Allahabad High Court
M/S Deewan Enterprises Ltd. vs Deputy Labour Commissioner And ... on 28 May, 2018
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 25
Case :- WRIT - C No. - 64750 of 2012
Petitioner :- M/S Deewan Enterprises Ltd.
Respondent :- Deputy Labour Commissioner And Others
Counsel for Petitioner :- Shakti Swarup Nigam
Counsel for Respondent :- C.S.C.,Shekhar Srivastava
Hon'ble Siddhartha Varma,J.
The petitioner closed down its establishment permanently on 13.12.2000. The respondent nos. 2 to 16 filed a claim petition on 11.1.2010 under Section 6-H(1) of the U.P. Industrial Disputes Act, 1947 claiming closure compensation, leave encashment, salary for two months in lieu of the closure and also the earned wages for the period from 1.12.2000 to 13.12.2000. On 27.1.2010 the respondent no.1, Deputy Labour Commissioner, Meerut Region Meerut directed the petitioner to deposit a sum of Rs. 3,69,679/- with 12% interest in pursuance of the claim filed by the respondents-workmen. However, upon coming to know about the order dated 27.1.2010 the petitioner on 5.2.2010 prayed for the recall of the order dated 27.1.2010 and also prayed that the petitioner be allowed to contest the case on merits. Thereafter, the petitioner also filed its detailed objection to the applications of the respondents no.2 to 16 on 16.2.2010. When the order dated 17.11.2012 accepting the claim of the respondents was passed the instant writ petition was filed.
The petitioner very categorically submitted that on 13.12.2000, when the establishment of the petitioner was permanently closed, the workmen were not employed with the petitioner and, therefore, they were not entitled for any closure compensation. The petitioner also further submitted that the workmen were not entitled for any leave which could be encashed. Further, the petitioner stated that since the respondents were not employed on 13.12.2000, they were also not entitled for any notice or any salary in lieu of the notice. In the end the petitioner has stated that since the respondents had not worked from 1.12.2000 to 13.12.2000, they were also not entitled to receive wages for that period. The petitioner submitted that since there was no amount yet quantified under Section 6-J to Section 6-R and that no amount was also quantified under any award of any kind, the application under Section 6-H(1) of the U.P. Industrial Disputes Act, 1947 was definitely not maintainable. Learned counsel for the petitioner further assailed the order dated 1.11.2012 saying that the respondent no.1 i.e. the Additional Labour Commissioner, Meerut Region Meerut wrongly relied upon the adjudication under the Payment of Gratuity Act, 1972 as a calculation of gratuity is very different from the calculation of the amounts which the workmen had prayed for in the instant case. Learned counsel for the petitioner has also submitted that as per the judgment reported in FLR 2002 (95) 347 (Dinesh Pratap Singh vs Regional Deputy Labour Commissioner) if any claim made by the workmen was disputed by the employers then the application of the workmen under Section 6-H(1) of the U.P. Industrial Disputes Act, 1947 could not be entertained by the Deputy Labour Commissioner.
In reply the learned counsel for the respondents no.2 to 16, however, submitted that it mattered little as to under what provision the application was filed. He submitted that the mentioning of the provisions as Section 6-H(1) instead of Section 6-H(2) of the U.P. Industrial Disputes Act, 1947 was irrelevant as only mathematical calculation had to be done as per the last drawn salary which had been finally adjudicated in the proceedings under the Payment of Gratuity Act.
Learned counsel for the respondents also relied upon a decision reported in 1984 (1) SCC 509 (Gammon India Ltd. v. Niranjan Das) and submitted that the payments as were due to the answering respondents should be made.
Having heard the learned counsel for the parties, I am of the view that the respondent no.1, Deputy Labour Commissioner, Meerut Region Meerut erred in passing the order dated 17.11.2012. In the first place the application under Section 6-H(1) did not lie. An application under Section 6-H(1) would lie only after the amount which was payable under Sections 6-J to 6-R of the U.P. Industrial Disputes Act, 1947 had been ascertained or an amount had been fixed under some award. If the amount was yet not fixed then the workman had to first approach the Labour Court for an adjudication under Section 6-H(2). Therefore, the argument that only a wrong Section had been mentioned holds no water. In fact, an application under Section 6-H(1) lies before the Labour Commissioner whereas an application under Section 6-H(2) lies before the Labour Court. As has been held in the judgment relied upon by the learned counsel for the petitioner reported in FLR 2002 (95) 347 (Dinesh Pratap Singh vs Regional Deputy Labour Commissioner), under Section 6-H(1) the Labour Commissioner could not have decided a disputed claim. In the instant case, it was apparent from the objections which the petitioner had filed that every aspect of the demand of the workmen - respondents was extremely disputed. The petitioner had stated that the respondents no.2 to 16 were not employed on 13.12.2000, the date of closure. The petitioner had further stated that there was no leave to the credit of the workmen which could be encashed. The requirement for a notice was thus also disputed. The claim of the repsondent workman that they had worked between 1.12.2000 to 13.12.2000 was also disputed as they had not worked during that period.
Under such circumstances, it is clear that the respondents had approached the wrong forum. The respondent no.1, the Deputy Labour Commissioner also erred in relying upon the proceedings under the Payment of Gratuity Act as calculations of salary under the Payments of Gratuity Act are very different from the calculations which were required in the instant case.
Under such circumstances, the writ petition is allowed. The order dated 17.11.2012 is quashed.
Order Date :- 28.5.2018
Ashish Pd.
