Bhagwanbhai Mansing Detroj vs Gujarat State Road Transport Corporation

H.K. Rathod, J.—Heard learned advocate Mr. Dhaval D. Vyas for the applicant and learned advocate Mr. Munshaw for the opponent.

Present application is filed by the applicant - respondent workman claiming the benefit u/s 17B of the I.D. Act, 1947.

The Labour Court, Junagadh passed an award on 24.12.2001 in Reference No. 267 of 1998 whereby the Labour Court, Junagadh has

directed the Corporation to reinstate the respondent workman on the original post with continuity of service without any back wages for

intervening period with stoppage of two increments with future effect. The said award is challenged in SCA No. 8861 of 2002 wherein this Court

has passed interim order on 3.9.2002 and stayed the reinstatement of the respondent workman. According to respondent workman, he has not

reached the age of superannuation as per identity card issued by the Corporation showing the details of his age. According to respondent

workman - present applicant, he is not employed in any establishment and not receiving adequate remuneration from employment and he remained

without job and not gainfully employed in any establishment. The specific averments made in this application in Para.7 as well as separate affidavit

is filed by the respondent workman on 12.12.2007. No counter is filed by respondent - original petitioner. However, today learned advocate Mr.

Munshaw places on record the xerox copy of letter dated 12.1.2008 having the security report from Vigilance Department of the Corporation.

The respondent workman was dismissed from service on 24.3.1998. The report suggests that respondent is belonging to village Aniyari (Bhimji),

Taluka - Dhandhuka. The security person visited the village Aniyari on 11.1.2008 where it was found that workman has left the village Aniyari and

went to village Muladharayi, Taluka - Valbhipur. At village Aniyari, the respondent workman is having 7 Acre and 33 Guntha agricultural land and

also residential premises in his own name and his son is working in factory at Baroda and the respondent workman is residing at village

Muladharayi on rented premises, doing the agricultural work with the family members and according to Corporation, they calculated the price of

20 vigha land, considering Rs. 50,000/- to Rs. 60,000/- amount for one vigha and also considering produce total amount for one maund comes to

Rs. 4500 to 5000/-. The son who is working receiving the salary of Rs. 4000 to 5000 and considering the market value of the land in question, it is

more than Rs. 10 lacs and per year, the respondent workman is having the income of Rs. 1 and 1/2 lacs. Therefore, according to Corporation the

respondent workman is not entitled the benefit of last drawn salary as required u/s 17B of the I.D. Act, 1947.

At this juncture, this Court has posed one question to learned advocate Mr. Munshaw, who is appearing on behalf of corporation, whether the

Corporation is prepared to reinstate the respondent workman or not.

Learned advocate Mr. Munshaw is not able to answer because he requires instruction from the Corporation.

Learned advocate Mr. Vyas makes the statement before this Court that respondent workman is prepared to resume the duty as and when order

to that effect is passed by the Corporation.

The provision made by statutory enactment to help the workman when reinstatement order is stayed by this Court. When employer is not

prepared to reinstate the respondent workman and the respondent workman is prepared to resume the duty then question of consideration of

some part of gainful employment or some property, earning options and other related income attached to agricultural field. The view taken by the

Apex Court in case of Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others, wherein it is observed that

employee during forced absence for maintaining his family helping his father in law in his coal depot and living with him having no other source, it is

held that it was not gainful employment.

This Court has considered that self employment cannot consider to be a gainful employment as required u/s 17B of the I.D. Act, 1947. Section

17B of the I.D. Act, 1947 requires employment/engagement in any establishment and second condition is that receiving adequate remuneration

from such employment.

This Court has considered the above aspect in a decision reported in 2003 (1) GLH 626 wherein it is observed that self employment cannot

consider to be gainful employment within the meaning of Section 17B of the I.D. Act, 1947. The aforesaid decision has been approved by the

Division Bench of this Court reported in 2006 II LLJ 191. The agricultural income having property and earning option are totally irrelevant for

claiming the benefit u/s 17B of the I.D. Act, 1947. This property was with the workman when he joined the service and son was also there when

he joined the service. These cannot considered to be an independent income from employment in any establishment. Therefore, according to my

opinion, the contention raised by learned advocate Mr. Munshaw relying upon the security report dated 12.1.2008 cannot be accepted and such

activities in agricultural field is not a gainful employment within the meaning of Section 17B of the I.D. Act, 1947 and therefore, the workman is

entitled the benefit of Section 17B of the I.D. Act, 1947 from the date of award.

Accordingly, the Corporation is directed to pay last drawn wages to the original respondent workman w.e.f. 24.12.2001 till 31.12.2007 within

a period of two months from the date of receiving the copy of this order. It is further directed to the Corporation to pay regularly such last drawn

wages to the respondent workman so long the main matter is pending and finally decided by this Court.

However, it is open for the Corporation either to reinstate the applicant - workman or to pay regularly last drawn wages as required u/s 17B

of the I.D. Act, 1947. It is made clear that except as referred above, learned advocate Mr. Munshaw has not made any other submissions before

this Court. The xerox copy of the aforesaid letter dated 12.1.2008 is taken on record.

In view of the above observations and directions, present civil application is disposed of. Direct service is permitted.

Learned advocate Mr. Munshaw requests to fix the main SCA No. 8861 of 2002 for final hearing.

Considering the request, main SCA No. 8861 of 2002 is fixed for final hearing in 1st week of April, 2008.