S.S. Nijjar, J. - (1.) THIS application seeks a direction to the petitioner for the grant of wages to the workman -respondent No. 2, under Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), during the pendency of the writ petition.
(2.) THE workman -respondent No. 2 was dismissed from service by the petitioner - management on 22.12.1992. A demand notice was served by workman -respondent No. 2 on the petitioner -management on 15.5.1992. The matter was referred to the Labour Court under Section 10(1)(c) of the Act. The dispute was decided by award dated 11.6.1999. The Labour Court set aside the order of dismissal and substituted the same with stoppage of two increments for misconduct. The workman -respondent No. 2 was directed to be reinstated into service with continuity of service and full backwages. The petitioner -management filed the present writ petition which came up for motion hearing on 26.4.2000. Notice of motion was issued for 30.10.2000. Operation of the impugned award was stayed subject to Section 17 -B of the Act. Till date, -workman -respondent has not been paid wages, as according to the learned counsel for the petitioner -management, no affidavit has been filed by the workman -respondent No. 2 stating therein that he has not been gainfully employed.
(3.) MR . Arora, learned counsel appearing for the workman -respondent No. 2 has stated that the workman -respondent No. 2 has stated that the workman -respondent No. 2 has been regularly approaching the petitioner -management for reinstatement. He has neither been paid nor reinstated. He further stated that an affidavit in support of the present application has been filed on 23.3.2001. In this affidavit it is categorically stated as follows : - "That the deponent was dismissed from service by the Management on 22.12.92 and since then, he has been unemployed and has not been able to get any employment in any other establishment during all such period till date and the workman is rather starving after his dismissal from the service." On the basis of the above averments, it is submitted by Mr. Arora that workman -respondent No. 2 is clearly entitled to wages last drawn at the time of his dismissal, In support of the submission, learned counsel has relied on a Division Bench judgment of this Court rendered in C.W.P. No. IS275 of 1997 (M/s. Ajay Enterprises Pvt. Ltd. v. Ganga Ram and an -other), decided on 9.10.1997. It is the undisputed case of both the parties that during the forced idleness, the workman -respondent No. 2 has been running a tea shop for his livelihood. It is also not disputed that the workman -respondent No. 2 has been selling bidis and cigarettes. Mr. Arora has submitted that this cannot be said to be gainful employment as the activity is necessary only to make sure that the workman and his family do not starve. In similar circumstances, a Division Bench in M/s. Ajay Enterprises case (supra) held as follows : - "After termination of service if a workman does some job to earn something in order to keep his body and soul together and save other dependent members of his family from starvation, that by itself cannot be taken as a proof of gainful employment. It is not the case of the management that evidence was led to prove that respondent No. 1 was gainfully employed and that evidence was not considered by the Labour Court. Once termination of service or retrenchment of a workman is proved and Management has failed to prove that he was gainfully employed, as a matter of course a workman is entitled to full backwages".;