JUDGMENT - KHANDEPARKAR R.M.S., J.:---Heard the learned Advocates for the parties. Perused the records.

2. This notice of motion is taken out under section 17-B of the Industrial Disputes Act, 1947, hereinafter called as "the said Act" by the employee who is the respondent No. 1 in the Writ Petition No. 840 of 2003, filed by the employer-Corporation. It is the contention of the employee that since the time of issuance of the order of dismissal from service i.e., from 19-1-2001, the employee has not been employed in any establishment and that in view of issuance of the rule in the said writ petition and grant of stay of the implementation and operation of the Award dated 1-11-2002, under which the employee was directed to be reinstate with full back wages, the employee is entitled for subsistence allowance in terms of section 17-B of the said Act during the pendency of the writ petition. According to the employee, the last drawn wages, as on December, 2000, were Rs. 12,038/- per month, but in terms of the settlement dated 23-5-2002 stood revised to the tune of Rs. 19,470/- per month, effective from 1-10-1998. On the other hand, it is the case of the employer that the employee is gainfully employed and undertakes civil work of repairing and contracts for construction of houses and interior designing and therefore he is gainfully employed since the termination of his services and hence is not entitled for any relief under section 17-B of the said Act.

3. Placing reliance in the decisions in the matters of (M/s. Hindustan Tin Works Pvt. Limited v. The Employees of M/s. Hindustan Tin Works Pvt. Limited and others)1, reported in A.I.R. 1979 S.C. 75, (Oriental Containers Ltd., Bombay v. Engineering Workers Association others)2, reported in 1996(3) Bom.C.R. 488, (Taj Services Limited v. Industrial Tribunal-I and others)3, reported in 2000(84) F.L.R. 600, and (Municipal Corporation of Delhi v. Shri Ramkishan and another)4, reported in 2001(89) F.L.R. 549, the learned Advocate for the employee has submitted that in the absence of any cogent material being placed on record disclosing gainful employment of the employee since the termination of his services by the petitioners, mere report of a detective agency placed on record does not disprove the contention of the employee that the employee has not been gainfully employed since the termination of his services and the burden which otherwise lies upon the employer in relation to the proof of gainful employment of the employee has not been discharged and, therefore, the employee is entitled for the relief prayed for. On the other hand, placing reliance in the decisions in the matters of (Bombay Film Laboratories Pvt. Limited v. L.G. Vasule others)5, reported in 1994(II) C.L.R. 413, (Dena Bank v. Kiritikumar T. Patel)6, reported in 1999(2) S.C.C. 106, and (Indiana Engineering Works (Bombay) Pvt. Limited v.The Presiding Officer, 5th Labour Court others)7, reported in 1995(II) C.L.R. 890, the learned Advocate for the employer has submitted that the materials placed on record along with the report of the detective agency disclose that the employee is gainfully employed in the business of construction activities and interior designing and has even printed visiting cards in his name in relation to the said business activities and, that the said materials have been placed on record, have not been disputed by the employee, and therefore the petitioners thereby have discharged their burden. It is further contended that even though the employee has filed the rejoinder affidavit, he has not come out with the whole truth in relation to his income and therefore, adverse inference is to be drawn in that regard. According to the learned Advocate for the employer, the onus having not been discharged by the employee, there are no materials available on record to justify the contention of the employee that he is not gainfully employed and hence the application under section 17-B of the said Act should be

Click Here to Read the rest of this document