Delhi High Court
Anil Engineering Works vs Secretary Labour & Labour Commr.And ... on 9 May, 2011
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th May, 2011
W.P.(C) 22627/2005
ANIL ENGINEERING WORKS ..... Petitioner
Through: Mr. Sanjay Budhiraja, Advocate.
versus
SECRETARY LABOUR & LABOUR COMMR.
AND ANR. ..... Respondents
Through: Mr. Krishna Mohan, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
CM No.8026/2006 (U/S 17B of the ID Act)
1. The writ petition impugns the award dated 4 th August, 2004 of the Industrial Adjudicator directing the petitioner to reinstate the respondent no. 3 workman with continuity of service and full back wages. This Court vide interim order dated 28th November, 2005 stayed the operation of the said award. The said order has continued in force till now. WP(C) 22627/2005 Page 1 of 7
2. The respondent workman has in the application stated that since his illegal termination he has remained unemployed and has not been able to get employment anywhere. The application is accompanied with an affidavit in support of the contents thereof.
3. The petitioner in reply to the application though has pleaded that the respondent workman is employed elsewhere but has not been able to give particulars thereof.
4. In the circumstances, the necessary ingredients of Section 17B of the ID Act are satisfied.
5. The counsel for the petitioner invites attention to the order dated 13 th January, 2011 wherein it was recorded that the respondent workman inspite of offer of the petitioner to join back service had not so joined back. It was the plea of the counsel for the respondent workman that though the respondent workman was willing but the petitioner did not allow so. This Court had asked the respondent workman to furnish his Bank Account details and other particulars about his subsistence.
6. In pursuance thereto the respondent workman has filed CM No.5834/2011 annexing the photocopy of his passbook. WP(C) 22627/2005 Page 2 of 7
7. The counsel for the petitioner contends that the respondent workman has not given other particulars which he was directed to give as to his subsistence since the award.
8. The Supreme Court in Kaivalyadham Employees Association v. Kaivalyadham S.M.Y.M. Samity MANU/SC/1656/2009 has held that the inquiry as sought to be conducted by the employer cannot be conducted in a proceedings under Section 17B of the ID Act and once an affidavit of non- employment has been filed by the workman and the employer is unable to give particulars of employment elsewhere, the order under Section 17B follows.
9. Reference in this regard may also made to the following:-
a.) Narendra Kumar v. Management of Taj Services Ltd. (2001) II LLJ 417 SC where the Supreme Court has held that the provision of Section 17B does not postulate that the workman at every point of time would be required to file the affidavit - once the workman, by filing an affidavit that he has not been employed, discharges the onus, the Court will pass the order in terms of Section 17B until the employer by positive assertions files an affidavit and establishes that the workman who had been given the benefit of Section 17B is WP(C) 22627/2005 Page 3 of 7 employed elsewhere and as such has disentitled himself/herself to the benefit in question.
b.) DTC v. Delhi Administration 46 (1992) DLT 109 holding that the affidavit accompanying the application under Section 17B has to be countered by an affidavit by the employer indicating the place or places where the workman has been working since the date of the award and as such it does not call for cross-examination of the workman.
c.) Dy. General Manager, State Bank v. Vijay Singh MANU/DE/1023/2011 holding that the workman in order to claim wages under Section 17B has only to file an affidavit to the effect that he had not been employed in any establishment and has to do nothing more - it is for the employer to prove that the workman had taken employment elsewhere after his termination and had been receiving adequate remuneration.
d.) Taj Services Ltd. v. Industrial Tribunal-I 82 (1999) DLT 378 where this Court held the workmen running their own business also entitled to Section 17B wages for the reason that what under the proviso to Section 17B is required to be proved is that the workman WP(C) 22627/2005 Page 4 of 7 had been employed in any establishment and had been receiving adequate remuneration from such employment. e.) Pro Interactive Service (India) Ltd. v. GNCTD 166 (2009) DLT 117 where this Court held that merely an averment in the reply of the employer to the application under Section 17B that the workman is having a good experience would not be sufficient to assume that the workman has not remained unemployed and the onus to prove the same is on the employer.
10. Accordingly, the application is allowed on the following terms:-
a) The respondent no. 3 workman to within two weeks of today file an affidavit by way of undertaking to this Court with advance copy to the counsel for the petitioner, to in the event of the petition succeeding pay/refund to the petitioner the excess amount, if any received in pursuance to this order, over and above the last drawn wages.
b) The petitioner is directed to within six weeks of today subject of course filing of undertaking aforesaid pay to the respondent workman the arrears of 17B wages calculated at last drawn/minimum wages whichever is higher from 4th August, WP(C) 22627/2005 Page 5 of 7 2004 till 30th April, 2011 failing which the same besides other remedies of the respondent no.2 workman shall incur interest @ 10% per annum;
c) The petitioner is also directed to with effect from the month of May, 2011 and till the disposal of the writ petition pay to the respondent workman month by month by the 15th day of the succeeding month the 17B wages at the rate aforesaid failing which the same shall also incur interest @10% per annum.
The application is disposed of.
W.P.(C) 22627/2005.
Rule.
List in the category of 'Regulars' as per turn. The counsel for the petitioner has today again stated that the petitioner is willing to take back the respondent workman in employment without prejudice to the rights and contentions of the petitioner. The petitioner is made aware of the judgments in DTC v. Phool Singh 2010 IV AD (Delhi) 223 and in judgement dated 29th April, 2010 in W.P.(C) No.6647/2003 titled DTC v. Presiding Officer laying down that upon so taking work the employer shall be liable to pay to the workman not merely 17B wages but WP(C) 22627/2005 Page 6 of 7 wages as being paid to employees of same seniority as the workman and performing the same work as intended to be taken from the workman. The counsel for the petitioner on behalf of the petitioner states that the petitioner is so willing. Accordingly the respondent workman is directed to meet Mr. Kishori Lal, Manager of the petitioner on 16th May, 2011 at 9.a.m. in the morning.
CM No.5834/2011 (u/S 151 CPC).
In view of the above, this application has become infructuous and is disposed of.
RAJIV SAHAI ENDLAW, J MAY 09, 2011 pp.
WP(C) 22627/2005 Page 7 of 7