D.C.M. Engineering Products vs P.O. Labour Court

S.S. Nijjar, J.—This application seeks a direction to the petitioner for the grant of wages to the workman-respondent No. 2, u/s 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), during the pendency of the writ petition.

The workman-respondent No. 2 was dismissed from service by the petitioner- management on 22.12.1992. A demand notice was served by workman-respondent No. 2 on the petitioner-management on 15.5.1992. The matter was referred to the Labour Court u/s 10(1)(c) of the Act. The dispute was decided by award dated 11.6.1999. The Labour Court set aside the order of dismissal and substituted the same with stoppage of two increments for misconduct. The workman-respondent No. 2 was directed to be reinstated into service with continuity of service and full backwages.

The petitioner-management filed the present writ petition which came up for motion hearing on 26.4.2000. Notice of motion was issued for 30.10.2000. Operation of the impugned award was stayed subject to Section 17-B of the Act. Till date, -workman-respondent has not been paid wages, as according to the learned counsel for the petitioner-management, no affidavit has been filed by the workman-respondent No. 2 stating therein that he has not been gainfully employed.

Mr. Arora, learned counsel appearing for the workman-respondent No. 2 has stated that the workman-respondent No. 2 has stated that the workman-respondent No. 2 has been regularly approaching the petitioner-management for reinstatement. He has neither been paid nor reinstated. He further stated that an affidavit in support of the present application has been filed on 23.3.2001. In this affidavit it is categorically stated as follows :-

"That the deponent was dismissed from service by the Management on 22.12.92 and since then, he has been unemployed and has not been able to get any employment in any other establishment during all such period till date and the workman is rather starving after his dismissal from the service."

On the basis of the above averments, it is submitted by Mr. Arora that workman-respondent No. 2 is clearly entitled to wages last drawn at the time of his dismissal, In support of the submission, learned counsel has relied on a Division Bench judgment of this Court rendered in C.W.P. No. IS275 of 1997 (M/s. Ajay Enterprises Pvt. Ltd. v. Ganga Ram and an-other), decided on 9.10.1997. It is the undisputed case of both the parties that during the forced idleness, the workman-respondent No. 2 has been running a tea shop for his livelihood. It is also not disputed that the workman-respondent No. 2 has been selling bidis and cigarettes. Mr. Arora has submitted that this cannot be said to be gainful employment as the activity is necessary only to make sure that the workman and his family do not starve. In similar circumstances, a Division Bench in M/s. Ajay Enterprises case (supra) held as follows :-

"After termination of service if a workman does some job to earn something in order to keep his body and soul together and save other dependent members of his family from starvation, that by itself cannot be taken as a proof of gainful employment. It is not the case of the management that evidence was led to prove that respondent No. 1 was gainfully employed and that evidence was not considered by the Labour Court. Once termination of service or retrenchment of a workman is proved and Management has failed to prove that he was gainfully employed, as a matter of course a workman is entitled to full backwages".

Mr. Arora, also relied on a judgment of the Supreme Court in the case of Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and others AIR 19S4 SC 1805, in support of the same proposition.

Mr. Mutneja, learned counsel appearing for the petitioner-management, on the other hand, submitted that the judgment is Rajinder Kumar Kindra''s case (supra) is not applicable to the facts and circumstances of this case as the same has not been rendered in relation to Section 17-B of the Act. Learned counsel further submitted that there is evidence on the record to show that workman-respondent No. 2 was gainfully employed. He has, admittedly, been selling tea, bidis and cigarettes. He was probably earning more now than what he was earning while working with the petitioner-management before his services were terminated. Learned counsel has relied on a judgment of the Supreme Court in Dena Bank v. Kiritikumar T. Patel 199S(1) SCT 57 (SC) : AIR 1998 S C 511 and submitted that the workman-respondent No. 2, at best, would be entitled only to the full wages last drawn from the termination of the service. Therefore, the Court would not be justified in granting any relief to the workman-respondent No. 2. He also relied on a judgment of the Supreme Court in the case of Regional Authority, Dena Bank and another v. Gftanshyam 2001(2) SCT 1057 (SC) : AIR 2001 SCW 2150 to submit that if any amount in excess of the amount due u/s 17-B of the Act is paid to the workman-respondent No. 2, the same would have to be refunded in case the award is ultimately set aside in the present writ petition.

I have considered the submissions made by the learned counsel for the parties.

Taking the last submission first, I am of the considered opinion that the judgment cited by Mr. Mutneja, in the case of Regional Authority Dena Bank''s (supra), is of no assistance to the case put forward by the petitioner- management. It rather indicates that the High Court while exercising jurisdiction under Articles 226/227 of the Constitution of India is empowered to grant benefits to the workman over and above what are provided u/s 17-B of the Act. It only lays down that if such an order is passed, therein the event the management succeeds in having the award set aside, any amount paid over and above the amount that may be payable by virtue of Section 17-B of the Act to the workman, would have to be refunded to the petitioner- management. In the other case i.e. Dena Bank''s case (supra) it has been clearly held that the workman is entitled to the wages last drawn u/s 17-B of the Act. Therefore, this also does not advance the case of the petitioner-management any further.

On the other hand, there is considerable force in the submissions made by Mr. Arora. He is perfectly justified in relying on the observations made in M/s. Ajay Enterprises'' case (supra). Merely because the workman-respondent No. 2 resorts to selling some miscellaneous items to keep his body and soul together, cannot be treated as gainful employment as defined in Section 17-B of the Act. The matter is squarely covered by the observations made by the Division Bench reproduced above. Furthermore, I am unable to agree with the submission made by Mr. Mutneja to the effect that the observations made by the Supreme Court in Rajinder Kumar Kindra''s case, would not be relevant in the facts and circumstances of this case. A persual of paragraph 21 of the judgment would show that in that case it was specifically argued that there is evidence to the effect that the workman was gainfully employed since the termination of his service and, therefore, he was not entitled to any back wages. In that case also, the learned counsel has pointed out to the cross- examination of the workman where he had admitted that during his forced unemployment since the date of 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. Taking into consideration the aforesaid facts, the Supreme Court observed as under :-

".....If the employer after an utterly unsustainable termination order of service wants to deny back-wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal-depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service the was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for backwages. There is no evidence on the record to show that the appellant was gainfully em-ployed during the period of his absence from service. Therefore, the appellant would be entitled to full backwages ana all consequential benefits."

The aforesaid observations leave no manner of doubt that merely because the workman therein was helping his father-in-law in the coal-depot, the same would not amount to the workman being gainfully employed. In the present case also, the workman-respondent No. 2 had to resort to selling tea, bidis and cigarettes in order to maintain his family members during the period of forced idleness.

In view of the above, present application is allowed. The petitioner management is directed to pay wages last drawn to the workman-respondent No. 2, as provided u/s 17-B of the Act from the date of the filing of the writ petition i.e. 26.4.2000. The management-petitioner is also directed to pay arrears of wages to the workman-respondent No. 2, within a period of four weeks from the receipt of the certified copy of this order. Thereafter, the workman-respondent No. 2 shall be paid regularly the monthly wages on the same date as the wages are paid to other workmen. No costs.

Application allowed.