1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 75 OF 2010 IN WRIT PETITION NO. 1399 OF 2008 Kirloskar Pneumatic Kamgar Sangh, ) Hadapsar Industrial Esate, Pune – 411013. ) ....Applicant vs Kirloskar Pneumatic Company Limited, ) Hadapsar Industrial Estate, Pune-411013. ) ....Respondents Mr. N. A .Kulkarni for the applicant. Mr. J. P. Cama, Senior Counsel with Mr. Mahesh Londhe i/b M/s. Sanjay Udeshi & Co. for the Respondents. WITH WRIT PETITION NO. 2613 OF 2008 Kirloskar Pneumatic Kamgar Sangh, ) Hadapsar Industrial Esate, Pune – 411013. ) ....Petitioners vs Kirloskar Pneumatic Company Limited, ) Hadapsar Industrial Estate, Pune-411013. ) ....Respondents Mr. N. A . Kulkarni for the Petitioner. 2 Mr. J. P. Cama, Senior Counsel with Mr. Mahesh Londhe i/b M/s. Sanjay Udeshi & Co. for the Respondents. CORAM : S. J. VAZIFDAR, J. DATE : 12 th March, 2010. ORAL JUDGMENT : 1. The Respondent-Union has filed the Civil Application under Section 17-B of the Industrial Disputes Act, 1947 (ID Act) in respect of six workmen. 2. The Petitioner terminated the services of the workmen on 28th January, 2002, by retrenching them. The Respondent-Union raised a Reference before the Industrial Tribunal at Pune. The Industrial Tribunal, by an Award dated 13th December, 2007, allowed the Reference and directed the Petitioner to reinstate the members of the union with continuity of service, but without back wages. 3. The above Writ Petition was filed on 16th February, 2008. By an order dated 3rd March, 2008, Rule was issued and Rule on interim relief was made returnable after two weeks. By an order dated 21st 3 January, 2009, the award was stayed pending the hearing of the Writ Petition. 4. It is in these circumstances that the Union has filed the above Civil Application under Section 17-B of the Industrial Disputes Act, 1947, in respect of six workers, each of whom has filed an affidavit- in-support thereof. The application of each workman would have to be considered separately on merits. It is necessary, however, to preface a consideration thereof by dealing with the questions of law raised by Mr. J. P. Cama, the learned senior counsel appearing on behalf of the Petitioner i.e. the Respondent to the Civil Application. 5. Section 17-B reads thus : “17-B. Payment of full back 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: 4 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.” 6. Mr. Cama firstly submitted that in support of his application under Section 17-B, the employee must aver in the original/first affidavit in support of his application not only that he has not been, nor is presently, gainfully employed but that he had sought employment, but did not get any employment. He submitted that the employee must in this initial affidavit itself furnish particulars of where he sought employment and how he had managed to survive during the period prior to the date of the application. Mr. Cama further submitted that bald averments to this effect are not sufficient and facts necessary to substantiate the same must also be pleaded. 7. A plain reading of Section 17-B militates against Mr. Cama's submission. The section makes it obligatory on the employer to pay the workman the said wages “ ..... 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....”. Thus the affidavit 5 merely requires an averment “to that effect” meaning thereby to the effect that he “had not been employed in any establishment during such period”. The section requires nothing more. To accept Mr. Cama's submission would be adding to the words of and the requirements stipulated by the Legislature which is impermissible. 8. I am supported in this view by the judgment of a Division Bench of this Court in Oriental Containers Ltd. vs. Engineering Workers Association 1996 (1) LJSOFT 71 = 1996 (3) Bom. C. R. 488, where it was held : “17. Now we deal with Notice of Motion No. 208 of 1995 in Writ Petition No. 2473 of 1994 taken out by the workmen - members of respondent No. 1-union. The 27 workmen who have been reinstated in service under the Award of the Labour Court have filed affidavits that they were not working in any establishment during the period from the date of their dismissal till the date of filing the affidavits in this Court. Section 17-B of the I.D. Act requires a workmen to file an affidavit before the High Court or the Supreme Court where the employer has preferred any proceedings against the Award of reinstatement of the workman that he "had not been employed in any establishment" during the pendency of such proceedings. Once such an affidavit has been filed by the workman, he has discharged the onus on him. By virtue of the provisions of section 17- B, the burden of proof then shifts to the employer. It is then for the employer to satisfy the High Court or the Supreme Court that the workman, in fact, had been employed and he had been receiving adequate 6 remuneration during such period or part thereof. If the employer succeeds in satisfying the Court in that behalf, the Court then shall order that the wages contemplated by this section shall not be payable by the employer to the workman for the period of the pendency of the proceedings before the Court or part thereof. In the instant case, the workmen have discharged the burden of proof cast upon them. The employer has not placed any material before this Court that the workmen had been receiving adequate remuneration during this period. The employer has referred to a report of some detective agency but has not filed an affidavit stating that the report has been accepted to be correct. The report of the detective agency is not, per se any evidence. Evidence has to be led in proof thereof and no evidence has been led in the instant case and no reliance can be placed upon the report of the detective agency as is sought to be contended. The employer has successfully succeeded in preventing the workmen from getting the benefit of the benevolent provisions contained in section 17-B of the I.D. Act.” 9. The error in Mr. Cama's submission arises on account of confusing the cause of action with the evidence in support thereof. The averments required by the section constitute the cause of action entitling the workman to the said wages. The initial burden placed on the workman is discharged by him upon filing such an affidavit. The additional factual averments referred to by Mr. Cama relate to the proof of such averments. Upon the workman filing such an affidavit, the statute itself, viz. the proviso to section 17-B, shifts the burden to the Petitioner to establish the facts necessary to defeat the 7 application. It is only if the Petitioner/management denies the averment or produces or is able to indicate evidence to the contrary that it would be necessary for the workman by further affidavits to establish his case/rebut the Petitioner's contentions. 10. Particulars furnish evidence. There may be cases where no evidence is required. For instance, if the Petitioner/ management does not deny the averments to this effect, there is no warrant for dismissing the application under Section 17-B merely on the ground that the affidavit-in-support of the application does not contain the particulars. 11. If despite the matter being put in issue by the management and the worker being called upon to furnish particulars, the worker fails to provide the particulars of his efforts to seek employment, it would be another matter. The Court could then, with justification, draw an adverse inference to the effect that the workman had, in fact, made no efforts to seek gainful employment. The necessity for furnishing particulars in such a case is clear. It enables the management to ascertain the truth of the averment that efforts were made to seek 8 gainful employment. If particulars in this regard are not furnished, the management would be deprived the opportunity and the ability of disproving the averment. In a given situation on the basis of the affidavit in support itself the application could be rejected or allowed only in part. If for instance the affidavit discloses that the workman was employed for a certain period of time, he must also disclose the particulars of the employment including the specific period and the remuneration received. An adverse inference on his failure to furnish particulars despite being required to do so would be justified. However, once the ingredients of Section 17-B are averred, without the same being put in issue by the Petitioner/management or in the absence of any other apparent circumstances which warrant the veracity of the same being doubted, the application must be granted. 12. Similarly, the manner in and the means by which the workman survived upto the date of the application is a question of fact in relation to the veracity of the Petitioner’s averment that he has not been in gainful employment. It is not a mandatory ingredient of an affidavit filed in support of an application under Section 17-B. The absence of an averment in this regard does not affect the 9 maintainability of an application under Section 17-B. The ability of the workman for having survived upto the date of the application under Section 17-B is but one of the factors to be taken into consideration while testing the veracity of the workman’s assertion that he has not been in gainful employment. 13. Mr. Cama went to the extent of contending that the workman must aver and prove how without employment, he manages his life- style, such as educating his children, providing necessities such as clothing, food and medical assistance. 14. If Mr. Cama's submission is accepted, a workman must aver particulars for every conceivable fact, situation or circumstance which relates to the possibility of his having sought or been in employment and to the remuneration in respect thereof. There would be innumerable such facts. The section on a plain reading does not require it. Why then must a workman not be required to aver and prove that he does not own a vehicle or if he has one, how he manages to maintain it. Why must he not aver and prove that he does not travel or if he does, how he manages to pay the expenses 10 for the same. 15. A difference of crucial importance must be noted. Whereas Section 17-B merely requires the workman to file an affidavit of the nature stipulated therein the proviso thereto denies him the benefit thereof only if it is “proved” to the satisfaction of the Court that he had been employed and was receiving adequate remuneration during the relevant period. To accept Mr. Cama's submission would reverse the legislative intent in and the scheme of Section 17-B. 16. (A) In support of his submissions, Mr. Cama relied upon the judgment of a Division Bench of this Court in U.P. State Bridge Corporation Limited vs. MGKU, 2008 (2) Bom.C.R. 619. The Division Bench considered several judgments most of which were in respect of a claim for back wages and not under Section 17-B. Mr. Cama submitted that the principles therein have been applied by the Division Bench to an application under Section 17-B. Paragraphs 11, 16 and 18 of the judgment relied upon by Mr. Cama as constituting the ratio, read as under :- “11. Section 17-B requires that during the pendency of the proceedings before the High Court or Supreme 11 Court, as the case may be, a liability is created upon the employer to pay the workman the full wages drawn by him inclusive of other allowances, but only if the workman had not been employed in any other establishment during such period and an affidavit by such workman had been filed to that effect in such Court. Thus, first is a matter of fact known to the workman which is within his personal knowledge while the latter is the requirement of law. The workman employed in any establishment would not be entitled to the benefit of interim protection during the proceeding before the High Court or the Supreme Court, as the case may be. Thus, the onus is placed upon the workman to comply with the statutory provisions of which the Court must be satisfied before it directs the employer to make the payment of the required wages. There is definite onus upon the workman which is clear from the language of the legislature. But the onus is a primary onus which stands discharged the moment the workman complied with the requirement of the provisions, unless the Management or employer claims and discharges onus by definite evidence as required by the proviso to section 17-B. Even, the normal Rule is equally applicable to the proceedings before the Industrial or the Labour Court, namely the extent of burden of proof and requirement of proof is to be construed liberally. Undoubtedly, the provisions of section 17-B imply an obligation on the Court and give a statutory protection to the workman. The direction of the Court would be issued only where an affidavit in terms of section 17-B has been filed. That apparently is the intention of the Legislature. 16. 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 17-B, 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 12 section 17-B 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 17-B 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.” (B) The judgment upto this point merely sets out the requirements of Section 17-B. It does not refer to the further ingredients of the affidavit to be filed by the workman mentioned by Mr. Cama. (C) Mr. Cama submitted that this is evident from what the Division Bench went on to hold, which is as follows : “18. ......... In the present case, affidavit had been filed by the workman clearly stating that an award had been made by the Labour Court, Thane on 21st September, 2005 and also as required under Section 17-B of the Industrial Disputes Act the workman declared that he was not gainfully employed in any other establishment since the date of the award and even from the date of his termination. Identical affidavits have been filed on behalf of the workmen. It was expected that these 13 affidavits should have been more elaborate and definite in their content. As already discussed, the intention of the legislature to provide statutory interim protection is dependent upon workman not being employed in any establishments and his filing of an affidavit to that effect. To that extent, provision of section 17-B would have to receive a liberal construction as the protection to the workman is dependent upon his gainful employment including self-gainful employment. No doubt, no format has been provided under the Act or under the Rules framed thereunder but still this affidavit should be true and correct declaration of the required facts. It will be unfair to restrict the affidavit in its contents. It may not help to further the intent of legislature. If a workman during the relevant period was gainfully employed, he would not be entitled to the benefit of section 17-B. “employed in any establishment during such period” is an expression of wider magnitude and scope. If the workman was not employed or self-employed, then alone, the provisions of section 17-B would operate. To give it a technical or restricted meaning and treat an affidavit as complete disclosure of correct facts by merely saying that he was not employed in any establishment, would not be substantive and sufficient compliance of section 17-B. In the present case, the affidavit was filed only stating that the workman was not employed with any establishment since the date of making the award and also was not gainfully employed in any establishment since wrongful termination of service. Filing of such affidavit may not be construed as a sufficient compliance of the statutory requirements but in the present case, Management opted to file a vague reply affidavit giving no particulars. It had made no definite allegation in regard to the workman being employed in any establishment or engaged gainfully even in self-employment. It produced on record not even an iota of evidence to show that the affidavit filed by the workman was factually incorrect and Management was entitled to the benefit of the exception made out by section 17-B of the Act. The learned Single 14 Judge while accepting these affidavits of workman as compliance of section 17-B of the Act also held that the application could not be dismissed because the workman does not disclose in his affidavit as to how he subsists. May be, in view of vague plea taken by the Management, such a finding may not call for interference but it will be difficult to accept the same as a general proposition of law. 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 payment 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. However, in the present case, vague stand was taken by the Management and the Management having failed to discharge its own onus and opted to take vague stand in terms of proviso to section 17-B, cannot claim any benefit and find fault in the order impugned in the present appeals.” 17. (A) I do not read the judgment as holding that if the particulars have not been furnished in the initial affidavit, the application under section 17-B must ipso facto, and for that reason alone, be rejected. This is established beyond doubt by the fact that 15 had that been so the Division Bench would have rejected the application in that case for admittedly there the affidavit did not disclose the said particulars. The only averment there in this regard was : “6. As required under 17-B of the Industrial Disputes Act, I hereby declare and say that I am not gainfully employed in any establishment since the date of making the Award. I hasten to add that I was not gainfully employed in any establishment since the wrongful termination of service by the respondent original petitioner.” (B) The erroneous impression that there is an inconsistency in the judgment arises on account of picking out sentences and reading them in isolation instead of reading the judgment as a whole. The judgment read as a whole by no stretch of imagination holds that an application under Section 17-B must be dismissed if it merely avers the requirement of the section and not the other ingredients suggested by Mr. Cama. (C) Whether or not the Court ought to accept the averments in such an affidavit would depend upon the facts of the case. This is precisely what the Division Bench did by upholding the order of the learned Single Judge allowing the application though the only 16 averment in this regard was as set out above. The Division Bench examined all the pleadings in coming to the conclusion. In other words, it did not reject the application on the ground that the affidavit in support of the application did not contain the averments indicated by Mr. Cama. These particulars can always, therefore, be furnished by filing further affidavits if required. If the Petitioner for instance says nothing about the averments and there is nothing on record that militates against the same, a dismissal of the application would not be warranted. 18. Mr. Kulkarni, the learned Counsel appearing on behalf of the Union/Applicants, relied upon the following observations of a Division Bench of this Court in Taranjit Singh I. Bagga vs. MSRTC (2008) 6 LJ SOFT 37, which is as under : “8. Learned Advocate Shri Mehadia for the respondent submitted that the law has undergone change and unless the employee pleads and proves that he was not gainfully employed, he would not be entitled to back wages automatically upon reinstatement. As the Apex Court has observed time and again, the question of entitlement to back wages would depend on the facts and circumstances of each case, and there can be no straitjacket formula. The Court cannot be oblivious to the fact that an employee, whose services were terminated wrongly, has not only to fight for his survival by getting such odd jobs as he can, but has also 17 to fight a battle for getting himself reinstated in service. The Courts cannot be oblivious to the fact that such legal adventure is costly and would eat up a large chunk of whatever meagre income that the employee may be able to make by getting any odd job. At the same time, no Court can be oblivious to the grim reality of unemployment pervading all stratas of the society. Therefore, we would not be in a position to conclude that the moment a person is sacked he can find alternate means of his wherewithal. In this situation, it would be unjust to insist upon a technical requirement of pleading and proof of absence of gainful employment by an employee who is wrongfully dismissed.” The judgment was delivered on 11.04.2008 after the judgment of the Division Bench which was delivered on 17.1.2008. The judgment of the Division Bench is binding on me.