Gita Mittal, J.
1. By way of this application, the respondent/workman is seeking grant of interim wages. The respondent/workman has alleged illegal termination of her services on the 8th May, 1996 which she challenged by way of an industrial dispute. After a detailed adjudication, the industrial adjudicator passed an Award dated 30th July, 2002 holding that the services of the respondent/workman had been terminated illegally and that she was entitled to reinstatement with continuity of service and full back wages. Aggrieved by this award, the same was assailed by the management by way of the present writ petition. An order dated 7th March, 2003 was passed on the application of the management seeking interim relief whereby subject to deposit of Rs. 50,000/- in this court, the operation of the impugned award was stayed. The respondent/workman served an advance copy of the application under Section 17-B of the Industrial Disputes Act on the very next date upon the other side. This application has been filed based on the averment that the employment with the petitioner was the only source of income/livelihood for the respondent/workman and that she has been suffering since 8th May, 1996 when her services were illegally terminated. The workman submits that she was employed as a manager and had been drawing a salary of Rs. 2,950/- per month. At present, the respondent/workman claimed that she was looking after her two minor children and she was at the mercy of relatives and family friends. She was not having any financial help from her husband. On these facts, a prayer for grant of wages till her reinstatement was prayed in the application .
2. The application has been opposed by the petitioner primarily on two grounds. It has been stated that the workman was gainfully employed in the job work of fabricated garments and is running her own business. An allegation has been made that the respondent is doing business under the name and style of M/s Swarn Dev Fashion, operating from A-171, Raj Nagar II, Palam Colony, New Delhi 110 045. It has been vehemently contended that the workman owns a cellular phone bearing No. 9810646727 9810646727 and that she has done job work for M/s Gopal Clothing, 272, Udyog Vihar, Phase - II, Gurgaon; Gaurav International, 225, Udyog Vihar, Phase 1, Gurgaon; Niti Crossing, 218, Udyog Vihar, Phase - I, Gurgaon and Madhbani Exports, 403, Udyog Vihar, Phase IV, Gurgaon. Based on these assertions, it has been contended that the workman is gainfully employed and that the application of the workman was false.
3. Answering these allegations, the respondent/workman has contended that she has no connection whatsoever with M/s Swarn Dev Fashion and that she is neither the proprietor nor the owner or partner thereof. She has denied on affidavit that she is the employee of any such concern of any kind with A-171, Raj Nagar, Phase II, Palam Colony, New Delhi. The respondent/workman has disclosed that this firm was owned by Shri D.S. Adhikari, her real maternal uncle and that the son of the applicant was working with him. The nature of the son's work is collection of work from various firms and getting it done from his associates or from persons attached with him. The respondent/workman has stated that being unemployed and that on account of needs, she helps her son on occasions. This firm is stated to have been opened only in or around May, 2003 by the respondent's maternal uncle.
4. In a further affidavit, the workman has deposed that her husband was an employee of the Kanpur Development Authority and he was dismissed from his employment by this authority on 6th December, 2004. It is stated that the respondent/workman had deserted her and at present, even whereabouts of Shri Balwant Singh, her husband, are not known.
The workman has submitted that in these circumstances, Shri D.S. Adhikari, sole proprietor of M/s Swarn Dev Fashion, is taking the assistance of the respondent's son Shri Sanjay Negi who is still a student of BCA from I.G.N.O.U. Shri Sanjay Negi co-ordinates with persons who assign job work to Mr. D.S. Adhikari's firm. In lieu of the assistance given by Shri Sanjay Negi, Shri D.S. Adhikari is bearing the expenses of education of the respondent's two sons, Sanjay and Sandeep, along with her general household expenditure.
The other son of the respondent Sandeep Negi who was born on 5th January, 1989 is stated to be a student in Government Inter College at Palam and is only a student.
5. So far as the Explanationn for the mobile phone is concerned, the respondent has stated that the same has been purchased by Mr. D.S. Adhikari though in the name of the deponent and it is utilised only by Mr. D.S. Adhikari and Mr. Sanjay Negi. This phone is stated to be the only contact number for the said business.
6. I have heard learned Counsel for the parties. Undoubtedly, learned Counsel for the petitioner has contended with all the vehemence at his command that the respondent/workman is guilty of concealment of material facts and has not stated the truth about her sources of livelihood.
7. It would be necessary to notice the requirement of the statute which would entitle a workman to grant of wages during the pendency of challenge to an award directing reinstatement into service of the workman, Section 17-B of the Industrial Disputes Act, 1947 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.
8. thereforee, if a workman had an award of reinstatement in his/her favor, and a challenge is laid thereto by the management in any appropriate proceedings and the workman is not gainfully employed, then such workman is entitled to grant of wages during the pendency of the challenge.
9. By judicial pronouncement, the parameters of consideration and the quantum of wages have been laid down by the Apex court. The Apex Court has considered both the date from which an order granting wages to workman would be made and also an appropriate amount towards the quantum of the wages. Such order would be considered in a case where an award of reinstatement has been made against the workman which has been challenged by the management by way of writ proceedings. One of the considerations which weighs with the court while granting the wages is that such a workman became entitled to reinstatement upon the award being passed and he has been denied this benefit on account of the challenge made by the employer.
10. On this issue the Apex Court in JT 2001 (Supp.1) SC 229 entitled Regional Authority, Dena Bank and Anr. v. Ghanshyam held thus:
10. It may be noticed that Section 17-B of the Act does not preclude the High Courts or this Court under Articles 226 and 136 of the Constitution respectively from passing appropriate interlocutory orders, having regard to the facts and circumstances of the case, in the interests of justice. The High Court or this Court may, while entertaining employer's challenge to the Award, in its discretion, in appropriate cases, stay the operation of the Award in its entirety or in regard to back wages only or in regard to reinstatement without interfering with payment of back wages or on payment of wages in future irrespective of the result of the proceedings before it etc. and/or impose such conditions as to the payment of the salary as on the date of the order or a part of the back wages and its withdrawal by the workman as it may deem fit in the interests of justice. The court may, depending on the facts of a case, direct payment of full wages last drawn under Section 17-B of the Act only by the employer to the workman. The question whether a workman is entitled to the full wages last drawn or full salary which he would be entitled to in the event of reinstatement while the Award is under challenge in the High Court or this Court depends upon the terms of the order passed by the Court, which has to be determined on interpretation of the order granting relief.
12. We have mentioned above that the import of Section 17-B admits of no doubt that Parliament intended that the workman should get the last drawn wages from the date of the Award till the challenge to the Award is finally decided which is in accord with the Statement of the Objects and Reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17-B does not preclude the High Courts or this Court from granting better benefits-more just and equitable on the facts of a case-than contemplated by that provision to a workman. By interim order the High Court did not grant relief in terms of Section 17-B, nay, there is no reference to that Section in the orders of the High Court, thereforee, in this case the question of payment of 'full wages last drawn' to the respondent does not arise. In the light of the above discussion the power of the High Court to pass the impugned order cannot but be upheld so the respondent is entitled to his salary in terms of the said order.'
11. In JT 1997 (9) S.C. 167 entitled Dena Bank v. Kirtikumar T. Patel, the Apex Court further observed as follows:
24. As regards the powers of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution it may be stated that Section 17-B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour Court, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass an order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be dehors the provisions contained in Section 17-B and while giving the direction the Court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. (supra) that in exercise of the power under Article 226 and 136 of the Constitution an order can be passed denying the workman the benefit granted under Section 17-B. The conferment of such a right under Section 17-B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Article 226 and 136 of the Constitution.
12. On this issue, the Division Bench of this Court in 2004 III AD (DELHI) 337 entitled Indra Perfumery Co. Thr. Sudershab Oberoi v. Presiding Officer and Ors held thus:
10. The Court is examining the legislation, which is a welfare legislation. The Labour Court on arriving at a conclusion that dismissal/termination is illegal, has to direct reinstatement of the workman with full back wages. In the instant case, in view of the order, the workman was entitled to not only the back wages, but was also entitled to get current wages, unless he had refused to work. If the employer, instead of reinstating the workman, challenges the award and obtains stay order, the workman will not get the benefit of the order which ought to flow from the date of the order. It is in view of this, when an order is made by the Labour Court, the benefit must flow from the date of the order passed. Section 17-B of the Act protects both the sides during the pendency of the proceedings in the High Court and if the proceedings are not pending, then the workman cannot be denied the benefit of the order made by the Labour Court. It is in view of this, it would be just and proper to say that the workman is entitled to get the benefit of the order from the date of the passing of the order
13. It is also settled law that the onus of proof of the gainful employment of the workman would rest on the person who asserts this. In the instant case, the petitioner has contended that the respondent was gainfully employed.
14. Reliance has been largely placed on the sole fact that there exist an mobile phone which is in the name of the workman. The other assertion has been to the effect that the workman has taken job works from three concerns. The question, thereforee, would be as to whether merely holding a mobile phone in a person's name would enable a court to draw any conclusion of gainful employment of the workman.
15. So far as the expression 'gainful employment in an establishment' is concerned, it has been held by the courts that the self-employment too is not employment in an establishment. This question fell for consideration before the Apex Court in : (1984)IILLJ517SC entitled Rajinder Kumar Kundra v. Delhi Administration while considering the question relating to award of back wages, the court noticed thus:
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 thereforee 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 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 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. thereforee, the appellant would be entitled to full back wages and all consequential benefits.
16. In : (2000)ILLJ1012Del entitled Taj Services Limited v. Industrial Tribunal - 1 and Ors. it has been held that:
6. Workmen can be denied the benefits under Section 17-B 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 & 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 the respondent Nos. 2, 4 & 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 survival of himself and his family, it will not disentitle the workman for the benefits under Section 17-B of the Industrial Disputes Act. The learned Counsel for the respondents also contended that the proviso to Section 17-B of the Industrial Disputes Act would be attracted only in the case of the employment under another employer and receiving adequate remuneration. I find force in the contention of the learned Counsel. As per Section 17-B 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 17-B of the Industrial Disputes Act what is required to be proved by the employer is 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 17-B of the Industrial Disputes 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 averments in the reply of the employer, there is no 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, t he 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 17-B of the Industrial Disputes Act to the workmen including respondent Nos. 2, 4 & 10.
17. It would be useful to advert to the pronouncement of this Court reported at 109 (2004) DLT 1 entitled M/s Birdhi Chand Naunag Ram Jain v. P.O., Labour Court No. IV and Ors. In this case in answer to the workman's application under Section 17-B of the Industrial Disputes Act, 1947 management allegation that the workman was selling miscellaneous items in front of Birla Mandir, New Delhi, the workman filed a rejoinder that the amount generated by this activity was not sufficient to sustain his family. Upon consideration of the rival contentions and judicial pronouncements on this issue, the court held thus:
In any event, self-employment is not a norm for denying back wages as the Section 17-B of the ID Act clearly stipulates employment in an establishment. Respondent No. 3/applicant is clearly not employed in any establishment. If in order to sustain himself, the respondent No. 3 enters into a self-employed vocation, it cannot be termed as `employment in an establishment' contemplated by Section 17-B of the ID Act. However, thereforee the plea of Mr. Sabharwal which merits consideration is that the writ petition was filed in September, 1999 and the application under Section 17-B of the ID Act was filed only on 1st September, 2001. There is no Explanationn given for this delay. Accordingly, payment under Section 17-B is not to be made for the period starting from October, 1999 to August, 2001 as as the respondent No. 3/applicant has failed to give any reason for not filing the application earlier.
From the principles laid down in the afore-noticed three pronouncements, it would appear that self employment or assistance rendered to relatives, who were supporting the workman to survive or subsist, would not amount to such gainful employment so as to render him ineligible to grant of an order for wages under Section 17-B of the Industrial Disputes Act, 1947.
18. In the instant case, apart from an assertion of the petitioner to the effect that the respondent was admittedly having a mobile phone in her name, the allegations of the respondent conducting business are unsupported by any particulars other than the names of three concerns. No documentary or other evidence has been placed on record in support of the contentions of the management. The workman has denied the assertions of the petitioner. There is no denial whatsoever to the fact that the husband of the respondent/workman stands terminated from his services or that she is a deserted lady. The petitioner has not placed any material to show that any of the assertions of the respondents to the effect that she is a single parent looking after two grown up sons who are both students, the workman is asking since 1996 from which date she, according to her, was thrown out of her job. In these circumstances, the employee would do anything to keep body and soul together. There is no evidence of the workman having any kind of means by which she could have supported herself. She has candidly stated that Mr. D.S. Adhikar, her maternal uncle, was the sole proprietor of M/s Swarn Dev Fashion and that her elder son, who was still a student of BCA, was assisting him. She has stated that Mr. D.S. Adhikari is assisting her family in meeting the expenses of the education and their household.
19. The respondent has admitted that the mobile phone is in her name but is used by Mr. D.S. Adhikari and her sons for the purposes of their work. Even if the contention of the petitioner that the respondent/workman was doing job work for different concerns in her own right was to be accepted, the same could not be construed as gainful employment in an establishment.
20. In any case, there is not an iota of evidence to show that the workman has such income as would be sufficient to subsist.
21. The facts brought on record would indicate that there may be some income to the workman from the assistance which she is admittedly rendering to her brother and son.
However, it cannot at all be held that the respondent/workman, in the instant case, is so gainfully employed so as to disentitle her to grant of wages. The courts have held intermittent or sporadic work which the respondent/workman may be able to put together in order to survive, is not gainful employment.
22. There is no firm material as to the extent of income which the workman is deriving. In these circumstances, I see no reason to disbelieve the statement of the workman that she is dependent on support from her brother for meeting all her expenses.
A discretion is left to the court with regard to the quantum of wages or the rate at which the workman is to be paid wages and the period from which to be paid.
However, having regard to the fact that the workman is having some income which is stated to be insufficient, ends of justice would be met if the workman is paid wages at the same rate as the wages which she was drawing at the time of termination of her services.
23. For all the foregoing reasons, in my view, the application of the workman deserves to be allowed. The petitioner is accordingly directed to pay wages to the workman w.e.f. 30th July, 2002 at last drawn wages. Arrears, in terms of the order passed today, shall be paid within a period of six weeks from today. Month by month wages shall be paid to the respondent/workman on or before the tenth day of each English calendar month at the addressed disclosed in the affidavit filed by her.
The application is allowed in the above terms.