Jaishree Thakur, J.

An application has been filed by the respondent-workman under Section 17-B of the Industrial Disputes Act, 1947 (for short "the Act of 1947" hereinafter).

2. The petitioner herein filed the present writ petition against the award of the Labour Court, Udaipur directing reinstatement of respondent no.2 with full back wages. After hearing counsels for parties, this Court vide its order dated 11.9.2003 admitted the writ petition and stayed the effect and operation of the impugned award dated 13.1.2003. Since the application filed under section 17-B of the Act was still pending, vide order dated 28.4.2008 it was ordered that the application filed under Section 17-B of the Act would be decided by a composite order on final adjudication of the writ petition. As the respondent-workman was pressing for adjudication upon the application filed under Section 17-B of the Act of 1947 prior to the consideration of the main writ petition, the order dated 28.4.2008 was challenged before the Division Bench in D.B. Civil Special Appeal No. 610/2010. The appeal was allowed vide order dated 20.1.2011 wherein the Division Bench directed that application filed under Section 17-B of the Act to be considered before hearing the case finally and a separate order to be passed in that regard. Consequent thereto, the matter has been posted for disposal of the application filed under Section 17-B of the Act independent of hearing the main writ petition.

3 The application filed seeks compliance of provisions of Section 17-B of the Act of 1947 on the ground that the provision is mandatory in nature and without compliance of the same, the writ petition itself is not maintainable. In that application it is stated that the respondent-workman is not gainfully employed and therefore, the petitioner-employer is required to make payment of wages last drawn by him.

4. The reply to the application has been filed by the petitioners and has been keenly contested. It is submitted that the Labour Court has gone beyond its jurisdiction and has erred in passing the impugned order. It is also submitted that the respondent has filed a false additional affidavit before this Court submitting that he is not gainfully employed. It is also submitted that respondent no.2-workman is a Director in M/s Shivani Marble Private Limited which is having of two marble mining leases at village Oda Bassi Tehsil Gadhi of Banswara District and hence it cannot be said that the respondent-wokman is not gainfully employed. By way of an additional affidavit, the petitioner has placed on record documents in relation to the Company M/s Shivani Marble Private Limited obtained from the Website of Ministry of Corporate Affairs, which would go to show that respondent no.2 is working as a Director since 1994 and that the said company has made a profit of Rs. 32,04,247.45 in the financial year ending on 31.3.2009 and Rs. 32,49,108.65 for the financial year ending on 31.3.2010. It is further contended that both the workman and his wife are holding 70% share in the said company. It is thus argued that the company being closely held and is in the control of respondent-workman therefore it cannot be said that respondent-workman is not gainfully employed.

5. Per contra, counsel for the respondent-workman has laid stress on the provisions of Section 17-B of the Act of 1947 to contend that the Company M/s Shivani Marble Private Limited is running into losses and the respondent-workman is filing Income Tax Return as 'NIL' and argued that to date, no document has been produced on record by the petitioners to show that the respondent no.2 is gainfully employed. Counsel for the respondents has relied upon several cases law reported as (1) Rajinder Kumar Kundra v. Delhi Administration, (1984) 4 SCC 635, (2) DTC v. The Presiding Officer, Labour Court NO.1, Delhi & ors, 2002 II AD (Delhi) 112 and (3) Taj Services Limited v. Industrial Tribunal-1 & ors., 2000 1 LLJ 1012.

6. I have heard the learned c