1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.09.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI AND THE HONOURABLE MR.JUSTICE M.M.SUNDRESH W.A.(MD).No.501 of 2011 and M.P.No.1 of 2011 Bharathi Co-operative Spinning Mills Ltd., Rep by its Administrator, Ettayauram, Tuticorin District. : Appellant/1st Respondent/ Petitioner Vs. 1. The Presiding Officer, Labour Court, Tirunelveli. : 1st Respondent/2nd Respondent/ 1st Respondent 2. S.Kandasamy : 2nd Respondent/Petitioner/ 2nd Respondent PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 31.03.2011 made in M.P.No.1 of 2011 in W.P.MD).No.10147 of 2010 on the file of this Court. PRAYER IN M.P.(MD) NO.1 OF 2011 IN W.P.MD).No.10147 of 2010: Petition praying that this Hon'ble Court may be pleased to direct the 1st Respondent herein to pay a sumof Rs.5,165/- as the last drawn wages to the petitioner herein under Section 17-B of the Industrial Disputes Act 1947, pending disposal of the Writ Petition. PRAYER IN W.P.MD).No.10147 of 2010: Writ Petition filed under Article 226 of the Constitution of India, praying this Hon'ble Court to issue a Writ of Certiorari to call the records in the award dated 22.4.2009 made in I.D.No.70/2005 on the file of the first respondent Labour Court and quash the same. For Appellant : Mr.K.Hemakarthikeyan Respondent 1 : Labour Court For Respondent 2 : Mr.V.Ramajagadeesan JUDGMENT [Judgment of the Court was delivered BY P.JYOTHIMANI, J] This Writ Appeal is directed against the order of the learned Single Judge dated 31.03.2011 made in M.P.No.1 of 2011 in W.P.(MD). No.10147 of 2010. https://hcservices.ecourts.gov.in/hcservices/ 2 2. The learned Single Judge, having found that it is uncontroverted that the second respondent/workman was working as an LIC Agent, has come to the conclusion that this cannot be termed as a gainful employment so as to deny the right of the employee under Section 17(B) of the Industrial Disputes Act, 1947, [for short "the Act"], and accordingly, allowed the Miscellaneous Petition filed by the second respondent/workman seeking 17(B) wages, against which, the employer has filed the present Writ Appeal. 3. It is true that the second respondent/workman has got an award from the Labour Court for reinstatement with back wages, against which the employer has filed the said Writ Petition, which is pending. As per Section 17(B) of the Act, which reads as follows:- "17-B.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 reinstatement 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 of part, as the case may be." the payment of remuneration under Section 17(B) of the Act will not arise in cases where the employee has been receiving adequate remuneration during the period when the matter is pending in the Higher Court. 4. On the facts of the present case, it is true that the second respondent/workman was working as an LIC Agent and he has been receiving adequate remuneration during the period of pendency of proceedings before this Court. Therefore, the findings of the learned Single Judge that the second respondent/workman is entitled for remuneration cannot be sustained. In addition to the above, the Hon'ble Supreme Court had also an occasion to consider a similar issue in North East K.R.T.Corporation v. M.Nagangouda reported in 2007 (1) LLN 582, wherein while considering the term "gainful employment", the Hon'ble Supreme Court has held that it would include self - employment also. The relevant portion of the said Judgment reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ 3 "17. On the said question, we are unable to accept the reasoning of the Labour Court that the income received by the respondent from agricultural pursuits could not be equated with income from gainful employment in any establishment. In our view, "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. Since the respondent was earning some amount from his agricultural pursuits to maintain himself, the Labour Court was not justified in holding that merely because the respondent was receiving agricultural income, he could not be treated to be engaged in "gainful employment"." 5. In view of the reasons stated above, with due respect, we are not in agreement with the view taken by the learned Single Judge. Accordingly, the order dated 31.03.2011 made in M.P.No.1 of 2011 in W.P.(MD).No.10147 of 2010 stands set aside and the Writ Appeal is allowed. 6. Considering the fact that the second respondent/workman has got an award from the Labour Court for reinstatement with back wages, we are of the considered view that the Writ Petition has to be heard at an early date. Accordingly, Registry is directed to post the Writ Petition before the concerned Court for final disposal in the second week of October 2011. No costs. Consequently, connected Miscellaneous Petitions is closed. Sd/- Assistant Registrar (CO) /True Copy/ Sub Assistant Registrar To The Presiding Officer, Labour Court, Tirunelveli. Copy to: The Section Officer, Writ Section, Madurai Bench of Madras High Court, Madurai. +1 CC to Mr.K.Hema Karthikeyan, Advocate (SR.No.29980) +1 CC to Mr.V.Ramajegadeesan, Advocate (SR.No.30355) JUDGMENT MADE IN W.A.(MD).No.501 of 2011 06.09.2011 NB NSV/13.9.11/3P/5C https://hcservices.ecourts.gov.in/hcservices/