Court No. - 2
Case :- WRIT - C No. - 8205 of 2018 Petitioner :- M/S Nirala Aspire Respondent :- State Of Up And 4 Others Counsel for Petitioner :- Vijay Sinha Counsel for Respondent :- C.S.C.
Hon'ble Ram Surat Ram (Maurya),J.
1. Heard Sri Vijay Bahadur Singh, Senior Advocate, assisted by Sri Vijay Sinha, for the petitioner.
2. The writ petition has been filed for quashing order of Deputy Labour Commissioner, dated 03.11.2017, directing for payment of wages of 69 workmen due from 01.4.2017 to 30.4.2017, total amount of Rs. 1068000/-.
3. M/S Nirala Aspire (the petitioner) is a private limited company registered under Indian Companies Act, 1956 and is engaged in business of construction of flats. Putul Khatun (respondent-4) filed an application under Section 3 of U.P. Industrial Peace (Timely Payment of Wages) Act, 1978 (hereinafter referred to the Act), for recovery of wages of 69 workmen for a period of 01.4.2017 to 30.4.2017 (total amount of Rs. 1068000/-). This application is in Proforma-3 as given under U.P. Industrial Peace (Timely Payment of Wages) Rules, 1981, in which a table consisting names and post of workmen, his rate of wages and their signatures have been given.
4. Prescribed Authority/Deputy Labour Commissioner issued notice of the application to the petitioner. On the notice being served, the petitioner filed its written objection , stating therein that the application has not been filed in proper proforma. In the application father's name of the workmen have not been given nor any evidence relating to their employment have been filed. The application has not been supported with any affidavit. The workmen whose names have been mentioned in the application be directed to appear before Prescribed Authority along with their identity card and their signatures be tallied with their signatures on the application then further proceeding be taken in the application. Putul Khatun was a plaster contractor, whose full payment was done through cheque. Defendant-2 was sub-contractor of Putul Khatun, whose payment was done through cheque by Putul Khatun. The application is barred by time.
5. On behalf of the workmen, a reply to the written objection of the petitioner has been filed in which they denied the allegations made in the written objection, including that Putul Khatun was a contractor. It has been further stated that evidence relating to employment of the workmen whose wages was claimed would be filed separately. Copies of identity proof of the workmen were also filed. M/S Navrang Construction (respondent-5) was defendant-2 in the application, did not contest the case in spite of notice. Both the parties also filed their written arguments before Deputy Labour Commissioner. Deputy Labour Commissioner relied upon identity proof of the workmen and held that it is proved that during 01.4.2017 to 30.4.2017, the workmen had worked on the site of the petitioner through M/S Navrang Construction (defendant-2). Although the petitioner took plea that full payment was done but no evidence has been produced by the petitioner in this respect. The petitioner, being main contractor, it was his liability to ensure payment of wages of the workmen. On these findings, he allowed the application and directed payment of Rs. 1068000/- within fifteen days as arrears of wages of the workmen. Hence this writ petition has been filed.
6. The counsel for the petitioner submitted that the application has been filed by fabricating signatures of 69 workmen in the column by Putul Khatun/Neeraj Chikara. This was the reason for not mentioning the father's name of the workmen in the application. Form which it is fully proved that it was a fabricated application. The application has been filed through one Neeraj Chikara. The petitioner has raised a specific ground that Neeraj Chikara was neither an advocate nor office bearers of any registered Trade Union and had no authority to file/pursue the application. It was an unauthorised application and was not presented in accordance of law. No cognizance could be taken on it. Deputy Labour Commissioner has illegally ignored the objections raised by the petitioner. The petitioner has specifically denied his relationship as employer and workmen with the applicants. This was a highly disputed question of fact and could not be decided by Deputy Labour Commissioner in the application under the Act as held by Supreme Court in Modi Industries Ltd. Vs. State of U.P., (1994) 1 SCC 159. The application was not supported with any affidavit nor any evidence to prove the employment of the workmen by the petitioner, has been filed. The petitioner also made a request that the workmen whose names have been mentioned in the application, be directed to appear before Prescribed Authority along with their identity card and their signatures be tallied with their signatures on the application. Deputy Labour Commissioner has illegally not passed any order in this respect. M/S Navrang Construction was a plaster contractor, whose full payment was done through cheque. Putul Khatun was sub-contractor of M/S Navrang Construction, whose payment was done through cheque. The application was barred by time. Deputy Labour Commissioner has illegally not recorded any findings in this respect. The order of Deputy Labour Commissioner is illegal and without jurisdiction.
7. I have considered the arguments of the counsel for the parties and examined the record. The application was filed in Proforma-3 as given under U.P. Industrial Peace (Timely Payment of Wages) Rules, 1981, in which a table consisting names and post of workmen, his rate of wages and their signatures have been given. This proforma does not contain any column relating to father's name of the workmen. In prescribed column, signatures of the workmen, whose wages were due, were obtained. On the written objection filed by the petitioner, respondent-4 filed a written reply , which contains verification clause as given under Order VI Rule-16 C.P.C. for verification of the pleading. Copies of identity proof of the workmen were also filed. Supreme Court in Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, (1976) 3 SCC 832, held that welfare of workers being a primary concern of our Constitution (Part IV), we have to understand and interpret the new norms of procedure at the prelitigative and litigative stages, conceptually recognising the representative capacity of labour unions. Of course, complications may arise where inter-union rivalries and kilkenny cat competitions impair the peace and solidarity of the working class. It is admitted, in this case, that there is only one union and so we are not called upon to visualize the difficult situations. Counsel for the respondents invited us to do, where a plurality of unions pollute workers' unity and create situations calling for investigation into the representative credentials of the party appearing before the tribunal or court. It is enough, on the facts of this case, for us to take the union as an abbreviation for the totality of workmen involved in the dispute, a convenient label which, for reasons of expediency, converts a lengthy party array into a short and meaningful one, group representation through unions being familiar in collective bargaining and later litigation. We do not expect the rigid insistence on each workman having to be a party eo nomine. The whole body of workers, without their names being set out, is, in any case, sufficient, according to the Counsel for the respondents, although strictly speaking, even there an amount of vagueness exists. For these reasons, we decline to frustrate this appeal by acceptance of a subversive technicality. We regard this appeal as one by the workmen compendiously projected and impleaded through the union.
8. Although, the petitioner in its written objection has prayed that the workmen, whose names were mentioned in the application, be directed to appear before Prescribed Authority along with their identity card and their signatures be tallied with their signatures on the application but a perusal of written arguments of the petitioner does not indicate that this prayer was pressed before Deputy Labour Commissioner. As identity proof of the workmen have been filed. As such the argument of the petitioner in this respect before this court cannot be entertained.
9. In paragraph-5 of the written arguments, the petitioner has admitted that M/S Navrang Construction was his contractor and has worked at his site with permission of Deputy Labour Commissioner and Putul Khatun was sub-contractor of M/S Navrang Construction. Deputy Labour Commissioner relied upon this admission of the petitioner and held that the petitioner, being main contractor, it was his liability to ensure payment of wages of the workmen. Section-21 of Contract Labour (Regulation and Abolition) Act, 1970, castes a liability upon principal contractor to pay wages of the workmen of its sub-contractor. Impugned order is based upon the admission of the petitioner and there is no illegality.
10. Supreme Court in Hotel and Restaurant Karamchari Sangh v. Gulmarg Hotel, (2006) 5 SCC 442, held that statement of Objects and Reasons of U.P. Industrial Peace (Timely Payment of Wages) Act, 1978 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 Wages Act 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 if a wage bill exceeds Rs 50,000 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 to those establishments which produce, process, adopt or manufacture some articles. It will, therefore, be evident that the Act does not supplant or substitute the Wages Act 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.
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 were entitled to their wages, had not been 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 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.
11. In view of the aforesaid discussions, order of Deputy Labour Commissioner does not suffer from any illegality. The writ petition has no merit and is dismissed.
Order Date :- 28.2.2018 Rahul /-