Delhi Transport Corporation vs Balwant Rai Ex. Cond.
2008 Latest Caselaw 527 Del

JUDGMENT

Sudershan Kumar Misra, J.

CM No. 50/2006

1. This is an application Under Section 17-B of the Industrial Dispute Act. The background of the matter is as that on 3.08.2004, the impugned award came to be passed by Labour Court-VII, Karkardooma Courts, Delhi in ID No. 166/98. In terms of this award, it was directed that the removal of the respondent/workman was illegal. The Labour Court also directed the DTC to reinstate the workman within one month from the date of the award along with 50% of back wages. The Delhi Transport Corporation preferred a writ petition against the said award and the operation of the award was stayed by this Court on 25.7.2005 with a direction to the petitioner to deposit a sum of Rs. 7500/- as litigation expenses in this Court. The respondent had preferred this application under Section 17-B of the Industrial Disputes Act. Notice in this application came to be issued by this Court on 4.01.2006 and the same has been pending disposal ever since. In his application, the workman had stated that he has remained unemployed ever since the date of his termination by the petitioner. This specific averment has been made in the affidavit accompanying this application to the effect "that deponent has not been employed in any establishment since the date of his illegal termination from the service". After repeated opportunities being granted in that behalf, reply to this application came to be filed by the petitioner on 27.9.2007. In its reply no substantial particulars have been put forward by the petitioner to controvert the claim of the workman. All that has been stated is that the workman's averments regarding unemployment ever since removal from the service of the corporation are denied "being beyond the knowledge of the petitioner". Along with this, there is an omnibus denial of the workman's claim that he has remained unemployed since the date of his termination despite his best efforts to find suitable employment. The only other ground on which this application is contested is that "it is common knowledge that it is difficult to survive without a job for so long". It is, therefore, obvious that although he had more than a year and a half to do so, the petitioner has been unable to bring forward any facts that would go to rebut the claim of the respondent/workman to the effect that he has remained unemployed. It is a also settled law that merely because an individual may have resorted to some marginal employment with a view to keeping his body and soul together, he cannot be denied the benefits under Section 17-B of the Act.

2. In Airport Authority of India v. Puran Chand 2007 (1) LLJ 850, a Division Bench of this Court, while dealing with Section 17-B of the Industrial Disputes Act, relied on a decision of the Supreme Court in Rajendra Kumar Kindra v. Delhi Administration where the workman had admitted that ever since the termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal depot, and that he and the members of his family lived with his father-in-law and that he had no alternative source of maintenance. There, the Supreme Court held that if this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be gainful employment. Relying upon the aforesaid decision of Supreme Court, this Court held that intermittent employment would not amount to gainful employment.

3. Similarly, in Management of Delhi Gymkhana Club Limited v. Government of N.C.T of Delhi and Ors. 2005 (81) DRJ 63, this Court observed that self employment does not per se disentitle a person to the benefits under Section 17-B and an endeavor to eke out a living by employment will also not bar the grant of such relief. In Management Ashok Hotel v. Government of NCT of Delhi and Ors. CM No. 8312/2004 in W.P.(C) No. 2076/2003 decided on 30.11.2005 this Court observed that sporadic or intermittent engagement of a workman cannot be termed as gainful employment within the meaning of this expression under Section 17-B of the Industrial Disputes Act. Even recently, a Division Bench of this Court in Management of Hotel Connaught v. Om Prakash 2007 (96) DRJ 461 observed that intermittent employment/engagement cannot be said to be gainful employment and thus granted relief to the workman under Section 17-B rejecting the plea of the employer to the contrary. A similar approach was adopted by this Court in a number of other cases viz. DTC v. The Presiding Officer, Labour Court-I, Delhi and Ors. ; Food Craft Institute and Ors. v. Rameshwar Sharma and Anr. 2000 (VI) AD (Delhi) 189; DTC v. Pawan Kumar CM No. 11344/2006 in W.P.(C) No. 18882/2005 decided on 10.8.2007.

4. In view of all the case law discussed above, the plea of the petitioner that it is common knowledge that it is difficult to survive without a job for so long, is of no use to it. It cannot raise a presumption of alternative gainful employment of the workman either in fact or in law. In view of several judicial pronouncements, it is settled that sporadic intermittent employment resorted to by the workman to keep body and soul together, cannot be said to satisfy the test of gainful employment under Section 17-B of the Industrial Disputes Act. In fact, a Division Bench of this Court has held in Taj Services Ltd. v. Industrial Tribunal-I and Ors. that even self-employment in a business, even if it generates profits, cannot be termed as alternative employment of the type contemplated under Section 17-B of the Industrial Disputes Act. The decision of this Court on this aspect is as follows:

...Under the proviso of Section 17-B 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 17-B of the Industrial Disputes Act on the ground that they are running their own business and are receiving profit from such business.

A reading of this shows that even if it is demonstrated that the workmen in question are running their own business and are receiving profits from such business, benefit of Section 17-B of the Industrial Disputes Act cannot be denied to them. What is required to be seen is whether the workman was employed for remuneration under another employer; and so long as that test is not satisfied, relief under Section 17-B is available. This proposition has also been reaffirmed in Iklash Hussain v. Delhi Transport Corporation 2006 (9) AD (Delhi) 187 where in paragraph 12 thereof, a Division Bench of this Court has specifically affirmed the view of the leaned Single Judge taken in the aforesaid case of Taj Services Ltd. v. Industrial Tribunal-I and Ors. (supra). In addition, as decided by the Supreme Court in Rajinder Kumar Kundra v. Delhi Administration AIR (supra), any marginal occupation resorted to merely to keep body and soul together cannot be construed to amount to gainful employment denying the benefit of Section 17-B of the Industrial Disputes Act; and to do so, would be perverse.

5. Under the circumstances, it is directed that the petitioner, Delhi Transport Corporation shall pay the respondent/ workman last drawn wages or minimum wages whichever is higher w.e.f 3.9.2004 and shall continue to do so during the pendency of proceedings in this Court. The payment shall be subject to the undertaking of the workman to the effect that in case, the payment made to the workman is more than the amount of wages last drawn by him, he would undertake to refund the difference between the wages last drawn and the minimum wages, if any, in the event that the petitioner succeeds in the Writ Petition. This proposition flows from the ratio in Dena Bank v. Kirtikumar T. Patel wherein it was observed that although Section 17-B does not in any way preclude the High Court or the Supreme Court to pass an order directing payment of higher amount than contemplated under Section 17-B, the court may also give directions regarding refund or recovery of the excess amount in the view of the award being set aside. This view was also affirmed by a Division Bench of this Court in Ashok Hotel v. Government of NCT of Delhi and Ors. (2005) 83 DRJ 706. Counsel for the respondent workman states that her client is ready and willing to report for work and to work for the petitioner's corporation in the meanwhile. It will be open to the corporation to take him back at work in any capacity it deems suitable, without prejudice to its rights and contentions in the writ petition.

6. Application is disposed of.

W.P.C No. 11849/2005

7. Counsel for the petitioner seeks some time to file rejoinder to the counter affidavit filed by the respondent. Let rejoinder be filed within four weeks with an advance copy to counsel for the respondent.

8. Renotify on 20th November, 2008.