JUDGMENT
S.U. Khan, J.
1. All these four writ petitions by the employers have been filed against different orders of Deputy Labour Commissioner, Ghaziabad (“D.L.C.” in short) passed under U.P. Industrial Peace (Timely Payment of Wages) Act, 1978 (hereinafter referred to as the “Act”).
2. Through the impugned orders directions for payment of wages of the workmen for different periods have been given.
3. Through the third writ petition two orders of same date i.e. 16.1.2002 passed by “D.L.C.” have been challenged. Through the said orders it was directed that the petitioner-employer shall pay wages to the workmen for November, 2000, February, March and April 2001 and July 2001. One order was passed in respect of 171 workmen and the other in respect of 13 workers. The orders were passed on the application dated 21.11.2001.The two orders taken together directed payment of Rs. 54.3 lacs as wages. Against the said orders which were exparte, employer filed recall /review application which was rejected on 8.8.2002. The said order has also been challenged through the same writ petition.
4. “D.L.C.” passed another order on 23.5.2002 (passed on the application dated 19.01.2002) directing the petitioner-employer to pay about Rs. 36 lacs as wages to 171 workers from August to November, 2001. The said order has been challenged through first writ petition. For the same period by another order of the same date (passed on the application dated 18.01.2002), “D.L.C.” directed the petitioner-employer to pay Rs. 1.35 lacs as wages to 14 workers. The said order has been challenged through the second writ petition.
5. The fourth writ petition is directed against the order of the “D.L.C.” dated 11.10.2002 (passed on the application dated 19.06.2002) directing payment of Rs. 59.2 lacs as wages to 184 workers for the period from December, 2001 to April, 2002.
6. After passing of the first order by “D.L.C.” the factory of the petitioner was auctioned on 26.2.2002 for a sum of Rs. 90 lacs. According to the petitioner its value was about Rs. 12 Crore. The said auction is subject matter of another writ petition being Civil Misc. Writ Petition No. 22593 of 2002.
7. It has also been stated on behalf of petitioner that due to labour trouble and financial constraint the production activities of the company came to a halt with effect from 15.10.2001. It has also been stated in the writ petitions that on 4.12.2001 the Company issued a General Notice closing the business and copy of the said notice was pasted on the notice board and sent to Labour secretary, Labour Commissioner and “D.L.C.” also. Against the applications under the aforesaid Act dated 18.01.2002, 19.01.2002 and 19.06.2002 the employer filed written statements and stated therein that as in recovery proceedings in pursuance of first order dated 16.01.2002 premises of the Company including the office had been sealed by the Tahsil authorities of Ghaziabad, hence the petitioner was not able to give detailed reply for want of record. The gist of the averments in the written statements was that Ishwar Singh, who was claiming to be General Secretary of the Union which had espoused the cause was not authorized by the employees to act on their behalf; that the Trade Union was not registered and was not having membership of 184 employees as alleged by it; that for the period for which wages have been claimed workers did not work; that the factory premises was lying closed and sealed and wages were disputed by the employers. It was further stated that several employees were working as Supervisors. In the written statements it was stated in para 4 that the company stopped production w.e.f. 15.10.2001. However, it was not stated any where in the written statements that any notice regarding permanent closure of the business/factory had been pasted on the notice board or sent to any authority.
8. In the third writ petition i.e. Civil Misc. Writ Petition No. 33551 of 2001,which is directed against the first order of the “D.L.C.” recall application was filed on 14.3.2002. Copy of the said recall application is Annexure ‘8’ to the writ petition, which does not bear any date. However, in para 16 of the said writ petition it is mentioned that recall application was filed on 14.3.2002 for setting aside exparte order dated 16.1.2002. In the recall application also it was mentioned in para 3 that since October, 2001 workers stopped working, manufacturing activity came to a halt and factory was closed. In para 7 (A) of the recall application it was stated that. The employers factory was closed by the employers vide their notice dated 04.12.2001. The intimation of closure was given to the office of the learned authority as well as to all other officials of the labour authorities at Kanpur and Lucknow. The said recall application was dismissed on 8.8.2002, which order has also been challenged in the said writ petition.
9. The Supreme Court in Hotel and Restaurant Karmchari Sanqh v. Gulmaq Hotel and Ors. has held that under the aforesaid U.P. Act disputed wages can not be directed to be paid. Para 8 of the said authority is quoted below:
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 were entitled to their wages, had not been 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 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.
10. The earlier authority on the point reported in Modi Industries Ltd. v. State of U.P. , has also been referred to in this authority.
11. In the impugned orders challenged in the first, second and fourth writ petition the “D.L.C.” has held that even though workers came to the factory site daily but on behalf of employers there was no one present to record their attendance. This at least shows that even according to the workers they did not work in the factory.
12. In my opinion, petitioner-employer was genuinely handicapped due to sealing and auction of the factory and office. Employer had no access to the records and hence it could not give proper, specific and detailed reply. In my opinion, sufficient ground for setting aside the first order of the “D.L.C” dated 16.1.2002 (challenged in the 3rd writ petition) had been made out and restoration application was wrongly rejected on 8.8.2002.
13. It may also be mentioned that during arguments learned Counsel for the parties stated that proceedings for winding up of the petitioner-Company were pending before Delhi High Court. Documents pertaining to winding up proceedings in the form of Company Petition No. 222 of 2001 in the matter of Kostub Investments Limited v. Reinz Talbros Limited have been filed.
14. Accordingly, all the writ petitions are allowed. Impugned orders passed by D.L.C dated 16.1.2002, 23.5.2002 and 11.10.2002 as well as order dated 8.8.2002 are set aside and the matter is remanded to D.L.C. It is directed that petitioner-Company must be permitted to inspect the records if the same are in custody of any authority in U.P. so that it may file detailed reply. However, if the records are in custody of official Liquidator attached to Delhi High court then petitioner may file application for inspection before Hon’ble Company Judge of Delhi High Court.
15. It is further directed that the Deputy Labour commissioner, Ghaziabad shall decide the matter strictly in accordance with the aforesaid Supreme Court authority. The orders passed by the Deputy Labour commissioner, Ghaziabad may be placed before the Hon’ble Company Judge of the Delhi High Court where the aforesaid Company petition is pending for appropriate consequential orders.
16. The writ petitions are accordingly allowed as above and the matter is remanded to the Deputy Labour commissioner, Ghaziabad for rehearing and fresh orders in the light of the observations made above. Both the parties are directed to appear before D.L.C. On 12.11.2007 on which date detailed reply shall be filed by petitioner after inspection of records. Union/Employees may also file supplementary application/affidavit.
