Lsp IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 31 OF 2009 IN WRIT PETITION NO. 941 OF 2008 Tekchand Khanchandani ...Petitioner v/s. Omprakash Jaiswar ...Respondent WITH NOTICE OF MOTION NO.32 OF 2009 IN WRIT PETITION NO. 940 OF 2008 Tekchand Khanchandani ...Petitioner v/s. Achen Kunju ...Respondent WITH NOTICE OF MOTION NO. 33 OF 2009 IN WRIT PETITION NO. 935 OF 2008 Tekchand Khanchandani ...Petitioner v/s. Harilal Kori ...Respondent WITH NOTICE OF MOTION NO. 34 OF 2009 IN WRIT PETITION NO. 934 OF 2008 Tekchand Khanchandani ...Petitioner v/s. Ramnath Jaiswal ...Respondent WITH NOTICE OF MOTION NO. 35 OF 2009 IN WRIT PETITION NO.932 OF 2008 Tekchand Khanchandani ...Petitioner v/s. Riktamani Jaiswar ...Respondent 2 WITH NOTICE OF MOTION NO. 84 OF 2009 IN WRIT PETITION NO. 936 OF 2008 Tekchand Khanchandani ...Petitioner v/s. Sanchulal Chauhan ...Respondent WITH NOTICE OF MOTION NO. 85 OF 2009 IN WRIT PETITION NO. 933 OF 2008 Tekchand Khanchandani ...Petitioner v/s. Nagendralal Gupta ...Respondent WITH NOTICE OF MOTION NO. 115 OF 2009 IN WRIT PETITION NO. 939 OF 2008 Tekchand Khanchandani ...Petitioner v/s. Maykal Nazareth ...Respondent ..... Mr. Rajesh Gehani for the petitioners/ to oppose NM. Mr. Dilip Mandaria for the Respondents/ in support of NM. CORAM CORAM CORAM : : : A.M.KHANWILKAR,J. A.M.KHANWILKAR,J. A.M.KHANWILKAR,J. DATED DATED DATED : : : APRIL 06, 2009. APRIL 06, 2009. APRIL 06, 2009. P.C. . Heard Counsel for the parties. 3 2. These applications are filed for reliefs in terms of Section 17B of the Industrial Disputes Act. Relief claimed in the Motion is as follows: "That this Hon’ble Court may be please under section 17(B) of the Industrial Disputes Act 1947 to direct the petitioner to pay to the respondent full wages last drawn by him inclusive of such maintenance allowances admissible to him under the law as respondent is not employed in any establishment and is unemployed as on today." 3. In support of this relief the statement on oath made by the workmen-applicants which is relevant for considering present matter reads thus: " I say that I am making this affidavit in support of my notice of motion as I am unemployed. I say that though I have tried my best to get the alternative job but I could not get any job. I say that this honourable court may be pleased to grant me the relief of monthly wages last drawn by me inclusive allowances as applicable." 4. According to respondent, the applicants have not explained delay in filing of this application. No plausible cause has been shown in the affidavit in 4 support in that behalf, although the order admitting writ petition and granting interim-relief was passed as back as on 21/4/2008 whereas present motion has been filed on 20/01/2009. Besides, no clear statement has been made on affidavit as to from which date the applicant is unemployed. According to Respondent, in the facts of the present case following the exposition of the Delhi High Court in the case of Birdhi Chand Birdhi Chand Birdhi Chand Naunag Naunag Naunag Ram Jain v/s. P.O. Labour Court No. IV & ors. Ram Jain v/s. P.O. Labour Court No. IV & ors. Ram Jain v/s. P.O. Labour Court No. IV & ors. reported reported reported in 2004 I CLR 952, in 2004 I CLR 952, in 2004 I CLR 952, at best the applicant would be entitled for payment under Section 17B from the date of the application filed before this Court i.e. 20/01/2009. The respondent further states through Counsel that the respondent is willing to provide employment to the applicants. The applicants should report at the working shed on the address mentioned in the affidavit and the applicants will be provided employment. The Respondents through Counsel submits that interim stay of reinstatement granted by this Court on 21/4/2008 be vacated in terms of this order as the respondent is willing to provide employment to the applicants. 5. Counsel for the applicants/workmen however submits that the applicants are entitled for wages not only from the date of application but even for the anterior period. According to the applicants, the employer is 5 obliged to pay wages and allowances admissible to the applicants from the date of award which was passed on 6/8/2006. To buttress this submission reliance is placed on the decision of Delhi High Court in the case of Indra Perfumery Co. through Sudershab Oberoi v/s. Indra Perfumery Co. through Sudershab Oberoi v/s. Indra Perfumery Co. through Sudershab Oberoi v/s. Presiding Presiding Presiding Officer & ors. reported in 2004-II-LLJ 413. Officer & ors. reported in 2004-II-LLJ 413. Officer & ors. reported in 2004-II-LLJ 413. 6. Going by the averments in the affidavit in support of the application, relevant portion whereof is reproduced in the earlier part of this order, I have no hesitation in taking the view that the applicants have not made a clear statement on oath that they were unemployed even during the period earlier to the date of award and have been throughout been unemployed even thereafter till the filing of this application. No such statement is found in the affidavit as filed. The assertion merely records that the applicant has filed his affidavit in support of the motion as he is unemployed. It is further stated that the applicant has tried his best to get alternative job but could not get any job. No case is made out as to during which period he remained unemployed. In the circumstances, besides the decision of the Delhi High Court pressed into service by the employer in the case of Birdhi Chand Birdhi Chand Birdhi Chand Naunag Naunag Naunag Ram Jain (supra), Ram Jain (supra), Ram Jain (supra), I am inclined to accept the stand of the respondent/writ-petitioner that the Court may assume that at best the applicant is unemployed for 6 the period in or around making of this application before this Court i.e. 20/01/2009. 7. To get over this position, Counsel for the applicant would contend that the requirement of law is that the employer has to pay the wages and allowances to the workman in the event of reinstatement is ordered for the period commencing from the date of award when the workman become entitled for reinstatement. Indeed, there is no difficulty in accepting this broad proposition which is buttressed on the basis of exposition of Delhi High Court in the case of Indra Indra Indra Perfumery Perfumery Perfumery Co. (supra). Co. (supra). Co. (supra). 8. However, in the fact situation of the present case, the applicant has not come to the Court with a clear statement on affidavit that he has remained unemployed since the date of award as such. In absence of such plea, the question of extending any benefit to the applicants-workmen from the date of award does not arise at all. The criteria for granting relief under Section 17B is that the workman should prove to be unemployed during the relevant period, that is lacking in the present case. 9. In the circumstances, these applications would succeed only to the extent of directing the 7 writ-petitioner/employer to pay wages and allowances to the applicants in terms of Section 17B w.e.f. 20/01/2009 when this application has been presented before this Court till today. 10. I am inclined to limit the relief to the applicants only till today on the basis of stand taken by the writ-petitioner through Counsel that the interim stay of reinstatement granted by this Court on 21/4/2008 be vacated forthwith, so that the writ-petitioner would provide employment to the applicants forthwith. The applicants shall report to the work place specified in the reply affidavit filed by the writ-petitioner by tomorrow when the employer would provide appropriate work opportunity to the concerned applicants. 11. The writ-petitioner shall,however, deposit the amount towards wages and allowances for the period from 20/1/2009 till today in this Court which shall be made over to the applicants-employees on condition that they shall furnish Bank guarantee for commensurate amount and file undertaking before this Court that the said amount will be redeposited in this Court if the Court so directs alongwith interest accrued thereon, if any. Indeed, this arrangement will be without prejudice to the rights and contentions of the parties to be examined in the pending writ-petition. 8 12. All the Notices of Motion disposed of on the above terms. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]