JUDGMENT 1. 1. Heard learned counsel for the parties on the application under Section 17-B of Industrial Disputes Act, 1947. 2. In this case, operation of impugned award was stayed on 19-07-2001 which is as follows : "Issue notice to the respondents. Rule returnable on 16-8-2001. The operation, implementation and execution of the award dated 20-11-99 in LCR case No. 779/98 of labour court shall remain stayed till returnable date." 3. On 15-07-2009, time was granted to learned counsel for the petitioner to submit whether own business for earning livelihood comes within the category of 'gainful employment' or not. 4. Today, no citation has been given by the counsel for the petitioner. However, it has been submitted in para-1 of the reply to additional para that the respondent workman is doing his own business and always busy in his own business and earning his livelihood by doing business by regularly sitting in Sharma General Stores situated at Chhabni Neem Ka Thana, Sikar. Thus, he is gainfully employed. It is further submitted that he often goes to Delhi for purchasing and selling commodities and also earning from the same and no license to disclose the business of Sharma General Store has been produced. 5. Submission of learned counsel for respondent-workman is that doing his own business to sustain himself and his family cannot be said to be a gainful employment and further the respondent workman was claiming of benefit of Section 17-B of the Act of 1947 is not expected to sit idle at home.I have gone through the record and further considered the rival submissions of the parties. 6. The workman fulfils all other requirements of Section 17-B of the Act of 1947 and now the dispute is only with regard to gainful employment. 7. This court in a case title Gram Panchayat Monoharpur v. Ashok Kumar Sharma reported in 2007 (115) FLR 718 after considering the Supreme Court judgment reported in 1984 (49) FLR 424 : AIR 1984 SC 1805 (SC) Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour) and Ors. has held that neither the legislation nor while interpreting section 17-B, the court intended that workman should live life of destitute to claim benefit of section 17-B. The relevant para Nos. 6, 7 and 10 of the judgment rendered in the case of Gram Panchayat, Manoharpur (supra) are as follows : "6. has held that neither the legislation nor while interpreting section 17-B, the court intended that workman should live life of destitute to claim benefit of section 17-B. The relevant para Nos. 6, 7 and 10 of the judgment rendered in the case of Gram Panchayat, Manoharpur (supra) are as follows : "6. This Court in Management, Hindustan Machine Tools Ltd. v. Judge, Labour Court and another ( 1992 (1) LLJ 494 ) has also considered an identical issue that mere carrying of activity to make both ends meet, will not disentitle the workman to get benefit of Section 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 Section 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 Section 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 Section 17-B of the I.D.Act. This contention is not tenable on two grounds. Firstly, as provided in proviso to Section 17-B 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. 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 Section 17-B 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 disentitle him to receive any favourable order under provisions of Section 17-B 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 Section 17-B 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 17-B 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. 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 v. 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 17-B 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 17-B 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 v. 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. 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." (Emphasis supplied) (7) As regards contention of the Dy. GA that the workman was earning Rs. 5,000/- per month as per the report of the Halka Patwari but from the report it does not appear that the Halka Patwari has taken statements of adjacent shop keepers or any other regular customers. Although said report of the Patwari has been mechanically verified and attested by the Sarpanch and one Class IV servant but that in my view is not sufficient. In my view, the term 'gainful employment' as discussed by the Hon'ble Supreme Court can be applied while interpreting the term 'had not been employed in any establishment' and receive adequate remuneration' therefore, the intention of the Legislature is not that one should live destitute life and then only he will be entitled to the benefit of Section 17-B of the Act. Even assuming that the respondent-workman was earning less than Rs. 5,000/- then also the self small business started and continued by an employee to make both the ends meet cannot be equated with the term 'had not been employed in any establishment' for the reasons stated herein above. Otherwise also, the requirement of the proviso is that out of the said employment one must "receive adequate remu- neration". Both the requirements of Section 17-B of the Act for disentitlement are not fulfilled in the instant case. (10) As regards fulfilment of requirement of Section 17-B on the part of respondent-workman of not gainfully employed in any establishment and not receiving any remuneration from the said establishment has been fulfilled in this case and the respondent-workman is entitled to wages last drawn which shall not be less than the statutory minimum wages from the date of Award and the same shall be paid within a period of two months from today. The arrears of wages shall include wages for the months of February and March, 2007 and thereafter, he will be paid monthly wages by 7th of each succeeding month. However, I keep it open to the petitioner to take back the respondent-workman on duty subject to the decision of the writ petition and the workman is paid arrears of wages from the date of termination to the date of said reinstatement." 8. In my view, since the petitioner has not been able to produce the shop licence of the Sharma General Store and further not disclose the earning from the said shop. Otherwise also, doing own business is not covered by the term of gainful employment as the same is being done for earning the livelihood and he was compelled to do so during unemployment to maintain himself and his family. 9. Accordingly, I direct the petitioner to make payment of arrears of wages last drawn from the date of award till date within a period of three months and the same last wages drawn be paid to the workman by 7th of each month. 10. The application under Section 17-B of the Act of 1947 is disposed of.Order accordingly. *******