Delhi High Court
Birdhi Chand Naunag Ram Jain vs P.O., Labour Court No. Iv And Ors. on 10 December, 2003
Equivalent citations: 2004(72)DRJ297, [2004(102)FLR620], (2004)ILLJ1023DEL, 2004(2)SLJ364(DELHI)
Author: Mukul Mudgal
Bench: Mukul Mudgal
JUDGMENT Mukul Mudgal, J.
1. This is an application under Section 17-B of the Industrial Disputes Act, 1947(in short the `ID Act') seeking payment of wages not less than the minimum wages from the date of the award, i.e., dated 6th May, 1999, passed in ID. No. 465/79.
2. In para 2 of the application it has been averred that the applicant/workman is unemployed since the date of the termination of his services up to date. In reply, the petitioner has sought to contend that the respondent No. 3/applicant by selling of miscellaneous items in front of Birla Mandir, Mandir Marg, New Delhi is making a monthly income of Rs. 5,000/-. In the rejoinder, the respondent No. 3/applicant has contended that he was carry on this street activity only for one month and in any case that amount generated by this activity was not sufficient for him to sustain his family. He has relied upon the judgment of the Hon'ble Supreme Court in Rajinder Kumar v. Delhi Administration to the following effect:-
''In support of this submission Mr. Jain pointed out that the appellant in his cross-examination has admitted that during his forced absence from employment 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. 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 a gainful employment. The gross perversity with which the employer had approached this case had us stunned. If the employer after an utterly unsustainable terminating order of service wants to deny backwages 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 he ping his father-in-law Tara Chand who had a coal depot, it cannot be said that the appellant was gainfully employed.''
3. In any event, self-employment is not a norm for denying back wages as the Section 17-B 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 vocation, it cannot be termed as `employment in an establishment' contemplated by Section 17-B so as to deny him emoluments under Section 17-B of the ID Act. However, therefore the plea of Mr. Sbharwal which merits consideration is that the writ petition was filed in September, 1999 and the application under Section 17-B of the ID Act was filed only on 1st September, 2001. There is no explanation given for this delay. Accordingly, payment under Section 17-B 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.
4. Accordingly, as per the law laid down in Regional Authority, Dena Bank and Anr. v. Ghanshyam reported at J.T. 2001 (Suppl.) SC 229, the respondent No. 3/applicant is entitled to succeed in this application. The respondent No. 3/applicant shall be paid the arrears of wages last drawn by him or the minimum wages whichever is higher with effect from 1st September, 2001 till date and thereafter such payment will be continued to be made month to month. The arrears of wages are directed to be paid of the respondent No. 3/applicant on or before 5th February, 2004.