Dy. General Manager, State Bank vs Vijay Singh
2011 Latest Caselaw 594 Del

                                                                UNREPORTABLE


*              IN THE HIGH COURT OF DELHI AT NEW DELHI


                 C.M. No.11123/2008 in W.P. (C) No.2664/2007


                                           Date of Decision: February 02, 2011


       DY. GENERAL MANAGER, STATE BANK             ......Petitioner
                      through Mr. Rajiv Kapur, Advocate

                       versus

       VIJAY SINGH                                     .....Respondent
                               through Dr. Vijendra Mahudiyan, Advocate with
                               Ms. Pallavi Awasthi, Advocate

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA
1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the „Digest‟? No

REKHA SHARMA, J. (ORAL)

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 under Section 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.

C.M. No.11123/2008 in WP(C) No.2664/2007 Page 1 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 under Section 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 under Section 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

C.M. No.11123/2008 in WP(C) No.2664/2007 Page 2 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 under Section 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

C.M. No.11123/2008 in WP(C) No.2664/2007 Page 3 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 under Section 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

C.M. No.11123/2008 in WP(C) No.2664/2007 Page 4 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 under Section 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.

REKHA SHARMA, J.

FEBRUARY 02, 2011 ka

C.M. No.11123/2008 in WP(C) No.2664/2007 Page 5