Narender Kumar & Ors. Vs. Management of Taj Services Ltd. & Anr.
EmailAppeal: Civil Appeal No. 3387 of 2001
(Arising out of SLP (C) No. 17708/2000)
(Arising out of SLP (C) No. 17708/2000)
Petitioner: Narender Kumar & Ors.
Respondent: Management of Taj Services Ltd. & Anr.
Apeal: Civil Appeal No. 3387 of 2001
(Arising out of SLP (C) No. 17708/2000)
(Arising out of SLP (C) No. 17708/2000)
Judges: G.B. PATTANAIK & B.N. AGRAWAL, JJ.
Date of Judgment: Apr 30, 2001
Head Note:
LABOUR AND INDUSTRIAL LAWS/INTERPRETATION OF STATUTES
Industrial Disputes Act, 1947
Section 17-B – Interpretation – Benefit under – Grant of such benefit by High Court, but restricting for the period from date of order of stay and date of filing affidavit – Is the employee bound to file affidavit everytime – Burden of non-employment and being employed – When and how discharged. Held that employee discharges the burden by filing affidavit. Then it is for the employer to discharge the burden that he is gainfully employed. There is no requirement of filing affidavit everytime. Hence, benefits cannot be restricted.
Held:
The provisions of Section 17-B 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 17-B 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 17-B 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 17-B 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. (Para 6)
JUDGEMENT:
ORDER
1. Leave granted.
2. The short question that arises for consideration is whether, the High Court was justified in interpreting the provisions of Section 17-B of the Industrial Disputes Act (for short the Act) in the matter of granting relief to the workmen requiring the workmen to file affidavit that he/she is not gainfully employed, at very point of time when an application is to be filed.
3. The services of the workmen 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 workmen having approached the High Court by filing an affidavit and indicating that he has not been employed in any establishment and as such would be entitled to the benefits flowing from Section 17-B of the Act, the High Court granted that relief but restricted it to the period from 11 February, 1997, the date on which the order of stay had been passed till 5th April, 1997, the day on which the workmen 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.
4. It is contended by the workmen 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 17-B 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 17-B 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 17-B of the Act the court was fully justified in restricting the applicability of Section 17-B only till the date of affidavit and as such no error can be said to have been committed.
5. Section 17-B of the Industrial Disputes Act is quoted hereinbelow in extenso :
” 17-B. Payment of full wages to workmen pending proceedings in higher courts.
Where in any case a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workmen 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 workmen, 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 workmen had not been employed in any establishment during such period and an affidavit by such workmen 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 workmen had been employed and had been receiving adequate remuneration during any such period or part thereof, the court shall order that no wages shall by payable under this Section for such period or part, as the case may be.”
6. 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 workmen on the request of the employer, then the liability of the employer to pay such workmen during the period of pendency of the proceedings in the High Court or the Supreme Court the full wages last drawn by him including any maintenance allowance has to be discharged if the workmen had not been employed in any establishment and files an affidavit to that effect. The provisions of Section 17-B 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 17-B 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 by entitled to the benefit of the provisions of Section 17-B 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 17-B 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/workmen 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 17-B 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.
7. Needless to mention, the employee concerned in the event gets an employment subsequent to the order of the court getting the benefit of Section 17-B 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 workmen concerned within three months from today.
1. Leave granted.
2. The short question that arises for consideration is whether, the High Court was justified in interpreting the provisions of Section 17-B of the Industrial Disputes Act (for short the Act) in the matter of granting relief to the workmen requiring the workmen to file affidavit that he/she is not gainfully employed, at very point of time when an application is to be filed.
3. The services of the workmen 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 workmen having approached the High Court by filing an affidavit and indicating that he has not been employed in any establishment and as such would be entitled to the benefits flowing from Section 17-B of the Act, the High Court granted that relief but restricted it to the period from 11 February, 1997, the date on which the order of stay had been passed till 5th April, 1997, the day on which the workmen 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.
4. It is contended by the workmen 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 17-B 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 17-B 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 17-B of the Act the court was fully justified in restricting the applicability of Section 17-B only till the date of affidavit and as such no error can be said to have been committed.
5. Section 17-B of the Industrial Disputes Act is quoted hereinbelow in extenso :
” 17-B. Payment of full wages to workmen pending proceedings in higher courts.
Where in any case a Labour Court, Tribunal or National Tribunal by its award directs reinstatement of any workmen 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 workmen, 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 workmen had not been employed in any establishment during such period and an affidavit by such workmen 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 workmen had been employed and had been receiving adequate remuneration during any such period or part thereof, the court shall order that no wages shall by payable under this Section for such period or part, as the case may be.”
6. 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 workmen on the request of the employer, then the liability of the employer to pay such workmen during the period of pendency of the proceedings in the High Court or the Supreme Court the full wages last drawn by him including any maintenance allowance has to be discharged if the workmen had not been employed in any establishment and files an affidavit to that effect. The provisions of Section 17-B 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 17-B 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 by entitled to the benefit of the provisions of Section 17-B 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 17-B 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/workmen 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 17-B 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.
7. Needless to mention, the employee concerned in the event gets an employment subsequent to the order of the court getting the benefit of Section 17-B 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 workmen concerned within three months from today.
