J U D G M E N T

SATISH CHANDRA SHARMA, C.J.

1. Section-17B of the Industrial Disputes Act, 19471 enjoins the employer to grant full wages to an employee, who has secured an award in his favour, during the pendency of the proceedings before the High Court or the Supreme Court. The pre-condition for such grant is that the employee must not be gainfully employed during the said period. The impugned order

1 Hereinafter referred as “the 1947 Act” or “the Act”

granted 50% of the back wages from the date of the award. The appellant before us prays for the grant of full wages or full minimum wages, whichever is higher, for the entire period from the date of award as he was not gainfully employed during the said period.

2. Shorn of unnecessary details, the controversy between the worker and the management began in the year 2015. Later, on 20.02.2017, the appellant was dismissed from employment. Upon failure of the attempt at conciliation, the matter was referred to the Labour Court at Dwarka, New Delhi for testing the legality of the dismissal order. By its order dated 27.01.2018, the Labour Court passed an award in favour of the appellant and held the termination to be unjustified. The Court further ordered reinstatement of the appellant with continuity of service and 25% of the last drawn wages from the date of termination. Thereafter, a writ was preferred by the respondent management before this Court. Vide order dated 26.07.2018, the operation of the award dated 27.01.2018 was stayed by this Court. Thereafter, the appellant also preferred a writ petition seeking modification of the award to the effect that full back wages be granted to the appellant instead of 25%, as ordered in the award. Additionally, the appellant also moved an application under Section-17B of the 1947 Act for the grant of wages during the pendency of proceedings before this Court.

3. Ld. Single Judge, while adjudicating upon the application under Section-17B, examined the contested fact of gainful employment of the appellant. The management had contended that the appellant was working at a shop under the name of “Satpal Halwai” and was receiving adequate remuneration for the same. Thus, the management contended that the appellant was gainfully employed and was ineligible for the grant of wages under Section 17-B of the Act. The appellant, on the other hand, contended that the said shop was being run by his father for the last ten years. Further, he tried to demonstrate that he was merely helping his father in his business and was not at all gainfully employed as contemplated under Section-17B. To substantiate the contention, the appellant also placed on record an affidavit on behalf of his father corroborating that the said shop was his individual business and the appellant was merely lending a helping hand to his father, being a part of the family and being out of job. Additionally, the appellant also placed on record a certificate issued by the temple committee wherein the said shop was located, a letter written by the village sarpanch as well as an affidavit from neighbouring shop owners to advance three important points –

i. That the appellant was not “employed” at the said shop and was not earning adequate remuneration as contemplated under Section-17B;

ii. That the said shop was allotted to his father and was being run by him for the last ten years;

iii. That he was merely lending a helping hand in his father’s business and his presence at the shop ought not to be construed as gainful employment for defeating his right under Section-17B.

4. To buttress the submission, the appellant relied upon two decisions, namely – Icon Printing Process (P) Ltd. v. Govt. of NCT of Delhi2 and

2 2007 (4) Ad (Delhi)

Rajinder Kumar Kindra v. Delhi Administration3, wherein engagement of a worker in order to meet the daily sustenance needs of his family or extending help to the father in father’s shop, was not held to be gainful employment.

5. Per contra, the respondent advanced that the