Heard learned counsel for the petitioner and learned Senior Advocate Shri O.P. Srivastava assisted by Mr. Mohan Yadav for the opposite party no.2.
Office is directed to number the application filed by the petitioner on 01.4.2019 for taking on record the rejoinder affidavit and application filed for amendment in the writ petition filed on the same day.
List in the next week.
Order Date :- 28.7.2021 mks Court No. - 6 Case :- MISC. SINGLE No. - 23459 of 2018 Petitioner :- Bharat Sanchar Nigam Limited Thru. Its C.G.M. Telecom & Anr.
Respondent :- Central Govt. Industrial Tribunal Cum Labour Court, Lko &Anr Counsel for Petitioner :- Rajeev Kumar Sinha Counsel for Respondent :- Vikas Misra,Jay Prasad Yadav,Virendra Kumar Dubey Hon'ble Mrs. Sangeeta Chandra,J.
This petition has been filed challenging the award dated 16.5.2017 passed by the CGIT, Lucknow. This Court passed interim order on 27.8.2018 that until further order of the Court impugned award shall remain stayed, however, no observation was made with regard to compliance of Section 17-B of the Industrial Disputes Act, 1947.
The contesting respondents represented by Shri O.P. Srivastava, learned Senior Advocate filed an application under Section ? 17 B of the Industrial Disputes Act on 04.01.2019 on which objections were invited of the petitioner though objections were filed. Learned Senior counsel says that the petitioners have not been able to prove that the respondent no.2 is gainfully employed elsewhere, hence, in view of the law settled by the Hon'ble Supreme Court in Civil Appeal No.480/2009 reported in 2009 (121) FLR 183 Kaivalyadham Employees Association vs. Kaivalya Dham SMYM Samity, the employer have to comply with the provisions of Section 17-B in the event an award for reinstatement is stayed by the Hon'ble High Court or Supreme Court. Hon'ble Supreme Court had observed that the employer would be liable to pay to the workmen during the pendency of such proceedings full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule, provided that the workman has not been employed in any establishment during such period. It has been argued that the respondent no.2 has filed an affidavit that he has not been gainfully employed. Petitioner has not been able to prove that respondent no.2 is gainfully employed as well.
Learned counsel for the petitioner has pointed out paragraph 5 of his objection to the application filed under Section ? 17 B of the respondent no.2 and says that respondent no.2 is gainfully employed.
This Court has carefully perused the averment made in para 5 and finds that the petitioners have only stated that the respondent no.2 is working and that he was not unemployed and that he had failed to establish that he remained unemployed. No positive averment has been made with regard to the employment of respondent no.2 in any particular establishment. No documentary proof has been filed to show that the respondent no.2 is working somewhere else. The respondent no.2 in his affidavit says that he remained unemployed till date. The petitioners have controverted the submission by a bald assertion. Such denial which is vague and not supported by documentary evidence, cannot be accepted. The burden of proof lay upon the petitioners to show that the respondent no.2 is an employee as they are asserting that he is not an unemployed person.
The application under Section ? 17 B of Industrial Disputes Act bearing no.1335 of 2019 is allowed.
It is the case of the petitioner that the respondent no.2 was working earlier as a helper. He shall be given the salary of the helper along with other allowances as are admissible to all other helpers so employed by the petitioners month to month, during the pendency of this petition till further orders of this Court.
Order Date :- 28.7.2021 mks