Workman’s Right to Section 17-B Wages Subsists Premised on Affidavit of Unemployment Absent Proof of Gainful Employment

The Respondents (Workmen), Kuldeep and Rameshwar Pandey, were employed by the Petitioner as Assistant Machine Men and alleged their services were illegally terminated in February 2009.

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 before the High Court, which stayed the operation of the Award on 01.05.2017.

Nine years after the writ petition was filed, the Respondents moved applications under Section 17-B of the Industrial Disputes Act, 1947, seeking wages during the pendency of the litigation, supported by affidavits affirming their unemployment.

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

Section 17-B of the Industrial Disputes Act, 1947, which mandates the payment of last drawn wages 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.

The court relied on Food Craft Institute v. Rameshwar Sharma and Dena Bank v. Kiritikumar T. Patel to establish that Section 17-B is a beneficial provision where the court cannot deny relief once statutory conditions are met.

Surjeet Singh v. Dominant Systems Pvt. Limited was cited to clarify that the burden of proof shifts to the employer to prove "gainful employment" once the workman files an affidavit.

The court found that the Respondents satisfied the four statutory requirements of Section 17-B: a reinstatement award exists, a challenge is pending in the High Court, and affidavits of non-employment were filed.

The Petitioner’s primary defenses—the lack of an employer-employee relationship and the intermittent daily earnings of the workmen—were rejected.

The court noted that intermittent, irregular earnings (₹250-300/day) do not constitute "gainful employment" or "adequate remuneration" under the law.

Regarding the nine-year delay in filing the application, the court held that while delay does not disentitle the workman to the underlying right, it is a relevant factor in determining the commencement date of payments.

Consequently, the court decided to grant wages not from the date of the award, but from the date of filing the Section 17-B applications.

The Petitioner was directed to pay wages computed based on the minimum wages for a skilled worker (rather than just last drawn wages) from the date of filing the applications (2025) until the disposal of the petition or superannuation.

Arrears must be cleared within three months, and future monthly payments must be made by the 10th of each month, subject to the workmen filing updated undertakings to refund the amount should the Petitioner ultimately succeed in the writ petition.