Delhi High Court
Delhi Transport Corporation vs Jagdish Chander And Anr. on 2 April, 2008
Author: S K Misra
Bench: S K Misra
JUDGMENT
Sudershan Kumar Misra, J.
CM No. 15399/2007
1. This is an application filed by the respondent No. 1/workman under Section 17-B of the Industrial Disputes Act. Notice of this application was issued on 5th November, 2007 for 28th January, 2008. On 28th January, 2008, Counsel for the petitioner was granted another two weeks' time to file reply to this application and the matter was posted for today. Today also, the reply is not forthcoming. However, Mr. J.S. Bhasin, Advocate for the petitioner, states that he has instructions to the effect that his clients are taking only one objection to the application. He states that the petitioner's stand is that the workman was dismissed on 28th May, 1996 and whilst his client has no proof to show that the workman had obtained any gainful employment in the meanwhile or after his dismissal, which would disentitle him to relief under Section 17-B; at the same time, it is not possible for any person to remain unemployed for such a long period and that he must have been earning some money to survive to provide for his day to day needs. He submits that if this Court were to take into consideration the said avernment, then there is no need for him to file a reply.
2. A reading of Section 17-B shows that the workman is entitled to full wages last drawn by him inclusive of any Maintenance Allowance admissible to him under any rule if the workman has not been employed in any establishment during the period of pendency of any proceedings against any award directing reinstatement of the workman in a High Court or the Supreme Court, provided that the workman also files an affidavit to that effect in such a Court. In this case, the impugned award dated 18th January, 2005 in ID No. 168/97 was passed by the Labour Court. It directed that the workman is entitled to reinstatement and full back wages from the date of his removal from service with continuity of service and other consequential reliefs. This direction has been impugned by the petitioner in the instant writ petition. On 19th July, 2006, the operation of the impugned award was stayed by this Court. In his application, the workman has averred that he has been unemployed ever since his removal. He has also filed a supporting affidavit wherein he has stated that he is unemployed since his removal and that he is not employed in any establishment from the date of his removal till the date of filing of the said affidavit. It is, therefore, obvious that the requirements of Section 17-B of the Industrial Disputes Act are fulfillled in this case.
3. Under that section, the employer is however given an opportunity of demonstrating that the workman in question has been employed and that he had been receiving adequate remuneration during any such period or part thereof when proceedings against the said award have been pending before this Court. In case he were to do so, then the workman would not be entitled to any order for payment of wages under this Section for such period or part thereof, as the case may be. However, in this case, the employer has not been able to prove any such facts which might demonstrate the employment of the workman whereby the workman can be said to be receiving adequate remuneration. The stand is merely based on a presumption of having been employed for the reason that it is difficult for an individual to survive for years together without any source of income. While this may be true, it is also equally well settled by the Supreme Court in Rajinder Kumar Kindra v. Delhi Administration and also by this Court in Taj Services Limited v. Industrial Tribunal I ; The Management of the Delhi Gymkhana Club Limited v. The Government of NCT of Delhi and Ors. ; DTC and Ors. v. The Presiding Officer, Labour Court-I and Ors. 2002 (2) AD (Delhi) 112; & Management of Ashok Hotel v. Government of NCT of Delhi and Ors. CM No. 8312/2004 in WP(C) No. 2076/2003 decided on 30.11.2005; to the effect that what the Section contemplates is regular, gainful employment and not merely any remuneration or stop gap sporadic earnings that might have been earned by the workman with a view to keeping the body and soul together. It has been repeatedly held that this section, if construed in such a narrow, literal and pedantic sense, it would lose all its efficacy.
4. The onus of proof on both the parties, to my mind, is very different under this section. Whilst all that is required of a workman is that he must disclose his state of unemployment on an affidavit; and once he does that, his onus is discharged. The necessary presumption with regard to unemployment which gives rise to his right to relief under this section, would arise without anything more. However, in the case of the employer, the requirement is more onerous. What the employer is required to do is to prove to the satisfaction of the Court the existence of certain facts with regard to the receipt of adequate remuneration by the workman through employment during the period proceedings are pending in Court. In other words, the employer is enjoined to bring positive proof of these facts.
5. In that view of the matter, the workman is entitled to relief under Section 17-B as prayed. The petitioner is directed to pay the last drawn wages or the minimum wages, whichever is higher, from the date of the award, and to continue to pay at the same rate during the pendency of this petition in this Court, on or before 10th of each month. However, looking to the ratio of Dena Bank v. Kirtikumar Patel and Regional Authority, Dena Bank and Anr. v. Ghanshyam , and in the interest of justice, the workman is directed to file an undertaking by way of an affidavit to the effect that in the event of this Court deciding the writ petition in favor of the petitioner, he shall be liable to refund to the petitioner, any amount paid to him in terms of the present order over and above the amount he was drawing at the time of his termination. This affidavit be filed within four weeks from today.
6. It would be open to the petitioner to allow the workman to report for duty and to take work from the workman in terms of the relevant rules, without prejudice to its rights and contentions in this writ petition. The employer is directed to release the past dues of the workman calculated from the date of the impugned award, within three months on receiving the required undertaking.
7. Application is disposed of.
CM No. 15437/2007
8. Counsel for the respondent does not wish to press this application for the time being and states that the contentions and relief sought in this application may be considered at the time of final disposal of the matter. In view of the statement of Counsel for the respondent/applicant, the application is dismissed as withdrawn.
9. Application is disposed of.
WP (C) No. 11363/2006
10. Counter affidavit is stated to have been filed. The petitioner may file his rejoinder before the next date with an advance copy to Counsel for the respondent.
11. Post this matter on 28th April, 2008.
