SWATANTER KUMAR, C.J: -

The legislature with an intention to provide protection to a workman, who by award of the competent forum has been directed to be reinstated, where the employer prefers any proceedings against such an award in the Higher Courts, introduced Section 17-B of the Industrial Disputes Act, 1947, hereinafter referred to as "the Act". Of course, this statutory benefit of receiving full wages last drawn by the workman is subject to filing of an affidavit as commanded by the provision. This protection could be denied to the workman by the order of the Court where it is proved to the satisfaction of the Court that the workman had been employed or has been receiving adequate remuneration during the relevant period. This grant or refusal of statutory benefit would primarily depend upon the extent of onus on either party to a case. Admittedly, the provisions of Section 17- B of the Act or the Rules framed under the Act do not contemplate or provide any particular format-in which an affidavit as required under Section 17-B of the Act should be filed by the workman. The question involved in this case is, "Does absence of such format of affidavit absolve the workman of any primary onus in relation to the requirements of the Section and shifts the entire burden upon the management restricting their right only to the proviso to Section 17 -B of the Act?" Thus, a limited but interesting question of law in relation to ambit and scope of burden of proof and its ramification on the right and obligation of the parties requires consideration of the Court in the present case.

2. The members of the respondent Union were working with the appellant, a Corporation fully owned and controlled by the Government of Uttar Pradesh. According to the workmen, their services were illegally terminated by the management along with other workers on 13th February, 1994, against which the workmen raised an industrial dispute demanding reinstatement with continuity of service and full back wages. In furtherance to the notice of demand, the Appropriate Government referred the dispute to the Labour Court for adjudication being Reference (IDA) No.1 of 1995. The Labour Court, Thane, made an award on 21st September, 2005, directing reinstatement of all the 98 workmen in service of the appellant with continuity of service and full back wages. The appellant filed a writ petition challenging the correctness of the award dated 21st September, 2005 and vide an order dated 29th March, 2006, the operation of the award was stayed by the Court.

3. Three civil applications were filed by the respondent union in the said writ petition wherein they averred that the members of the respondent union were not gainfully employed in any establishment from the date of the award and, therefore, the workmen were entitled to get wages in terms of Section 17- B of the Act. Affidavits were filed by the workmen and it will be useful to reproduce the relevant paragraphs of the said affidavit which read as under:

"5. I say that as per the statement made on behalf of the Petitioner at the hearing of the Petition for admission, my last drawn wages at the time of termination of service were Rs.I03/- per day. The Petitioner, is a commercial establishment within the meaning of term under Section 2 (4) of the Bombay Shops and Establishments Act under which the weekly off is a paid weekly off. Consequently my monthly wages at the last drawn rate would be Rs.3090/- per month.

6. As required under 17-B of the Industrial Disputes Act, I hereby declare and say that I am not gainfully employed in any establishment since the date of making the Award. I hasten to add that I was not gainfully employed in any establishment since the wrongful termination of service by the Respondent original petitioner.

7. I am entitled to the wages at Rs.3090/- per month from 23.11.2005 being the date of filing of the Petition (though the award was made as early as 13.5.2005) till the Petition is finally disposed of.

Click Here to Read the rest of this document