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1992 Supreme(All) 447
IN THE HIGH COURT OF ALLAHABAD
M. Katju, J.
INDIAN OXYGEN SHRAMIK SANGH - Appellant
Versus
ADDITIONAL LABOUR COMMISSIONER - Respondents
C. M. W. P 4206 Of 1991
Decided On : 08/17/1992
P.K.MUKHERJI, PREM CHAND
The jurisdiction of the Additional Labour Commissioner under the U. P. Industrial Peace (Timely Payment of Wages) Act, 1978, is limited to undisputed claims. In cases involving seriously disputed questions of fact or law, the workmen must approach the Government for a reference under Section 4-K of the U. P. Industrial Disputes Act or Section 10 of the Industrial Disputes Act.
Headnote:
INDUSTRIAL DISPUTES - U. P. INDUSTRIAL PEACE (TIMELY PAYMENT OF WAGES) ACT, 1978 - SECTION 3 - JURISDICTION OF ADDITIONAL LABOUR COMMISSIONER - SCOPE - LIMITED TO UNDISPUTED CLAIMS - SERIOUSLY DISPUTED QUESTIONS OF FACT OR LAW - REFERENCE TO LABOUR COURT OR TRIBUNAL UNDER SECTION 4-K OF U. P. INDUSTRIAL DISPUTES ACT OR SECTION 10 OF INDUSTRIAL DISPUTES ACT - SECTION 25-O OF INDUSTRIAL DISPUTES ACT - UNCONSTITUTIONAL - CLOSURE OF ESTABLISHMENT - WORKMEN CANNOT CLAIM WAGES FOR PERIOD SUBSEQUENT TO CLOSURE - ONLY CLOSURE COMPENSATION UNDER SECTION 25-FFF OF THE ACT.
Fact of the Case:
The petitioner company closed its Kanpur unit on January 10, 1991, due to financial constraints. The respondent union filed an application under the U. P. Industrial Peace (Timely Payment of Wages) Act, 1978, claiming wages for the period from January 10, 1991, to January 31, 1991, subsequent to the closure. The Additional Labour Commissioner issued a show cause notice to the petitioner company for payment of the claimed wages.
Finding of the Court:
The Court held that the Additional Labour Commissioner did not have jurisdiction to entertain the union's application and issue the show cause notice since the claim of wages for the period subsequent to the closure was seriously disputed. The Court further held that the workmen could only claim closure compensation under Section 25-FFF of the Industrial Disputes Act.
Issues: 1. Whether the Additional Labour Commissioner had jurisdiction to entertain the union's application and issue the show cause notice for payment of wages for the period subsequent to the closure. 2. Whether the workmen could claim wages for the period subsequent to the closure.
Ratio Decidendi: 1. The jurisdiction of the Additional Labour Commissioner under the U. P. Industrial Peace (Timely Payment of Wages) Act, 1978, is limited to undisputed claims. In cases involving seriously disputed questions of fact or law, the workmen must approach the Government for a reference under Section 4-K of the U. P. Industrial Disputes Act or Section 10 of the Industrial Disputes Act. 2. Section 25-O of the Industrial Disputes Act, which requires the employer to take permission from the Government before closing down the establishment, is unconstitutional. Therefore, the workmen cannot claim wages for the period subsequent to the closure, and they can only claim closure compensation under Section 25-FFF of the Act.
Final Decision: The Court quashed the impugned show cause notice and dismissed the writ petition filed by the union. The Court also allowed the writ petition filed by the company and quashed the show cause notices issued for prosecuting the company for not taking permission prior to the closure.
( 1 ) THIS writ petition and connected writ petition No. 11967 of 1991 (Indian Oxygen Shramik sangh v. The Additional Labour Commissioner and Ors.) as well as Writ Petition No. 3010 of 1991. (IOL Limited v. State of V. P. and Ors.) are being disposed of by a common judgment.
( 2 ) I have heard Shri S. N. Verma, Shri Prabhat Mukerji, and Shri Prem Chandra, learned counsel for the petitioner and Shri J. N. Tewari and Shri Rakesh Tewari, learned counsel for the respondents and have perused the counter and re joinder-affidavits and I am disposing of the same finally.
( 3 ) THE Writ Petition No. 4206 of 1991 is directed against a show cause notice dated February 15, 1991 issued by Additional Labour Commissioner, Kanpur on the application of the respondent no. 3 Union for payment of Rs. 2,91, 178. 82 as wages under the U. P. Industrial Peace (Timely payment of Wages) Act, 1978 (hereinafter referred to as the 1978 Act.) A true copy of the said notice dated February 15, 1991 is Annexure-1 to the writ petition. The said notice has been issued on the application of the Union purporting to be on behalf of its workmen. True copies of the said application and affidavit are Annexure-2 to the writ petition.
( 4 ) THE allegation of the petitioner in paragraph 8 of the writ petition is that its factory where the workmen in question were employed has been closed down on January 10, 1991. A perusal of the impugned show cause notice dated February 15, 1991 shows that the claim of the workmen which has been challenged in this writ petition is for wages for the period from January 10, 1991 to January 31, 1991 i. e. , for a period: subsequent to the closure.
( 5 ) SEVERAL points have been raised in this case by learned counsel for the petitioner but in my opinion the writ petition deserves to succeed on only some of them, and hence I am not going into the other points which he has raised.
( 6 ) IT has been held by this Court in the case of Jay Shree Tea Ltd. v. Industrial Tribunal. (1991-II-LLJ-154) that Section 6-W of the U. P. Industrial Disputes Act, which requires the employer to take permission of the Government before closing down the establishment is ultra vires Article 19 (1) (g) of the Constitution. In view of this decision, which I am respectfully following, there was no requirement for the employer to take permission from the Government before closing down its establishment. In the circumstances, the workmen cannot validly claim the wages for the period subsequent to the closure, and they can only claim closure compensation under Section 25-FFF of the Act. It has been alleged in paragraph 13 of the petition that the closure compensation has already been paid. In paragraph 7 of the counter affidavit the allegation that the closure compensation has been paid has not been specifically denied, and the only allegation is that the Award of the Industrial Tribunal dated July 27, 1981 regarding dearness allowance which was modified by the Supreme Court on May 2, 1985 has not been fully implemented. Since in this petition I am only concerned with the validity of the claim of wages subsequent to the closure on January 10, 1991, I am not going into the question regarding whether dearness allowance awarded by the Tribunal on July 27, 1981 as modified by the Supreme Court has been paid or not.
( 7 ) IT has been alleged in paragraphs 35, 36 and 37 of the writ petition that in view of the financial constraints it is not possible for the company to continue running the Kanpur unit, and hence it was decided to close the same, and it was closed on January 10, 1991.
( 8 ) IN paragraph 11 of the counter affidavit the respondent has denied that the establishment is closed and has alleged that the closure is a farce. In my opinion, it is no doubt open for the workmen to contend that there was in fact no closure vide Workmen of Straw Board Mills Co. Ltd. , v. Straw Board Manufacturing Co. Ltd. (1974-I-LLJ-499), but this matter can only be gone into
