JUDGMENT
R.K. Abichandani, J.
1. This application of the workman for being paid wages last drawn as per the provisions of Section 17-B of the Industrial Disputes Act, 1947, has been referred to the Division Bench pursuant to the order made by the learned Single Judge on 27.4.2004 on this application, because, the learned Single Judge was of the view that the income derived by the applicant from an independent work such as by plying autorickshaw, hawking or vending fruits, vegetables etc., ought to be considered while deciding whether payment of last drawn wages should be ordered during pendency of the proceedings in the High Court. The learned Single Judge expressed his disagreement with the decision of the Court in University Granth Nirman Board Vs. U.T. Solanki, reported in 2003 (1) G.L.H. 626, in which it was held that, income from such sources of independent engagement would not be considered to be an income from gainful employment of the workman.
2. The Labour Court, Junagadh made an award in favour of the applicant on 31st March, 2003, directing that the present respondent should reinstate the applicant in service within 30 days from the publication of the award and pay backwages at the rate of 20% from the date of termination till he was reinstated. That award has been challenged by the respondent in Special Civil Application No. 12046 of 2003. Rule was issued on the petition on 18.8.2003 and ad-interim relief in terms of para-18(B) was granted which had the effect of staying implementation of the award. The applicant, thereupon, presented this application under Section 17-B of the Act stating in para-5 of the application that he has been out of job and without income since termination of his service from 26.9.88 and that despite his best efforts, he could not get employment or income. In para-9 it is stated that the applicant is hand-to-mouth and deserves to be granted benefit of Section 17-B. In para-11 of the application, it is specifically stated that the applicant was not gainfully employed elsewhere and was not earning any remuneration from the date of the award till the date of the making of the application which is the material period for the purpose of Section 17-B.
3. It has been contended on behalf of the applicant that the statement made in para-11 of the application that, the applicant was not gainfully employed during the period from the date of the award till the making of the application, has not been controverted. It was further submitted that any income arising independent of any employment cannot be computed while deciding whether benefit of Section 17-B should be given to the workman. Reliance was placed on the decision of the learned Single Judge of this Court in University Granth Nirman Board Vs. U.T. Solanki, reported in 23 (1) GLH 626 in which the learned Single Judge, while considering the question of entitlement of a workman under Section 17-B of the Act held in paragraphs 18 & 20 of the judgment as under:-
“18. ….If this fact is not established by the employer before this Court, then other amount except the adequate remuneration out of employment received by the workman but any other amount received by using his personal skill or experience that cannot be considered to be the gainful employment. Therefore, even in facts of this case, the allegations against the workman that he is driving auto rickshaw registered in his name. Even if the workman is driving the auto rickshaw and getting some amount by way of fare from the passengers, looking to Section 17-B of the Act, according to my opinion, such amount that may be received by the workman by driving the auto rickshaw, cannot be said to be gainful employment as per the meaning of Section 17-B of the I.D.Act, 1947. Therefore, the meaning of gainful employment requires to be understood in light of the provisions and language used in Section 17-B of the I.D.Act, 1947. The language is very clear that if the workman is employed in any establishment during such period and receiving adequate remuneration during any such period and the part thereof, while remaining in employment then that amount can be taken into consideration for deciding application under Section 17-B of the I.D. Act. The other amount that may be earned by using personal skill by doing labour and miscellaneous work or by receiving some amount in the form of interest, such amount and the like amount from rent income of the properties that may be received by the workman during such interregnum period pending petition before the High Court cannot be said to be an emoluments generated from the employment nor the same can be termed as adequate remuneration from the employment and, therefore, such amount cannot be said to be gainful employment and the same requires to be excluded from the definition of “gainful employment” because ultimately during pendency of the petition, the workman and his family is required to be survived and for that, they should have to do some miscellaneous work so that they may receive some amount and by that they can maintain the family and, therefore, that cannot be termed as gainful employment and this is not the object of the Section 17-B of the I.D.Act. The object of Section 17-B of the Act is clear that the workman may not get a double benefit being the employee in any other establishment and receiving adequate remuneration from the employer and even though claiming last drawn wages from the old employer and that is how Section 17-B of the Act has been enacted with a clear object that if the workman remains unemployed during such period, then workman is entitled to last drawn wages inclusive of maintenance allowance admissible to him under any rule. Therefore, unemployment means not employee of any establishment that does not mean that not to receive any amount during such period. Thus, both these things are entirely different and both have to be separately required to be understood while deciding the application under Section 17-B of the I.D.Act.
xxx xxx xxx xxx
20. I have considered at length the scope and ambit of Section 17-B of the Industrial Disputes Act, 1947 while keeping in view of the object and reasons of Section 17-B of the Act. I have also kept in view the language used in Section 17-B of the I.D.Act, 1947. I have also considered the various decisions of the Apex Court and High Court. According to my opinion, any amount of income received by the workman during the pending proceedings from any source like (1) to receive rental income from the property; (2) to receive income from the properties of the family; (3) to receive interest or dividend on the investments made; (4) to receive income from the agricultural field; (5) to receive income from the family members; (6) to receive income from doing any kind of miscellaneous work like hawking and selling of fruits, vegetables, tea stall, stall of pan galla or any kind of work by way of self-employment; (7) income received by driving auto rickshaw or taxi or any other vehicle and the amount received by way of begging, Bhiksha Vrutti, such income cannot be considered to be the gainful employment of the workman and such income has to be excluded from the zone of consideration while considering an application under Section 17-B of the I.D. Act, 1947.”
4. The learned counsel appearing for the opponent submitted that it was admitted by the applicant before the Labour Court that he was plying autorickshaw and was earning about Rs. 1800/- p.m. He referred to the statement made to this effect in the cross-examination of the applicant. It was submitted that not only the applicant was himself plying an autorickshaw, he was also owning two other autorickshaws and was earning Rs. 1800/- per month. He submitted that at the rate of the wages last drawn, the applicant would be entitled to get about Rs. 630/- per month. Therefore, since he was earning three times the amount of what he would have otherwise been entitled to under Section 17-B, there was no warrant for giving benefit of Section 17-B to the applicant. The learned counsel relied upon the reasoning of the learned Single Judge contained in the order dated 27.4.2004 by which, while disagreeing with the ratio of the decision in University Granth Nirman Board (supra), the learned Single Judge has given reasons for his prima-facie view that income generated from any kind of work by way of self-employment should be considered while deciding an application under Section 17-B of the Act. Reliance was placed on the decision of the High Court of Jharkhand in Employers Vs. POCGIT, in which, in the context of Section 17-B of the Act, it was held in para-13 of the judgment that the said provision was not attracted in the case before the Court, because, it involved regularisation of the contract labourers.
5. The learned Single Judge expressed an opinion that so far as the contingencies referred to at points nos. 1 to 5 of para-20 of the judgment in University Granth Nirman Board (supra) were concerned, they stand on a different footing, because, for such income, personal engagement of the workman is not required. However, so far as the income referred to in points nos. 6 and 7 was concerned, namely the income from doing any kind of miscellaneous work like hawking and selling of fruits, vegetables, running of a tea-stall or pan-galla or doing any kind of work by way of self-employment or received by driving autorickshaw or taxi or any other vehicle, such income cannot be generated unless there was a personal engagement of the workman concerned. It was observed that as regards begging (bhiksha vrutti), the matter can be viewed differently having regard to social perspective and humanitarian considerations and legal prohibitions. It was then observed;
“… but if the income received from hawking, selling of fruits, vegetable, tea stall, stall of pan galla or any kind of work by way of self-employment or income received by driving rickshaw or taxi or any other vehicle are to be not at all considered for even quantifying the wages to be paid as per sec.17-B of the I.D.Act, then in that case the consequential effect would be that even though the workman concerned is earning income from such engagement more than last wages drawn, then also he would be entitled to receive last wages as an additional amount and such amount in that case would lose its efficacy for survival. Moreover, if the income generated from any kind of work by way of self-employment or income generated from driving any other vehicle is to be excluded, it may lead to a wider interpretation namely running of business by personal means can be said to be self-employment, professional engagement can also be said to be self-employment and the plying of rickshaw or taxi or any other vehicle can be included in such self-employment. The amount received by way of such income can also be said to be self-employment, which even though may generate much more huge income than the last wages drawn on even sometimes may be more than the regular wages. If such an interpretation is accepted qua contingencies at Sl.No. 6 and 7 barring begging/bhiksha vruti, then in that case, in my view, it may frustrate the object behind the provisions of section 17-B of the I.D. Act. Section 17-B of the I.D. Act is essentially with a view to see that the workman may survive pending the litigation and is in the nature of subsistence allowance. After the income is generated by the contingency referred in Sl. No. 6 and 7 which is more than the last wages drawn, then in my prima facie view, the workman would not be entitled to any wages under section 17-B of the I.D. Act and since it can be said that the engagement is such which does not require the payment of wages under section 17-B by way of subsistence allowances or allowance to survive. On the contrary if the payment is ordered, it will be an additional income only on account of pendency of the litigation to the workman concerned though otherwise the workman has sufficient source of income for his survival by his personal engagement qua contingencies at Sl. No. 6 and 7. In view of the aforesaid reasons, it would be just and proper if the present application is considered by the Division Bench of this Court so as to finally conclude the issue.”
6. Section 17-B which falls for our consideration reads as under:-
“17-B. 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 under this section for such period or part, as the case may be.”
7.1 The words ” if the workman is not employed in any establishment” in Section 17-B lay down the basic parameter for entitlement of a workman to claim full wages last drawn from his employer, when the proceedings preferred by his employer are pending in the High Court or the Supreme Court. It is only when the Court is satisfied that such workman had been employed in any establishment and had been receiving adequate remuneration during any such period or part thereof that the wages for that period shall not be payable. When a workman engages during the period of his termination in any activity of his own from which he earns his livelihood, he is not at that time “employed in any establishment”. The word “employed” in the expression “if the workman is not employed in any establishment” means the state of being employed in which a person works for another (i.e. the establishment) in exchange for financial compensation i.e. remuneration. The expressions “had been employed” and “had been receiving adequate remuneration” in the later part of Section 17-B are used in the context of employment of such workman in any establishment and the remuneration received by the workman from such establishment.
7.2 When a person gainfully works without being “employed in any establishment” and earns his livelihood from his work, independent of being so employed, he does not “receive” any “remuneration” by being employed in any establishment. Thus, any earnings of the workman during “such period” which are not remuneration received by the workman by being employed in any establishment, are wholly irrelevant while deciding his entitlement under Section 17-B to get full wages last drawn for “such period” i.e. the period of pendency of the proceedings in the High Court. It is, therefore, unnecessary to count any sources of earnings of what is “self-employment”, i.e. engaging oneself in work for earning without any employment in any establishment. The Section does not envisage any exercise by the Court to consider any source of income of the workman other than the remuneration received by him on being employed in any establishment. The contrary view expressed by the learned Single Judge referring the matter, to the effect that the income generated from any kind of miscellaneous work such as hawking etc. by way of self-employment or plying an autorickshaw or rickshaw which is more than the wage drawn should be considered while deciding the entitlement of the workman under Section 17-B, therefore, cannot be accepted.
8. It is evident that the applicant was not, during the pendency of the proceedings in the High Court, employed in any establishment nor was he drawing any remuneration from such employment in any establishment. He is, therefore, entitled to be paid full wages drawn by him inclusive of any maintenance allowance admissible to him under any Rule as contemplated by Section 17-B of the Act. The opponent is, therefore, directed to forthwith pay wages in compliance with the provisions of Section 17-B of the Act. Reference stands answered accordingly. Rule is made absolute with no order as to costs.