D.S.Sinha - (1.) HEARD Sri Vijai Bahadur Singh, learned counsel appearing for the employer-petitioner and Sri K. P. Agarwal, learned Senior Advocate appearing for the contesting respondent no. 4, at length and in detail.
(2.) THE Interlocutory order dated 24th November, 1984 passed by the Additional Labour Commissioner. Uttar Pradesh Kanpur Region, Kanpur, the respondent no. 1, holding that he had jurisdiction under the provisions of the Uttar Pradesh Industrial Peace (Timely Payment of Wages) Act, 1978, hereinafter called the Act, to entertain and adjudicate upon the claim of the workman-respondent end directing the concerned authorities of the employer to appear on 28th November. 1984 for further hearing, is under challenge in this petition under Article 226 of the Constitution of India The impugned order dated 24th November, 1984, In substance, supersedes the order dated 22nd April, 1983, passed by the respondent no. 1 himself holding that the claim of the contesting respondent was, in fact, a matter of computation falling' within the ambit of the provisions of section 33-C (2) of the Industrial Disputes Act, 1947. hereinafter called the Industrial Disputes Act, when could be entertained by the Labour Court, and declining to take cognizance of the matter. Sri Vijai Bahadur Singh, learned counsel for the petitioner, contends that the impugned order is invalid on the following two counts :. (a) that the Impugned order amounts to an order of review which was not permissible in as much as the respondent no. 1 did not possess any power of review : (b) that the impugned order is bad for non-disclosure of any reason in its support.
(3.) SRI K. P. Agarwal, learned Senior Advocate, appearing for the workman-respondent, relies upon the provisions of section 21 of the U. P. General Clauses Act, 1904 and submits that the respondent no. 1 did not lack power to pass the impugned order setting aside the earlier order passed by him on 22nd April, 1983. Further submission of SRI Agarwal is that the respondent no. 1 in passing the impugned order did not decide any of the Tights of the parties. He only revised the opinion that the matter with respect to the claim of the contesting respondent was cognizable by him. SRI Agarwal also submits that the impugned order is interlocutory in nature and the court should sot interfere with it in exercise of its special and extraordinary jurisdiction under Article 226 of the Constitution of India. Section 3 (1) of the Act provides that where the Labour Commissioner is satisfied that the occupier of an industrial establishment is in default of payment of wages and that the wage bill in respect of which such occupier is in default exceeds fifty thousand rupees, he may, without prejudice to the provisions of sections 5 and 6. forward to the Collector, a certificate under his signature specifying the amount of wages due from the industrial establishment concerned. It is to be noticed that before the Labour Commissioner can act he has to be satisfied with regard to existence of two conditions, namely the default of the payment of wages on the part of the occupier of an industrial establishment, and the quantum of the wage-bill being more than fifty thousand rupees. The expression 'wages' for the purposes of the Act shall have the same meaning as has been assigned to it under the Payment of Wages Act, 1936. The expression 'wage-bill' is defined in the Act as the total amount of wages payable by an industrial establishment to its workman. Looking to the definition of the expressions 'wages' and 'wagebill', it appears that Commissioner has to make enquiry, interalia, about the payability of the wages by the industrial establishment to its workmen which necessarily involves examination of the question whether the claimants of the wages ate really workman of the industrial establishment or not. Section 4 of the Act contemplates that for the purposes of ascertaining the wage-bill of an establishment in respect of which default has been committed the Labour Commissioner shall have all the powers of a Civil Court, while trying a suit, under the Code of Civil Procedure, 1908 In respect of enforcing the attendance of witnesses and examining them on oath and compelling the production of documents. The questions such as who is 'the occupier' whether the establishment is an 'Industrial establishment' whether the workmen concerned are the workmen of the industrial establishment, whether the wages are payable to them. is there any default in payment of wages whether the wage-bill in respect of which default is alleged exceeds fifty thousand rupees, the minimum limit fixed under section 3 of the Act, have got to be adjudicated upon before a certificate for recovery can be issued. Once the certificate is issued to the Collector the amount specified in the certificate has got to be recovered from the industrial establishment concerned. Besides the amount specified in the recovery certificate the industrial establishment has also to pay recovery charges at the rate of ten percent. The question whether the industrial establishment should or should not be saddled with the liability of recovery charges shall depend upon the establishment of the default and thereupon Issuance of the recovery certificate.;