Hon'ble Mrs. Vijay Lakshmi,J.
By means of this appeal, the appellants have challenged the judgment and order passed by the learned Single Judge in Writ Petition No. 38555 of 2014 in which writ petition the order which was impugned was passed under Section 6-H(1) of the U.P. Industrial Disputes Act, 1947.
A preliminary objection has been raised by Sri Y.K. Sinha, learned counsel appearing for the contesting respondent no. 5 that under the provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 this appeal would not be maintainable as the order impugned in the writ petition has been passed by the Assistant Labour Commissioner acting as a Tribunal or Court under the State Act.
On the other hand, Sri C.B. Gupta, learned counsel for the appellants has submitted that while deciding a matter under Section 6-H(1) of the U.P. Industrial Disputes Act, 1947 the power exercised by the Assistant Labour Commissioner is not adjudicatory but merely executionary. Learned counsel for the parties have placed reliance on certain judgments of the Courts which shall be referred to hereinafter.
For ready reference, the relevant Section 6-H (1) of the Act is reproduced below:-
"6-H(I). Recovery of money due from an employer.- (1) Where any money is due to a workman from an employer under the provisions of Sections 6-J to 6-R or under a settlement or award, or under an award given by an adjudicator or the State Industrial Tribunal appointed or constituted under this Act, before the commencement of the Uttar Pradesh Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, the workman may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the money due to him, and if the State Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same as if it were an arrear of land revenue."
A bare reading of the aforesaid provision clearly shows that the proceedings under the said section are not adjudicatory in nature and are only limited to being executionary in nature. The rights of the parties are already determined, which are not to be adjudicated under the aforesaid provision. As such, the authority is not required to adjudicate on the rights of the parties but has to direct or order for recovery of the amount on a mere calculation. A similar question arose before a Division Bench of this Court in the case of U.P. State Sugar Corporation Vs. Deputy Labour Commissioner, 2008 (9) ADJ 301 and such preliminary objection was held to be not maintainable with the following observations made in paragraph 3 of the said judgment:-
"[3]. The contention so raised is misconceived. Under Section 6H(1) of the Act the Deputy Labour Commissioner only computes the money due to a workman in terms of an Award or Settlement etc. and thereafter certificate is issued. Section 6H(1) of the Act presupposes a settlement or award. Under Section 6H (1) of the Act, the Deputy Labour Commissioner does not act as a Court or Tribunal so as to attract the bar under Chapter VIII, Rule 5 of the Rules of the Court. We are of the view that the appeal is not barred by Chapter VIII, Rule 5 of the Rules of the Court."
Sri Y.K. Sinha, learned counsel for the contesting respondent no. 5 has vehemently argued that for the purpose of determination of the amount to be recovered the parties have to lead evidence for which the authority concerned has powers. He has submitted that the provisions of Section 3 of the U.P. Industrial Peace (Timely Payment of Wages) Act, 1978 are similar to the provisions of Section 6-H(1) of the Industrial Disputes Act, 1947. He has further submitted that the Division Bench of this Court in the case of Silk and Kapda Karmchari Union Vs. Deputy Labour Commissioner, 2013 (8) ADJ 123 has held that the jurisdiction of the Labour Commissioner under Section 3 of the said Act of 1978 has all the trappings of the Court as it has all the powers of a Civil Court while trying a suit under the Code of Civil Procedure in the matter of enforcing the attendance of the witnesses, examining them on oath and compelling production of documents. In the said judgment the Division Bench also held that a special appeal filed against an order passed in a writ petition wherein the challenge was to the order passed under Section 3 of the Act of 1978 would not be maintainable under Chapter VIII Rule 5 of the Rules of the Court. Section 3 of the Act of 1978 reads as under:
"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 sub-section (1), the Collector shall proceed to realise, from the industrial establishment, the amount specified therein, besides recovery charges at the rate of ten percent, as if such amount were an arrear of land revenue."
Under Sub-section (1) of Section 3 the Labour Commissioner exercises powers which may have trappings of a Court but the powers exercised under Section 6-H(1) of the U.P. Industrial Disputes Act can be comapred to the powers under Section 3 (2) of the Act of 1978 which is for realization of specified amount.
The powers exercised by the authority under Section 6-H(1) of Act of 1947 cannot be said to be adjudicatory but merely executionary. The same would not have the trappings of a Court or Tribunal.
We are of the clear view that there is no conflict between the two judgments in the cases of (i) Silk and Kapda Karmchari Union Vs. Deputy Labour Commissioner, 2013 (8) ADJ 123 and (ii) U.P. State Sugar Corporation Ltd. Vs. Deputy Labour Commissioner 2008 (9) ADJ 301 and the law laid down by the Division Bench in the case of U.P. Sugar Corporation (supra) is the one which would be applicable to the facts of the present case.
For the foregoing reasons, the objections raised by the learned counsel for the contesting respondent no. 5 are misconceived. This appeal would be maintainable under the provisions of Chapter VIII Rule 5 of the Rules of the Court.
By consent of the learned counsel for the parties, put up on 22.9.2014 as a fresh case.
Order Date :- 16.9.2014/p.s.
(Vijay Lakshmi, J.) (Vineet Saran, J.)