Allahabad High Court
Shishupal Parihar vs State Of U.P. And Others on 23 May, 2013
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 1
Civil Misc. Writ Petition No. 19200 of 2012
Shishupal Parihar
Vs.
State Of U.P. and others
*****
Hon'ble Tarun Agarwala,J.
Fourteen workers filed an application under Section 3 of the U.P. Industrial Piece Timely Payment of Wages Act, 1978 alleging that the petitioner has failed to pay wages amounting to Rs.3,86,575/- and therefore, the said amount may be recoverred under the Act. The petitioner appeared and objected to the proceeding contending that, for the purpose of interior designing and painting his bungalow, the petitioner had engaged an engineer Sri J.D.Geharana and under his supervision some masons, painters and electricians were engaged on daily rated basis for which they were paid their wages. It was contended that whatever wages were payable was paid to the Engineer, who in turn had made the payment to the workers and that nothing was due and payable. Further, the petitioner is not an occupier nor the bungalow where the interior works were carried out, is an industrial establishment. The petitioner, consequently, contended that no proceedings under the Act 1978 could be initiated.
Inspite of this specific objection being raised, the Deputy Labour Commissioner has passed an order under Section 3 of the Act for recovery of the wages, on the ground, that no proof of payment was filed by the petitioner or by his Engineer, Sri Gehrana. The petitioner, being aggrieved by the said order, has filed the present writ petition.
In order to appreciate the rival submissions of the parties the Court finds that the statements of Objects and Reasons given under the Act of 1978 indicates that the provisions of the Payment of Wages Act was found to be inadequate to ensure timely payment of wages and that the incidence of disturbance of industrial peace was greater in establishment and, therefore, it was considered necessary to provide that if the wage bill in default exceeded Rs.50,000/-, the amount would be recoverable as arrears of land revenue. This became essential because it was found that there was a tendency of the employers to keep large amount of wages in arrears.
The Supreme Court analysed the provisions of the Act of 1978 in Modi Industries Ltd. Vs. State of U.P. and others, 1994 SCC (L & S) 286 in which the Supreme Court held:
"8. 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 are, therefore, entitled to their wages, are not 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, as in the present case, 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."
The Supreme Court found that the inquiry under the Act was limited only to find out whether the workman had earned their wages as per the terms of their employment or not and if the authority was satisfied that the workers had worked and was entitled to their wages and if the authority further found that the arrears of wages exceeded Rs.50,000/-, in that case he was obligated to issue a recovery certificate. The Supreme Court held that the authority was required to act as the facilitator and not as an adjudicator, namely, that if the claim of the workers was disputed, the authority could not adjudicate upon the dispute unless frivolous or prima facie untenable grounds were taken by the employers. The Supreme Court further observed that where the dispute involved investigation of questions of fact and of law, it was not the function of the authority to adjudicate the same and, in such matters, the parties were required to approach the appropriate forum.
The Act is applicable to an industrial establishment. "Industrial establishment" has been defined under Section 2(a) of The Uttar Pradesh Industrial Peace (Timely Payment of Wages) Act, 1978. For facility, the said provision is extracted hereunder:
"(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;"
From the aforesaid, it is clear that an industrial establishment is a factory or a workshop or an establishment where articles are produced, processed, adopted or manufactured for the purpose of use, transport or sale. Section 2-C of the Act defines "occupier" as under:
"(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 Labour Commissioner in the prescribed form by the prescribed date;"
In the instant case the admitted fact is that the petitioner is the owner of a bungalow and he employed an engineer for the purpose of redesigning and redecorating his house. Daily rated workers were employed as mason, electrician and painters, who worked in the house. The petitioner's bungalow is not an industrial establishment, and the facts, which has been brought on the record clearly indicate that no manufacturing activities of any sort was carried out nor any articles were produced, processed or manufactured, which was put up for sale, use or for transportation. The Court further finds that the petitioner cannot be termed as an occupier. He is the owner of a residential house and is not an occupier as defined under Section 2-C of the Act. The Act is clearly not applicable.
In the light of the aforesaid, the impugned order cannot be sustained and is quashed.
The writ petition is allowed.
Dated: 23.5.2013
AKJ.
(Tarun Agarwala,J.)
