GRAM PANCHAYAT MANOHARPUR Vs. ASHOK KUMAR SHARMA

JUDGEMENT

(1.) 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.) THIS Court in Management, Hindustan Machine Tools Ltd. vs. Judge, Labour Court and another (1992 (1) Labour Law Journal 494) has also considered an identical issue that mere carrying of activity to make both ends meet, will not disentile the workman to get benefit of Sec. 17-B of the Act. In this case, the workman was running a tea stall. The court has also considered the issue of `establishment'. Para 7 of the judgment reads as under: " 7. I find force in the contention of the learned counsel for the petitioner that in the application under Sec. 17-B and affidavit filed in support thereof, it has been stated that respondent No. 2 is not employed in any `industrial Establishment'. The requirement of the section is that the workman has to state that he is not gainfully employed in any `establishment'. However, in the rejoinder-affidavit, it has been clearly stated that he is not employed in any tea shop, nor is running the same and earning Rs. 150/- per month and further, that he does not pay any rent, as alleged by the petitioner, regarding the premises in which tea shop is running. It may therefore, be said that even though initially the requirement of Sec. 17-B is not satisfied, the subsequent affidavit has made the matters clear. The contention of the learned counsel for the petitioner is that since the respondent No. 2 is earning Rs. 150/- per day from a tea shop he does not deserve to be given any payment under the provisions of Sec. 17-B of the I. D. Act. THIS contention is not tenable on two grounds. Firstly, as provided in proviso to Sec. 17b of the I. D. Act. it has to be proved by the petitioner to the satisfaction of this Court that the workman has been employed and has been receiving adequate remuneration during any such period or part thereof. In this case, there is an affidavit against affidavit. There is no reason why the affidavit of respondent No. 2 should be discarded and affidavit filed on behalf of the petitioner should be accepted. The petitioner could have obtained certified copy from the concerned department to show that the licence of tea shop is in whose name and could have also obtained information from the landlord as to who pays the rent to him, therefore, there are no documents in support of the bald allegation made in reply to the application, in support of which, an affidavit has been filed. Apart from this I am clear in my mind that what is required under the provisions of Sec. 17b of the I. D. Act is that the workman had not been employed in any establishment. Therefore, what is required is that the workman should be employed from which he receives adequate remuneration to disentitled him to receive any favourable order under provisions of Section 17b of the Act. Secondly, what is emphasised in this Section is that the workman should be employed but if he is carrying on some work to make his both ends meet and fill the belly of his family it will not disentitle him to get the payment as provided under Sec. 17b of the I. D. Act. It may be mentioned that this Section is a beneficial piece of Legislation which has been enacted for the benefit of the workman to see that they do not suffer on account of stay of award, which has been passed in his favour by the Labour Court. The litigation is a time consuming process and the workman cannot be made to suffer for years till the writ petition filed by the employer is disposed of finally. With a view to surmount this difficulty, the provisions of Section 17b were added to the I. D. Act with clear intention to give relief to the workman during the pendency of litigation in the High Court/supreme Court. To bring about the balance of justice, proviso to this has been added, which also authorises the Court not to make payment, if it is satisfied that the workman has been employed and receiving adequate remuneration. If such satisfaction is not there, the order of payment should more or less follow automatically as provided in the section itself. The learned counsel for the petitioner has placed reliance on S. Raju vs. Geoerge Oakes Ltd. (1988 (1) WLN 127 (Madras ). THIS was a case in which the management obtained interim stay of the award and the employee filed miscellaneous petition to vacate the stay and in an affidavit also claimed the monthly salary and allowances till disposal of the writ petition. The High Court while ordering interim stay to be absolute directed that he should be paid Rs. 22,000. 00 within four weeks. The petitioner again filed an application under Section 17b for payment of monthly wages during the pendency of the writ petition. It was held that while considering his petition to vacate the stay order, his claim to monthly wages under Section 17b had also been considered and only thereafter, the sum of Rs. 22,000. 00 was directed to be paid to him. Therefore, the workman cannot again claim that he should also be paid monthly wages till disposal of the writ petition. THIS authority evidently, is of no help to the petitioner. I am also fortified in my opinion by a decision of this Court in Krishi Upaj Mandi Samiti, Dholpur vs. State of Rajasthan and two others (D. B. Civil Writ Petition No. 1081/81 decided on September 23, 1987) in which also, it was held that the employment must be as an employee in an establishment and it would not cover a case where the workman carries on some private activity to make a living, because carrying on such an activity by the workman cannot be regarded as being employed in any establishment. In the present case, in reply to the application filed in para No. 4, it has been mentioned that the respondent No. 2, is employed in a tea shop, whereas in the affidavit filed in support of the application, it is mentioned that he is personally running the tea shop and earning Rs. 150. 00 per day from the same. THIS shows that he has filed an affidavit in support of the reply on behalf of the petitioner that the respondent No. 2 is not employed anywhere. "