:1: 1061.11.caw ata IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1061 OF 2011 IN WRIT PETITION NO.3431 OF 2010 M/s. Jet Airways India Ltd ..Applicant Vs. Bhartiya Kamgar Karmachari Mahasang ..Respondent Mr. Abhay Kulkarni,for Applicant. Mr. G. S. Baj,for Respondent/ Petitioner in WP.3431/10. CORAM :- A. V. NIRGUDE, J. DATE :- DECEMBER 15, 2011. P. C.: The Respondent filed this Civil Application in this Writ Petition for an order under Section 17-B of the Industrial Disputes Act. This Writ Petition is filed challenging the Award dated 21st December, 2009 in Reference CGIT-2/54 of 2003, wherein the Respondent-workman was ordered to be reinstated in the service of the Petitioner Employer without backwages. The Writ Petition is admitted and is pending. This Court at the time of admitting the Writ Petition granted stay to the operation of the Award and thereby the Respondent is prevented from getting reinstated. In this background, the Respondent moved this application for getting wages as directed under Section 17-B of the Industrial Disputes Act. Section 17-B 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 :2: 1061.11.caw 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.” 2 While deciding this application, one has to see, as to whether, all the ingredients of this Section are satisfied by the Respondent. Initially, the Respondent has filed affidavit in support of this application saying that he is not gainfully employed anywhere. In reply, the Petitioner Management asserted that the Respondent is working as Insurance Agent and is selling insurance policy. They however, did not given particulars of this business. The Petitioner then filed one more affidavit in rejoinder saying that he has not been doing business as alleged. The Respondent also stated in his affidavit that even though he has tried to get some job, he did not get one. He also gave details about his family members and their financial situation. He clearly stated that his wife is working as household help and that he has three school going children etc. 3 For opposing the application, the learned Counsel appearing for the Respondent placed reliance on various judgments including judgment of Division Bench of this Court in the case of U. P. State Bridge Corporation Ltd v/s Maharashtra Generall Kamgar Union 2008 III LLJ 507, in which it was held that before the Court could make an order :3: 1061.11.caw under Section 17-B in favour of a workman, the Court should ensure that the workman has given details of attempts he made about getting the job etc. The relevant portion of the judgment reads as under:- 17.In the light of the judgments that we have noted above, there can be no doubt that the onus for seeking statutory interim protection is upon the workman and where Management claims benefit of the proviso of section 17B, the onus is upon the Management. The onus on the workman is a very limited one and once an affidavit as contemplated under the provisions of section 17B is filed and the court is satisfied that the workman was not employed in any establishment during the relevant period, direction for payment of wages under section 17B would be issued. Such an affidavit filed by the workman has to be true and correct description of facts as per the requirements of law. It is expected that the workman would make a definite and correct averment in the affidavit in regard to his non-employment and would show that he could not be employed despite his efforts. It will be for the workman to state categorically that he was not gainfully employed and was not in self-gainful employment which dependent on the facts and circumstances of the case would be a consideration before the court to pass a directive for payment of wages and determination of such wages even at the interim stage .” 3 The paragraph quoted above, in my view, would not help the Petitioner because the Respondent has specifically stated in his affidavit and I am inclined to believe the same that despite his efforts he could not get any employment. 4 The learned Counsel appearing for the Petitioner also placed reliance on judgment of Gujrat High Court in the case of Oghad Masri Rabari v/s State of Maharashtra-2011 II CLR 507. He particularly placed reliance on paragraph No.3 of the judgment which reads as :4: 1061.11.caw under:- " We are at a loss to understand how the workman or his family could survive without any employment or income. However, the Apex Court in series of decisions has held that on reinstatement, back wages cannot be automatically granted and it is the discretion of the Court to grant back wages. The Apex Court in a decision in Chairman-cum- Managing Director, Coal India Ltd and Others v Ananta Saha and Ors 2011(4) SCALE 398 held in para 47 as under: The issue of entitlement of back wages has been considered by this court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no strait-jacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of reinstatement...." 5 I am in respectful disagreement with the first sentence of the paragraph quoted above and may humbly say that there are hundreds of people in this country who some how survive having no permanent employment or such other support. There are thousands of people in this country, who are working even without getting minimum wages and no-one could help them because they are working in unorganized sectors. Even in this case the Respondent has clearly stated in the affidavit that his wife works as a household help. Probably her income is utilized, though might be grossly insufficient, for survival of the entire family. It has come on record that the Respondent’s children would not continue their school because their fees were not paid in time etc. The learned Counsel appearing for the Respondent placed reliance on the :5: 1061.11.caw judgment of the Supreme Court in the case of Regional Authority, Dena Bank and Anr v/s Ghanshyam. The Supreme Court in this judgment discussed the law on Section 17-B in detail. Having read it, I would rather decide this case on facts of this case and on the credibility of the Respondent’s affidavit. As I said earlier, I am inclined to believe the statement of the Respondent made in the affidavits. I am also inclined to reject the defense of the Petitioner employer when they said that the Respondent is gainfully employed at some other place, doing some other business. When they made such a statement, they ought to have given particulars of such employment, but since the same is not provided in the affidavit, their case being vague deserves to be rejected. 6 Before I conclude this order, I record my appreciation of the efforts made by the learned Counsels appearing for the parties to get the matter settled out of Court. But somehow the suggestion given by the Petitioner’s Counsel is not accepted by the Respondent employee. 6 The application is allowed. 7 The Petitioner employer shall pay the Respondent employee full wages last drawn by him inclusive of any maintenance allowance admissible to him under any Rule etc from the date of the Writ Petition. 8 The Petitioner employer shall pay the arrears of the wages within three weeks from today and shall pay his regular wages on or before 10th of each month. ( A. V. NIRGUDE, J.)