Delhi Transport Corporation vs Inderjeet Singh

CM Nos. 10476 & 10478/2008

Exemptions allowed subject to all just exceptions.

Applications stand disposed of.

CM No. 10477/2008

For the reasons stated in the application, the delay in filing the appeal is condoned. The application stands disposed of.

LPA No. 392/2008 & CM No. 10475/2008 (stay)

This appeal is directed against the judgment and order dated 13th March 2008 passed by the learned Single Judge allowing the respondent workman''s application CM No. 878 of 2007 in WP (C) No. 11742 of 2004 u/s 17B of the Industrial Disputes Act, 1947 (''ID Act'').

The learned Single Judge has directed that the appellant Delhi Transport Corporation (''DTC'') should pay the respondent the last drawn wages or minimum wages whichever is higher from 24th March 2003 when the application by the DTC for approval of the decision of dismissal of the respondent was rejected by the Industrial Tribunal. It was further directed that arrears of last drawn wages or the minimum wages whichever is higher should be paid within eight weeks and that the respondent would be paid the wages by the 15th of every English calendar month during the pendency of the writ petition. The respondent was directed to give an undertaking that in the event DTC''s writ petition was allowed, the difference between last drawn wages and the minimum wages would be refunded by the workman within the time permitted by the Court.

The ground urged in the appeal is that the application u/s 17-B ID Act was filed in 2007, three years after the writ petition was filed, i.e. 2004, and that this factor itself showed that "there was no financial constraint on the respondent and there was no financial crunch which could have prompted immediate filing of Section 17B application." It is further urged, on the strength of the decision of the Supreme Court in Uttaranchal Forest Development Corporation v. K.B. Singh 2005 (11) SCC 449 where it was directed that the payment of wages u/s 17-B ID Act should be made from the date of the affidavit filed by the workman stating that he was not gainfully employed since his termination. Reliance is also placed on the decision of the Supreme Court in Workmen v. Raptakos Brett & Co. Limited (2008) 3 SC 499 where the wages were directed to be paid from the date of the petition.

As pointed out by the learned Single Judge, in the instant case the workman had categorically averred in his application, supported by an affidavit, that he was unemployed since the date of termination. Without countering this, DTC had sought to oppose the application u/s 17-B ID Act on grounds relating to the merits of the writ petition. The DTC did not produce any evidence to show that the workman was gainfully employed since his termination. This Court has, in several judgments, explained the settled position in law that the workman is entitled, in an application u/s 17B ID Act, to be paid the last drawn wages or the minimum wages whichever is higher, subject of course to fulfilling the other conditions u/s 17B ID Act. Further it has been held that the payment should be from the date of the Award. Some of these decisions are Indra Perfumery Co. Vs. Presiding Officer and Others, , Delhi Development Authority v. Smt. Omvati (decision dated 24th May 2006 in LPA No. 84 of 2002), Delhi Transport Corporation v. Presiding Officer, Labour Court 2003 VI AD (Del) 2005, Raj Gariha Vishram Sadan v. Vijay Kate (2007) ii LLJ 555 and Delhi Transport Corporation Vs. Ek Lakh Hussain, . This Court has, in its decisions, relied upon those of the Supreme Court in AIR 1998 511 (SC) and Dena Bank (II) v. Ghanshyam JT 2001 (Supp.1) SC 22.

The decisions in Uttaranchal Forest Development Corporation as well as Raptakos Brett & Co. Limited are short orders that do not discuss either of the above Supreme Court decisions. A reading of the orders would show that they were peculiar to the facts of those cases and did not alter the law as explained in Dena Bank-I and Dena Bank-II. As regards the date from which the amount u/s 17-B ID Act would become payable, the following passage in the decision in Dena Bank-II is a complete answer (SCC p.174):

We have mentioned above that the import of Section 17-B admits of no doubt that Parliament intended that the workman should get the last drawn wages from the date of the award till the challenge to the award is finally decided which is in accord with the Statement of Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17-B was inserted in the Act. We have also pointed out above that Section 17-B does not preclude the High Courts or this Court from granting better benefits - more just and equitable on the facts of a case than contemplated by that provision to a workman. By an interim order the High Court did not grant relief in terms of Section 17-B, nay, there is no reference to that section in the orders of the High Court, therefore, in this case the question of payment of full wages last drawn" to the respondent does not arise. In the light of the above discussion the power of the High Court to pass the impugned order cannot but be upheld so the respondent is entitled to his salary in terms of the said order.

As regards the delay by the workman in approaching the Court for relief u/s 17-B ID Act, it requires to be recalled that the workman could have filed such an application only after the DTC filed its writ petition. The object of the provision is that the wages should not be denied to the workman when he has been able to state on affidavit that he has remained unemployed and the employer is unable to show anything to the contrary. In the circumstances, the benefit u/s 17B ID Act cannot be denied to the workman on the ground that he filed the application three years after the writ petition was filed by the DTC. The entitlement of the workman to wages u/s 17B hinges on whether in fact he remained unemployed since his termination. That it is a question of fact. In light of the unrebutted claim of the workman to that effect in the instant case, his application u/s 17B ID Act had to be allowed.

Before concluding we must mention that learned Counsel for the appellant urged that this appeal should be adjourned since certain Special Leave Petitions filed by the DTC against the orders passed earlier by this Court in similar matters were to be heard by the Supreme Court on 23rd September 2008. We did not consider this to be a justifiable reason for adjourning the present appeal.

Accordingly, we find no merit in this appeal and it is dismissed as such with no order as to costs. The pending application is also dismissed.