Judgment S.G. Shah, J. 1. Rule. Mr. Varun Patel, Ld. Advocate waives service of rule for the respondent. The applicant being original respondent in the main petition, has prayed for an order to direct the opponent company to pay wages under section 17-B of the Industrial Disputes Act (for short 'the Act') from the date of the award impugned in the main petition till the final disposal of the petition. 2. On perusal of the entire record, the factual details transpired are as under: 2.1. The applicant herein was dismissed from services on 1/9/2001 after holding departmental inquiry because of his unauthorized absence from the work place so as to carry out his personal business and other acts of insubordination. 2.2. The Reference [LCA] No. 1456/2001 was filed for reinstatement with full back wages. On 25/6/2007 such Reference was allowed directing reinstatement with 75% back wages. 2.3. On 25/9/2007 main petition was filed wherein on 13/12/2007 notice was issued and ad-interim stay of the award was granted till next date of hearing being 25/1/2008. 2.4. The order to comply with the provisions of section 17-B was passed first time on 10/3/2008 while admitting the main petition and confirming the stay granted earlier. Such order specifically discloses that it is open for the petitioner to file reply against affidavit of the workman to clarify that whether workman is gainfully employed or not and thereafter the Court will examine the issue whether the workman is entitled to the benefits of section 17-B of the Act or not. Thereby, it is clear that though interim relief granted earlier on 13/12/2007 was confirmed subject to compliance of section 17-B of the Act, practically there is no order to make payment under section 17-B of the Act when there is categorical disclosure that the Court will examine the issue after filing of the reply by the employer that whether workman is entitled to the benefits or not. 3. Thereby, firstly it is for the employee to file an affidavit that he is not gainfully employed anywhere, as provided under section 17-B of the Act. 3. Thereby, firstly it is for the employee to file an affidavit that he is not gainfully employed anywhere, as provided under section 17-B of the Act. For the purpose, section 17-B would be relevant, which provides for payment of full wages to workman pending proceedings in higher Courts, confirming that if employer prefers any proceedings against an award of reinstatement of any workman, the employer shall be liable to pay such workman, during the period of pendency of such proceedings in the High Court or 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. The proviso to section 17-B extends the discretion in favor of the High Court and Supreme Court to restrict the payment of wages as aforesaid for such period or part thereof when employee has received adequate remuneration. 4. There are, as usual, different opinion and interpretation of such provisions inasmuch as few judgments are confirming that wages under section 17-B is payable from the date of award and not from the date when the writ petition or appeal is filed; whereas some judgments are confirming that benefits under section 17-B can be claimed only from the date of filing of the application and not from the date of the award. 5. 5. In light of the above position of statutory provisions, if we peruse the record, it becomes clear that the employer has filed an affidavit on 5/4/2008 stating therein that the workman is a self employed person running a shop having telephone connection and, therefore, he is not entitled to wages as per section 17-B. It is further contended that their factory has been shifted from Vatva to Baval in Haryana State as per notice dated 28/9/2007 and therefore, the petitioner has to join his services as reinstatement at Baval in Haryana, but he is not interested to join service at Haryana because of his gainful business activity and he is simply interested to get benefits of section 17-B. Since the employer has already offered the work at Baval where their factory is situated, this application has initially been disposed of by order dated 10/7/2009 by a detailed order making it clear that it would be open to the workman to be reinstated at Baval at the place which is indicated in the affidavit-in-reply and if in case he is not inclined to join, then compliance with the provisions of section 17-B of the Act is complete and the workman cannot find any fault with the employer and he would not be entitled to any wages under section 17-B of the Act. Therefore, this civil application has come to an end on that day and there is no reason to entertain it further. However, rightly or wrongly it has been dragged till date and the respondent has argued that he is entitled to the benefits under section 17-B of the Act. 6. For the purpose, the petitioner is relying upon the decision rendered in the case of Workmen v. Hindustan Vegetable Oils Corporation Ltd., (2000) 9 SCC 534 : LNIND 2000 SC 641 : 2000-II-LLJ-792 wherein the Hon'ble Supreme Court has held that an application under section 17-B of the Act is to be decided expeditiously before the principal petition is disposed of and should not be kept pending for deciding with the principal petition. In addition to such decision, the petitioner is also relying upon several other judgments, which are as under: I. Baroda Rayon Employees Ekta Union v. Baroda Rayon Corporation Ltd., 2012 JX [Gujarat]-0-1390 : LNIND 2011 GUJ 15438 wherein it is held that in case of non-compliance of section 17-B of the Act, it being breach of statutory provisions of law, it would disqualify the employer to continue with the petition. II. Dena Bank v. Kiritkumar T. Patel AIR 1998 SC 511 : (1999) 2 SCC 106 : LNIND 1997 SC 1455 : 1998-I-LLJ-1 wherein the Hon'ble Supreme Court has held that full wages which the workman was entitled to draw in pursuance of the award and the implementation of which is suspended during the pendency of the proceedings, is to be paid under section 17-B of the Act since its object is to relieve the hardship to certain extent that is caused to the workman due to delay in the implementation of the award during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. III. Taj Services Limited v. Industrial Tribunal, 1999 82 DLT 378 : LNIND 1999 DEL 871 : 2000-I-LLJ-1012 wherein the Delhi High Court has held that onus is on the employer to prove to the satisfaction of the Court that the workman had been so employed and had been receiving adequate remuneration. If we peruse the entire judgment, the Delhi High Court has bifurcated the period for which employee was engaged in some earning activity and otherwise for considering the payment under section 17-B of the Act. IV. Bhanulal Khimjibhai Solanki v. Deputy Executive Engineer, 2004 (3) G.L.H. 375 : LNIND 2004 GUJ 319 : 2005-I-LLJ-655, Cyanides and Chemicals Co. v. Mansingh Mangalram Varma, 2005 (3) G.L.H. 439 : LNIND 2005 GUJ 329 and Vallabhbhai Premabhai Gohil v. Divisional Controller, G.S.R.T.C. in Civil Application No. 6669 of 2005 : LNIND 2005 GUJ 4703 wherein this Court has held that earnings out of any activity of his own would not be "employment in an establishment" so as to deny the benefits under section 17-B of the Act. V. M.J. Patel v. Tata Chemicals Ltd., LNIND 2007 GUJ 431 : 2008-II-LLJ-345, wherein it is held that the earning by workman from investment in shares cannot amount to remuneration, so also the payment received by workman towards Union activities for conducting cases of workmen cannot amount as remuneration under section 17-B of the Act and that statutory mandate is in favor of the workman and, therefore, contrary is required to be proved by employer. Thereby, plea of the company to deny benefits of under section 17-B was rejected. VI. Dharmendra Udhyog v. Kamlesh Vishwanath Ram Momainagar rendered in Special Civil Application No. 14040/2011 and in Excel Apparels Exports Pvt. Ltd. v. Devabhai K. Maheshwari rendered in S.C.A. No. 11161/2008, wherein it is held that in case of non-compliance of order under section 17-B, the main petition needs to be dismissed and restoration cannot be allowed without compliance of the provisions of section 17-B. 7. As against that, employee is relying upon the following decisions: I. North East Karnataka Road Transport Corporation v. M. Nagangouda, 2007 (1) SCALE 125 : AIR 2007 SC 973 : (2007) 10 SCC 765 : LNIND 2007 SC 27 : (2007) 2 MLJ 452 : 2007-I-LLJ-1013, wherein the Hon'ble Supreme Court has considered the phrase "gainful employment" and held that when the respondent was earning some amount from agricultural pursuits to maintain himself, the Labor Court was not justified in holding that it could not be treated as engaged in gainful employment. It is further held that "gainful employment" would also include self-employment wherefrom income is generated. Income either from employment in an establishment or from self-employment merely differentiates the sources from which income is generated, the end use being the same. II. Kamla Nehru Memorial Hospital v. Vinod Kumar, 2006 SCC [L and S] 154 : AIR 2006 SC 584 : (2006) 1 SCC 498 : LNIND 2005 SC 951 : 2006-I-LLJ-711 wherein while considering "adequate remuneration", award under section 17-B was quashed and set aside holding that there is ample evidence that the workman had been receiving "adequate remuneration" during pendency of the proceedings. III. Rang Pharmaceutical Industry v. Ramprakash R. Upadhyay rendered in L.P.A. No. 531/2008 on 12/5/2011, wherein Division Bench allowed the appeal by the employer and thereby quashed and set aside the order under section 17B passed by the Ld. III. Rang Pharmaceutical Industry v. Ramprakash R. Upadhyay rendered in L.P.A. No. 531/2008 on 12/5/2011, wherein Division Bench allowed the appeal by the employer and thereby quashed and set aside the order under section 17B passed by the Ld. Single Judge holding that where the award has been stayed by the High Court, the workman has to file an affidavit before the Court in compliance with the provisions of section 17-B of the Act that he was not in gainful employment so that he may be granted benefits under section 17-B of the Act and such benefits could be granted from the date of affidavit filed in the Court and not from the date of the award. 8. Therefore, the position of law is now very clear from the above referred decisions wherein judgments by the Ld. Single Judge of this Court relied upon by the employee is not much useful when there are judgments of the Hon'ble Supreme Court and Division Bench in Letters Patent Appeal. So far as judgments of the Hon'ble Supreme Court are concerned, even if we consider that there are different views, in fact there is no judgment by the Hon'ble Supreme Court which confirms the view in the case of Bhanulal Khimjibhai Solanki v. Deputy Executive Engineer (supra) and Cyanides and Chemicals Co. v. Mansingh Mangalram Varma (supra) and other judgments of the High Court that earning activity out of any activity of his own would not be "employment in an establishment" so as to deny benefits under section 17-B of the Act. The Hon'ble Supreme Court in the cases of Kamla Nehru Memorial Hospital v. Vinod Kumar (supra) and North East Karnataka Road Transport Corporation v. M. Nagangouda (supra) made it clear that any earning by any means would certainly curtail the benefits under section 17-B of the Act. 9. The Hon'ble Supreme Court in the cases of Kamla Nehru Memorial Hospital v. Vinod Kumar (supra) and North East Karnataka Road Transport Corporation v. M. Nagangouda (supra) made it clear that any earning by any means would certainly curtail the benefits under section 17-B of the Act. 9. In light of the above position of law, if we peruse the factual details, it becomes clear that pursuant to the judgment in the case of Rang Pharmaceutical Industry v. Ramprakash R. Upadhyay (supra), the applicant is entitled for the benefits only from the date of affidavit and so far as affidavits of both the sides are concerned, there are rival submissions and prima-facie it becomes clear that the applicant employee is doing some earning activity since he is having shop, it may be in the name of his wife, but photographs on record show that he is actually working there. But in any case, the basic thing is now clear that the factory of the employer has been shifted to some other place and that employer has not denied reinstatement and called upon the applicant to join the duty at such place and refusal to join the duty by the applicant-employee disentitles him to get the benefits under section 17-B of the Act. Detailed evidence regarding earning activity of the employee is on record. However, discussion of such evidence is avoided at this stage since main petition is yet to be decided. However, considering over-all record, prima-facie it becomes clear that the applicant is doing gainful work on his own and it can be certainly treated as receiving adequate remuneration and thereby I am of the opinion that proviso to section 17-B is attracted for denying the benefits under such section at present. Therefore, this civil application is rejected. However, it would be open for the applicant to apply for such benefits as and when he feels that he is not employed or not earning anything since proviso to section 17-B permits such course. In view of the above, the application is rejected. Rule is discharged.