NINAN THOMAS Vs. OIL AND NATURAL GAS

JUDGEMENT

(1.) The civil application has been taken out by the workman 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 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 U.P. State Bridge Corporation Ltd. Vs. Maharashtra General Kamgar Union, 2008 (2) Bom.C.R. 619, 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 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: