South Delhi Municipal ... vs Surender
2021 Latest Caselaw 2610 Del

                                                           Digitally Signed By:DEVANSHU
                                                           JOSHI
                                                           Signing Date:23.09.2021 14:50:25


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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Date of Decision: 22nd September, 2021
+                         W.P.(C) 7741/2020

       SOUTH DELHI MUNICIPAL CORPORATION        ..... Petitioner
                    Through: Mr. Arun Birbal and Mr. Sanjay
                              Singh, Advocate.
                    versus
       SURENDER                                 ..... Respondent
                    Through: Ms. L. Gangmei, Advocate
       CORAM:
       JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through video conferencing. CM APPL. 25529/2020 (for exemption)

2. Allowed, subject to all just exceptions. Application is disposed of. CM APPL. 11598/2021 (under Section 17B of ID Act)

3. The present application has been filed by the Respondent/Workman seeking payment of wages under Section 17B of the Industrial Disputes Act, 1947 (hereinafter "Act").

4. Ld. Counsel for the Petitioner/SDMC submits that no reply has been filed as they do not have any evidence that the Respondent/Workman has taken up any alternative employment.

5. The Respondent/Workman has filed an Affidavit stating that he is not gainfully employed in any establishment. The said Affidavit is dated 15 th March, 2021. Ms. Gangmei, ld. Counsel for Respondent/Workman seeks payment of wages under Section 17B of the Act, from the date of the

Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:50:25

impugned Award i.e. 13th November, 2019.

6. The question that arises in this matter relates to the date from which wages under Section 17B of the Act are to be granted to the Respondent/Workman. In Uttaranchal Forest Development Corporation and Ors. v. K.B. Singh and Ors. [(2005) 11 SCC 449], the Hon'ble Supreme Court held that the entitlement for wages would be from the date of filing of the Affidavit by the Workman. The relevant portion of the said judgment reads as under:

"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."

7. Ms. Gangmei, ld. Counsel for the Respondent/Workman relies upon the Judgment in Delhi Transport Corporation v. Inderjeet Singh [L.P.A. No. 392 of 2008 decided on 29th July, 2008] to distinguish the Judgment in Uttaranchal (supra) where the ld. Division Bench of this Court has held as under:

"4. As pointed out by the learned Single Judge, in the instant case the workman had categorically averred in his application, supported by an affidavit, that he was unemployed since the date of termination. Without countering this, DTC had sought to oppose the application under Section 17-B ID Act on grounds relating to the merits of the writ petition. The DTC did not produce any evidence to show that the workman was gainfully employed since his

Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:50:25

termination. This Court has, in several judgments, explained the settled position in law that the workman is entitled, in an application under Section 17B ID Act, to be paid the last drawn wages or the minimum wages whichever is higher, subject of course to fulfilling the other conditions under Section 17B ID Act. Further it has been held that the payment should be from the date of the Award. Some of these decisions are Indra Perfumery Co. through Sudershab Oberoi v. Presiding Officer MANU/DE/1304/2003: (2004)IILLJ413Del , Delhi Development Authority v. Smt. Omvati (decision dated 24th May 2006 in LPA No. 84 of 2002), Delhi Transport Corporation v. Presiding Officer, Labour Court 2003 VI AD (Del) 2005, Raj Gariha Vishram Sadan v. Vijay Kate (2007) ii LL J 555 and Delhi Transport Corporation v. Ek Lakh Hussan MANU/DE/0795/2008 : 2008 (103) DRJ 455. This Court has, in its decisions, relied upon those of the Supreme Court in Dena Bank (1) v. Kirti Kumar T. Patel MANU/SC/0876/1999 : (1999)2SCC106 and Dena Bank (II) v. Ghanshyam JT 2001 (Supp.1) SC 22.

5. The decisions in Uttaranchal Forest Development Corporation as well as Raptakos Brett & Co. Limited are short orders that do not discuss either of the above Supreme Court decisions. A reading of the orders would show that they were peculiar to the facts of those cases and did not alter the law as explained in Dena Bank-I and Dena Bank- II. As regards the date from which the amount under Section 17-B ID Act would become payable, the following passage in the decision in Dena Bank-II is a complete answer (SCC p.174):

12. We have mentioned above that the import of Section 17-B admits of no doubt that Parliament intended that the workman should get the last drawn wages from the date of the award till the challenge to the award is finally decided which is in accord with the Statement of Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17-B was inserted in the Act. We have also pointed out above that

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Section 17-B does not preclude the High Courts or this Court from granting better benefits - more just and equitable on the facts of a case than contemplated by that provision to a workman. By an interim order the High Court did not grant relief in terms of Section 17-B, nay, there is no reference to that section in the orders of the High Court, therefore, in this case the question of payment of full wages last drawn" to the respondent does not arise. In the light of the above discussion the power of the High Court to pass the impugned order cannot but be upheld so the respondent is entitled to his salary in terms of the said order.

6 . As regards the delay by the workman in approaching the Court for relief under Section 17-B ID Act, it requires to be recalled that the workman could have filed such an application only after the DTC filed its writ petition. The object of the provision is that the wages should not be denied to the workman when he has been able to state on affidavit that he has remained unemployed and the employer is unable to show anything to the contrary. In the circumstances, the benefit under Section 17B ID Act cannot be denied to the workman on the ground that he filed the application three years after the writ petition was filed by the DTC. The entitlement of the workman to wages under Section 17B hinges on whether in fact he remained unemployed since his termination. That it is a question of fact. In light of the unrebutted claim of the workman to that effect in the instant case, his application under Section 17B ID Act had to be allowed."

8. However, it is relevant to note that a subsequent Division Bench of this Court in Municipal Corporation of Delhi v. Santosh Kumari & Anr. in LPA No. 165/2012 decided on 24th August, 2012, considered both the above judgments in Uttaranchal (supra) and Delhi Transport Corporation

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(supra), and held that normally the Workman ought to be paid wages with effect from the date of the impugned Award. If the Workman delays the filing of the application for payment of wages under Section 17B of the Act, it would be within the discretion of the writ court to direct the payment of the wages from the date of the application. The reasoning given by the ld. Division Bench is that the provisions of Section 17B of the Act cannot cause an undue burden on the employer which would make it unequivocal as the employer cannot verify whether the Workman is employed in another establishment gainfully. The ld. Division Bench has held as under:

"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, 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.

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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 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."

9. Thus, in view of the above, the question in the present case is whether there was any undue delay by the Respondent/Workman in filing the application under Section 17B of the Act. The impugned Award, in the present case, is dated 13th November, 2019. Vide the first order dated 9th October, 2020, the impugned Award was stayed, subject to deposit of Rs.9,00,000/-. The said amount has been deposited. Litigation expenses of Rs.25,000/- have also been paid to the Respondent/Workman. Thereafter, the Respondent/Workman appeared on two occasions i.e., on 16th December, 2020 and 17th February, 2021. The application under Section 17B of the Act was listed for the first time on 25th March, 2021. It was averred in the

Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:50:25

application, supported by the Affidavit dated 15th March, 2021, that the Respondent/Workman is not gainfully employed in any establishment from the date of the impugned Award till date. No reply to the application has been filed by the Petitioner/SDMC. The averments in the application and the Affidavit dated 15th March, 2021 also remain uncontroverted.

10. In the facts and circumstances of the present case, since there has been no undue delay on behalf of the Respondent/Workman in approaching the Court under Section 17B of the Act, it is directed that the last drawn wages or the minimum wages, whichever is higher, shall be paid to the Respondent/Workman, w.e.f. 13th November, 2019, that is from the date of the impugned Award. The arrears of wages shall be paid within eight weeks. Going forward, monthly payments shall be made to the Respondent/Workman, till the disposal of this petition.

11. Application is disposed of.

WP(C) 7741/2020 & CM APPL. 25528/2020 (stay)

12. Counter Affidavit on behalf of the Respondent/Workman is on record. Rejoinder thereto, if any, be filed within six weeks.

13. Interim application already stands disposed of.

14. List the matter for hearing on 6th January, 2022.

PRATHIBA M. SINGH JUDGE SEPTEMBER 22, 2021 mw/AD