(Oral)CM APPL. 32208/2018 (u/S 17B, ID Act) in W.P.(C) 4889/20181. This hearing has been done by video conferencing.2. The present writ petition challenges the award dated 27th January, 2018 by which the Presiding Officer, Labour Court has directed the reinstatement of the Respondent/Workman (hereinafter, “Workman”) with continuity of service and 25% back wages from the date of termination.3. Vide order dated 26th July, 2018, the order was stayed subject to the Management depositing 25% of the awarded amount with the ld. Registrar General of this Court. The Workman then filed an application under Section 17B of the Industrial Disputes Act, 1947 (hereinafter, “ID Act”), which is decided by the present order.4. In support of the application under Section 17B of the ID Act, Mr. Nagarajan, ld. Counsel submits that the Workman has been granted reinstatement with continuity of service and 25% back wages from the date of termination by the impugned award dated 27th January, 2018. He submits that during the pendency of the appeal, the Workman is entitled to the monthly wages drawn by him or the minimum wages, whichever is higher, as he is not gainfully employed in any establishment.5. He submits that the only evidence that the Petitioner/Management (hereinafter, “Management”) has placed on record is that the Workman is working in a shop called Satpal Halwai. However, this shop belongs to the Workman’s father and the Workman clearly helps his father run the shop. He further submits that the rent receipts are also in the name of the father and the shop is being run for more than ten years.6. Ld. Counsel submits that even having interim income is not sufficient to reject an application under Section 17B. Reliance is placed on two judgments - Icon Printing Process (P) Ltd. v. Govt. Of NCT Of Delhi, 2007 (4) Ad (Delhi) and Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635 to submit that the fact that in order to sustain the family for daily needs the Workman is helping his father in his father’s shop or catering business, does not mean that he can be held to be gainfully employed. Thus, the Section 17B application is liable to be allowed. Ld. counsel further relies on an additional affidavit filed by the father of the Workman to argue that the shop is in fact owned by the father. He relies upon the letter issued by the village Sarpanch and the certificate issued by the temple Committee to show that the shop is located in the temple premises and is allotted to the father.7. Further, reliance is also placed on an affidavit from neighbouring shop owners to argue that they also confirm that the shop is run by Mr. Satpal i.e., the Workman’s father. Finally, ld. counsel relies upon the judgment of the ld. Division Bench of this Court in Ikhlash Hussain v. Delhi Transport Corporation, 2006 (92) DRJ 749 (DB) to submit that if the Workman is self-employed or is assisting relatives for subsistence, the same would not constitute employment in any establishment. Accordingly, he submits that the Management has failed to prove that the Workman is earning adequate remuneration and is employed in another establishment.8. On the other hand, Mr. Tyagi, ld. Counsel submits that the photographs and video placed on record show that the Workman is independently running the shop. The name of the shop is Satpal Halwai. He submits that there are two separate businesses, one is the shop and the other is the catering business. The menu card of the catering business is placed on record. A perusal of the menu card shows that the catering business is for big events like weddings and not just for birthday parties. He submits that it is not possible for only one person to run both businesses. It is submitted that the Workman is fully involved in the businesses of his father and he is also earning adequately. It is submitted that the Workman is gainfully employed in running the shop.9. Reliance is also placed on the video to submit that the same clearly shows that the Workman is managing the shop by himself. Further, reliance is placed on the judgment in Niranjan Cinema v. Prakash Chandra Dubey & Anr., (2007) 14 SCC 349 to argue that self-employment also constitutes gainful employment.10. The only question in the present application is whether the Workman has been employed in any establishment. Section 17B of the ID Act reads as under:“17B. 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 or 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.”11. The submission advanced by the Management is that the Workman is running his own independent business and that he is gainfully employed. On the other hand, the Workman’s case is that he is merely helping his father in his father’s business and the same does not constitute employment. Thus, the Workman is entitled to the full last drawn wages or the minimum wages, whichever is higher, during the pendency of this appeal.12. The factors which are to be considered for determining whether a workman is gainfully employed or employed in any establishment have been considered in various decisions of the Supreme Court and this Court. In Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, the Supreme Court has held that the fact that the Workman was helping his father-in-law, who owned a coal depot, and had no alternative source of maintenance would not constitute gainful employment. The observations of the Supreme Court are as under:“21. It was next contended on behalf of the appellant that reinstatement with full back wages be awarded to him. Mr. P.K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. 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 has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back-wages 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 helping his father-in-law Tara Chand who had a coal-depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for back wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back wages and all consequential benefits.”13. This judgment of the Supreme Court has, thereafter, been followed in various decisions of this Court, most of which have been discussed in the judgment of the ld. Division Bench of this Court in Iklash Hussain v. Delhi Transport Corporation, 2006 (92) DRJ 749 (DB). In the said judgment, the ld. Division Bench has observed as under:“12. … As explained by the Hon’ble Supreme Court in Rajinder Kumar Kindra’s case (supra), the self employment for sustenance does not constitute employment in an establishment as required by Section 17B of the Act. Considering all the facts and circumstances of the case and the established law, we are of the opinion that the learned Single Judge is fully bound to follow the above cited judgments and we affirm the view of the learned single Judges in the following judgments:-1. Taj Services Limited v. Industrial Tribunal - I & Ors., 2000 Vol. I LLJ 1012 (supra)2. G.G. Fashion & Ors. v. Smt. Jayanti Negi, 130 (2006) DLT 49 : 2006 (90) DRJ 370 (supra)3. M/s Birdhi Chand Naunag Ram Jain v. P.O ., Labour Court No. IV & Others., 109 (2004) DLT 1 : 2003 (72) DRJ 297 (supra)4. Food Craft Institute and Ors. v. Rameshwar Sharma & Anr., 2006 VI AD (Delhi) 189 (supra) We also reiterate the view taken in the Division Bench judgments in Airport Authority’s case (supra) and in D.D.A. v. Omvati dated 19.12. 2002 in LPA 84/2002 (supra). Accordingly, the appeal is accepted and the impugned order is set aside.13. The learned Single Judge is thus required to decide the application under Section 17B of the Act prior to the hearing of the writ petition as per the law laid down by the Hon’ble Supreme Court and this Court in judgments referred to in this judgment.”14. The Management has placed reliance on the judgment of the Supreme Court in Niranjan Cinema v. Prakash Chand Dubey & Anr., (2007) 14 CC 349. In the said decision, the Supreme Court took note of the fact that the Workman was having some earnings from a beetel shop and hence directed payment of only 50% of the back wages. Similarly, in North East Karnataka Road Transport Corporation v. M. Nagangouda, AIR 2007 SC 973, the Supreme Court has observed that gainful employment would include self-employment and income from agriculture would also constitute gainful employment. The observations of the Supreme Court read as under:“10. It was sought to be urged that after coming to a finding on the basis of the evidence of the respondent himself that the during the period of termination of his services, he was engaged in agriculture and that he was receiving certain amounts therefrom, it was not open to the Labour Court to observe that "gainful employment" would not include such income from agriculture. It was urged that income from any source, whether from employment in an establishment or from self-employment, would have to be treated as income for the purposes of deciding whether the respondent would be entitled to receive full back wages. It was urged that both the Tribunal and the High Court erred in taking a view to the contrary and the orders passed on the basis thereof were liable to be set aside. On behalf of the respondent the stand taken before the Labour Court and the High Court was reiterated and it was contended that engaging in agricultural work would not amount to being gainfully employed and hence the orders passed by the Tribunal as affirmed by the High Court for payment of full back wages to the respondent, did not call for any interference.11. We have carefully considered the submissions made on behalf of the respective parties in the backdrop of the facts of the case. Since the finding on the issue as to whether the domestic enquiry had been fairly and properly held had been decided in favour of the respondent and had not been challenged by the appellant, the only issue which was remitted by the High Court to the Tribunal was whether the respondent would be entitled to full back wages from the date of his dismissal till the date of the award, with continuity of service and consequential benefits.12. On the said question, we are unable to accept the reasoning of the Labour Court that the income received by the respondent from agricultural pursuits could not be equated with income from gainful employment in any establishment. In our view, "gainful employment" would also include self- employment wherefrom income is generated. Income either from employment in an establishment or from self- employment merely differentiates the sources from which income is generated, the end use being the same. Since the respondent was earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that merely because the respondent was receiving agricultural income, he could not be treated to be engaged in "gainful employment".”15. In Kamala Nehru Memorial Hospital v. Vinod Kumar, (2006) 1 SCC 498, the Supreme Court while dealing with an application under Section 17B where the workman concerned was practising as an advocate, rejected the application and observed as under:“8. The High Court's conclusions about entitlement of the respondent under Section 17-B of the Act is relatable to non-employment and non-receipt of adequate remuneration of the workman. The appellant had adduced ample material to show that the respondent was enrolled as an advocate in 1983 and was a busy practitioner with decent professional income. It had even given a list of a large number of cases in which the respondent had appeared. Without any material to support its conclusions, the High Court observed that “because of the compulsions of unemployment he has no option but to continue for a short period as a practising advocate”. (underlined [Ed.: Herein italicised.] for emphasis) The conclusions are clearly contrary to material on record. The respondent was not entitled to any entitlement under Section 17-B of the Act. However, if any amount has already been paid in the peculiar facts of the case, the respondent shall not be liable to refund the same.”This decision has also been followed by a ld. Division Bench of this Court in Shriram Institute for Industrial Research v. Rajesh Kumar Gandhi, 2012 SCC OnLine Del 4593. A perusal of the decisions set out above shows that the relief under Section 17B is granted or rejected depending on the fact situation in each case. There is no strict rule that is applied and the relief has in fact been tailored to the circumstances.16. In the facts of the present case, the documents placed on record show that the Workman is actively working in a shop called Satpal Halwai. It is possible that the shop was initially allotted to the father, however, the Workman could either be helping his father or even running the business of his father. The video placed on record shows that the Workman is independently handling the business at the shop. The Management has argued that there are two businesses i.e., the Halwai business and Catering services, both of which are separate. However, there is no material on record to show the income being earned by the workman from the shop, even if it is presumed that he is exclusively running it or helping his father. The material does show that he is having some business from the shop. Thus, at this stage, only a broad view can be taken.17. In the impugned order, the Labour Court had justified the grant of only 25% of the back wages and not the full back wages to the Workman as under:“15. The claimant had joined management in 2008 and his service was terminated on 20.03.2017. By that date, he had worked for about nine years. T
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he ill-will between management and him was his dispute with the-then President Mr. Gyanendra of the union. Mr. Gyanendra has settled the criminal matter with him and other two workers. Now, Gyanendra does not have any enmity / ill will with him. The incident had taken place between the persons who were claiming to be the union leaders against each other. The claimant had not beaten any officer of management. The dispute between him and Gyanendra was not regarding any affair of management. So, it cannot be said that there was any enmity between claimant and management. Moreover, his service was terminated only about 10 months ago. The claimant deposed that he was jobless since termination of service but he did not pinpoint any other management visited by him in connection with re-employment. He is not an oldman. He is an able bodied person. Had he tried seriously, he would have definitely got job of some less status and salary…”18. The above reasons would also hold good for the Section 17B application. Thus, while it cannot be said that the Workman has to sit idle, any earning which he has been making, even through self-employment, could be considered for the purpose of the Section 17B application. The main writ petition itself has been listed for hearing on 15th February, 2021 along with connected writ petitions. The Management has also deposited some part of the back wages which were awarded. Since the exact income earned if any, is not established from the record, this Court deems it appropriate to direct the Management to pay to the Workman 50% of the last drawn wages or 50% of the minimum wages, whichever is higher, on or before the 10th of every month, after statutory deductions, if any.19. Application is allowed in the above terms.