Rama Rolling Shutter Industries vs Sh. Raj Bahadur S/O Sh. Jagat Pal, ...
2006 Latest Caselaw 9 Del

JUDGMENT

Madan B. Lokur, J.

Page 145

1. The Appellant is aggrieved by an order dated 13th May, 2005 passed by a learned Single Judge in an application under Section 17B of the Industrial Disputes Act, 1947. Although affidavits were filed by Respondents 1 and 2 separately, we are concerned in this appeal only with regard to the application and affidavit filed on behalf of Respondent No. 2.

2. Learned counsel for the Appellant has brought to our notice that in the affidavit dated 10th March, 2004 filed by Respondent No. 2 it has been stated in paragraph 2 thereof that he was unemployed and has been subsisting on alms provided by his parents and other family members. It is stated that occasionally Respondent No. 2 worked as a vendor of vegetables on a bicycle earning about Rs. 25 to 30 per day of work. Paragraph 2 of the affidavit reads as follows:

2. That I am unemployed from 14.11.1991 todate and I have been subsisting on the alms provided by my parents and other family members. Occasionally I worked as Vendor of Vegetables on bicycle earning about Rs. 25 to 30 per day of work. This work also is not regular because of perishable nature of vegetables.

3. The Appellant filed a reply affidavit in January, 2005 of one of its partners and in paragraph 3 of the reply it is stated that Respondent No. 2 had been Page 146 working even prior to the award given by the Labour Court in an establishment called M/s. Goel Rolling Shutter situated at D-335, Janta Market, Raghubir Nagar, New Delhi on wages not less than the minimum rate. It was denied that Respondent No. 2 was unemployed. Paragraph 3 of the affidavit reads as follows:

3. That besides, as per the knowledge of the concerned partner of the petitioner Shri Darshan Malhotra, the respondent No. 2 has been employed, even prior to the award, in the establishment M/s. Goel Rolling Shutter, situated at D-335, Janta Market, Raghubir Nagar, New Delhi-110027 on wages not less than the minimum rate of wages prescribed by the Delhi Govt., therefore, the contention of the respondent No. 2 that he is unemployed is totally false and baseless and because of the employment of the respondent No. 2 on adequate remuneration, he would not be entitled to any interim relief under section 17B of the Act and his application is, therefore, liable to be rejected.

4. Respondent No. 2 filed a rejoinder affidavit dated 31st January, 2005 where he took up a different stand in which it was mentioned that Mr. Goel of M/s. Goel Rolling Shutter is a philanthropist who has been helping Respondent No. 2 with money and alms; wherever possible the obligation of Mr. Goel is repaid by work done by Respondent No. 2. Paragraph 3 of the rejoinder affidavit reads as follows: -

3. Wrong and denied. Mr. Goel of M/s. Goel Rolling Shutter, situated at D-335, Janta Market, Raghubir Nagar, New Delhi 110027 is a philanthropist who has been helping Respondent No. 2 with money and alms. Whenever possible the obligation of Shri Goel is repaid by work by Respondent No. 2. This is charity and not a regular employment. Obviously the information of Shri Darshan Malhotra is wrong and he is making a concocted story of employment of the workman with M/s. Goel Rolling shutter.

5. On 8th February, 2005, the learned Single Judge granted six weeks time to Respondent No. 2 to file an additional affidavit in support of the averments made by him in his rejoinder affidavit. In compliance with this order, Respondent No. 2 filed a revised affidavit dated 21st March, 2005 in which he reiterated what he said in his rejoinder affidavit and added that he had put in about 40-45 days of work with M/s. Goel Rolling Shutter in 2002, 2003 and 2004 He denied having worked in 2005 and stated that in all he had earned about Rs. 10,000/-. Paragraph 2 of the revised affidavit filed by Respondent No. 2 reads as follows: -

2. That as said in my Rejoinder to the petition Shri Goel has been providing us alms and monetary help. This obligation is repaid by working for Goel Rolling Shutter whenever sought by them. From the period form 01.07.2002 i.e. the date of Award of Labour Court such work has been performed for not more than 40 days in the year 2002 and 45 days in the year 2003 and about 45 days in year 2004 No work so far has been provided in the year 2005. In all I have earned about 10,000/- approximately from this work.

6. The Appellant then filed an affidavit of one of its partners on 4th April, 2005 in which the inconsistencies in the affidavits of Respondent No. 2 were brought out. It was also stated that the deponent had personally visited the premises Page 147 of M/s. Goel Rolling Shutter along with another relative and a photographer on 9th April, 2005 and a video recording of Respondent No. 2 working with M/s. Goel Rolling Shutter was made. It was also stated that they had talked to Mr. Goel who confirmed that Respondent No. 2 had been working with him for the last few years on monthly wages of Rs. 4,000/-. The averment made by the partner of the Appellant in the reply affidavit reads as follows: -

7. That the revised affidavit of the respondent No. 2 was vague and evasive and M/s. Goel Rolling Shutter is not a seasonal establishment but is continuously engaged in the work of manufacturing/repairs of rolling shutters, at fairly large scale, for carrying out which work, regular work force is required by it and accordingly, in order to obtain material that the respondent No. 2 was deliberately making false statement before the Hon'ble Court in his affidavit, the Deponent and his relative Shri Indresh Malhotra, went along with a hired photographer to the establishment of M/s. Goel Rolling Shutter, situated at D-335, Janta Market, Raghubir Bagar, New Delhi-110027 on 9.4.2005 at about 3.00 p.m. and found that the respondent No. 2, Samarjit Singh, when I can identify, was working at the site along with four-five other persons. The Cameraman, with us, while sitting in the car, video recorded the respondent No. 2 working at the site and also made still photographs, which 4 in number, showing the respondent No. 2 working at the site, are being annexed herewith as Annexure P-8 colly.

8. That we also talked to Mr. Goel, who was present at the site and enquired from him regarding the status of the Respondent No. 2 and Shri Goel informed us that the Respondent No. 2 Samarjit Singh had been employed in his establishment M/s. Goel Rollling Shutter for the last few years on monthly wages of Rs. 4000/-. The C.D. prepared by the photographer of our visit to the site can be shown to the Hon'ble Court, if so desired.

7. Respondent No. 2 did not file any affidavit in response to the reply affidavit filed by the Appellant in April, 2005 nor did he take time to do so.

8. Under the circumstances, we are of view that since the final affidavit of the Appellant has gone rebutted, it must be deemed to be correct. It is categorically mentioned that Respondent No. 2 was working with M/s. Goel Rolling Shutter and that the deponent had also a talk with Mr. Goel who confirmed the employment of Respondent No. 2.

9. We find from the impugned order that the learned Single Judge seems to have overlooked the latest affidavit of the Appellant. The learned Single Judge observed that no material has been placed on record to show that Respondent No. 2 is gainfully employed with M/s. Goel Rolling Shutter or that he is receiving any remuneration. There are two specific and categorical affidavits filed by the Appellant to the effect that Respondent No. 2 is working with M/s. Goel Rolling Shutter. Since Respondent No. 2 had stated on affidavit that he has not worked for M/s. Goel Rolling Shutter in 2005, the Appellant actually went to the premises of M/s. Goel Rolling Shutter and found Respondent No. 2 working over there and even took a video recording of Respondent No. 2 performing his duties. A partner of the Appellant had also spoken to Mr. Goel who confirmed that Respondent No. 2 was working with him. If Mr. Goel Page 148 is a philanthropist, as claimed by Respondent No. 2, surely he could have filed his affidavit denying the allegation of employment but no such steps were taken by Respondent No. 2.

10. Under the circumstances, we are of opinion that the learned Single Judge erred in accepting the contention of Respondent No. 2 that he was unemployed and, therefore, was entitled to wages under Section 17B of the Industrial Disputes Act. The material on record shows that Respondent No. 2 was (and apparently continues to be) employed by M/s. Goel Rolling Shutter. Since the ingredients of Section 17B of the Industrial Disputes Act have not been made out by Respondent No. 2, there is no option but to set aside the impugned order in so far as it relates to Respondent No. 2.

11. The appeal is, accordingly, allowed. No costs.