NIRANJAN CINEMA versus PRAKASH CHANDRA DUBEY AND ANR.

Citation: [2007] 12 S.C.R. 958 · Decided: 05-12-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

A 
NIRANJAN CINEMA 
,... 
v. 
PRAKASH CHANDRA DUBEY AND ANR. 
r 
DECEMBER 5, 2007 
B 
[DRARIJITPASAYAT ANDP. SATHASIVAM,JJ.J 
~-
Labour Laws-Back wages-Entitlement to-Workman engaged 
in self-employment after termination of service-Held: In absence of 
c averment in the claim petition that earnings from self employment were 
not sufficient and in absence of quantum of earning therefrom, 
workman entitled to 50% of backwages-Uttar Pradesh Industrial 
Disputes Act, 1947-s. 4 K. 
D 
Respondent-workman, who had been employed with the 
appellant, raised an individual dispute, alleging termination of his 
'. 
service. Reference was made to Industrial Tribunal which held that 
termination was illegal and directed his reinstatement with back 
wages. It was further held that even if the workman had started a 
E betel shop, he could not be said to be gainfully employed. Appellant's 
Writ Petition against the award was also dismissed holding that self-
employment could not be treated as gainful employment. Appellant 
deposited 50% of the backwages with the Tribunal. Appeal to this 
Court was on the limited question of entitlement of the workman to 
F 
backwages. 
Partly allowing the appeal, the Court 
HELD: 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 
,. 
G is not legally sustainable. In view of the factual position that it has 
not been shown as to how much the respondent earned from the betel 
shop, it is directed that 50% of the back wages which has been 
deposited with the Tribunal, be released to the respondent. His 
H 
958 
... 
NIRANJAN CINEMA v. PRAKASH CHANDRA DUBEY 
959 
[PASAYAT,J.] 
-.4. 
entitlement to the back wages is accordingly determined. 
A 
[Para6] [961-E-F] 
North East Karnataka Road Transport Corporation v. M 
Nagangouda, AIR (2007) SC 973, relied on. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3960 of B 
2006. 
From the Judgment and final Order dated 21.4.2005 of the High 
Court of Judicature at Allahabad in C.M.W.P. No. 21729/1999. 
Sunil Gupta, Vivek Vishnoi, M.R. Shamshad and Rameshwar Prasad c 
Goyal for the Appellant 
Bharat Sangal for the Respondent No. 1. 
Shrish Kumar Mishra, Samir Ali Khan and Pradeep Misra for the 
,,. 
Respondent No.2. 
D 
The Judgment of the Court was delivered by 
DR. ARIJIT P ASAY AT, 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 E 
learned Single Judge affirmed the view of Presiding Officer, Industrial 
Tribunal No.I, U.P., Allahabad. 
2. Background facts in a nutshell are as follows: 
Respondent was working as a gate keeper in the appellant Cinema F 
... 
Hall. On 6.10.1993 it was noticed that counterfoils of the tickets were 
missing and, therefore, First Infonnation 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 G 
Conciliation Officer alleging termination of services. Appellant filed its reply 
~ -' 
statement stating that there was no tennination 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, 194 7 (in short the 'Act'), on the question as to whether H 
' 
960 
SUPREME COURT REPORTS 
[2007] 12 S.C.R. 
A 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 
B 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 
C statement and again offered that the respondent could rejoin. Evidence 
was led to show that there was no termination of service and the 
responde

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