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8. The order of termination / dismissal is dated 25.7.1985. How much amounts will be received by the respondent on the basis of full wages last drawn is not clear from the record. But, in 1985, probably, the salary was less than Rs. 1000/-, now, if the respondent is to receive such amount under guise of Section 17B of the I.D.Act,1947, the respondent would not be able to maintain the family. Section 17B of the I.D.Act,1947 provides full wages last drawn. Therefore, respondent at the most can get only last drawn salary which probably must be less than Rs. 1000/- looking to the salary at the relevant time. However, it is not reflected from the award that what was the salary received by the respondent from the petitioner. This Court while exercising the power under Article 226 can grant the current wages or minimum wages or enhance the wages with condition to refund the same in case when the employer succeeds in the petition. Therefore, under Section 17B of the I.D.Act,1947, this Court can enhance the wages or direct the petitioner to pay minimum wages but, according to my opinion, it would be futile to do so because the petitioner has initially reinstated the respondent workman in service and for that there was no objection raised by petitioner, and in spite of granting the relief under Section 17B of the I.D.Act,1947, the respondent will receive the wages of the year 1985 by which he may not able to maintain the family of the respondent.
Considering the facts of the present case, the workman was dismissed / discharged / terminated on 18.10.96. Award of reinstatement is dated 31.7.2006. Documents relied upon by learned advocate Japee is prior to date of award. One is dated 25.7.2006 which is an affidavit of the respondent workman. Affidavit of the workman under Section 17B of the ID Act, 1947 is dated 20th March, 2007 and the petitioner has not been able to point out by producing any document that subsequent to the affidavit under Section 17B of the ID Act, 1947 also, petitioner has been working in any establishment or has been earning by doing work in any establishment. In view of that, both the affidavits relied upon by learned Advocate Mr. Japee are relating to the period prior to the date of affidavit of workman under Section 17B of the ID Act, 1947 and also prior to date of Award. As such, it is having no relevancy because after the award, workman is entitled for the benefit under Section 17B of the ID Act, 1947. Criminal case of the year 1999 where the averment has been made on 11.5.1999 has nothing to do with the claim of the workman from the date of award under Section 17B of the ID Act, 1947, therefore, the employer shall have to prove gainful employment from the date of the award onward and not for the period prior to the date of the award. There is no evidence produced by the petitioner which would prove gainful employment of the workman from the date of award onward. So, there is no evidence on record which would prove gainful employment of the workman from the date of award and for subsequent period. Record produced by the original petitioner is not relevant and not giving clear factual position subsequent to the date of award of the labour court 31.7.2006 and the benefit under Section 17B of the ID Act, 1947 has to be given to the workman from the date of the award if the workman contends that he is unemployed, not gainfully employed in any establishment and receiving adequate remuneration and has remained uncontroverted as the employer has not been able to point out from any document that subsequent to the award dated 31.7.2006, workman has been engaged in business or employed in any establishment and is earning adequately therefrom. Therefore, in light of this fact, Section 17B of the ID Act, 1947 is required to be considered. Same is, therefore, reproduced as under:

In the aforesaid two decisions referred to and relied upon by the learned Advocate Mr. Japee, the apex court was not considering matter under Section 17B of the ID Act, 1947 and was not considering the self employment or gainful employment or employment in any establishment in the context of the language employed in Section 17B of the ID Act, 1947 but the apex court considered the question of back wages is to be granted to the concerned employee or not. While examining the question of back wages, there is discretionary power with the court to grant or not to grant back wages if gainful employment is proved by the employer. There is no straight jacket formula for grant of back wages. There is no section or any provision which would control the question of back wages but it is based on the principles laid down by the apex court from time to time. Such discretionary powers are not with the court while examining the matter under Section 17B of the ID Act, 1947, therefore, while examining matter under Section 17B of the ID Act, 1947, court is not having such discretion as it has been controlled by Section 17B of the ID Act, 1947. Therefore, this Court has no discretion to deny benefit under Section 17B of the ID Act, 1947 if the workman has been satisfying the conditions incorporated in Section 17B of the ID Act, 1947 and the employer has been unable to point out that the workman has been employed in any establishment for any period subsequent to the date of award and receiving adequate remuneration.

This Court had an occasion to consider the question of gainful employment while examining the provisions of Section 17B of the ID Act, 1947 in case of University Granth Nirman Board v. Udesinh Togaji Solanki reported in 2003 (1) GLH 626. View taken by this Court has been confirmed by two Division Bench of this Court in case of Bhanulal Khimjibhai Solanki v. Deputy Executive Engineer reported in 2005-I-LLJ 655, & in case of Cyanides and Chemicals Company v. Mansingh Mangalram Varma reported in 2006-II-LLJ 191 and recently it has been considered by this Court in case of M.J. Patel v. Tata Chemicals Ltd. reported in 2008 I CLR 588, where it has been held that the self employment or doing miscellaneous work can not considered to be gainfully employment for denying the benefit Under Section 17B of the I.D. Act 1947. Therefore, considering the aforesaid decisions of this Court relating to Section 17B of the ID Act, 1947 confirmed and affirmed by the Division Bench of this Court in aforesaid two decisions and also in view of the fact that the employer is not able to point out that the workman has been gainfully employed in any establishment subsequent to the date of award by producing any concrete evidence, according to my opinion, the workman herein is entitled for the benefit of Section 17B of the ID Act, 1947 and in view of that, contentions raised by learned Advocate Mr. Japee on behalf of the employer are rejected and workman is entitled for such benefit Under Section 17B of the ID Act, 1947 from the date of the award 31st July 2006 during the pendency of this petition.