JUDGMENT
Sudershan Kumar Misra, J.
CM No. 2251/2006
1. This is an application filed on behalf of the respondent/workman under Section 17-B of the Industrial Disputes Act, 1947. On 30th April, 2004, the impugned award bearing ID No. 15/91 came to be passed by the Industrial Tribunal whereby it was directed that the workman who is respondent No. 1 herein be reinstated with 25% back wages. The management has chosen to challenge this award by way of a writ petition filed in this Court. On an application filed by the management, the impugned award also came to be stayed. On 20th February, 2006, the workman moved the instant application under Section 17-B of the Industrial Disputes Act praying that the management be directed to pay the workman last drawn wages from the date of the award i.e. 30th April, 2004. In that application, the workman had also averred as follows:
3. That the Applicant/Workman/Respondent No. 1 has not been in employment any where since his illegal termination nor has he been engaged in any other employers/firms/companies/establishment/gainful avocation, as he could not secure the same despite best of his best efforts till now.
In reply, the management took the position that in fact during cross examination on 14.9.1993 the workman had stated as follows:
I am working privately in Azad Market since 1984 and getting Rs. 800/-.
The management has relied upon this statement to demonstrate that the workman’s claim of having remained unemployed during all this time, is false. It has tried to take the position that since the workman has stated in his aforesaid cross examination that he was working privately since 1984, and since it was the workman’s own case that he had been illegally removed from service by the management also in December, 1984, therefore, he had admitted to having joined some private service within a few days of his alleged termination of service by the petitioner, and that therefore, there was no question of there being any entitlement under Section 17-B of the Industrial Disputes Act in his favor. In addition, the management has contended that despite admitting to having been employed ever since December, 1984, the workman had suppressed the particulars of his employer, as well as the nature of his job being done by him ever since, with a view to mislead this Court and secure orders under Section 17-B. In the same context, the management further alleges that in the face of his own admission in the aforesaid cross- examination, the workman’s claim in the application, as also his statement in the supporting affidavits that he could not get any employment after termination of his service on 27th December, 1984, are also false. The management has relied on the decision of a Single Judge of this Court in the case of IRCON International v. Union of India in support of its averment that such a deliberate and false averment falls under Section 191, 192 and 193 of the Indian Penal Code and cannot be countenanced in support of a plea under Section 17-B of the Industrial Disputes Act. Counsel also sought to rely upon the order dated 19.1.2006 passed by this Court in WP(C) No. 13157/2005 titled Sant Lal v. District Collection Officer in support of his contention that in fact the workman had never expressed a desire, nor did he report for reinstatement and therefore for that reason also, his application deserved dismissal.
2. On 20th July, 2006, after hearing some arguments on this application, this Court directed the workman to file a detailed affidavit furnishing information where he was working, what was his salary, period of working, when he left the service and the reasons of leaving employment. Consequently, an additional affidavit dated 25th July, 2006 was filed by the workman. On 20th September, 2007, the petitioner was given the opportunity to file a parawise reply to this affidavit within four weeks. At the same time, the workman was directed to file his fresh and correct address on affidavit within one week. The workman thereafter filed his correct address on 27th September, 2007 in this Court. However, the management did not bother to file any reply to this additional affidavit of the workman giving the particulars as directed by this Court on 20th July, 2006. A perusal of the additional affidavit of the workman shows that whilst giving particulars of his employments ever since his termination on 27.12.1984; he has also tried to explain his earlier statement made in his supporting affidavit annexed to his application under Section 17-B wherein he has said that he was not employed anywhere; in the following manner:
4. That it is respectively submitted that while drafting the application under Section 17B, the Counsel of the respondent accidentally omitted to notice the cross examination of the workman and he was under the belief that the answering respondent has been doing agriculture work ever since the date of his termination. This mistake was bonafide and without any intention to mislead this Hon’ble Court.
3. In addition, he has also disclosed details of having worked for the period between February, 1985 to December, 1986 in the establishment of one Pradeep Arora of 1508, Aziz Ganj, Azad Market, Delhi-06. It is his case that what is relevant for the purpose of Section 17-B is whether the workman has been employed in any establishment during the period of pendency of proceedings in the High Court or the Supreme Court. To disentitle the workman to any relief under Section 17-B, it must be proved that the workman had been employed and had been receiving adequate remuneration during such period or part thereof. He states that, as stated in his additional affidavit, he was assisting his father in agricultural work ever since December, 1986, and in view of the fact that the instant writ petition came to be filed only on 27th September, 2005 after the impugned award dated 30th April, 2004, therefore, for the purpose of directing payment of last drawn wages, the relevant period is really the period after 30th April, 2004 when the impugned award came to be passed. Counsel for the workman has referred to the case of Airport Authority of India v. Puran Chand and Ors. reported 2007 1 LLJ Delhi 850 where a Division Bench of this Court has quoted a decision by a Single Judge of this Court in Taj Services Ltd. v. Industrial Tribunal-I and Ors. which held as follows:
…Under the proviso of Section 17-B of the Industrial Disputes Act what is required to be proved by the employer is that the workman had been employed in an 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 17-B of the Industrial Disputes Act on the ground that they are running their own business and are receiving profit from such business.
A reading of this shows that even if it is demonstrated that the workmen in question are running their own business, and are receiving profits from such business, benefit of Section 17-B of the Industrial Disputes Act cannot be denied to them; what is required to be seen is whether the workman was employed for remuneration under another employer; and so long as that test is not satisfied, relief under Section 17-B is available. This proposition has also been reaffirmed in Iklash Hussain v. Delhi Transport Corporation 2006 (9) AD (Delhi) 187 where in paragraph 12 thereof, a Division Bench of this Court has specifically affirmed the view of the leaned Single Judge taken in the aforesaid case of Taj Services Ltd. v. Industrial Tribunal-I and Ors. (supra). Learned Counsel for the workman has also drawn my attention to the decision of the Supreme Court in Rajinder Kumar Kindra v. Delhi Administration wherein a finding that the workman was maintaining his family by helping his father-in-law who owns a coal depot; and that he lived with his father-in-law along with his family without any alternative source of maintenance, cannot be termed gainful employment. In that case, it was held that any marginal occupation resorted to merely to keep body and soul together cannot be construed to amount to gainful employment denying the benefit of Section 17-B of the Industrial Disputes Act. There, the Supreme Court held that to do so, would be perverse. On the facts that have emerged in this case also, it is quite clear that for the relevant period, which is from the date of the award i.e. 30th April, 2004, the workman has not been employed in any establishment in the sense that he has not been working under any other employer. He has only been assisting his father in agriculture with a view to sustain himself without any substantial employment. In this context, I might also advert to the decision of this Court in Food Craft Institute and Ors. v. Rameshwar Sharma and Anr. reported 2006 (VI) AD (Delhi) 189 wherein the principles laid down in the various judicial pronouncements for grant of any relief to a workman have been culled out in paragraph 64 thereof; and in particular to the following:
64(v) The court can enforce the spirit, intendment and purpose of legislation that the workman who is to get the wages from the date of the award till the challenge to the award is finally decided as per the statement of the objections and reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17B was inserted in the act. Re: JT 2001 (Suppl.1) SC 229 Dena Bank v. Ghanshyam (para 12).
64(ix) The court while considering an application under Section 17B of the ID Act cannot go into the merits of the case, the court can only consider whether the requirements mentioned in Section 17B have been satisfied or not and, if it is so, then the court has no option but to direct the employer to pass an order in terms of the statute. It would be immaterial as to whether the petitioner has a very good case on merits Re: 2000 (5) AD Delhi 413 entitled Anil Jain v. Jagdish Chander.
This decision was also reaffirmed by a Division Bench of this Court in the case of Iklash Hussain v. Delhi Transport Corporation (supra).
4. Another ground urged by Mr. Sewa Ram is that since the workman never approached the management for reinstatement, therefore he is not entitled to any relief under Section 17-B. To support this contention, he relies on an order dated 19th January, 2006 passed in WP(C) No. 13157/2005 in Sant Lal v. District Collection Officer (supra). I do not see how this order can be of any help to the management for the proposition that the workman had never offered to rejoin the service of the management. In fact, the said petition was filed by the workman to direct implementation of the award. In other words, he was clearly seeking reinstatement by the management and was basing his petition on the ground that the management was refusing to implement the award. The case before this Court is altogether different. Furthermore, a perusal of Section 17-B does not in any way indicate that for the workman to be entitled to the relief under that Section, he must, as a condition precedent, first demonstrate his willingness to rejoin service with the management. Nor has any authority been cited before me by the Counsel for the management in support of this proposition. This contention therefore deserves to be rejected without anything more.
5. Clearly the workman knows no English. His affidavit, which is signed in Hindi, bear no endorsement to the effect that the same has been read out and explained to him in the vernacular. Taking all the circumstances into account, I am inclined to accept the explanation given by the workman in his additional affidavit to the effect that the averment made in the first affidavit in support of his Section 17-B application was made erroneously by his counsel.
6. Coming to the so-called falsehood in the workman’s affidavit; the petitioner management has also sought to rely upon the apparent false statement that appears to have been made by the workman in his application under Section 17-B as well as in the supporting affidavit where he has stated that he has never been employed ever since December, 1984. To impeach the credibility of the workman, counsel for the petitioner states that although the workman has now given some details in his additional affidavit about his occupation ever since February, 1985 onwards, however the fact remains that in his cross examination on 14th September, 1993, the workman has stated that he was working in Azad Market, “since”, 1984. He states that such a workman is not entitled to any discretionary relief as contemplated under Section 17-B of the Industrial Disputes Act. In support of his contention, learned Counsel for the petitioner management relies on the decision of this Court in IRCON International Ltd. v. Union of India and Ors. (2004) I AD (Delhi) 479. In that case, in order to support his claim under Section 17-B of the Act, the workman had averred that he was out of employment since 1983 and that he had secured a passport only in 1998 and that he had been present in India without any interruption ever since 1983 to September, 2000. It was however demonstrated before the Court that the workman had been in possession of a passport much prior to 1998 and that in fact he had stayed abroad for more than two years during that period. In that case, the impugned award had been passed on 15th May, 2000. Although it is true that, in that case, the plea of the respondent that the relief period under Section 17-B was from 20th July, 2000 onwards, i.e., from the date when the impugned award was given, and that since the workman was in employment in Bangkok only from 1993 to 1997, his statement to the contrary in support of his application under Section 17-B of the Industrial Disputes Act should not be taken to amount to perjury, was rejected by this Court; This came about because that statement was made in response to a specific direction by the Court to disclose the particulars of his stay abroad, if any. In this case, what is before this Court is merely a statement made in cross examination in Hindi by the workman to the effect that he has been in private employment since 1984. In fact, during the same cross examination, he has also simultaneously denied the suggestion that he was gainfully employed. This record of the cross examination does not inspire much confidence. It is also likely that the statements were being made by the workman in Hindi and some error may have crept in while recording their substance in English for the record. Otherwise, somebody who admits to earning Rs. 800/- per month as compared to the salary of Rs. 300/- per month, i.e., nearly three times the salary received from his previous employer, is not likely to deny the suggestion that he is in fact gainfully employed. The fact that the statements made in cross examination by the workman are rather loosely recorded is also borne out by the statement attributed to him to the effect that, “it is incorrect that I am gainfully employed so I have not gone myself for employment.” The latter part of the statement i.e., “so I have not gone myself for employment” makes no sense. It is not even proper English. There is also no attempt at clarification. Therefore, it is not inconceivable that what the workman had stated was that he had worked in 1984 and received 800/- rupees per month. This cross examination was carried out nearly nine years later. Under the circumstances, to my mind, this is not a case which warrants the same approach that was taken by this Court in the case of IRCON International Ltd. (supra). In that case, there was a positive averment made by the management that the workman had gone abroad on gainful employment. Thereafter, in response to an application filed by the management asking the workman to produce his passport, and as directed by the Court; the workman stated that he had only applied for a new passport in March, 1998 and that he had never gone abroad for employment during 1997-1998 because the passport was only issued on 3rd September, 1998. He had also made a positive averment that “his presence in India has been without any interruption ever since 1983 till date”. This was a direct and blatant falsehood, which was resorted to in a brazen manner, to befool the Court and had clearly warranted a prosecution for perjury. The instant case stands on different footing. Here, there is no positive averment by the management claiming that the workman had been in gainful employment. What is relied upon is merely two words in his cross examination carried out 9 years after the termination of his service. From the date of the said cross examination also, 11 years elapsed before the date of the impugned award came to be passed in his favor; the recording of which leaves much to be desired. In addition, no further information or allegation to counter the detailed statement of facts given by the workman in his additional affidavit is forthcoming. In the circumstances narrated above, I am satisfied that the petitioner has remained entitled to an order under Section 17-B of the Industrial Disputes Act.
7. It is, therefore, directed that the petitioner shall be paid full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule. For calculating wages last drawn, the revision of pay, if any, will also be taken into consideration by the petitioner management. It is further directed that the management shall pay to the workman an amount equal to the minimum wages payable or the last wages drawn by him whichever is higher. Further, keeping in view the decisions of the Supreme Court vis-a-vis Dena Bank v. Kirti Kumar Patel and Regional Authority, Dena Bank v. Ghanshyam and decisions of this Court in Ashok Hotel v. Govt. of NCT and Ors. and Hindustan Carbide Pvt. Ltd. v. Govt. of NCT of Delhi 2002 (61) DRJ 521 (DB), in the interest of justice, and to balance equities, such payment shall be subject to the workman filing an affidavit within a period of two weeks giving an undertaking that in the event of this Court deciding the writ petition in favor 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.
8. 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 & contentions in the present proceedings.
9. The application stands disposed of.