The onus of proving that the workman is gainfully employed is on the employer, and in the absence of evidence to the contrary, the court may dismiss the appeal.

JUDGMENT (Oral)

1. Vide the present appeal, the Appellant seeks to challenge the Order dated 27.07.2022, passed by the learned Single Judge in CM. APPL. 19550/2022 in W.P.(C) 12520/2021, allowing the application filed by the workmen/Respondent herein under Section 17B of the Industrial Disputes Act.

2. Shorn of details, the facts leading to the present appeal are as under:

a. It is stated that the workmen/Respondent No.1 herein joined the services of the Appellant herein on 01.10.2008 as an Executive Sale Purchase/Field worker. No letter of appointment was issued by the Appellant to the workmen/Respondent.

b. It is stated that the services of the workmen/Respondent No.1 herein were terminated on 21.02.2015 and the last drawn salary of the workmen/Respondent No.1 herein was Rs.12,500/-.

c. It is stated that the workman challenged the order of termination before the Labour Court contending that the management of the Appellant/Company has illegally terminated his services. The workman had sought for his reinstatement with full back wages along with continuity of service along with all other consequential benefits. The learned Labour Court passed and Award dated 13.01.2020 in favour of the Workman and held that the Workman's services were illegally terminated by the Appellant/Company and that the workman was entitled to reinstatement with full back wages along with continuity of service along with all other consequential benefits.

d. The Order of the learned Labour Court was challenged by the Appellant/Company before this Court by filing W.P.(C) 12520/2021. In the said Writ Petition, the workman filed an application under Section 17B of the Industrial Disputes Act, 1947, being CM. APPL. 19550/2022. The said application was opposed by the learned Counsel appearing for the Company on the ground that the workman has not produced any bank records to demonstrate that he was not gainfully employed. It was further contended by the learned Counsel for the Company that the workman was gainfully employed as a Court Clerk in Saket District Court and received substantial remuneration. It was further submitted by the learned Counsel for the Company before the learned Single Judge that due to COVID-19 pandemic the Company had stopped its operations and had not been able to revive its operations since then due to its financial constraints.

e. The learned Single Judge, vide the judgment impugned herein, has allowed the application filed by the workman under Section 17 B of the Industrial Disputes Act, 1947.

f. It is this Order which has been assailed by the Appellant in the present appeal.

3. Learned Counsel appearing for the Appellant has reiterated the submissions made before the learned Single Judge. She contends that the workman has been gainfully employed and the benefits under Section 17 B of the Industrial Disputes Act are not available to him.

4. Heard the Counsels and perused the material on record.

5. Section 17 B of the Industrial Disputes Act, 1947 reads as under:

"17B. 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