The initial onus is on the workman to plead non-employment and provide an affidavit in support to claim relief under Section 17-B of the Industrial Disputes Act.

SHIV NARAYAN DHINGRA, J.

( 1 ) BY this order, I shall dispose of the application under Section 17-B of the Industrial disputes Act (in short "the Act") moved by the respondent. The respondent has stated that he was working as a peon before his termination. The allegations levied against him are that he had fraudulently withdrawn a sum of Rs. 6,750 from the saving bank account No. 2160 belonging to an illiterate lady. He was suspended from the bank service and a disciplinary enquiry was conducted against him and he was dismissed from service by the disciplinary authority. He raised an industrial dispute about his dismissal and an award was passed in his favour by the Labour Court on april 19, 2004 holding that the principles of natural justice were not followed by the enquiry officer in this case. The Labour Court directed his reinstatement with 50% back wages. The award has been challenged by the petitioner. The respondent has claimed that he was entitled to wages during pendency of the writ petition. Along with the application, an affidavit has been filed by the respondent that he was unemployed and not working anywhere.

( 2 ) IN reply to the application, it is submitted by the petitioner that the respondent was found guilty by the enquiry officer, of playing fraud with the bank and was rightly removed from service. The enquiry was conducted in a fair and proper manner. The respondent is a resident of Village Pehrawar, district Rohtak, Haryana. For last about 8-9 years, he was engaged as a Raj Mistri, earning rs. 175 per day. The petitioner had also reasons to believe that the respondent had about four big-tias of agricultural land in his village in rohtak and the land was being used by the respondent's family for livelihood. It is also submitted that the last drawn wages of the respondent was Rs. 2146. 80 per month and if at all the respondent is granted relief under section 17-B of the Act, it should be from the date of filing of the writ petition.

( 3 ) IN rejoinder, the respondent has reiterated the averments made in the application and has denied that he was earning Rs. 175 per day as Raj Mistri, he reiterated that he was legally entitled to such interim wages as contemplated in Section 17-B of the Act since all the requisite conditions were satisfied and on the top of all, he had given an affidavit, accompanying his application, of non employment.

( 4 ) SECTION 17-B of the Industrial Disputes act reads as under: "17-5. 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 ) IT is settled law that in order to claim relief under Section 17-B of the Act the initial onus is on the workman to plead that he was not gainfully employed and an affidavit is to be given in support of this. Although there is no averment in the application that he was not gainfully employed and was not working in any establishment, however, an affidavit of non employment has been filed by the applicant.

( 6 ) ALTHOUGH there is no dearth of employment for those who want to work in a city like Delhi, th