ASOPA, J. - (1.) RESPONDENT-workman has filed an application u/s. 17-B of the Industrial Disputes Act, 1947 (in short `the Act') wherein he has stated that he is out of employment and is not gainfully employed. The petitioner has filed reply to the said application and stated that after enquiry it was found that the respondent-workman is running a shop of sweets as well as tea stall in Gandhi Chowk, Manoharpur, Panchayat Samiti Shahpura, Distt. Jaipur and is earning Rs. 5000/- per month. The said reply is based on the report of Halka Patwari who has submitted his report on 15. 7. 2006 to the Vikas Adhikari, Panchayat Samiti Shahpura.
(2.) SUBMISSION of Mr. Kashyap, counsel for the respondent- workman is that there is no proof of earning income of Rs. 5,000/- from the alleged sweet and tea shop. His further submission is that requirement of Sec. 17-B of the Industrial Disputes Act, 1947 (in short `the Act') is that the workman "should not be employed in any establishment during such period" and an affidavit by such workman has been filed to that effect in such court. He further submits that in the instant case, the respondent workman has categorically submitted that he was out of employment and still he is not gainfully employed in any establishment. Therefore, the respondent-workman is entitled for the benefit of Sec. 17-B of the Act. The provisions of Sec. 17-B of the Act are as follows: " 17b. Payment of full wages to workman pending proceedings in higher courts. Where in any case, a Labour Court, Tribunal or National Tribunal by its award directs reinscatement 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, 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 had been filed to that effect in such court: PROVIDED that where it is proved to the satisfaction of the High Court or the Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part thereof the court shall order that no wages shall be payable under this section for such period or part, as the case may be. " I have gone through the application under Section 17-B of the Act filed by the respondent-workman and its reply submitted by the petitioner and further considered rival submission of the parties in the light of Sec. 17-B of the Act. In my view, the main object of provisions of Sec. 17 of the Act is to remove economic hardship to a workman where the Award directing his reinstatement is checkmated by the employer by preferring proceedings against such Award before the High Court or the Supreme Court. Legislature never intended that one should be given benefit of Sec. 17-B of the Act only in case he sits idle at home. If someone is doing work to make both ends meet to sustain himself and his family then the same would not be covered by the term `had not been employed in any establishment. ' The Supreme Court while deciding the issue of back wages has considered the term `gainfully employed' in the case of Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and others reported in (1984 (4) SCC 635) according to which if the workman during the intervening period stayed with his father- in-law as there was no alternative source of earning and during this period, was helping his father-in-law who had coal depot. In the said case the Supreme Court was considering the term `not gainfully employed' for the purpose of awarding the back wages and has held that assisting in the business of father-in-law would not amount to the term `gainful employment' and has father observed that if this is taken to be gainful employment, then the employee in order to keep his body and soul, together had taken to begging and that would as well be a gainful employment. Para 21 of the judgment reads as under: " 21. It was next contended on behalf of the appellant that reinstatement with full back-wages be awarded to him. Mr. P. K. Jain, learned counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. In support of this submission Mr. Jain pointed out that the appellant in his cross-examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping father-in-law. Tara Chand who owns a coal depot, and that he and the members of his family lived with his father-in- law and that he had no alternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul, together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back-wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law Tara Chand who had a coal-depot, it cannot be said that the appellant was gainfully employed. This was the only evidence in support of the submission that during his forced absence from service he was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for back-wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back wages and all consequential benefits. " Supreme Court has also deprecated the practice of the employers to contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would be gainful employment.
(3.) THIS Court in Management, Hindustan Machine Tools Ltd. vs. Judge, Labour Court and another (1992 (1) Labour Law Journal 494) has also considered an identical issue that mere carrying of activity to make both ends meet, will not disentile the workman to get benefit of Sec. 17-B of the Act. In this case, the workman was running a tea stall. The court has also considered the issue of `establishment'. Para 7 of the judgment reads as under: " 7. I find force in the contention of the learned counsel for the petitioner that in the application under Sec. 17-B and affidavit filed in support thereof, it has been stated that respondent No. 2 is not employed in any `industrial Establishment'. The requirement of the section is that the workman has to state that he is not gainfully employed in any `establishment'. However, in the rejoinder-affidavit, it has been clearly stated that he is not employed in any tea shop, nor is running the same and earning Rs. 150/- per month and further, that he does not pay any rent, as alleged by the petitioner, regarding the premises in which tea shop is running. It may therefore, be said that even though initially the requirement of Sec. 17-B is not satisfied, the subsequent affidavit has made the matters clear. The contention of the learned counsel for the petitioner is that since the respondent No. 2 is earning Rs. 150/- per day from a tea shop he does not deserve to be given any payment under the provisions of Sec. 17-B of the I. D. Act. THIS contention is not tenable on two grounds. Firstly, as provided in proviso to Sec. 17b of the I. D. Act. it has to be proved by the petitioner to the satisfaction of this Court that the workman has been employed and has been receiving adequate remuneration during any such period or part thereof. In this case, there is an affidavit against affidavit. There is no reason why the affidavit of respondent No. 2 should be discarded and affidavit filed on behalf of the petitioner should be accepted. The petitioner could have obtained certified copy from the concerned department to show that the licence of tea shop is in whose name and could have also obtained information from the landlord as to who pays the rent to him, therefore, there are no documents in support of the bald allegation made in reply to the application, in support of which, an affidavit has been filed. Apart from this I am clear in my mind that what is required under the provisions of Sec. 17b of the I. D. Act is that the workman had not been employed in any establishment. Therefore, what is required is that the workman should be employed from which he receives adequate remuneration to disentitled him to receive any favourable order under provisions of Section 17b of the Act. Secondly, what is emphasised in this Section is that the workman should be employed but if he is carrying on some work to make his both ends meet and fill the belly of his family it will not disentitle him to get the payment as provided under Sec. 17b of the I. D. Act. It may be mentioned that this Section is a beneficial piece of Legislation which has been enacted for the benefit of the workman to see that they do not suffer on account of stay of award, which has been passed in his favour by the Labour Court. The litigation is a time consuming process and the workman cannot be made to suffer for years till the writ petition filed by the employer is disposed of finally. With a view to surmount this difficulty, the provisions of Section 17b were added to the I. D. Act with clear intention to give relief to the workman during the pendency of litigation in the High Court/supreme Court. To bring about the balance of justice, proviso to this has been added, which also authorises the Court not to make payment, if it is satisfied that the workman has been employed and receiving adequate remuneration. If such satisfaction is not there, the order of payment should more or less follow automatically as provided in the section itself. The learned counsel for the petitioner has placed reliance on S. Raju vs. Geoerge Oakes Ltd. (1988 (1) WLN 127 (Madras ). THIS was a case in which the management obtained interim stay of the award and the employee filed miscellaneous petition to vacate the stay and in an affidavit also claimed the monthly salary and allowances till disposal of the writ petition. The High Court while ordering interim stay to be absolute directed that he should be paid Rs. 22,000. 00 within four weeks. The petitioner again filed an application under Section 17b for payment of monthly wages during the pendency of the writ petition. It was held that while considering his petition to vacate the stay order, his claim to monthly wages under Section 17b had also been considered and only thereafter, the sum of Rs. 22,000. 00 was directed to be paid to him. Therefore, the workman cannot again claim that he should also be paid monthly wages till disposal of the writ petition. THIS authority evidently, is of no help to the petitioner. I am also fortified in my opinion by a decision of this Court in Krishi Upaj Mandi Samiti, Dholpur vs. State of Rajasthan and two others (D. B. Civil Writ Petition No. 1081/81 decided on September 23, 1987) in which also, it was held that the employment must be as an employee in an establishment and it would not cover a case where the workman carries on some private activity to make a living, because carrying on such an activity by the workman cannot be regarded as being employed in any establishment. In the present case, in reply to the application filed in para No. 4, it has been mentioned that the respondent No. 2, is employed in a tea shop, whereas in the affidavit filed in support of the application, it is mentioned that he is personally running the tea shop and earning Rs. 150. 00 per day from the same. THIS shows that he has filed an affidavit in support of the reply on behalf of the petitioner that the respondent No. 2 is not employed anywhere. " As regards contention of the Dy. GA that the workman was earning Rs. 5,000/- per month as per the report of the Halka Patwari but from the report it does not appear that the Halka Patwari has taken statements of adjacent shop keepers or any other regular customers. Although said report of the Patwari has been mechanically verified and attested by the Sarpanch and one Class IV servant but that in my view is not sufficient. In my view, the term `gainful employment' as discussed by the Hon'ble Supreme Court can be applied while interpreting the term `had not been employed in any establishment' and receive adequate remuneration' therefore, the intention of the Legislature is not that one should live destitute life and then only he will be entitled to the benefit of Sec. 17-B of the Act. Even assuming that the respondent workman was earning less than Rs. 5,000/- then also the self small business started and continued by an employee to make both the ends meet cannot be equated with the term had not been employed in any establishment' for the reasons stated herein above. Otherwise also, the requirement of the proviso is that out of the said employment one must "receive adequate remuneration". Both the requirements of Sec. 17-B of the Act for disentitlement are not fulfilled in the instant case. For entitlement of the benefit of Sec. 17-B of the Act, the following requirements are to be fulfilled: (i) There is an Award directing reinstatement of the workman and the employer prefers any proceeding against such Award in a High Court or the Supreme Court. (ii) The workman had not been employed in any establishment during such period; (iii) An affidavit by such workman has been filed to that effect in such Court; and (iv) Proof to the satisfaction of the High Court or the Supreme Court that such workman had not been employed and had not been receiving adequate remuneration during such period or part thereof. ;