1. 1. Heard learned counsel for the parties on the application under Section 17-B of Industrial Disputes Act, 1947.

2. In this case, operation of impugned award was stayed on 19-07-2001 which is as follows :

"Issue notice to the respondents. Rule returnable on 16-8-2001.

The operation, implementation and execution of the award dated 20-11-99 in LCR case No. 779/98 of labour court shall remain stayed till returnable date."

3. On 15-07-2009, time was granted to learned counsel for the petitioner to submit whether own business for earning livelihood comes within the category of 'gainful employment' or not.

4. Today, no citation has been given by the counsel for the petitioner. However, it has been submitted in para-1 of the reply to additional para that the respondent workman is doing his own business and always busy in his own business and earning his livelihood by doing business by regularly sitting in Sharma General Stores situated at Chhabni Neem Ka Thana, Sikar. Thus, he is gainfully employed. It is further submitted that he often goes to Delhi for purchasing and selling commodities and also earning from the same and no license to disclose the business of Sharma General Store has been produced.

5. Submission of learned counsel for respondent-workman is that doing his own business to sustain himself and his family cannot be said to be a gainful employment and further the respondent workman was claiming of benefit of Section 17-B of the Act of 1947 is not expected to sit idle at home.I have gone through the record and further considered the rival submissions of the parties.

6. The workman fulfils all other requirements of Section 17-B of the Act of 1947 and now the dispute is only with regard to gainful employment.

7. This court in a case title Gram Panchayat Monoharpur v. Ashok Kumar Sharma reported in 2007 (115) FLR 718 after considering the Supreme Court judgment reported in 1984 (49) FLR 424 : AIR 1984 SC 1805 (SC) Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Ors. has held that neither the legislation nor while interpreting section 17-B, the court intended that workman should live life of destitute to claim benefit of section 17-B. The relevant para Nos. 6, 7 and 10 of the judgment rendered in the case of Gram Panchayat, Manoharpur (supra) are as follows :

"6. This Court in Management, Hindustan Machine Tools Ltd. v. Judge, Labour Court and another (1992 (1) LLJ 494) has also considered an identical issue that mere carrying of activity to make both ends meet, will not disentitle the workman to get benefit of Section 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 Section 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 Section 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 Section 17-B of the I.D.Act. This contention is not tenable on two grounds. Firstly, as provided in proviso to Section 17-B of the I.D.Act, it has to be proved by the petitioner to the satisfaction of this C