Shri Iklash Hussain vs Delhi Transport Corporation
2006 Latest Caselaw 1857 Del

JUDGMENT

Mukul Mudgal, J.

1. This LPA challenges the order dated 11th August, 2006 of the learned Single Judge by which the learned Single Judge in an application filed by the appellant under Section 17B of the Industrial Disputes Act (hereinafter referred to as the Act), directed the appellant to state on affidavit how he was surviving, his source of livelihood, how many children he had, whether and where his wife was employed and what was her salary. For ready reference the order is reproduced hereunder:

Reply to the application has been filed today. Copy given. Registry to place reply on record. I have perused the affidavit filed by the applicant. In the affidavit he has simply stated that he is unemployed and he has not been able to get employment. He has not stated as to what is his source of livelihood, how many children he has, how he was surviving, whether his wife is unemployed and where she was employed and what was her salary. Let a proper affidavit be filed giving all details within two weeks with copy to opposite counsel. It is submitted by counsel for the respondent that he shall file counter during the course of day. Rejoinder, if any, be filed within four weeks. Post on 15th September, 2006 for disposal of application under Section 17B of Industrial Disputes Act.

2. The grievance of the learned Counsel for the appellant is that these details called for by the learned Single Judge could not be asked for and were not required to be furnished in an application under Section 17B of the Act. However, in order to demonstrate his bonafides, the appellant/applicant nevertheless filed an affidavit to that effect in this Court even though he was not required to file the same according to the mandate of Section 17B and the position of law laid down in respect of Section 17B of the Act. The learned Counsel for the appellant has submitted that the requirement of Section 17B is discernible from the contents of the said Section which reads as follows:

17-B. Payment of full wages to workman pending proceedings in higher courts. Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:

Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof, the Court shall order that no wages shall be payable under this section for such period or part, as the case may be.

3. The learned Counsel for the appellant submitted as follows:

(a) That the following details are required to be stated on affidavit in order to sustain an application under Section 17B of the Act:

(i) That an award of reinstatement by the Industrial Tribunal subsists in favor of the applicant/workman.

(ii) The employer has challenged the said award before the High Court or the Supreme Court.

(iii) That the applicant/workman has filed an affidavit stating that he is not employed in any establishment.

(b) The self employment or sustenance to survive could not be termed as employment in an establishment so as to disentitle the workman emoluments under Section 17B of the Act. Thus filing of such an affidavit as directed by the learned Single Judge mocks the poverty of the appellant. (c) In support of the above averments, the learned Counsel for the appellant has relied upon the judgment of this Court in Taj Services Limited v. Industrial Tribunal-I and Ors. 2000 Vol. I LLJ 1012, and in particular paragraph 11 thereof, which reads as under:

... Even in the case of respondent Nos. 2, 4 and 10 the allegation is that they are running their own business but the said allegation is denied by the learned Counsel for the respondents. According to the learned Counsel for the respondents, even if the workman runs the petty business for the survival of himself and his family, it will not disentitle the workman for the benefits under Section 17B of the Industrial Disputes Act....

... I find force in the contention of the learned Counsel. As per Section 17B the workman is required to file an affidavit to the effect that he had not been "employed in any establishment". Hence, under the proviso of Section 17B of the Industrial Disputes Act what is required to be proved by the employer is that the workman had been employed in an establishment and had been receiving adequate remuneration from such employment. Being employed for remuneration in an establishment means employment under another employer. It is different from running one's own business or trade in order to remain alive to see the end of the litigation. Hence I accept the contention of the learned Counsel for workmen that respondents 2, 4 and 10 cannot be denied the benefit under Section 17B of the Industrial Disputes Act on the ground that they are running their own business and are receiving profit from such business.

(d) In Delhi Transport Corporation v. The Presiding officer, Labour Court No. 1, Delhi and Ors. 2002 II AD (Delhi) 112, a learned Single Judge held as under:

11. It has been contended that since the workman has himself pleaded that he had managed to obtain some temporary driving assignments, he is not entitled to claim any amount under Section 17B of the I.D. Act. This is a repetition of the arguments raised by him in previous hearings, and the relevant portion of the Order passed on 24.5.2001 needs to be reiterated. Even after the passage of several months, in which period I had the advantage of hearing several other Counsel on this very issue, I find no reason to depart from the view expressed by me earlier. While considering this very application it had been recorded in the said order dated 24.5.2001 that "Mr. J.C. Seth, learned amices Curiae draws the support of a decision of the Supreme Court in Rajinder Kumar Kindra v. Delhi Administration Through Secretary (Labour) and Ors. , in which it has been observed that if the Workman concerned derives some income while staying with father-in-law and helping him in the family business, that cannot be treated as a 'gainful employment'. Hence he would still be entitled to full back wages....

In para 13, the learned Single Judge observed as under:

... Is the employer to be allowed to circumvent his liability to pay the subsistence allowance because the employee has an income from sources other than his salary. No such argument has as yet been advanced in service law, quite obviously because of its inherent absurdity. Section 17B of the I.D. Act is attracted as soon as it is stated on affidavit that the concerned workman has not been `employed in any establishment.' The legislature could have simply stated that it is attracted only if the workman has had no earnings in the said period. Alternatively the legislature need not have specified that the employment should be in `an undertaking', thereby leaving room for the Courts to construe the word `employment' as synonymous with `self-employment.' In the proviso to the Section instead of `remuneration', the words `earnings' or `income' could have been employed.

After relying on several judgments, the learned Single Judge held as follows:

Even if it is assumed that the appellant was getting some income from auto-rickshaws as alleged in the counter-affidavit, it would not be sufficient to hold that the proviso to Section 17B is attracted." Self-employment quite apparently is not in contemplation since the Section itself mentions `employment in any establishment'.

(e) The above judgment was upheld by a Division Bench of this Court and the question of security for the wages difference between minimum wages and wages last drawn has also been affirmed by the judgment of the Full Bench of this Court.

4. The learned Counsel for the appellant has also relied upon the judgment of the learned Single Judge of this Court in G.G. Fashion and Ors. v. Smt. Jayanti Negi , in which reliance was placed upon Rajinder Kumar Kindra's case (supra) and two earlier judgments of the learned Single Judges of this Court. The relevant paragraph thereof reads as follows:

15. So far as the expression of "gainful employment in an establishment" is concerned, it has been held by the Courts that the self-employment too is not employment in an establishment....

...

17. It would be useful to advert to the pronouncement of this Court reported at 109 (2004) DLT 1 entitled Birdhi Chand Naunag Ram Jain v. P.O., Labour Court No. IV and Ors. In this case in answer to the workman's application under Section 17B of the Industrial Disputes Act, 1947 management allegation that the workman was selling miscellaneous items in front of Birla Mandir, New Delhi, the workman filed a rejoinder that the amount generated by this activity was not sufficient to sustain his family. Upon consideration of the rival contentions and judicial pronouncements on this issue, the Court held thus:

In any event, self-employment is not a norm for denying back wages as the Section 17B of the ID Act clearly stipulates employment in an establishment. Respondent No. 3/applicant is clearly not employed in any establishment. If in order to sustain himself, the respondent No. 3 enters into a self-employed vacation, it cannot be termed as 'employment in an establishment' contemplated by Section 17B of the ID Act. However, therefore the plea of Mr. Sabharwal which merits consideration is that the writ petition was filed in September, 1999 and the application under Section 17B of the ID Act was filed only on 1st September, 2001. There is no explanation given for this delay. Accordingly, payment under Section 17B is not to be made for the period starting from October, 1999 to August, 2001 as the respondent No. 3/applicant has failed to give any reason for not filing the application earlier.

From the principles laid down in the afore-noticed three pronouncements, it would appear that self employment or assistance rendered to relatives, who were supporting the workman to survive or subsist, would not amount to such gainful employment so as to render him uneligible to grant of an order for wages under Section 17B of the Industrial Disputes Act, 1947.

5. The learned Counsel for the appellant has also relied upon the judgment of a learned Single Judge of this Court in Food Craft Institute and Ors v. Rameshwar Sharma and Anr. 2006 VI AD (Delhi) 189. Paragraph 64 whereof reads as follows:

64. The principles laid down in the various judicial pronouncements noticed above for grant of interim relief to a workman can be culled out thus:

(i) An application under Section 17B can be made only in proceedings wherein an industrial award directing reinstatement of the workman has been assailed.

(ii) This Court has no jurisdiction not to direct compliance with the provisions of Section 17B of the Industrial Disputes Act if all the other conditions precedent for passing an order in terms of the Section 17B of the Act are satisfied In Re: entitled Choudhary Sharai v. Executive Engineer Panchayati Raj Department and Anr.]

...

...

(v) The court can enforce the spirit , intendment and purpose of legislation that the workman who is to get the wages from the date of the award till the challenge to the award is finally decided as per the statement of the objects and reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17B was inserted in the act. (Re: JT 2001 (Suppl. 1) SC 229 Dena Bank v. Ghanshyam (para 12)].

(vi) An application under Section 17B should be disposed of expeditiously and before disposal of the writ petition In Re: 2000(9) SCC 534 entitled Workman v. Hindustan Vegetables Oil Corporation Ltd.]

...

(viii) Transient employment and self employment would not be a bar to relief under Section 17B of the Industrial Disputes act [Re: 2000(1) LLJ 1012 entitled Taj Services Limited v. Industrial Tribunal (supra); entitled Rajinder Kumar Kundra v. Delhi Administration(supra); 109 (2004) DLT 1 entitled Birdhi Chand Naunag Ram Jain v. P.O., Labour Court No. IV and Ors.] (supra).

6. The learned Counsel for the appellant has further contended that there are at least four judgments of this Court on this issue, apart from three judgments noted by the learned Single Judge in G.G. Fashion's case (supra) as well as the judgment of the Division Bench of this Court in LPA No. 190/2006 dated 8th September, 2006 titled Airport Authority of India v. Puran Chand and Ors., where the following position of law was laid down:

6. It is settled law as noticed rightly by the learned Single Judge that Section 17B is a provision which provides for sustenance to a workman who succeeds in securing an reinstatement from the Industrial Tribunal during the pendency of a writ petition before the High court or the Supreme Court. This has also been held by the Hon'ble Supreme Court in the case of Dena Bank v. Kirti Kumar T Patel :

7...The objects and Reasons for enacting the said provisions were as follows:

When Labour Courts pass award of reinstatement, these are often contested by an employer in the Supreme Court or High Court. It was felt that the delay in the implementation of the award causes hardship to the workman concerned. It was, therefore, proposed to provide the payment of wages last drawn by the workman concerned, under certain conditions, from the date of the award till the case is finally decided in the Supreme Court or the High Courts.

It would thus appear that the object underlying the enacting of the provisions contained in Section 17B is to give relief to the workman in whose favor an award of reinstatement has been passed by the Labour Court and the said award is under challenge in the High Court or this Court. The said relief has been given with a view to relieve the hardship that would be caused to a workman on account of delay in implementation of the award as a result of the pendency of the proceedings in the High Court or this Court. The question for consideration is: what is the extent to which such relief has been granted to a workman under this provision? The Objects and Reasons do not indicate an anwer to this question and its answer has to be found in the provisions of the enactment. Since the expression "full wages last drawn" in Section 17B has been construed by the various High Courts in the decisions referred to above we would briefly refer to the same.

The underlined portion of Section 17B of the Act as extracted above, clearly shows that what entitles the workman to subsistence wage is his employment in an establishment. This as has already been noticed earlier self-employment to sustain oneself. Furthermore, it was clearly laid down in the above decision that the payment under Section 17B has to be from the date of the award though the impugned order grants such payment only from the date of the petition. The position of law has been explained by this Court by a Division Bench in D.D.A v. Omvati (decision dated 19.12.2002 in LPA 84/2002) and recently by a learned Single Judge in Hindustan Industries Ltd. v. Suman Lata Tuteja .

...

9. In the instant case as well it has been found that the workmen were, if at all, involved in intermittent employment and the appellant has failed to show that any of them was gainfully employed in an establishment disentitling them to the relief under Section 17B.

7. The learned Counsel for the respondent has submitted that the affidavit directed to be filed is not contrary to the provisions of Section 17B as sometimes the workmen make dishonest claims averring unemployment resulting in loss of revenue.

8. In our view, an abuse of the provision cannot change the interpretation of the statute and the abuses thereof are required to be dealt with strictly and severely and any such false averment deserves severe censure. A Single Judge of this Court in Ircon International Ltd. v. UOI had indeed ordered prosecution under Section 340 of the Code of Criminal Procedure where the workman had averred falsely under Section 17B of the Act. However, we are not concerned with any such issue in the present case as the only issue required to be considered is whether the terms of Section 17B of the Act are correctly interpreted by the learned Single Judge of this Court in the impugned Judgment and whether the learned Single Judge is fully bound to follow the above cited judgments which are binding upon him as well as this Court.

9. The learned Counsel for the appellant also made a grievance that the application under Section 17B of the Act has been adjourned to be heard along with the writ petition itself in February, 2007. In our view this is contrary to the law laid down by the Hon'ble Supreme Court in Workmen represented by Hindustan V.O. Corporation Ltd. v. Hindustan Vegetables Oils Corporation (2000) 9 SCC 534 (supra), and a Division Bench of this Court in a judgment dated 8th September, 2006 in LPA No. 190/2006 titled Airport Authority of India v. Puran Chand and Ors. (supra) has held by applying the ratio of the Hon'ble Supreme Court in above decision of the Supreme Court that the Section 17B application should be disposed of with great promptitude and before the disposal of the writ petition. Paragraphs 2 and 3 of the said judgment of the Hon'ble Supreme Court read as follows:

2. The order under challenge has been passed by a Division Bench of the High Court at Calcutta. Its operative portion states that the writ petition filed by the present appellants and their application under Section 17B of the Industrial Disputes act should be disposed of together, expeditiously. We are of the view that an application under Section 17B should be disposed of before the principal petition and it should be disposed of most expeditiously.

3. We, therefore, set aside the order under challenge to the extent that it requires the disposal of the writ petition and the Section 17B application together and we direct that Section 17B application should be disposed of with great promptitude and before the disposal of the writ petition.

10. The object of Section 17B of the Act is to mitigate the hardship caused to the workman due to delay in the implementation of the award and during the pendency of the litigation in the High Court or the Supreme Court challenging such an award. Thus the learned Single Judge was bound in law to dispose of the application under Section 17B as expeditiously as possible.

11. The learned Counsel for the respondent has also relied upon the judgment of the Hon'ble Supreme Court in Uttaranchal Forest Development Corporation and Anr. v. K.B. Singh and Ors. (2005) 11 SCC 449 and particularly paragraph 2 thereof, which reads as follows:

2. The benefit of Section 17B of the Industrial Disputes Act, 1947 by directing reinstatement in service or payment of last wages drawn in lieu thereof can be granted only in favor of such workmen who have obtained awards in their favor from the Industrial Tribunal/Labour Court and in support of their claims filed affidavits. Learned Counsel for the employer states that such workmen who had directly approached by writ petitions to the High Court for seeking relief of reinstatement, cannot be granted benefit of Section 17B of the Industrial Disputes Act as there was no evidence before the Tribunal or the Labour Court about their non-employment or gainful employment elsewhere after discontinuance of their services.

12. As far as the position of law laid down by the Hon'ble Supreme Court in Uttranchal Forest Development Corporation's case (surpa) is concerned, it clearly shows that an affidavit is required to be filed and the award of the Industrial Tribunal/Labour Court, is required to be in favor of the workman. The position of law laid down in this judgment cannot sustain the impugned judgment. The direction of the Supreme Court has to be understood in the context of requirement of employment in an establishment. We cannot lose sight of the fact that the word used by the Hon'ble Supreme Court is 'Employment'. As explained by the Hon'ble Supreme Court in Rajinder Kumar Kindra's case (supra), the self employment for sustenance does not constitute employment in an establishment as required by Section 17B of the Act. Considering all the facts and circumstances of the case and the established law, we are of the opinion that the learned Single Judge is fully bound to follow the above cited judgments and we affirm the view of the learned single Judges in the following judgments:

1. Taj Services Limited v. Industrial Tribunal-I and Ors. 2000 Vol. I LLJ 1012 (supra)

2. G.G. Fashion and Ors. v. Smt. Jayanti Negi (supra)

3. Birdhi Chand Naunag Ram Jain v. P.O., Labour Court No. IV and Ors. 109 (2004) DLT 1 (supra)

4. Food Craft Institute and Ors. v. Rameshwar Sharma and Anr. 2006 VI AD (Delhi) 189 (supra)

We also reiterate the view taken in the Division Bench judgments in Airport Authority's case (supra) and in D.D.A v. Omvati dated 19.12.2002 in LPA 84/2002 (supra) Accordingly, the appeal is accepted and the impugned order is set aside.

13. The learned Single Judge is thus required to decide the application under Section 17B of the Act prior to the hearing of the writ petition as per the law laid down by the Hon'ble Supreme Court and this Court in judgments referred to in this judgment. The application under Section 17B of the Act shall now be listed before the learned Single Judge on 3rd November, 2006 when the parties are required to appear before the learned Single Judge. The learned Single Judge may dispose of the application under Section 17B of the Act expeditiously in accordance with law as explained above and preferably on or before 15th December, 2006.