DELHI TRANSPORT CORPORATION Vs. JAGDISH CHANDER

JUDGEMENT

(1.) This is an application filed by the respondent No.1/ workman under Section 17-B of the Industrial Disputes Act. Notice of this application was issued on 5th November, 2007 for 28th January, 2008. On 28th January, 2008, counsel for the petitioner was granted another two weeks' time to file reply to this application and the matter was posted for today. Today also, the reply is not forthcoming. However, Mr. J.S. Bhasin, Advocate for the petitioner, states that he has instructions to the effect that his clients are taking only one objection to the application. He states that the petitioner's stand is that the workman was dismissed on 28th May, 1996 and whilst his client has no proof to show that the workman had obtained any gainful employment in the meanwhile or after his dismissal, which would disentitle him to relief under Section 17-B; at the same time, it is not possible for any person to remain unemployed for such a long period and that he must have been earning some money to survive to provide for his day to day needs. He submits that if this Court were to take into consideration the said avernment, then there is no need for him to file a reply.

(2.) A reading of Section 17-B shows that the workman is entitled to full wages last drawn by him inclusive of any Maintenance Allowance admissible to him under any rule if the workman has not been employed in any establishment during the period of pendency of any proceedings against any award directing reinstatement of the workman in a High Court or the Supreme Court, provided that the workman also files an affidavit to that effect in such a Court. In this case, the impugned award dated 18th January, 2005 in ID No.168/97 was passed by the Labour Court. It directed that the workman is entitled to reinstatement and full back wages from the date of his removal from service with continuity of service and other consequential reliefs. This direction has been impugned by the petitioner in the instant writ petition. On 19th July, 2006, the operation of the impugned award was stayed by this Court. In his application, the workman has averred that he has been unemployed ever since his removal. He has also filed a supporting affidavit wherein he has stated that he is unemployed since his removal and that he is not employed in any establishment from the date of his removal till the date of filing of the said affidavit. It is, therefore, obvious that the requirements of Section 17-B of the Industrial Disputes Act are fulfilled in this case.

(3.) Under that section, the employer is however given an opportunity of demonstrating that the workman in question has been employed and that he had been receiving adequate remuneration during any such period or part thereof when proceedings against the said award have been pending before this Court. In case he were to do so, then the workman would not be entitled to any order for payment of wages under this Section for such period or part thereof, as the case may be. However, in this case, the employer has not been able to prove any such facts which might demonstrate the employment of the workman whereby the workman can be said to be receiving adequate remuneration. The stand is merely based on a presumption of having been employed for the reason that it is difficult for an individual to survive for years together without any source of income. While this may be true, it is also equally well settled by the Supreme Court in Rajinder Kumar Kindra Vs. Delhi Administration (1984) 4 SCC 635 and also by this Court in Taj Services Limited Vs. Industrial Tribunal , I 1999 (82) DLT 378; The Management of the Delhi Gymkhana Club Limited Vs. The Government of NCT of Delhi and Ors. 118 (2005) DLT 413; DTC and Ors. Vs. The Presiding Officer, Labour Court-I and Ors. 2002 (2) AD (Delhi) 112; and Management of Ashok Hotel Vs. Government of NCT of Delhi and Ors. , CM No. 8312/2004 in WP(C) No.2076/2003 decided on 30.11.2005; to the effect that what the section contemplates is regular, gainful employment and not merely any remuneration or stop gap sporadic earnings that might have been earned by the workman with a view to keeping the body and soul together. It has been repeatedly held that this section, if construed in such a narrow, literal and pedantic sense, it would lose all its efficacy.