National Institute Of Public ... vs Union Of India (Uoi) And Ors.
2008 Latest Caselaw 703 Del

JUDGMENT

Anil Kumar, J.

1. This is an application by the respondent No. 4 under Section 17-B of the Industrial Disputes Act, 1947 seeking grant of benefits as per rules under the provisions of Section 17-B of the Industrial Disputes Act, 1947.

2. The workman/applicant has contended that his services were terminated with effect from 9th February, 1988 and he has remained unemployed since then. According to him after prolonged litigation an award dated 18th October, 2002 was passed in his favor directing petitioner to reinstate him with full back wages and continuity in service.

3. The petitioner filed the present writ petition challenging the award dated 18th October, 2002 directing petitioners reinstatement with full back wages which has been stayed by this Court by order dated 17th February, 2003.

4. The applicant contended that the reference made by the Government could have been decided long ago had petitioner not filed frivolous petitions which have since been dismissed. The petitioner had filed Civil Writ Petition No. 3097/1995 and 3403/1996 which have been dismissed with cost. The applicant has also contended that in the Letters Patent Appeal filed by the petitioner it was observed that various litigations are filed against the respondent/applicant to tire him out.

5. The applicant pleaded that he has remained unemployed throughout the intervening period and is facing acute financial hardship. The affidavit has also been filed by the applicant in support of its abovementioned contentions.

6. The petitioner/management has contested the application on the ground that he applied for a job with the institute as ex-hawaldar of Indian Army and he was appointed to the temporary post of a Lower Division Clerk with effect from 30th July, 1984. The terms of appointment envisaged probation period of three years. It is alleged that after joining, the respondent No. 4 started describing himself as General Secretary of AINE Association and started addressing communication to labour office contending that he is entitled to be appointed as Upper Division Clerk and entitled for a salary of Upper Division Clerk. The complaints were made by the respondent No. 4/applicant against the extension of the period of his probation.

7. The petitioner/management contended that disciplinary proceedings under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred as CCS(CCA) Rules) as extended to the employees of this institute by virtue of byelaw 32 were taken against him. It was asserted that when the disciplinary proceedings were pending the office of the Army Headquarters, Personnel Directorate informed by letter dated 14.12.1987 that the applicant was deprived of the rank of Hawaldar Clerk and reduced in rank for an office under Section 57(c) of Army Act and was receiving pension in a rank of a Sapper by CDA Pension.

8. The allegation of the petitioner/management is that on the basis of an enquiry report workmans services were terminated by order dated 9th February, 1988. A civil suit for injunction was filed by the applicant/workman where his application for interim injunction was dismissed by order dated 1st June, 1988. An appeal filed against the said order was also dismissed on 28th July, 1988. Thereafter on the disputes raised by the applicant/workman the following reference was made by the appropriate Government:

Whether the removal of Shri Ishwar Lal from the service is illegal and/or unjustified and if so, to what relief is he entitled and what directions are necessary in this circumstance of the case.

9. The petitioner/management has contended that the award of reinstatement with full back wages and continuity of service is bad and suffers from error of law apparent from the face of record as none of the precedents sited in paragraphs 61,62 and 65 of the award have any applicability. It is averred that the applicant has no cause and right to apply for relief under Section 17-B of the Act in view of his not denying that he is engaged in practice before Labour Authorities (Labour Representative) in the Courts at Rohtak, Haryana and in the circumstances applicant is gainfully employed.

10. The applicant/workman has filed a rejoinder dated 2nd September, 2003 contenting inter-alia that he has remained unemployed since the date of his removal from service with effect from 9th February, 1988 and he is ready and willing to join the duties as and when he will be allowed by the petitioner/management. It is stated by him that he does not have any income except the legal pension from the Army service and he has been led to lead miserable life due to his unemployment. It has also been pleaded that he has been constrained to lead indignified life and his children have been deprived of the basic necessities.

11. The applicant has also contended that the management has deliberately concealed about the earlier writ petitions being CWP Nos. 3097/1995, 3403/1996 and LPA No. 397/2001 which have been dismissed and has alleged the facts on merits which may not be necessary for the purpose of adjudication of his application under Section 17-B of the Industrial Disputes Act, 1947. The applicant also filed an additional affidavit dated 30th September, 2004 deposing that he was released from the Army with effect from 8th November, 1979 and he joined the services of the petitioner/management with effect from 30th July, 1984. It was asserted that the applicant is not disentitled for grant of relief under Section 17-B on account of pensionary benefits being drawn by him. It was also asserted that the petitioner has not allowed and/or granted any extra benefits to him against his previous Army service. According to the 5th Pay Commission the basic pension of the applicant was fixed at Rs. 1985 plus 64% D.A with effect from 1st July, 2004 and out of that 50% D.A has been merged with the basic pension and, therefore, his basic pension plus 14% D.A comes to Rs. 3375/- p.m subject to the revision.

12. I have heard the workman who is present in person and the learned Counsel for the petitioner in detail. The learned Counsel for the management contended that there are basic jurisdictional grounds that will disentitle the applicant from any order under Section 17-B of the Industrial Disputes Act. The petitioners counsel contends that the petitioner is not an industry and relied on , Physical Research Laboratory v. K.G. Sharma. It was also asserted by the learned Counsel that the petitioner is an autonomous body and the appropriate Government cannot be the Delhi Government and relied on . It was also asserted that in answering the reference the Labour Court has exercised the power as it is an Appellate Court on the enquiry report and the Labour Court has exceeded the reference in answering about the employment of the petitioner as an Upper Division Clerk and in the circumstances award suffers from various perversities and on the basis of the said award the applicant is not entitled for any relief under Section 17-B of the Industrial Disputes Act. It was also contended that the applicant had forged a letter of the Institute to show that he was appointed as UDC and in respect of the same a Civil Writ Petition No. 4711/1997 is pending. Reliance has also been placed on . The learned Counsel for the petitioner has also relied on Ircon International Ltd. v. UOI and Ors. to contend that since the petitioner is getting pension he is not entitled for any order under Section 17-B of the Act.

13. The applicant has also relied on , Kerala State Road Transport Corporation v. K.O. Varghese and Ors. to contend that the grant of pension is not employment in an establishment as contemplated under Section 17-B of the Industrial Disputes Act and on the basis of the same it cannot be held that the applicant is not entitled for an order under Section 17-B of the Act. The reliance is also placed by the petitioner on , Director General of Posts and Ors. v. B. Ravindran and Anr. to contend that the O.M Dated 8th February, 1983 has to be ignored while totaling up pay plus pension to determine whether fixation of pay at the minimum stage of the pay scale of the post concerned would cause undue hardship. It was further held that the entire pension should be ignored in the case of personnel below Commissioned Officers rank. In the circumstances the applicant has contended that the entire pension is to be ignored while granting the benefits under Section 17-B of the Industrial Disputes Act.

14. The applicant has also relied on 2001 LLR 1224, Paramjit Singh Ahuja v. Presiding Officer Labour Court IV and Ors. Hindustan Carbide Pvt Ltd. v. National Capital Territory of Delhi and Ors. 2001 LLR 867; 2000 LLR 31, Taj Services Ltd. v. Industrial Tribunal-I and Ors.; 129 (2006) DLT 649, Hindalco Industries Ltd. v. Suman Lata Tuteja and Ors. to claim an order under Section 17B of the Act.

15. This cannot be disputed that granting relief under Section 17B of the Act and passing orders directing payment of wages last drawn, is generally the rule; refusing to grant relief under Section 17B is an exception, as it could be passed only in the rarest of the rare cases of jurisdictional error where there is no relationship between the parties. In the present case the relationship of employee and employer between the applicant and the petitioner cannot be denied. While considering an application under this provision it is necessary to bear in mind that the spirit, intendment and object underlying the statutory provision of Section 17B is to mitigate and relieve, to a certain extent, the hardship resulting to a workman due to delay in the implementation of an award directing reinstatement of his services on account of the challenge made to it by the employer. The preliminary consideration for making available such a relief to a workman is to be found in the benevolent purpose of the enactment. It recognizes a workmans right to the bare minimum to keep body and soul together when a challenge has been made to an Award directing his reinstatement. The statutory provisions provide no inherent right of assailing an order or an award by an industrial adjudicator by way of an appeal. The payment which is required to be made by the employer to the workman has been held to be akin to a subsistence allowance which is neither refundable nor recoverable from a workman even if the Award in his favor is set aside by the High Court. In , Dena Bank v. Kiritikumar T. Patel the Apex Court was of the view that the object under Section 17B of the Industrial Disputes Act, 1947 is only to relieve to a certain extent, the hardship that is caused to the workman due to the delay in implementation of the Award. While considering the payment which is required to be made by the employer to the workman in this behalf, the Apex Court observed as follows:

21. As indicated earlier Section 17B has been enacted by Parliament with a view to give relief to a workman who has been ordered to be reinstated under the Award of a Labour Court or the Industrial Tribunal during the pendency of proceedings in which the said award is under challenge before the High Court or the Supreme Court. The object underlying the provision is to relieve to a certain extent the hardship that is caused to the workman due to delay in the implementation of the award. The payment which is required to be made by the employer to the workman is in the nature of subsistence allowance which would not be refundable or recoverable from the workman even if the award is set aside by the High Court or this Court. Since the payment is of such a character, Parliament thought it proper to limit it to the extent of the wages which were drawn by the workman when he was in service and when his services were terminated and therefore used the words 'full wages last drawn'. To read these words to mean wages which would have been drawn by the workman if he had continued in service if the order terminating his services had not passed since it has been set aside by the award of the Labour Court or the Industrial Tribunal, would result in so enlarging the benefit as to comprehend the relief that has been granted under the award that is under challenge. Since the amount is not refundable or recoverable in the event of the award being set aside, it would result in the employer being required to give effect to the award during the pendency of the proceedings challenging the award before the High Court or the Supreme Court without his being able to recover the said amount in the event of the award being set aside. We are unable to construe the provisions contained in Section 17B to cast such a burden on the employer. In our opinion, therefore, the words 'full wages last drawn' must be given their plain and material meaning and they cannot be given the extended meaning as given by the Karnataka High Court in Visveswaraya Iron and Steel Ltd. or the Bombay High Court in Corona Sahu Co. Ltd.

22. xxxx

23. As regards the powers of the High Court and the Supreme Court under Articles 226 and 136 of the Constitution, it may be stated that Section 17B, by conferring a right on the workman to be paid the amount of full wages last drawn by him during the pendency of the proceedings involving challenge to the award of the Labour Court, Industrial Tribunal or National Tribunal in the High Court or the Supreme Court which amount is not refundable or recoverable in the event of the award being set aside, does not in any way preclude the High Court or the Supreme Court to pass an order directing payment of a higher amount to the workman if such higher amount is considered necessary in the interest of justice. Such a direction would be dehors the provisions contained in Section 17B and while giving the direction, the Court may also give directions regarding refund or recovery of the excess amount in the event of the award being set aside. But we are unable to agree with the view of the Bombay High Court in Elpro International Ltd. that in exercise of the power under Articles 226 and 136 granted under Section 17B. The conferment of such a right under Section 17B cannot be regarded as a restriction on the powers of the High Court or the Supreme Court under Articles 226 and 136 of the Constitution.

16. The provisions of Section 17B of the Industrial Disputes Act, 1947 comes into operation when an Award directing reinstatement of a workman is assailed in further proceedings. The statute requires satisfaction of the following four conditions:

(i) an Award by a Labour Court, Tribunal or National Tribunal directing reinstatement of a workman is assailed in proceedings in a High Court or the Supreme Court;

(ii) during the pendency of such proceedings, employer is required to pay full wages to the workman;

(iii) the wages stipulated under Section 17B are full wages last drawn by him, inclusive of any maintenance allowance admissible to him under any Rule;

(iv) such wages would be admissible only if the workman had not been employed in any establishment during such period and an affidavit had been filed to such effect

17. A single judge of this Court had culled the principles laid down in various judicial pronouncement for grant of interim relief under Section 17B of the Act in , Food Craft Instt. v. Rameshwar Sharma and Anr. As under:

(i) An application under Section 17B can be made only in proceedings wherein an industrial award directing reinstatement of the workman has been assailed.

(ii) This Court has no jurisdiction not to direct compliance with the provisions of Section 17B of the Industrial Disputes Act if all the other conditions precedent for passing an order in terms of the Section 17B of the Act are satisfied Re: entitled Choudhary Sharai v. Executive Engineer, Panchayati Raj Department and Anr.

(iii) As the interim relief is being granted in exercise of jurisdiction under Article 226 of the Constitution of India, the High Court can grant better benefits which may be more just and equitable on the facts of the case than the relief contemplated by Section 17B. Therefore, dehors the powers of the Court under Section 17B, the Court can pass an order directing payment of an amount higher than the last drawn wages to the workman Re: , Dena Bank v. Kirtikumar T. Patel.

(iv) Such higher amount has to be considered necessary in the interest of justice and the workman must plead and make out a case that such an order is necessary in the facts of the case.

(v) The Court can enforce the spirit, intendment and purpose of legislation that the workman who is to get the wages from the date of the award till the challenge to the award is finally decided as per the statement of the objections and reasons of the Industrial Disputes (Amendment) Act, 1982 by which Section 17B was inserted in the Act Re: JT 2001 (Suppl.1) SC 229, Dena Bank v. Ghanshyam (para 12).

(vi) An application under Section 17B should be disposed of expeditiously and before disposal of the writ petition Re: 2000 (9) SCC 534 entitled Workmen, Hindustan Vegetable Oil Corporation Ltd. v. Hindustan Vegetable Oil Corporation Ltd.

(vii) Interim relief can be granted with effect from the date of the Award Re: JT 2001 Supplementary (1) SC entitled Regional Authority, Dena Bank v. Ghanshyam; 2004 (3) AD (DELHI) 337 entitled Indra Perfumery Co., Sudarshab Oberoi v. Presiding Officer.

(viii) Transient employment and self-employment would not be a bar to relief under Section 17B of the Industrial Disputes Act Re: 2000 (1) LLJ 1012 entitled Taj Services Limited v. Industrial Tribunal; entitled Rajinder Kumar Kundra v. Delhi Administration; 109 (2004) DLT 1 entitled Birdhi Chand Naunag Ram Jain v. P.O., Labour Court No. IV and Ors.

(ix) The Court while considering an application under Section 17B of the ID Act cannot go into the merits of the case, the Court can only consider whether the requirements mentioned in Section 17B have been satisfied or not and, if it is so, then the Court has no option but to direct the employer to pass an order in terms of the statute. It would be immaterial as to whether the petitioner had a very good case on merits Re: 2000 (5) AD Delhi 413 entitled Anil Jain v. Jagdish Chander.

(x) A reasonable standard for arriving at the conclusion of the quantum of a fair amount towards subsistence allowance payable to a workman would be the minimum wages notified by the statutory authorities under the provisions of the Minimum Wages Act, 1948 in respect of an employee who may be performing the same or similar functions in scheduled employments. Re: Rajinder Kumar Kundra v. Delhi Administration ; Sanjit Roy v. State of Rajasthan ; decision dated 3rd January, 2003 in Writ Petition (Civil) Nos. 3654 and 3675/1999 entitled Delhi Council for Child Welfare v. Union of India; DTC v. The P.O., Labour Court No. 1, Delhi and Ors. 2002 II AD (Delhi) 112 (para 12, 13).

(xi) Interim orders directing payment to a workman can be made even on the application of the management seeking stay of the operation and effect of the industrial Award and order. Such interim orders of stay sought by the employer can be granted unconditionally or made conditional subject to payment or deposits of the entire or portion of the awarded amount together with a direction to the petitioner employer to make payment of the wages at an appropriate rate to the workman. Such an order would be based on considerations of interests of justice when balancing equities.

(xii) For the same reason, I find that there is no prohibition in law to a direction by the Court to make an order directing payment of the wages with effect from the date of the Award. On the contrary, it has been so held in several judgments that this would be the proper course Re: Regional Authority, Dena Bank and Anr. v. Ghanshyam reported at JT 2001 (Suppl. 1) SC 229 and Indra Perfumery Co., Sudershab Oberoi v. Presiding Officer and Ors. 2004 III AD (Delhi) 337.

(xiii) While passing an interlocutory direction for payment of wages, the Court may also secure the interests of the employer by making orders regarding refund or recovery of the amount which is in excess of the last drawn wages in the event of the industrial award being set aside so as to do justice to the employer.

(xiv) A repayment to the employer could be secured by directing a workman to given an undertaking or offer security to the satisfaction of the Registrar (General) of the Court or any other authority Re: para 12, 2002 (61) DRJ 521 (DB), Hindustan Carbide Pvt. Ltd. v. Govt. of NCT of Delhi and Ors.

(xv) In exercise of powers under Article 226 and Article 136 of the Constitution, if the requisites of Section 17B of the Industrial Disputes Act, 1947 are satisfied, no order can be passed denying the workman the benefit granted under the statutory provisions of Section 17B of the Industrial Disputes Act, 1947 Re: , Dena Bank v. Kirtikumar T. Patel (para 23).

(xvi) Gainful employment of the workman; unreasonable and unexplained delay in making the application by the workman after the filing of the petition challenging the award/order; offer by the employer to give employment to the workman would be a relevant factors and consideration for the date from which the wages are to be permitted.

(xvii) It will be in the interest of justice to ensure if the facts of the case so justify, that payment of the amount over and above the amount which could be directed to be paid under Section 17B to a workman, is ordered to be paid only on satisfaction of terms and conditions as would enable the employer to recover the same para 13 of Regional Manager, Dena Bank v. Ghanshyam.

(xviii) The same principles would apply to any interim order in respect of a pendentelite payment in favor of the workman.

18. The practice of disposal of the petition as well as the application under Section 17B of the Act contemporaneously was deprecated by the Apex Court and the High Court was directed to first expeditiously dispose of the application under Section 17B by the Supreme Court in its decision reported at , Workmen, Hindustan Vegetable Oil Corporation Ltd. v. Hindustan Vegetable Oil Corporation Ltd. and Ors. While considering an application under Section 17B of the Industrial Disputes Act, the Court cannot go into the merits of the case in the writ petition. It was so held in , Anil Jain v. Jagdish Chander.

19. Whether the applicant is entitled for last drawn wages or something more. In entitled Town Municipal, Athani v. P.O. LC Hugli and Ors. it was held by the Apex Court that a workman has a legal right to wages under the Minimum Wages Act, 1948 and cannot be diverted to a remedy under Section 20 of the Minimum Wages Act for enforcing such right. In this case, the Apex Court was concerned with the power of the Act under Section 33(C)(2) of the Industrial Disputes Act, 1947 and the principles laid down by the Court would have a bearing on the issues raised before this Court as well. From the authoritative pronouncements of the Apex Court, the right of a workman to an amount equivalent to the wages notified under the Minimum Wages Act, 1948 is thus, in fact, recognition of the constitutional mandate. Full wages last drawn can therefore only mean all the wages that have fallen due at least from the date of the Award.

20. The learned Counsel for the petitioner has, however, relied on 2001 LLJ 910, Employer, Management of Central Mine Planning and Design Institute Ltd. v. Union of India and Ors. decided on 6th April, 2001 by the High Court of Jharkhand holding that if the error in the award are such which goes to the root of the jurisdiction of the Tribunal then the Court can ignore the effect of Section 17-B of the Act and may decline to order payment of wages pendentilite. Apparently the decision relied on by the learned Counsel for the petitioner is distinguishable.

21. The ratio of any decision must be understood in the background of the facts of that case. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The Supreme Court in Bharat Petroleum Corporation Ltd. and Anr. v. N.R. Vairamani and Anr. AIR 2004 SC 778 had observed:

Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

In Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. (2003) 2 SC 111 (vide para 59), the Supreme had observed:

It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.'` Similarly In Ambica Quarry Works v. State of Gujarat and Ors. the Supreme Court had also observed:

The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases and disposing of a case by blindly placing reliance on a decision is not proper.

22. Whether the award suffers from such jurisdictional error which will disentitle the applicant for an order under Section 17-B of the Industrial Disputes Act, 1947. The first contention of the petitioner is that petitioner is not an industry. Though at the time of deciding that applicant is entitled for an order under Section 17-B of the Industrial Disputes Act merits of the disputes are not to be gone into but since the petitioner contends that this is a jurisdictional error the same is being considered. This cannot be disputed that whether the petitioner is an industry or not is also a disputed question of fact. The trial Court has categorically observed that no evidence had been led by the management to show that it is not an industry despite by an order dated 14th August, 2001 by which both the parties were directed to lead evidence on all the issues. It has also been noted by the Industrial Tribunal that even in the written statement by the petitioner no particulars or relevant facts have been pleaded to show that petitioner is not an industry. Relying on the test laid down in Bangalore Water Supply v. Rajappa that there is a systematic activity organized by Corporation between the employer and employee for the production and/or distribution of goods and services, calculated to satisfy human wants and wishes, it has been held that the petitioner is an industry. The Industrial Tribunal has also looked into the copy of the Constitution filed by the management and has inferred that the objections of the management clearly depicts presence of all the three ingredients as stipulated in Bangalore Water Supply (Supra) to infer that it is an industry. On this ground therefore, the relief under Section 17 B of the Act cannot be denied to the applicant/respondent No. 4.

23. Perusal of the various orders and the pleadings filed by the management, it has also become apparent that the petitioner had filed a writ petition being CWP No. 3402/1996 challenging the reference made by the appropriate Government on the ground of non applicability of the provisions of Industrial Disputes Act, 1947 consequent to adoption of Central Civil Services (Classification, Control and Appeal) Rules, 1965 by the petitioner which according to the petitioner excludes the provisions of the Industrial Disputes Act. The learned Single Judge in CWP No. 3403/1996 National Institute of Public Cooperation and Child Development v. Government of NCT and Ors. in detail considered the same pleas which have been raised by the petitioner before this Court and declined the prayer of the petitioner that the provisions of Industrial Disputes Act are not applicable and dismissed the writ petition with a cost of Rs. 10,000/-. The petitioner filed the Letters Patent Appeal being LPA No. 397/2001 which was also dismissed by order dated 17th October, 2001 and the cost imposed on the petitioner was also sustained.

24. Perusal of the averments made in the present writ petition also reveals that the fact about the plea of the management that it is not an industry was not accepted by a Single Judge and a Division Bench of this Court has not been disclosed in the present writ petition. The petitioner management has also not disclosed that another writ petition being CWP No. 4711/1997 was filed by the workman seeking quashing of the order of removal from services and claiming reinstatement with full back wages. In the said petition the counsel for the management had objected to the maintainability of the writ petition of the workman on the ground that the workman has raised an industrial dispute with regard to termination of his services and, therefore, the petitioner cannot be permitted to pursue a parallel remedy by way of a writ petition. The said writ petition was, therefore, held to be not maintainable holding that it would be for the Industrial Tribunal to agitate upon the merits and disputes raised before it. Consequently, the plea of the petitioner that the applicant is not entitled for an order under Section 17-B of the Industrial Disputes Act, 1947 on account of alleged jurisdictional ground cannot be sustained.

25. As far as the plea that the Industrial Tribunal has exercised its power as an Appellate Court and other merits of the petition challenging the award cannot be considered at this stage for adjudication of an application under Section 17-B as it is a beneficial legislation and as has been held by the Apex Court as detailed hereinabove.

26. The petitioner has also challenged the grant of benefit under Section 17-B of the Industrial Disputes Act, 1947 to the respondent No. 4/applicant on the ground that the applicant is getting pension from the Army. In Kerala State Road Transport Corporation (Supra) the Supreme Court had held that the pension to an employee is a compensation for services rendered in the past and it is for the purpose of helping the recipient meet the expense of living which is earned by an employee rendering long and sufficient service. The Supreme Court in para 18 at page 3972 had held as under:

18. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the foil of life when physical and mental powers start ebbing corresponding to aging progress and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the heyday of life to your employer, in days of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to an employee is earned by rendering long and sufficient service and, therefore, can be said to be deferred portion of the compensation for service rendered. In one sentence one can say that the most practical raison de'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and pecuniary if there is nothing to fall back upon.

27. In Director General of Posts and Ors. (Supra) relied on by the applicant in fixing the pay of the officers the amount of increase of pension was completely ignored especially in case of personnel below Commissioned Officers rank. The Supreme Court in Dena Bank v. Kirti Kumar T. Patel held that the power of the High Court or the Supreme Court under Article 226 and 136 of the Constitution of India is not in any way precluded to pass an order directing payment of higher amount to the workman if such higher amount is considered necessary in the interest of justice. However, while giving directions the Court may give directions regarding refund or recovery of the excess amount in the event of the award being set aside. The Supreme Court has also affirmed this view in Regional Authority, Dena Bank v. Ghanshyam JT 2001 (Suppl.1) SC 229.

28. The expression "gainful employment in an establishment" has been considered by this Court and the Supreme Court in various cases and it has been held that gainful employment cannot be extended to begging and similar activities carried on by a dismissed employee for his survival. The Supreme Court in , Rajinder Kumar Kundra v. Delhi Administration had held as under:

It was next contended on behalf of the appellant that reinstatement with full back wages be awarded to him. Mr. P.K. Jain, learned Counsel for the employer countered urging that there is evidence to show that the appellant was gainfully employed since the termination of service and therefore he was not entitled to back wages. IN support of this submission Mr. Jain pointed out that the appellant in his cross examination has admitted that during his forced absence from employment since the date of termination of his service, he was maintaining his family by helping his father-in-law Tara Chand who owns a coal depot, and that he and the members of his family lived with his father-in-law and that he had no alternative source of maintenance. If this is gainful employment, the employer can contend that the dismissed employee in order to keep his body and soul together had taken to begging and that would as well be a gainful employment. The gross perversity with which the employer had approached this case has left us stunned. If the employer after an utterly unsustainable termination order of service wants to deny back wages on the ground that the appellant and the members of his family were staying with the father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father-in-law of the appellant as there was no alternative source of maintenance and during this period appellant was helping his father- in-law Tara Chand who had a coal depot, it cannot be said that the appellant was gainfully employed. This cannot be said to be gainful employment so as to reject the claim for back wages. There is no evidence on the record to show that the appellant was gainfully employed during the period of his absence from service. Therefore, the appellant would be entitled to full back wages and all consequential benefits.

29. It has also been held that being employed for remuneration in an establishment means employment under another employer and it is different from running ones own business or trade in order to remain alive to see the end of the litigation. A Division Bench of this Court in Taj Services Ltd. v. Industrial Tribunal-I and Ors. had held as under:

6. Workmen can be denied the benefits under Section 17B of the Industrial Disputes Act only when it is proved to the satisfaction of the Court that the workmen have been employed and have been receiving adequate remuneration during the period of pendency of the writ petition. In the case of workmen other than respondent Nos. 2, 4 and 10 there is no allegation by the management that they have been employed and have been receiving adequate remuneration during the pendency of the writ petition. Even in the case of the respondent Nos. 2, 4 and 10 the allegation is that they are running their own business but the said allegation is denied by the learned Counsel for the respondents. According to the learned Counsel for the respondents, even if the survival of himself and his family, it will not disentitle the workman for the benefits under Section 17B of the Industrial Disputes Act. The learned Counsel for the respondents also contended that the proviso to Section 17B of the Industrial Disputes Act would be attracted only in the case of the employment under another employer and receiving adequate remuneration. I find force in the contention of the learned Counsel. As per Section 17B the workman is required to file an affidavit to the effect that he had not been "employed in any establishment". Hence under the proviso to Section 17B of the Industrial Disputes Act what is required to be proved by the employer is that the workman had been employed in any establishment and had been receiving adequate remuneration from such employment. Being employed for remuneration in an establishment means employment under another employer. It is different from running ones own business or trade in order to remain alive to see the end of litigation. Hence I accept the contention of the learned Counsel for workmen that respondents 2, 4 and 10 cannot be denied the benefit under Section 17B of the Industrial Disputes Act on the ground that they are running their own business and are receiving profit from such business.

30. In Ircon International Ltd. (supra) relied on by the petitioner a Single Judge of this Court in the facts and circumstances of that case had held that the amount of pension which was being received by the workman in that case was to be deducted from the amount which the workman was ordered to be paid by the management pursuant to an order passed in those proceedings. While holding that the amount of pension received by the petitioner in that case was to be deducted from the amount which was ordered to be paid, it was also held that a pensioner cannot be termed to be gainfully employed. The learned Single Judge had not held that in every case of a pensioner the amount of pension is to be deducted from the wages to be paid to a dismissed workman under Section 17-B of the Industrial Disputes Act, 1947. In the case relied on by the petitioner there was concealment of the fact by the workman that he was a pensioner. In the said case first an application was filed that all the 37 workmen were not employed and on directions being given by the Court to file affidavits regarding their employment, only 32 applicants had filed the affidavits. In these peculiar facts and circumstances the order was passed to deduct the amount of pension from the last drawn wages of the particular employee. Consequently, on the basis of the ratio of the said case it cannot be held that the applicant is not entitled for last drawn wages or minimum wages or the amount of pension received by him is to be deducted from the last drawn wages or the minimum wages.

31. In the facts and circumstances and for the foregoing reasons the application of the petitioner under Section 17B of the Industrial Disputes Act, 1947 is allowed. The petitioner is directed to pay the last drawn wages or minimum wages whichever is higher from the date of award i.e 18th October, 2002 to the applicant/respondent No. 4 and continue to pay the last drawn wages or minimum wages whichever is higher during the pendency of the present writ petition. The arrears of last drawn wages or minimum wages whichever is higher be paid within four weeks. The petitioner shall continue to pay wages in future by 15th of every English Calendar Month. The respondent No. 4/applicant is also directed to file an undertaking that in case the writ petition is allowed, the difference in last drawn wages and minimum wages shall be refunded/repaid by the respondent No. 4/applicant to the petitioner within such time as shall be permitted by this Court. The undertaking shall be filed by the respondent No. 4/applicant within four weeks. With these directions the application is disposed of.