Honble ASOPA, J.–Respondent-workman has filed an application u/S. 17-B of the Industrial Disputes Act, 1947 (in short `the Act) wherein he has stated that he is out of employment and is not gainfully employed. The petitioner has filed reply to the said application and stated that after enquiry it was found that the respondent-workman is running a shop of sweets as well as tea stall in Gandhi Chowk, Manoharpur, Panchayat Samiti Shahpura, Distt. Jaipur and is earning Rs. 5000/- per month. The said reply is based on the report of Halka Patwari who has submitted his report on 15.7.2006 to the Vikas Adhikari, Panchayat Samiti Shahpura.

(2). Submission of Mr. Kashyap, counsel for the respondent- workman is that there is no proof of earning income of Rs. 5,000/- from the alleged sweet and tea shop. His further submission is that requirement of Sec. 17-B of the Industrial Disputes Act, 1947 (in short `the Act) is that the workman ``should not be employed in any establishment during such period and an affidavit by such workman has been filed to that effect in such court. He further submits that in the instant case, the respondent workman has categorically submitted that he was out of employment and still he is not gainfully employed in any establishment. Therefore, the respondent-workman is entitled for the benefit of Sec. 17-B of the Act. The provisions of Sec. 17-B of the Act are as follows:

``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 reinscatement 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 under this section for such period or part, as the case may be.

(3). I have gone through the application under Section 17-B of the Act filed by the respondent-workman and its reply submitted by the petitioner and further considered rival submission of the parties in the light of Sec. 17-B of the Act.

(4). In my view, the main object of provisions of Sec. 17 of the Act is to remove economic hardship to a workman where the Award directing his reinstatement is checkmated by the employer by preferring proceedings against such Award before the High Court or the Supreme Court. Legislature never intended that one should be given benefit of Sec. 17-B of the Act only in case he sits idle at home. If someone is doing work to make both ends meet to sustain himself and his family then the same would not be covered by the term `had not been employed in any establishment.

(5). The Supreme Court while deciding the issue of back wages has considered the term `gainfully employed in the case of Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and others reported in (1984 (4) SCC 635) according to which if the workman during the intervening period stayed with his father- in-law as there was no alternative source of earning and during this period, was helping his father-in-law who had coal depot. In the said case the Supreme Court was considering the term `not gainfully employed for the purpose of awarding the back wages and has held that assisting in the business of father-in-law would not amount to the term `gainful employment and has father observed that if this is taken to be gainful employment, then the emplo

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