While arguing the matter much stress was given by the learned Counsel for the petitioner to Section 4 of the 1978 Act which pertains to power of the Labour Commissioner. It was argued that the respondent No. -2 while exercising the powers under 1978 Act had to "ascertain" the wages bill of the establishment in respect of which the alleged default has been committed. By placing reliance on the word "ascertain" Sri P.K. Sinha learned Counsel for the petitioner contends that ascertainment would entail at least a summary investigation so as to ascertain the facts which was a requirement imposed by the 1978 Act upon the Labour Commissioner which he failed to discharge in as much as while passing the order dated 17.8.1998, he has simply rejected the preliminary objections raised by the petitioner and by contending that as the petitioner has not given any information under Form-III as such he has no alternative but to treat the application filed by the workmen i.e. respondent No. -1 as true and proceeded to direct for payment of the amount of approximately Rs. 57 lakhs. Thus, it is contended that once no ascertainment was done by the respondent No. -2 as such the impugned order would be bad in the eyes of law. {Para 6}
12. The word "ascertain" has been defined in the Oxford Advanced learned Dictionary 5th edition as "to investigate so that one knows and is certain; to find out". Thus, a duty was cast upon the Labour Commissioner to have first ascertained as to whether the wages which were being sought for by the respondent No. -1 were actually due or not particularly taking into consideration the fact that upon notice being issued on the application filed by the respondent No. -1 under the provisions of 1978 Act, the petitioner company instead of submitting a parawise reply, submitted its preliminary objection pertaining to the jurisdiction of the Labour Commissioner to entertain the matter. While rejecting the said preliminary objections and simultaneously passing the impugned order dated 17.8.1998 for payment of Rs. 57,59,790.90/- the respondent No. -2 should have been itself satisfied about the actual amount due to the respondent No. -1 after ascertaining the wages bill raised by the respondent No. -1 even if no reply in Form III, as provided in Rule 4 of the 1981 Rules, was forthcoming from the petitioner and it is only after exercising its power given under Section 3 and 4 of the 1978 Act for ascertainment of wages bill that the respondent No. -2 could have proceeded to pass the order for payment of the wages as demanded by the respondent No. -1.
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Service Single No. 5202 of 1998
Decided On: 15.03.2018
Hindustan Aeronautics Ltd. Vs. Hindustan Aeronautics Karmchari Sabha
Hon'ble Judges/Coram: Abdul Moin, J.
Citation: (2018) 157 FACLR 521: (2018) 4 ADJ 538 (ALL), MANU/UP/1381/2018.
1. Heard Sri P.K. Sinha, learned Counsel for the petitioner, learned Standing Counsel appearing for respondents No. -3 to 5 and Sri Amrendra Nath Tripathi, learned Counsel for respondents No. -7 to 35. None has appeared for respondent No. -6.
2. By means of the present writ petition the petitioner has prayed for the following reliefs:-
"(a) Issue a writ, order or direction in the nature of certiorari quashing the Recovery Order dated 17.8.1998, contained in Annexure -1 for an amount of Rs. 57,59,790.90/- passed by the opposite party No. -2, the Recovery Certificate dated 24.8.1998 as contained in annexure -2 for an amount of Rs. 57,59,790.90/- and the attachment order No. -049683 as issued by the Sub-Divisional Magistrate, Lucknow for attaching the bank account in the Bank, Opposite Party No. -6.
(b) Issue a writ, order or direction in the nature of mandamus directing the respondents not to proceed any further with the recovery procedure as undertaken by them and restrain the officials of the Opposite Parties from adopting any coercive measures against the officers of the petitioner's establishment for implementation or execution of the order as contained in Annexure No. -1.
(c) Issue a writ, order or direction in the nature of mandamus, directing the Sub-Divisional Magistrate, Lucknow to withdraw forthwith the attachment order No. -049683 for an amount of Rs. 63,35,782.90/- and require the Opposite Party No. -6 to allow the petitioners to operate the said bank account.
(d) Issue a writ, order or direction in the nature of mandamus directing the Opposite Party No. -6 to forthwith allow operation of the Bank Account No. C-16 of the petitioner in the respondent's Bank.
(e) Issue any other writ, order or direction as this Hon'ble Court may deem just and proper in the circumstances of the case."
3. The case set forth by the petitioner is that the respondent No. -1 i.e. Hindustan Aeronautics Karmchari Sabha filed an application under the U.P. Industrial Peace (Timely payment of wages) Act 1978 (hereinafter referred to as 1978 Act) before the Deputy Labour Commissioner Lucknow the respondent No. -2 for payment of the difference of amount of wages vide their application dated 10.11.1997 alongwith which a list of names of employees, the actual amount and the net amount which had been paid to them and the balance amount liable to be paid to them had been annexed. Copy of said application dated 10.11.1997 is Annexure No. -4 to the petition. The respondent No. -2 issued a notice to the petitioner on 29.11.1997 pursuant to which the petitioner filed preliminary objections raising a plea of non maintainability of the said application as filed by the respondent No. -1 before the respondent No. -2. The issue raised in the said preliminary objection need not detain this Court as the same is not relevant for deciding the instant petition. The respondent No. -1 submitted its reply to the preliminary objections raised by the petitioner and the respondent No. -2 thereafter heard the matter and passed the order dated 17.8.1998 rejecting the preliminary objections raised by the petitioner and simultaneously passed an order for issue of recovery certificate for an amount of Rs. 57,59,790.90/- which infact was issued subsequently vide recovery certificate dated 24.8.1998 and the attachment order was also issued. Copies of order dated 17.8.1998, the recovery certificate dated 24.8.1998 and attachment order are Annexure Nos. -1, 2 and 3 to the writ petition. Subsequent thereto, various orders were passed by this Court from time to time but the same are not relevant to the reliefs prayed for by the petitioner.
4. Being aggrieved with the aforesaid order dated 17.8.1998, recovery certificate dated 24.8.1998 and attachment order, the present petition was filed. This Court vide order dated 19.11.1998 stayed the order dated 17.8.1998, recovery certificate dated 24.7.1998 as well as attachment order on the condition that the petitioner deposits an amount equal to 50% of the amount of recovery.
5. Learned Counsel for the petitioner while challenging the aforesaid three orders, has contended that the learned Deputy Labour Commissioner patently erred in law in deciding the case, though he had no jurisdiction to decide it. It has also been contended that if the respondent No. -2 i.e. Deputy Labour Commissioner was of the opinion that it had jurisdiction to entertain and decide the matter then in that view of the matter, the petitioner should have been given an opportunity of filing a written statement or a reply to the claim raised by the respondent No. -1 before adjudicating the issue raised before it. It has further been argued that by mere filing of an application by the respondent No. -1 and claiming a certain amount, without adjudicating on the question as to the entitlement of the amount to the workmen, the impugned order could not have validly been passed by the respondent No. -2. It has also been contended that immediately after passing of the order dated 17.8.1998 the petitioner preferred a detailed application for recall of the order wherein certain facts with regard to non applicability of Section 3 of the 1978 Act, were mentioned and it was also stated that the members of the respondent No. -1 were being paid wages in accordance with Engineering Wage Board Recommendations and no amount is due to be paid to them. Copy of the recall application alongwith an application for interim order (praying that the Collector may not proceed further with the recovery certificate) as moved before the respondent No. -2, is Annexure No. -8 to the writ petition. It is contended that the respondent No. -2 though heard the matter yet failed to pass any order on the said application for recall. It has also been contended by the learned Counsel for the petitioner that in the application filed by the respondent No. -1 under the 1978 Act, no basis of calculation of the amount as indicated in the list annexed in the said application was indicated and thus it was not known as to how the respondent No. -2 had ascertained the amount of Rs. 57,59,790.90/- which was directed to be paid by the petitioner as indicated in the order dated 17.8.1998. On merits it has been contended that once the recommendations of the Engineering Wage Board are available for wage structure of the workmen working in the establishment on regular/casual basis, the respondent No. -2 ought to have considered the same. It is further contended that as per the recommendations issued vide notification dated 26.9.1980 the members of respondent No. -1 are only entitled for the wages as mentioned in the said notification and nothing more and consequently the impugned order alongwith the consequential order of recovery and attachment are bad and merit to be set aside.
6. While arguing the matter much stress was given by the learned Counsel for the petitioner to Section 4 of the 1978 Act which pertains to power of the Labour Commissioner. It was argued that the respondent No. -2 while exercising the powers under 1978 Act had to "ascertain" the wages bill of the establishment in respect of which the alleged default has been committed. By placing reliance on the word "ascertain" Sri P.K. Sinha learned Counsel for the petitioner contends that ascertainment would entail at least a summary investigation so as to ascertain the facts which was a requirement imposed by the 1978 Act upon the Labour Commissioner which he failed to discharge in as much as while passing the order dated 17.8.1998, he has simply rejected the preliminary objections raised by the petitioner and by contending that as the petitioner has not given any information under Form-III as such he has no alternative but to treat the application filed by the workmen i.e. respondent No. -1 as true and proceeded to direct for payment of the amount of approximately Rs. 57 lakhs. Thus, it is contended that once no ascertainment was done by the respondent No. -2 as such the impugned order would be bad in the eyes of law. In support of his submissions learned Counsel for the petitioner has placed reliance upon the judgment of this Court in the case of Indian Oxygen Shramik Sangh v. Additional Labour Commissioner and others reported in MANU/UP/0164/1992 as well as the judgment of the Hon'ble Supreme Court in the case of Modi Industries Ltd. v. State of U.P. and Others reported in MANU/SC/0111/1994 : (1994) 1 SCC page 159.
7. Per contra Sri Amrendra Nath Tripathi learned Counsel appearing for respondent Nos. -7 to 35 has contended that there is no infirmity or illegality in the impugned order passed by the respondent No. -2 and the consequential recovery certificate and the attachment order. Shri Tripathi, learned Counsel contends that a settlement was entered into in respect of the wage structure as well as conditions of service of all workmen of the petitioner Company. The said settlement was duly registered under the provisions of U.P. Industrial Disputes Act 1947 and thus is binding between the parties. Copy of the settlement is Annexure-CA-1 to the writ petition. Despite the said settlement the management of the petitioner Company started making unauthorized deductions from the wages of the workmen since 1985 onwards despite protest. It was when despite persuasion and representation that the petitioner failed to honour the settlement that the respondent No. -1 had to move an application before the respondent No. -2 under the 1978 Act for ensuring that the wages of the labour in the Horticulture Section was paid without any deductions in accordance with the said settlement. Upon filing of the said application a notice had been issued to the petitioner forwarding the application of the respondent No. -1 alongwith a list of workmen and a quantum of deductions being made but the petitioner only raised a preliminary objection pertaining to jurisdiction and did not file a detailed reply and it was in those circumstances that the respondent No. -2 finally heard the matter and passed the order dated 17.8.1998 for payment of the amount. As regards the application for recall of the order dated 17.8.1998, it is contended that there is no provision under the 1978 Act for an application for recall and consequently the respondent No. -2 has not passed any order upon the same. It has also been contended by learned Counsel for the respondents that once there was a settlement between the petitioner Company and the workman and the wages were not paid in accordance with the said settlement and the wage structure mentioned in the said settlement consequently the said wages being presettled wages were liable to be realised from the management and accordingly the provisions of Section 3 of the 1978 Act would be fully applicable. Thus a prayer has been made for dismissal of the writ petition with costs.
8. The Court has heard the learned Counsel for the respective parties and perused the records. The undisputed facts are that upon an application being filed by the respondent No. -1 under the provisions of 1978 Act notice was issued to the petitioner to submit its reply. The petitioner instead of submitting a reply pertaining to the alleged wages being claimed by the respondent No. -1 submitted its preliminary objection and the respondent No. -2 thereafter proceeded to decide the matter and passed the order dated 17.8.1998 and the consequential recovery certificate dated 24.8.1998 for recovering an amount of the alleged wages amounting to approximately Rs. 57 lakhs and thereafter, the attachment order was also issued.
9. The statements and objects of the 1978 Act reveal that the said Act came to be promulgated for the reason that there was delay in payment of wages of workmen which led to simmering discontent among them. The provisions of Payment of Wages Act 1936 were found to be inadequate to ensure timely payment of wages. The incidents of disturbance of industrial peace being greater in comparatively bigger establishments it was thus considered necessary to provide that if the wage bill in default exceeds Rs. 50,000/- the amount should be recovered as arrears of land revenue and consequently keeping in view the said statements and objects, the 1978 Act came into force w.e.f. 12.12.1977. Section 3 and 4 of the 1978 Act read as under:-
Section 3. Recovery of wages in certain industrial establishments as arrear of land revenue.-
(1) Where the Labour Commissioner is satisfied that the occupier of an industrial establishment is in default of payment of wages and that the wage-bill in respect of which such occupier is in default exceeds fifty thousand rupees, he may, without prejudice to the provisions of Sections 5 and 6, forward to the Collector, a certificate under his signature specifying the amount of wages due from the industrial establishment concerned.
(2) Upon receipt of the certificate referred to in subsection (1), the collector shall proceed to realise from the establishment, the amount specified therein, besides recovery charges at the rate of ten percent, as if such amount were an arrear of land revenue.
(3) The amount realised under sub-section (2) shall, after deducting the recovery chargers, be placed at the disposal of the labour commissioner who shall disburse the same or cause it to be disbursed among the workmen entitled thereto.
(4) Where the amount so realised falls short of the wages bill in respect of which the occupier has been in default, the labour commissioner may arrange for disbursement of such proportion or respective proportions of the wages due to various categories of workmen as may think fit.
(5) The liability of occupier towards each workman in respect of payment of wages, shall to the extent of the amount paid to such workman under this section stand discharged.
Section 4. Powers of labour commissioner.- For the purposes of ascertaining the wages-bill of an establishment in respect of which default has been committed the labour commissioner shall have all the powers of a civil court, while trying a suit, under the court of civil procedure, 1908 in respect of enforcing the attendance of witnesses and examining them on oath compelling the production of documents and shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the code of Criminal Procedure, 1973.
10. The rules namely the Uttar Pradesh Industrial Peace (Timely payment of Wages) Rules 1981 (hereinafter referred to as 1981 Rules) were issued in exercise of the powers under Section 8 of the 1978 Act. Rule 4 of the 1981 Rules is relevant, which is being reproduced below:
"4. Ascertainment of wage bill-(1) On receipt of information about the default of payment of wages exceeding of fifty thousand rupees in an industrial establishment, the Labour Commissioner shall serve a notice on its occupier in Form II for the purposes of ascertaining the wage bill in respect of which default in payment has been committed. The Labour Commissioner may also require the occupier to furnish to him the information in Form III and to produce such other information and material he may consider necessary for the above purpose.
(2) The Labour Commissioner shall forward to the Collector a certificate in Form IV under his signature specifying the amount of wages due from the industrial establishment concerned.
(3) The amount realised by the Collector and placed at the disposal of the Labour Commissioner shall be disbursed by the Labour Commissioner himself or he may cause it to be disbursed through the occupier of the concerned industrial establishment among the workmen entitled thereto. The account of amount, so disbursed among the workmen, shall be maintained if Form V by the Labour Commissioner or the occupier of the concerned industrial establishment, as the case may be, and, where the amount is disbursed by the Labour Commissioner, himself, a copy of the same shall be forwarded to the occupier of the industrial establishment concerned."
11. From perusal of Section 3 of 1978 Act read with Rule 4 of the 1981 Rules what clearly comes out is the "satisfaction" of the Labour Commissioner that the occupier of establishment is in default of payment of wages and that the wage bill in respect of which such occupier is in default exceeds Rs. 50,000/- the said "satisfaction" is based upon the "ascertainment" to be done by the Labour Commissioner. The ascertainment of wage bill is to be done both under the provisions of Section 4 of the 1978 Act and Rule 4 of the 1981 Rules which categorically gives the powers of the Labour Commissioner for the purposes of ascertaining wages bill of an establishment and also provides that on receipt of information about the default of payment of wages exceeding Rs. 50,000/- in an Industrial Establishment, the Labour Commissioner shall serve a notice on the occupier of the establishment for the purpose of ascertaining the wage bill of which default in payment has been committed and the Labour Commissioner may also require the occupier to furnish to him the information in Form-III and to produce such information and material which he may consider necessary for the above purpose. Thus, both Section 4 of the 1978 Act and Rule 4 of the 1981 Rules pertain to the satisfaction of the Labour Commissioner pertaining to the wage bill and ascertainment of the said wage bill. At the risk of repetition, it is stressed that for the purpose of such ascertainment, powers of a Civil Court have been given to the Labour Commissioner under Section 4 of the 1978 Act in respect of enforcing the attendance of witnesses and examining them on oath and compelling the production of documents.
12. The word "ascertain" has been defined in the Oxford Advanced learned Dictionary 5th edition as "to investigate so that one knows and is certain; to find out". Thus, a duty was cast upon the Labour Commissioner to have first ascertained as to whether the wages which were being sought for by the respondent No. -1 were actually due or not particularly taking into consideration the fact that upon notice being issued on the application filed by the respondent No. -1 under the provisions of 1978 Act, the petitioner company instead of submitting a parawise reply, submitted its preliminary objection pertaining to the jurisdiction of the Labour Commissioner to entertain the matter. While rejecting the said preliminary objections and simultaneously passing the impugned order dated 17.8.1998 for payment of Rs. 57,59,790.90/- the respondent No. -2 should have been itself satisfied about the actual amount due to the respondent No. -1 after ascertaining the wages bill raised by the respondent No. -1 even if no reply in Form III, as provided in Rule 4 of the 1981 Rules, was forthcoming from the petitioner and it is only after exercising its power given under Section 3 and 4 of the 1978 Act for ascertainment of wages bill that the respondent No. -2 could have proceeded to pass the order for payment of the wages as demanded by the respondent No. -1. In this regard the Hon'ble Supreme Court in the case of Modi Industries Ltd. (Supra) has held as under:-
"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.
13. This Court in the case of Indian Oxygen Shramik Sangh (Supra) had held as under:-
"9. In Payment of Wages Inspector v. Surajmal (MANU/SC/0309/1968 : 1969-I-LLJ-762) the Supreme Court held that the Payment of Wages authority had a limited jurisdiction, and he could not decide cases involving complicated questions of law or fact. In my opinion the ratio of this decision will also apply to applications filed under the 1978 Act since the powers of the authority under the Payment of Wages Act as well as the 1978 Act are similar. A comparison of the provisions of both these Acts makes this clear. Section 18 of the Payments of Wages Act giving the Payment of Wages Authority certain powers of the civil court is similar to Section 4 of the 1978 Act. Hence, the scope of the jurisdiction under the 1978 Act has to be construed as similar to the jurisdiction of the Payment of Wages Authority under the Payment of Wages Act, and consequently it must be held that this jurisdiction is a limited one. It is only where the claim of the workmen cannot be seriously disputed that recourse can be taken to the 1978 Act, and in cases involving seriously disputed question of fact or law the workmen must approach the Government to make a reference under Section 4-K of the U.P. Act or Section 10 of the Central Act and they cannot take recourse to the 1978 Act."
14. In this regard the Hon'ble Supreme Court in the case of Smt. Swaran Lata Ghosh v. H.K. Banerjee and Others reported in MANU/SC/0023/1969 : 1969(1) SCC 709 in a matter where no reasons had been recorded by the learned Trial Judge in support of his conclusion, held as under:-
"Trial of a civil dispute in Court is intended to achieve, according to law and the procedure of the Court, a judicial determination between the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their respective cases on questions of law as well as fact, ascertainment of facts by means of evidence tendered by the parties, and adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial the Judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the Court or by law, he must record the ultimate mental process leading from the dispute to its solution. A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge : a mere order deciding the matter in dispute not supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to ensure that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest : it is also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is ordinarily entitled to know the grounds on which the Court has decided against him, and more so, when the judgment is subject to appeal. The Appellate Court, will then have adequate material on which it may determine whether the facts are properly ascertained, the law has been correctly applied and the resultant decision is just. It is unfortunate that the learned Trial Judge has recorded no reasons in support of his conclusion, and the High Court in appeal merely recorded that they thought that the plaintiff had sufficiently proved the case in the plaint."
15. Though the aforesaid matter in the case of Smt. Swaran Lata Ghosh (Supra) pertains to a matter before the Civil Court yet the principle of law laid down by the Hon'ble Supreme Court would be perfectly applicable in the facts of the instant case. When the impugned order is seen in the context of the powers given to the respondent No. -2 in terms of Section 4 of the 1978 Act, what this Court finds is that even the respondent No. -2 was required to ascertain the facts by means of evidence tendered by the parties and he should have adjudicated the matter by a reasoned order in the dispute by giving finding on the facts in controversy and application of law to the facts found which are essential facets and attributes of a judicial order. However, the respondent No. -2 clearly shirked his responsibility and proceeded to simply indicate in the impugned order that because the petitioner company had not given any information in Form-III as such he had no option but to treat the application filed by the respondent No. -1 as true. This manner of proceeding with the matter was totally uncalled for and amounted to non exercise of the powers vested with the respondent No. -2 under Section 4 of the 1978 Act. Moreover, the impugned order dated 17.8.1998 contained in Annexure No. -1 as passed by the respondent No. -2 simply reads and states that upon a notice being issued by the respondent No. -2, the petitioner put in appearance and stated that the respondent No. -2 would not have any jurisdiction under the 1978 Act to decide the dispute. No reply on merits pertaining to the admissibility of the alleged wages bill was given by the petitioner. The respondent No. -2 considered the issue of preliminary objection, rejected it and indicated in the said order that as the petitioner has not made available any information in Form-III as such the respondent No. -2 had no option but to treat the said wages bill as true and that as the said amount exceeded Rs. 50,000/- accordingly by means of order dated 17.8.1998 it was directed that a recovery certificate for Rs. 57,59,790.90/- be issued. Thus the impugned order clearly lacks the ascertainment on the part of respondent No. -2 as provided under Section 4 of the 1978 Act and Rule 4 of the 1981 Rules. Merely because the petitioner had failed to file its reply in Form III to the application of the respondent No. -1, the same would not give the power to the respondent No. -2 to pass an order without ascertaining if infact the said wages bill was due against the petitioner to the workers and members of the respondent No. -1 Union.
16. There is yet another aspect of the matter in as much as Annexure C.A.-1 to the counter affidavit is alleged to be the copy of the initial wage settlement and subsequent wage settlement entered into between the Unions and the Management. Annexure CA-1 reads as Memorandum of Understanding between workmen and the management of Hindustan Aeronautics Ltd. on revision of wage structure and such related matter. Clause-4 of the said memorandum indicates the scope and coverage of the said memorandum of understanding which indicates that the settlement shall cover all workmen in Groups-A to F. Clause-6 gives the wages structure of Groups A to F workmen and Clause 7 gives the fixation of pay in the revised scale of pay of Groups A to F workmen. Clause 8 of the said memorandum indicates that pending finalization of revised wage structure, workmen in Group-A to Group -E other than trainees apprentices and causal workmen have been paid w.e.f. 1.10.1973 an ad-hoc increase in emoluments represented by the difference between the minimum wage in the existing and revised scale. Further, in the application filed by the respondent No. -1 before the Labour Commissioner i.e. the respondent No. -2 as contained in Annexure No. -4 to the writ petition does not indicate anywhere as to whether the said workmen claiming under the provisions of 1978 Act fall within the ambit of being workmen of Group A to Group F rather it itself describes the said employees as "casual labours"(Horticulture Section). Both the petitioner company and the respondent No. -1 are contesting pertaining to the applicability of the recommendations of the U.P. Engineering Wage Board or the Memorandum of Understanding which has already been indicated above. In the counter affidavit filed by the respondent No. -1, it has been specifically contended in paragraph No. -16 that the petitioner (Company) engages Malis in its Horticultural Department, who are performing same work as the person who are affected by the impugned order in the present writ petition, who are being designated as "casual labours" but who are performing the duties of Malis for the last 15 years regularly and the said persons are entitled for being paid wages in accordance with settlement as contained in Annexure C.A.-1. Thus, the respondent No. -1 has itself described its members as "casual labours" both in the application filed under the 1978 Act before the respondent No. -2 as well as in the counter affidavit and as already indicated above as per the Memorandum of Understanding, the wages described therein are only applicable for Group A to Group-F workmen and in terms of Clause -8 the trainees and casual labours are excluded.
17. In a supplementary affidavit filed by the petitioner dated 7.11.2017 it is the specific case that the casual Malis engaged in the establishment were being paid minimum wages by the State of Uttar Pradesh based on number of man-days. The rates payable to the skilled workers and unskilled casual workers have also been indicated. Reference has been given to the award issued by the Industrial Tribunal in the year 1990 for the casual Malis of the establishment being paid wages as per U.P. Engineering Wage Board from 1.6.1990 at rates applicable for unskilled and skilled labours. It is also a specific case that the rates being demanded by the respondent No. -1 as per the memorandum of understanding is being paid to the regular employees and not to casual labours. Incidentally there is no denial to the said supplementary affidavit filed by the petitioner.
18. Be that as it may, the fact of the matter remains that there is a dispute pertaining to the wages which would be payable to the respondent No. -1, i.e. as claimed by the respondent No. -1 in terms of the Memorandum of Understanding which is rebutted by the petitioner as not being applicable to the respondent No. -1. Hence, in view of the said dispute it was all the more incumbent upon the respondent No. -2 to have ascertained the wage bill of the establishment in terms of the powers given to the respondent No. -2 under Section 4 of the 1978 Act and Rule 4 of the 1981 Rules and the respondent No. -2 could not have shirked of the said responsibility of ascertainment by simply believing the application filed by the respondent No. -1 on the ground that no reply or rebuttal to the same had been filed. This is also clear from the judgments of the Hon'ble Supreme Court in the case of Modi Industries and Smt. Swaran Lata Ghosh (Supra) as well as the judgment of this Court in the case of Indian Oxygen Shramik Sangh (Supra).
19. After the aforesaid discussions this Court is only left with the option of remanding back the matter more particularly when there has been no adjudication of the dispute between the petitioner and the respondent No. -1 and no ascertainment as provided under the relevant Act and the Rules. It is a rather unfortunate state of affairs that almost 20 years after the date on which the impugned order was passed and the application was filed under the 1978 Act, this Court has to remand the matter for adjudication but this Court sees no other satisfactory alternate particularly keeping in view the discussions made above and the disputed questions involved herein.
20. Keeping in view the facts, circumstances and discussions this Court is of the view that the impugned order dated 17.8.1998 alongwith consequential recovery certificate dated 24.7.1998 and the attachment order are bad in the eyes of law and the same are accordingly quashed and set aside. The matter is remanded back to the respondent No. -2 to decide the same afresh without being influenced by any of the observations made by this Court, keeping in view the provisions of 1978 Act and the 1981 Rules within a period of six months from the date of receipt of a certified copy of this judgment.
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