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IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SHAKDHER, TALWANT SINGH, JJ.
North Delhi Municipal Corporation – Appellant
Versus
Bal Kishan and Another – Respondents
L.P.A. No. 258 of 2020
Decided On : 24-12-2021
Industrial Disputes Act, 1947 - Section 17B - Minimum Wages Act - Code of Civil Procedure, 1908 - Section 151 - Workmen - Minimum Wages - Reinstatement - Seeking Direct the Appellant to pay full wages last drawn inclusive of maintenance allowance or minimum wages fixed and revised from time to time under Minimum Wages Act Whichever is higher w.e.f. 28.05.2007 to till the final disposal of present Appeal - Applicant/respondent no. 1 in his application that present appeal was preferred by appellant-Corporation/North Delhi Municipal Corporation (NDMC) against judgment passed in W.P. (C) - So, applicant-workman moved this application under Section 17B of Act praying for payment of full back wages last drawn or minimum wages, whichever is higher, inclusive of any maintenance allowance as per provision of Section 17B of Act - It has been specifically stated that respondent no. 1-workman is not gainfully employed in any establishment from the date of award till date.
Finding of the Court:
There is no provision for appeal provided in Industrial Disputes Act against the decision of a labour court, which is in form of an award - However, a writ petition before High Court may be preferred by aggrieved party - It is important to note that cause was frozen, in a sense, before Labour court; in writ petition, workman carried forward the cause because he failed before Labour Court - Observations of Supreme Court in case of Dayawati and Another vs. Inderjit and Others, AIR 1966 SC 1423, being apposite, are extracted hereafter - In present case, it is employer, i.e. NDMC, which has challenged impugned order by filing LPA - As per affidavit of the workman, he is not gainfully employed; he cannot prove negative - We have ordered to pay last drawn wages/minimum wages (whichever is higher) w.e.f. 18.02.2020, as there is no unreasonable delay in moving application under Section 17B - It is made clear that payment of wages and allowances in compliance of present order will not prejudice stand of NDMC in any way and LPA will be heard and decided on merits.
Result: CM Appeal disposed of.
JUDGMENT :
TALWANT SINGH, J.
C.M. Application No. 25761/2020
1. This application has been moved on behalf of the respondent no. 1-workman under Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to ‘the Act’) read with Section 151 of the Code of Civil Procedure, 1908 (in short ‘CPC’) praying as under:
2. It has been mentioned by the applicant/respondent no. 1 in his application that the present appeal was preferred by the appellant-Corporation/North Delhi Municipal Corporation (hereinafter referred to as NDMC) against judgment dated 18.02.2020 passed in W.P. (C) No. 7811/2008 by which the learned Single Judge was pleased to set aside the award dated 28.05.2007 passed by the Labour Court in I.D. No. 645/2006 and vide said order dated 18.02.2020, the learned Single Judge had granted regularization to the workman with 30% back wages and continuity of service for all purposes.
3. The opening paragraph of the award dated 28.05.2007 passed by the learned Presiding Officer, Labour Court No. XVI, defining the terms of reference is reproduced here under:
“Whether the services of Sh. Bal Kishan S/o Sh. Nathu Ram R/o House No. 112, Village Dhaka, Delhi have been terminated illegally and/or unjustifiably by the management and if so, to what sum of money as monetary relief along with consequential benefit in terms of existing laws/Government notification and to what other relief is he are they entitled and what directions are necessary in this respect?”
4. The labour court had dismissed the claim of the workman but the learned Single Judge has set aside the award and granted re-instatement with regularisation but the NDMC, instead of implementing the said judgment has challenged the same before the Division Bench. So, the applicant-workman moved this application under Section 17B of the Act praying for payment of full back wages last drawn or minimum wages, whichever is higher, inclusive of any maintenance allowance as per provision of Section 17B of the Act.
5. It has been specifically stated that the respondent no. 1-workman is not gainfully employed in any establishment from the date of the award dated 28.05.2007 till date. The averments in the application are duly supported by an affidavit of the workman and in the affidavit itself, it has been reiterated that the applicant/respondent no. 1 is not employed in any establishment after passing of the award till date.
6. Notice was issued. The NDMC has filed a joint reply to all the pending applications including the present application on 22.01.2021. The reply to the present application starts from paragraph 16 of the said joint reply. The submission of the NDMC is that even before the learned Single Judge, it had made the submission that the workman was gainfully employed elsewhere but it was difficult to know the exact whereabouts of the work/job done by the respondent no. 1. Hence, proof could not be obtained. The workman left the services of the NDMC in the year 2000 and he was around 27 years of age at that time and it is difficult to accept that such an able-bodied person was sitting at home and not working anywhere to feed his family members. If the present application is allowed, it will pose a burden on the public exchequer as NDMC is facing acute financial crunch and money should not be allowed to go into wrong hands.
7. It has been further stated on behalf of NDMC that if the stand of the workman is admitted that his family members
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