1 IN THE HIGH COURT OF BOMBAY AT GOA Miscellaneous Civil application no.56 of 2009 In Writ Petition no.256 of 2008 Mrs. Escolastica Gracias …... Applicant In M/s Royal Goan Beach Resorts Pvt. Ltd., A Private Limited Company duly registered under Indian Companies Act 1956, having its registered office at Haathi Mahal, Mobor Salcete-Goa and its establishment at Colvaddo, Benaulim Salcete Goa, duly represented by its General Manager Mr. Anoop Suri …... (petitioner) V e r s u s 1. Mrs. Escolastica Gracias, major in age, Indian inhabitant, residing at Igreja waddo, Carmona, Salcete, Goa. 2. The Presiding Officer, Industrial Tribunal cum Labour Court, Government of Goa, 1st floor, Shramashakti Bhavan, Patto, Panaji, Goa. … Respondents. Shri V. Menezes, advocate for the applicant. Mr. D. Pangam, advocate for original petitioner. 2 Coram: A. P. Lavande, J. Reserved on:25/2/2011 Pronounced on:4/3/2011. P.C: By this application under Section 17-B of the Industrial Dispute Act, 1947, the applicant seeks direction against respondent no.1 for payment of last drawn wage. 2. The respondent no.1 has filed the present petition challenging the award dated 23/11/2007 passed by the Industrial Tribunal, directing reinstatement of the petitioner. 3. Mr. Menezes, learned counsel for the applicant submitted that the applicant is not in gainful employment from the date of the termination and inspite of her best efforts she has not been able to secure any job. Mr. Menezes,placed reliance on the Division Bench judgment 3 of this Court in the case of U.P. State Bridge corporation Ltd. Vs. Maharshtra General Kamgar Union, 2008(2) Bom.C.R.619. Mr. Menezes, submitted that the applicant has complied with the essential requirements as laid down in the said judgment. He further submitted that once the applicant/workman has filed an affidavit that he is not gainfully employed, the burden of proving that he/she has not been gainfully employed from the date of termination of service and more particularly from the date of passing the award, the onus of proving that he/she is gainfully employed is on the employer which onus has not been discharged by respondent no.1. Mr. Menezes, also placed reliance on another Division Bench judgment of this Court in the case of Oriental Containers Ltd. Vs. Engineering Workers Association and ors. 1996 I CLR 934. 4. Per contra, Mr. Pangam, learned counsel for respondent no.1 stated that the affidavits filed by the 4 applicant are not in consonance with the ratio laid down in the case of U.P. State Bridge Corporation Ltd. He further submitted that the applicant has nowhere stated that she is not self employed. According to Mr. Pangam, the applicant is employed with Shartio Enterprises, Ingreza vaddo, Carmona, which deals with spare parts business. Mr. Pangam also placed reliance upon the judgment in the case of U.P. State Bridge Corporation Ltd.(supra) and submitted that since the applicant has not filed affidavit in consonance with the said judgment and since the applicant is gainfully employed she is not entitled to any relief in terms of Section 17-B of the said Act. Mr. Pangam further submitted that the affidavits filed by the applicant are vague. 5. I have carefully considered the rival submissions and perused the record and the judgments relied upon. 5 6. Initially the applicant filed affidavit dated 5/1/2009 in which she has stated that she was not in employment from the date of termination of her service, despite making all efforts to procure a suitable employment. She further stated that her last drawn wage was Rs.6930/-. 7. In reply filed on behalf of respondent no.1, it has been stated that the application under Section 17-B of the said Act is premature. It has been further stated that the applicant is working with Shartio Enterpriw4s at Ingreza vaddo, Carmona which deals with spare parts business and therefore, the applicant is not entitled to any relief under Section 17-B of the Industrial Disputes Act, 1947. 8. Thereafter, the applicant filed Affidavit-in- Rejoinder specifically denying that she was 6 working/gainfully employed with Shartio Enterprises at Igreza vaddo, Carmona, Salcette. 9. The question therefore which arises for consideration is whether the affidavits filed by the applicant are in consonance with the judgment in the case of U.P. State Bridge Corporation Ltd. In the said judgment after considering several authorities including those of the Apex Court the Division Bench held that in order to get relief under Section 17-B of the Act, an affidavit of the workman must disclose that he is not gainfully employed, must be complete and should disclose full particulars within knowledge of workmen. In the said judgment, the Division Bench has held that the onus on the workman is very limited one and once the affidavit is filed, as contemplated under Section 17-B of the Act and the Court is satisfied that the workman was not employed during the relevant period direction for payment of wages under 7 Section 17-B could be issued. The Division Bench further held that the applicant must state that he was not gainfully employed or self employed which depends on the facts and circumstances in the case would be considered before the Court to pass a direction for payment of wages. In my considered opinion the affidavits filed by the applicant are in substantial compliance of the judgment in the case of U.P. State Bridge corporation Ltd. The affidavits disclose that the last drawn wage of the applicant was Rs.6930/- per month. The applicant has also categorically denied that she has been gainfully employed with M/s. Shartio Enterprises and I have no reason not to accept the said statement. Moreover, the respondent no.1 in the affidavit filed by Louella Colin Fernandes has not specifically stated as to since when the applicant has been working with Shartio Enterprises. 10. This being the position, there is absolutely no 8 reason not to accept the statement made by the applicant on oath that she is not gainfully employed. No doubt she has not stated that she is not self-employed, but having regard to the tenor of the two affidavits filed and in the absence of any averment by respondent no.1 that the applicant is self employed, in my opinion, it would be harsh to deprive the applicant the benefit of Section 17-B of the Act on a mere technicality. 11. The judgment in the case of Oriental Containers Ltd. Bombay relied upon by Mr. Menezes also supports the case of the applicant. In the said case, the Division Bench of this Court has held that once the workman has filed an affidavit that he has not been employed, the burden of proving that he is gainfully employed shifts on the employer. Therefore, in my considered opinion the applicant is entitled to the relief under Section 17-B of the Act. 9 12. In view of the above discussion, the application is allowed. The respondent no.1 is directed to pay the monthly wage of Rs.6930/- to the applicant on or before 10th of every month, beginning from April 2011. Arrears from the date of award i.e. 23/11/2007 till March 2011 shall be deposited in this Court by respondent no.1 within a period of eight weeks from today. Upon deposit, the applicant is at liberty to withdraw the said amount. The application stands disposed of accordingly. A. P. Lavande, J. Ap/-