- (1.) TARUN Agarwala, J. Heard Sri Triloki Nath, the learned Counsel for the petitioner and Sri V. K. Agarwal, the learned Counsel for the respondent workman.
(2.) IT transpires that the workman was working on a daily rated basis as a clerk in the petitioner's Co- operative Society and for certain reasons, his services was dispensed with. The workman raised an industrial dispute under Section 4-K of the U. P. Industrial Disputes Act. The petitioner appeared and filed a written statement alleging that since the workman was a daily rated worker, he was not a workman as contemplated under the U. P. Industrial Disputes Act, and therefore, no dispute could be referred under the provisions of the U. P. Industrial Disputes Act. The record suggests that the petitioner did not participate any further before the labour Court and eventually, the labour Court gave an ex parte award dated 21-7-1997. IT has also come on record that the petitioner subsequently filed an application, for the recall of the ex parte award, which was rejected by the labour Court, by an order dated 3-10-2000. In the meanwhile, the workman initiated proceedings for the recovery of money in terms of the award by moving an application under Section 6-H (1) of the U. P. Industrial Disputes Act before the Deputy Labour Commissioner. The petitioner appeared and filed an application for stay of the proceedings on the ground that a recall application was pending before the Labour Court. Notwithstanding the pendency of the petitioner's application, the Deputy Labour Commissioner, by the impugned order, issued a recovery certificate, for a sum of Rs. 1,89,376/- in terms of the award. The petitioner, being aggrieved by the said order, has filed the present writ petition. The learned Counsel for the petitioner submitted that the recovery proceedings was wholly without jurisdiction in view of the latest judgment of the Supreme Court in the case of Ghaziabad Zila Sahkari Bank Ltd. v. Addl. Labour Commissioner & Ors. , JT 2007 (2) SC 566, in which it has been held that the U. P. Co-operative Societies Act, 1965 being a special enactment would prevail over the U. P. Industrial Disputes, 1947, and therefore, the provision of the U. P. Industrial Disputes Act could not be invoked by a workman, who is employed in a Co-operative Society registered under the U. P. Co- operative Societies Act, 1965.
(3.) THE learned Counsel submitted that since the award of the labour Court was without jurisdiction, the recovery of any amount pursuant to the award, which was void ab initio could not be recovered in a proceeding under Section 6-H (1) of the U. P. Industrial Disputes Act. In support of his submission, that this point could be urged in a writ jurisdiction even though it was not urged earlier, the learned Counsel relied upon a decision of the Supreme Court in the case of Kiran Singh & Ors. v. Chamn Paswan & Ors. , AIR 1954 SC 340, and a Division Bench judgment of this Court in Kunmun Singh v. Ram Sewak, 1961 A. L. J 997, wherein the Court held that a point not urged before the trial Court or even before the first appellate Court, the same could be urged and determined even in a second appeal because it went into the root of the matter with regard to the jurisdiction of the civil Court.;