Management Marie Stopes and Others vs Presiding Officer, Labour Court and Another

Mohammad Rafiq, J.—Heard learned Counsel for the parties.

This application has been filed by the respondent workman u/s 17B of the Industrial Disputes Act (for short ''the Act") in this writ petition. Petitioners have challenged the award passed by the Labour Court dt. 04.06.2001. Application u/s 17B of the Act was filed as far back as on 26.06.2004 and has remained pending so far.

Respondent-workman in her application has stated that she is not in gainful employment anywhere and that she is entitled to get relief as per Section 17B, (supra), which provides that last wages drawn by workman shall be paid to the employee if the employer challenges the award of Labour Court by which relief of his reinstatement has been directed. This application is supported by an affidavit of the respondent-workman, who has on oath stated that contents in paras No. 1 to 4 of the application are true and correct to her personal knowledge. There is also separate affidavit in which the respondent workman has stated that she is unemployed and suffering from grave economic hardship and she is not in gainful employment anywhere.

Shri Manoj Kumar Sharma, learned Counsel for the petitioners has opposed the application. While relying on the proviso to Section 17B of the Act, he argued that mere filing of the application by the workman with a bald statement that she/he is not in gainful employment would not be sufficient compliance of Section 17B of the Act. She has to prove to the satisfaction of the Court that in what manner she has been maintaining herself and only it is shown that she has not been receiving adequate remuneration during the pendency of the writ petition to maintain herself that the direction for payment of last back wages drawn can be passed. Learned Counsel in support of his argument has relied on the judgment passed by the Supreme Court in North East Karnataka Road Transport Corporation v. M.Nagangouda. 2007 LLR 340. Learned Counsel further argued that the respondent-workman was a Sweeper. This fact should be sufficient to raise a presumption that she may have had adequate earning by doing the work of sweeping and cleaning in order to maintain herself and unless the respondent-workman was not able to disprove this fact, she would not be entitled the relief u/s 17B of the Act.

In my considered view, Section 17B of the Act no doubt in its second proviso provides that if 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 thereof, as the case may be. Judgment of Supreme Court on which reliance by learned Counsel for the petitioner, arose out of a case in which final adjudication was made as to the entitlement of the workman for reinstatement with direction to pay him full back wages. It was in that context held that gainful employment would also include self employment wherefrom income is generated. In the present case, the respondent workman has made a categorical assertion that she is not in gainful employment. Apart from supporting contentions of the application by an affidavit, she has also filed a separate affidavit asserting that she was unemployed and was suffering from grave economic hardship and was not in gainful employment. Requirement of law as envisaged by Section 17B of the Act is that (i) there should have been an award directing reinstatement of the workman (ii) such award must have been challenged either before the High Court or before the Supreme Court by the employer (iii) and that the workman should file an affidavit stating that she had not been employed in any establishment during the pendency of such petition. Proviso to Section 17B of the Act, on which the petitioner seeks to rely, however puts a rider on grant of last wages drawn to the workman, which is that if 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 thereof, as the case may be.

In the present case, what has been contended by the learned Counsel appearing for the Management is that since the respondent-workman happens to be a sweeper, therefore, a presumption should arise that she must be doing the work of sweeping/cleaning somewhere to earn livelihood and must be thereby receiving adequate remuneration. I am afraid, such an argument cannot be accepted because whether or not the respondent-workman had been receiving some remuneration during the pendency of the writ petition cannot be matter of presumption. It is fairly evident even from the proviso to Section 17B of the Act, which is conched in the words "where it is proved to the satisfaction of the High Court or Supreme Court". When the law envisages that there should be proof of the fact that such workman had been "employed" and had been receiving "adequate remuneration" during any such period, more particularly when no proof of fact that respondent-workman has been actually doing the work of sweeping/cleaning during the pendency of the writ petition, no such presumption could in law be raised. Even otherwise, no affidavit in rebuttal of the affidavit of the workman has been filed by the respondent workman. Judgment of Supreme Court on which reliance has been placed by the petitioner cannot be applied to the facts of the present case because that was a case in which the question with regard to payment of back wages was examined while considering validity of the impugned award directing reinstatement with full back wages and the Supreme Court in that judgment did not interpret Section 17B of the Act.

In view of above discussion, the application filed by the respondent-workman is allowed. Petitioners are directed to pay to the respondent-workman last wages drawn during the pendency of the present writ petition i.e. from the date of filing of the present writ petition on 25.08.2002 till date and continue to pay to her such last wages throughout during the pendency of this writ petition. Payment of arrears payable pursuant to this order shall be made to the respondent-workman within three months from today.