PRAKASH KRISHNA, J. - (1.) PETITIONER, a company registered under the Companies Act carries on the business of manufacture and sale of sugar through vacuum pan sugar process at its factory premises situate at Tamkuhi Road, Kushinagar. The permanent strength of the workers is less than three hundred workers but during the crushing season the strength is enhanced up to about nine hundred. Provisions of the Factories Act, 1948 are applicable to the petitioner company. Its Section 49 provides for the appointment of Welfare Officer in every factory wherein five hundred and more workers are employed. The petitioner being aggrieved by the order dated May 3, 2001 passed in favour of its Welfare Officer namely Narendra Das Gaur, the respondent no. 5 herein by the Deputy Labour Commissioner, Gorakhpur under the U.P. Industrial Peace (Timely Payment of Wages) Act, 1978 (hereinafter referred to as the Act) has filed the present writ petition on a number of grounds including that the Rule 22 of the U.P. Factories Welfare Officers Rules, 1955 be declared as ultra vires and unconstitutional and the recovery certificate dated May 3, 2001 issued by the Deputy Labour Commissioner, Gorakhpur be quashed. It appears that by the impugned order dated May 3, 2001 (Annexure - 2) the Regional Deputy Labour Commissioner has ordered for the recovery of Rs. 5,05,575/- towards the difference in wages of Shri Narendra Das Gaur, the Labour Welfare Officer for the period January, 1996 to December, 2000.
(2.) IN reply, Narendra Das Gaur in his counter affidavit has stated that the recovery certificate has been rightly issued as the petitioner has failed to pay revised pay scale to him and non-payment of the revised pay scale amounts to deduction. The provisions of the Act, 1978 shall apply to the Welfare Officers as well, and in view of the Act No. 5/1978 he has justified the invoking of jurisdiction of the Labour Court under Sections 3 and 4 of the Act, 1978. In the rejoinder affidavit filed on behalf of the petitioner, the pleas raised in the writ petition have been reiterated, additionally a plea has also been raised that the wages claimed by the respondent no. 5 w.e.f. 1996 is not permissible in view of the fact that the amended revising grades of Welfare Officers came into existence w.e.f. June 30, 2000 Annexure no. 1 to the rejoinder affidavit is a copy of the said notification. It has been pleaded that the wages prior to June 30, 2000 cannot be granted nor can be claimed by the respondent no. 5. Heard learned Counsel for the parties and perused the record. During the pendency of the writ petition, the writ petition was got amended and some more pleas that the respondent no. 5 is claiming the arrears of his wages w.e.f. January 1, 1996 on the basis of the notification No. 1833 dated June 30, 2000; the notification dated June 30, 2000 can only be prospective in nature and cannot be retrospective in nature even if it is assumed that Welfare Officer is entitled to revision of his wages under the said notification, the said notification is wholly arbitrary and violative; the impugned recovery certificate has been issued mechanically without any application of mind and without considering the objection raised by the petitioner and as such it is arbitrary and violative of Article 14 of the Constitution of India and that whether the respondent no. 5 is entitled to be given revised wages, if any, is a question of fact which cannot be adjudicated upon in the proceedings under Sections 3 and 4 of the Act, 1978 being summary jurisdiction, have been sought to be raised.
(3.) THE aforestated amendment application was allowed by the order dated January 8, 2007 and the petitioner was permitted to incorporate the amendments sought for in the writ petition. THEreafter, the pleas have been incorporated in the writ petition; but it appears from the record that no reply to the amended pleas has been filed by the contesting respondent no. 5. In any view of the matter, the learned Counsel for the respondent no. 5 did not, during the course of argument, refer to reply, if any, filed by the respondent no. 5 to the amended pleas, nor sought time. As noticed herein above, by means of the present writ petition, the petitioner has sought (1) a writ, order or direction declaring the Rule 22 of the U.P. Factories Welfare Officers Rules, 1955 as ultra vires and unconstitutional, and (2) a writ, order or direction in the nature of Certiorari calling for record of the case and to quash the recovery certificate dated May 3, 2001 issued by the Deputy Labour Commissioner, Gorakhpur.;