North Delhi Municipal Corporation vs Satish

Rajiv Shakdher, J

CM APPL. No. 28976/2020

This is an application filed on behalf of the respondent/workman under Section 17B of the Industrial Disputes Act, 1947 [in short

“I. D. Actâ€​].

The petitioner-corporation opposes this application.

To be noted, the petitioner-corporation has assailed the award dated 17.10.2019, passed by the concerned labour court, whereby, the labour court

has directed the petitioner-corporation to reinstate the respondent/workman, and grant him continuity of service, full back wages, and all consequential

benefits.

2.1. The record shows that the respondent/workman had joined the petitioner-corporation on 01.01.1993 as a Safai Karamchari.

According to the petitioner-corporation, he was working as a daily wager, and was paid fixed wages, which were revised from time to time, in

consonance with the Minimum Wages Act, 1948.

2.2. It appears that the respondent/workman, on account of his illness, did not attend work between 29.02.2008 and 30.08.2010. In the interregnum,

the petitioner-corporation issued a show cause notice to the respondent/workman on 21.06.2010, whereby, he was, inter alia, asked to join his duties

and report to the Sanitary Superintendent.

2.3. According to the petitioner-corporation, the respondent/workman neither replied to the show cause notice nor joined his duties. The petitioner-

corporation, thereafter, proceeded to disengage the respondent/workman from service on 23.07.2010.

2.4. It is in this backdrop that a reference was made to the concerned labour court on 25.04.2014 by the Govt. of NCT of Delhi [GNCTD]. This

reference culminated in the impugned award dated 17.10.2019.

2.5. The main plank of the petitioner-corporationâ€s defence, before the labour court, was that, for nearly two years, the respondent/workman had

abandoned his duties and, therefore, he was not entitled to any relief. As indicated above, the labour court was not persuaded by the arguments

advanced on behalf of the petitioner-corporation and resultantly, rendered an award in favour of the respondent/workman.

2.6. Before I proceed further, an important aspect, which has come through, and something which the labour court has observed, is contained in the

testimony of the witness cited by the petitioner-corporation, namely, Hoshiyar Singh, Sanitary Superintendent [MW-1] who inter alia made the

following crucial statements during the course of his deposition:

(i) The respondent/workman worked continuously and uninterruptedly between 01.01.1993 and 29.02.2008.

(ii) The respondent/workman fell sick on 29.02.2008 and remained unwell till 29.08.2010.

(iii) The respondent/workman had lodged his medical certificate as well as fitness certificate with the petitioner-corporation in respect of the aforesaid

period.

(iv) The respondent/workmanâ€​s name was deleted from the rolls of the petitioner-corporation w.e.f. 29.02.2008

(v) No notice or pay in lieu of notice was either offered or paid to the respondent/workman.

(vi) No service compensation/reinstatement compensation was either paid or offered to the respondent/workman.

(vii) The respondent/workman was neither served with a charge-sheet nor was any enquiry held before terminating his services.

2.7. Given this position, the argument which Ms. Namrata Mukim, who appears on behalf of petitioner-corporation, advanced before me that the

respondent/workman was not entitled to any relief either in respect of the instant application or the final relief because he had abandoned his work for

nearly two years seems, to say the very least, tenuous. To my mind, respondentâ€s/workmanâ€s absence from work due to sickness which is made

known to the employer cannot be equated with abandonment.

That being said, this is an aspect which I would examine, in greater detail, when the writ petition is, finally, adjudicated upon. At this juncture, all that

I am required to examine is the viability of the application filed by the respondent/workman under Section 17B of the I.D. Act.

3.1 In this behalf, Courts have to remain cognizant and make an enquiry qua the following four aspects:

(i) First, whether there is, in place, an award, passed by a forum referred to in Section 17B of the I.D. Act which directs reinstatement of the

respondent/workman.

(ii) Second, whether the employer has preferred proceedings against such an award either in the High Court or in the Supreme Court.

(iii) Third, whether the workman has filed an affidavit stating therein that he is not employed in any establishment.

(iv) Lastly, whether the workman is employed in any establishment [during the relevant period] and has received adequate remuneration for the

services rendered. Thus, for the period the workman is found to be employed no wages are payable by the employer.

3.2. If the answer to first three queries is in the affirmative and to the last query is in the negative [or partially in the negative i.e. the workman has

worked for a part of the relevant period and not for the entire period], then, the workman would be entitled to relief under section 17B of the I.D. Act.

The relevant period would commence from the date of the award. [See: Dena Bank vs. Ghanshyam, (2001) 5 SCC 169]. More pertinently, since

salaries/wages paid under Section 17B of the I.D. Act are considered as subsistence allowance, these are not refundable even if the employer were

to succeed in the proceedings pending in the High Court or the Supreme Court. [See: Dena Bank vs. Kiritikumar T. Patel, (1999) 2 SCC 106; Also

see: Rajeshwar Mahto vs. Birla Corpn. Ltd., (2018) 4 SCC 341]. Significantly, in a given case, the Court is empowered to direct payment of amounts

even without taking recourse to Section 17B of the I.D. Act. The Court can [if the facts and circumstances so demand where the payment made is

beyond the measure provided in Section 17B of the I.D. Act], direct the workman to file an undertaking that he would refund the amount received by

him over and above the full last drawn wages. This would not, necessarily, mean that where the Court issues a direction, while passing an order, under

Section 17B of the I.D. Act, to the effect, that the workman would be paid salary/wages equivalent to his last drawn full wages or minimum wages,

whichever is higher, the difference between the two would have to be refunded. Each case would have to be dealt with on its own merits qua this

aspect.

See: Dena Bank v. Ghanshyam, (2001) 5 SCC 169, at page 174:

“13. It must, however, be pointed out that while passing an interlocutory order the interests of the employer should not be lost sight of. Even though

the amount paid by the employer under Section 17-B to the workman cannot be directed to be refunded in the event he loses the case in the writ

petition (see Dena Bank case [(1999) 2 SCC 106 : 1999 SCC (L&S) 466] ) any amount over and above the sum payable under the said provision, has

to be refunded by him. It will, therefore, be in the interests of justice to ensure, if the facts of the case so justify, that payment of any

amount over and above the amount payable under Section 17-B to him, is ordered to be paid on such terms and conditions as would

enable the employer to recover the same.â€​

[Emphasis is mine]

As would be evident from the record and the narration of facts set forth hereinabove, there is an award, passed by the labour court, in favour of the

respondent/workman, directing his reinstatement. The said award [i.e. the impugned award dated 17.10.2019] has been assailed by the petitioner-

corporation in this Court. The respondent/workman has, by way of the present application, which is, supported by an affidavit, stated that he is not

gainfully employed. However, insofar as this aspect is concerned, Ms. Mukim has relied upon the reply filed by the petitioner-

corporation to  contend that the respondent/workman is gainfully employed. On being queried, on this aspect, Ms. Mukim stated that the officers

of petitioner-corporation had received information that the respondent/workman was carrying on the job of collecting garbage from door-to-door in a

residential area situate in C-Block, Vandana Vihar, Nangloi, Delhi. Ms. Mukim also stated, in support of this plea, that the respondent/workman was

earning, approximately, Rs. 6,000/- to Rs. 7,000/- per month from this job.

4.1. In other words, the contention of Ms. Mukim is that since the respondent/workman has an alternate source of income he is not entitled to any

relief under Section 17B of the I.D. Act.

4.2. I must indicate that in the course of her arguments, Ms. Mukim also submitted that since the respondent/workman was a daily wager, he was not

entitled to any relief under Section 17B of the I.D. Act.

On the other hand, Mr. Rajiv Agarwal, who appears for the respondent/workman, in my view, quite correctly, stated that there is no difference, at

least in Industrial Law, between a permanent and a temporary employee i.e. a daily wager.

I tend to agree with Mr. Agrawal that Section 17B of the I.D. Act makes no such distinction between a permanent employee and a daily wager.

The only aspects, which the Court has to look at, to render a decision on Section 17B application, are those which are alluded to in paragraph 3.1

above

Therefore, what remains to be addressed is: whether the fact that the respondent/workman earned money, during the period of his disengagement,

as a Garbage-Collector, should be the reason to deprive him of the relief under Section 17B of the I.D. Act.?

7.1 In this behalf, it must be emphasised that the I.D. Act is a social welfare legislation which empowers the Court to give succour to workmen till

their disputes are, finally, adjudicated upon by taking recourse to Section 17B of the I.D. Act. The succour, which the legislation envisages, is wages

which allow a workman to lead a dignified life. Thus, merely because a workman, albeit on an ad hoc basis, earns Rs. 6,000/- to Rs. 7,000/- per

month, through garbage collection, to my mind, cannot be the reason to deprive him of the relief under Section 17B of the I.D. Act.

7.2. That being said, it is important to also lay stress on the fact that the relief can be denied if the employer is able to inter alia demonstrate that the

workmen is in receipt of adequate remuneration, through employment in an “establishment†or otherwise. Therefore, ad hoc engagement of the

kind in which the respondent/workman is said to be engaged in, to keep his body and soul together, cannot form the basis for denying him relief under

Section 17B of the I.D. Act.

7.3. Certainly, in this case, where the respondent/workman was working as a Garbage-Collector and earning, according to the petitioner-corporation

Rs.6,000/- to Rs. 7,000/- per month, in my opinion, cannot be a reason to deprive him of the relief under Section 17B of the I.D. Act.

Therefore, for the forgoing reasons, I am inclined to grant the prayer made in the captioned application. The prayer made in the application is

allowed.

8.1. The petitioner-corporation is directed to pay the respondent/workman, full last drawn wages, or the applicable minimum wages, whichever is

higher [See: Delhi Transport Corporation vs. Presiding Officer, Labour Court No. 1, Delhi and Ors., 2001 SCC OnLine Del 1242.].

8.2. The petitioner-corporation will not only pay the arrears for the period commencing from 17.10.2019 [i.e. the date of the impugned award] up-until

today but will also, hereafter, pay the respondent/workman, wages, based on the parameters prescribed hereinabove till the adjudication of the writ

petition.

8.3. The arrears of wages, as indicated above, will be paid within the next five weeks. The petitioner-corporation will pay wages, for the ensuing

period, on or before the 7th day of each month.

The application is disposed of in the aforesaid terms.

W.P.(C) 6539/2020 and CM APPL. No. 22889/2020

Mr. Agarwal seeks, and is granted further three weeks to file a counter-affidavit.

10.1. Rejoinder thereto, if any, will be filed before the next date of hearing.

List the matter on 30.07.2021.