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2008 DIGILAW 333 (DEL)

Delhi Transport Corporation v. Pratap Singh

2008-03-26

SUDERSHAN KUMAR MISRA

body2008
SUDERSHAN KUMAR MISRA, J : 1. This is an application filed by the respondent/workman Mr. Pratap Singh under Section 17B of the Industrial Disputes Act. The instant writ petition came to be filed by the Delhi Transport Corporation impugning the award dated 12.9.2003 in ID No. 391/1996 passed by the Labour Court-VII which held that the services of Mr. Pratap Singh had been terminated illegally by the petitioner. It was also directed that he shall be reinstated with full back wages and continuity of service. On an application moved by the petitioner an interim stay of the effect and operation of the impugned award was also granted by this Court on 28.11.2005. 2. By this application, Mr. Pratap Singh has stated that he is unemployed and could not find gainful employment and that he has been maintaining himself from out of the payment made to him by the petitioner in part implementation of the impugned award. He states that he has been paid salary for the period from 1.6.1990 to 29.2.2004. He has also annexed an affidavit to that effect. This application came to be filed by the workman on 27.10.2007. Counsel for the petitioner had sought time to file reply to this application on 30.10.2007 and she was granted four weeks to do so. Thereafter on 11.1.2008, at the request of counsel for the petitioner, last opportunity was granted to file the reply within two weeks. It was also directed that in case the reply is not filed within the time granted the right to file reply shall stand closed. The time granted to the petitioner for filing a reply in terms of this Courts aforesaid order of 11.1.2008 expired on 25.1.2008. 3. From the record, I find that the reply of the petitioner was filed only on 13.3.2008 i.e. well beyond the time granted. Counsel for the petitioner earnestly pleads that this reply be considered. She states that she was under the impression that the reply had in fact been filed within time. Although the right to file the reply stands closed in terms of the Courts order dated 11.1.2008; however, in the interest of justice, and in view of the fact that there is no objection by counsel for the workman also, the petitioner is permitted to file this reply and the same is taken on record. Although the right to file the reply stands closed in terms of the Courts order dated 11.1.2008; however, in the interest of justice, and in view of the fact that there is no objection by counsel for the workman also, the petitioner is permitted to file this reply and the same is taken on record. I find that the stand taken by the petitioner in the reply is that the respondent/workman has not disclosed the efforts, if any, that were made by him to secure a job during the period in question, and that therefore the application deserves dismissal. Counsel for the petitioner has, however, not been able to place any authority or address any argument in support of the proposition that it was incumbent upon the workman to demonstrate these facts before an order under Section 17B can be made. 4. Counsel for the petitioner also urges that although the writ petition was filed in the year 2005, however, the instant application has only come to be filed in the year 2007 i.e. nearly two years after the filing of the writ petition challenging the award that was passed in favour of the workman. She contends that in view of the fact that the application has been filed after two years, at best the workman can be entitled to relief under Section 17B with effect from the date on which the application was filed, and not earlier. I do not agree. Section 17B of the Act does not admit to any such distinction. The liability of the employer to pay the workman, which is created by that Section, is not limited to the period after the date of his application. On the contrary, Section 17B states that, “the employer shall be liable to pay such workman, during the pendency of such proceedings in the High Court........ if the workman had not been employed in any establishment during such period.......”. To my mind, what Section 17B does, is to create a liability on the employer, and that liability is unequivocal. It is related to the period of pendency of the proceedings in the High Court. Consequently, the only requirement is that the workman should not have been employed in any establishment during such period and his affidavit to that effect should be filed. It is related to the period of pendency of the proceedings in the High Court. Consequently, the only requirement is that the workman should not have been employed in any establishment during such period and his affidavit to that effect should be filed. The expression “such period” has to be read in the light of the expression, “the period of pendency of such proceedings in the High Court......” referred to in the earlier portion of Section 17B. It cannot be said that on the one hand, the workman is required to state on affidavit that he has remained unemployed during the entire period of pendency of the proceedings in the High Court, i.e. to say, from the date the proceedings came to be instituted in the year 2005, and yet, simply because he moved the application under Section 17B in 2007, he will get relief only from 2007 onwards. If it was the intention of the legislature to grant relief under Section 17B only from the date on which he applied, in that case, it would not have required the workman to state on affidavit that he has remained unemployed during the entire period and the requirement could well have been restricted to a statement by the workman that as on the date of his application, he is unemployed. This is an ameliorative piece of Legislation. As held by this Court in Dena Bank Vs. Kirtikumar T. Patel (1999) 2 SCC 106 ; Regional Authority, Dena Bank Vs. Ghanshyam AIR 2001 SC 2270 ; Bharat Singh Vs. Management of New Delhi Tuberculosis Centre (1986) 2 SCC 614 the object of Section 17B is to relieve, to a certain extent, the hardship that is caused to the workman due to delay in the implementation of the award during pendency of the proceedings impugning the said award before the High Court or the Supreme Court. This amount is in the nature of a subsistence allowance and is not refundable or recoverable even if the award is set aside by the superior Courts. This was also reiterated by a Division Bench of this Court in Hindustan Cabinet Pvt. Ltd. Vs. Govt. of NCT of Delhi 95 (2002) DLT 689. Looking to the object of this provision, as also to the clear and unambiguous language thereof, the interpretation canvassed for by the learned counsel for the petitioner cannot be countenanced. This was also reiterated by a Division Bench of this Court in Hindustan Cabinet Pvt. Ltd. Vs. Govt. of NCT of Delhi 95 (2002) DLT 689. Looking to the object of this provision, as also to the clear and unambiguous language thereof, the interpretation canvassed for by the learned counsel for the petitioner cannot be countenanced. The Section cannot be interpreted in a manner that requires the workman to show that he has remained unemployed for a longer period, but will be given relief only for the period after he has moved the application under Section 17B. 5. The interpretation canvassed for is also unacceptable to me for another reason. The Labour Courts award directing reinstatement is also in keeping with the object of Labour Legislation; which is to prevent exploitation of labour in recognition of the weaker economic status of workmen. Under the circumstances, to now hold that although the Labour Court has concluded that the workman is entitled to reinstatement, however, if the decision of the Labour Court remains unimplemented due to a challenge mounted by the employer in the High Court, thereby causing hardship to the workman, he deserves ameliorative relief envisaged under Section 17B only for the period after the date on which he moved the application and not from the date of the Award in his favour, is unacceptable. Furthermore, since he is required to state on affidavit that he has not been employed in any establishment during the entire period that the challenge to the award was pending; there cannot also be any presumption that till he moved the application under Section 17B, he was gainfully employed and therefore did not require the support of Section 17B for that reason. Other reasons, such as poverty or illness, can also prevent the workman from applying. To my mind, the workmans entitlement to payment under Section 17B arises the moment the ingredients mentioned in that Section are satisfied. That the workman shall be entitled to compensation only from the date of application onwards, is not an ingredient of Section 17B. Other reasons, such as poverty or illness, can also prevent the workman from applying. To my mind, the workmans entitlement to payment under Section 17B arises the moment the ingredients mentioned in that Section are satisfied. That the workman shall be entitled to compensation only from the date of application onwards, is not an ingredient of Section 17B. Therefore, the entitlement having once arisen under Section 17B, a portion of the same, corresponding to the period from the date of the award upto the date the application under Section 17B came to be filed, cannot be lost or extinguished merely because the workman, in whose favour this entitlement has arisen, has not applied to the Court to realise it earlier. To interpret it thus would amount to whittling down the scope and amplitude of an ameliorative provision designed at relieving the hardship caused to the workman due to delay in the implementation of the award. 6. Counsel for the petitioner has stated that there is a decision of Justice Gita Mittal of this Court where in similar circumstances, an application under Section 17B which was filed 2½ years after the filing of the writ petition challenging the award in favour of the workman, and in that case, relief under Section 17B has been granted only for the period after the date of filing of the application. This authority has not been placed before me. In fact counsel for the petitioner has not cited a single authority in support of any of her propositions. In that view of the matter, and also for the reasons stated above, I find myself unable to agree with any of the submissions made by her. On the other hand, counsel for the workman has cited the decision of this Court in Food Craft Institute vs. Rameshwar Sharma which is also a decision by Justice Gita Mittal reported as 134 (2006) DLT 49 for the proposition that interim relief can be granted w.e.f the date of the award. He refers to para 64 of this judgment wherein all the principles laid down in various judicial pronouncements for the grant of interim relief to a workman have been culled out. This is a comprehensive and well reasoned judgment and I do not see any reason to differ from this. Even a Division Bench of Rajasthan High Court in Rajasthan State Road Transport Corporation Vs. This is a comprehensive and well reasoned judgment and I do not see any reason to differ from this. Even a Division Bench of Rajasthan High Court in Rajasthan State Road Transport Corporation Vs. Labour Court & Anr. (1998) 1 LLJ 831, Raj, where the application under Section 17B was made by the workman two years after filing of the writ petition, observed that if all the three ingredients for making an application under Section 17B are fully satisfied, the relief under the Section will be awarded. The delay in making the application will not affect the powers of the Court. 7. Under the circumstances and for the aforesaid reasons, I am satisfied that ingredients of Section 17B have been made out and the workman is entitled to relief under the said Section. 8. Counsel for the workman also states on instructions that his client is ready and willing to report for work with the petitioner. Counsel for the petitioner states that she would like to seek instructions as to whether the petitioner corporation would like to take work from the workman without prejudice to its rights and contentions in the petition. In the event that the petitioner corporation wishes to take work from the workman, it would be open to the corporation to give the petitioner one weeks time to report for work. In the event such notice is given to the workman, the workman will be bound to report for work. As the workman has already received salary upto 29.2.2004, he shall be paid his wages during the pendency of these proceedings in terms of the last salary drawn w.e.f. 01.03.2004. Let the arrears be paid within six weeks. 9. The application is disposed of.