JUDGMENT
1. The short question that this writ petition gives rise to is whether, after having issued a certificate under Section 33-C of the Industrial Disputes Act, 1947, the Labour Commissioner is entitled to modify the said certificate when the same was already before the Court of Recovery of Arrears of Land Revenue.
2. The petitioner is an employee working for M/s. Chowgule Engineering Co. Pvt. Ltd. By a letter dated 24th August, 1978, he was dismissed from service with immediate effect. An industrial dispute was raised, and, ultimately, the Industrial Tribunal, by award dated 11th December, 1985, set aside the punishment of dismissal and changed it to one of a week’s suspension. Thereafter, the petitioner gave a notice dated 7th January, 1986 to the fifth respondent, demanding his reinstatement and payment of the back wages as awarded by the Industrial Tribunal. No reply was given by the fifth respondent and, therefore, the petitioner preferred an application under Section 33-C(1) of the Industrial Disputes Act to the Labour and Employment Commissioner for recovery of his back wages from the date of termination of services till December 1985. Despite several notice, the fifth respondent failed to pay the back wages and, therefore, the petitioner filed a detailed statement of his claim specifying his monthly wages wages from April, 1978 till December, 1985. Finally, the fourth respondent issued a notice to the employers directing them to pay a sum of Rs. 84,576.85 towards the back wages from 1st April, 1978 to 31st December, 1985. Even after the said notice was given, the fifth respondent failed to reply to the same and, therefore, a certificate was issued by the fourth respondent to the Collector of Goa, for the purpose of recovering the above mentioned amount as arrears of land revenue as provided in Section 33-C(1). The said certificate was sent to the Mamlatdar of Mormugao Taluka for execution.
3. After the receipt of the said demand notice, the fifth respondent filed a writ petition in this Court challenging the award of the Industrial Tribunal as well as the demand notice issued by the Mamlatdar. By order dated 25th September, 1986, the said writ petition was dismissed at the time of admission itself. After this dismissal, the fifth respondent wrote a letter to the petitioner communicating its willingness to reinstate him and directing him to report for duties within 15 days from the receipt. It was further stated that the fifth respondent was willing to pay the amount of Rs. 89,548.82 towards the back wages up to 30th June, 1986, provided a certificate from the income-tax department under Section 89 of the Income-Tax Act was produced. But, thereafter, the Labour Commissioner sent a letter to the Mamlatdar of Mormugo Taluka stating that the fifth respondent should be allowed to make statutory deductions from the wages payable to the petitioner which would include not only the income-tax deductions, but also those towards E.S.I., provident fund, etc.
4. The petitioner challenges this direction of the Commissioner for Labour and Employment on the sole ground that the direction given by him to the Mamlatdar amounts to a review of his earlier of his eariler order issuing the certificate for recovery of the amount as arrears of land revenue although he has no such powers under the law. Mr. Nigalye has relied in support of this submission, on the decision of Supreme Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, .
5. Though notice was served on all the defendants, none of them had put in an appearance at the hearing of this case.
6. Section 33-C(1) of the Industrial Disputes Act provides that where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or Chapter V-B, the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other made of recovery, make an application to the appropriate Government for the recovery of money due to him, and if the appropriate 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 in the same manner as an arrear of land revenue, provided that such application shall be made within one year from the date on which the money became due to the workman from the employer and provided further that any such application shall be entertained after the expire of the said period of the one year if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.
7. It was already mentioned that after the award of the Industrial Tribunal, the petitioner has asked the fifth respondent for his reinstatement and for his back wages and that in spite of the request, the fifth respondent failed to reinstate and to pay the back wages. This situation gave cause to an application to be filed by the petitioner under Section 33-C of the Industrial Disputes Act before the Labour Commissioner. Here again, in spite of repeated notices, the fifth respondent failed to appear and even after notice was given that the back wages from 1st April, 1978 to 31st December, 1985 were amounting to Rs. 84,576.85. In other words, the fifth respondent chose not to challenge the correctness of the amounts claimed by the petitioner. Therefore when the certificate for recovery of the said back wages was sent to the Mamlatdar and a demand notice was served on the fifth respondent, it was not any more open to it to challenge the correctness of that amount. This being so, irrespective of any other reason, it was not proper and legitimate for the Labour Commissioner to accept the contentions of the fifth respondent and order deductions to be made towards income-tax, E.S.I., provident fund, etc., although income-tax may be payable and other deductions may be legally done. That apart, it appears from the scheme of Section 33-C of the Industrial Disputes Act that no powers of revision have been given to the Labour Commissioner in order to correct or modify a certificate issued under sub-section (1) of Section 33-C of the Act. In this respect, it is advantageous to make a reference to the observations of the Supreme Court in Patel Narshi Theocracy’s case (supra). Their Lordships observations that it is well-settled that the power to review is not any inherent power. It must be conferred by the law either specifically or by necessary implication. I have already said that in the scheme of Section 33-C the power of review if not included either expressly or impliedly. Therefore, the action of the Labour Commissioner in directing the Mamlatdar to make deductions towards income-tax E.S.I., provident fund, were not legal and are consequently bound to be quashed and set aside.
8. Mr. Nigalye submits that out of about Rs. 84,576.85 only Rs. 28,416.43 remained to be recovered.
9. The result, therefore, is that this petition succeeds and consequently the rule is made absolute in terms of prayers (a), (b) and (c). There will be no order as to costs in the circumstances of the case.