M.K. Shukla vs Addl. Labour Commissioner and Another

Tarun Agarwala, J.—Heard Sri B. N. Singh, the learned Counsel for the Petitioner. No one appears for the Respondents. The services of the Petitioner was terminated by an order dated 19.10.1968. The Petitioner raised an industrial dispute which was referred for adjudication before the labour court. The labour court gave an award dated 30.6.1972, directing reinstatement with back wages. The employer filed a writ petition which was eventually dismissed by a judgment dated 30.1.1978. Upon the dismissal of the writ petition, the Petitioner moved two applications u/s 6H(1) of the U.P. Industrial Disputes Act, for the recovery of wages in terms of the award. By the first application, wages amounting to Rs. 12,378.39 was sought to be recovered for the period 1.1.1972 to 30.1.1978 and by the second application, an amount of Rs. 6,665.33 was sought to be recovered from 1.2.1978 to 30.4.1980. The Additional Labour Commissioner after considering the matter issued two recovery certificates dated 15.12.1980 for the recovery of the aforesaid amount from the employers. When the Petitioners came to know about the aforesaid orders, they filed an application for the recall of the said order. The Additional Labour Commissioner after considering the matter and, after hearing the parties, recalled its order by an order dated 29.5.1984. Aggrieved by the aforesaid order, the Petitioner has filed the present writ petition.

The learned Counsel for the Petitioner submitted that the Additional Commissioner committed a manifest error in recalling its earlier order, inasmuch as, the amount sought to be recovered was pursuant to the award of the labour court which could be recovered u/s 6H(1) of the Act. Further, the contention of the employers that the Petitioner was gainfully employed for the period 1.1.1972 to 30.4.1980 could not be considered or adjudicated in proceedings u/s 6-H(1) and could only be adjudicated u/s 4K of the Industrial Disputes Act. The learned Counsel for the Petitioner further submitted that the Additional Commissioner had no power or jurisdiction to recall or review its own order since no such power had been provided under the Act.

In support of his submission, the learned Counsel for the Petitioner has placed reliance upon the decision of the Supreme Court in case of Kays Construction Co. (P) Ltd. Vs. State of Uttar Pradesh and Others, Abhinash Chandra Gautam v. Union Territory of Tripura and Anr. 1983 LIC 1738 and Cox and Kings (Agents) Ltd. Vs. Their Workmen and Others,

In my opinion, the submissions of the learned Counsel for the Petitioner is misconceived and bereft of merit. Further, the judgment relied upon by the Petitioner has no application to the present facts and the circumstances of the case.

Section 6H of the U.P. Industrial Disputes Act is quoted hereinunder for ready reference:

(1) 6H. Recovery of money due from an employer.-(1) Where any money is due to a workman from an employer under the provisions of Sections 6-J to 6-R or under a settlement or award, or under an award given by an adjudicator or the State Industrial Tribunal appointed or constituted under this Act, before the commencement of the Uttar Pradesh Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, the workman may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the money due to him, and if the State Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same as if it were an arrear of land revenue.

(2) Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to any rules that may be made under this Act, be determined by such labour court as may be specified in this behalf by the State Government, and the amount so determined may be recovered as provided for in Sub-section (I).

(3) For the purposes of computing the money value of a benefit, the labour court may, if it so thinks fit, appoint a Commissioner in the prescribed manner who shall, after taking such evidence as may be necessary, submit a report to the labour court and the labour court shall determine the amount after considering the report of the Commissioner and other circumstances of the case.

The Supreme Court in Kays Construction Co. (P.) Ltd. (supra) interpreted the provisions of Sections 6H(1) and 6H(2) of the U.P. Industrial Disputes Act and held:

It is contended before us that the judgment of the Division Bench is erroneous in the interpretation of Sections 6H (1) and (2). The question thus is how are the two Sub-sections to be read ? This section is analogous to Section 33C of the Industrial Disputes Act, 1947 and Section 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is significant that in all the three statutes the cognate section is divided into two parts and the first part deals with recovery of ''money due'' to a workman under an award and the second deals with a ''benefit'' computable in terms of money, Under the first Sub-section the State Government (or its delegate), if satisfied that any money is due, is enabled to issue a certificate to the Collector who then proceeds to recover the amount as an arrears of land revenue. The second part then speaks of a benefit computable in terms of money which benefit after it is so computed by a Tribunal is again recoverable in the same way as money due under the first part. This scheme runs through Section 6H, Sub-sections (1) and (2).

From the aforesaid, it is clear that u/s 6H(1) recovery can be made of a money due to a workman under an award while the Section 6H(2) deals with computation of ''benefit'' in terms of money. The difference between the two Sub-sections is, that the benefit contemplated u/s 6H(2) is not ''money due'' but some advantage or perquisite is to be computed in terms of money.

In the present case, the employer filed an application for the recall of the order of the Additional Labour Commissioner, alleging that no money was due or payable to the Petitioner for the period 1.1.1972 to 30.4.1980 on the ground that the Petitioner was gainfully employed and was working in Kanpur Textile Mill and that his services was also regularized by that Company. The employers further submitted that after the dismissal of the writ petition, the employer had sent a letter asking the Petitioner to join which he failed to do so. Consequently, the application u/s 6H(1) of the Act filed by the Petitioner was wholly misconceived and that no amount could be computed as no money was due or payable pursuant to the award.

The Additional Labour Commissioner in the impugned order found that the Petitioner was gainfully employed in Kanpur Textile Mill during the said period and that he had received the wages from that textile mill. The fact that the Petitioner was gainfully employed was not denied by the Petitioner either before the Additional Labour Commissioner or even before this Hon''ble Court. Consequently, in the opinion of the Court, no money was due or payable to the Petitioner under the award since he was gainfully employed. The application filed by the Petitioner u/s 6H(1) of the Act was not maintainable. The Additional Labour Commissioner, having found that a wrong recovery certificate was issued had rightly and validly recalled its own order.

The contention of the Petitioner that disputed questions of fact, namely, as to whether the Petitioner was gainfully employed or not could not be adjudicated u/s 6H(1) by the authority is, patently misconceived. There is no disputed question of fact involved inasmuch as, the Petitioner himself admitted that he was gainfully employed in Kanpur Textile Mill. Once the Petitioner admits that he was gainfully employed and had received the wages for that period, he cannot move an application u/s 6H(1) for the recovery of post award wages under an award from the erstwhile employers. The said application was wholly misconceived and was not maintainable.

In Punjab Beverages Pvt. Ltd., Chandigarh Vs. Suresh Chand and Another, the Supreme Court held that the workman could not maintain an application u/s 33C(2) for determination or payment of wages on the basis that he continues to be in service. The Supreme Court held that the workman could proceed u/s 33C(2) only after his complaint was adjudicated by the Tribunal u/s 10 of the Act. The same principle would equally apply in the present case. The fact that the Petitioner was gainfully employed in another establishment, debars the Petitioner from moving an application for recovery of wages from his erstwhile employer.

The submission of the learned Counsel for the Petitioner that the Additional Commissioner had no power to review or recall its own order is patently erroneous. The Additional Commissioner is exercising quasi-judicial powers u/s 6H(1) of the Act and therefore, the authority has the power to review or recall its order.

In view of the aforesaid, this Court does not find any merit in the writ petition and is dismissed.