V.K. Shukla, J. - (1.) Brief background of the case as mentioned in the writ petition is that complaint was made in respect of timely payment of wages. On the said complaint being made Labour Commissioner in exercise of power vested under Section 3 of U.P. Industrial Peace (Timely Payment of Wages ) Act 1978 proceeded to make inquiry. Notice dated 15.02.2005 was issued to respondent No. 4. In the said proceedings date was fixed was 28.02.2005 and on the said date workmen group was present and employer group was absent and the next date was fixed 03.03.2005. Again workmen group was present and employer group was absent and again date fixed was 11.03.2005. On 11.03.2005 both the groups were present and on the request of the side of the employer 18.03.2005 was fixed for submitting written statement. On 18.03.2005 next date fixed was 21.03.2005 for ensuring payment of wages to workmen and on 21.03.2005 none of the parties were present. Next date fixed was 06.04.2005. On 06.04.2005 workmen group was present and the employer group was absent. On the said date neither any payment has been paid nor any explanation has been furnished in respect of payment of wages for the month of January, 2005, as such orders were reserved and recovery certificate was issued on 13.04.2005 for realizing the amount in question. Thereafter after issuance of recovery certificate, application dated 27.04.2005 was moved contending therein that payment has already been made for the moth of January 2005 and voucher are already filed which is lying in the office and as such Recovery Certificate be cancelled. On the said application being moved Deputy Labour Commissioner issued notice on the said application fixing 10.05.2005 and asking the workmen to appear for submitting reply to the said application. During the pendency of the aforementioned application Recovery Certificate, proceedings were directed to be stayed. At this juncture present writ petition has been filed.
(2.) On present of writ petition, this Court on 10.08.2.005 passed following order which is being quoted below: Issue notice to respondent No. 4 to show cause as to why writ petition may not be admitted/allowed, fixing a date in the last week of September, 2005. petitioner to take steps within one week. Standing Counsel represents respondent nos. 1 to 3. All the respondents may file counter Affidavit by the next date fixed. List on the date fixed. It is contended on behalf of the petitioner that review application under the provisions of Industrial Disputes Act was not maintainable before the Deputy Labour Commissioner, U.P. therefore the impugned order dated 4th May 2005 is wholly without jurisdiction. It is further contended that even if the review application could have been entertained by the Deputy Labour Commissioner, he has no jurisdiction to pass an interim order during the pendency of the review application. Therefore, the endorsement made at item No. 2 of the impugned order is totally uncalled for. Petitioner has made out a case for grant of interim order. Till the next date of listing operation of the order dated 4m May 2005 passed by the Deputy Labour Commissioner, shall remain stayed.
(3.) Counter affidavit has been filed and therein it has been sought to be contended that application was moved before the Deputy Labour Commissioner by the petitioner and 42 others claiming an amount of Rs. 2700/- as earned wages for the period starting 01.01.2005 to 31.01.2005. It has been contended that on 06.04.2005 appearance was entered contending therein that he has already sent the draft to 10 employees for the earned wages for the month of January 2005 to February 2005 and for remaining draft could not be sent due to lack of address and same will be sent with in a week. The workers side did not accept this plea and pleaded for issuance of Recovery. It has further been contended that thereafter information was furnished that 10 employees have already paid and rest: of the employees would be paid on 12.04.2005. It has been again asserted that due to illness of is relative employer/occupier was not in a position to deposit the amount and pleaded that amount would be paid on 15.04.2005 and ignoring this request it has been asserted that Recovery Certificate has been issued on 13.04.2005 and in this background application was moved on 27,04.2005 for recalling of the order dated 13.04.2005. It has been contended that on 26.05.2005 cheque of Rs. 66,000/- has been deposited before the Prescribed Authority and further it was also sought to be contended that some of the employees has put the draft to their Bank and and employees have taken full and final payment. Respondent has contended that list of the employee whose payment was deposited, same contains name of the petitioner also. It has been contended that respondent No. 2 thereafter on 26.05.2005 directed the Cashier to deposit the same In the Bank Account. It has further been asserted that draft were sent to all the employees on their home address and same of the employees deposited the amount in the Bank. It has also been contended that on 03.06.2005 order was passed that enquiry be made and in the presence of the employees wages to be ensured. On 06.06.2005 it was informed, that draft of some of the employee have been returned back. It has been contended that on 07.06.2005 payment was made to the employees whose name was mentioned in the application dated 06.06.2005. It has also been contended that Labour Enforcement Officer also submitted the report that money has been paid whereas said fact has been denied. In this background it has been contended that no interference be made.;