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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.194 OF 2008
IN
WRIT PETITION NO.5700 OF 2006
Ninan Thomas
R/o. B-204, Sagar Shrot,
Behind HDFC Bank,
Juhu Versova New Link Road,
Andheri (W), Mumbai 400 053. ..Applicant.
Vs.
1. Oil & Natural Gas Corporation Ltd.
Ankleshwar Asset, Ankleshwar,
District : Bharuch, Gujrat
PIN - 393 010 and also having
Mumbai Regional Office at
Vasudhara Bhavan, Bandra (E),
Mumbai 400 051.
2. O. N. G. C. (B. O. P.),
Karmachari Sanghatana,
Karishma Kung No.2, C Wing,
Plot No.304, Tambe Nagar,
Mulund (W), Mumbai 400 080. ..Respondents.
....
Mr. Gopal Krishnan with Ms. Shobha Gopal i/b Mr. S.S. Pakale for
the Applicant.
Mr. J.P. Cama, Senior Advocate with Mr. G.D. Talreja i/b
Govindram D. Talreja & Associates for the Respondents.
....
CORAM: DR. D.Y. CHANDRACHUD, J.
1st October, 2008.
ORAL ORDER :
1. The Civil Application has been taken out by the workman
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for payment of wages under Section 17-B of the Industrial Disputes
Act, 1947. In the present case there is an award of the Industrial
Tribunal granting reinstatement with 50% backwages to the
workman. The award is the subject matter of a challenge before
this Court in the main writ proceedings. The Petition has been
admitted and an interim stay was granted on 21st March, 2007
subject to the condition that the employer deposits 50% of the
backwages in Court.
2. In paragraph 6 of the application for Section 17-B wages,
the workman has pleaded that he had sought employment; that
after his services were terminated on 3rd October, 2006 with
retrospective effect from 15th August, 1993, he had been
attempting to obtain employment either with the government or
with a public sector undertaking; but he was unable to do so since
an application for employment would have to be required to be sent
through the proper channel viz. through the present employer –
ONGC. It has also been stated that the Applicant has attempted
to obtain employment with several private companies viz. Bayer
India, Kuwait Airways, Doha Petroleum Co., Tata Consultancy
Services, Siemens India Ltd., Conferry International Placement
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Services from October 1996 till August 2003. However, all the
private sector companies also require a letter from the previous
employer and a last salary certificate which the Applicant was
unable to obtain from ONGC who had terminated his services. A
reply was filed on behalf of the employer in which in paragraph 3(a)
it has been stated that the Applicant is “gainfully employed and
economically well off”.
3.
A Division Bench of this Court presided over by the
Learned Chief Justice, Hon’ble Mr. Justice Swatanter Kumar has in
a recent judgment delivered on 17th January, 2008 in M/s. U.P.
State Bridge Corporation Ltd. v. Maharashtra General Kamgar
Union (LPA 290 of 2007 and connected matters) dealt extensively
with the law on the subject. The Division Bench has referred to the
judgments of the Supreme Court which hold the field. The principle
which has been laid down by the Division Bench is that the filing of
an affidavit by the workman under Section 17-B is not a mere
technicality but, is in order to ensure that a substantive disclosure
of true and correct facts which would unequivocally show that the
workman was not gainfully employed is made. The Division Bench
has held that the expression “gainfully employed” would include
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self employment from where income could be generated by the
workman. A true disclosure of facts which fall within the personal
knowledge of the workman is necessary and the onus is placed on
the workman to comply with the statutory provisions contained in
Section 17-B. The Division Bench held thus:
“In the light of the judgments that we have noted above,
there can be no doubt that the onus for seeking statutoryinterim protection is upon the workman and where
Management claims benefit of the proviso of section17B, 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 isfiled 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 therequirements 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 hewas 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 interimstage.”
The Division Bench has further observed that the requirement of
filing an affidavit cannot be held to be met by merely saying that
the workman was not employed in any establishment :
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“The onus is on the workman and he must discharge
such onus by filing affidavit in definite terms anddisclosing the correct facts. Whenever and wherever the
Management places before the court apparent materialto 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 howhe subsisted during that period would also become
relevant.”
4. In the present case, as already noted above the
management had filed its affidavit in which in paragraph 3(a), there
was a bald statement that the workman was gainfully employed
and economically well off. The workman has filed a further affidavit
dated 11th September, 2008 in order to ensure that there is due
compliance with the judgment of the Division Bench which requires
a disclosure of how the workman has subsisted. In paragraph 7 of
the affidavit it has been stated that the family of the workman
comprises of his wife and son; that his wife is employed as a clerk
(redesignated as a computer terminal operator) with Punjab
National Bank and that the family subsists on the income of his
wife. There is in the circumstances full compliance with the
requirements of Section 17-B as interpreted by the judgments of
the Supreme Court and of the Division Bench of this Court. The
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workman has made a true disclosure of the efforts which were
made by him to seek employment and the circumstances in which
he would not obtain employment either in the government, a public
sector undertaking or a private organization. The workman has
also disclosed how he has subsisted in the meantime.
5. However, on behalf of the employer, it has been sought
to be urged that when an application is moved by the workman
under Section 17-B of the Industrial Disputes Act, 1947, it is open
to the High Court, in the exercise of its jurisdiction under Article 226
of the Constitution to deny relief under Section 17-B when the
Court comes to the conclusion that the award is without jurisdiction
or a nullity. Reliance was placed on the observations contained in
the judgment of a Division Bench of this Court in Elpro
International Limited V. K.B. Joshi1. The decision in Elpro, it
may be noted, involved a challenge to the constitutional validity of
the provisions of Section 17-B. One of the grounds of challenge
was that Section 17-B encroaches upon the powers of the High
Court under Article 226 and of the Supreme Court under Article
136. Repelling that challenge, the Division Bench observed that
1 1987(2) Bom. C.R. 1
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there was no such encroachment and in that context held thus :
“Section nowhere lays down that in extreme cases where
it is demonstrated that the award passed is either withoutjurisdiction or is otherwise a nullity or grossly erroneous
or perverse, the High Court or the Supreme Court is
debarred from exercising its powers under Articles 226
and 136 of the Constitution.”
6. These observations of the Division Bench were cited with
approval in a judgment of the Karnataka High Court in Vysa Bank
ig Union2.
Ltd. v. All India Vysya Bank Employees’ Relying on
these observations, it was urged that the employer is entitled to
assert at this stage that no relief under Section 17-B should be
granted on the ground that the award is without jurisdiction.
7. The submission which has been urged cannot be
accepted. The view which was taken in Elpro International Ltd.
by the Division Bench of this Court has been expressly held to be
incorrect in the judgment of the Supreme Court in Dena Bank v.
Kiritikumar T. Patel3. In the judgment of the Supreme Court in
Dena Bank, the judgment of this Court in Elpro was extensively
extracted in paragraph 17 of the judgment, including the
2 1995 II CLR 700.
3 1998 (1) L. L. N. 375.
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observation that where an award was without jurisdiction or is
otherwise a nullity or grossly erroneous or perverse, the High Court
or the Supreme Court was not debarred from exercising the
powers under the Articles 226 or 136 respectively. The view in
Elpro was overruled by the Supreme Court as would be evident
from the following observations :
“But we are unable to agree with the view of the Bombay
High Court in Elpro International Ltd. [1987 (1) L.L.N.
695] (vide supra), that in exercise of the power under
Arts. 226 and 136 of the Constitution an order can be
passed denying the workman the benefit granted underS.17B. The conferment of such a right under S.17B
cannot be regarded as a restriction on the powers of the
High Court or the Supreme Court under Arts. 226 and
136 of the Constitution.”
8. Section 17-B has been enacted by Parliament in order to
provide relief to a workman who is ordered to be reinstated under
an award of the Labour Court or the Industrial Tribunal during the
pendency of the proceedings where the award is under challenge
before the High Court or the Supreme Court. The payment which is
required to be made is in the nature of subsistence allowance
which is not refundable or recoverable from the workman even if
the award is set aside by the High Court or the Supreme Court.
Having regard to the nature and object of the provision and the
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judgment of the Supreme Court, it is impossible to subscribe to the
view that this Court should in the exercise of its jurisdiction under
Article 226, reject the application under Section 17-B, even though
all the requirements which have been spelt out in the statutory
provision have been fulfilled, by looking into the legality of the
award. That would amount to rewriting legislation and imposing a
condition which Parliament has not imposed. That lies beyond the
jurisdiction of the Court under Article 226. In these circumstances,
the Civil Application would have to be allowed and is accordingly
allowed. Accordingly, the Civil Application is disposed of directing
the employer, ONGC, to pay to the Applicant before the Court the
wages last drawn by him from 21st March, 2007 which is the date
on which the award was stayed by a Learned Single Judge of this
Court. The Civil Application is accordingly disposed of.
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