JUDGMENT D.P. Singh, J.
1. Heard learned counsel for the parties.
2. This writ petition is directed against an order dated 25.2.2003 by which an application of the petitioner moved under Section 33C(1) of Industrial Disputes Act 1947 (hereinafter referred to a Central Act) has been rejected.
3. The petitioner is Trade Union of Workers of the respondent company registered under Trade Union Act. The respondent company is engaged in production of colour picture Tubes for use in television sets and employs about 769 workmen directly for that purpose, apart from other employees. In order to enhance the production, it entered into a settlement with the aforesaid employees for grant of incentives for increasing the production vide settlement dated 22.7.1999 which settlement was entered before the respondent No. 1. In pursuance of the settlement, the aforesaid production of picture tubes, which was between forty to fifty thousand per month increased tremendously to about one lac twenty thousand picture tubes a month. Due to various reasons 13 days shut down was taken by the management in April, 2001, 15 days in May, 2001, 14 days in July 2001 and 12 days in August 2001 but the respondents were not paid their production incentive as per the settlement for the months of April, May, July and August 2001. They made an application under Section 33C(1) before the authority which issued notices to the respondent company. Instead of filing their reply on merits a preliminary objection dated 20.5.2002 was filed. Simultaneously, he filed writ petition No. 23858 of 2002 basically on the ground that application under Section 33C(1) was not maintainable and they were able to obtain interim orders but subsequently the interim order was not extended and they withdrew the writ petition. Again another set of preliminary objections dated 16.9.2002 was filed reiterating the earlier objections and also stating that the claim of the workman was not covered by paragraph 3.5 of the settlement. The authority vide the impugned order dated 25.2.2003 has allowed the objection of the company, basically on the ground that the entitlement and the amount has been seriously disputed by the company and, therefore, the petitioner should get an adjudication under Section 4-K of the U.P. Industrial Disputes Act (hereinafter referred to a State Act). This order is impugned in this petition.
4. It would be worthy of note that till date no objection on merits has been filed by the company.
5. Learned counsel for the petitioner has urged that the authority has committed manifest error on the face of record by holding that the amount as claimed by the petitioner has been specifically disputed. A copy of the application under Section 33C(1) and the objections filed by the Company are available on the record. Let us examine the scope of Section 33C(1) of the Central Act and 6-H (1) of the State Act. Both provisions are identical and so also their scope. A Constitution Bench of the Apex Court in Kays Construction Company v. State of U.P. (AIR 1965 SC 1488) has held as under in paragraph 7:-
"The contrast between "money due" on the one hand and a "benefit" which is not "money due" but which can become so after the money equivalent is determined on the other, marks out the areas of the operation of the two sub-sections of Section 6-H, U.P. Industrial Disputes Act. Where the money due is back wages for the period of unemployment the case is covered by the first sub-section and not the second. No doubt some calculation enters the determination of the amount for which the certificate will eventually issue but this calculation is not of the type mentioned in the second sub-section and cannot be made to fit in the elaborate phrase "benefit which is capable of being computed in terms of money". The contrast in the two subsections between "money due" under the first sub-section and the necessity of reckoning the benefit in terms of money before the benefit becomes "money due" under the second sub-section shows that mere arithmetical calculation of the amount due are not required to be dealt with under the elaborate procedure of the second sub-section.
6. A perusal of the application moved on behalf of the petitioner shows that specific details along with calculations have been given therein. The total production, number of days of working and shut down taken by the management and how the calculation has been made is specifically given in the application. A copy of the incentive scheme is also available on the record, which shows that the rates at which the incentive is to be calculated has been provided and it has further been provided that the employees will not be entitled to the incentive in case of strike, go slow etc. if resorted by workmen.
7. In the objection filed on behalf of company, the first issue raised is that application under Section 33C(1) is not maintainable before the state authorities and could have been filed before the central authorities. The second objection vaguely states that the amount is disputed and as such application is not maintainable. There is no denial with regard to the applicability and entitlement mentioned in the incentive settlement nor there is any specific denial of the manner of calculations made in the application, but yet the authority has, in a most arbitrary and mechanical manner, held that the amount is seriously disputed. Mere using the words that the amount is disputed was not sufficient in the context of the settlement. The party has to specifically say on which grounds and how the amount is disputed. Learned counsel for the company has relied upon condition No. 3.5 of the settlement to contend that as the situation prevailing at the relevant time with regard to the glut in the market was beyond the control of the management, therefore, the petitioner was not entitled for payment of incentives. The paragraph No. 3.5 in the settlement merely supulates that where the production is affected by failure of the machines or any utility, including electricity break downs occur and there is any difficulty in supply of spare parts etc. which is beyond the control of the management, the employees would not be entitled to the payment of incentive. Thus, the company could only refuse incentive in case there was unforeseen break down of the machinery or supply of electricity or spare parts and nothing more. But even this condition is qualified by a proviso that in case such a situation exists, the management after following due procedure may take a shut down only for a week but even then the employees would be entitled to proportionate incentive.
8. The only ground taken in the objection and also in the counter affidavit is that there was glut in the market and over production in the unit, therefore, shut downs were taken for 15 days each as mentioned in the earlier part of this judgment. Assuming, for arguments sake that the conditions were such as could be said that it was beyond the control of the management, but the proviso to condition No. 3.5 of the settlement clearly provides that even in such circumstances the workmen will be entitled to payment of proportionate incentive. The Deputy Labour Commissioner exercising powers under Section 33C(1) or under Section 6-H (1) is not precluded from examining this aspect of the matter because no intricate questions of fact or law was involved. A plain reading of the settlement shows that the workmen were entitled to payment of incentive even presuming that whatever ground has been taken in the objection was correct. In my opinion, the respondent No. 1 has illegally refused to exercise its power on non existant grounds and the argument of learned counsel for the petitioner has to be sustained.
9. The learned counsel for the company has then urged that no application under Section 33C(1) of the Central Act was maintainable and the petitioner could have approached under the State Act. Assuming that the petitioner ought to have made an application under Section 6-H (1) of the State Act, but it is not denied that the respondent No. 1 was the authority to have entertained the application even under the State Act. It is well settled that mere mentioning of a wrong provision would be immaterial, if it can be shown that otherwise application could be entertained by the authority under a different section or statute. The apex court in a recent judgment rendered in the case of M.T. Khan and others v. Government of Andhra Pradesh (2004 (2) SCC 267) has held:
"--------It is now well settled principle of law that non mentioning or wrong mentioning of a provision of law does not invalidate an order in the event it is found that a power, thereof, exists."
10. Thus, this argument of learned counsel for the respondent is bound to be rejected.
11. From the facts of this case, it is evident that the company has adopted a carrot and stick policy. First it promises to give incentives to ensure higher production and thereby higher profits and then when the production goes up even beyond 100% increase due to extra effort of the workmen, it refuses to abide by its solemn promise and instead has involved them in litigation for the last four years and that too reserving its right of filing objections on merits, which it says it has a right under the common law. By now it is well settled that in labour matters the preliminary as well as the main dispute are to be decided together unless there is a cast iron preliminary objection which could shorten litigation. As already examined hereinabove, the objections raised by the company cannot be said to be bona fide or of the variety which required adjudication before adjudication on merits. Such employers should not be let off lightly. Therefore, the ' company would only be allowed one opportunity to file any objections on merits, if they wish, but only after they deposit 50% of the amount claimed by the petitioner before the respondent No. 1 in its application, but the amount would abide by the final decision of the Authority.
12. With the aforesaid observations and directions, this writ petition succeeds and is allowed and the impugned order dated 25.2.2003 is hereby quashed and the respondent authority is directed to dispose off the application of the petitioner expeditiously but in no case beyond a period of three months from the date a certified copy is produced before it.