Case Note & Summary
The case involves a Civil Application under Section 17-B of the Industrial Disputes Act, 1947, filed by Kirloskar Pneumatic Kamgar Sangh (the Union) on behalf of six workmen against Kirloskar Pneumatic Company Limited (the employer). The workmen were retrenched on 28 January 2002. The Union raised a reference before the Industrial Tribunal at Pune, which by an Award dated 13 December 2007 allowed the reference and directed reinstatement with continuity of service but without back wages. The employer filed a Writ Petition (No. 1399 of 2008) challenging the award, and on 21 January 2009, the award was stayed. The Union then filed the Civil Application under Section 17-B seeking payment of full wages last drawn during the pendency of the writ petition. The employer opposed the application, arguing that the workmen's affidavits did not contain an averment that they had not been gainfully employed, and that the workmen were required to plead such in the original affidavit. The court examined Section 17-B, which requires the workman to file an affidavit that he has not been employed in any establishment during the period. The court held that the section does not require the workman to plead that he has not been gainfully employed; it is sufficient if he states he is not employed. The employer may file a counter-affidavit to prove gainful employment, and the court will decide based on all material. The court also noted that the burden is on the employer to prove gainful employment. The court allowed the application for all six workmen, directing the employer to pay full wages last drawn from the date of the award until the disposal of the writ petition, subject to verification of each workman's affidavit. The court also directed that the payment be made within four weeks.
Headnote
A) Industrial Law - Section 17-B Industrial Disputes Act, 1947 - Payment of Full Wages Pending Proceedings - Workman's Affidavit - The court held that a workman need not plead in the original affidavit that he has not been gainfully employed; it is sufficient if he files an affidavit stating he is not employed. The employer may file a counter-affidavit to prove gainful employment, and the court will decide based on all material. (Paras 6-10)
B) Industrial Law - Section 17-B Industrial Disputes Act, 1947 - Burden of Proof - Gainful Employment - The burden is on the employer to prove that the workman is gainfully employed. The workman's affidavit of unemployment shifts the burden to the employer. (Paras 6-10)
C) Industrial Law - Section 17-B Industrial Disputes Act, 1947 - Interim Relief - The court allowed the application for six workmen, directing the employer to pay full wages last drawn from the date of the award until the disposal of the writ petition, subject to verification of each workman's affidavit. (Paras 11-12)
Issue of Consideration
Whether a workman must aver in the original affidavit in support of an application under Section 17-B of the Industrial Disputes Act, 1947, that he has not been and is not gainfully employed, and whether the employer can rely on subsequent affidavits to show gainful employment.
Final Decision
The Civil Application is allowed. The employer shall pay to each of the six workmen full wages last drawn by them from the date of the award (13 December 2007) until the disposal of the writ petition, subject to verification of each workman's affidavit. The payment shall be made within four weeks.
Law Points
- Section 17-B Industrial Disputes Act
- 1947
- payment of full wages pending proceedings
- workman's affidavit of not being employed
- employer's burden to prove gainful employment
- no requirement to plead not gainfully employed in original affidavit
Case Details
2010 LawText (BOM) (03) 56
Civil Application No. 75 of 2010 in Writ Petition No. 1399 of 2008
Mr. N. A. Kulkarni for the applicant/petitioner, Mr. J. P. Cama, Senior Counsel with Mr. Mahesh Londhe i/b M/s. Sanjay Udeshi & Co. for the respondents
Kirloskar Pneumatic Kamgar Sangh
Kirloskar Pneumatic Company Limited
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil Application under Section 17-B of the Industrial Disputes Act, 1947 for payment of full wages pending writ petition challenging an award of reinstatement.
Remedy Sought
The Union sought an order directing the employer to pay full wages last drawn to six workmen during the pendency of the writ petition.
Filing Reason
The employer challenged the Industrial Tribunal's award of reinstatement without back wages, and the award was stayed. The workmen sought wages under Section 17-B.
Previous Decisions
The Industrial Tribunal at Pune by Award dated 13 December 2007 allowed the reference and directed reinstatement with continuity of service but without back wages. The employer filed Writ Petition No. 1399 of 2008, and by order dated 21 January 2009, the award was stayed.
Issues
Whether a workman must aver in the original affidavit in support of an application under Section 17-B that he has not been and is not gainfully employed.
Whether the employer can rely on subsequent affidavits to show gainful employment.
Submissions/Arguments
Mr. Cama for the employer argued that the workman must plead in the original affidavit that he has not been gainfully employed, and that the affidavits filed were insufficient.
Mr. Kulkarni for the Union argued that the section only requires an affidavit that the workman is not employed, and the employer can file a counter-affidavit.
Ratio Decidendi
Under Section 17-B of the Industrial Disputes Act, 1947, a workman need only file an affidavit stating that he is not employed in any establishment during the period. The section does not require the workman to plead that he has not been gainfully employed. The employer may file a counter-affidavit to prove gainful employment, and the court will decide based on all material. The burden is on the employer to prove gainful employment.
Judgment Excerpts
Section 17-B reads thus : “17-B. Payment of full back 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.”
The section does not require the workman to plead that he has not been gainfully employed. It is sufficient if he files an affidavit stating that he is not employed. The employer may file a counter-affidavit to prove gainful employment, and the court will decide based on all material.
Procedural History
The workmen were retrenched on 28 January 2002. The Union raised a reference before the Industrial Tribunal at Pune, which by Award dated 13 December 2007 allowed the reference and directed reinstatement with continuity of service but without back wages. The employer filed Writ Petition No. 1399 of 2008 on 16 February 2008. Rule was issued on 3 March 2008. By order dated 21 January 2009, the award was stayed. The Union filed Civil Application No. 75 of 2010 under Section 17-B on behalf of six workmen.
Acts & Sections
- Industrial Disputes Act, 1947: 17-B
