BHANULAL KHIMJIBHAI SOLANKI Vs. DEPUTY EXECUTIVE ENGINEER

JUDGEMENT

(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:-