Delhi High Court
North Delhi Municipal ... vs Satish on 9 February, 2021
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 6539/2020
% Date of decision: 9th February, 2021
NORTH DELHI MUNICIPAL CORPORATION .....Petitioner
Through : Ms. Namrata Mukim, Standing
Counsel with Ms. Garima Jindal,
Advocate.
versus
SATISH .....Respondent
Through : Mr. Rajiv Agarwal, Advocate.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
Court hearing convened via video-conferencing on account of COVID-19]
RAJIV SHAKDHER, J. (ORAL):
CM APPL. No. 28976/2020
1. This is an application filed on behalf of the respondent/workman
under Section 17B of the Industrial Disputes Act, 1947 [in short „I. D. Act‟].
The petitioner-corporation opposes this application.
2. To be noted, the petitioner-corporation has assailed the award dated
17.10.2019, passed by the concerned labour court, whereby, the labour court
has directed the petitioner-corporation to reinstate the respondent/workman,
and grant him continuity of service, full back wages, and all consequential
benefits.
2.1. The record shows that the respondent/workman had joined the
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petitioner-corporation on 01.01.1993 as a Safai Karamchari. According to
the petitioner-corporation, he was working as a daily wager, and was paid
fixed wages, which were revised from time to time, in consonance with the
Minimum Wages Act, 1948.
2.2. It appears that the respondent/workman, on account of his illness, did
not attend work between 29.02.2008 and 30.08.2010. In the interregnum, the
petitioner-corporation issued a show cause notice to the
respondent/workman on 21.06.2010, whereby, he was, inter alia, asked to
join his duties and report to the Sanitary Superintendent.
2.3. According to the petitioner-corporation, the respondent/workman
neither replied to the show cause notice nor joined his duties. The
petitioner-corporation, thereafter, proceeded to disengage the
respondent/workman from service on 23.07.2010.
2.4. It is in this backdrop that a reference was made to the concerned
labour court on 25.04.2014 by the Govt. of NCT of Delhi [GNCTD]. This
reference culminated in the impugned award dated 17.10.2019.
2.5. The main plank of the petitioner-corporation‟s defence, before the
labour court, was that, for nearly two years, the respondent/workman had
abandoned his duties and, therefore, he was not entitled to any relief. As
indicated above, the labour court was not persuaded by the arguments
advanced on behalf of the petitioner-corporation and resultantly, rendered an
award in favour of the respondent/workman.
2.6. Before I proceed further, an important aspect, which has come
through, and something which the labour court has observed, is contained in
the testimony of the witness cited by the petitioner-corporation, namely,
Hoshiyar Singh, Sanitary Superintendent [MW-1] who inter alia made the
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following crucial statements during the course of his deposition:
(i) The respondent/workman worked continuously and uninterruptedly
between 01.01.1993 and 29.02.2008.
(ii) The respondent/workman fell sick on 29.02.2008 and remained
unwell till 29.08.2010.
(iii) The respondent/workman had lodged his medical certificate as well
as fitness certificate with the petitioner-corporation in respect of the
aforesaid period.
(iv) The respondent/workman‟s name was deleted from the rolls of the
petitioner-corporation w.e.f. 29.02.2008
(v) No notice or pay in lieu of notice was either offered or paid to the
respondent/workman.
(vi) No service compensation/reinstatement compensation was either paid
or offered to the respondent/workman.
(vii) The respondent/workman was neither served with a charge-sheet nor
was any enquiry held before terminating his services.
2.7. Given this position, the argument which Ms. Namrata Mukim, who
appears on behalf of petitioner-corporation, advanced before me that the
respondent/workman was not entitled to any relief either in respect of the
instant application or the final relief because he had abandoned his work for
nearly two years seems, to say the very least, tenuous. To my mind,
respondent‟s/workman‟s absence from work due to sickness which is made
known to the employer cannot be equated with abandonment.
3. That being said, this is an aspect which I would examine, in greater
detail, when the writ petition is, finally, adjudicated upon. At this juncture,
all that I am required to examine is the viability of the application filed by
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the respondent/workman under Section 17B of the I.D. Act.
3.1 In this behalf, Courts have to remain cognizant and make an enquiry
qua the following four aspects:
(i) First, whether there is, in place, an award, passed by a forum referred
to in Section 17B of the I.D. Act which directs reinstatement of the
respondent/workman.
(ii) Second, whether the employer has preferred proceedings against such
an award either in the High Court or in the Supreme Court.
(iii) Third, whether the workman has filed an affidavit stating therein that
he is not employed in any establishment.
(iv) Lastly, whether the workman is employed in any establishment
[during the relevant period] and has received adequate remuneration for the
services rendered. Thus, for the period the workman is found to be
employed no wages are payable by the employer.
3.2. If the answer to first three queries is in the affirmative and to the last
query is in the negative [or partially in the negative i.e. the workman has
worked for a part of the relevant period and not for the entire period], then,
the workman would be entitled to relief under section 17B of the I.D. Act.
The relevant period would commence from the date of the award. [See:
Dena Bank vs. Ghanshyam, (2001) 5 SCC 169]. More pertinently, since
salaries/wages paid under Section 17B of the I.D. Act are considered as
subsistence allowance, these are not refundable even if the employer were to
succeed in the proceedings pending in the High Court or the Supreme Court.
[See: Dena Bank vs. Kiritikumar T. Patel, (1999) 2 SCC 106; Also see:
Rajeshwar Mahto vs. Birla Corpn. Ltd., (2018) 4 SCC 341]. Significantly,
in a given case, the Court is empowered to direct payment of amounts even
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without taking recourse to Section 17B of the I.D. Act. The Court can [if the
facts and circumstances so demand1 where the payment made is beyond the
measure provided in Section 17B of the I.D. Act], direct the workman to file
an undertaking that he would refund the amount received by him over and
above the full last drawn wages. This would not, necessarily, mean that
where the Court issues a direction, while passing an order, under Section
17B of the I.D. Act, to the effect, that the workman would be paid
salary/wages equivalent to his last drawn full wages or minimum wages,
whichever is higher, the difference between the two would have to be
refunded. Each case would have to be dealt with on its own merits qua this
aspect.
4. As would be evident from the record and the narration of facts set forth
hereinabove, there is an award, passed by the labour court, in favour of the
respondent/workman, directing his reinstatement. The said award [i.e. the
impugned award dated 17.10.2019] has been assailed by the petitioner-
corporation in this Court. The respondent/workman has, by way of the
present application, which is, supported by an affidavit, stated that he is not
gainfully employed. However, insofar as this aspect is concerned, Ms.
Mukim has relied upon the reply filed by the petitioner-corporation to
See: Dena Bank v. Ghanshyam, (2001) 5 SCC 169, at page 174:
"13. It must, however, be pointed out that while passing an interlocutory order the
interests of the employer should not be lost sight of. Even though the amount paid by the
employer under Section 17-B to the workman cannot be directed to be refunded in the
event he loses the case in the writ petition (see Dena Bank case [(1999) 2 SCC 106 : 1999
SCC (L&S) 466] ) any amount over and above the sum payable under the said provision,
has to be refunded by him. It will, therefore, be in the interests of justice to ensure, if
the facts of the case so justify, that payment of any amount over and above the
amount payable under Section 17-B to him, is ordered to be paid on such terms and
conditions as would enable the employer to recover the same."
[Emphasis is mine]
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contend that the respondent/workman is gainfully employed. On being
queried, on this aspect, Ms. Mukim stated that the officers of petitioner-
corporation had received information that the respondent/workman was
carrying on the job of collecting garbage from door-to-door in a residential
area situate in C-Block, Vandana Vihar, Nangloi, Delhi. Ms. Mukim also
stated, in support of this plea, that the respondent/workman was earning,
approximately, Rs. 6,000/- to Rs. 7,000/- per month from this job.
4.1. In other words, the contention of Ms. Mukim is that since the
respondent/workman has an alternate source of income he is not entitled to
any relief under Section 17B of the I.D. Act.
4.2. I must indicate that in the course of her arguments, Ms. Mukim also
submitted that since the respondent/workman was a daily wager, he was not
entitled to any relief under Section 17B of the I.D. Act.
5. On the other hand, Mr. Rajiv Agarwal, who appears for the
respondent/workman, in my view, quite correctly, stated that there is no
difference, at least in Industrial Law, between a permanent and a temporary
employee i.e. a daily wager.
6. I tend to agree with Mr. Agrawal that Section 17B of the I.D. Act
makes no such distinction between a permanent employee and a daily
wager. The only aspects, which the Court has to look at, to render a
decision on Section 17B application, are those which are alluded to in
paragraph 3.1 above
7. Therefore, what remains to be addressed is: whether the fact that the
respondent/workman earned money, during the period of his disengagement,
as a Garbage-Collector, should be the reason to deprive him of the relief
under Section 17B of the I.D. Act.?
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7.1 In this behalf, it must be emphasised that the I.D. Act is a social
welfare legislation which empowers the Court to give succour to workmen
till their disputes are, finally, adjudicated upon by taking recourse to Section
17B of the I.D. Act. The succour, which the legislation envisages, is wages
which allow a workman to lead a dignified life. Thus, merely because a
workman, albeit on an ad hoc basis, earns Rs. 6,000/- to Rs. 7,000/- per
month, through garbage collection, to my mind, cannot be the reason to
deprive him of the relief under Section 17B of the I.D. Act.
7.2. That being said, it is important to also lay stress on the fact that the
relief can be denied if the employer is able to inter alia demonstrate that the
workmen is in receipt of adequate remuneration, through employment in an
„establishment‟ or otherwise. Therefore, ad hoc engagement of the kind in
which the respondent/workman is said to be engaged in, to keep his body
and soul together, cannot form the basis for denying him relief under Section
17B of the I.D. Act.
7.3. Certainly, in this case, where the respondent/workman was working
as a Garbage-Collector and earning, according to the petitioner-corporation
Rs.6,000/- to Rs. 7,000/- per month, in my opinion, cannot be a reason to
deprive him of the relief under Section 17B of the I.D. Act.
8. Therefore, for the forgoing reasons, I am inclined to grant the prayer
made in the captioned application. The prayer made in the application is
allowed.
8.1. The petitioner-corporation is directed to pay the respondent/workman,
full last drawn wages, or the applicable minimum wages, whichever is
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higher2.
8.2. The petitioner-corporation will not only pay the arrears for the period
commencing from 17.10.2019 [i.e. the date of the impugned award] up-until
today but will also, hereafter, pay the respondent/workman, wages, based on
the parameters prescribed hereinabove till the adjudication of the writ
petition.
8.3. The arrears of wages, as indicated above, will be paid within the next
five weeks. The petitioner-corporation will pay wages, for the ensuing
period, on or before the 7th day of each month.
9. The application is disposed of in the aforesaid terms.
W.P.(C) 6539/2020 and CM APPL. No. 22889/2020
10. Mr. Agarwal seeks, and is granted further three weeks to file a
counter-affidavit.
10.1. Rejoinder thereto, if any, will be filed before the next date of hearing.
11. List the matter on 30.07.2021.
RAJIV SHAKDHER, J
FEBRUARY 9, 2021
Click here to check corrigendum, if any
See: Delhi Transport Corporation vs. Presiding Officer, Labour Court No. 1, Delhi
and Ors., 2001 SCC OnLine Del 1242.
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Signing Date:14.02.2021
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