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13. Conjoin reading of the Objects and Reasons of Section 17B of the Industrial Disputes Act, 1947 and the Section itself makes it clear that it is a piece of social welfare and beneficial legislation enacted with a view to ameliorate the hardships caused to the workmen who are deprived of the benefit of reinstatement awarded by the Industrial Tribunals or the Labour Courts on setting aside the wrongful and unfair termination of service by the employers. This section requires employer to pay to the workman directed to be reinstated full wages last drawn by him inclusive of any maintenance allowance admissible to him under any rules where the employer prefers any proceedings against such award of reinstatement of a Tribunal or the Labour Court in a High Court or the Supreme Court. During the pendency of such proceedings, however, the liability of the employer will be extinguished if the workman has been employed in any establishment during such period. These provisions, therefore, specifically requires the workman to file an affidavit before the concerned Court to the effect that he has not been employed in any establishment during such period. Therefore, the employer has to prove to the satisfaction of the concerned Court that the workman had been employed in any establishment and receiving adequate remuneration. If the employer fails to establish this fact before the concerned Court, then, it is the duty and legal obligation on the part of the employer by way of statutory provision to pay the last drawn monthly wages inclusive of any maintenance allowance to the workman during the pendency of such proceedings. In such a situation, if the workman is having any other income without any employment in any establishment, that cannot be considered as a gainful employment, looking to the language employed by the legislature while enacting the said Section 17B of the Industrial Disputes Act, 1947. Suppose, after the dismissal of the workman concerned from the service and till the date of the award of reinstatement by the concerned Labour Court or the Industrial Tribunal as the case may be, if the workman concerned is doing some miscellaneous petty work or job or any work of self-employment such as opening of the lari galla for pan-beedi or tea stall or the work as a hawker or any such other petty work of any kind and receives any amount or income from such work, the income received from such work cannot be taken into account while deciding an application under Section 17B of the Industrial Disputes Act, 1947 because the language employed in Section 17B of the Industrial Disputes Act while enacting the said provisions is very much clear from the proviso to the said section 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. Thus, in view of the proviso to Section 17B of the said Act, if the workman is receiving adequate remuneration by way employment in any establishment, that is the only thing which can be taken into consideration and on that basis, relief under Section 17B can be denied to the workman concerned. In other cases like self-employment, driving of auto rickshaw, opening of the pan galla, tea stall, hawking, receiving income of rent amount from his own property, income from the agricultural field, income of the wife, son, daughter, meaning thereby, income from the family members, selling of fruits and vegetables by larry, doing the work of carpenter, mason or such work of any nature, if the workman is receiving any income, that cannot be taken into consideration as a gainful employment of the workman for denying the statutory benefits available to the workman under Section 17B of the Industrial Disputes Act, 1947. This aspect has been taken into account by some of our High Courts and the view has been taken that unless and until the employer has been able to satisfy the Court concerned that the workman has been employed in any establishment and has been receiving adequate remuneration, statutory benefit which is available under Section 17B of the Industrial Disputes Act, 1947 cannot be denied to the workman.

This aspect has also been examined by the Rajasthan High Court in case of Management, Hindustan Machine Tools Ltd. v. Labour Court, reported in 1992 (1) LLJ 494. In Para 7 of the said decision, it has been observed by the Rajasthan High Court as under :

"7. I find force in the contention of the learned Counsel for the petitioner that in the application under Section 17B 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 Section 17B 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 Section 17B of the I. D. Act. This contention is not tenable on two grounds. Firstly, as provided in proviso to Section 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 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 the 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 Section 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 disentitle him to receive any favourable order under provisions of Section 17B of the Act. Secondly, what is emphasized 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 Section 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 v. George Oakes Ltd., 1988 (1) WLN 127 (Mad.). 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/- within four weeks. The petitioner again filed an application under Section 17B for payment of monthly wages during the pendency of the writ petition.

16.4 In entire Section 17B of the Act, four words would assume importance. One is 'employ'; second is 'in any establishment'; third is 'adequate' and fourth "remuneration". Thus for disenting the workman to claim the benefits under Section 17B of the I. D. Act, the remuneration received by workman concerned must be adequate.

16.5 Therefore, in view of the use of the aforesaid words in the section itself and also in view of the dictionary meaning of the aforesaid terms and words, if the workman has been employed in any establishment and has been receiving remuneration which is adequate, from the another employment, only then, such income can be taken into consideration while considering an application under Section 17B of the Industrial Disputes Act, 1947 and not otherwise. Except that, any kind of income from any other source just to keep the body and the soul together and not to starve with family received by the workman concerned cannot be considered as a gainful employment or remuneration from any establishment. Therefore, such income has to be excluded from the purview of Section 17B of the Industrial Disputes Act, 1947. Something which is earned by the workman for his survival during the pendency of the proceedings cannot be taken into consideration while considering an application under Section 17B of the Act. While considering such an application, miserable condition of the workman concerned who has been dismissed from service before years together has to be taken into consideration and it has also to be kept in mind that the workman has been claiming nothing but the wages last drawn by him before years together. First, he was dismissed from service; then, he raised industrial dispute before machinery under the Act and then the matter was referred to the Labour Court for adjudication by the State Government, and thereafter, the Labour Court has examined the reference and for that, normally, period of at. least 5 to 10 years will be consumed for deciding such reference looking to the back log and shortage of Judges and such other factors and if the award of reinstatement is made in favour of the workman concerned, thereafter, then, the employer while challenging such an award of reinstatement before the High Court requests for stay of the award of reinstatement. In such a situation, the workman should remain out of job for a period of more than five to ten years in which he shall have to live in the society waiting for the end of the proceedings before the Labour Court. Therefore, just to live in the society and to maintain the family during the pendency of reference, any kind of work which is available as per his experience is done by him and by doing that work, he is able to get some income for the sake of survival of himself as well as his family, and if such income has been received by him without employment in any establishment is considered to be his gainful employment, then, it would result into a premium to the employer for passing illegal order of termination. If the workman has lived with his family and his existence has been maintained by doing some work and on that basis, a presumption of income being gainful employment, if it is drawn and the wages under Section 17B are denied on such ground, then, what is the loss or damage caused to the employer for passing illegal order of termination? There is apparently no loss or damage to the employer in such a situation. If the employer has passed illegal order of termination as declared by the concerned Industrial Tribunal or the Labour Court, then, he shall have to pay back wages to the workman and required to restore the original situation and position of the workman concerned with all consequential benefits as directed by the concerned Tribunal or the Labour Court. Therefore, according to my opinion, any kind of income during the period either before the Labour Court or before the High Court in the writ petition has been received by the workman concerned cannot be considered to be gainful employment of the workman except that he had been employed in any establishment and received adequate remuneration from the other employer. If that is not so, then, any kind of income cannot be considered to be the gainful employment for denying back wages of interim period or denying statutory benefits which are available under Section 17B of the Industrial Disputes Act, 1947. If such income is considered as gainful employment and if such income is considered as adequate remuneration, then, it would amount to giving a premium to the wrong-doer employer. This is not the aim and object of Section 17B of the Act and this is not the language employed in Section 17B of the Act. The language in Section 17B is very clear and it is required to be understood in its right spirit keeping in view the objects and reasons thereof.

We, therefore, see no justification to interfere with the learned single Judge's order. Appeal rejected."

18. In view of these observations made by the Apex Court and various High Courts as referred to above, meaning of "Gainful Employment" is required to be clarified. What is the meaning of gainful employment as normally used in the High Courts, looking to the bare reading of Section 17B of the I. D. Act, it is very clear that the workman is entitled to last drawn full wages 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, meaning thereby, such employee must not have been employed with any establishment. Similarly, in proviso also, it is made clear that such workman had been employed and had been receiving adequate remuneration during such period or part thereof. It also suggests that the workman should have employed and receiving adequate remuneration but not any such amount by employment must be getting adequate remuneration means salary or "wages" from the employer. Therefore, if the workman during the pendency of the petition where reinstatement has been stayed by this Court and thereafter if the workman is doing any labour work, miscellaneous work and thereby receiving any income from any source, namely agricultural income, interest part or any other activities wherein the workman is getting some amount without being employed in any establishment and not receiving any remuneration from the employer, then such amount that may be received by the workman during such period which is not received by him on the basis of the employment in any establishment or as remuneration from the employer, then said amount which has been received by the workman doing any miscellaneous work, such as labour work, interest amount and income from the agricultural field or any other activities wherein the workman is getting some amount even by way of rent, that cannot be considered to be gainful employment of the workman concerned because Section 17B is very clear that employer shall have to prove that the workman is employed in any establishment and receiving "adequate remuneration" from the employer. If this fact is not established by the employer before this Court, then other amount except the adequate remuneration out of employment received by the workman but any other amount received by using his personal skill or experience that cannot be considered to be the gainful employment. Therefore, even in facts of this case, the allegations against the workman that he is driving auto rickshaw registered in his name. Even if the workman is driving the auto rickshaw and getting some amount by way of fare from the passengers, looking to Section 17B of the Act, according to my opinion, such amount that may be received by the workman by driving the auto rickshaw, cannot be said to be gainful employment as per the meaning of Section 17B of the I. D. Act, 1947. Therefore, the meaning of gainful employment requires to be understood in light of the provisions and language used in Section 17B of the I. D. Act, 1947. The language is very clear that if the workman is employed in any establishment during such period and receiving adequate remuneration during any such period and the part thereof, while remaining in employment then that amount can be taken into consideration for deciding application under Section 17B of the I. D. Act. The other amount that may be earned by using personal skill by doing labour and miscellaneous work or by receiving some amount in the form of interest, such amount and the like amount from rent income of the properties that may be received by the workman during such interregnum period pending petition before the High Court cannot be said to be an emoluments generated from the employment nor the same can be termed as adequate remuneration from the employment, and therefore, such amount cannot be said to be gainful employment and the same requires to be excluded from the definition of "gainful employment" because ultimately during pendency of the petition, the workman and his family is required to be survived and for that, they should have to do some miscellaneous work so that they may receive some amount and by that they can maintain the family, and therefore, that cannot be termed as gainful employment and this is not the object of the Section 17B of the I. D. Act. The object of Section 17B of the Act is clear that the workman may not get a double benefit being the employee in any other establishment and receiving adequate remuneration from the employer and even though claiming last drawn wages from the old employer and that is how Section 17B of the Act has been enacted with a clear object that if the workman remains unemployed during such period, then workman is entitled to last drawn wages inclusive of maintenance allowance admissible to him under any rule. Therefore, unemployment means not employee of any establishment that does not mean that not to receive any amount during such period. Thus, both these things are entirely different and both have to be separately required to be understood while deciding the application under Section 17B of the I. D. Act.