- (1.) 17.04.2009 In the instant writ petition the petitioner prays for issuance of an appropriate writ in the nature of certiorari or any other appropriate writ for quashing the order dated 10.11.2003 passed by the learned Certificate Officer, Dhanbad in Certificate Case No.4 (WC)/2000 -01 by which the said respondent has been pleased to reject the objection of the petitioner under Section 9 of the Public Demand Recovery Act, as also the consequential order of the said respondent contained in letter No.127 dated 9.9.2006 whereby and whereunder the said respondent No.3 has been pleased to direct the Superintendent of Police, Dhanbad to take all steps to execute the distress warrant/warrant of attachment and all subsequent orders passed therein being illegal and bad. 2. The facts, in brief, are stated as under: - The appropriate government referred an industrial dispute for regularization of Jhinku Harija for adjudication on 2.1.87 and the same was registered as reference case No.10 of 1987. The award was given in favour of the respondent workman directing regularization and payment of wages as category -1 Mazdoor, however, no back wages was awarded. A Writ Petition (C ) bearing C.W.J.C. No.1666 of 1998 (R ) was filed by the Management challenging the aforesaid award and the Ranchi Bench of the Patna High Court, as it then was, dismissed the writ petition vide order dated 5.10.1993. A S.L.P. (Civil) No.3830 of 1993 was preferred by the petitioner Management before the Honble Supreme Court which was decided on 16.1.1994 upholding the Award passed by the Industrial Tribunal. On 25.7.1997 a settlement was arrived at between the Management and the respondent No.4 followed by regularization and identification. In compliance to the settlement the Management gave the joining to the workman on May, 1998. Thereafter respondent No.4 filed an application before the respondent No.2 under Sub Section 1 of Section 33(c) of the Industrial Disputes Act for recovery of an amount of Rs.3,28,340/ -. On 25.5.2000 a conciliation proceeding was concluded. The respondent No.2 on 17.6.2000 made a requisition to respondent No.3 the Certificate Officer for recovery of Rs.45,97,180/ - 3. On receipt of the requisition Certificate Case was registered as C.C. No.4 (WC) of 2000 and the petitioner Management preferred C.W.J.C. No.3905 of 2000 challenging the same and vide order dated 14.11.2000 Certificate proceeding was stayed. Finally vide order dated 01.2.2001 the writ application was disposed of with a direction to appeal before the Certificate Officer and file its show cause. The Certificate Officer on 7.6.2005 issued notice for payment of the amount which led to filing of a petition to recall the notice. The Certificate Officer, respondent No.3 herein, thereafter issued a warrant of attachment vide its order dated 5.8.2006 followed by steps to execute the warrant of attachment. 2006(1) SCC 479 to support his contention. 4. The respondents in their counter affidavit submits that the settlement was confined to identification and the workmen were entitled to the back wages and the application under Section 33 (C) (1) of the I.D. Act was filed since the award was affirmed up to the Honble Supreme Court and became enforceable with effect from 01.5.1992. He further submits that the High Court did not interfere with the order dated 17.6.2000 which was the order passed by R.L.C., Dhanbad and further gave some direction to the Certificate Officer, Dhanbad in the pending certificate case and thus sitting idle the wages were due for the period of unemployment and they were entitled to claim back wages. It has also been submitted that the Writ petition is highly belated as the Management is trying to reopen the issue which has already been decided and has attained finality. 5. I have considered the rival submissions and also the pleadings. There is no dispute about the fact that the petitioners have been referred to the Board of Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act, (hereinafter referred to as 'SICA) and thus in view of Section 22 no coercive steps can be taken for realization of any dues during the pendency of the reference before BIFR. 6. It appears that in absence of any liability to make payment of the amount covered under the certificate proceeding, the coercive steps taken for realization of the amount by issuing warrant of attachment is unjustified, illegal and unsustainable in the eyes of law. The fact remains that even vide award dated 30.6.1992 which has attained finality a direction was issued to regularize the services and make payment of wages as category 1 Mazdoor, however, no back wages was ordered to be paid and that part of the order stands complied in May, 1998, after the matter was finally dismissed by the Honble Supreme Court and no workman raised any objection whatsoever, at that point of time. It was only thereafter as an after thought that an application under Section 33(C ) (1) of the Industrial Disputes Act was filed for recovery of amount of Rs.3,28,340/ -in respect of each of the concerned workman under the Revenue Recovery Act which does not stand to reason. 7. There was no order to make payment of back wages for the period prior thereto more so when they had not rendered service. In any event, if such dispute was there or raised, it would have been referred for adjudication to a Labour Court and thus the letter by respondent No.2 dated 17.6.2000 making of a requisition to the respondent No.3 to recover a sum of Rs.45,97,180/ -without passing any final order under Section 33 (c ) (1) of the Industrial Disputes Act was on the face of it premature, devoid of jurisdiction and illegal. This issue was considered by the Honble Supreme Court in 2008 (9) SCC page 486 and it was held that the petitioner is not liable to take back wages as a matter of right. Even otherwise the concerned persons were reinstated in the employment in the light of the settlement without claiming back wages and thus the claim of back wages as an after thought is unsustainable, more so, when it has been given effect to. The petitioner Management has at paragraph 9 of its rejoinder specifically stated that the money due under the settlement has already been paid and the amount sought to be recovered is for the period prior to settlement. Thus a dispute with regard to claim of back wages, condonation of delay, entitlement to recover money was already there which under Law has to be decided first before invoking Section 33 (c ) (1) of the I.D. Act, 1957 which is executory in nature. 8. Under Section 33(C) (1) of the Industrial Disputes Act, 1947 only when any money is due to a workman from an employer under a settlement or an award, an appropriate Government can issue a certificate for that amount to the Collector who shall proceed to recover the same. Section 33 (C) (1) of the Industrial Disputes Act contemplates two situations for recovery of money due from an employer, firstly under a statutory settlement and secondly under an award. In the instant case there is no dispute about the fact that the settlement was entered into without any claim for back wages and was acted upon without any precondition. It is further relevant to indicate that the proceeding under Section 33(C) of the Act is a proceeding in the nature of execution and it presupposes that the money was due to a workman from an employer before passing any order of recovery. In a recent judgment reported in (2008) 7 SCC pg 22 relating to Section 33 (C) (2) of the Industrial Disputes Act, an identical issue arose and the Honble Supreme Court held that Section 33 (C) (2) presupposes some adjudication leading to determination of a right which has to be enforced. Drawing analogy from the aforesaid Judgment it will be evident that unless the money claim was due to a workman from an employer either under a Settlement or an award the issuance of certificate straightaway for recovery of the amount is on the face of it illegal and devoid of jurisdiction. 9. The award of the Tribunal dated 30.6.1992 passed in Reference No.10 of 1987, stood modified accordingly in view of the signed settlement dated 25.07.1997 without any claim for back wages and the same having been implemented cannot be reopened subsequently as an after thought and thus the initiation of the certificate proceeding under the Public Demand Recovery Act was misconceived and devoid of jurisdiction. Even otherwise estoppel by conduct will apply against the respondent workmen. 10. Considering the aforesaid facts and circumstances of the case, this writ petition is allowed and the certificate proceeding and order dated 10.11.2003 is quashed without any order as to cost.;