North Delhi Municipal Corporation v. Surender Kumar

1. This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court. CM APPL. 31264/2020 (u/s 17B of the ID Act)

2. This is an application moved by the Respondent/Workman under Section 17B of the Industrial Disputes Act, 1947 (hereinafter “Act”). No reply has been filed by the Petitioner/NrDMC. On 24th November 2021, this application was heard in part, when ld. Counsel for the NrDMC had submitted that although no reply was filed in this application, she wished to rely on her rejoinder in the petition, to oppose the present application. She relied upon the report of the Additional Sanitary Inspector of Hindu Rao Hospital, along with the photographs attached therein to submit that the Workman was running a small shop from his own residence. On this, this Court had prima facie opined that the same would not constitute gainful 2021:DHC:3961 alternate employment under section 17B of the ID Act. However, as ld. Counsel for the Workman had submitted that his client would be willing to join back the NrDMC, ld. Counsel for the NrDMC was given time to seek instructions in that regard. The observations of the Court in order dated 24th November 2021 are as under:

4. A perusal of this report with the photographs, in fact shows that the Workman is not fully and gainfully employed but is only running his own small shop from his residence to earn his livelihood. This would prima facie, not constitute alternative employment under Section 17B of the ID Act. Moreover, the report also states that the Workman is in debt.

5. Mr. Jawahar Raja, ld. Counsel for the Workman, submits that his client is willing to join back the services of the Corporation. Ld. counsel for the Corporation to seek instructions in respect thereof.

3. Today, Ms. Namrata Mukim, ld. Counsel for the NrDMC submits that the NrDMC is not willing to take back the workman as the same may affect the NrDMC’s case on merits.

4. Considering the fact that no substantial reply to the application under Section 17B of the ID Act has been filed and inasmuch as the report of the Additional Sanitary Inspector also only shows that the employee is running a small shop from his own residence, there is no ground for the application under Section 17B to be rejected. Accordingly, the application under Section 17B of the ID Act is liable to be allowed.

5. The Workman shall accordingly be paid the minimum wages or the last drawn wages, whichever is higher, with effect from 17th November,

2020. The said payment shall be made on or before the 10th of every month.

6. Mr. Raja, ld. Counsel, at this stage submits that the Workman ought to be paid the amounts in terms of Section 17B from the date of the passing of the Award in his favour. However, the judgment of Supreme Court in Uttaranchal Forest Development Corporation and Ors. v. K.B. Singh and Ors. [(2005) 11 SCC 449] as well as the judgment of the Division Bench of this Court in Municipal Corporation of Delhi v. Santosh Kumari & Anr. in LPA No. 165/2012 decided on 24th August, 2012, have held that where there is a delay in filing the application under Section 17B of the ID Act, the same ought to be payable from the date of filing of the said affidavit and not from the date of the Award. The relevant observations are as under:  Uttaranchal Forest Development Corporation (supra)

 Santosh Kumari (supra)

7. In the present case, the impugned award is dated 31st August, 2019. The Respondent-Workman appeared for the first time on 17th February,

2020. However, the application under Section 17B has only been filed in November, 2020. Accordingly, in the facts and circumstances of this case, the amounts in terms of Section 17B of the ID Act of the last wages drawn or the minimum wages whichever is higher, shall be payable from the date of filing of the application i.e., 17th November 2020. The arrears shall be cleared within eight weeks. Going forward, the amount shall be paid on a monthly basis, by the 10th of every month.