1. Leave granted.
The short question that arises for consideration is whether the High Court was justified in interpreting the provisions of Section 17B of the Industrial Disputes Act (for short the Act) in the matter of granting relief to the workman requiring the workman to file affidavit that he/she is not gainfully employed, at every point of time when an application is to be filed.
2. The services of the workman having been terminated and a reference being made to the Industrial Forum the Industrial Court set aside the order of termination and directed reinstatement with 50% back wages. The employer assailed the said award by filing a writ petition which is pending before the High Court and obtained an order of stay of the direction of the Industrial Tribunal. The workman having approached the High Court by filing an affidavit and indicating that he had not been employed in any establishment and as such would be entitled to the benefits flowing from Section 17B of the Act, the High Court granted that relief but restricted it to the period from February 11, 1997, the date on which the order of stay had been passed till April 5, 1997, the day on which the workman had filed an affidavit stating that he has not been employed gainfully in any establishment. It is this order which has been affirmed by the Division Bench, which is the subject matter of challenge in this appeal.
3. It is contended by a workman that it is not the requirement of law that the employee concerned will be duty-bound to file affidavit each month indicating that he or she has not been employed in any other establishment in order to get the benefit of Section 17B of the Act and once the Court is satisfied on the basis of the affidavit filed, then the Court is duty-bound to implement the legislative mandate engrafted under Section 17B until and unless the employer satisfies the Court to the contrary by stating that in the meantime the employee has received any employment in some other establishment. Mr. Bhasin, the learned senior counsel appearing for the employer on the other hand contended that in view of the language of Section 17B of the Act the Court was fully justified in restricting the applicability of Section 17B only till the date of the affidavit and as such no error can be said to have been committed.
4. Section 17B of the Industrial Disputes Act is quoted hereinbelow in extenso :
"17-B. 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 or 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:
Provided 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."
5. On a plain reading of the aforesaid section, it is crystal clear that when the High Court or the Supreme Court interferes with an order/award of a Tribunal directing reinstatement of any workman on the request of the employer, then the liability of the employer to pay such workman during the period of pendency of the proceedings in the High Court or the Supreme Court the lull wages last drawn by him including any maintenance allowance has to be discharged if the workman had not been employed in any establishment and files an affidavit to that effect. The provisions of Section 17B does not postulate that the employee at every point of time would be required to file such affidavit. On the other hand, it would be reasonable to construe that the employee must discharge the onus of proving that he has not been employed by filing an affidavit, and the Court will pass such order in terms of Section 17B until such time the employer by indicating that in the meantime, the employee has been gainfully employed in some other establishment. In other words, the employee concerned would be entitled to the benefit of the provisions of Section 17B and the Court must give effect to the same until the employer by positive assertions files an affidavit and establishes that the employee who had been given the benefit of Section 17B of the Act is employed somewhere else and as such disentitles himself/herself to the benefit in question. That being the position the impugned order of the High Court is set aside and it is directed that the appellant/workman will be entitled to receive the salary last drawn and the employer concerned shall go on continuing to pay the same until the employer files an application alleging that the employee concerned has been engaged in some other establishment and as such is disentitled to the benefit of Section 17B and proves the same and on such an application being filed, it would be open for the Court to modify the earlier order. This appeal is accordingly allowed.
6. Needless to mention, the employee concerned in the event gets an employment subsequent to the order of the Court getting the benefit of Section 17B of the Act must intimate to the Court about the factum of his employment. The entire arrear amount pursuant to this order may be paid to the workman concerned within three months from today.