Delhi High Court - Orders
United Poly Engineering Private ... vs Presiding Officer, Labour Court, Polc V ... on 4 August, 2022
Author: Dinesh Kumar Sharma
Bench: Dinesh Kumar Sharma
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4471/2021
UNITED POLY ENGINEERING PRIVATE LIMITED ..... Petitioner
Through: Ms. Anushree Malaviya, Advocate.
versus
PRESIDING OFFICER, LABOUR COURT, POLC V & ANR.
..... Respondent
Through: Ms. Rachita Garg, Advocate for
respondent No.1.
Mr. Rama Shankar, Advocate for
respondent No.2.
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
ORDER
% 04.08.2022 CM APPL.32749/2022 (filed on behalf of respondent No.2 under Section 17B of ID Act)
1. This is an application under Section 17B of the Industrial Disputes Act, 1947. It has been submitted that the petitioner has challenged the impugned award dated 15.02.2020 vide which the petitioner was directed to reinstate the respondent No.2/workman with full back wages, continuity of services and other consequential benefits. It has been submitted that the respondent No.2 is unemployed from the date of the termination of the service and he has been going through extreme hardship because of the illegal termination of the service and unemployment. It has been submitted that the respondent/workman is not gainfully employed and is not engaged in any vocation.
Signature Not Verified Digitally Signed By:RAJ BALA Signing Date:08.08.2022 11:57:112. Learned counsel for the respondent/workman has submitted that despite the best efforts of the respondent/workman, he has failed to secure alternative gainful employment. Learned counsel for the respondent/workman submits that therefore an order under Section 17B of the Industrial Disputes Act, 1947 may be passed and the petitioner may be directed to pay minimum wages or last drawn wages, whichever is higher.
3. Ms. Anushree Malaviya, learned counsel for the petitioner submits that though she has filed a reply, however, the same has not been placed on record. Learned counsel for the petitioner has, however, argued on the application and has submitted that the present application under Section 17B is liable to be dismissed out rightly as the present application has been filed at a much belated stage. The present writ petition was filed in the year 2021 whereas the present application was filed on 31.08.2021. Learned counsel has further submitted that the fact that the affidavit filed along with the application is of 31st August, 2021 shows that the petitioner is gainfully employed and thus not in hurry to file this application.
4. Learned counsel for the petitioner has relied upon the judgment of a Division Bench of this Court in Municipal Corporation of Delhi vs. Santosh Kumari and Another: 2012 SCC Online Del 4390 wherein it has been held that if there is an unreasonable and unexplained delay in making an application by the workman after filing of the petition challenging the award/order, the application may not be entertained. Learned counsel for the petitioner has further submitted that even during the proceedings before the Labour Court, the petitioner/employer has made several offers to the respondent/workman to join the services.
Signature Not Verified Digitally Signed By:RAJ BALA Signing Date:08.08.2022 11:57:115. I have considered the submissions made by the learned counsel for the parties. The law regarding passing of an order under Section 17B of the Industrial Disputes Act, 1947 has been enumerated in Food Craft Instt. Vs. Remeshwar Sharma and Anr.: (2007) 2 LLJ 350 Del, wherein, it has been inter alia held as under:-
"22. A Single Bench of this Court in Food Craft Instt. v. Remeshwar Sharma [(2007) 2 LLJ 350 Del] culled out the following principles, from various judicial pronouncements touching upon various facets for grant of interim relief under Section 17B of the ID Act, in the following manner:
"(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].
(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 W.P(C) No. 11803/2005 Page 6 of 11 in the interest of Signature Not Verified Digitally Signed By:RAJ BALA Signing Date:08.08.2022 11:57:11 justice and the workman must plead and make out a case that such an order is necessary in the facts of the case.
(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; (2004) 109 DLT 1 entitled Birdhi Chand Naunag Ram Jain v. P.O., Labour Court No. IV].
(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 W.P(C) No. Signature Not Verified Digitally Signed By:RAJ BALA Signing Date:08.08.2022 11:57:11 11803/2005 Page 7 of 11(5) AD Delhi 413 entitled Anil Jain v. Jagdish Chander].
(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, reported at JT 2001 Supp (1) SC 229 and Indra Perfumery Co. Thr. Sudershab Oberoi v. Presiding Officer, 2004 III AD (Delhi) 337].
Signature Not Verified Digitally Signed By:RAJ BALA Signing Date:08.08.2022 11:57:11(xiii) While passing an interlocutory direction for payment 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) Repayment to the employer could be secured by directing a workman to give 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].
Signature Not Verified Digitally Signed By:RAJ BALA Signing Date:08.08.2022 11:57:11(xviii) The same principles would apply to any interim order in respect of a pendent lite payment in favour of the Workman."
[emphasis supplied"
6. The present petition is of the year 2021. The present application is dated 31.08.2021 and was moved in July 2022. Learned counsel for the respondent/workman has stated that in fact the present application was filed much earlier but on account of certain objections, it could not be brought on record. It is also to be kept in mind that in the year 2021, the Courts were not fully functional on account of Covid pandemic. I consider that in the facts and circumstances of the case, there is no unreasonable and unexplained delay.
7. During the course of submissions, learned counsel for the petitioner has fairly submitted that they have not filed any document to support their plea that the respondent No.2/workman was gainfully employed. The provisions under Section 17-B of the Industrial Disputes Act, 1947 is a piece of beneficial legislation. The Courts have to interpret the provisions in such a manner that it fulfils the purpose, intent and objective of the Act. I consider that in the facts and circumstances of the case, the application under Section 17-B is allowed. Petitioner is directed to pay minimum wages or last drawn wages, whichever is higher, from the date of the Award within four weeks.
8. The present application stands disposed of.Signature Not Verified Digitally Signed By:RAJ BALA Signing Date:08.08.2022 11:57:11
W.P.(C) 4471/2021 & CM APPL.38641/2021 (stay)
9. List on 20th September, 2022.
DINESH KUMAR SHARMA, J AUGUST 4, 2022 st Signature Not Verified Digitally Signed By:RAJ BALA Signing Date:08.08.2022 11:57:11