JUDGMENT
Anil Kumar, J.
1. The applicants, Shri Tilak Raj, Shri A.R. Rahman, Shri Suresh Chand, Shri Vijender Kumar and Shri Raj Kumar, have sought directions against the petitioner/management to pay them last drawn wages from the date of award or minimum wages prescribed by the Government of NCT, whichever is higher, under Section 17-B of Industrial Disputes Act, 1947.
2. The applicants contended that an award dated 28th February, 2003 was passed in ID No. 571 of 1997 by the Labor Court IV, Karkardooma Courts, holding their termination illegal and directing the petitioner to reinstate the applicants with full back wages and continuity of service.
3. The award dated 28th February, 2003 has been challenged by the petitioner/management in the present petition. The operation of the award was stayed by order dated 22nd September, 2006.
4. The applicants Shri Tilakraj, Shri Suresh Chand, Shri Raj Kumar and Shri Vijender Kumar contended that they were drawing a salary of Rs. 3,000/- per month whereas applicant Shri A.R. Rahman was getting a salary of Rs. 3,500/- per month. The services of the applicants were terminated by the management/petitioner on 19th May, 1997 which has been held to be illegal and thus directing the petitioner to reinstate the applicants/workmen which order has been stayed in the present writ petition.
5. The applicants have contended categorically that they have not been able to get any regular employment in any establishment since the date of their termination on 19th May, 1997 and they are undergoing acute financial crisis on account of their unemployment.
6. The applicants have filed affidavits deposing categorically that they were terminated on 19th May, 1997 and by award dated 28th February, 2003 their termination has been held to be illegal and the petitioner had been directed to reinstate them. The applicants have also contended that they have remained unemployed since their illegal termination on 19th May, 1997 except Shri Suresh Chand who has deposed that he had worked on casual basis for two months from January 2001 with M/s. Citadel Protection & Security and from November 2002 to March 2003 with M/s. Alert Protection & Security as casual driver on daily basis. Shri Suresh Chand/applicant contended that he remained unemployed after his termination of service except short employment on daily basis. The said applicant, Shri Suresh Chand, had deposed that he has not been able to get any alternative employment despite his best efforts on his part.
7. The application is contested by the petitioner/management. It is contended that the affidavits filed by the workmen are false and, therefore, the application requires no consideration. It is stated that the award passed against the petitioner is ex parte and when the award dated 28th February, 2003 was passed, the applicants were gainfully employed and they had abandoned the work of the petitioner herein.
8. In support of the contention of the petitioner that the applicants had abandoned their jobs, it is contended that the services of the applicant were never terminated and it is evident from the fact that only 10 workmen out of a large number of workmen had abandoned their jobs without assigning any reason. It is further pleaded that out of 10 drivers who had abandoned their jobs, seven entered into witness box and an ex parte award was passed in favor of seven workmen. The present application, according to the petitioner/ management, has been filed only by seven workman.
9. Regarding applicant, Shri Suresh Chand, it is contended that he is gainfully employed with M/s Alert Protection & Security and the allegation of the said workman that he was employed casually was not admitted. An undated certificate has also been produced from M/s. Alert Protection & Security stipulating that the said workman, Shri Suresh Chand, was in their employment from July 2001 to March 2003.
10. Refuting the claim of the applicant, Shri Suresh Chand, it is also asserted that he was employed since 2001 and he was deriving handsome wages from one M/s Citadel Protection & Security. According to the petitioner, Shri Suresh Chand is still employed and he was never employed on casual basis either with M/s Citadel Protection & Security or with M/s Alert Protection & Security. Reliance has also been placed on a complaint filed by Shri Suresh Chand against M/s Asia Protection & Security Services that his services were terminated and he was not paid any arrears.
11. Regarding other applicants, it is contended that Shri Tilakraj is actively running a private bus and is thus gainfully employed. In respect of Mr. A.R. Rahman, Shri Vijender Kumar and Shri Raj Kumar, it is stated that right from the date of abandoning, they never reported to the petitioner to resume their work and the petitioner has information that they are also gainfully employed. The petitioner has also alleged that an ex parte award was passed on 28th February, 2003 and published on 30th June, 2003, however, they never preferred any execution petition and the reason for this is stated to be that the applicants were gainfully employed. The application is also opposed on the ground that five workmen are drivers and, therefore, it is unimaginable, that they are not gainfully employed after allegedly abandoning their work.
12. The petitioner also contended that it was engaged in the business of providing car rental services and on account of the recovery suit filed against the petitioner company by the financial institutions, the company had to stop its entire business. Since all the cars were hypothecated and charged to TFCI, a financial institution, no business at all is carried on for the last few years and the petitioner is in great financial crunch.
13. The grant of last drawn wages and minimum wages, whichever is higher, is also opposed on the ground that the applicants have not disclosed the correct facts nor they have deposed that they had completed 240 days of services and no demand notice was given by the applicants.
14. Perusal of Section 17B of the Industrial Disputes Act, 1947 reveals that it comes into operation when an Award directing reinstatement of a workman is assailed in further proceedings by the employer. The preliminary consideration for making available such a relief under Section 17B to a workman is to be found in the benevolent purpose of the enactment, its spirit, intendment and object underlying, which is to mitigate and relieve, to a certain extent, the hardship which would be caused to a workman due to delay in the implementation of an award directing reinstatement of his services on account of the challenge made to it by the employer. Section 17B recognizes a workman’s right to the bare minimum to keep the body and soul together when a challenge has been made to an Award directing his reinstatement. The statutory provisions provide no inherent right of assailing an order or an award by an industrial adjudicator by way of an appeal. The payment which is required to be made by the employer to the workman has been held to be akin to a subsistence allowance which is neither refundable nor recoverable from a workman even if the Award in his favor is set aside by the High Court. In , Dena Bank v. Kiritikumar T. Patel the Apex Court was of the view that the object under Section 17B of the Industrial Disputes Act, 1947 is only to relieve to a certain extent, the hardship that is caused to the workman due to the delay in implementation of the Award.
15. Moreover granting relief under Section 17B of the Act and passing orders directing payment of wages last drawn, is generally the rule; refusing to grant relief under Section 17B is an exception, as the relief could be denied only in the rarest of the rare cases of jurisdictional error where there is no relationship of employer and employee between the parties.
16. Thus if the requisites of Section 17B of the Industrial Disputes Act, 1947 are satisfied then no order can be passed denying the workman the benefit of statutory provisions of Section 17B of the Industrial Disputes Act, 1947. The statute requires satisfaction of the following four conditions:
(i) an Award by a Labour Court, Tribunal or National Tribunal directing reinstatement of a workman is assailed in proceedings in a High Court or the Supreme Court;
(ii) during the pendency of such proceedings, employer is required to pay full wages to the workman;
(iii) the wages stipulated under Section 17B are full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any Rule;
(iv) such wages would be admissible only if the workman had not been employed in any establishment during such period and an affidavit had been filed to such effect.
17. The practice of disposal of the petition as well as the application under Section 17B of the Act contemporaneously was deprecated by the Apex Court and the High Court was directed to first expeditiously dispose of the application under Section 17B by the Supreme Court by its decision reported at , Workmen Hindustan Vegetable Oil Corporation Ltd. v. Hindustan Vegetable Oil Corporation Ltd. and Ors. While considering an application under Section 17B of the Industrial Disputes Act, the Court cannot go into the merits of the case in the writ petition. It was so held in 86 (2000) DLT 510 : 2000 (5) AD (Delhi) 413, Anil Jain v. Jagdish Chander.
18. Whether the applicant is entitled for last drawn wages or something more. In entitled Town Municipal, Athani v. P.O. LC Hugli and Ors. it was held by the Apex Court that a workman has a legal right to wages under the Minimum Wages Act, 1948 and cannot be diverted to a remedy under Section 20 of the Minimum Wages Act for enforcing such right. In this case, the Apex Court was concerned with the power of the Act under Section 33(C)(2) of the Industrial Disputes Act, 1947 and the principles laid down by the Court would have a bearing on the issues raised before this Court as well. From the authoritative pronouncements of the Apex Court, the right of a workman to an amount equivalent to the wages notified under the Minimum Wages Act, 1948 is thus, in fact, recognition of the constitutional mandate. Full wages last drawn can therefore only mean all the wages that have fallen due at least from the date of the Award.
19. This cannot be disputed that an award has been passed in favor of the applicants and against the petitioner directing reinstatement of applicants with full back wages. Even if it is an ex parte award, the order under Section 17B is a beneficial legislation and no distinction can be carved out between an award which is passed after hearing the contention of the management and an award which has been passed ex parte on the basis of the evidence on record. What emerges from the various decisions referred to hereinabove is that the relevant consideration for passing an order under Section 17B is that the workman had an order in his favor for reinstatement which has been stayed and the workman in unemployed having failed to get any employment in any establishment. Consequently, the ground that an ex parte award has been passed against the petitioner/management cannot be a ground to deny them the relief under Section 17B of Industrial Disputes Act, 1947.
20. The allegations against the applicants other than Shri Suresh Chand are that they are gainfully employed, however, no particulars as to where the other applicants are gainfully employed have been given. Merely on the ground that they are the driver and they could have got the employment, the relief to them under Section 17B cannot be denied, especially because they have deposed on affidavits that they are unemployed since the date of the termination of their services. The allegation against Shri Tilak raj is that he is actively running a private bus and is thus gainfully employed. Again no particulars as to which bus and in what manner and where it is being run by the applicant, Shri Tilakraj, has been given.
21. In respect of applicant, Shri Suresh Chand, it is stated that he is gainfully employed and a certificate of M/s Alert Protection & Security has also been produced by the petitioner. The perusal of undated certificate produced by the petitioner from M/s Alert Protection & Security, however, reveals that it is only for employment of the applicant, Shri Suresh Chand, from July 2001 up to March 2003 as he was employed from July 2001 to March 2003. On the basis of this certificate, it cannot be inferred that the petitioner/applicant, Shri Suresh Chand, has been employed after March 2003. As far as non disclosure of employment by the applicant, Shri Suresh Chand, before the Labour Court before the award dated 28th February, 2003 was passed with arrears of full back wages, the same shall be considered while considering the merits of directing reinstatement with full back wages. On the ground that the employment after termination on 19th May, 1997 from July 2001 to March 2003 was not disclosed, the relief under Section 17B of Industrial Disputes Act, 1947 cannot be denied to said applicant in the present facts and circumstances. Learned Counsel for the petitioner is also unable to show any precedent or any rule whereby the relief which is in the nature of a beneficial legislation to unemployed workman can be denied.
22. In the circumstances, the petitioner has not been able to make out any cogent reason for denying the relief claimed by the applicants. Consequently, for the foregoing reasons, the application is allowed. The petitioner is directed to pay the last drawn wages or minimum wages whichever is higher to the respondent/applicant from the date of award i.e. 28th February, 2003, however, the applicant Sh. Suresh Chand shall be entitled for last drawn wages or minimum wages whichever is higher from 1st April, 2003. Arrears be paid to the applicants within eight weeks. The petitioner shall continue to pay the last drawn wages or minimum wages whichever is higher by the 15th day of every English Calendar month during the pendency of the present writ petition unless this order is set aside or modified. The respondents/applicants are also directed to give an undertaking that in case the petition is allowed, they shall refund/repay the different of amount of last drawn wages and the minimum wages within such time which may be permitted by this Court. The undertakings be filed by the respondents/applicants within four weeks.