Affidavit of Non-Employment Shifts Burden to Employer to Prove Gainful Employment and Adequate Remuneration Under Section 17-B.

The Respondents/Workmen (Kuldeep and Rameshwar Pandey) were employed by the Petitioner/Management as Assistant/Pawala Machine Men since the early 1990s.

They alleged illegal termination of services in February 2009 without statutory benefits.

The Labour Court, via Award dated 17.05.2016, held the termination illegal and directed reinstatement with 50% back wages.

The Petitioner challenged this Award in the High Court, which stayed the Award's operation on 01.05.2017.

During the pendency of the writ, the Workmen filed applications under Section 17-B of the Industrial Disputes Act, 1947, claiming unemployment and seeking minimum wages.

The Petitioner resisted the applications, citing an absence of employee-employer documentation, the sealing of the establishment in 2008, and a nine-year delay in filing the Section 17-B applications.

1. Whether the Respondents/Workmen are entitled to relief under Section 17-B of the Industrial Disputes Act, 1947, during the pendency of the writ petition, independent of the merits of the main case.

Section 17-B of the Industrial Disputes Act, 1947, which mandates the payment of "full wages last drawn" to a workman during the pendency of proceedings in higher courts against an award of reinstatement, provided the workman files an affidavit of non-employment.

Dena Bank v. Kiritikumar T. Patel (1999), establishing that the High Court cannot deny this statutory benefit once conditions are met and may grant higher amounts like minimum wages.

Food Craft Institute v. Rameshwar Sharma (2006) and Surjeet Singh v. Dominant Systems Pvt. Ltd. (2023) were used to confirm that the burden of proof shifts to the employer to prove gainful employment once the workman’s affidavit is filed, and that transient or self-employment does not disentitle a worker.

The Court observed that the Workmen discharged their initial burden by filing affidavits affirming their continued unemployment and readiness to work.

The Petitioner failed to provide any documentary evidence to rebut these claims, merely offering oral assertions and pointing to a decade-old cross-examination where the Workmen admitted to irregular daily-wage earnings of Rs. 250–300.

The Court clarified that "intermittent" or "transient" earnings do not constitute "adequate remuneration" or "gainful employment" under the proviso to Section 17-B.

The Court maintained that the merits of the industrial dispute (such as the existence of the employer-employee relationship) are irrelevant at the stage of deciding Section 17-B applications.

Regarding the nine-year delay in filing the applications, the Court determined that while delay does not forfeit the right to relief, it is a critical factor in determining the date from which arrears should be paid.

Due to the unexplained nine-year delay in filing the applications, the Court directed the Petitioner to pay wages computed on the basis of minimum wages for "skilled workers" from the date of filing the applications (2025) rather than the date of the Award or the Writ Petition; Petitioner was ordered to clear arrears within three months and continue monthly payments, subject to the Workmen filing updated affidavits and an undertaking to refund if the Management succeeds.