DELHI TRANSPORT CORPORATION Vs. PRATAP SIGH

JUDGEMENT

(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. 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 Court's aforesaid order of 11. 1. 2008 expired on 25. 1. 2008.

(2.) 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 Court's 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.

(3.) 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. a. 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 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 the 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 hot 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 toy 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 v. Kirti kumar T. Patel, 1999 (2) SCC 106: 1998 (78) FLR 45 (SC): 1998 llr 1 (SC); Regional Authority, Dana Bank v. Ghanshyam, 2001 (90) FLR 365 (SC): 2001 LLR 64 (SC); Bharat Singh v. Management of New Delhi tuberculosis Centre, 1986 (2) SCC 614: 1986 (52)FLR 621 (SC) 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 carbide Pvt Ltd. v. Government of NCT of Delhi, 2002 (95) DLT 689: 2002 LLR 148 (Del HC ). 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 fbr the period after he has moved the application under section 17b.