Delhi High Court - Orders
Delhi Jal Board vs Ramesh on 18 November, 2022
Author: Dinesh Kumar Sharma
Bench: Dinesh Kumar Sharma
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8402/2019
DELHI JAL BOARD ..... Petitioner
Through: Mr. Amit Sharma adn Ms. Anuja
Shukla, Adv.
versus
RAMESH ..... Respondent
Through: Ms. Meghna De, Adv.
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
ORDER
% 18.11.2022
CM APPL. 40755/2021
1. This is an application under Section 17 B of the Industrial Disputes Act, 1947. The award was passed by the learned Labour Court in LIR No.3013/2016 (Old No. 37/2011) titled as Sh. Ramesh Vs. Delhi Jal Board. Learned Labour Court has granted reinstatement in service with continuity of service and full back wages along with all consequential benefits either monetary or otherwise in favour of the respondent- workman. Consequently, the award was challenged by the petitioner- management.
2. The respondent -workman has stated that he is not gainfully employed in any establishment from the date of award to till date and to the effects an application and affidavit has also been filed.
Signature Not Verified Digitally Signed By:PALLAVI VERMA3. The petitioner-management submits that application may be disposed of in accordance with law.
5. The law under Section 17-B of the Act is very clear that where a Labour Court or a tribunal directs reinstatement of any workman and the employer prefers any further proceedings, he is liable to pay such a workman full wages inclusive of any maintenance allowance last drawn by him if the workman had not been employed in any other establishment during such period.
6. Section 17-B of the Act provides as under:
"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 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."Signature Not Verified Digitally Signed By:PALLAVI VERMA
7. This Court in the case of "Food Craft Instt. vs. Rameshwar Sharma And Anr.", 2006 SCC online Del 505 and in "Unitas Foods Pvt. Ltd. Vs. Gyanender", W.P.(C) 12520/2021 has categorically laid down various parameters for passing an order under Section 17-B of the Act. In Food Craft Instt. case (supra), it was inter alia held as under:-
"64. The principles laid down in the various judicial pronouncements noticed above for grant of interim relief to a workman can be culled out thus:
(i) An application under Section 17B can be made only in proceedings wherein an industrial award directing reinstatement of the workman has been assailed.
(ii) This Court has no jurisdiction not to direct compliance with the provisions of Section 17B of the Industrial Disputes Act if all the other conditions precedent for passing an order in terms of the Section 17B of the Act are satisfied [Re: (1999) 9 SCC 229 entitled Choudhary Sharai v. Executive Engineer, Panchayati Raj Department & Anr.].
(iii) As the interim relief is being granted in exercise of jurisdiction under Article 226 of the Constitution of India, the High Court can grant better benefits which may be more just and equitable on the facts of the case than the relief contemplated by Section 17B. Therefore, dehors the powers of the Court under Section 17B, the Court can pass an order directing payment of an amount higher than the last drawn wages to the workman [Re: (1999) 2 SCC 106 (para 22), Dena Bank v. Kirtikumar T. Patel].
(iv) Such higher amount has to be considered necessary in the interest of justice and the workman must plead and make out a case that such an order is necessary in the facts of the case.Signature Not Verified Digitally Signed By:PALLAVI VERMA
(v) The Court can enforce the spirit, intendment and purpose of legislation that the workman who is to get the wages from the date of the award till the challenge to the award is finally decided as per the statement of the objections and reasons of the Industrial Disputes(Amendment) Act, 1982 by which Section 17B was inserted in the Act [Re: JT 2001 (Suppl. 1) SC 229, Dena Bank v. Ghanshyam (para 12)].
(vi) An application under Section 17B should be disposed of expeditiously and before disposal of the writ petition [Re: (2000) 9 SCC 534 entitled Workman v. Hindustan Vegetable Oil Corporation Ltd.].
(vii) Interim relief can be granted with effect from the date of the Award [Re: JT 2001 Supplementary (1) SC entitled Regional Authority, Dena Bank v. Ghanshyam;
2004 (3) AD (DELHI) 337 entitled Indra Perfumery Company v. Sudarshab Oberoi v. Presiding Officer].
(viii) Transient employment and self-employment would not be a bar to relief under Section 17B of the Industrial Disputes Act [Re: 2000 (1) LLJ 1012 entitled Taj Services Limited v. Industrial Tribunal; (1984) 4 SCC 635 entitled Rajinder Kumar Kundra v. Delhi Administration; 109 (2004) DLT 1 entitled Birdhi Chand Naunag Ram Jain v. P.O., Labour Court No. IV & Others].
(ix) The Court while considering an application under Section 17B of the ID Act cannot go into the merits of the case, the Court can only consider whether the requirements mentioned in Section 17B have been satisfied or not and, if it is so, then the Court has no option but to direct the employer to pass an order in terms of the statute. It would be immaterial as to whether the petitioner had a very good case on merits [Re: 2000 (5) AD Delhi 413 entitled Anil Jain v. Jagdish Chander].
Signature Not Verified Digitally Signed By:PALLAVI VERMA(x) A reasonable standard for arriving at the conclusion of the quantum of a fair amount towards subsistence allowance payable to a workman would be the minimum wages notified by the statutory authorities under the provisions of the Minimum Wages Act, 1948 in respect of an employee who may be performing the same or similar functions in scheduled employments. [Re: Rajinder Kumar Kundra v. Delhi Administration, (1984) 4 SCC 635; Sanjit Roy v. State of Rajasthan, (1983) 1 SCC 525 : AIR 1983 SC 328; decision dated 3rd January, 2003 in Writ Petition (Civil) Nos. 3654 & 3675/1999 entitled Delhi Council for Child Welfare v. Union of India; DTC v. The P.O., Labour Court No. 1, Delhi, 2002 II AD (Delhi) 112 (para 12, 13)]
(xi) Interim orders directing payment to a workman can be made even on the application of the management seeking stay of the operation and effect of the industrial Award and order. Such interim orders of stay sought by the employer can be granted unconditionally or made conditional subject to payment or deposits of the entire or portion of the awarded amount together with a direction to the petitioner employer to make payment of the wages at an appropriate rate to the workman. Such an order would be based on considerations of interests of justice when balancing equities.
(xii) For the same reason, I find that there is no prohibition in law to a direction by the Court to make an order directing payment of the wages with effect from the date of the Award. On the contrary, it has been so held in several judgments that this would be the proper course [Re: Regional Authority, Dena Bank v. Ghanshyam, JT 2001 (Suppl. 1) SC 229 and Indra Perfumery Co. Thr. Sudershab Oberoi v. Presiding Officer, 2004 III AD (Delhi) 337].
(xiii) While passing an interlocutory direction for payment Signature Not Verified Digitally Signed By:PALLAVI VERMA of wages, the Court may also secure the interests of the employer by making orders regarding refund or recovery of the amount which is in excess of the last drawn wages in the event of the industrial award being set aside so as to do justice to the employer.
(xiv) A repayment to the employer could be secured by directing a workman to given an undertaking or offer security to the satisfaction of the Registrar (General) of the Court or any other authority [Re: para 12, 2002 (61) DRJ 521 (DB), Hindustan Carbide Pvt. Ltd. v. Govt. of NCT of Delhi (supra)]
(xv) In exercise of powers under Article 226 and Article 136 of the Constitution, if the requisites of Section 17B of the Industrial Disputes Act, 1947 are satisfied, no order can be passed denying the workman the benefit granted under the statutory provisions of Section 17B of the Industrial Disputes Act, 1947 [Re: (1999) 2 SCC 106, Dena Bank v. Kirtikumar T. Patel (para 23)]. (xvi) Gainful employment of the workman; unreasonable and unexplained delay in making the application by the workman after the filing of the petition challenging the award/order; offer by the employer to give employment to the workman would be a relevant factors and consideration for the date from which the wages are to be permitted.
(xvii) It will be in the interest of justice to ensure if the facts of the case so justify, that payment of the amount over and above the amount which could be directed to be paid under Section 17B to a workman, is ordered to be paid only on satisfaction of terms and conditions as would enable the employer to recover the same [para 13 of Regional Manager, Dena Bank v. Ghanshyam]. (xviii) The same principles would apply to any interim order in respect of a pendentelite payment in favour of the workman."
Signature Not Verified Digitally Signed By:PALLAVI VERMA8. This court in M/S Unitas Foods Pvt. Ltd. (supra) has inter alia held that the Act, is a piece of beneficial legislation and the Court is required to enforce the spirit, intendment and purpose of legislation and since an award for reinstatement has been passed by the Labour Court in favour of the respondent/workman and the petitioner/management has challenged the same, the respondent/workman is entitled for full wages last drawn by him from the date of the Award till the pendency of the present proceedings.
9. In the present case, the petitioner management has not brought any material on record to show that the respondent-workman has been gainfully employed after passing of the award. I consider that in the present case there are no exceptional circumstances on which the relief under Section 17-B of the Act, can be denied to the respondent- workman.
10. In these circumstances, this court considers that there is no impediment in passing an order under Section 17-B of the Act, in favour of the respondent - workman. Thus, the order under Section 17-B of the Act, is passed in favour of the respondent-workman.
11. Hence, the petitioner-management is directed to pay the last drawn pay or the minimum wages, as revised from time to time, whichever is higher, from the date of the Award and continue to pay the same to the respondent-workman till the disposal of the present writ petition. The petitioner-management is directed to deposit the entire arrears within 8 weeks.
Signature Not Verified Digitally Signed By:PALLAVI VERMA12. With these observations, the present application stands disposed of.
W.P.(C) 8402/2019
14. Rejoinder has not been filed.
15. Let rejoinder be filed positively within four weeks with advance copy to the learned counsel for the respondents.
16. List on 26th April, 2023.
DINESH KUMAR SHARMA, J NOVEMBER 18, 2022 Pallavi Signature Not Verified Digitally Signed By:PALLAVI VERMA