ORDER : 1. This Court on 10.12.2019 had passed the following order:- “1. This is a petition preferred under Articles 226 & 227 of the Constitution of India, being aggrieved by the judgment and order dated 4/7/2018 passed by the respondent No.3 in Recovery Application No.54 of 2016 for following main prayer:- “(9)(B). To quash and set aside impugned Judgment, dt.04.07.2018, Ann-G, passed by the Respondent No.3 in Recovery Application No.54/2016 and to allow the Recovery Application No.54/16 and to direct the Respondent No.1 and 2 to pay an amount of wages of Rs.5,92,480=20 ps. as per minimum wage for the period from 01-04-05 to 31-08-16 as claimed in the said Recovery Application.” 2. Brief facts leading to the present petition are as follows :- 3. The petitioner is working as a daily-wager with the respondent No.2 since 1986. His services came to be terminated on 1/7/1991 and therefore, he raised an Industrial Dispute in Reference (LCS) No.77 of 1994, which came to be allowed by Judgment and Award dated 31/3/2005 directing the respondent Nos.1 and 2 to reinstate the petitioner with continuity of service and 25% of the back-wages. 4. The respondent No.2 had reinstated the petitioner by order dated 21/2/2017. The respondent Nos.1 and 2 since did not pay the amount of wages from the date of Award till the date of reinstatement, the petitioner filed Recovery Application No.54 of 2016 for wages for an amount of Rs.5,92,480=20 ps. for the period from 01/04/2005 to 31/08/2016. The Court, after hearing both the sides, rejected the said application on the ground that no Affidavit had been filed stating that the petitioner had not been gainfully employed during the entire period of 25 years. 5. There was no adjudication in this respect. However, the rejection has come essentially on this ground alone. This Court issued Notice for final disposal. 6. The respondent has appeared and resisted this application. 7. This Court has heard the learned advocates on both the sides. 8. During the course of the hearing, it is admitted by Mr.Shah, learned advocate for the petitioner that Special Civil Application No.16455 of 2005 came to be decided on 27/1/2016 and therefore, the Recovery Application No.CR/54/2016 has been preferred thereafter. He admitted that there was stay granted against the implementation of the Award all throughout. 8. During the course of the hearing, it is admitted by Mr.Shah, learned advocate for the petitioner that Special Civil Application No.16455 of 2005 came to be decided on 27/1/2016 and therefore, the Recovery Application No.CR/54/2016 has been preferred thereafter. He admitted that there was stay granted against the implementation of the Award all throughout. U/s.17B of the I.D. Act, application was not preferred during the pendency of the aforesaid writ application from 2005 to 2015. However, in the year 2015, he had filed an Affidavit seeking wages under section 17B of the I.D. Act. No Affidavit is filed so far that during the period from 2005 to 2015, the petitioner was not gainfully employed. 9. Mr.Shah, learned advocate for the petitioner, at this stage requires time to file such an Affidavit and also to substantiate his version with the documents, which may come on record by way of an Affidavit. For this purpose, S.O. to 19/12/2019.” 2. Today, learned advocate Mr. Nilesh Shah has drawn the attention of this Court to the additional affidavit filed by the petitioner, in which it is stated that the petitioner has been working as a daily waged labourer under the respondent no.2 since 1986. His services came to be illegally terminated by the respondent no.2 from 21.07.1991. Hence, the petitioner raised dispute being Reference (LCS) No. 77 of 1994 which was partly allowed and vide an order dated 31.03.2005 the respondent no.2 has been directed to reinstate the petitioner with continuity of service and 25% back wages. 3. This award dated 31.03.2005 had been challenged by way of filing Special Civil Application No. 16455 of 2005, whereby, the Court granted stay of an order dated 12.08.2005 and the petition eventually came to be allowed on 27.01.2016 setting aside 25% back wages. It is further the say of the petitioner that he was neither employed in any establishment nor had any means for his livelihood. He also had filed affidavit under Section 17(B) of the Industrial Disputes Act on 16.02.2015. It is further his say that Civil Application No. 2404 of 2015 had been preferred claiming last drawn wages from the date of award with arrears. It is also his say that from 31.03.2005 till the date of his reinstatement which is 21.02.2017, he has not been employed in any establishment at anywhere and remained unemployed all through out. 3.1. Learned advocate Mr. It is also his say that from 31.03.2005 till the date of his reinstatement which is 21.02.2017, he has not been employed in any establishment at anywhere and remained unemployed all through out. 3.1. Learned advocate Mr. Nilesh Shah also along the line of the said additional affidavit, has fervently made his submissions for and on behalf of the petitioner. 4. Learned advocate Mr. Pranav Shah for the respondent has urged that the petitioner has not challenged the judgment and order passed in Special Civil Application No. 16455 of 2005, where the Court has specifically dealt with this issue and has not accepted the claim of wages from 2005 till the date of reinstatement as sustainable. 5. In rejoinder, learned advocate Mr. Nilesh Shah has relied on the decision of this Court passed in Special Civil Application No. 6983 of 2010 and confirmation of the said order by the Division Bench in Letters Patent Appeal No. 586 of 2011. He has urged that he moved an application for recovery neither to get the 25% of the backwages nor being aggrieved by the other aspect but, for non-grant of wages from the date of award till the date of reinstatement. 6. On hearing learned advocates on both the sides and also on careful examination of the material on record, this Court notices that in a petition preferred challenging the award dated 31.03.2005 passed by the Labour Court in Reference (LCA) No. 77 of 1994, whereby the Labour Court had directed the reinstatement of the petitioner to the original post with 25% backwages after availing the opportunities to the parties. This Court in a petition challenging this award and judgment, did not find any affidavit declaring that he is not gainfully employed elsewhere. The Court also noted that until 14.02.2015, the respondent never came forward with an affidavit declaring that he is not gainfully employed and did not claim benefit from 2005 to 2015 in accordance with Section 17(B) of the ID Act. The Court went to an extent of saying that this would justify the inference that the petitioner herein must have been gainfully engaged during the interregnum. 7. The Court went to an extent of saying that this would justify the inference that the petitioner herein must have been gainfully engaged during the interregnum. 7. This Court notices that no challenge has been made to the said decision of this Court rendered in a petition being Special Civil Application No. 16455 of 2005, decided on 27.01.2016, where the Court has been quite categorical about absence of any material and also gave a specific conclusion with regard to the gainful employment of the petitioner. Apt would be to reproduce the relevant paragraphs:- “32. So far as the aspect related to backwages is concerned, the learned Labour Court has granted 25% backwages. However, the learned Labour Court failed to consider that during such long span of more than 25 years, the respondent would not have remained without earning any income. 33. On this count, it is also relevant to note that present petition came to be admitted in August 2005 and interim relief against operation of the impugned award also came to be granted w.e.f. August 2005. Since then, until 14.2.2015, the respondent never came forward with an affidavit declaring that he is not gainfully employed and also he did not claim benefit in accordance with section 17B of the Act. The said fact justifies the inference that the respondent must have been gainfully engaged during the interregnum. 34. The fact remains that during entire interregnum from 2005 to 2015, the respondent did not file affidavit declaring that he is not gainfully employed, also cannot be overlooked while considering the issue related to the backwages. 35. Under the circumstances, having regard to the material available on record before the learned Labour Court and having regard to the fact that for such long period of 25 years, the respondent could not have remained without earning any income the direction for backwages deserves to be set aside and it is hereby set aside. However, the direction to reinstate the respondent is not disturbed and is hereby confirmed. Accordingly, the petition is partly allowed. Rule is made absolute to the aforesaid extent.” 8. The Court notices that in Special Civil Application No. 6983 of 2010 which is heavily relied upon by learned advocate Mr. Shah, this Court (Coram:- Mr. M.R.Shah, J., as his Lordship then was) held thus:- “5. Heard the learned advocates appearing on behalf of the respective parties at length. Rule is made absolute to the aforesaid extent.” 8. The Court notices that in Special Civil Application No. 6983 of 2010 which is heavily relied upon by learned advocate Mr. Shah, this Court (Coram:- Mr. M.R.Shah, J., as his Lordship then was) held thus:- “5. Heard the learned advocates appearing on behalf of the respective parties at length. From the facts narrated hereinabove, it is not in dispute that the judgment and award passed by the Labour Court dated 25/02/1999 in Reference (L.C.S) No. 302/1992 granting reinstatement to the petitioners came to be confirmed up to the Hon'ble Supreme Court. It is also not in dispute that the judgment and award passed by the Labour Court, Surendranagar in the aforesaid Reference denying continuity of service came to be set aside by the learned Single Judge and the learned Single Judge directed to grant continuity in service from the date of initial appointment. The said order passed by the learned Single Judge came to be confirmed by the Hon'ble Supreme Court. Under the circumstances, when the judgment and award passed by the Labour Court came to be confirmed up to the Hon'ble Supreme Court, the petitioners are entitled to all the benefits, inclusive of wages flowing from the aforesaid judgment and award as well as the order passed by the learned Single Judge dated 28/10/2004 in Special Civil Application No. 5390/2001 inclusive of wages and other benefits subject to deducting whatever amount is paid under Section 17B of the Industrial Disputes Act. The contention on behalf of the respondents that during pendency of the matter before the Hon'ble Supreme Court the petitioners did not submit any application under Section 17B of the Industrial Disputes Act and, therefore, they are not entitled to any wages for the aforesaid period cannot be accepted. If the aforesaid contention is accepted then the order passed by the Hon'ble Supreme Court dismissing the SLP and confirming the order passed by the learned Single Judge confirmed by the LPA Bench would become nugatory. If the aforesaid contention is accepted then the order passed by the Hon'ble Supreme Court dismissing the SLP and confirming the order passed by the learned Single Judge confirmed by the LPA Bench would become nugatory. Under the circumstances, when the judgment and award passed by the Labour Court as well as the judgment and order passed by the learned Single Judge modifying the order passed by the Labour Court came to be confirmed up to the Hon'ble Supreme Court the petitioners are entitled to all the benefits flowing from the date of the said judgment and award inclusive of wages and other benefits from the date of the award till reinstatement subject to deducting whatever is paid to them under Section 17B of the Industrial Disputes Act. 6. In view of the above and for the reasons stated hereinabove, the present petition succeeds. The impugned judgment and award dated 31/03/2010 passed by the learned Labour Court, Surendranagar in Recovery Application No. 38/2009 in so far as denying the back wages and other benefits from the date of the award till reinstatement is hereby quashed and set aside and the respondent is directed to pay the wages and other benefits to the petitioners from the date of award i.e. 25/02/1994 till they are reinstated i.e. 16/10/2008 after deducting whatever amount is paid to them under Section 17B of the Industrial Disputes Act. Necessary calculation shall be made by the respondents within a period of eight weeks from today and actual payment shall be made within a period of four weeks thereafter. Rule is made absolute to the aforesaid extent. No cost.” 9. This had been challenged in Letters Patent Appeal No. 586 of 2011, where the Division Bench has confirmed the said judgment and order. Relevant findings and observations deserve reproduction:- “6. We have considered the above-referred rival submissions made by the learned counsel for the parties. The object of Section 17-B of the Act is to relieve to a certain extent the hardship that is caused to workman due to delay in implementation of the award during pendency of proceedings in which said award is under challenge before the High Court or the Hon'ble Supreme Court. 7. The object of Section 17-B of the Act is to relieve to a certain extent the hardship that is caused to workman due to delay in implementation of the award during pendency of proceedings in which said award is under challenge before the High Court or the Hon'ble Supreme Court. 7. It is well settled legal position of law that payment of full wages as last drawn by workman payable by employer during pendency of proceedings in the higher Court, will be from the date of award and not from the date of disposal of proceedings before the High Court or the Supreme Court. It is not in dispute that at present, the respondents have already been reinstated and the amount is paid under Section 17-B of the Act to the respondents. If this position is considered, then, in our view, it is clear that it is not relevant at this stage whether the respondents had filed affidavit before the Hon'ble Court for getting benefit under the provisions of Section 17- B of the Act or not. The learned Single Judge has observed that the contention on behalf of the appellants that during pendency of the matter before the Hon'ble Supreme Court, the respondents did not submit any application under Section 17-B of the Act and therefore, they were not entitled to any wages for the aforesaid period, cannot be accepted. If the aforesaid contention is accepted then, the order passed by the Hon'ble Supreme Court dismissing the S.L.P. and the order passed by the Division Bench of this Court confirming the order passed by learned Single Judge, would become nugatory. In our view, the learned Single Judge has rightly observed that when the judgment and award passed by the Labour Court as well as the judgment and order passed by the learned Single Judge modifying the order passed by the Labour Court came to be confirmed upto the Hon'ble Supreme Court, the respondents are entitled to all benefits flowing from the date of the said judgment and award inclusive of wages and other benefits from the date of the award till the date of reinstatement subject to deducting whatever amount had been paid to them under Section 17-B of the Act. Thus, we do not find any illegality in order passed by the learned Single Judge in Special Civil Application No.6983 of 2010 dated 22.10.2010.” 10. Thus, we do not find any illegality in order passed by the learned Single Judge in Special Civil Application No.6983 of 2010 dated 22.10.2010.” 10. It is to be noted that in a matter before the Division Bench, the respondent had already been reinstated and the amount had been paid under Section 17(B) to the labourers. The Court held that in that fact position, it was not relevant as to whether they had filed affidavit before the Court for getting benefit under the provision of Section 17(B) of the ID Act or not. As the judgment and award passed by the Labour Court as well as the judgment and order passed by the learned Single Judge modifying the order passed by the Labour Court came to be confirmed upto the Apex Court, the respondent was found entitled for all benefits flowing from the date of the said judgment and award inclusive of the wages and other benefits from the date of the award till the date of reinstatement subject, of course, on deducting whatever amount had been paid to them under Section 17(B) of the ID Act. 11. In the instant case, as could be noticed that when the challenge was made to the judgment and award of the Labour Court, Co-ordinate Bench (Coram:- Mr. K.M.Thaker, J.) was not satisfied with regard to the wages from the date of award till the date of reinstatement. There has been a categorical finding that from the year 2005 to 2015, the petitioner herein must have been engaged elsewhere gainfully and that was the reason of his not filing application under Section 17(B) of the ID Act for claiming such benefits. Therefore, such finding ought to have been challenged by the petitioner, had it been dissatisfied with such findings and observation. This Court holds therefore that in absence of any such challenge on the part of the petitioner, it would not be possible to apply the ratio laid down in the Letters Patent Appeal No. 586 of 2011 as every matter shall have to be regarded firstly and essentially on the strength of the factual matrix which would have been adduced and dealt with during the course of the proceedings. 12. 12. As can be noticed further that the petitioner had filed a separate application belatedly claiming wages under Section 17(B) of the ID Act being Civil Application No. 2404 of 2015 in Special Civil Application No. 16455 of 2005 which was notified separately, however, in wake of the judgment and order dated 27.01.2016 passed in Special Civil Application No. 16455 of 2005, the said application moved under Section 17(B) of the ID Act had never been heard and the same was disposed of. That being the case, the Recovery Application moved directly before the Labour Court being 54 of 2016 without any adjudication on the wages claimed, without assailing specific findings and observation of this Court, if has resulted against the present petitioner, no interference will be desirable. 13. This Court noticed that the petitioner is presently reinstated with continuity of service and is being given only minimum wages. Since it is not in dispute that the Government Resolution Dated 17.10.1988 would have an applicability in case of the petitioner and the same since is not being disputed by the respondent, let the petitioner be given all other permissible benefits flowing from the said judgment and award, from the date of award till the date of reinstatement and thereafter which shall include the equal pay for equal work, without adopting any discriminating practices against the petitioner. This, of course, shall not include the wages from the year 2005 to 2015, in wake of the discussion held herein above. 14. Petition is disposed of and dismissed accordingly. Notice is discharged. The petitioner shall be permitted to make an application to the respondent for considering his request for grant of all benefits as have been specified by the Apex Court in case of State of Gujarat and Others vs. PWD Employees Union and Others, reported in (2013) 12 SCC 417 .