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2008 DIGILAW 274 (DEL)

UNION OF INDIA v. BALJIT SINGH

2008-03-10

SUDERSHAN KUMAR MISRA

body2008
JUDGMENT Sudershan Kumar Misra, J.- This application has been preferred by the respondent/workman, under Section 17B of the Industrial Disputes Act, seeking direction to the petitioner to pay the last drawn wages or the minimum wages whichever is higher, to him during the pendency of the petitioners writ in this Court on the ground that he has not been employed in any establishment during that period. 2. The facts in a nutshell are that the service of the respondent/workman was terminated by the petitioner on 2.8.1992. The ensuing industrial dispute raised by him was decided by the Industrial Tribunal in his favour by an award dated 18.9.2003. It directed reinstatement of the respondent/workman along with 50% back wages. The petitioner/management has assailed the Award before this Court. During the pendency of this petition, the respondent/ workman has preferred the present application under Section 17B of the Industrial Disputes Act. Along with his application, the respondent/workmen has categorically stated on affidavit that ever since the date of his termination, he has never been employed in any establishment for any period of time. In reply, the petitioner has deniad the averments made by the respondent/ workman by stating that the workman was gainfully employed as a mason/ carpenter on construction sites and that he is presently working at Peeragarhi. In an affidavit filed by Mr. Sanjeev Rastogi, Executive Engineer on behalf of the petitioner, it is averred that this information, regarding the working status of the respondent, was conveyed to them by the daughter of the respondent, when the officials of the petitioner visited the respondent at his new address. In rejoinder, the workman has denied this. He has also filed an affidavit of his school going daughter, who has also denied having told Mr. Rastogi and the officials accompanying him, that her father was gainfully employed. 3. This Court in the case of Head start Advertising and Marketing Pvt. Ltd. v. Government of N.C.T of Delhi and Another, LPA 1264/ 2007, decided on 9.10.2007 (DB) observed that, "ratio of the decisions of the Supreme Court in Dena Bankv. Rastogi and the officials accompanying him, that her father was gainfully employed. 3. This Court in the case of Head start Advertising and Marketing Pvt. Ltd. v. Government of N.C.T of Delhi and Another, LPA 1264/ 2007, decided on 9.10.2007 (DB) observed that, "ratio of the decisions of the Supreme Court in Dena Bankv. Kirti Kumar T Patel, reported in JT 1997 (9) SC 167 and Regional Authority, Dena Bank v. Ghanshyam, reported in JT 2001 (Suppl.1) SC 229 is that I once the labour Court accepts the position that the respondent is a workman and he is entitled to an order of reinstatement, he should be paid the last drawn wages during the pendency of the writ petition filed by the management against the award subject to the condition that the workman was unemployed." In Puttilal v. Archaeological Survey of India, LPA 2399/2006 decided on 3.12.2007 (DB) this Court laid down that, "There must be some concrete, cogent and sound reasoning for coming to the conclusion as to whether or not the workmen were gainfully employed. . .. . . what is required to be looked into is the evidence and material on record to hold and decide whether the workmen were gainfully employed.. .." 4. In this case, the averment made by the petitioner in its reply to the application, to the effect that the respondent has been gainfully employed has neither been proved by it, nor has any evidence been placed on the record in this regard. In the case of Taj Service Limited v. Industrial Tribunal-I and Others (2000) 1 LLJ 1012 held as under: "...... Under the proviso of Section 17B of the Industrial Disputes Act what is required to be proved by the employer is that the workman has been employed in an establishment and had been receiving adequate remuneration from such employment. It is different from running ones own business or trade in order to remain alive to see the end of litigation..." The said case was also reiterated in Airport Authority of India v. Puran Chand, (2006) 8 AD (Delhi) 57 (DB), wherein the appeal of the management was dismissed on the ground that the management failed to show that any of the workman was gainfully employed in any establishment disentitling them to the relief under Section 17B. 5..In this case, the Managements opposition to the application under Section 17B filed by the workman is based solely on a disclosure allegedly made by the school going daughter of the workman to three officers of the Management. In this respect, the affidavit of Mr. Sanjeev Rastogi, Executive Engineer states as follows, "the daughter of the respondent, Ms. Rani, student of 12th Class of G.S.K.V School, Nangloi has told that her father is employed." Besides this, in the same affidavit, it is said that when the officials of the petitioner i.e. Sh. Sanjeev Rastogi, Executive Engineer, Sh. S.K. Verma, Asstt. Engineer and Sh. Kanti Prasad, Junior Engineer visited the respondent at his premises on 11.1.2008, "it could be found that the respondent has gone to work place." Nothing more is disclosed. No further particulars with regard to either the nature of the applicants alleged work or his work place, the salary he draws or even his working hours or whether he is self-employed or working for another employer have been disclosed. 6. It is noteworthy that in his rejoinder, the workman has refuted the allegation that he was employed. While he admits that these three officials met his daughter, he says that she only told them her name, name of her father and the class she was studying in; and she never gave any other information. It is further stated that on the date when these officials visited his premises, he had taken his other daughter, Neelam, for treatment to GB Pant Hospital. He has also annexed particulars of his visit to the hospital on that date. Learned Counsel for the petitioner/management has repeatedly stressed that apart from verifying the facts from the daughter of the respondent, there was no other way to find out as to whether the applicant has been in any employment during the relevant period. I do not agree. Firstly, the facts as regards the workmans employment as stated in affidavit of Mr. Sanjeev Rastogi, are meagre and wholly insufficient for this Court to draw a conclusion to the effect that the workman has been gainfully employed, with any degree of certainty. No particulars whatsoever are forthcoming. Nothing is stated about where the workman was allegedly working, the nature of the work, or his income from that work, if any. Consequently, the employer has failed to satisfy the test laid down by Putti Lals case (supra). No particulars whatsoever are forthcoming. Nothing is stated about where the workman was allegedly working, the nature of the work, or his income from that work, if any. Consequently, the employer has failed to satisfy the test laid down by Putti Lals case (supra). Secondly, I do not agree with the submission of learned Counsel for the petitioner that the only way of determining whether the workman was employed is to question his daughter. Such an averment is simply too ludicrous to be countenanced and I do not consider it necessary to enumerate the myriad ways in which an employer, particularly if it happens to be a State agency, can find out the relevant details about a persons employment. The approach adopted by the management/petitioner, of three officials of the petitioner questioning the workmans school going daughter in her fathers absence, and that too on the plea that there is no other method to verify the facts must be deprecated. Such an approach is callous and cannot be countenanced. Although it is clear that no material particulars that could have enabled the employer to resist this application were elicited by the officials of the petitioner from the workmans daughter, the approach adopted by the petitioner in this case has disturbed me and therefore, I felt it necessary to record my disapproval of such tactics on the part of the management/employer. 7. I might add that the learned Counsel for the petitioner has also tried to take the position that in cases where a question is raised with regard to the jurisdiction of the industrial Tribunal on the ground that the employer is a Government department and therefore cannot be a classified as an industry, then, in those cases also, no order ought to be granted under Section 17B. However, this argument, to my mind, needs to be noticed only to be rejected peremptorily. Suffice to mention that as held by the Court in Anil Jain v. Jagdish Chander, 86 (2000) DL T 510, an application under Section 17B of the Industrial Disputes Act is to be considered without going into the merits of the petition. However, this argument, to my mind, needs to be noticed only to be rejected peremptorily. Suffice to mention that as held by the Court in Anil Jain v. Jagdish Chander, 86 (2000) DL T 510, an application under Section 17B of the Industrial Disputes Act is to be considered without going into the merits of the petition. Also, as concluded in Dena Bank v. Kirti Kumar Patel, I (1998) SLT 61= 1999 2 SCC 106 , and Regional Authority, Dena Bank v. Ghanshyam, IV (2001) SLT 392= AIR 2001 SC 2270 , the object of Section 17B is to relieve to a certain extent, the hardship caused to the workman due to the delay in implementation of the award during the pendency of proceedings challenging the said award. Furthermore, despite my asking, Counsel for the petitioner was not able to show any authority in support of his proposition, nor was any cogent legal reasoning advanced before me by him in this behalf. 8. Under the circumstances, the application is allowed and the petitioner is directed to pay the last drawn wages or minimum wages, whichever is higher, to the respondent/ workman. The arrears of wages shall be paid to the respondent/workman from the date of passing of the award till date within six weeks from today. 9. Petitioner shall continue to pay the respondent/workman the last drawn wages or the minimum wages, whichever is higher, on a month to month basis, on or before 10th of each month. 10. In the case of Dena Bankv. Kirti Kumar Patel (supra), the Supreme Court has also held that payment under Section 17B is in nature of a subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or the Supreme Court. However, the Court may also give directions regarding refund or recovery of excess amount in the event of the award being set aside. A similar view has also been taken by the Supreme Court in Regional Authority, Dena Bank v. Ghanshyam (supra) which has been reiterated by a Division Bench of this High Court in the case of Ashok Hotel v. Govt. of NCT & Ors., 123 (2005) DLT 384 (DB). A similar view has also been taken by the Supreme Court in Regional Authority, Dena Bank v. Ghanshyam (supra) which has been reiterated by a Division Bench of this High Court in the case of Ashok Hotel v. Govt. of NCT & Ors., 123 (2005) DLT 384 (DB). Thus, to balance equities, the payment, as ordered aforesaid, shall be subject to the applicant filing an affidavit within a period of two weeks undertaking that in the event of this Court deciding the writ petition in favour 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. 11. The petitioner/management shall be at liberty to call upon the respondent/ workman to report for duty at its premises without prejudice to its rights and contentions in the present proceedings. 12. The application stands disposed of. Ordered accordingly.