Dy. General Manager, State Bank vs Vijay Singh

Rekha Sharma, J.—The Petitioner/Management has challenged the award of the Industrial Tribunal-cum-Labour Court, dated May 24, 2006 whereby termination of service of the Respondent/workman has been held to be illegal and consequently, a direction has been issued to the Petitioner to reinstate him with effect from October 11, 1996 with 50% back-wages. The Respondent, on the other hand, has filed an application u/s 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as the "Act") praying for a direction to the Petitioner to pay him his last drawn wages from the date of his termination till the writ-petition is finally heard and disposed of. It is this application which is the subject matter of the present order.

The Petitioner has opposed the application on the ground that the affidavit filed along with it by the Respondent does not meet the requirement of Section 17B of the Act, in as much as it is not stated by him in the affidavit that he had not been employed in any establishment since the date of his termination.

Before I deal with the submission, it will be appropriate to reproduce Section 17B of the Act. This is how it runs:

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 and 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.

A workman becomes entitled to payment u/s 17B of the Act on two conditions. Firstly, that he had not been employed in any establishment during the pendency of the proceedings before the High Court or the Supreme Court, and secondly, upon his furnishing an affidavit that he had not been so employed. The form in which the affidavit is required to be given by the workman is not specified in the section. The Respondent in his application u/s 17B of the Act has made a specific averment that, "he has not been employed anywhere since the date of his termination from service", and in support thereof, he has filed an affidavit, stating therein that the averment so made was correct to his knowledge. I find nothing wrong in such an affidavit, more so when the Section is silent as to the form of the affidavit. In any case, after the Petitioner raised objection to the affidavit filed by the Respondent, he filed rejoinder to the reply of the Petitioner to the application which was supported by an affidavit and in that affidavit, he clearly stated the fact of his unemployment, thus removing the defect, if at all there was any in the earlier affidavit. There is, thus, no merit in the objection raised by the Petitioner.

In so far as the fact of unemployment of the Respondent is concerned, he has, as noticed above, stated on oath that he has not been employed anywhere since the date of his termination. The Petitioner has not pleaded anything to the contrary.

It is submitted by the learned Counsel for the Petitioner that the Respondent was not found living at the address furnished by him and as such, it was not possible to make an inquiry with regard to his employment. The counsel wants this Court to give a direction to the Respondent to file a statement of his bank accounts, his Election Identity Card/Ration Card and telephone numbers, in order to make good his averment that he was having no source of income since the date of his termination. Such a direction is sought on the strength of an order passed by another Bench of this Court, dated January 11, 2011 in WP(C) No. 11776/2005. In the said case, the workman had filed an application u/s 17B of Act in the year 2006 after 12 years of his termination, stating that he was not gainfully employed. The Court before passing order on the application directed the workman to file statement of his bank accounts from 1994 till date to show whether he was having other sources of income during the period from 1994 to 2006. The workman was also directed to file his Election Identity Card/Ration Card and telephone numbers, both landline and mobile.

Should this Court pass a direction to the Respondent to file a statement of his bank account or any other particulars to support his averment that he was having no source of income since his termination?

The liability to pay wages to a workman u/s 17B of the Act arises during the pendency of proceedings in a High Court or the Supreme Court in a case where the Labour Court, Tribunal or National Tribunal has directed reinstatement of any workman and the employer has preferred proceedings in the High Court or the Supreme Court assailing the order of reinstatement. The employer is fastened with such liability only if the workman has not been employed in any establishment during such period and the workman has filed an affidavit to that effect in such Court. The proviso to the Section says 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."

It is clear from Section 17B of the Act that in so far as the workman is concerned, he in order to claim wages under the said Section has only to file an affidavit to the effect that he had not been employed in any establishment. He has to do no more. It is for the employer to prove that the workman had taken employment elsewhere after his termination and had been receiving adequate remuneration. The order dated January 11, 2011 passed in WP(C) No. 11776/2005 relied upon by the counsel for the Petitioner has the effect of casting an obligation on the workman to prove that he was not employed, not only by filing an affidavit but by other means as well. I respectfully disagree with the direction given in the WP(C) No. 11776/2005 relied upon by the counsel for the Petitioner. I feel, the direction so given calling upon the workman to place on record the statement of his bank accounts and other related documents, tantamounts to shifting the burden to prove unemployment of the workman during the pendency of the proceedings from the employer to the workman when the onus to prove the same rests on the employer.

For the fore-going reasons, the application u/s 17B of the Act is allowed. The Petitioner is directed to pay the last drawn wages or the minimum wages, whichever are higher, to the Respondent from the date of the filing of the application, subject to the Respondent giving an undertaking that in case the writ-petition is allowed and there is any difference between the minimum wages and the last drawn wages, the Respondent shall refund the same to the Petitioner.

The application is disposed of.

WP(C) No. 2664/2007

List on March 24, 2011.