JUDGMENT V.K. Shukla, J.
1. Brief background of the case as mentioned in the writ petition is that complaint was made in respect of timely payment of wages. On the said complaint being made Labour Commissioner in exercise of power vested under Section 3 of U.P. Industrial Peace (Timely Payment of Wages ) Act 1978 proceeded to make inquiry. Notice dated 15.02.2005 was issued to respondent No. 4. In the said proceedings date was fixed was 28.02.2005 and on the said date workmen group was present and employer group was absent and the next date was fixed 03.03.2005. Again workmen group was present and employer group was absent and again date fixed was 11.03.2005. On 11.03.2005 both the groups were present and on the request of the side of the employer 18.03.2005 was fixed for submitting written statement. On 18.03.2005 next date fixed was 21.03.2005 for ensuring payment of wages to workmen and on 21.03.2005 none of the parties were present. Next date fixed was 06.04.2005. On 06.04.2005 workmen group was present and the employer group was absent. On the said date neither any payment has been paid nor any explanation has been furnished in respect of payment of wages for the month of January, 2005, as such orders were reserved and recovery certificate was issued on 13.04.2005 for realizing the amount in question. Thereafter after issuance of recovery certificate, application dated 27.04.2005 was moved contending therein that payment has already been made for the moth of January 2005 and voucher are already filed which is lying in the office and as such Recovery Certificate be cancelled. On the said application being moved Deputy Labour Commissioner issued notice on the said application fixing 10.05.2005 and asking the workmen to appear for submitting reply to the said application. During the pendency of the aforementioned application Recovery Certificate, proceedings were directed to be stayed. At this juncture present writ petition has been filed.
2. On present of writ petition, this Court on 10.08.2.005 passed following order which is being quoted below:
Issue notice to respondent No. 4 to show cause as to why writ petition may not be admitted/allowed, fixing a date in the last week of September, 2005. petitioner to take steps within one week. Standing Counsel represents respondent nos. 1 to 3.
All the respondents may file counter Affidavit by the next date fixed.
List on the date fixed.
It is contended on behalf of the petitioner that review application under the provisions of Industrial Disputes Act was not maintainable before the Deputy Labour Commissioner, U.P. therefore the impugned order dated 4th May 2005 is wholly without jurisdiction. It is further contended that even if the review application could have been entertained by the Deputy Labour Commissioner, he has no jurisdiction to pass an interim order during the pendency of the review application. Therefore, the endorsement made at item No. 2 of the impugned order is totally uncalled for. Petitioner has made out a case for grant of interim order.
Till the next date of listing operation of the order dated 4m May 2005 passed by the Deputy Labour Commissioner, shall remain stayed.
3. Counter affidavit has been filed and therein it has been sought to be contended that application was moved before the Deputy Labour Commissioner by the petitioner and 42 others claiming an amount of Rs. 2700/- as earned wages for the period starting 01.01.2005 to 31.01.2005. It has been contended that on 06.04.2005 appearance was entered contending therein that he has already sent the draft to 10 employees for the earned wages for the month of January 2005 to February 2005 and for remaining draft could not be sent due to lack of address and same will be sent with in a week. The workers side did not accept this plea and pleaded for issuance of Recovery. It has further been contended that thereafter information was furnished that 10 employees have already paid and rest: of the employees would be paid on 12.04.2005. It has been again asserted that due to illness of is relative employer/occupier was not in a position to deposit the amount and pleaded that amount would be paid on 15.04.2005 and ignoring this request it has been asserted that Recovery Certificate has been issued on 13.04.2005 and in this background application was moved on 27,04.2005 for recalling of the order dated 13.04.2005. It has been contended that on 26.05.2005 cheque of Rs. 66,000/- has been deposited before the Prescribed Authority and further it was also sought to be contended that some of the employees has put the draft to their Bank and and employees have taken full and final payment. Respondent has contended that list of the employee whose payment was deposited, same contains name of the petitioner also. It has been contended that respondent No. 2 thereafter on 26.05.2005 directed the Cashier to deposit the same In the Bank Account. It has further been asserted that draft were sent to all the employees on their home address and same of the employees deposited the amount in the Bank. It has also been contended that on 03.06.2005 order was passed that enquiry be made and in the presence of the employees wages to be ensured. On 06.06.2005 it was informed, that draft of some of the employee have been returned back. It has been contended that on 07.06.2005 payment was made to the employees whose name was mentioned in the application dated 06.06.2005. It has also been contended that Labour Enforcement Officer also submitted the report that money has been paid whereas said fact has been denied. In this background it has been contended that no interference be made.
4. Rejoinder affidavit has been filed and therein factum of payment has been disputed and that of writ petition has been reiterated.
5. After pleading mentioned above have been exchanged inter se parties present writ petition has been taken up for final disposal with the consent of the parties.
6. Miss. Bushra Maryam, representing the petitioner contended with vehemence that proceedings undertaken in U.P. Industrial Peace (Timely Payment of Wages) Act, 1978 are initiated with an object for speedy recovery of wages and for ensuring of timely payment when wage of amount Is more than Rs. 50,000/- and above and once final order has been passed then Deputy Labour Commissioner had no authority to recall or review the aforementioned order and as such entire proceedings undertaken after passing of final order then review of the same Is illegal and unsustainable.
7. Sri Vivek Misra, Advocate representing respondent No. 4 on the other hand contended that there is an error apparent on the face of the record, as such authorities has acted well within its jurisdiction in proceeding to entertain the review application, as such no interference is warranted as coupled with this the amount in question has already been paid, and writ petition be dismissed.
8. In order to appreciate the respective argument, the provisions of Section 2, 3 and 4 of U.P. Industrial Peace (Timely Payment of Wages) Act, 1978 is being looked into.
Section 2: Definitions- In this Act -
(a)" Industrial establishment" means any factory workshop or other establishment in which articles are produced, processed, adopted or manufactured with a view to their use transport or sale;
(b) "Labour Commissioner" includes an officer, not below the rank of an Assistant Labour Commissioner authorized by him to discharge exercise and perform the duties, powers and functions of a Labour Commissioner under this Act;
(C) "Occupier" in relation to an industrial establishment, means the employer of workmen employed in such establishment and includes in the case where the employer is a company the Managing Director and where it is a firm the partner designated in that behalf by the firm and in case of any other employer an officer designated in that behalf by the employer with his consent and whose name is intimated by the employer to the consent and whose name is intimated by the employer to the Labour Commissioner in the prescribed form by the prescribed date:
(d) "wage-bill" means the total amount of wages payable by an industrial establishment to its workmen;
(e) "wages" shall have the meaning 'assigned to in it in the Payment of Wages Act 1936:
(f) "workmen" shall have the meaning assigned to in the U.P. Industrial Dispute Act, 1947;
(g) an occupier of an industrial establishment shall be deemed to be in "default" of payment of wages if such wages are not paid within time as provided in Section 5 of the Payment of Wages Act 1936.
Section 3; Recovery of wages in certain industrial establishment as arrears 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 Section 5 and 6, forward to the Collector, a certificate under his signature specifying the amount of wages due front the Industrial establishment concerned.
(2) Upon receipt of the certificate to in Sub-section (1) the Collector shall proceed to realize from the industrial establishment, the amount specified therein besides recovery charges at the rate of ten per cent, if such amount were an arrear of land revenue.
(3) The amount realized under Sub-section (2) shall, after deducting the recovery charges be placed at the disposal of the Labour Commissioner who shall disburse the same or cause it to be disbursed amount the workmen entitled thereto.
(4) Where the amount so realized 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 various categories of workmen as he may think fit.
(5) The liabilities of the 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, 1903 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.
9. Said Act has been promulgated with an object of maintaining Industrial Peace and for ensuring timely payment of wages as the provisions of Payment of Wages Act, 1936 were found to be inadequate for ensuring timely paymen1 of wages. The incidence of disturbance of industrial peace-being greater in comparatively bigger establishment it was considered necessary to provide that if the wage-bill in default exceeds fifty thousand rupees and more than in that event amount should be recoverable as arrears of land revenue and the other object was qua the employers who keep large amount of wages in arrears them to be punished. Section 2 of the Act deals with the definition clause and defines "industrial establishment", "occupier", "wage bills" and workmen etc. Section 3 of the aforementioned Act provides that 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 Section 5 and 6, forward to the Collector, a certificate under his signature specifying the amount of wages due from the industrial establishment concerned and further upon receipt of the certificate Collector is enjoined upon to realize the said amount alongwith with recovery charges at the rate of 10% as said amount were an arrear of land revenue. Thereafter amount so deposited realized is 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 and further where the amount so realized 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 various categories of workmen as he may think fit and the liabilities of the 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 of the Act deals with power of Labour Commissioner for the purposes of ascertaining the wages-bill of an establishment and the Labour commissioner has 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 as Civil Court for the purposes of Section 195 and Chapter XXI of Cr.P.C. 1973. The provisions quoted above clearly shows that Labour Commissioner has/record his satisfaction in respect of default of payment of wages and on the fact that wage bill in respect of which demand has been made such occupier is in default same exceeds fifty thousand rupees and after such satisfaction is recorded then thereafter certificate has to forwarded specifying therein amount in question which has to be realized from Industrial Establishment by the Collector and after realization same has been left at the disposal of the Labour Commissioner. Once final order has been passed under U,P, Industrial Peace (Timely Payment of Wages) Act 1978 recording satisfaction and directing issuance of Recovery Certificate then Labour Commissioner has no authority to recall the aforesaid order. Collector has to recover the amount and after its realized, the same has to left on disposal of Commissioner and thereafter same has to be disbursed to the workmen as per their entitlement.
10. Herein in the present case now on the touch stone of the provisions quoted above present case is being looked into. After providing opportunity to the employer order doted 13.04.2005 has been passed recording finding to the effect that there is default on the part of the employer/occupier in not making timely payment of wages as such Recovery Certificate was being issued. Thereafter application has been moved on 29.04.2005 that voucher is already on record and payments have been made. On the said application being moved on 10.05.2005 was the date fixed and Recovery has been directed to be stayed. Once satisfaction has been recorded and Recovery Certificate has been directed to be issued then Labour Commissioner has no authority or jurisdiction to intervene in the matter as has been sought to be done in the present case and only authority which he has to exercise is to see that after the amount in question is realized then same be disbursed to workmen as per their respective entitlement. Herein in the present case categorical satisfaction has been recorded that payment of timely payment wages is not there. Total wages which had not been paid is Rs. 1,13950/-for the month of January, 2005 and recovery certificate had been issued qua the said amount. Application dated 29.04.2005 prima-facie, tries to give an impression, that payment has already been made and vouchers are already in the file. On the said application, objection has been invited for and recovery had been stayed. Counter affidavit, reflects that averments mentioned in the application on the face of it incorrect, inasmuch as, on 06.04.2005 request was made by the employer/occupier that draft qua 10 workmen has been sent and for remaining same could be not sent for lack of address and a week's time be accorded in this respect. On 12.04.2005 time was prayed for making deposit on 15.04.2005. Thus, from own showing of the occupier/employer wages had not been paid on 13.04.2005 and as such there was no infirmity in taking action under Section 3 of U.P. Industrial Peace (Timely Payment of Wages) Act 1987. Subsequent deposit of cheque by the employers/occupier, fortifies the situation that on the date when order had been passed there has been no timely payment of wages. Serious dispute has been raised qua payment of wages. Petitioner is asserting that payment has not been made. Employer/Occupier is contending that payment has been made. As far as this Court is concerned as to whether payment of wages has been made or not, there is version and cross version raised before this Court and said question cannot be answered by this Court. When law envisages a particular thing to be done in particular manner then the said procedure has to be adhered to and same cannot be permitted to be bypassed merely at the whims and fancies of authorities who have been enjoined upon to ensure its observance. The Recovery Certificate has been directed to be issued for realizing amount in question.
11. After amount is recovered and placed at the disposal of Labour Commissioner then Labour Commissioner can very well satisfy himself as to particular workmen has been paid his wages or not and his entitlement of the amount. Labour Commissioner after amount is recovered has the authority to see in respect of entitlement of the workmen but no where in U.P. Industrial Peace (Timely Payment of Wages) Act 1978 after directives have been issued by issuing Recovery Certificate, then Labour Commissioner has been vested with any authority to intervene in midway and undertake exercise as has been sought to be done in the present case. Exercise Is to be undertaken before directing issuance of certificate and once direction has been issued for issuance of Recovery Certificate then question of entitlement can be adjudicated by the Labour Commissioner after recovery of amount by the Collector. Labour Commissioner' will disburse the recovered amount among the workmen entitled and in case the amount so realized falls short of the wage bill then in that event arrangement would be made for disbursement of such proportion or respective proportions of the wages due to various categories of workmen, as he thinks fit, and the liability of the employer/occupier towards each workman in respect of payment of wages to the extent amount paid shall stand discharged. Full fledged scheme is there, taking care of each and every situation, and the moment attempt is made to depart from the same, problem one like in hand crops up. Recall/Review application was totally unwarranted in the fact of the present case.
12. Now coming to the issue of power of review of Labour Commissioner qua the provisions of U.P. Industrial Dispute Act and U.P. Industrial Peace (Timely Payment of Wages) Act 1978. Scheme of Act noted above clearly shows that the Labour Commissioner has not been vested with the authority to review. It is well settled that power of review can be exercised only when there is statutory provision in said regard. Power of review however, can also be exercised by an authority in the event of fraud and misrepresentation having being practiced and there being gross violation of principle of natural justice causing serious prejudice to the rights of parties and in no other contingency-said power could be invoked, and as such review application clearly is not maintainable in the fact of the present case. Much reliance has been placed on the judgments in case of Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and Ors. and in the case of U.P. State of Electricity Board and Anr. v. Presiding officer, Industrial Tribunal reported in 1985 (51) FLR 551 and in the case of U.P. State Road Transport Corporation v. State of U.P. and Ors. reported in 1995(1) ESC 158 for the preposition that Review is main table. The judgment cited by the respondents will not be applicable in the fact of the present case, inasmuch as Industrial Dispute Act 1947 and U.P. I.D. Act 1947 there is specific provision of review and time limit has also been provided for making Review application and award can be set aside when same is exparte and when sufficient cause is furnished for non-appearance. Under U,P. Industrial Peace (Timely Payment of Wages) Act 1978 there is no such provision of review.
13. Consequently in the fact of the present case it is hereby directed that Collector concerned is directed to recover the amount in question at the earliest and place the same before Labour Commissioner for disbursement land Labour Commissioner in its turn will see the entitlement of workmen ('and ensure payment.
14. With these observations, present writ petition is dismissed.