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CASE NO.: Appeal (civil)  3960 of 2006

PETITIONER: Niranjan Cinema

RESPONDENT: Prakash Chandra Dubey & Anr

DATE OF JUDGMENT: 05/12/2007

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 3960 OF 2006

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of a learned  Single Judge of the Allahabad High Court dismissing the writ  petition filed by the appellant. By the said impugned judgment  learned Single Judge affirmed the view of Presiding Officer,  Industrial Tribunal No.1, U.P., Allahabad.

2.      Background facts in a nutshell are as follows: Respondent was working as a gate keeper in the  appellant Cinema Hall. On 6.10.1993 it was noticed that  counterfoils of the tickets were missing and, therefore,   First  Information Report was lodged with police. According to the  appellant the respondent absented himself from work but it is  a matter of record that he was running a betel shop next to  the Cinema Hall. Respondent raised an industrial dispute  before the Conciliation Officer alleging termination of services.   Appellant filed its reply statement stating that there was no  termination and in fact it was open to the respondent to  resume duties whenever he wanted.  Reference was made to  the Industrial Tribunal under Section 4K of the U.P. Industrial  Disputes Act, 1947 (in short the ’Act’), on the question as to  whether there was absence from work and no termination.  In  the claim statement before the Tribunal, respondent alleged  that his services had been terminated and the manager has  illegally dismissed him from service. Preliminary objections  were filed by the appellant taking the stand that the reference  was not maintainable since Government could not have come  to the conclusion that there has been termination of service.   It was reiterated that there was no termination of service and  it was still open to the respondent to resume work.  This  preliminary objection was filed on 7.11.1994.  On 21.2.1995  respondent filed a reply therein refusing to resume work.  On  25.4.1995 the appellant filed rejoinder against the claim  statement and again offered that the respondent could rejoin.   Evidence was led to show that there was no termination of  service and the respondent could join at any time. The  Tribunal in its award held that the termination was illegal and  reinstatement with back wages was directed on the ground  that even if respondent had started a betel shop, he could not  be said to be gainfully employed. Subsequent to the award the  appellant again offered respondent the option to resume duty  pending challenge to the award in the writ petition.  

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Respondent refused to resume duty. On 8.5.1999 as noted  above writ petition was filed before the High Court challenging  the Award.  On 26.5.1999 High Court directed the appellant to  deposit the wages with the Tribunal and the respondent to  report for duty.  On 13.7.1999 appellant asked the respondent  to join duty. Respondent again refused to join duty.   Subsequently also the appellant asked the respondent to  resume duty and on 29.7.1999 deposited 50% of the back  wages with the Tribunal. Appellant requested the Deputy  Labour Commissioner to depute an Inspector with a direction  to direct the respondent to resume duty. On 6.7.2000 the  Assistant Labour Commissioner persuaded the respondent to  join duty. The High Court dismissed the writ petition holding  that the termination was illegal and that the respondent had  not been gainfully employed after termination of service  because self-employment cannot be treated as gainful  employment.  

3.      In support of the appeal learned counsel for the appellant  submitted that contrary to this Court’s view the Labour Court  and the High Court have held that self employment is not  gainful employment. It is also pointed out that there was no  indication in the claim petition that he was not gainfully  employed.

4.      Learned counsel for the respondent on the other hand  submitted that after termination the respondent was running  a small Betel Shop that cannot be said to be gainful  employment.

5.      In North East Karnataka Road Transport Corporation  v.  M. Nagangouda [AIR 2007 SC 973] it was held as follows:

"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".

6.      It is also relevant that there was no averment in the claim  petition that the earnings from the betel shop were not  sufficient to make both ends meet. Therefore, the view  expressed by the High Court in that regard is not legally  sustainable.  But it has not been shown as to how much the  respondent earned from the betel shop.  In view of this factual  position, we direct that 50% of the back wages which has been  deposited with the Tribunal, be released to the respondent.   His entitlement is accordingly determined.  It needs to be  noted that the issues in the present appeal were restricted to  the question of back wages.  The appeal is allowed to the

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aforesaid extent with no order to costs.