Delhi High Court
Ircon International Ltd. vs Union Of India (Uoi) And Ors. on 26 April, 2006
Equivalent citations: 130(2006)DLT309, (2007)ILLJ96DEL
Author: Gita Mittal
Bench: Gita Mittal
JUDGMENT Gita Mittal, J.
CM No. 11937/2004 (filed by respondent Nos. 2-21, 24, 26-32, 34, 35, 37-38) and CM No. 14302/2004 (filed by respondent No. 23 Shri Triloki Nath Sharma)
1. The writ petition was filed in July, 2004 and by an order passed on 14th July, 2004, this Court had stayed the operation of the award dated 27th April, 2004 subject to the petitioner depositing an amount of Rs. 1,00,000/- with the Registrar General of this Court. The respondents/applicants in this application are claiming to be unemployed workmen in whose favor the award dated 27th April, 2004 has been passed and are praying for grant of interim wages during the pendency of the writ petition with effect from the date of the award.
2. The petitioner has filed a reply challenging the claim of the workmen and urging that they are disentitled to the grant of the interim relief on various technical reasons including a challenge to the correctness of the affidavit filed by the workman and also on the merits of the controversy which has been raised in the main writ petition. The application was opposed largely on the ground that the application was an abuse of the process of this Court and has been filed malafide. It has also been urged vehemently with all the force at command of Shri U.N. Bachawat, learned senior counsel for the petitioner that unless a proper affidavit is filed, the application under Section 17B of the Industrial Disputes Act, 1947 will not be considered. In this behalf, reliance was placed on Vivekanand Sethi v. Chairman, J&K Bank Ltd. and Ors. and Satnam Overseas (Export) v. State of Haryana and Anr. It has been contended that the workmen knew that the affidavit was not proper and yet persisted with the submission that it was correct. For this reason, the workman was disentitled to relief.
3. In this behalf, Mr. Sanjay Parikh, learned Counsel for the applicants had also placed reliance on State of W.B. and Ors. v. Shivananda Pathak and Ors. to the effect that strict rules of procedures have no applicability to writ proceedings.
4. I have heard learned Counsel for the parties and perused the available record. So far as the record is concerned, there can possibly be no dispute to the same. My attention has been drawn to the fact that prior to the filing of this application, the workmen had filed CM 10076/2004 which was also filed under Section 17B of the Industrial Disputes Act. This application was filed on or around 16th August, 2004 on behalf of the workmen on the plea that they were all unemployed since the date of the illegal termination of their service and that they have nothing to survive on and were consequently on the verge of starvation. Consequently, the workmen prayed for grant of interim wages by this application filed on 16th August, 2004. However, an objection was taken with regard to the affidavit which was filed in support of the application. The application was supported by the sole affidavit of Shri Surender Singh, Advocate who was the general secretary of the Rashtriya Mazdoor Congress(INTEC) U.P. It was stated that respondent Nos. 2-38 are members of this union which is affiliated with the Rashtriya Mazdoor Congress(INTEC) which was espousing the cause of the workmen.
5. In the light of this objection, by an order passed on 27th August, 2004, this application was dismissed with liberty to the respondents to file a fresh application under Section 17B of the Industrial Disputes Act, 1947. It has been urged on behalf of the petitioner by learned Counsel that this application was dismissed on an objection pointed out by the petitioner to the effect that there was no affidavit in accordance with law in support of the application.
6. Apprehending a technical objection with regard to the maintainability of a subsequent application for the same relief, the workmen thereafter filed CM 11423/2004 seeking recalling of the order dated 27th August, 2004 whereby CM 10076/2004 was dismissed. The workmen also prayed in this application for leave to the respondent Nos. 2-38 to withdraw CM 10076/2004 with liberty to file a fresh application for the relief prayed therein.
By an order dated 28th September, 2004, this Court disposed of this application granting liberty to the workmen to file a fresh application.
7. It is thereafter that the present application has been filed on or about 5th October, 2004 which was supported by the affidavit of Shri Surender Singh, Advocate as general secretary of the Rashtriya Mazdoor Congress(INTEC) as well as individual affidavits of the applicants being respondent Nos. 2-9, 10-21, 24, 26-32, 34-35 and 37-38.
8. This application came up for hearing on 8th October, 2004 when the following order was passed:
8.10.2004 Present : Mr. Saurabh Mishra for the petitioner Ms. Kusum Singh for the respondent W.P.(C) 10941/2004 & CM 11937/2004 Learned Counsel appearing for the petitioner submits that he would verify before the next date of hearing the last drawn wages by the workman and also take instructions for depositing said amount in consonance of the provisions of Section 17B of the Act. Renotify on 7.12.2004.
In the meanwhile liberty to file reply also granted.
Sd/-
Swatanter Kumar, J.
9. It would appear that the petitioner was thereupon required to deposit the amount in consonance with the provisions of Section 17B of the Act. This aspect of the matter appears to have escaped notice and on subsequent dates the matter travelled into filing of a reply to the application.
On 7th December, 2004, the petitioner sought time and was granted time to file a reply in response to this application being CM 1197/2004 before the next date of hearing.
10. In the meantime, respondent No. 23 Shri Triloki Nath Sharma filed CM 14302/2004 under Section 17B of the Industrial Disputes Act, 1947 and notice was issued to the petitioner on this application as well.
11. The matter was thereafter listed on 16th December, 2004 when the court noticed that an additional affidavit dated 15th December, 2004 has been filed by the petitioner. The respondents were permitted to file a reply of this affidavit. Time was also given to the petitioner to file a reply to CM 14302/2004 filed by respondent No. 23. It was further directed that the application under Section 17B of the Industrial Disputes Act, 1947 would be heard in the first instance and thereafter the main matter would be taken up for hearing.
12. The petitioner however has filed CM 1050/2005 stating that the application under Section 17B of the Industrial Disputes Act be dismissed as the workmen have given wrong information about the last drawn wages. These applications were taken up for hearing on 28th September, 2005 when an objection was raised by learned senior counsel appearing for the petitioner that the affidavits which were filed in support of the applications of the respondents were not in accordance with the law. The following order was recorded on 28th September, 2005:
2 8.09.2005 Present : Mr. U.N.Bachawat, Sr. Advocate with Mr. B.L. Anand, Mr. Saurabh Mishra & Mr. A.P. Nagrath for the petitioner Mr. Sanjay Parekh with Mr. Surender Singh & Ms. Kusum Suri for the respondent +CM 10076/2004 & CM 14302/2004 in W.P ( C ) No. 10941/2004 An objection has been raised by the learned senior counsel appearing for the petitioner that the affidavits which have been filed by the workmen in support of these applications are not in accordance with law. It is pointed out that the verification of the affidavits is not correct and, therefore, the depositions of facts in the affidavit does not deserve any credence. Reliance in this behalf has been placed in three judgments of the Apex Court , & AIR 1992 SC 65. It is further submitted that there being no affidavit in accordance with Section 17B of the Industrial Disputes Act, 1947, these applications have to be rejected. The statement of employment or unemployment of a workman is submitted which is purely within his knowledge of the workmen, subject to any material which the management is able to place in contravention thereto. It is submitted that the affidavits of the workmen wherein it has been stated that the depositions is either 'to the best of knowledge and belief' or 'to the best of knowledge' clearly shows that there is no deposition in law with regard to the fact unemployment of the workman.
Learned senior counsel appearing for the petitioner has further contended that the affidavits have been filed and sworn on or around 12.9.2004, while the application states that it has been filed on 4.10.2004. It is contended that for this reason as well, there is no affidavit in support of the application.
Learned Counsel appearing for the applicants prays for an opportunity to examine this matter.
List for further consideration on 16.11.2005.
It is made clear that there is no expression of opinion in the order which has been noted regarding the submissions made on behalf of the petitioner today.
13. In this background, respondent Nos. 2-22 and 23 filed fresh affidavits in support of their applications wherein it was reiterated that the applicants were unemployed from the date of illegal termination of service and were undergoing immense financial problems due to non-payment of Section 17B benefits. An oral request was made to permit the workmen to place the same on record which was accepted by the order passed on 16th November, 2005. Opportunity was given to the petitioners to place their response to these affidavits. The petitioner has however filed CM 15054/2005 stating that the petitioner has a good case on merits and that the writ petition be heard and disposed of simultaneously with the disposal of the application under Section 17B. The petitioners also filed a reply to the additional affidavits which were filed by respondent Nos. 2-3, 5, 9, 12-21, 24, 26-32, 34-35, 37-38 and to that filed separately by respondent No. 23.
14. I may notice the case of the respondents in the present applications seeking interim wages (CM 11937/2004 & CM 14302/2004). In these applications, the workmen have stated that in accordance with Section 17B of the Industrial Disputes Act, 1947, after the publication on 5th May, 2004 of the industrial award dated 27th April, 2004, all the respondents/workmen whose services had been terminated illegally, became entitled to reinstatement in terms of the industrial award. It has been stated that the workmen were unemployed since the date of the illegal termination of their services and that they had nothing to survive on and were at the verge of starvation. The workmen have stated in the application that an earlier application under Section 17B of the Industrial Disputes Act, 1947 had been withdrawn by the respondents herein with liberty to file a fresh application. The workmen have prayed for grant of interim wages on the basis of last drawn wages from the date of the award and during the pendency of the writ petition.
15. This application was supported by affidavits which were objected to on behalf of the petitioner. It was pointed out that the verification stated that the contents of the affidavit were true and correct to the best of the knowledge and belief of the deponent. It has also been objected that the address of the workmen as shown in these affidavits was at different places in different states as Uttar Pradesh, Bihar, Uttaranchal and Madhya Pradesh, yet all the affidavits were shown as having been attested by one notary public on 12th September, 2004 at Agra which was wholly impossible.
16. In these circumstances, fresh affidavits of all the workmen were filed giving their addresses and stating that at the time of deposition and attestation of the affidavits, the workmen were in Delhi. The affidavits categorically state that the workmen are unemployed since the date of termination of their service on 3rd June, 1998 till date. It is also stated that grave difficulty is being faced on account of deprivation of the wages. These affidavits have been sworn and attested on 28th October, 2005.
17. It has been vehemently objected on behalf of the petitioner that in view of the fact that the petitioner has a good case on the merits, consequently these applications ought not to be granted and that the writ petition deserves to be heard immediately. In this behalf, I have already noticed hereinabove, the order dated 16th December, 2004 wherein it has been directed that the application under Section 17B of the Industrial Disputes Act, 1947 would be heard in the first instance and thereafter the main petition would be taken up for hearing. No objection has been raised by the petitioner at the time this order was recorded.
18. It has further been contended that the manner in which the workmen have filed applications under Section 17B and the affidavits in support thereof would show that an incorrect statement with regard to the unemployment was being made. According to the petitioner, in CM 10076/2004, which is the first application filed under Section 17B, it was stated that all the 37 workmen were unemployed. Upon directions being given by this Court to file individual affidavits, only 32 respondents filed the affidavits. After defects were pointed out in the affidavits which were filed, only 30 affidavits have been filed. The petitioner has submitted that respondent No. 20 Shri Vijay Singh has sworn a false affidavit. It has been submitted that he is an ex-serviceman and that on account of the service rendered by him in the Indian Air Force wherefrom he has retired, he is receiving retirement pension. For reasons of concealment of the fact of his being a pensioner, he is disentitled to grant of any order in his favor granting him wages. It is further submitted that Shri Dinesh, respondent No. 30 had filed an individual claim before the labour court at Faridabad which he had subsequently withdrawn. According to the petitioner, therefore, this would be admission of the fact that he may not be a party to the industrial adjudication which culminated in the Award dated 27th April, 2004 and consequently he would be disentitled to award of any wages under Section 17B of the Industrial Disputes Act.
19. So far as respondent No. 23 Shri Triloki Nath Sharma is concerned, it has been stated that he is residing in the village where he is working as agriculture labour. So far as such engagement is concerned, it would be appropriate to refer to judicial pronouncements in this behalf.
20. The jurisdiction to grant interim wages during the pendency of an establishment's challenge to an industrial award granting reinstatement to workman is contained in Section 17B of the Industrial Disputes Act, 1947. The statutory provision reads thus:
17B. Payment of full wages to workman pending proceedings in higher courts - Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court.
Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.
By judicial expansion, it has been held by the Apex Court that the jurisdiction of the High Court which is seized of a writ petition making such a challenge on behalf of the management, is not confined to the rigours and restrictions laid down under Section 17B. It has also been held that the wages which are awarded to the workman are in the nature of non-refundable subsistence allowance and that equities have to be balanced while considering an application for grant of interim wages. The wages which are amended are not confined to the last drawn wages and the workman however has to establish that he is not gainfully employed in order to be entitled to an order for award of wages.
21. The previous view of several High Courts to the effect that Section 17B of the Industrial Disputes Act precluded the High Court from grant of any amount in excess of the limitation of last drawn wages as provided in Section 17B was not accepted by the Apex Court. In this behalf, the Apex Court by judicial pronouncement has expanded the scope of permissible relief which the High Court may grant while considering an application for grant of interim wages to a workman during the pendency of a challenge to an award directing reinstatement into service of the workman is concerned.
It would be useful to also notice the view taken by the Supreme court while considering what would be a fair interpretation of wages to be given to a workman. The authoritative and binding pronouncements of law on this aspect is also to be found in the pronouncements of the Apex Court in Dena Bank v. Kirtikumar T. Patel and JT 2001 (Supp. I) SC 229 entitled Regional Authority, Dena Bank and Anr. v. Ghanshyam.
22. In Dena Bank v. Kirtikumar T. Patel wherein the court held thus:
23. As regards the powers of the High Court and the Supreme Court under Article 226 and 136 of the Constitution, it may be stated that Section 17B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour Court, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass an order directing payment of a higher amount tot he workman if such higher amount is considered necessary in the interest of justice. Such a direction would be dehors the provisions contained in Section 17B and while giving the direction, the court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. that in exercise of the power under Articles 226 and 136 of the Constitution, an order can be passed denying the workman the benefit granted under Section 17B. The conferment of such a right under Section 17B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Articles 226 and 136 of the Constitution.
23. Equally well settled is the principle that the jurisdiction of the High Court to make an appropriate order granting interim wages to a workman who has an award directing his reinstatement into service is derived not from Section 17B of the Industrial Disputes Act, 1947 alone. Such source of power is to be found in Article 226 of Constitution of India which empowers the High Courts to examine the legality and validity of industrial awards. This issue also arose for consideration before the Apex Court in JT 2001 (Supp. I) SC 229 entitled Regional Authority, Dena Bank and Anr. v. Ghanshyam. The Apex Court held thus:
12. We have mentioned above that the import of Section 17B 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 the Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17B was inserted in the Act. We have also pointed out above that Section 17B 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 interim orders the High Court did not grant relief in terms of Section 17B, nay, there is no reference to that Section 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.
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 17B to the workman cannot be directed to be refunded in the event he loses the case in the writ petition (see Dena Bank case) 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 17B to him, is ordered to be paid on such terms and conditions as would enable the employer to recover the same.
24. These issues have arisen for consideration in several cases and also stand stated in judicial pronouncements of this Court as well. I may advert to the judgment of this Court reported at 2002 II AD Delhi 112 DTC v. Presiding Officer, Labour Court No. 1, Delhi and Ors. wherein the court held thus:
7. Management counsel have belaboured the observations of the Hon'ble Supreme Court in Dena Bank 1 (supra) to the effect that the wages contemplated under Section 17B of the I.D. Act partake of the nature of a subsistence allowance and hence should not exceed the actual wages last drawn by the workman at that point of time when his employment was terminated. In the first place, this observation was made in the context of the payments made pursuant to orders under Section 17B of the I.D. Act being non-recoverable and non-adjustable. Secondly, the Court must endeavor to give a purposeful interpretation to a statutory provision, in conformity with its Objects. The only exception or limitation is where the language used is such that the only meaning extractable does not permit such an interpretation. Thus, if a subsistence allowance was intended to be given in Section 17B of the I.D. Act, it could have been easily stated so. A pedantic approach is always to be deprecated. In C.W.P. No. 2112 of 1999 it has been highlighted by Mr. Sabharwal himself that the workperson was a daily-wager and she was earning only Rs. 11/- and that the DDA would submit that it is these wages that should be granted to her. Even if Mr. Sabharwal's arguments were to be accepted, can this sum of Rs. 11/- be considered as a 'subsistence allowance'. This submission has strengthened my resolve and understanding that under Section 17B of the I.D. Act, the wages should not fall below the time when orders under the Section are to be passed, a moderation may reasonably be effected. It was his contention, however, that while minimum wages could be ordered in place of `last drawn wages' if these are below the minimum wages, once this is carried out there would be no further justification for ordering the payments under Section 17B of the I.D. Act to keep pace with the increase in the minimum wages, once this is carried out there would be no further justification for ordering the payments under Section 17B of the I.D. Act to keep pace with the increase in the minimum wages. To the contrary, Ms. Sunita Bhardwaj, who appears for the workmen drew attention to the enduring observations of the Hon'ble Supreme Court in Crown Aluminium Works v. Their workemn 1958 (1) LJJ 1 to the effect that there is 'one principle which admits of no exceptions. No industry has a right to exist unless it is able to pay to its workmen at least a bare minimum wages. It is quire likely that in under-developed countries, where unemployment prevails on a very large scale, unorganized labour may be available on starvation wages, but the employment of labour on starvation wages cannot be encouraged or favored in a modern democratic welfare State.' Even though these observations were made whilst the Court was concerned with the fixation of a wage structure, they are of ubiquitous application. In Sanjit Roy v. State of Rajasthan it has been observed that in so far as Rajasthan Famine Relief Works Employees (Ememption from Labour Laws) Act exempts and excludes the applicability of the Minimum Wages Act in relation to workmen employed in famine relief work and permits payment less than the Minimum Wages, it offends Article 23 of the Constitution and is ultra vires. Similar views have also been expressed in Peoples Union for Democratic Rights and Ors. v. Union of India and Ors. . On the strength of all these precedents it appears inevitable and inescapable that wherever wages are in contemplation, they cannot fall below the minimum wages, whether the inquiry is on wage fixation, fair wage or interim relief under Section 17B of the I.D. Act, or whatever.
25. The judgment of the learned Single Judge in DTC v. Presiding Officer, Labour Court I and Ors. was assailed before the Division Bench which rejected the challenge thereto in its judgment reported at 2003 VI AD Delhi 2005 also entitled DTC v. Presiding Officer. The Division Bench held thus:
6. On the issue of whether the payment under Section 17B of the Act should be from the date of the award, the learned Single Judge's judgment analyzing the legislative intendment is unassailable. The learned Single Judge in our view has rightly come to the following finding after taking into account the law laid down by the Hon'ble Supreme Court in Dena Bank II:
Before Section 17B was introduced there was no bar for Courts for awarding wages. Of course the workmen had no right to claim it, this section recognizes such a right. To construe it in a manner detrimental to workmen would be to defeat its object. This further fortifies the view that the wages to be granted in this Section can be from the date of the Award especially since the 'Objects' of the amendment clearly indicate/specify so. In Regional Authority, Dena Bank and Anr. v. Ghanshyam JT 2001 (Suppl.1) SC 229, the Hon'ble Supreme Court has considered its previous view in Dena Bank I (Supra) and observed that 'the workman should get the last drawn wages from the date of the Award till the challenge to the Award is finally decided....' On first principles, the Apex Court has held that Orders under Section 17B of the I.D. Act should commence with effect from the date of the Award, thus leaving no scope any longer for debate.
Thus on the issue of the date from which payment under Section 17B is to be made, we affirm the view taken by the learned Single Judge.
7. In so far as reliance by the appellants on Dena Bank I on the question of minimum wages exceeding last drawn wages is concerned, the issue was crystallized by the Hon'ble Supreme Court as to whether the 'full wages drawn' contemplated by Section 17B of the Act meant wages drawn at the time of termination of employment or wages which would have been drawn on the date of the Award. It is only in this context that the Hon'ble Supreme Court observed that the phrase 'full wages last drawn' must be given its plain and material meaning.
26. The Division Bench of this Court in Indra Perfumery v. Sudarshab therein has also held that this Court is amply empowered to direct payment of wages with effect from the date of passing of the award. The court in Indra Perfumery Co. thr. Sudershab Oberoi v. Presiding Officer and Ors. 2004 III AD (Delhi) 337 held:
10. The Court is examining the legislation, which is a welfare legislation. The Labour Court on arriving at a conclusion that dismissal/termination is illegal, has to direct reinstatement of the workman with full back wages. In the instant case, in view of the order, the workman was entitled to not only the back wages, but was also entitled to get current wages, unless he had refused to work. If the employer, instead of reinstating the workman, challenges the award and obtains stay order, the workman will not get the benefit of the order which ought to flow from the date of the order. It is in view of this, when an order is made by the Labour Court, the benefit must flow from the date of the order passed. Section 17B of the Act protects both the sides during the pendency of the proceedings in the High Court and if the proceedings are not pending, then the workman cannot be denied the denied the benefit of the order made by the Labour Court. It is in view of this, it would be just and proper to say that the workman is entitled to get the benefit of the order from the date of the passing of the order.
27. In the Sanjit Roy case (supra) related to a case where the workman was engaged for famine relief and it was urged by the state that for this reason applicability of the Minimum Wages Act was to be excluded. Even in these facts the final court held thus:
4. If this be the correct position in law, it is difficult to see how the constitutional validity of the Exemption Act in so far as it excludes the applicability of the Minimum Wages Act, 1948 to the workmen employed in famine relief works can be sustained. Article 23, as pointed out above, mandates that no person shall be required or permitted to provide labour or service to another on payment of anything less than the minimum wage and if the Exemption Act, by excluding the applicability of the Minimum Wages Act, 1948, provides that minimum wage may not be paid to a workman employed in any famine relief work, it would be clearly violative of Article 23. The respondent however contended that when the State undertakes famine relief work with a view to providing help to the persons affected by drought and scarcity conditions, it would be difficult for the State to comply with the labour laws, because if the State were required to observe the labour laws, the potential of the State to provide employment to the affected persons would be crippled and the State would not be able to render help to the maximum number of affected persons and it was for this reason that the applicability of the Minimum Wages Act, 1948 was excluded in relation to workmen employed in famine relief work. This contention, plausible though it may seem is, in my opinion, unsustainable and cannot be accepted. When the State undertake famine relief work, it is no doubt true that it does so in order to provide relief to persons affected by drought and scarcity conditions but nonetheless, it is work which enures for the benefit of the State representing the society and if labour or service is provided by the affected persons for carrying out such work, there is no reason why the State should pay anything less than the minimum wage to the affected persons. It is not as if a dole or bounty is given by the State should pay anything less than the minimum wage to the affected persons. It is not as if a dole or bounty is given by the State to the affected persons in order to provide relief to them against drought and scarcity conditions nor is the work to be carried out by the affected persons worthless or useless to the society so that under the guise of providing work what the State in effect and substance seeks to do is to give a dole or bounty to the affected persons. The Court cannot proceed on the basis that the State would undertake by way of famine relief, work which is worthless and without utility for the society and indeed no democratic State which is administered by a sane and sensible Government would do so because it would be sheer waste of human labour and resource which can usefully be diverted into fruitful and productive channcels leading to the welfare of the community and creation of national asset or wealth. It is difficult to appreciate why the State should require the affected persons to provide labour or service on work which is of no use to the society, instead of simply distributing dole or bounty amongst the affected persons. There is no reason why the State should resort to such a camouflage. The presumption therefore must be that the work undertaken by the State by way of famine relief is useful to the society and productive in terms of creation of some asset or wealth and when the State exacts labour or service from the affected persons for carrying out such work, for example, a bridge or a road, which has utility for the society and which is going to augment the wealth of the State, there can be no justification for the State not to pay the minimum wage to the affected persons. The State cannot be permitted to take advantage of the helpless condition of the affected persons and exact labour or service from them on payment of less than the minimum wage. No work of utility and value can be allowed to be constructed on the blood and sweat of persons who are reduced to a state of helplessness on account of drought and scarcity conditions. The State cannot under the guise of helping these affected persons exact work of utility and value from them without paying them the minimum wage. Whenever any labour or service is taken by the State from any person, whether he be affected by drought and scarcity conditions or not, the State must pay, at the least, minimum wage to such person on pain of violation of Article 23 and the Exemption Act in so far as it excludes the applicability of the Minimum Wages Act, 1948 to workmen employed on famine relief work and permits payment of less than the minimum wage to such workmen, must be held to be invalid as offending the provisions of Article 23. The Exemption Act cannot in the circumstances be relied upon by the respondent as exempting it from the liability to pay minimum wage to the workmen engaged in the construction work of Madanganj Harmara Road.
28. In People's Union for Democratic Rights v. Union of India AIR 1982 SC 1472, it was held by the Supreme Court that:
...we are, therefore, are of the view that where a person provides labour of service to another for remuneration which is less than the minimum wages, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right minimum wages to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied.
I must, therefore, hold consistently with this decision that where as person provides labour or service to another for remuneration which is less than the minimum wages, the labour or service provided by him clearly falls within the meaning of the words 'forced labour' and attracts the condemnation of Article 23. Every person who provides labour or service to another is entitled at the least to the minimum wage and if anything less than the minimum wage is paid to him he can complain of violation of his fundamental right under Article 23 and ask the court to direct payment of the minimum wages to him so that the breach of Article 23 may be abated.
29. It is therefore well settled that the obligation to pay minimum wages is as derived from the provisions of the Constitution. It is also well settled that minimum wages notified by the authorities are a fair amount of what would be required to be paid to a workman to enable the workman to keep body and soul together.
Therefore, for the sole purpose of arriving at an adequate amount of subsistence allowance, the minimum wages notified by authorities are a fair index and would require to be paid to the workman.
Thus, while exercising jurisdiction under Article 226 of the Constitution of India, the court is adequately empowered to grant relief beyond the restriction of Section 17B of the Industrial Disputes Act and can make an order granting interim wages beyond the last drawn wages. It has also been pronounced in several judicial pronouncements including by the Division Bench of this Court that an order in this behalf can be made effective from the date of passing of the industrial award in favor of the workman and that the minimum wages notified by the authorities under the Minimum Wages Act are a fair amount that deserves to be paid to the workman as subsistence allowance.
30. So far as the expression 'gainful employment in an establishment' is concerned, it has been held by the courts that the self-employment too is not employment in an establishment. This question fell for consideration before the Apex Court in entitled Rajinder Kumar Kundra v. Delhi Administration while considering the question relating to award of back wages, the court noticed thus:
It was next contended on behalf of the appellant that reinstatement with full back wages be awarded to him. Mr. P.K. Jain, learned Counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his cross-examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal depot, and that he and the members of his family lived with his father-in-law and that he had no alternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal depot, it cannot be said that the appellant was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for back wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back wages and all consequential benefits.
31. In 2000 1 LLJ 1012 entitled Taj Services Limited v. Industrtial Tribunal - 1 and Ors. it has been held that:
6. Workmen can be denied the benefits under Section 17B of the Industrial Disputes Act only when it is proved to the satisfaction of the Court that the workmen have been employed and have been receiving adequate remuneration during the period of pendency of the writ petition. In the case of workmen other than respondent Nos. 2, 4 & 10 there is no allegation by the management that they have been employed and have been receiving adequate remuneration during the pendency of the writ petition. Even in the case of the respondent Nos. 2, 4 & 10 the allegation is that they are running their own business but the said allegation is denied by the learned Counsel for the respondents. According to the learned Counsel for the respondents, even if the survival of himself and his family, it will not disentitle the workman for the benefits under Section 17B of the Industrial Disputes Act. The learned Counsel for the respondents also contended that the proviso to Section 17B of the Industrial Disputes Act would be attracted only in the case of the employment under another employer and receivinHg adequate remuneration. I find force in the contention of the learned Counsel. As per Section 17B the workman is required to file an affidavit to the effect that he had not been 'employed in any establishment'. Hence under the proviso to Section 17B of the Industrial Disputes Act what is required to be proved by the employer is that the workman had been employed in any establishment and had been receiving adequate remuneration from such employment. Being employed for remuneration in an establishment means employment under another employer. It is different from running one's own business or trade in order to remain alive to see the end of the litigation. Hence I accept the contention of the learned Counsel for workmen that respondents 2, 4 and 10 cannot be denied the benefit under Section 17B of the Industrial Disputes Act on the ground that they are running their own business and are receiving profit from such business.
7. At any rate, apart from the averments in the reply of the employer, there is no sufficient material before this Court to come to the conclusion that respondent Nos. 2, 4 and 10 have been running the alleged business. Also there is nothing to prove that they have been receiving adequate remuneration. Once the workman has filed an affidavit to the effect that he had not been employed in any establishment during the period of pendency of the proceedings in Court, t he onus is on the employer to prove to the satisfaction of the Court that the workman had been so employed and had been receiving adequate remuneration. In this case the employer has not discharged his duty of proving to the satisfaction of this Court that the above mentioned three workmen had been employed in any establishment and had been receiving adequate remuneration during the pendency of the writ petition. Hence I do not find any reason to deny the benefits of Section 17B of the Industrial Disputes Act to the workmen including respondent Nos. 2, 4 & 10.
32. It would be useful to advert to the pronouncement of this Court reported at 109 (2004) DLT 1 entitled Birdhi Chand Naunag Ram Jain v. P.O., Labour Court No. IV and Ors. In this case in answer to the workman's application under Section 17B of the Industrial Disputes Act, 1947 management allegation that the workman was selling miscellaneous items in front of Birla Mandir, New Delhi, the workman filed a rejoinder that the amount generated by this activity was not sufficient to sustain his family. Upon consideration of the rival contentions and judicial pronouncements on this issue, the court held thus:
In any event, self-employment is not a norm for denying back wages as the Section 17B of the ID Act clearly stipulates employment in an establishment. Respondent No. 3/applicant is clearly not employed in any establishment. If in order to sustain himself, the respondent No. 3 enters into a self-employed vocation, it cannot be termed as `employment in an establishment' contemplated by Section 17B of the ID Act. However, therefore the plea of Mr. Sabharwal which merits consideration is that the writ petition was filed in September, 1999 and the application under Section 17B of the ID Act was filed only on 1st September, 2001. There is no explanation given for this delay. Accordingly, payment under Section 17B is not to be made for the period starting from October, 1999 to August, 2001 as the respondent No. 3/applicant has failed to give any reason for not filing the application earlier.
33. In the light of the principles of law aforenoticed, isolated engagement as agricultural labour would not be considered as such gainful employment which would disentitle to the workman to grant of interim wages.
34. I may notice that Section 17B merely requires the workman to show that he has an industrial award in his favor directing the management to reinstate him which is challenged and that he is not gainfully employed. No formal procedure as to the manner in which such a prayer is to be made to the court other than the workman being required to show on affidavit.
35. I may now deal with the submission that though the application was filed on 4th October, 2004, affidavits which could be considered as having been properly attested have been sworn only on 28th October, 2005. For this reason, it is contended that the date of presentation of the application claiming relief under Section 17B can take effect only with effect from the date on which these affidavits were filed.
36. Undoubtedly, the date on which an application and affidavit in this behalf is presented before a court, may guide exercise of discretion in favor of the workman. However, in the instant case, the workman had filed an application (CM No. 10076/2004) seeking interim wages at the earliest on 27th August, 2004. The application which was filed was a joint application on behalf of respondent Nos. 2-37 through the general secretary of the trade union which was espousing their cause. There is no dispute that the workmen are spread over, not only in different places in the same city but are located in different states as far flung as Uttar Pradesh, Bihar, Uttaranchal and Madhya Pradesh. The workmen have complained of termination of their service with effect from 3rd June, 1998. No material has been placed before this Court with regard to any of the workers having any source of income or being so financially placed so as to be able to subsist on their own steam. In these facts, this Court was required to keep in mind the financial status of the workmen who undoubtedly have been running from pillar to post in seeking the order for grant of interim wages to them. By an order dated 18th August, 2004, the petitioner was directed to deposit a sum of Rs. 7,500/- towards litigation expenses of the workmen which could be withdrawn by the general secretary of the Rashtriya Mazdoor Congress.
37. It also cannot be disputed that the workman have filed the application (CM No. 10076/2004) on the first date after they entered appearance on 18th August, 2004. It cannot therefore be contended that the workers have delayed seeking relief before this Court. It is not the petitioner's contention that the workmen are persons with legal background or conversant with filing of applications or the manner in which verification of affidavits is to be effected. The cause of the workmen was espoused by the union which representing them in the industrial adjudication. The first application in these circumstances had been filed on behalf of the workmen by the union whose general secretary had filed the affidavit in support. The workmen can also not be faulted in their belief and assessment that the affidavit of the general secretary was sufficient compliance with the requirement of Section 17B of the Industrial Disputes Act, 1947. The workmen could very well have sought leave to place their individual affidavits on record. But none was present on their behalf to do so on 27th August, 2004 when this application was disposed of.
38. When the second application CM No. 10076/2004 was filed, it was accompanied by affidavits of all the workmen, the verification was incorrect. The workmen have been permitted to file additional affidavits to which the petitioner has filed its response. In any case, the defect was not in the substance of the affidavit but in the verification for which no fault can be attributed to the respondents. The objection raised by the petitioner can be tested on the anvil of the principles which apply to amendments of pleadings to correct such defects in pleadings or their verification. As a result of the amendment, the defect is cured. The curing of the defect would relate back to the date of filing of the application.
39. In the instant case, no material has been placed before this Court to establish a case of gainful employment of the workmen since the date of passing of the industrial award in their favor.
40. I may also notice that as back as on 8th October, 2004, a statement was made on behalf of the petitioner that he would verify the last drawn wages of the workmen and take instructions for depositing the amount in consonance with the provisions of Section 17B of the Act. There has been no compliance of this statement and the amount in consonance with the provisions of Section 17B of the Act has also not been deposited. For this reason as well, the petitioner cannot possibly be permitted to urge that delay ought to defeat relief of the respondent, though in my view there is no such delay in the instant case.
In this background, I am unable to agree with learned Counsel for the petitioner that the respondents have deserved to be held guilty of abuse of process of law or that the application is malafide. So far as the requirement of adjudicating on the application under Section 17B prior to the writ petition is concerned, additionally, reference may be made to the binding judicial pronouncements of the Apex Court in (2000) 9 SCC 535 Republican Party of India v. Union of India and Ors. I also find force in the submissions made by Mr. Sanjay Parikh, Advocate representing the respondent/applicant that the prayer of the workmen be not rejected on hyper technicalities and that there is no objection on the merits of the workman's application except technical objections with regard to manner of verification of affidavits.
41. Inasmuch as this Court is adequately empowered to grant wages with effect from the date of the award, especially in a case where repeated applications have been made on behalf of the workmen but orders thereon could not be passed for technical defects, I am of the view that the workmen deserve to be granted wages with effect from the date of passing of the award in their favor in the light of the law laid down by the Apex Court.
42. The petitioner has not challenged the fact that Shri Dinesh, respondent No. 30 was a party to the industrial adjudication before the industrial tribunal. On the contrary, he has been arrayed as a respondent/party by the petitioner itself before this Court. It, therefore, does not lie in the mouth of the petitioner to submit that the workman may not have been a party in the industrial adjudication which has culminated in the impugned award. No categorical statement with regard to the respondent having been before the industrial tribunal has been made even in the present case. Shri Dinesh respondent No. 30 has placed on record an affidavit (page 629) setting out the circumstances in which under wrong advice he has persuaded to also file a separate case at Faribabad which he has withdrawn. Copy of the order passed has been enclosed. No material whatsoever has been placed before this Court of any gainful employment of respondent No. 30 Shri Dinesh. In these circumstances, it cannot possibly be held that he was gainfully employed or that he would not be entitled to grant of wages.
43. It is a settled principle of law that interim wages which are admissible during the pendency of the challenge by the management to an industrial award directing reinstatement into service of the workmen, have been held to be in the nature of non-refundable subsistence allowance. Undoubtedly, Section 17B mandates that a workman who is not gainfully employed would be entitled to an order granting wages in his favor. Certainly a person who has retired from his service is not gainfully employed and pension is paid to him on account of his service after he has superannuated. Therefore, it cannot possibly be contended that the respondent No. 20, who is admittedly a pensioner, is gainfully employed. However, the amount which is being received by him towards the pension from the Indian Air Force would certainly require to be deducted from the amount which he would be entitled to be paid by virtue of an order passed in the present proceedings.
44. In view of the above, CM No. 11937/2004 and CM 14302/2004 are allowed in respect of the workmen who have filed the affidavits. The petitioner shall make payment of wages to the workmen at a rate whichever is higher between the last drawn wages and the wages which are notified by the statutory authorities from time to time. This payment shall however be subject to the applicants filing undertaking by way of affidavit setting out their latest address within a period of two weeks undertaking that in the event of this Court holding in favor of the petitioner in the writ petition, it shall be liable to reimburse the the differential amount between the wages last drawn and the amount paid under orders of this Court.
45. It is however further directed that the respondent No. 20 shall file an undertaking by way of an affidavit in this Court within a period of two weeks from today setting his correct and complete address as well as the disclosure of the amount, if any, being received by him on account of pension from the Indian Air Force. Respondent No. 20 shall give an undertaking to this Court to the effect that in the event of the petitioner succeeding in the challenge made by it in the writ petition, he shall be liable to reimburse the differential between the wages last drawn and the amount which is paid under orders of this Court to him. The petitioner shall make payment of wages in terms of the directions made in the preceding paras to respondent No. 20 after deducting the amount which he is receiving as pension from the amount ordered to be paid to the workman.
46. Arrears in terms of the order passed today shall be paid to the workman at the address disclosed in the undertaking within a period of four weeks from today.
47. Month by month wages shall be paid to the workmen at the same address disclosed in the undertaking on or before the 10th day of each English calendar month.
These applications are allowed in the above terms.
48. CM NO. 1050/2005 (filed by the petitioner) By this application the petitioner is praying that the application filed by 32 workmen under Section 17B of the Industrial Disputes Act is supported by affidavits which are no affidavits in the eyes of law for the reason that the same are incorrectly verified and also they are not residents of or were present at Agra where the affidavits were attested. It was further objected that one of the workman Shri Dinesh was pursuing an industrial adjudication at Faridabad. Inasmuch as the application has been considered and decided only in respect of such workmen who have sworn and filed proper affidavits in accordance with the provisions of Section 17B of the Industrial Disputes Act and further that Shri Dinesh, respondent No. 30 has filed a detailed affidavit explaining the circumstances in which the proceedings at Faridabad were initiated and withdrawn, in my view nothing survives in this application which is accordingly dismissed.
49. CM No. 4116/2005This application has been filed by the petitioner under Section 151 of the CPC placing statement of last drawn wages of the workman on record and seeking a dismissal of the application filed under Section 17B of the Industrial Disputes Act for the reason that incorrect wages have been stated to be the last drawn wages. Inasmuch as it has been held that the workman would be required to be paid at the rate whichever is higher between the wages which were paid to the workman at the time of their disposal and minimum wages as are notified by the statutory authorities from time to time, this application does not detain this Court any further. The statement of wages last drawn is taken on record.
50. CM NO. 15054/2005By this application the petitioner is praying for hearing and disposal of the writ petition simultaneously with disposal of the application under Section 17B on 15th December, 2005. Long arguments have been addressed on the applications under Section 17B on behalf of the petitioner and orders have been reserved thereon. Therefore, hearing in the writ petition was not possible. In this view of the matter, this application is accordingly disposed of.
These applications are disposed of in the above terms.