Karnataka High Court

Amrut Distilleries Limited vs Mr. Narayanswamy H B on 27 October, 2025

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                                                     WA No. 1333 of 2021


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                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 27TH DAY OF OCTOBER, 2025

                                     PRESENT
                    THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
                                        AND
                   THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                      WRIT APPEAL NO. 1333 OF 2021 (L-TER)


             BETWEEN:

             1.    AMRUT DISTILLERIES LIMITED
                   A COMPANY REGISTERED UNDER
                   THE COMPANIES ACT 2013
                   HAVING ITS REGISTERED OFFICE AT:
                   NO.36, SAMPANGI TANK ROAD
                   BANGALORE - 560 027
                   AND HAVING ITS HEAD OFFICE AT
                   NO.41/1, 72ND CROSS, 6TH BLOCK
                   RAJAJINAGAR,
Digitally          BENGALURU - 560 010
signed by          REPRESENTED BY AUTHORISED
RUPA V
Location:          SIGNATORY MR. K VISHWANATHAN
High Court         S/O T R KRISHNAMURTHY
Of
Karnataka          AGED ABOUT 63 YEARS.

             2.    THE GENERAL MANAGER
                   (HUMAN RESOURCE)
                   AMRUT DISTRILLERIES LIMITED
                   NO.36, SAMPANGI TANK ROAD,
                   BANGALORE - 560 027
                   AND HAVING ITS HEAD OFFICE AT
                   NO.41/1, 72ND CROSS, 6TH BLOCK,
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                                     WA No. 1333 of 2021


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    RAJAJINAGAR
    BENGALURU - 560 010.
                                            ...APPELLANTS
(BY SRI. PRAVEENKUMAR HIREMATH., ADVOCATE)



AND:

MR. NARAYANSWAMY H B
AGED ABOUT 50 YEARS
(ADDITIONAL EMPLOYEE NO.627)
NO.157, IIND MAIN ROAD,
MALLASANDRA PIEPLINE
BENGALURU - 560 057.
                                           ...RESPONDENT
(BY SRI. KESHAVA MURTHY B., ADVOCATE)

                           ---

       THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER
DATED 17.11.2021 PASSED BY THE LEARNED SINGLE JUDGE
IN WP NO.6414/2020 (L-TER) ON IA NO.1/2021 AND IA
NO.2/2021 IN SO FAR AS IT DIRECTS THE APPELLANTS TO PAY
WAGES IN TERMS OF SECTION 17B AND PASS ANY OTHER
APPROPRIATE ORDERS, IN THE INTEREST OF JUSTICE.

       THIS WRIT APPEAL, HAVING BEEN HEARD AND RESERVED
ON 17.10.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:

CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
       and
       HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
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                                                    WA No. 1333 of 2021


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                                CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)

This appeal is filed under Section 4 of the Karnataka High

Court Act, 1961, challenging the interim order dated

17.11.2021 passed by the learned Single Judge in

W.P.No.6414/2020 (L-TER) on I.A.No.1/2021 and 2/2021.

2. The brief facts leading to filing of the appeal are

that the respondent was working as a security guard with the

appellants. He was dismissed from service on misconduct

which was interfered with by the Labour Court directing the

appellants to reinstate the respondent to his original post with

full backwages, continuity of service and all other consequential

benefits, which was assailed by the appellants in a writ petition.

The respondent filed applications under Section 17B of the

Industrial Disputes Act, 1947 (hereinafter referred to as 'the

Act'), which came to be allowed under the impugned order.

Being aggrieved, the Management is in appeal.

3. Sri.Praveenkumar Hiremath, learned counsel

appearing for the appellants submits that the learned Single

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Judge has erred in allowing the applications filed by the

respondent. It is submitted that the learned Single Judge has

failed to appreciate that the respondent-workman has not filed

affidavit in terms of Section 17B of the Act. It is further

submitted that the burden was cast on the respondent-

employee to plead and prove that he was not gainfully

employed and in the absence of such a plea in the form of

affidavit, the applications ought not to have been allowed. It is

also submitted that the learned Single Judge allowed the

applications and thereafter directed the respondent-workman

to file affidavit, which is impermissible. In support of his

contentions, he placed reliance on the decision of the Hon'ble

Apex Court in the case of NATIONAL GANDHI MUSEUM Vs.

SUDHIR SHARMA1, decision of the Bombay High Court in the

cases of NEMCHAND S SABALE Vs. SPACO CARBURITTORS

(INDIA) LTD. AND ANOTHER2, U.P.STATE BRIDGE

CORPORATION LTD. Vs. MAHARASHTRA GENERAL

Civil Appeal No.8215-16/11 dt.24.9.21

2016 SCC Online BOM 13344

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KAMAGAR UNION3 and ELPRO INTERNATIONAL LTD. Vs.

SMT.K.B.JOSHI4 and seeks to allow the appeal.

4. Per contra, Sri.Keshava Murthy B., learned counsel

for the respondent supports the order of the learned Single

Judge and submits that the applications as well as the affidavit

filed by the respondent-workman clearly states that he is

unemployed, he has financial difficulties and he has a

responsibility to take care of the family. These averments in

the applications as well as the affidavit meet the requirement of

law. It is further submitted that as directed by the learned

Single Judge, an additional affidavit is also filed which makes it

further clear that the respondent is not employed anywhere.

Hence, he seeks to dismiss the appeal.

5. We have heard the arguments of the learned

counsel for the appellants, the learned counsel for the

respondent and meticulously perused the material available on

record. We have given our anxious consideration to the

submissions made on both sides.

2008 (4) Mh.L.J. 297

(1987) 1 LLN 695 (Bom) (DB)

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6. The point that arise for consideration is:

"Whether the impugned order of the learned Single Judge calls for any interference?"

7. The respondent-workman assailed the dismissal

order dated 15.11.2013 of the appellants before the Labour

Court, Bangalore in I.D.No.76/2013. The Labour Court, vide

order dated 29.11.2019 allowed the claim petition of the

respondent by setting aside the dismissal order and further

directing the appellants to reinstate the respondent-workman

into service to his original post with full backwages, continuity

of service and all other consequential benefits within a period of

30 days of the publication of the award. The records indicate

that the appellant challenged the order of the Labour Court in a

writ petition. The learned Single Judge vide order dated

12.10.2020 directed the appellant to pay wages under Section

17B of the Act without there being any application and an

affidavit of the respondent-workman. The appellant assailed

the said order in W.A.No.709/2020 which came to be disposed

of by setting aside the order dated 12.10.2020 by permitting

the respondent-workman to file appropriate application under

Section 17B of the Act and the learned Single Judge was

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directed to consider the same in accordance with law.

Thereafter, the respondent-workman filed two applications

under Section 17B of the Act seeking prayer to pay the last

drawn wage by way of interim relief which came to be allowed

by the learned Single Judge under the impugned order.

8. The primary contention of the appellants is that the

respondent-workman did not file an affidavit and discharge the

burden to prove that he is not gainfully employed and entitled

for wages under Section 17B of the Act. The records indicate

that the appellant-management has refused to reinstate him

into service which has necessitated the respondent-workman to

move an application dated 17.07.2021. It would be useful to

extract paragraphs 2 and 3 of the application hereinbelow:

"2. The applicant further submits from the date of dismissal, the applicant is without employment and even after the award of the Labour Court, the Management / petitioner herein not at all reinstated even after his repeated requests, instead filed the above petition before this Hon'ble Court.

3. It is respectfully submitted that the applicant has studied only 10th standard and he was working as Security Guard with the petitioner Company since more than 22 years and in view of abrupt dismissal

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from the service, the applicant has not only lost his source of income and put into mental agony. The applicant has not source of income and unable to maintain himself and also the minor children's. The applicant requires for day to day expenses for food, cloth, medicine education of the minor children etc."

9. The affidavit accompanying the application clearly

indicates that the statements made in the paragraphs of the

application are true and correct to the best of the knowledge of

the respondent. The aforesaid averments clearly indicate that

the respondent-workman is without any employment and he is

facing financial difficulty. The appellants filed objections to the

said application specifically objecting to the averments of the

application by stating that the averments should form part of

the affidavit. The respondent-workman filed another

application on 08.11.2021. Paragaraph 3 of the affidavit reads

as under:

"3. I further submit I have studied only 10th standard and I was working as Security Guard with the Petitioner Company since more than 22 years and in view of abrupt dismissal from the service, I has not only lost my source of income and put into mental agony. I have no source of income and unable to maintain myself and also the minor

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children's. I am requires for day to day expenses for food, cloth, medicine education of he minor children etc."

10. The aforesaid paragraph of the affidavit clearly

indicates that the respondent has studied upto 10th standard,

he was working with the appellant-Company for more than 22

years and in view of dismissal, he lost his source of income and

he is in mental agony. He further states that he is unable to

maintain himself and his minor children and the wages are

required to meet day-to-day expenses for food, clothing,

medicine, education, etc. By reading the aforesaid paragraph

of the affidavit, it is very much clear that the respondent has

financial difficulties and he has no source of income. The Court

can draw the inference from the said affidavit that he was not

gainfully employed after the dismissal in the absence of any

contradictory material by the appellants. The learned Single

Judge, while allowing the application has observed that the

affidavit is not aptly worded and directed the respondent-

workman to file an additional affidavit. The respondent-

workman filed an additional affidavit on 10.12.2021.

Paragraphs 3 and 4 of the said affidavit clearly demonstrate

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that the respondent-workman is neither gainfully employed

anywhere nor self-employed. A cogent reading of the two

applications, affidavits accompanying the applications and the

affidavit dated 10.12.2021 meets the requirement of law. The

contention of the appellants with regard to discharge of burden

by the respondent-workman by pleading with regard to him not

being gainfully employed has been fully discharged by the

respondent-workman. We cannot lose sight of the fact that the

object of Section 17B of the Act is to provide interim wages to

an employee to sustain himself during the pendency of the

litigation.

11. The judgment of the Bombay High Court in the case

of NEMCHAND S. SABALE, referred supra has no application

to the facts of this case. In the said decision, the application

was filed 3½ years later and the application was bereft of

details. In the case on hand, two applications and an affidavit

of the respondent-workman clearly meet the requirement of

law.

12. In the case of U.P.STATE BRIDGE

CORPORATION LTD., referred supra, the Hon'ble Bombay

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High Court in the said case held that the onus of seeking a

statutory interim protection is upon the workman and where

the management claims the benefit of proviso of Section 17B,

the onus is upon the management. The onus on the workman

is very limited and once an affidavit as contemplated under

proviso to Section 17B is filed and the Court is satisfied that the

workman is not employed in any establishment during the

relevant period, a direction for payment of wages under Section

17B would be issued. The said Court further observed that the

application under Section 17B is required to be considered on

the facts of each case. In the instant case, the initial burden as

required under the law has been discharged by the respondent-

workman by filing two applications and an affidavit which

clearly demonstrate that the workman was not gainfully

employed, self-employed and he has financial difficulties.

Similar view is taken by the Bombay High Court in the case of

ELPRO INTERNATIONAL LTD. referred supra. The Hon'ble

Supreme Court in NATIONAL GANDHI MUSEUM, referred

supra at paragraph 8 held that the fact whether an employee

after dismissal was gainfully employed is within his special

knowledge and therefore, considering the principle laid down in

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Section 106 of the Indian Evidence Act, 1872, the burden is on

the employee to come out with a case that he was not gainfully

employed during the relevant period. The affidavit of the

respondent-workman as already referred supra demonstrates

that he was neither gainfully employed nor self-employed for

the relevant period. The applications and the affidavit filed by

the workman were required to be interpreted keeping in mind

the object and intent of Section 17B of the Act. It would be

useful to refer to paragraphs 47 and 48 of the decision of the

Hon'ble Supreme Court in the case of MAHRASHTRA STATE

ROAD TRANSPORT CORPORATION Vs. MAHADEO

KRISHNA NAIK5

"47. There is one other aspect that would fall for consideration of the court. In certain decisions, noticed in Deepali Gundu Surwase [Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] , it has been opined that whether or not an employee has been gainfully employed is within his special knowledge and having regard to Section 106 of the Evidence Act, 1872, the burden of proof is on him. What is required of an employee in such a case? He has to plead in his statement of claim or any

(2025) 4 SCC 321

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subsequent pleading before the Industrial Tribunal/Labour Court that he has not been gainfully employed and that the award of reinstatement may also grant him back wages. If the employee pleads that he was not gainfully employed, he cannot possibly prove such negative fact by adducing positive evidence. In the absence of any contra- material on record, his version has to be accepted. Reference in this connection may be made to Section 17-B of the Industrial Disputes Act, 1947, which confers a right on an employee to seek "full wages last drawn" from the employer while the challenge of the employer to an award directing reinstatement in a higher court remains pending. There too, what is required is a statement on affidavit regarding non-employment and with such statement on record, the ball is in the court of the employer to satisfy the court why relief under such section ought not to be granted by invoking the proviso to the section. We see no reason why a similar approach may not be adopted.

48. After the employee pleads his non-

employment and if the employer asserts that the employee was gainfully employed between the dates of termination and proposed reinstatement, the onus of proof would shift to the employer to prove such assertion having regard to the cardinal principle that "he who asserts must prove". Law, though, seems to be well settled that if the employer by reason of its

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illegal act deprives any of its employees from discharging his work and the termination is ultimately held to be bad in law, such employee has a legitimate and valid claim to be restored with all that he would have received but for being illegally kept away from work. This is based on the principle that although the employee was willing to perform work, it was the employer who did not accept work from him and, therefore, if the employer's action is held to be illegal and bad, such employer cannot escape from suffering the consequences. However, it is elementary but requires to be restated that while grant of full back wages is the normal rule, an exceptional case with sufficient proof has to be set up by the employer to escape the burden of bearing back wages."

13. Keeping in mind the aforesaid enunciation of law

laid down by the Hon'ble Supreme Court and the High Courts,

we are of the considered view that the required burden to

prove that the workman was not gainfully employed is

discharged by the respondent-workman and he cannot be

expected to prove a negative fact by adducing positive

evidence with regard to gainful employment. Admittedly, after

discharge of initial burden, the appellant-management has

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failed to produce any material to disbelieve the contents of the