, Advocates CORAM:

JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J.(Oral)

1. This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court. CM APPL. 31264/2020 (u/s 17B of the ID Act)

2. This is an application moved by the Respondent/Workman under Section 17B of the Industrial Disputes Act, 1947 (hereinafter "Act"). No reply has been filed by the Petitioner/NrDMC. On 24th November 2021, this application was heard in part, when ld. Counsel for the NrDMC had submitted that although no reply was filed in this application, she wished to rely on her rejoinder in the petition, to oppose the present application. She relied upon the report of the Additional Sanitary Inspector of Hindu Rao Hospital, along with the photographs attached therein to submit that the Workman was running a small shop from his own residence. On this, this Court had prima facie opined that the same would not constitute gainful

Digitally Signed By:DEVANSHU JOSHI Signing Date:07.12.2021 19:12:29

alternate employment under section 17B of the ID Act. However, as ld. Counsel for the Workman had submitted that his client would be willing to join back the NrDMC, ld. Counsel for the NrDMC was given time to seek instructions in that regard. The observations of the Court in order dated 24th November 2021 are as under:

4. A perusal of this report with the photographs, in fact shows that the Workman is not fully and gainfully employed but is only running his own small shop from his residence to earn his livelihood. This would prima facie, not constitute alternative employment under Section 17B of the ID Act. Moreover, the report also states that the Workman is in debt.

5. Mr. Jawahar Raja, ld. Counsel for the Workman, submits that his client is willing to join back the services of the Corporation. Ld. counsel for the Corporation to seek instructions in respect thereof.

3. Today, Ms. Namrata Mukim, ld. Counsel for the NrDMC submits that the NrDMC is not willing to take back the workman as the same may affect the NrDMC's case on merits.

4. Considering the fact that no substantial reply to the application under Section 17B of the ID Act has been filed and inasmuch as the report of the Additional Sanitary Inspector also only shows that the employee is running a small shop from his own residence, there is no ground for the application under Section 17B to be rejected. Accordingly, the application under Section 17B of the ID Act is liable to be allowed.

5. The Workman shall accordingly be paid the minimum wages or the last drawn wages, whichever is higher, with effect from 17th November, 2020. The said payment shall be made on or before the 10th of every month.

Digitally Signed By:DEVANSHU JOSHI Signing Date:07.12.2021 19:12:29

6. Mr. Raja, ld. Counsel, at this stage submits that the Workman ought to be paid the amounts in terms of Section 17B from the date of the passing of the Award in his favour. However, the judgment of Supreme Court in Uttaranchal Forest Development Corporation and Ors. v. K.B. Singh and Ors. [(2005) 11 SCC 449] as well as the judgment of the Division Bench of this Court in Municipal Corporation of Delhi v. Santosh Kumari & Anr. in LPA No. 165/2012 decided on 24th August, 2012, have held that where there is a delay in filing the application under Section 17B of the ID Act, the same ought to be payable from the date of filing of the said affidavit and not from the date of the Award. The relevant observations are as under:

 Uttaranchal Forest Development Corporation (supra) "4. After hearing learned Counsel for the parties, we direct that only such workmen in whose favor there are awards of reinstatement and who have filed affidavits of their not being in gainful employment, shall be entitled to be granted reinstatement or in lieu thereof paid wages last drawn by them on respective dates of their terminations from services.

5. Their entitlement for such wages would be from the respective dates by filing affidavits by each of them in this Court in compliance with Section 17-B of the Industrial Disputes Act, 1947."

 Santosh Kumari (supra) "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,

Digitally Signed By:DEVANSHU JOSHI Signing Date:07.12.2021 19:12:29

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

Digitally Signed By:DEVANSHU JOSHI Signing Date:07.12.2021 19:12:29

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."

7. In the present case, the impugned award is dated 31st August, 2019. The Respondent-Workman appeared for the first time on 17th February, 2020. However, the application under Section 17B has only been filed in November, 2020. Accordingly, in the facts and circumstances of this case, the amounts in terms of Section 17B of the ID Act of the last wages drawn or the minimum wages whichever is higher, shall be payable from the date of filing of the application i.e., 17th November 2020. The arrears shall be cleared within eight weeks. Going forward, the amount shall be paid on a monthly basis, by the 10th of every month.

8. Application is disposed of in the above terms.

W.P.(C) 535/2020

9. Ld. Counsel for the NrDMC submits that since the application under Section 17B of the ID Act has been allowed, the NrDMC would now take a fresh decision as to whether the NrDMC would like to have the Workman working there or not. Accordingly, if the NrDMC wishes that the Respondent should join back service, they shall give the requisite intimation to the workman directly as also through counsel.

10. If the Respondent, thereafter, joins back in service with the NrDMC, the same shall be subject to the outcome of this writ petition. If the Respondent does not join back service upon being permitted to do so, the

Digitally Signed By:DEVANSHU JOSHI Signing Date:07.12.2021 19:12:29

NrDMC is permitted to move an application for seeking recall of the orders passed under Section 17B of the ID Act.

11. List on 30th March 2022.

PRATHIBA M. SINGH JUDGE DECEMBER 6, 2021/Aman/Ak