Delhi High Court
Taj Services Limited vs Industrial Tribunal-I & Others on 4 October, 1999
Equivalent citations: 1999VIAD(DELHI)732, 82(1999)DLT378, 1999(51)DRJ567, [2000(84)FLR600], (2000)ILLJ1012DEL
Author: Cyriac Joseph
Bench: Cyriac Joseph
ORDER Cyriac Joseph, J.
1. This application is filed on behalf of respondents 2 to 11 in the writ petition under Section 17B of the Industrial Disputes Act 1947.
2. The challenge in the writ petition is against the award dated 30th September, 1996 of the Industrial Tribunal in I.D. No.10/88. As per the impugned award the management was directed to reinstate the workmen in service and also to pay to them 50% of backwages from the date of their dismissal from service to the date of the award and full wages from the date of the award to the date of reinstatement in service. While issuing notice on the writ petition and the application for stay (C.M. 997/97) this Court directed that the impugned award shall remain stayed till the next date of hearing. The said stay order was being extended from time to time. Respondent Nos. 2 to 11 in the writ petition are the workmen in whose favour the impugned award was passed. The said workmen have filed the present application for benefits under Section 17B of the Industrial Disputes Act.
3. The applicants have stated in the application that they are on the verge of starvation due to prolonged unemployment. It is also stated that they have been unable to get any employment despite their best efforts. Alongwith the application each of the applicant has filed affidavit stating that since the time of the illegal termination of his service he is unemployed and that he could not get any job despite his best efforts. The affidavits are dated 5th April, 1997. The prayer in the application is to direct the management to pay to the applicants/workmen the last drawn wages inclusive of maintenance allowance as per the provisions of Section 17B of the Industrial Disputes Act, 1947.
4. The management/writ petitioner has filed a reply to the application contending that the applicants are not entitled to the benefits under Section 17B of the Industrial Disputes Act, 1947. According to the averments in the said reply, respondent No. 2 Shri Sudershan Kumar is running a business of milk diary on his own near Mandir in his locality in a temporary shed without any name-plate and is supplying milk in the nearby areas. Respondent No. 4 Shri Deepchand is carrying his business of screen printing at Sector-7, Noida. It is also stated that respondent No.10, Shri Jagjeevan Mohan is carrying his own business of electrical wiring in houses/residences and that he was found laying electrical wiring at House No. RZ-252, Rajnagar, Part-II, Palam Colony, New Delhi. It is further contended that respondent Nos. 2, 4 and 10 are running their own businesses and are receiving adequate profits and as such they are not entitled to the wages contemplated under Section 17B of the Industrial Disputes Act, 1947. The reply filed by the management is supported by an affidavit of the attorney of the management.
5. Section 17B of the Industrial Disputes Act, 1947 reads thus:
17-B. Payment of full wages to workman pending proceedings in higher courts-where in any case a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman had been filed to that effect in such Court:
Provided that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period of part thereof, the Court shall order that no wages shall be payable under this Section for such period or part, as the case may be.
In view of the provisions contained in Section 17B of the Industrial Disputes Act the employer/writ petitioner is liable to pay to the applicants/workmen during the period of pendency of the writ petition full wages last drawn by them inclusive of any maintenance allowance admissible to them under any rule if the applicants have not been employed in any establishment during such period and affidavits have been filed by the applicants to that effect in the court. The writ petition has been pending in this court from 11th February, 1997. All the workmen have filed affidavits stating that they are 'unemployed since the date of termination of their services and that they are not working anywhere. The affidavits of the workmen are dated 5th April, 1997. Though the management has filed reply to the application under Section 17B of the Industrial Disputes Act, the management has not given particulars of any employment of the workmen. However, the management has alleged that respondent Nos. 2, 4 and 10 are running their own business and are receiving adequate profits. Respondent No. 2 is stated to be running a business of milk dairy in his locality in a temporary shed. Respondent No. 4 is stated to be carrying on his business of screen printing at Sector-7, Noida. Respondent No. 10 is stated to be carrying on his own business of electrical wiring of houses/residences. Learned counsel for the workmen stated that workmen had filed a rejoinder denying the allegation that respondent Nos. 2, 4 and 10 are running their own business and are receiving adequate profits. However, no such rejoinder is available in the file.
6. Workmen can be denied the benefits under Section 17B of the Industrial Disputes Act only when it is proved to the satisfaction of the Court that the workmen have been employed and have been receiving adequate remuneration during the period of pendency of the writ petition. In the case of workmen other than respondent Nos.2, 4 and 10 there is no allegation by the management that they have been employed and have been receiving adequate remuneration during the pendency of the writ petition. Even in the case of respondent Nos. 2,4 and 10 the allegation is that they are running their own business but the said allegation is denied by the learned counsel for the respondents. According to the learned counsel for the respondents, even if the workman runs some petty business for the survival of himself and his family, it will not disentitle the workman for the benefits under Section 17B of the Industrial Disputes Act. The learned counsel for the respondents also contended that the proviso to Section 17B of the Industrial Disputes Act would be attracted only in the case of employment under another employer and receiving adequate remuneration. I find force in the contention of the learned counsel. As per Section 17B the workman is required to file an affidavit to the effect that he had not been "employed in any establishment". Hence under the Proviso to Section 17B of the I.D. Act what is required to be proved by the employer it that the workman had been employed in any 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 17B of the I.D. Act on the ground that they are running their own business and are receiving profit from such business.
7. At any rate, apart from the averment in the reply of the employer, there is not sufficient material before this Court to come to the conclusion that respondent Nos. 2, 4 and 10 have been running the alleged business. Also there is nothing to prove that they have been receiving adequate remuneration. Once the workman has filed an affidavit to the effect that he had not been employed in any establishment during the period of pendency of the proceedings in Court, the onus is on the employer to prove to the satisfaction of the Court that the workman had been so employed and had been receiving adequate remuneration. In this case the employer has not discharged his duty of proving to the satisfaction of this Court that the above mentioned three workmen had been employed in any establishment and had been receiving adequate remuneration during the pendency of the writ petition. Hence I do not find any reason to deny the benefits of section 17B of the Industrial Disputes Act to the workmen including respondent Nos. 2, 4 and 10.
8. However the affidavits of the workmen as envisaged under Section 17B are dated 5th April, 1997. There is no affidavit in respect of the period after 5th April, 1997. The writ petition has been pending in this Court from 11th February, 1997. Hence in the present application this court can direct the employer to pay to the workmen the benefits under Section 17B of the Industrial Disputes Act only for the period from 11th February, 1997 to 5th April, 1997. The workmen will have to file separate applications with necessary affidavits in respect of the period after 5th April, 1997. The claim for the period after 5th April, 1997 can be considered only when such application and affidavits are filed.
9. For the reasons stated above the writ petitioner/employer is directed to pay to respondent No. 2 to 11 full wages last drawn by them, inclusive of any maintenance allowance admissible to them under any rule for the period from 11th February, 1997 to 5th April, 1997.
10. The application stands disposed of in the above terms.