Jharkhand High Court
Iag Company Ltd. (Formerly The Indo ... vs State Of Jharkhand And Ors. on 8 September, 2005
Equivalent citations: [2006(2)JCR374(JHR)]
Author: N.N. Tiwari
Bench: N.N. Tiwari
ORDER N.N. Tiwari, J.
1. In this writ application the petitioner-Company has prayed for quashing the order of certificate and entire proceeding of Certificate Case No. 1/04-05 initiated against the company under the provisions of Public Demands Recovery Act for realization of arrears of wages, of August and September 2004, of the concerned workmen under the provisions of Section 33(C) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ID Act).
2. The petitioner's case is that the petitioner-Company is Public Limited Company Incorporated under the Indian Companies Act and is engaged in manufacturing of flat glass. The factory of the company is situated at Bhurkunda, Ram-garh within the district of Hazaribagh. The company purchased the said factory in the year 1999. The said Company has about 1400 old permanent employees and more than 100 casual and contract workers. Despite financial constraints, the Company's unit is running without interruption for more than five years. But the production declined during the financial year 2004-05 causing loss of Rs. 3 lacs per day till September, 2004. The loss was at about one crore every month. The company's management held several meetings with the Employees Union and impressed upon them to gear up production for survival, but to no effect. The employees Union created such a situation that ultimately its both the furnaces cooled down in October, 2004. The company is in extremely adverse financial condition and it led to complete exhaustion of fund and under the compelling condition of acute financial crisis, the payment of wages of the employees for the month of August and September 2004 could not be made.
3. One Md. Ahshan Ansari, General Secretary, Jharkhand Glass Shramik Union, Bhadani Nagar, Hazaribagh made a complaint before the respondent No. 5 against non-payment of salary and wages of the workers of the factory for the month of August and September 2004. On the basis thereof a report was submitted by the respondent No. 5 to the Labour Commissioner, Jharkhand, Ranchi on 6.12.2004 recommending certificate proceedings for realization of two months wages amounting to Rs. 1,58,57,975.75 under the provisions of Section 33(C)(i) of the I.D. Act. Neither any notice was served on the management, nor the Deputy Labour Commissioner held any enquiry and took any evidence regarding the authorization by the individual workers. The reports of the D.L.C. was forwarded to the Under Secretary (respondent No. 2) who requested the Deputy Commissioner, Hazaribagh to initiate certificate proceeding under the provisions of P.D.R. Act in exercise of its power under Section 33(C)(i) of the I.D. Act. The requisition for a certificate was made before the Certificate Officer, Hazaribagh for realization of the aforesaid amount towards the arrears of salary for the month of August and September 2004. The Certificate Officer thereafter issued notice under Section 7 of the Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as P.D.R. Act) to the petitioner-company which was received in the petitioner's office on 12.1.2005. The Directors of the company have been shown as the certificate debtors in the said notices. The applicant Md. Ahshan Ansari, who claims as the General Secretary of Jharkhand Glass Shramik Union, has got no authorization by the workmen to file the said application.
4. The grievance of the petitioner is that the certificate proceeding is bad in law and Is wholly without jurisdiction as the application filed at the instance of Md. Ahshan Ansari is not at all maintainable under the provisions of Section 33(C)(i) of the I.D. Act. Section 33(C)(i) of the I.D. Act provides for an application by the workmen or a person duly authorized by him in the prescribed form as provided in the rules. The Union or the office bearer of the Union has no authority to make an application under Section 33(C)(i) on behalf of the workmen, though they can raise an industrial dispute. The said demand at best can be raised under the provisions of Payment of Wages Act and there is no application of Section 33(C)(i) of the I.D. Act in the facts and circumstances of the case and the certificate proceeding is wholly without jurisdiction. The Deputy Commissioner has also arbitrarily issued the certificate without making any prima facie enquiry and/or without being satisfied that the money claimed to be realized under the certificate is prima facie due to be paid under the provisions of Section 33(C)(i) of the I.D. Act. The respondents have also whimsically acted in hot haste only in order to please the local union leaders who are more interested in political gain rather than serving the interest of the workmen of the industry.
5. The respondent No. 6 Md. Ahshan Ansari, who is the applicant on behalf of the concerned workmen under Section 33(C)(i) of the I.D. Act, contested the petition. According to the respondent No. 6 the proceeding under the provisions of Public Demand Recovery Act has been rightly initiate by the respondent-authority for recovery of the wages under the provisions of Section 33(C)(i) of the I.D. Act. On 9.8.2004 there was tripartite agreement between the parties, the Labour Commissioner-cum-Conciliation Officer by letter dated 19.8.2004 directed the management to make payment of salary of the employees and also to pay gratuity to the retired employees and had warned that if the said order was not complied within three moths, prosecution shall be initiated against the management. There is no infirmity in the initiation of certificate proceeding and the application made by the respondent No. 6 in the capacity of the General Secretary of the Union is well maintainable.
6. Mr. K.N. Pd,. the learned Sr. counsel appearing on behalf of the petitioner, raised a short point questioning the maintainability of the application under Section 33(C)(i) of the I.D. Act and submitted that the applicant Md. Ahshan Ansari in the capacity of the General Secretary of the Union has no authority to make an application to the appropriate Government for recovery of the alleged dues of the wages of the concerned workmen. Learned counsel submitted that Section 33(C) clearly provides that application for recovery of money due from an employer under Section 33(C) of the I.D. Act can be made either by the workman/workmen or any other person authorized by him/them in writing in this behalf, or, in the case, of the death of the workman, by his assignee or heirs. The learned counsel submitted that the said Md. Ahshan Ansari does not have any authorization in writing by the workmen for making an application under Section 33(C) of the I.D. Act.
7. Mr. Anil Kumar, learned counsel appearing on behalf of the respondent No. 6 and Mr. K.K. Jhunjhunwala, learned counsel appearing on behalf of the State-respondents, one after the other, submitted that no written authorization is required for making an application under Section 33(C), the application is made by the General Secretary of the Union who is an elected representative of the workmen. Learned counsel submitted that recovery of money cannot be denied on the ground that the application was not made under the written authority of the workmen. Undisputedly the petitioner is the General Secretary of the Union.
8. Before adverting to the merit of the rival contentions of the learned counsel it would be expedient to look into the provision of Section 33(C) of the I.D. Act, which runs thus:
33. Recovery of money due from an employer.-(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of (Chapter 5-A or Chapter 5-B), the workman himself or any other person authorized by him in writing in this behalf, or, in the case, of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue:
Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:
Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant, had sufficient cause for not making the application within the said period.
(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months.
Provided that where the Presiding Officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.
(3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a Commissioner who shall, after taking such evidence as may be necessary, submitted a report to the Labour Court and the Labour Court shall determine the amount after considering the report of Commissioner and other circumstances of the case.
(4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in Sub-section (1).
(5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen.
Explanation.-In this section 'Labour Court' includes any Court constituted under any law relating to investigation and settlement of industrial disputes, in force in any State.
9. From the plain reading of Section 33(C) of the I.D. Act, it is clear that the provision can be invoked only by the workman himself or any other person authorized by him in writing to make an application to the appropriate Government for the recovery of the money due to him. A duty has been also cast on the appropriate Government to satisfy itself that any money is so due before issuing a certificate for that amount to the Collector for the process of recovery as public demand. In absence of an application by the workman himself or by a person authorized by the workman in writing for that purpose, an application filed by any other person cannot be entertained under the provisions of Section 33(C) of the I.D. Act.
10. Section 2(s) of the I.D. Act defines workmen which does not include any representative of the workmen like union leader and as such the applicant Md. Ah-shan Ansari does not come within the ambit of the definition "workmen" under the provisions of the I.D. Act. No authorization in writing by the workmen for the purpose of making an application under Section 33(C) has been brought on record. Therefore the applicant Md. Ahshan Ansari cannot be said to be competent to claim the arrears of the wages of the workmen and to recover the money from the employer under the provisions of Section 33(C) of the I.D. Act. The appropriate Government without considering that legal aspect and without application of mind has mechanically forwarded the matter for issuance of certificate and realization of the amount through the certificate proceeding. The Certificate Officer also, without giving relevant consideration on the facts and the provisions of law, has passed the impugned orders. The impugned orders as contained in An-nexures-3, 3/1 and 4 are in conflict with the law and are not sustainable. The entire proceeding of Certificate Case No. 1/04-05 is vitiated on account of the infirmities discussed hereinabove. The letter as contained in Annexure-2 by the Additional Secretary, Labour, Employment and Training Department, Government of Jharkhand being without legal basis is held unsustainable and the same is quashed. The entire proceeding of the Certificate Case No. 1/04-05 including the orders as contained in Annexures-3, 3/1 and 4 are also quashed. However, since the amount of wages of the workmen for the month of August and September 2004 is admittedly due and the petitioner-company is liable to pay the same as assured by the learned counsel for the petitioner before this Court. The petitioner must take effective steps for payment of the said arrears of wages to the concerned workmen without further delay. The concerned workmen are at liberty to take appropriate step(s) prescribed under law, for realization of the said arrears of wages as well as for the prescribed penalty, if the petitioner-company fails to discharge its said liability.
This writ application is, accordingly, disposed of. No order as to costs.