M/S NNS ONLINE PVT. LTD. v. GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI

11. On the other hand, reliance has been placed by the Respondent upon an order dated 1st October 2018, passed by the Labour Court, where the question of Workman has been admitted. A perusal of the said order shows that the order basically reiterates the submission that he is a workman. There is no finding, however, that has been given by the court in respect thereof.

12. In any event, at this stage, the question that the Court has to consider is as to whether the Respondent has been employed in any establishment during the period.

13. In the opinion of this court, the following factual circumstances are relevant for the consideration of the present application: i. The Respondent, as per his own averment, is stated to be a Post Graduate in Journalism and Mass Communication from Lucknow University. ii. The Respondent was appointed as a News-Coordinator by the Petitioner- Management. iii. The Respondent was admittedly earning Rs. 45,000/- per month, as last drawn income, when he was working with the management. iv. Since 2013, he has not been employed with the Management. v. The Respondent, admittedly, is running and publishing a newspaper Vikas Vaibhav since 2014. The Registrar of Newspapers for India (RNI) Registration of the said newspaper is 2014, and verified on 23rd June 2014. A copy of the said newspaper has been placed on record. The RNI Registration also shows the Respondent as the publisher, editor and owner of the said newspaper. vi. In his application under Section 17B of the Act, the Respondent has asserted, wrongly, that he has not been in any kind of employment ever since he was terminated by/ he had resigned from by the Management. He has stated the same in paragraph 14 of his application, on affidavit. The said assertion reads as under: i. “14. That the workman is unemployed since the date of illegal termination by the petitioner and have no source of income to fulfil its daily needs and the workman fully dependent upon the relatives and friends.”

14. The Respondent has submitted that self-employment is not gainful employment for the purposes of Section 17B of the Act. To canvass the said submission, he has relied upon National Institute of Public Co-operation (supra) where a ld. Single Judge of this Court has observed as under:

28. The expression "gainful employment in an establishment" has been considered by this Court and the Supreme Court in various cases and it has been held that gainful employment cannot be extended to begging and similar activities carried on by a dismissed employee for his survival. The Supreme Court in Rajinder Kumar Kundra v. Delhi Administration had held as under: 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 fatherin-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-inlaw 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. Therefore, the appellant would be entitled to full back wages and all consequential benefits.

29. It has also been held that being employed for remuneration in an establishment means employment under another employer and it is different from running ones own business or trade in order to remain alive to see the end of the litigation

15. On the question as to whether, self-employment amounts to gainful employment, and the applicability of the same in the context of Section 17B of the Act, the Supreme Court as well as this High Court have rendered various decisions, dealing with the conditions that are relevant for consideration by the Court while granting relief under Section 17B of the Act.

16. The Supreme Court in North East Karnataka Road Transport Corporation v. M. Nagangouda (Civil Appeal No. 129/2007, decided on 9th January 2007), has clearly held that gainful employment includes selfemployment, as there is a source of income or remuneration that is present. The Supreme Court has held as under: “9. 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 selfemployment wherefrom income is generated. Income either from employment in an establishment or from selfemployment 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".”

17. Even a Division Bench of this Court, in Sriram Instutute for Industrial Research v. Rajesh Kumar Gandhi, 2012 SCC OnLine, Del 4593, has discussed the factors to be kept in mind by Courts while deciding an application under Section 17B of the Act, in cases of self-employment of the Respondent. The Division Bench held:

11. It is difficult to accept the contention of the respondentworkman in this behalf. No doubt, Section 17B uses the expression "industrial establishment". However, while interpreting this provision, one cannot ignore the purport and objective with which this provision was introduced. While considering an application under Section 17B of the ID Act, it is necessary to bear in mind that the spirit, intendment and object underlying the statutory provision of Section 17B is to mitigate and relieve, to a certain extent, the hardship resulting to a workman due to delay in the implementation of an Award directing reinstatement of his services on account of the challenge made to it by the employer. The primary consideration for making available such a relief to a workman is to be found in the benevolent purpose of the enactment. It recognizes a workman’s right to a bare minimum to keep body and soul together when a challenge has been made to an Award directing his reinstatement. The statutory provisions provide no inherent right of assailing an order or an award by an industrial adjudicator by way of an appeal. The payment which is required to be made by the employer to the workman has been held to be akin to a subsistence allowance which is neither refundable nor recoverable from a workman even if the Award in favour of the workman is set aside by the High Court. In Dena Bank Vs. Kiriti Kumar T. Patel, (1999) 2 SCC 106, the Apex Court was of the view that the object under Section 17B of the ID Act is only to relieve to a certain extent, the hardship that is caused to the workman due to the delay in implementation of the Award.

12. Keeping in mind the aforesaid objective as highlighted by the Supreme Court in number of judgments taken note of above, the provision requires purposive interpretation. We are therefore of the view that if the workman is having professional income/self-employment or even from any other vocation etc. and is making a decent income therefrom, he would not be entitled to invoke the provisions of Section 17B of the Act.

18. A Division Bench of this Court in Municipal Corporation of Delhi v. Santosh Kumari (LPA 165/12 and connected matters, decided on 24th August 2012) has also considered this issue of the proof of “gainful employment” that has to be ascertained by the Court while dealing with an application under Section 17B of the Act, and the possibility of selfemployment being relevant. The Division Bench in this case has held as under: 36…….The provisions of Section 17B of the ID Act are very clear in this behalf and the legal position as set addressed in enough judgments, which is as follows: Insofar as the workman is concerned, the only obligation put on him is to file an affidavit to the effect that he is not gainfully employed elsewhere. He does not have to prove anything else and the reason is obvious. No person can asked to give the proof of negative. Under Section 17B of the ID Act, it is an impossible for an employee to prove that he is not gainfully employed. Therefore, the moment such an affidavit is given by the employee, onus shifts upon the management contesting the application and intends to make out a case that the workman is not entitled to benefit of language under Section 17B of the ID Act because of this reason. An important question arises at this stage, viz., what kind of proof to show the gainful employment is to be furnished by the employer? If there is a direct proof and evidence to show that the workman is under the employment of some other employer, and such proof is available with the employer and employer furnishes the same, that would be clinching. Difficulty, however, arises when clear-cut proof is not available with the employer, though some semblance of evidence is furnished, which would indicate that the workman is employed somewhere but to arrive at definite finding, some more reliable evidence is needed. We have come across the cases where photographs of such a workman working in some establishments are filed and even the particulars of the employer are given, but it is stated by the management that the said employer with whom the concerned workman is purportedly employed is not ready to furnish any proof of the employment. Situation gets more complicated when the management pleads self-employment. In such cases also, some proof of workman running some small scale business or other such activity is furnished in the form of photographs or the ownership of shop, etc. without any further evidence. Invariably, in all such cases, the management seeks proof against the employer where the workman is purportedly working at present to prove the records and state about the said employment. Managements, in case of self-employment, also press the Court at times to summon the final records in the form of sales tax registration, registration under Shops and Establishments Act, etc. to find out whether the workman is doing the business under the provisions of the said Act. Such moves are normally resisted on the ground that the Court cannot hold inquiries into the aforesaid aspects and to determine and collect evidence on such aspects, viz., whether workman is working or not. Normally, such requests are rejected on the ground that the Court cannot hold inquiry once the workman has denied any gainful employment or self-employment.

37. We would like to point out at this stage that many cases have come across where workman initially doing any employment, but when confronted with some documentary evidence, they have accepted gainful employment. There is a tendency on the part of the workman to deny even when some semblance of evidence produced by the management which gives the indication some employment/self-employment.

38. No doubt, when the employer takes a vague plea that a workman is gainfully employed without furnishing any material or in support of this plea, the employer cannot take the help of the Court making the Court to undertake the exercise as to whether the workman is employed or not by indulging roving & fishing inquiry. We are of the view that interest of both the parties can be balanced by calling upon the workman to produce those documents, which are in exclusive possession of the workman and when the disclosure thereof is relevant to delineate the issue of gainful employment or self-employment. But it should be done only when the management produces some evidence in that behalf justifying further inquiry to know the truth. In such a situation, it would amount to finding the truth when on the one hand workman comes with complete denial and on the other hand, management has secured some evidence which may point towards the plausible/gainful employment. Such a course is not to be resorted to on the ipse dixit of the management as no fishing and roving inquiry is to be conducted by the Court.

39. This, therefore according to us, is the balanced approach which needs to be adopted by the Court, viz., it does not amount to become a proof or a tool for fishing and roving inquiry, but whether the cases so demand calling upon his workman to produce the evidence in his possession when on the basis of some evidence produced by the management, a doubt arises that workman may be employed and the affidavit filed by him may not be wholly correct.”

19. At this instance, it is relevant to note that the Respondent, has in his affidavit, stated that he is not gainfully employed anywhere, however as is clear from the perusal of his own cross examination as also the RNI portal, he is in gainful self-employment as he runs his own newspaper – Vikas Vaibhav. Clearly therefore, the affidavit filed by him portrays incorrect information.

20. A coordinate bench of this Court in Tata Sons v. Workmen and ors., 203 (2013) DLT 453, while dealing with a case where the workmen who were gainfully self-employed however, had wrongly stated before the Court that they were not employed, while considering the application under Section 17B, held as under:

21. In the present case, the Respondent did not make any attempt to disclose to the Court that he in fact runs a newspaper. However, the fact that he runs a newspaper is admitted in his cross examination. The RNI registration also establishes the same beyond any pale of doubt.

22. The purpose of section 17B of the Act, as held above in various judgments, is to support destitute employees who do not have any alternate source of income for the purpose of running their livelihood. The Respondent, clearly would not fall in the said category.

23. Further, in the present case, although the amount of remuneration that the Respondent earns through the newspaper Vikas Vaibhav has not been factually ascertained by this Court, there is no reason for this Court to assume that the remuneration being earned by virtue of the self employment is not adequate. Further, given the fact that the Respondent wrongly averred on affidavit that he is not employed elsewhere, the conduct of the Respondent disentitles him to relief under Section 17B.

24. Accordingly, in view of the aforementioned facts, the incorrect statement in the application under Section 17B, as well as the precedents discussed above, the ingredients for relief under Section 17B of the Act are not made out in the present case. The present Application is accordingly dismissed.

25. Mr. Chibber, ld. Counsel for the GNCTD, at the outset points out that the notice for Contempt before the Labour Court stands withdrawn on 20th September, 2021.

26. List the petition for hearing on 6th January, 2022.

PRATHIBA M. SINGH JUDGE SEPTEMBER 21, 2021 Rahul/Ak