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HIGH COURT OF DELHI
M/S UNITAS FOODS PVT. LTD. ..... Petitioner
Through: Ms. Ritika Jhanji, Adv.
Through: Mr. Pran Krishna Jana, Adv. for R-1 along with R-1.
JUDGMENT
1. Present Application has been preferred by the Applicant/workman under 17B, Industrial Disputes Act, 1947 r/w Section 151, CPC, seeking the following prayer: “direct the Petitioner/Management to pay the Applicant/Workman his last drawn salary i.e. Rs.l[2],500/-p.m. from the date of impugned Award i.e. 13.01.2020 till the disposal of the Petition.” 2022:DHC:2815
2. Ld. Counsel for the Applicant/ Workman submits that the Workman joined the services of the Petitioner/Management on 01.10.2008, as an Executive Sale Purchase/Field worker. The Petitioner/Management however did not issue any appointment letter to the workman. The services of the Applicant/ workman were illegally terminated by the Petitioner on 21.02.2015 and that the workman’s last drawn salary was Rs.12,500/- at the time of his termination.
3. The workman aggrieved of being illegally terminated, raised an industrial dispute before the Ld. Labour Court, whereby the Ld. Labour Court passed an Award dated 13.01.2020(Order impugned)in favour of the Applicant/workman and held that the workman’s services was illegally terminated by the Management and that he was entitled to relief of reinstatement with full back wages along with continuity of service along with all other consequential benefits and further directed the management to pay a simple interest @ 9% upon failure to implement the said award within 30 days from its publication.
4. Ld. Counsel submits that instead of implementing the said award, the Petitioner approached this Court under its writ jurisdiction impugning the above Order of reinstatement. Ld. Counsel has submitted that ever since the workman’s services have been illegally terminated, he has been unable to secure any alternate gainful employment in any establishment, despite his best efforts, and remains unemployed till date. Ld. Counsel submits that the factum of his unemployment was also proved during his evidence before the Ld. Labour Court and submits that the petitioner in fact has failed to prove the gainful employment of the workman during the trial.
5. Ld. Counsel has submitted that the workman is now 57 years old, sustains a family of 3, is suffering from severe financial crisis and is on the verge of starvation. Ld. Counsel submits that the workman and his family are being supported by his brother. Ld. Counsel submits that Section 17-B of the ID Act,1947 statutorily imposes liability on the Management to pay the workman during the pendency of the present Writ Petition, the last drawn wages or minimum wages whichever is higher towards maintenance allowance. Ld. Counsel submits that workman’s last drawn salary was Rs.12,500/- at the time of his termination.
6. It has been stated by the Ld. Counsel that prior to this, he had moved a similar application bearing CM. APPL. 17939/2022, which was withdrawn with liberty to file afresh owing to a typographical error vide Order dated 12.04.2022.Ld. Counsel submits that pursuant to the same the present application was moved, whereby Notice was issued on 22.04.2022.
7. Ld. Counsel further states that the pleadings qua Applicant/ Workman, who is the Respondent No.1 in the present writ petition is complete and the matter is now listed for hearing on 05.08.2022. Ld. Counsel for the workman along with the present application has also placed on record the Affidavit of the workman, stating that he has been unemployed ever since his illegal termination on 21.02.2015.
8. Per contra, the Ld. Counsel for the Petitioner/ Management states that the Workman was employed on 01.12.2012 as a Marketing Executive, and was further promoted to the post of Purchase Manager with a Salary of Rs.12,000/-which was further increased to Rs. 12,500/-. Ld. Counsel submits that the services of the workman were not illegally terminated by the Petitioner and that he failed to show up for work.
9. Ld. Counsel for the Petitioner vehemently opposes the submissions made by the Ld. Counsel for the Workman and contends that that the present application deserves to be dismissed in limine and with costs. Ld. Counsel for the Petitioner/ management submits that the workman by virtue of the present application has approached this Hon'ble Court with unclean hands, having suppressed material facts and records. To buttress the above contention, Ld. Counsel submits that the Workman has failed to produce any records with respect to a bank account on his name in PNB bearing - PNB Bank Account No. 1519000300475405. Ld. Counsel submits that the workman has failed to adduce any evidence with respect to making efforts towards gaining employment.
10. Ld. Counsel submits that the Workman has been gainfully employed as a Court Clerk in Saket District Court and receives a substantial remuneration. Ld. Counsel has further placed on record the above mentioned cancelled cheque and annexed the same in his reply to the workman’s Application. Ld. Counsel has submitted that the said cheque was provided by the Workman to one Mr. Arun Nagpal, S/o Mr. Shyam Lal Nagpal, R/o Bock 2, H No. 218, Subhash Nagar on 08/09/2021for the purpose of remittance of payment of service.
11. Ld. Counsel has further submitted that Company had stopped its operations w.e.f. March 2020 owing to the Covid pandemic and has been ever since unable to revive its operations due to financial constraints. Ld. Counsel submits that vide the said order dated 09.11.2021, the Court was of the prima facie opinion that if the Petitioner is not in business and therefore the relief of reinstatement cannot longer be granted. Ld. Counsel submits that therefore, the present application under Section 17B Industrial Disputes Act is not maintainable and ought to be dismissed.
12. Ld. Counsel has further contended that the Workman should be put to strict proof regarding the financial support received from his brother and the profession of his brother and as to whether the workman is also simultaneously employed with them.
13. Ld. Counsel refuting the claim of the Workman, submits that in fact the workman, admittedly, was executing the job of a ‘Purchase Manager’ akin to a managerial position and thus is not covered under the definition of workmen under the ID Act, 1947 and therefore the workman would not be entitled to any relief.
14. Ld. Counsel submits that the workman was only 50 years, when he left from the services of the Petitioner, which is well below the age of superannuation/retirement and that there exists no reason that the Respondent should not have been gainfully employed had he attempted to be gainfully employed.
15. Section 17B of The Industrial Disputes Act, 1947 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 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.”
16. The law with respect to Section 17B of The Industrial Disputes Act, 1947is well settled by a catena of judgements. In the case of Food Craft Instt. v. Rameshwar Sharma, 2006 SCC OnLine Del, it was inter alia held as under: “68. 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].
(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.
(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 IndraPerfumery 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;
(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].
(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 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.”
17. The respondent/workman has moved the present application for payment of full wages last drawn by him, as provided under Section 17B of the Industrial Disputes Act, 1947. A bare perusal of Section 17B of Industrial Disputes Act, 1947 makes it clear that if an award has been passed by the Labour Court directing reinstatement of any workman, and the employer prefers any proceedings against such award in a High Court, the employer shall be liable to pay such workman during the period of pendency of such proceedings in the High Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule. The full wages can be denied only if the workman had been employed in any establishment during such period. The workman, in order to have an order in his favour, is also required to file an affidavit to this effect. The proviso to Section 17B of Industrial Disputes Act, 1947 also makes it clear that such an order can be refused if it is proved to the satisfaction of the High Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof.
18. In the present case, the respondent/workman has moved an application specifically pleading that he has not been gainfully employed during such proceedings. The respondent/workman has also filed an affidavit to this effect. The petitioner/management has only denied the same. However, no substantial evidence or proof has been placed on record to show that the respondent/workman is gainfully employed. The petitioner/management is only relying upon a cancelled cheque to show that he is gainfully employed. However, merely by placing such a cancelled cheque on record, this Court cannot make an inference that the respondent/workman is gainfully employed. The employee/petitioner has pleaded that workman is employed in Saket District Court, but no document has been placed on record to substantiate this plea.
19. The Industrial Disputes Act, 1947 is a piece of beneficial legislation and the Court is required to enforce the spirit, intendment and purpose of legislation. The petitioner/management has also stated that the respondent/workman is getting help from his brother. However, on this bald assertion, the relief cannot be denied. It is a settled proposition that even self employment would not be a bar under Section 17B of the Industrial Disputes Act, 1947. It is also a settled proposition that the Court cannot go into the merits of the case while deciding the application under Section 17B of the Industrial Disputes Act, 1947.
20. In the circumstances and in view of the discussion made herein above, I consider that 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. However, the respondent/workman shall file an indemnity bond to the effect that if any amount is found to have been paid in excess of the last drawn wages, or in the event of the industrial award being set aside, the same shall be refunded.
21. In view of the observations made hereinabove, the present application under Section 17B of the Industrial Disputes Act, 1947 is allowed.
DINESH KUMAR SHARMA, J JULY 27, 2022 st