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2004 Supreme(Guj) 435
Gujarat High Court
Judgename :D.H.WAGHELA, R.K.Abichandani
BHANULAL KHIMJIBHAI SOLANKI - Appellant
Versus
DEPUTY EXECUTIVE ENGINEER - Respondent
C.A.3077 of 2004
Decided On : 07/21/2004
Headnote:
Industrial Disputes Act, 1947 - Section 17-B - Application of the workman for being paid wages last drawn as per the provisions of Section 17-B of the Industrial Disputes Act has been referred to the Division Bench pursuant to the order made by the learned Single Judge on this application because the learned Single Judge was of the view that the income derived by the applicant from an independent work such as by plying auto rickshaw hawking or vending fruits vegetables ought to be considered while deciding whether payment of last drawn wages should be ordered during pendency of the proceedings in the High court - Learned Single Judge expressed his disagreement with the decision of the Court in University reported in (1) G. L. H. in which it was held that income from such sources of independent engagement would not be considered to be an income from gainful employment of the workman - Present respondent should reinstate the applicant in service within 30 days from the publication of the award and pay back wages at the rate of from the date of termination till he was reinstated - Award has been challenged by the respondent in Special civil Application - Rule was issued on the petition on and ad-interim relief in terms of para was granted which had the effect of staying implementation of the award - Applicant thereupon presented this application under Section of the Act stating in para of the application that he has been out of job and without income since termination of his service from and that despite his best efforts he could not get employment or income -Held, Court is satisfied that such workman had been employed in any establishment and had been receiving adequate remuneration during any such period or part thereof that the wages for that period shall not be payable. When a workman engages during the period of his termination in any activity of his own from which he earns his livelihood he is not at that time "employed in any establishment means the state of being employed in which a person works for another (i. e. the establishment) in exchange for financial compensation i. e. remuneration - Expressions had been employed and "had been receiving adequate remuneration" in the later part of Section are used in the context of employment of such workman in any establishment and the remuneration received by the workman from such establishment. when a person gainfully works without being "employed in any establishment" and earns his livelihood from his work, independent of being so employed, he does not "receive" any "remuneration" by being employed in any establishment any earnings of the workman during which are not remuneration received by the workman by being employed in any establishment are wholly irrelevant while deciding his entitlement under section 17-B to get full wages last drawn for "such period" i. e. the period of pendency of the proceedings in the High Court unnecessary to count any sources of earnings of what is engaging oneself in work for earning without any employment in any establishment - Section does not envisage any exercise by the Court to consider any source of income of the workman other than the remuneration received by him on being employed in any establishment - Contrary view expressed by the learned Single Judge referring the matter, to the effect that the income generated from any kind of miscellaneous work such as hawking etc. by way of self-employment or plying an or rickshaw which is more than the wage drawn should be considered while deciding the entitlement of the workman under Section therefore cannot be accepted - Court employed in any establishment nor was he drawing any remuneration from such employment in any establishment. He is, therefore, entitled to be paid full wages drawn by him inclusive of any maintenance allowance admissible to him under any Rule as contemplated by Section 17-B of the act - Opponent is therefore directed to forthwith pay wages in compliance with the provisions of Section of the Act - Reference stands answered accordingly.
( 1 ) THIS application of the workman for being paid wages last drawn as per the provisions of Section 17-B of the Industrial Disputes Act, 1947, has been referred to the Division Bench pursuant to the order made by the learned Single Judge on 27. 4. 2004 on this application, because, the learned Single Judge was of the view that the income derived by the applicant from an independent work such as by plying autorickshaw, hawking or vending fruits, vegetables etc. , ought to be considered while deciding whether payment of last drawn wages should be ordered during pendency of the proceedings in the High court. The learned Single Judge expressed his disagreement with the decision of the Court in University granth Nirman Board Vs. U. T. Solanki, reported in 2003 (1) G. L. H. 626, in which it was held that, income from such sources of independent engagement would not be considered to be an income from gainful employment of the workman.
( 2 ) THE Labour Court, Junagadh made an award in favour of the applicant on 31st March, 2003, directing that the present respondent should reinstate the applicant in service within 30 days from the publication of the award and pay backwages at the rate of 20% from the date of termination till he was reinstated. That award has been challenged by the respondent in Special civil Application No. 12046 of 2003. Rule was issued on the petition on 18. 8. 2003 and ad-interim relief in terms of para-18 (B) was granted which had the effect of staying implementation of the award. The applicant, thereupon, presented this application under Section 17-B of the Act stating in para-5 of the application that he has been out of job and without income since termination of his service from 26. 9. 88 and that despite his best efforts, he could not get employment or income. In para-9 it is stated that the applicant is hand-to-mouth and deserves to be granted benefit of Section 17-B. In para-11 of the application, it is specifically stated that the applicant was not gainfully employed elsewhere and was not earning any remuneration from the date of the award till the date of the making of the application which is the material period for the purpose of Section 17-B.
( 3 ) IT has been contended on behalf of the applicant that the statement made in para-11 of the application that, the applicant was not gainfully employed during the period from the date of the award till the making of the application, has not been controverted. It was further submitted that any income arising independent of any employment cannot be computed while deciding whether benefit of Section 17-B should be given to the workman. Reliance was placed on the decision of the learned Single judge of this Court in University Granth Nirman Board Vs. U. T. Solanki, reported in 23 (1) GLH 626 in which the learned Single Judge, while considering the question of entitlement of a workman under Section 17-B of the Act held in paragraphs 18 and 20 of the judgment as under:-"18. . . . . 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 17-B 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 17-B 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 17-B of the I. D. Act, 1947. The language is very clear that if the workman is employ
