vs s IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO.1139 OF 2008 APPLICATION NO.1139 OF 2008 APPLICATION NO.1139 OF 2008 IN WRIT WRIT WRIT PETITION NO.467 OF 2008 PETITION NO.467 OF 2008 PETITION NO.467 OF 2008 Sudhir Mahadev Devkate ... Applicant V/s. Baramati Grape Industries Ltd. ... Respondent Mr.N.A. Kulkarni for Applicant Mr.D.J. Bhanage for Respondent CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: AUGUST 25, 2008 AUGUST 25, 2008 AUGUST 25, 2008 P.C.: P.C.: P.C.: . The civil application has been filed by the workman claiming wages u/s 17B of the Industrial Disputes Act, 1947. The petition was admitted and interim relief has been granted in terms of prayer clause (b) of the petition. 2. In the civil application, the workman has stated in para 5 that he tried to secure an alternative job after his services were terminated on 18.3.1998 but did not succeed. He has also averred that he is unemployed and cultivates his land at Baramati admeasuring half an acre from which he gets an income of Rs.200 to Rs.300/- per month. He has further averred that he is not gainfully employed anywhere else and, therefore, he is : 2 : entitled to wages u/s 17B of the Act. 3. The Senior Manager (Personnel) of the respondent company (for short, the company) has filed an affidavit contending that the workman is drawing an income which would not be less than Rs.2000/- to Rs.3000/- per month as agricultural income. It is also averred that the workman is engaged as a tractor driver for various land owners in Baramati on a daily wage of Rs.150/-. The affidavit mentions the names of the persons who own agricultural lands in Baramati and have engaged the workman on their land. 4. The workman has filed a rejoinder denying these allegations and has stated that he does not have a licence to drive a tractor and, therefore has contended that the averments in the affidavit are unbelievable. The workman has also denied that he is drawing a monthly income of Rs.2000/- to Rs.3000/- as agricultural income and has stated that he is cultivating the lands of his aunt from where he draws Rs.200 to Rs.300/- per month. 5. A further affidavit has been filed by the Senior Manager (Personnel) of the Company contending that the workman was employed from 1.12.2006 to 2.1.2008 on a monthly salary of Rs.2,300/- p.m. with one Chandrakant S. Pawar to drive his tractor. Thereafter from : 3 : February 2008 till date he is employed with one Kolekar and is drawing Rs.2,500/- p.m. An affidavit has been filed by Chandrakant S. Pawar admitting that the workman was employed with him as a tractor driver. He has also stated that he maintained a notebook of the various payments made to persons employed with him in connection with his tractor business. The annexure indicates that certain payments have been made to the workman through the period 1.12.2006 till 2.1.2008. 6. These contentions have been denied by the workman in an affidavit filed on 23.8.2008. He has denied that he knows Chandrakant S. Pawar and that he was working as his tractor driver for the aforesaid period or that he was paid the amount as stated by the said Shri Pawar. 7. In my opinion, it is difficult to accept the statement made by either party without there being any cross-examination. However, that is not the scope of an enquiry which is contemplated u/s 17B of the I.D. Act. In the case of Uttar Pradesh State Bridge Corporation Ltd. v/s. Maharashtra General Kamgar Union, 2008(3) LLN 187, the Division Bench was considering the nature of an application which is to be filed u/s 17B of the I.D. Act for claiming wages. It has been observed thus: : 4 : "18. ... The affidavit of workman essentially must state that the workman was not employed with any establishment during the relevant period and was not gainfully employed including self-employment during the same period. The purpose of filing of an affidavit is to grant statutory interim protection to the workman and to avoid hardship resulting from non-jpayment of wages. The onus is on the workman and he must discharge such onus by filing affidavit in definite terms and disclosing the correct facts. Whenever and wherever the management places before the Court apparent material to show the employment in an establishment or gainful self-employment of the workman during the relevant period then the workman will also be expected to show that his affidavit was correct and the question as to how he subsisted during that period would also become relevant. ....." 8. In the present case, the workman in his application has stated that he has not been employed but was drawing an income of Rs.200 to Rs.300 p.m. as agricultural income. Thereafter several affidavits have been filed including one of Chandrakant S. Pawar who has stated that the workman was employed with him on a monthly salary of Rs.2300/- p.m. While denying this, the workman has not disclosed how he has subsisted till today after his services were terminated. Whether he was drawing only an income of Rs.200 to Rs.300 p.m. as agriculture income has also not been established. In fact, in a later affidavit, he has contended that he is cultivating the land of his aunt. Thus, if in fact he is working as agricultural labourer for his aunt or is cultivating it on some terms and conditions with his : 5 : aunt there is no disclosure of these facts in the affidavit. In the event, the workman is working as an agricultural labourer, he would certainly draw more than Rs.200 to Rs.300 per month as the minimum wages for agricultural labourer would be much more. 6. In these circumstances, I do not feel it necessary to grant the application filed by the workman as there is some material on record to indicate that the workman is gainfully employed. The application is therefore, dismissed.