( 1 ) THE present is an appeal under clause 15 of the Letters Patent by dissatisfied employer against order dated 06. 08. 2003 passed on Civil Application no. 5334 of 2003 in Special Civil Application No. 8729 of 2000, whereunder the learned Single Judge required the appellant to pay wages in accordance with section 17b of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act" ).

( 2 ) THE short facts necessary for disposal of the appeal are that after pronouncement of the award the appellant preferred Special Civil Application no. 8729 of 2000 with Civil Application No. 3234 of 2003 and made a prayer to the court for staying the operation of the award. The Court made an interim order on civil Application No. 3234 of 2003 on 06. 05. 2003 and directed the original petitioner to pay last drawn monthly wages to the workman with effect from 19. 05. 2000 till 30. 04. 2003 within six weeks from the date of receipt of the copy of the order and also directed the employer-appellant to pay regularly such wages under section 17b of the Act every month during pendency and till final disposal of Special Civil Application No. 8729 of 2000.

( 3 ) IT appears that during the pendency of the Special Civil Application the employer could collect certain facts and therefore, made Civil Application no. 5334 of 2003 for recalling/ modifying the order dated 06. 05. 2003. It was submitted by the appellant that the appellant was gainfully employed and was engaged in fabrication and erection work and was carrying on business of a contractor in the name and style of V. K. Enterprise. Therefore, he was not entitled to any order under section 17b of the Act in his favour.

( 4 ) THE application was opposed by the respondent. After hearing both the sides, the learned Single Judge, placing his strong reliance upon his earlier judgement in the matter of University Granth Nirman Board Vs. Udesinh Togaji Solanki, reported in 2003 (1) G. L. H. 626, observed that wages under section 17b of the act can be denied only if the workman is employed with some establishment and is getting adequate remuneration. He accordingly rejected the application. Therefore, the appellant is before this Court.

( 5 ) MR. KEYUR Gandhi, learned counsel for the appellant after taking us through the record submitted that the approach of the learned Single Judge was patently wrong especially in view of the fact that the respondent was gainfully employed and was earning a handsome amount, wages under sec. 17b of the Act could not be awarded. His submission is that if the view taken by the learned Single Judge is approved it would lead to a chaos, because on one side the workman would be self-employed, may earn good fortune and at the same time the employer would be called upon to pay wages under section 17b of the Act.

( 6 ) WE have heard the parties at length.

( 7 ) FOR proper appreciation of the matter it would be necessary to refer to the language employed in section 17b of the Act. Section 17b of the Act reads as under:"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 reinstatement 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 un