JUDGMENT S.H.A. Raza, J.
1. The writ petition No. 39667 of 1996 has been preferred by M/s. E. Sefton and Company Pvt. Ltd. assailing the award passed by the Labour Court, Varanasi on 13.2.1996 in adjudication case No. 109 of 1990 and the order dated 19.7.1996 by means of which the prescribed authority rejected the restoration application preferred by the petitioner.
2. By means of writ petition No. 39741 of 1996 the petitioner M/s.E. Sefton and Company Pvt. Ltd. has assailed the award of the Labour Court dated 26.3.1996 passed in adjudication case No. 278 of 1989 and the order dated 19.7.1996 by means of which the restoration application* preferred by the petitioner was rejected.
3. In both the writ petitions the petitioners have prayed for quashing the proceedings pending before the Deputy Labour Commissioner under Section 6-H (I) of the U.P. Industrial Disputes Act. A writ in the nature of mandamus has also been prayed for, in both the writ petitions commanding the Labour Court to hear the adjudication cases afresh after affording an opportunity of hearing to the petitioners.
4. The thrust of the petitioners in both the writ petitions is that the petitioner-Managing Director is an old man of 80 years of age and on account of his illness the company suffered loss and was closed down and was declared a sick unit. On account of non-availability of sufficient staff the Parivri on behalf of the company could not be done properly in time. In view of the aforesaid position, no written statement could be filed on behalf of the petitioner- company. Furthermore it was contended as talks for settlement of dispute between the parties were going on which ultimately failed due to the exaggerated demands made on behalf of the workmen, the written statement could not be filed on the last date, i.e. 13.12.1995 and the Labour Court fixed 24,1.1996 as the next date of hearing, with the direction that fresh notice he be sent to the employer. But on 13.2.1996, which was the date fixed, nobody appeared on behalf of the petitioner and the case proceeded ex-parte and award was subsequently made and sent to the Government for its permission for publication. 5. An application under Section 16 for recalling the award was filed subsequently in both the cases,, which was directed to be taken up on certain date. The Labour Court allowed the application for recalling the order, directing to proceed ex-parte, on payment of certain costs which were not deposited. Ultimately the case was again ordered to be proceeded ex-parte. Later on the Labour Court rejected the application for restoration and recalled its order passed on the restoration application and revived the award which was made earlier.
6. It was submitted that the Labour Court ought to have allowed the restoration application and decided the matter afresh after hearing the parties. It was urged that the absence of the Managing Director was no£ willful and it was on account of his illness and infirmity due to the old age and during that entire period he was outside, Mirzapur for proper treatment, the petitioner was handicapped in doing the pairvi and there was no managerial and supervisory staff to do the proper pairvi in the cases. It was submitted that as the application for restoration was allowed, there was no award in the eye of law after that date, hence the permission given by the State Government subsequently and the publication of the award on a later date was of no consequence and in pursuance of the said award in proceedings under Section 6-H (I) of the U.P. Industrial Disputes Act could not be initiated.
7. It was next urged that in view of the provisions contained in Sick Industrial Companies (Special Provision) Act, 1985. No proceeding for execution distress or the like nature against any of the property of the company would lie and the award could not be executed without the consent of the appellate authority under the Sick Industrial Companies (Special Provision) Act 1985, in view of the fact that the petitioner's appeal has been registered and pending for disposal before the appellate authority for industrial and financial reconstruction.
8. The industrial dispute which was raised and referred by the State Government for adjudication to the Labour Court in both the writ petition was as to whether the termination of the services of the workmen by the employer was improper and illegal. If the answer would be affirmative then that relief the workmen would be entitled.
9. From the perusal of the award it appears that the authorised representative of the petitioner has been appearing before the Labour Court an various dates, but the reply was not filed on behalf of the employer. Adjournments of the cases were allowed on payment of costs..Later on the authorised representative of the petitioner withdraw from the case. Notices were sent again to the employer-petitioner, but nobody was turned up before the Labour Court. The Labour Court was informed by the representative of the petitioner that compromise had been arrived at between the parties, but no compromise was ever filed. Subsequently, several dates were fixed. From the side of the workmen statements were filed, but the employer did not file their response, as a result of which the award was made.
10. Later on in both the cases restoration applications were preferred. The applications were allowed on payment of costs and the date for filing written statement, was fixed, but nobody has turned up either to file a response or to deposit the costs. As the orders passed on the restoration applications were conditional one and the costs were not paid and nobody appeared to contest before the Labour Court, the Labour Court set aside its orders passed on the restoration applications and the award were revived in both the cases.
11. The aforesaid facts clearly indicate that the petitioner was guilty of laches of gross nature, leaving no option to the Labour Court except to pass the awards. The dispute was referred to the Industrial Court on 12.10.1990. The awards were made in the year 1996. After notices were served, the authorised representatives of the petitioner appeared, but they only took dates. No written statement was filed. The authorised representatives withdrew their power. Notices were again sent, but nobody responded.
12. The Labour Court was generous enough to allow the restoration applications on payment of certain costs. The orders were conditional one, but the costs were not paid, as a result of which the orders which were passed by the Labour Court on the restoration applications were set aside due to non- payment of costs, and the award in both the cases was revived.
13. In view of the aforesaid reasons, the .submissions of the petitioner, that it was handicapped due to the illness of its Managing Director and non- availability of the staff, cannot be accepted. There was a deliberate attempt on the part of the petitioner to delay the proceedings of the adjudication of the industrial dispute for more than six years and thereafter it dragged the matter by filing the restoration applications and the orders passed by the Labour Court allowing the restoration applications were not taken seriously by the petitioner. No cost was paid, as a result of which the orders passed on the restoration applications lapsed, which was set aside by the Labour Court and the proceedings for executing the awards under Section 6-H (I) have rightly been initiated against the petitioner.
14. As far as the second contention of the petitioner regarding the petitioner-company is a sick unit is concerned, it requires consideration.
15. It was averred that the petitioner become a sick unit and the matter was referred to the Board for Industrial and Financial Reconstruction (hereinafter called the BIFR) under the provisions of Sick Industrial Companies (Special Provision) Act, 1985 (hereinafter called the Act) and after enquiry by the Board, a scheme was formulated for the rehabilitation under the provisions of Section 22 of the Act and thus the provisions of Section 22 of the Act became operative. The BIFR sanctioned the scheme for rehabilitation of the petitioner-company on 7.4.1994, but as the Central Bank of India backed out to share its responsibility, the BIFR directed for the winding up of the company on 26.8.1996. Being aggrieved against the order of BIFR the petitioner filed an appeal under Section 25 of the Act, which has been registered and numbered as Appeal No. 169 of 1996, which was posted for hearing on 29.11.1996, but the hearing could not take place.
16. It was submitted that no execution for realisation of the amount fixed under Section 6-H (I) of the U.P. Industrial Disputes Act could be made against the petitioner-company till the appeal preferred by the petitioner is decided is the Appellate Court. It was also submitted that according to Section 22 of the Act no proceeding under Section 6-H (I) of the U.P. Industrial Disputes Act can be initiated and warrant for. recovery of the amount cannot be issued.
17. In Modi Industries Limited (Steel Sectior), Modi Nagar, Ghaziabad v. Additional Labour Commissioner and Ors., 1993 ILR 690, more or less similar question cropped up before the Division Bench of this Court. The Division Bench while dismissing the writ petition filed by Modi Industries Limited observed:
"Since the essential ingredients on which basis the provisions of Section 3 of U.P. Act of 1978 [U.P. Industrial Peace (Timely Payment of wages) Act, 1978] leaves no doubt that action will amount to proceeding. Section 3 says that where the Labour Commissioner is satisfied that the occupier of an establishment is in default of payment of wages,, for reaching to this satisfaction he has to take some action and this action, will be covered by the word 'proceeding' used in Section 22 of the Act of 1985. Further the length of the proceedings or the time taken cannot be the sole criterion for determining whether action will amount to proceeding or not. The Labour Commissioner may satisfy himself about the ingredients contemplated under Section § in a quickest possible procedure but that will amount to proceeding.. He has to call for an information in Form 3 and then he has- to issued a recovery certificate to the Collector for realisation of the wages as arrears of land revenue. So far the proceedings for recovery of the amount as arrears of land revenues are concerned, there is no doubt that they amount to legal proceedings. Hon'ble Supreme Court in Maharashtra Tubes Ltd. has considered the word 'proceeding' used in Section 22 and has interpreted it covering all kinds of proceedings by which the execution or distress of the like against any of the property of industrial company may be initiated. Thus the observation of the Hon'ble Supreme Court in the above case leave on doubt that the procedure provided under the Act for recovery of the unpaid wages will amount to proceeding."
18. It was further observed :
"Both the Act have been brought on the Statute Book to carryout independent and important objects though the area for their operation is the same, that is, the industrial area. It can be said that the one looks after the defective life line of the body and the other provides for the heeling of necessary limbs like hands and legs of the same body. But, both are necessary to keep the whole body moving- The purpose and object of Section 22 cannot be to cover those proceedings or actions which are necessary for running the industry irrespective, of the fact whether it is sick or non-sick. If the industry cannot run without workers, the workers also cannot expected to work without payment of their wages. The timely payment of the wages for which the provisions of the Act of 1978 have been enacted would thus be a step helping rehabilitation and it cannot be said that it created any obstacle in fulfilling the object for which the Act, 1985 has been enacted. Both the Acts are thus complimentary to each other. Section 22 cannot thus effect the proceedings taken under Section 3 of the Act of 1978 for compelling the petitioner to make payment of the wages already accrued the workers. The Parliament while putting Section 22 of the Act 1985 could never have intended that the industrial unit under the garb of sickness or for any like difficulty may be allowed to shirk its liability to pay the wages to Its workers for the work they have done. Thus proceedings under Section 3 of the U.P, Act of 1978 will not be affected by Section 22 of the Act of 1985."
19. The aforesaid view was taken by this Court in the light of the observations of Hon'ble Supreme Court in Basti Sugar Mill Co. Ltd. v. State of U.P. and Anr., AIR 1979 SC 262 and Workmen v. Bharat Cooking Coal Ltd. and Ors., AIR 1978 SC 679, wherein it was observed that the liability of the petitioner to pay the Wages for the work already done is absolute and the petitioner cannot be allowed to shirk the liability on any ground.
20. Similar view was taken by an Hon'ble Single Judge of this Court in writ petition No. 29859 of 1996 in re; Poysha Industrial Company Ltd. v. Collector, Ghaziabad and Ors., decided on 13.10.1997 [Reported in (1998) 1 UPLBEC 391).
21. On behalf of the petitioner reliance was placed on a decision of Hon'ble Supreme Court in Tata Davy Ltd. v. State of Orissa and Ors., J.T. 1997 (7) SC 2165, wherein Hon'ble Mr. Justice S.P. Bharucha speaking on behalf of the Bench, held that the arrears of taxes and the like due from sick industrial companies that satisfy the conditions set out in Section 22(1) of the Central Act cannot be recovered by coercive process unless the said Board gives its consent thereto.
22. In the aforesaid case the question involved was as to whether the steps to recover sales tax dues under Section 13-A of the State Act were in the nature of proceedings by way of execution, distress or the like contemplated by Section 22(1) of the Sick Industrial Company (Special Provisions) Act, 1985.
23. I am of the view that the decision of Hon'ble Supreme Court in Tata Devy Ltd. (supra), covers a different field and is not applicable to the fact of the, present case. Even in Tate Davy Ltd. (supra), Hon'ble Supreme Court was conscious enough to observe that it was laying down law with regard to "arrears of taxes and the like due." The U.P. Industrial Disputes Act is meant to protect and safeguard the interest of the workmen who are often subjected to retrenchment, lay off, lock out and closure of the industrial unit and unfair labour practice. The Act is in the nature of a welfare legislation. Similarly, the U.P. Act of 1978 is also a welfare legislation. The object of which is to ward of, the delay in payment of wages to workmen which often leads to simmering discontent amongst the workmen resulting into the grave threat to law and order problem. Such welfare legislation cannot be compared with legislations pertaining to taxes. The constitution of India has established an egalitarian society by giving directions to the State which are found in the matter of governance of the country and it is the duty of the State to apply these principles in making laws.
24. Article 38 of the Constitution provides that the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities not only amongst individuals but also amongst groups of people residing to different areas or engaged in different vocations.
25. Article 39(e) guarantees that the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.
26. Article 42 provides for making provision for securing just and human conditions of work and for maternity relief.
27. Article 43 provides that the States shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or cooperative basis in rural arrears.
28. Article 43A provides that the State shall take steps by suitable legislation or in any, other way, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry.
29. If the provision of Section 22 of the Act of 1985 is made applicable to the proceedings under Section 3 of the Act of 1978, it would amount to forcing the workers to work without payment, which may be termed as 'Beggar', which is prohibited under Article 23 of the Constitution of India.
30. In the present cases a dispute was referred by the State Government to the Labour Court to decide as to whether the termination of the services of the workmen Ghanshyam and R.C. Gaur were improper and illegal and if so, its effect. The Labour Court replied the reference in affirmative by holding that the termination/retrenchment of the services of the workmen were illegal and they would be entitled for the wages they have been getting prior to retrenchment.
31. Nowhere in the writ petition it has been averred that the workmen were not engaged by the petitioners and they were not retrenched. Only this much has been stated before the Labour Commissioner in the objection of the petitioner that the claim amount has not been properly computed by the Labour Court and the claim is beseless and not sustainable in law. A compromise was arrived at before the Industrial Tribunal on 7.5.1992 that the workmen would be taken back on duty and they would be given Rs. 3,000/- for the period they were laid off'from the duty, but as the said amount was not paid, under the payment of Wages Act, proceedings were initiated and without taking any permission from the Court, the services of the workmen were terminated.
32. It was asserted by the workmen before the Labour Court, as stated hereinabove, that after giving several opportunities to the petitioner to contest the claim of the workmen, the petitioner failed to avail that opportunity. Ultimately, the. award was made. Thereafter, the restoration application was preferred. The Labour Court allowed the application on payment of certain costs. As the order was conditional one and the costs were not paid, the Labour Court had no option except to reject the application for restoration and restore the award.
33. In view of the aforesaid reasons I am not inclined to interfere. Both writ petitions are accordingly dismissed.