M.Katju - (1.) THIS writ petition and the connected writ petition have been filed against the recovery certificate dated 19-1-91 issued by the Addl. Labour Commissioner. Kanpur Region, Kanpur (Annexure 20 to the writ petition). I have heard Shri S. N. Varma, Shri P. K. Mukherjee and Shri Prem Chandra, learned counsels for this petitioner and Shri K. P. Agarwal, learned counsel for the respondents.
(2.) THE petitioner is a company which had a factory at Kanpur. An industrial dispute was raised under 4-K of the U. P. Industrial Disputes Act. THE reference order is quoted in paragraph 2 of the writ petition. This reference was decided by an Award of the Industrial Tribunal (III). U. P. Kanpur on 27-7-81 in Adj. case no. 15 of 1977. A true copy of the Award has been annexed as Annexure 1 to this writ petition, against this award, the workmen went to S.L.P. to the Hon. Supreme Court which delivered its judgment on 2-5-85 and partly modified the said Award. A true copy of the said judgment has been annexed as Annexure 2 to this writ petition THEreafter, the workmen filed a contempt petition before the Supreme Court alleging that the Award was not implemented and the Supreme Court disposed of the petition by an order dated 27-1-86 (annexure 3 to this petition. By this order, the Supreme Court observed that the workmen should move before the Labour Court under section 33-C (2) of the Industrial Disputes Act THEreafter, an application under section 33-C (2) was moved by the workmen before the Labour Court and it was decided by an order dated 28-2-87. THE petitioner company challenged this order in writ petition no. 7325 of 1987 but the writ petition was dismissed on 24-10-89 by thus Court vide Annexure 6 to this writ petition THE petitioner company then filed S.L P. in the Supreme Court against the judgment of this Court THE Supreme Court passed an order with the consent of the parties that Mr. Justice Chinnapa Reddy (retd.) be appointed to decide the question of implementation of the Award and the parties agreed to act accordingly. Mr. Justice Chinnapa Reddy by his; award upheld the order of the Labour Court (IIO, Kanpur under section 33-C (2). A true copy of his Award has been annexed as Annexure 7 to tins writ petition. It is alleged by the petitioner that on the implementation of the said Award. the petitioner company could not continue its functioning due to financial difficulties and decided to close down the operations of its Kanpur factory on 10-1-91, vide (Annexure 9 this writ petition). The present writ petition arises out of an application under section 6-H (1) filed by the workmen before the Addl. Labour Commissioner. Kanpur claiming overtime allowance and leave encashment. A true copy of the same is as Annexure 12 to this writ petition. On this application, the Addl Labour Commissioner, Kanpur, issued notices to the petitioner company on 27-12-90 fixing 28-12-90 for appearance. The petitioner appeared on 28-12-90 and sought a month for reply. The Addl Labour Commissioner fixed the case on 31-12-90 and asked the parties to file affidavits and documents Ultimately on 1-1-91, the; Addl. Labour Commissioner closed the proceedings and he issued the impugned recovery certificate on 19-2-91. Aggrieved, the present petition has been filed. Several points have been raised by petitioner, but in my opinion this writ petition is liable to succeed on one of those points, and hence I am not going Into the merits of the other points. Section 6 H (1) of the U. P. Industrial Disputes Act states that "where any money is due to a workman from an employer under the provisions of sections 6 J to 6 R or under settlement or award ....." if the workman makes 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- A bare perusal of section 6-H (1) shows that the claim under this provision has to be made either under the provisions of section 6-J or 6-R or under a settlement or award. The Award in question in Adjudications case No. 15 of 1977 was given in a reference relating to variable Dearness Allowance, and the award was also retarding Variable Dearness Allowance. Neither the reference nor the Award was regarding over-time Alllowance or encashment of leave In the application under section 6-H (1) over-time Allowance as well as encashment of leave have been claimed but in my opinion there is no settlement or Award under which this application has been made. Hence section 6-H (1) has no application in the present case. The concept of Dearness Allowance and over time Allowance or leave encashment are wholly different, and it cannot be said that the Award regarding Dearness Allowance includes the claim for over-time Allowance or leave encashment. It would be. stretching the matter too far to say that Dearness Allowance includes the claim for overtime or leave encashment". Hence,, I cannot accept the submission of Shri K. P. Agarwal that the Award regarding Dearness Allowance should be deemed to include the claim for over time or leave encashment.
(3.) IN my opinion, therefore, the impugned recovery under section 6-H (1) was wholly illegal and without jurisdiction and it is hereby quashed. It is. however, open to the workmen to apply under section 6-H (2) or section 33-C (2) or any other provision under which they can legally claim Shri S. N Verma, the learned counsel for the petitioner contended that the order of the Supreme Court dated 27-1-86 should be interpreted to mean that the workers can only apply under section 33-C 2) I do not accept this interpretation. The workmen can apply under any provision which the law permits, and the order of the Supreme Court has to be interpreted to mean that section 33-C (2) is one of the forums under which they on apply. However, I make it clear that the workmen cannot apply under 33-C (1) or section 6-H (1) for the reasons already indicated above. If the workmen apply under section 33-C (2) or any other provision which is applicable, the claim will be decided expeditiously in accordance with law The writ petition is allowed. No order as to cost Petition allowed.;