RAFIQ, J. - (1.) APPLICATION under Section 17-B of the Industrial Disputes At preferred by the employee, respondent No. 1, has been put up for consideration. Prayer is opposed on behalf of the appellant, Union of India, on the ground that the employee has remanded out of employment since 1988 and apparently has earned his livelihood during this period, and therefore, he is not entitled to wages under section 17-B of the Act. In course of hearing it was submitted that the respondent may be put to strict proof of the fact that he was not gainfully employed elsewhere. The submissions are in the teeth of statute and therefore cannot be accepted.
(2.) SECTION 17-B of the Industrial Disputes Act lays down that where in any case a Labour Court etc. by its award directs instatement of any workman and the employer prefers any proceedings against such award in a High Court or the Supreme Court the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or the Supreme Court, full wages last drawn by him if the workman had not been employed in any establishment during such period and an affidavit is filed to that effect in the Court. On a plain reading it is manifest that the scope of inquiry, if any, under section 17-B is limited to the question as to whether the employee has been gainfully employed during the period of pendency of proceeding in the High Court or the Supreme Court or not. It is enough, so far as the workman is concerned, that he files an affidavit that he is not gainfully employed elsewhere. On such affidavit being filed the onus shifts on the employer to prove that he is gainfully employed. No person can be asked to prove the non existence of a fact. The employee cannot be called upon to prove that he is not gainfully employed. That is why filing of affidavit to that effect is treated as sufficient. No such stand has been taken on behalf of the appellant that the employee is gainfully employed elsewhere. The only objection is that he is out of employment for about two decades and if he could make his both ends meet during this period, there is no jurisdiction to pass any order for payment of wages. The submission, as observed above is in teeth of the specific mandate of section 17-B which lays down in clear terms that in the event of the award of Labour Court etc. directing reinstatement being challenged in the High Court or the Supreme Court, the employer `shall' be liable to pay full wages last drawn by him. The fact that the employee has survived for two decades does not mean that he is disentitled to seek direction for payment of last wages, for such argument proceeds on the assumption that if a person has been able to survive, he is not in need of money in the shape of wages which he is entitled to. Surely, if he dies in the mean time there may be no occasion to pass any such order in his favour. In these premises, the application is allowed. The appellant is directed to pay wages last drawn by the respondent in terms of section 17-B of the Act since from the date of institution of proceeding in the High Court i. e. 26. 8. 1996. Appeal may be listed for admission in due course. .;