Allahabad High Court
Rakesh Kumar vs State Of U.P. And 2 Others on 30 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 981
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 3 A.F.R. Case :- WRIT - C No. - 9374 of 2019 Petitioner :- Rakesh Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Santosh Kumar Srivastava Counsel for Respondent :- C.S.C.,Ashish Mishra, Diptiman Singh Hon'ble J.J. Munir,J.
1. This petition has been filed seeking to quash an order dated 07.12.2018 passed by the Deputy Labour Commissioner, Basti Division, Basti in TP Case no.6 of 2016, Rakesh Kumar vs. Sanstha Pramukh/ Varishth Prabandhak (एच०आर० एवं प्रशासन) M/s. Basti Sugar Mill, Basti declining to grant arrears of revised salary, arrears on account of revision in Medical Reimbursement, LTA, House Rent Allowance, Exgratia dues and Special Allowance, that are claimed not to have been paid in breach of the petitioner's entitlement under the U.P. Factories Welfare Officers Rules, 1955, and hereinafter referred to as 'the Service Rules'.
2. The aforesaid order dated 07.12.2018, that is hereinafter referred to as the impugned order, came to be passed by the Deputy Labour Commissioner on an application made by the petitioner claiming reliefs regarding arrears due to revision of pay and other allowances etc. for the period in question, in consequence of the enforcement of the Sixth Pay Commission, invoking jurisdiction of the Deputy Labour Commissioner under the U.P. Industrial Peace (Timely Payment of Wages) Act, 1978, and, hereinafter referred to as the Act of 1978.
3. Heard Sri S.K. Srivastava, learned counsel for the petitioner in support of the motion to admit this petition to hearing. Sri Ashish Mishra, learned counsel for respondent no.3 and Sri Mahendra Pratap Singh, learned Standing Counsel appearing for respondents nos.1 & 2, have been heard in opposition.
4. A perusal of the impugned order shows that the Deputy Labour Commissioner has primarily rejected the petitioner's claim not on ground that he has found it to be untenable, but dwelling on the scope of the Act of 1978, which he has found to be applicable in order to ensure timely payment of wages to the workers of a Factory/ Industrial Establishment in order to safeguard industrial peace. He has held that the Act of 1978 does not provide a forum for adjudication of disputes about entitlement of wages of an individual employee, but provides for a mechanism to obviate an emergency through a summary procedure, where it is a case of industrial unrest on account of non-payment of wages of a large number of workmen. In those cases alone, a recovery certificate can be issued after a summary inquiry, to preserve industrial peace.
5. Before this Court, learned counsel for the petitioner has vehemently castigated that reasoning and submitted that the petitioner's entitlement to receive revised emoluments, under the Sixth Pay Commission, that have been incorporated in the Service Rules by virtue of the U.P. Factory Welfare Officers (9th Amendment) Rules, 2000, have been held to be payable in favour of similarly circumstanced Welfare Officers by a Division Bench of this Court in Praveen Kumar Khare vs. State of U.P. and others, Civil Misc. Writ Petitino no.46467 of 2006, decided on 14.09.2007. He submits that in view of the aforesaid decision holding Welfare Officers Grade-II entitled to arrears as aforesaid, similarly circumstanced as the petitioner who is a Welfare Officer Grade-III under the Service Rules, also employed with a Sugar Mill as was the case in Praveen Kumar Khare (supra), there was hardly any issue to be adjudicated by the Deputy Labour Commissioner, on the basis of which he could decline to grant relief by holding it to be a matter involving adjudication of rights about a disputed question of entitlement regarding emoluments. It is just that the Deputy Labour Commissioner, according to the revised pay scale admissible under the amended Service Rules was required to arithmetically calculate the arrears due, and issue a recovery certificate against the Employers.
6. Sri S.K. Srivastava, learned counsel for the petitioner has placed much reliance on the fact that though the petitioner is an officer by all means, yet he is entitled to invoke the provisions of the Act of 1978 by virtue of Rule 22 of the Service Rules (framed in the exercise of powers under Sections 49, 50 & 112 of the Factories Act, 1948, which reads:
"22. Application of the Uttar Pradesh Industrial Peace (Timely Payment of Wages) Act, 1978. - The provisions of the Uttar Pradesh Industrial Peace (Timely Payment of Wages) Act, 1978, shall also apply in the case of Welfare Officers."
7. He submits that by virtue of Rule 22 though the petitioner is no workman, the provisions of the Act of 1978 squarely apply to him in his capacity as a Welfare Officer. He is, therefore, entitled to claim under the Act of 1978 before the Deputy Labour Commissioner. It is submitted that the Deputy Labour Commissioner has committed a manifest error of law in discarding his claim, influenced as learned counsel for the petitioner submits by the fact that he is not essentially a workman, but an Officer to whom benefit of the Act of 1978 has been extended by virtue of Rule 22 of the Service Rules. He submits that the Deputy Labour Commissioner has committed a manifest error in refusing his claim, considering it to be a matter which requires adjudication about his entitlement to wages as revised by the U.P. Factory Welfare Officers (9th Amendment) Rules, 2000, under different heads of emoluments.
8. The Court has given a thoughtful consideration to the matter, perused the impugned order, and the documents on record. This Court has, in particular, considered the nature of the petitioner's claim before the Deputy Labour Commissioner that has culminated in the order impugned. A perusal of the petitioner's claim which is clearly discernible from his application dated 11.01.2017, giving rise to TP Case no.6 of 2016 together with the claim made to his Employers, annexed as Annexure no.6, dated 14th December, 2016 (which also carries calculation sheets in 3 leaves) unmistakably shows that the petitioner's claims are arrears on account of revision of his pay w.e.f. 1st January, 2016 upon enforcement of the Sixth Pay Commission, that has been given effect to by the U.P. Factory Welfare Officers (9th Amendment) Rules, 2000.
9. To the understanding of this Court since revision of salary and different categories of allowances on a corresponding basis is the essence of the petitioner's claim, that by no means is admitted by respondent no.3, the petitioner's former Employers, it gives rise to a lis between parties, howsoever simple or obvious the adjudication of it might be. There is no cavil about the scope of the Act of 1978, which has been the subject matter of much judicial attention. It is designed not to deal with individual claims regarding payment of emoluments, particularly, claims where the Employers and an individual or a group of workmen may be at issue regarding entitlement, but a legislation to obviate an impending industrial unrest on account of non-payment of wages in time to workmen at large, belonging to an industrial establishment. The nature of inquiry is summary; one that is determinative of the obvious and not adjudicatory of a lis. This is not the case here, as already indicated. As to the law in this regard, the Court may place reliance on the decision of the Supreme Court in Modi Industries Ltd. vs. State of U.P. and others, (1994) 1 SCC 159, where it has been held thus in paragraphs 7, 8 and 9 of the report:
7. It will thus be clear from the preamble, the statement of objects and reasons and the provisions of the Act that, firstly, the Act has been placed on the statute book to ensure timely payment of wages by the bigger establishments, the incidence of disturbance of industrial peace being greater in such establishments on account of the default in payment of wages. Secondly, the Act deals with defaults in payment of the wage-bill of all the workmen in the establishment. It is not meant to provide a remedy for the default in payment of wages of individual workmen. That can be taken care of by the provisions of the Payment of Wages Act, 1936 which provisions are found inadequate to ensure timely payment of wages of the whole complement of workmen in an establishment. Thirdly, it is not in respect of the default in payment of every wage-bill but only of a wage-bill exceeding Rs 50,000 that the Labour Commissioner can be approached under the Act for redressal of the grievance. Fourthly, the Act is not applicable to all establishments but only those establishments which produce, process, adopt or manufacture some articles. It will, therefore, be evident that the Act does not supplant or substitute the Payment of Wages Act, 1936 but supplements the said Act, in the limited area, viz., where the establishment, as stated above, (i) produces, processes, adopts or manufactures some articles, (ii) where there is a default in the wage-bill of the entire such establishment and (iii) where such wage-bill exceeds Rs 50,000. The object of the Act as stated above is not so much to secure payment of wages to individual workmen but to prevent industrial unrest and disturbance of industrial peace on account of the default on the part of the establishment in making payment of wages to their workforce as a whole. It appears that many establishments had a tendency to delay the payment of wages to their workmen and were playing with the lives of the workmen with impunity. This naturally led to a widespread disturbance of industrial peace in the State. Hence the legislature felt the need for enacting the present statute. This being the case, the inquiry by the Labour Commissioner contemplated under Section 3 of the Act is of a very limited nature, viz., whether the establishment has made a default in timely payment of wages to its workmen as a whole when there is no dispute that the workmen are entitled to them.
8. The inquiry under Section 3 being thus limited in its scope, the Labour Commissioner's powers extend only to finding out whether the workmen who have put in the work were paid their wages as per the terms of their employment and within the time stipulated by such terms. If the Labour Commissioner is satisfied that the workmen, though they have worked and are, therefore, entitled to their wages, are not paid the same within time, he has further to satisfy himself that the arrears of wages so due exceed Rs 50,000. It is only if he is satisfied on both counts that he can issue the certificate in question. Under the Act, the Labour Commissioner acts to assist the workmen to recover their wages which are admittedly due to them but are withheld for no fault on their behalf. He does not act as an adjudicator if the entitlement of the workmen to the wages is disputed otherwise than on frivolous or prima facie untenable grounds. When the liability to pay the wages, as in the present case, is under dispute which involves investigation of the questions of fact and/or law, it is not the function of the Labour Commissioner to adjudicate the same. In such cases, he has to refer the parties to the appropriate forum.
9. The powers conferred on the Labour Commissioner under Section 3 of the Act are to prevent apprehended or present breach of industrial peace. That is why the inquiry contemplated is of a summary nature. The exercise of the said powers by the Labour Commissioner does not prevent either party from approaching the regular forum for the redressal of its grievance................"
10. The said decision has been followed by a Division Bench of this Court in The United Provinces Sugar Mill Company Ltd. vs. State of U.P. and others, Writ - C No.21885 of 2001, decided on 12.03.2010.
11. The learned counsel for the petitioner has placed reliance on a decision of this Court in ITC Ltd. vs. State of U.P. and others, 2003(1) AWC 91. This Court is afraid that the said decision has no applicability to the proposition that falls for consideration here. The decision in ITC Ltd. (supra) was rendered on a writ petition filed by an industrial establishment/ Employers who were a company registered under the Companies Act, 1956. They brought the said petition to challenge a notification of 27th February, 1990 issued by the State Government, by which an amendment was brought to Rule 3 of the Service Rules to bring the same in accord with the recommendation of the Second Pay Commission Report, and also to give effect to the recommendation of Equivalence Committee, 1986. The amendment was given retrospective effect, that is to say, w.e.f. 1st July, 1979. These amendments to Rule 3 dealt with all Grades of Welfare Officers i.e. Grade I, II and III. To enforce the said amendment, the Director Factories, U.P. had written to the petitioner Company requiring the petitioners there to conform to the amended Rule 3 aforesaid. It appears that at the end of some exchange of correspondence, the Director of Factories issued a memo dated 20.05.1990 carrying directions to the petitioners in that case to comply with the Amended Rules and pay wages, as also other allowance to Welfare Officers working with them. It was against the said action of the Director of Factories, and as the decision in the case indicates, to obviate a prosecution, that the Employers filed a writ petition, that was ultimately dismissed discussing the provisions of the Factories Act, the 7th Amendment to the Service Rules, the legality of making it retrospective and so forthwith. The decision does not involve any principle that may have the least bearing on the controversy involved here.
12. This Court does not find any merit in the Writ Petition, which accordingly fails and is dismissed. Costs easy.
Order Date :- 30.3.2019 Anoop