Sk Mitra v. Asst General Manager State Bank of India

SANJIV KHANNA, J sv/dk

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 25.04.2011 + LPA 378/2011 SK MITRA .... APPELLANT Through: Mr.Piyush Sharma, Advocate versus ASST GENERAL MANAGER STATE BANK OF INDIA .... RESPONDENT Through: Mr.Vipin Pillai, Advocate CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ The present appeal is directed against the order dated 11.1.2011 passed in CM No.6449/2006 in W.P.(C) No.11776/2005 whereby the learned Single Judge had passed the following order: "This is an application under Section 17-B of the Industrial Disputes Act, 1947 by the workman/ respondent no.1. The workman is said to be not gainfully employed since 1994 but the application has been filed in the year 2006 i.e. after 12 years. The respondent no.1/workman is therefore directed to file his statements of bank accounts from 1994 till date or in any case, as soon as reasonably possible after 1994 till date to show whether he was having other sources of income during this period from 1994 till 2006. The workman must also file his Election Identity Card/Ration Card, telephone numbers, both landline and mobile, if any, and the payments which have been made with respect to the telephones during this period of 12 years. The respondent/workman must also state that the period during where he resided from 1994 to 2006 i.e in his own premises or he was living on rent. If the premises belonged to the workman, the workman must also state that what is the extent of premises and whether any part of the premises were in any manner let out/licenced out for earning any income therefrom. An affidavit incorporating the aforesaid terms and documents be filed within a period of six weeks from today. List this CM for further consideration on 21st April, 2011. " 2. It is submitted by Mr.Piyush Sharma, learned counsel for the appellant, that the writ petition was filed in the year 2005 and thereafter he immediately filed the application under Section 17-B of the Industrial Disputes Act, 1947 (for short "the Act") and, therefore, the learned Single has fallen into grave error by opining that the application has been filed after 12 years. Learned counsel for the petitioner submitted that in the scheme of things of Section17-B of the Act such inquiry is not necessary. It is also contended by him that the affidavit as required in terms of Section 17-B of the Act was filed clearly stating that the respondent-workman was not gainfully employed and when there was only a bald denial, the directions which have been issued by the learned Single Judge would come in the compartment of making a roving enquiry which is not permissible in law. 3. Resisting the aforesaid submissions, it is contended by Mr.Rajiv Kapur that the respondent has been gainfully employed as is understood within the parameters of Section 17-B of the Act and, therefore, he is not entitled to the benefit of the said section and by finding out the veracity of the assertions, the learned Single Judge has appositely issued the directions in the order impugned. 4. To appreciate the submissions raised at the Bar, we think it appropriate to refer to certain citations in the field. In Dena Bank v. Ghanshyam, (2001) 5 SCC 169 while dealing with the basic concept involved under Section 17-B of the Act their Lordships have opined thus: "8. Section 17-B provides that where the employer prefers any proceedings against an award directing reinstatement of any workman, the employer shall be liable to pay such workman, during the period of pendency of such proceeding in the High Court or the Supreme Court, full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rule if the workman had not been employed in any establishment during such period and an affidavit by such workman