- (1.) ANJANI Kumar, J. By means of present writ petition under Article 226 of the Constitution of India, petitioner-employers challenge the order/ recovery certificate dated 17-5-1999, passed by Dy. Labour Commissioner, Meerut under the provision of U. P. Industrial Peace (Timely Payment of Wages) Act, 1978, hereinafter referred to as the 'act of 1978', a copy whereof has been annexed as Annexure 6 to the writ petition.
(2.) THE facts leading to the filing of present writ petition are that petitioner was served with a notice dated 3-2-1999 (Annexure 2 to the petition) to show cause as to why recovery under Section 3 of the aforesaid Act of 1978 (U. P. Act No. 5 of 1978) be not issued as the employers have not paid a sum of Rs. 95,785. 26 with regard to the lay-off compensation of their 12 workmen between the period October, 1998 to December, 1998. THE employers submitted their reply that the provisions of Section 3 of the aforesaid Act of 1978 are not attracted as the amount of lay-off compensation cannot be said to be covered within the meaning of wages under the Payment of Wages Act, and that the employers are less than 20 in number, therefore, the Dy. Labour Commissioner has no jurisdiction/authority to recover the aforesaid amount. THE aforesaid reply of the employers does not find favour by the respondent No. 1, who vide its order dated 17-5-1999 issued recovery certificate to the Collector, Meerut for recovery of the aforesaid amount. THE only submission made by learned Counsel for the petitioner-employers is that from the admitted facts, the amount for which the aforesaid recovery has been issued under the aforesaid U. P. Act No. 5 of 1978, is not covered by the definition of the wages, even assuming that the provisions of U. P. Act No. 5 of 1978 are applicable to the establishment of the employers. Learned Counsel for the employers has relied upon a decision reported in 1991 (62) F. L. R. 258, P. K. Mohan Kumar v. Dy. Labour Commissioner and others, wherein the Kerala High Court considering the case of Nutan Mills v. E. S. I. Corporation, reported in AIR 1956 Bom. 336 of Bombay High Court has observed as under: "the lay-off compensation paid under Section 25-C of the Industrial Disputes Act cannot come within the ambit of 'salary" or "wage" as defined under Section 2 (21) of the Act. THE lay-off compensation is evidently not remuneration payable to the employees for work done. During the period of lay-off, the contract of employment is suspended and is not operative. THE language of Section 25-C of the Industrial Disputes Act, the definition of "lay-off" under Section 2 (kk) and the definition of "wages' in the Industrial Disputes Act make this amply clear that lay-off compensation does not come within the definition of "salary" or "wage". The another decision relied upon by learned Counsel for the employers is reported in AIR 1960 Bombay 201, Anusuya Vithal and others v. J. H. Mehta, Addl. Authority under Payment of Wages Act, Bombay and another, wherein the Division Bench of Bombay High Court after considering the case of Supreme Court reported in 1960 Bom. L. R. , 943 (AIR 1958 SC 518) has observed, Remuneration is only a mere formal version of payment and payment is a recompense for service rendered. " Compensation which is payable for lay-off, that is, on account of the failure or inability of the employer to provide work, cannot therefore, be said to be remuneration. The payment is made not as consideration for work done or services rendered, but as compensation for temporary loss of employment. " In para 4 of the aforesaid judgment the Division Bench further observed. The compensation for lay-off is therefore, paid in respect of a period when no work is done and when in fact there is no liability on the employer to provide work and on the employee to do work. It is not paid as additional remuneration for work done previously. It cannot therefore, be said to be attributable to the employment of a worker or to the work done by him. It is made payable in order to mitigate or reduce the hardship caused by reason of unemployment or temporary loss of employment. Consequently, it cannot be said to be a payment "in respect of employment or work done in such employment. "
(3.) I paragraph 8 of the aforesaid judgment the Division Bench further observed. "we are accordingly of the opinion that compensation payable for lay-off under the provisions of the Industrial Disputes Act, is not wages within the meaning of the Payment of Wages Act. " The Madhya Pradesh High Court also taken the similar view, which is reported in A. I. R. 1960 Madhya Pradesh 370, Burhanpur Tapti Mills Ltd. Burhanpur v. Labour Officer, State Government of Madhya Pradesh, Burhanpur and others, wherein in paragraph 6 it has been observed: "the amounts of lay-off compensation payable to a worker under Chapter V-A of the Industrial Disputes Act does not come within the definition of 'wages' under the Payment of Wages Act, 1936, and therefore, its recovery cannot be made under the Act: see Anusuyabai v. J. H. Mehta, AIR 1960 Bom. 201. Accordingly, we hold that the Government had no jurisdiction to determine under Section 33-C or Rule 62 the amount of lay-off compensation payable to the six workers. The Court under Section 7 of the Act in case of a dispute. It is only if and after the amount due to the employee is so determined that the Government gets the power of ordering its recovery under Section 33-C. ";