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Kendriya Vidyalaya Sangathan v/s Praveen Kumar


Company & Directors' Information:- PRAVEEN INDIA LTD . [Active] CIN = L21029WB1983PLC036326

Company & Directors' Information:- PRAVEEN & COMPANY PRIVATE LIMITED [Strike Off] CIN = U99999DL1999PTC098397

    W.P.(C) No. 16146 of 2004

    Decided On, 18 January 2018

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE C. HARI SHANKAR

    For the Appellant: Rajappa, Advocate. For the Respondent: N.D. Pancholi, Advocate.



Judgment Text

1. Praveen Kumar, who was employed as a watchman with the petitioner-Kendriya Vidalaya Sangahthan (hereinafter referred to as "KVS") since 29th October 1982 raised an industrial dispute, contending that his services had been unjustly terminated, by the KVS, on 23rd May 1992. The Ministry of Labour referred the said dispute, for adjudication, to the Industrial Tribunal (hereinafter referred to as "the Tribunal"), vide letter dated 05th September 1997. The term of reference read thus:

"Whether the action of the management of Kendriya Vidyalaya Sangathan in terminating the services of Sh. Praveen Kumar, Watchman, Kendriya Vidyalaya at NTPC, Badarpur, New Delhi w.e.f. 23.05.1992 is justified? If not, what relief the workman is entitled to?"

2. Among other issues, KVS questioned the jurisdiction, of the Tribunal, to adjudicate on the matter. KVS contended that the appropriate forum, to adjudicate thereon, was the Central Administrative Tribunal (hereinafter referred to as "CAT"), and that, therefore, the Industrial Tribunal was coram non judice. The learned Tribunal rejected the said contention, relying on Krishan Prasad Gupta v. Controller, Printing and Stationery, AIR 1996 SC 408. On merits, the termination, of the services of the respondent, by KVS, was held to be unjustified and, consequently, the respondent was directed to be reinstated in service with 50% back wages, with effect from 23rd May 1992 i.e. the date of his termination. Failure to comply with the award, within a month from publication thereof, it was directed, would entail 6% interest per annum on the back wages.

3. KVS challenged the aforementioned award, dated 16th July 2004, before this Court, by means of the present writ petition. The writ petition does not assail the impugned award on merits, and confines its challenge to the issue of jurisdiction, reiterating that the Tribunal was incompetent to hear and adjudicate on the issue, which lay within the province of jurisdiction of the CAT.

4. While issuing notice on the present writ petition, the operation of the impugned award was stayed, by this Court, vide order dated 06th October 2004. The said stay order continues till date.

5. As is inevitable in such cases, the respondent moved an application (CM No.525/2005), in the present proceedings, under Section 17 of the Industrial Disputes Act, 1947 (hereinafter referred to as "the ID Act"), for being paid @ Rs. 5,000/- per month, from the date of the impugned award till the disposal of the petition. The said application was disposed of, by this Court, vide order dated 04th May 2005, which read thus:

" This is an application under Section 17-B of the Industrial Disputes Act, 1947 (in short the 'ID Act') praying that interim relief/benefits at the rate of Rs. 5000/- per month from the date of the impugned award dated 16th July, 2004 till disposal of the petition under Section 17B of the I.D. Act be granted in favour of the respondent/workman. It is further prayed that petitioner be directed to release the arrears of back wages in terms of the impugned award.

It is stated that applicant-workman has been unemployed from the date of his termination. The last drawn wages of the workman was at Rs. 2600/- and at present a watchman is drawing about Rs. 7,000/- per month with the petitioner management. The application is opposed by the petitioner. A bald averment is made to the effect that respondent-workman is gainfully employed. However, no material is placed before this Court in support of this submission.

I have heard learned counsel for the parties.

By the impugned award passed in I.D. No. 129/97, the Presiding Officer, Central Government Industrial Tribunal Cum Labour Court No. II, New Delhi held that workman deserved to be reinstated from 23rd May, 1992 with 50% back wages.

The provisions of Section 17-B are mandatory in nature and wherever the High Court is inclined to grant interim stay of operation of the award, it will be obligatory on the Court to protect the workman by payment of last drawn wages under the provisions of Section 17-B of the Act.

Accordingly, the respondent/workman shall be paid the arrears of wages last drawn by him or the minimum wages whichever is higher from the date of the award till date and thereafter such payment will be continued to be made month to month. Arrears of wages are directed to be paid to the respondent/workman within six weeks from today.

The application stands disposed of."

(Emphasis supplied)

6. It appears that, unhappy with the manner in which the petitioner was complying with the aforementioned order dated 04th May 2005, the respondent moved this court by way of Cont. Cas. 446/2014. The said Contempt Case was disposed of, by this Court, vide order dated 02nd July 2014, the relevant portion of which reads as under:

" This contempt petition has been filed by the petitioner for initiating the contempt proceedings against the respondents for non-compliance of the order dated May 04, 2005. It is his own case that after 2010, he has been making repeated representations for grant of the benefits under Section 17-B of the Industrial Disputes Act, 1947 ('Act' in short) in terms of the order dated May 04, 2005, which the respondents have failed to comply.

In the application, the petitioner tried to justify the delay on the ground that the benefits in terms of order dated May 04, 2005 are payable every month. Hence, it is a continuous cause of action. It is his submission that the petitioner, who despite award in his favour for reinstatement, is suffering as there are no means of sustenance. Having considered the submissions made by the learned counsel for the petitioner, suffice to state that the benefits, the petitioner is seeking under the guise of this contempt petition is in effect, are arrears of wages.

It is a settled position of law that if the employer has denied the benefits under Section 17-B of the Act despite order in the favour of the workman on an application under Section 17-B of the Act, the remedy for the workman is to file an application under Section 33(c)(1)of the Act.

I refer to the judgment of the learned Single Judge of this Court in case titled as Vimal Kumar v. Ramesh Negi and Anr., Cont. Cas.(C) 173/2011, decided on April 01, 2011.

In view of the above, I do see any reason to issue notice in the present petition. The petitioner is better advised to seek remedy under Section 33(e)(1) of the Act. The contempt petition along with miscellaneous application are accordingly dismissed.

No order as to costs."

7. In accordance with the directions contained in the aforementioned order dated 02nd July 2014, of this Court, the respondent moved the Regional Labour Commissioner under Section 33 (c) (1) of the Act.

8. Before the Regional Labour Commissioner, it was sought to be contended, by KVS, that it was obliged to pay any amount, to the respondent, in excess of the wages last drawn by him on the date of his termination i.e. 23rd May 1992. The Regional Labour Commissioner did accept the said submission, as is reflected in order dated 23rd April 2015 passed by him, which reads thus:

" It transpired that the Management of Kendriya Vidyalaya has understood the terminology "last drawn wages or minimum wages" by the last drawn wages or the minimum in the scale at the time of termination of services of the workman". It was explained to the authorized representative of management that minimum wages means the wages fixed by the Govt. under the provision of Minimum Wages Act, 1948, which at present in respect of the employee of watch & ward is much more than what they are paying to the watchman. The A/R of Mgt appears to have been convinced about the explanation and requested for 3 weeks time either to make the payment or submit their explanation for making the payment.

A copy of order fixing the minimum rates of wages issued by (LCCC) for the employment of watch & ward showing the minimum rates of wages of watchman(without Arms) in 'A' class cities is Rs. 365/- per day w.e.f. 01.04.15 was handed over to the A/R of Mgt. He was also advised to find out the minimum rates of wages for the period prior to 01.4.15 and make the payment at these rates, if these rates are higher than what they have been paying. The next date is fixed for 25.5.2015 at 11.am".

9. CM No.9195/2015 was, thereafter moved, by the KVS, before this Court in the present proceedings, seeking stay of the proceedings pending before the Regional Labour Commissioner under Section 33 (c) (1) of the ID Act. The following order was passed, on the said CM, by this Court, on 20th May 2015:

"1. Vide the present application the applicant/petitioner has made a request for stay of the execution proceedings before the Regional Labour Commissioner under Section 33 (c) (1) of the Industrial Disputes Act.

2. Learned counsel for the petitioner has argued that the petitioner has been making payment to the respondent/workman pursuant to the order of this court dated 04.05.2005 passed under Section 17-B of the Industrial Disputes Act. It is further submitted that despite that respondent/workman had moved a contempt application which was dismissed by this court vide order dated 02.07.2014. It is further submitted that the order of this court dated 08.05.2009 clearly records the fact that the applicant/petitioner has complied with the directions of this court dated 04.05.2005.

3. I have heard the arguments and perused the file.

4. This position that the petitioner had been paying the wages in compliance of the directions of this court vide order 04.05.2005 is recorded in order dated 08.05.2009 and it was valid till that date. The order dated 02.07.2014 clearly shows that the workman was given liberty to take his remedy for unpaid wages under Section 33 (c) (1) of the Industrial Disputes Act. The workman accordingly had moved the appropriate authority under Section 33 (c) (1) of the Industrial Disputes Act. Vide order dated 23.04.2015, the Regional Labour Commissioner had asked the petitioner/applicant to find out the minimum rates of wages for the period prior to 01.04.2015 and make payment at these rates, if these rates are higher than what they have been paying. The contention of the petitioner is that he has been regularly paying the wages to the workman as per the minimum wages. The petitioner, however, has placed on record any document to show the due payment of the wages to the workman/respondent in compliance of order of this court under Section 17-B of the Industrial Disputes Act.

5. Learned counsel for the petitioner undertakes to file the document if time is given. The petitioner is at liberty to place any such document on record.

6. In view of the above, no ground for passing of the order of stay exists at this stage.

7. On the petitioner taking necessary steps within a week, issue notice of the application to the non-applicant/respondent by ordinary process, registered A/D cover and through approved courier, returnable on 10.07.2015. Dasti be taken.

8. The petitioner seeks liberty to show the payment receipts of the wages before the concerned authority on the next date i.e. 25.05.2015 fixed there. The liberty is granted."

10. Purportedly in compliance with the directions issued in the aforementioned order dated 20th May 2015, KVS placed, on record, details of the wages paid to the workman, pursuant to the order dated 04th May 2005 (supra) passed by this Court. In view thereof, this Court, vide order dated 10th July 2015, stayed the proceedings, under Section 33 C (1) of the ID Act, pending before the Regional Labour Commissioner.

11. Pursuant thereto, reply to CM 9195/2015 was filed by the respondent and rejoinder, thereto, was filed by the petitioner. The respondent contended that the amounts paid to him were below the minimum wages, as revised from time to time. Per contra, the petitioner's submission was that it was bound to pay the respondent a penny more than the wages drawn by him at the time of his termination on 23rd May 1992, though, on its own volition, it had periodically increased the amount.

12. The respondent, too filed an application, (CM 30631/2015), seeking issuance of directions to KVS to pay him arrears of wages, as per the minimum wages under the Minimum Wages Act, as amended from time to time. The said application is also pending, as on date.

13. Insofar as the present writ petition is concerned, KVS has chosen to challenge the impugned award, dated 16th July 2004, of the Tribunal, on merits. Its only submission is that the Tribunal had acted in excess of jurisdiction, as the proper forum, having jurisdiction to adjudicate on the claim of the respondent, was the CAT.

14. Mr. Rajappa, appearing for the petitioner, has relied, for this proposition, on the judgment of the Supreme Court in KVS v. Subhash Sharma, (2002) 4 SCC 145, which holds that, in respect of service matters of employees of the KVS, the CAT has jurisdiction, in view of sub Clause (iii) of Section 14 (1) (b) of the Administrative Tribunal's Act, 1985 (hereinafter referred to as "the AT Act").

15. Per contra, Mr. Pancholi, learned counsel appearing for the respondent, relies on Section 28 of the AT Act, as also on the judgment of the Supreme Court in CSIR v. Padma Ravinder Nath, (2001) 9 SCC 526, Directors, Government of India v. General Secretary Central Government Small Scale Industries Organizations Employees Union, AIR 1999 SC 553 and Krishan Prasad Gupta (supra).

16. The issue is no longer res integra. A Single Bench of this court has pronounced, thereon, in Kendriya Vidyalaya v. Sushil Kumar, ILR (2007) II Delhi 339, in which, too, incidentally, reliance had been placed, by the court, on Krishan Prasad Gupta (supra). Relying on Section 28 of the AT Act, which excluded the jurisdiction, of all courts, except the Supreme Court and labour courts/industrial tribunals, to adjudicate on service matters concerned with notified organizations, this court held, clearly and unequivocally, that the jurisdiction, of the labour court or industrial tribunal, in respect of service matters concerning workmen of the KVS, which were amenable to adjudication under the ID Act, stood statutorily saved. I respectfully concur with the said judgement, which demolishes the submission of Mr. Rajappa, regarding the jurisdiction of the learned Tribunal to pass the impugned award, in toto.

17. The judgment in KVS v. Subhash Sharma (supra), on which Mr. Rajappa places reliance, did deal with an issue which was amenable to the jurisdiction of the Industrial Tribunal and, consequently, did attract Section 29 of the AT Act at all. It held, generally, that service matters, of employees of the KVS, would be amenable to the jurisdiction of the CAT; regarding which proposition there can possibly be no cavil.

18. Resultantly, the sole objection, of Mr. Rajappa, to the impugned award, is rejected.

19. Mr. Rajappa informs me that the respondent workman would, had he continued in service have superannuated in October 2017. There can, therefore, be no question of reinstating him in service. At the same time, as the impugned award has been challenged on merits and has been challenged only on the ground of jurisdiction, which I have rejected hereinabove, the remainder of the said order would continue to operate against the petitioner and in favour of the respondent. In other words, the respondent would be entitled to 50 % back wages, from the date of his termination till the date of his superannuation. He would also be entitled to fixation of his pensionary benefits on that basis.

20. In so far as CM Nos.6195/2015 and 30631/2015 are concerned, the submission that under Section 17B of the ID Act, the KVS would be liable to pay the respondent only the last drawn wages till the date of his superannuation, obviously cannot sustain, in view of the order, dated 04th May 2005, passed by this Court. The said order categorically directed the respondent be paid arrears of wages last drawn by him or the minimum wages whichever is higher from the date of the award, and to continue such payment month to month. The order dated 4th May 2005 was never challenged by KVS, and it is too late in the day for KVS to urge, now, that its liability, qua the respondent, was on the basis of the pay last drawn by him at the time of his termination. The legal position in this regard is no longer open to doubt; in Authorized Officer (Land Reforms) v. M.M. Jacob, (1998) 9 SCC 138, it has been clearly held thus:

"According to the appellant once the judgment on the basis of which the High Court had directed to dispose of the dispute relating to the excess land had been reversed by this Court, the Authorized Officer was justified in following the judgment of this Court instead of the judgment of the High Court. It need be pointed out that the order passed by the High Court attained finality as it was challenged before the Supreme Court. The order passed by the High Court directing the Authorized Officer to examine the dispute in the light of the judgment of the High Court in the case of Naganatha Ayyar v. Authorized Officer [84 LW 69] became final although the judgment on which the grievance had to be examined itself was reversed later by this Court. We find no fault with the reasoning of the High Court. It is well settled that even orders which may be strictly legal become final and are binding between the parties if they are challenged before the superior courts. In the result the appeal fails and it is dismissed."

(Emphasis supplied)

Resultantly, in case the minimum wages, payable under the Minimum Wages Act, as revised from time to time, was, during any month, more than the wages last drawn by the respondent, the KVS would clearly be bound to pay the respondent the minimum wages statutorily fixed, and the pay last drawn by him. This contention of Mr. Rajappa is, therefore, rejected.

21. Incidentally, I may note that this Court had, in Paramjit Si

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ngh Ahuja v. P.O. Labour Court, directed, in a similar vein, that the respondent (in that case) be paid "the wages last drawn by him which should be less than the minimum wages applicable from time to time". 22. It is possible for this Court to embark on a calculation of the amount that would be payable to the respondent, by the appellant, on the above basis. Such an exercise would best be undertaken by the Tribunal. 23. This writ petition is, therefore, dismissed, subject to the following directions: (i) 50% of the wages that the respondent would have drawn, along pensionary and retiral benefits, worked out on that basis, from October 2017 (when he would have superannuated in normal course) till date, shall be disbursed, to him, by the petitioner, within one week of the date of receipt, by the petitioner, of a certified copy of this judgement. In doing so, the amount already paid to the respondent, under Section 17-B of the Act, shall be adjusted. (ii) The petitioner shall continue to disburse pensionary and retiral benefits, to the respondent, on the above basis. (iii) The matter is remanded to the Industrial Tribunal, having jurisdiction therein, solely for the purpose of working out the amount payable to the respondent under Section 17-B of the Act, in the light of the findings contained in para 22 supra. This exercise shall be completed within a period of 6 months from the date of presentation, by either party, before the Tribunal, of a certified copy of this judgement. Parties are directed to appear, before the Tribunal, for preliminary hearing on this issue, on 31st January 2018. (iv) Thus worked out, if it is found that any further payment is required to be made, to the respondent, under Section 17-B of the Act, in excess of the amount paid under (i) above, such amount shall also be disbursed, to the respondent by the petitioner, within 4 weeks of such determination by the Tribunal. 24. There shall be no order as to costs.
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10-01-2017 Praveen Kumar Versus The State of Rajasthan through P.P. High Court of Rajasthan Jodhpur Bench
15-12-2016 Korra Praveen Versus The State of Telangana, Rep. by its Public Prosecutor In the High Court of Judicature at Hyderabad
22-11-2016 Reena Kumari & Others Versus Praveen Kumar & Others Supreme Court of India