Back
2018 Supreme(Del) 2542
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI, SANGITA DHINGRA SEHGAL, JJ.
National Agricultural Cooperative Marketing Federation of India - Appellant
Versus
P.O. Labour Court & Anr. - Respondents
LPA 79 of 2016
Decided On : 30-08-2018
For the Petitioners:Mr. Arun Dhiman, Advocate.
For the Respondents: Mr. Devesh Singh, ASC, Civil with Ms. Sukriti Ghai, Adv. Mr. Kittu Bajaj, Adv.
The main legal point established is that a workman is entitled to the benefit under Section 17B of the Industrial Disputes Act if not gainfully employed after termination, and the burden of proof lies on the employer to disprove the workman's claim of unemployment.
Headnote:
Industrial Disputes Act - Minimum Wages - Section 17B
Fact of the Case:
The appellant terminated the respondent's services and the respondent claimed illegal termination and sought direction for payment of minimum wages under Section 17B of the Industrial Disputes Act, 1947.
Finding of the Court:
The court found that the respondent was not gainfully employed after termination and was entitled to the benefit under Section 17B of the Act.
Issues: The main issue was whether the respondent was gainfully employed after termination and thus disentitled to the benefit under Section 17B of the Act.
Ratio Decidendi: The court emphasized that if a workman earns a petty amount to sustain himself and his family, it does not amount to gainful self-employment. The employer must provide sufficient evidence to disprove the workman's claim of unemployment.
Final Decision: The court dismissed the appeal, finding no merit in the appellant's contentions.
SANGITA DHINGRA SEHGAL, J.
1. Challenge in this appeal filed under Clause X of the Letters Patent Act is to the order dated 28.07.2015 passed by the learned Single Judge whereby the application filed under Section 17B of the Industrial Disputes Act, 1947(hereinafter referred to as “the Act”) by the respondent no. 2/Ramesh Kumar seeking direction to the appellant/Federation to pay wages as per the minimum wages applicable under the statute was allowed.
2. The brief facts leading to the filing of the present appeal are that one Ramesh Kumar/respondent No. 2 was appointed by the appellant/Federation as a casual workman/Mechanic Helper vide its appointment letter dated 18.01.1994 for the period of three months on daily wages. The services of the respondent no.2 was extended from time to time and he was retrenched vide letter dated 02.02.1996 by the appellant. The respondent no. 2 raised an industrial dispute claiming illegal termination of his service by the appellant and preferred a dispute before the labour court whereby an award dated 16.10.2001 was passed in favour of the appellant. The relevant portion of the award is produced hereinafter:-
“18. In that view of the matter, the application is allowed. The petitioner/management is directed to pay to the respondent his last drawn wages or minimum wages which notified by the authorities from time to time whichever is higher, from the date of passing of the impugned award till the pendency of this writ petition provided he files an undertaking within two weeks that in case the petitioner succeeds in this writ petition and it is found that he has received wages in excess amount to the petitioner/management within four weeks from the date of passing of the judgment by this court.”
3. Thereafter, an application was moved by the appellant before the presiding officer for setting aside of the award dated 16.10.2001 but the same was dismissed. Aggrieved, a writ petition was filed by the appellant for setting aside of the orders dated 29.01.2005 and 16.10.2001. In the said writ petition, an application under Section 17B of the Industrial Disputes Act, 1947 was moved by the respondent No. 2, seeking direction to the appellant/Federation to pay wages as per the minimum wages applicable under the statute, which was allowed by the learned Single Judge vide his order dated 28.07.2015. Hence, the present appeal was preferred by the appellant.
4. Mr. Arun Dhiman, the learned counsel for the appellant strenuously contended that the learned Single Judge committed error in allowing the application moved by the respondent No. 2 in the writ petition vide order dated 28.07.2015 and that such findings were based more on hypothetical assumption of vital and necessary facts, based on mere surmises; that the learned Single Judge erred in not appreciating the fact that the respondent No. 2 was self employed, after the termination of his services in the appellant organisation, as he owned a TATA-407 vehicle in his own name and further deployed his vehicle for commercial gain; that he also had a driving licence for the said purpose; that the appellant is not entitled to benefit under Section 17B of the Act as he was self-employed and was receiving adequate remuneration during such period and would come within the ambit of “gainful employment in any establishment”. In order to substantiate his case, the learned Counsel for the appellant has placed reliance in the case of Lumax Automative Systems Ltd. v. Its workmen represented by Hindustan Engineering and General Mazdoor Union reported in 2012 SCC Online Del 392, Shriram Institute for Industrial Research v. Rajesh Kumar Gandhi reported in 2012 SCC Online Del 4593, Suraj & Ors. v. Tata Sons & Ors. reported in 2015 SCC Online Del 11034 and North East Road Karnataka Road Transport Corporation v. M. Nagangouda reported in (2007) 10 SCC 765.
5. Per contra, Mr. Kittu Bajaj, learned for the respondent No. 2 contended that there is no infirmity in the order pass
