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Mahendra Bal Shukla And Another v. State Of U.P. And Others - WRIT - C No. 72920 of 2005  RD-AH 6338 (6 April 2007)
Civil Misc. Writ Petition No.72920 of 2005
Mahendra Bal Shukla and another.........................................Petitioners
The State of U.P. and others...........................................Respondents.
Hon.Tarun Agarwala, J.
The services of the petitioners were terminated w.e.f. 1.4.1985. The petitioners raised an industrial dispute which was referred by the State Government under Section 4-K of the U.P. Industrial Disputes Act to the Labour Court, Kanpur with regard to the validity and legality of the order of their termination. The Labour Court, after considering the material evidence on record, allowed the claim of the petitioners and directed U.P. Digitals Limited to reinstate the petitioners with 50% back wages. The employers filed a Writ Petition No.2240 of 1992 which was dismissed by an order dated 16.2.2000. Consequent upon the dismissal of the writ petition, the petitioners filed an application under Section 6-H(1) of the U.P. Industrial Disputes Act for the recovery of the amount in terms of the award of the Labour Court. The Additional Labour Commissioner, by an order dated 15.1.2005, computed the amount amounting to Rs.9,11,316/- and issued a recovery certificate requesting the District Magistrate, to recover the amount from the employers, namely, U.P. Digitals Limited. It transpires that the Additional Labour Commissioner sent a reminder dated 19.5.2005 to the District Magistrate, to recover the amount. The petitioners also made an application dated 28.6.2005 to the District Magistrate to recover the amount. Since no action was taken by the District Magistrate, the petitioners filed the present writ petition seeking a writ of mandamus commanding the District Magistrate to recover the amount from the employers.
Heard Sri S. N. Dubey, the learned counsel for the petitioners, Sri Uma Kant Uniyal, and Sri Kripa Shanker Singh, the learned counsels for respondent Nos.3 and 4 and the learned Standing Counsel for respondent Nos.1 and 2. No one appeared for respondent Nos.5 and 6.
U.P. Digitals Limited filed a counter affidavit and submitted that the writ petition was not maintainable and that no mandamus could be issued to the District Magistrate to recover the amount, inasmuch as, the Court could not act as an executing Court and that, the amount, if any, could be recovered under Section 6-H(2) of the U.P. Industrial Disputes Act. The learned counsel for the respondents further submitted that U.P. Digitals Limited was initially a subsidiary of U.P.S.I.D.C. and upon the creation of State of Uttaranchal (now Uttarakhand), it became a subsidiary of Kumaun Mandal Vikas Nigam Limited. Consequently the liability, if any, of the payment of arrears of wages, as per the award, was with the parent Company, namely, U.P.S.I.D.C. and that no amount could be recovered from the said respondent's which has now become a subsidiary of Kumaun Mandal Vikas Nigam Ltd. The learned counsel further submitted that the State of Uttaranchal has taken a decision by its order dated 12.12.2006 to wind up U.P. Digitals Ltd. and this decision was published in the Gazette on 2.1.2007. Consequently, no recovery could be made from the said respondents, in view of the provisions of Section 446 of the Companies Act.
In my opinion, the submissions raised by the learned counsel for the respondents is bereft of merit. The submission that the petitioners had a remedy under Section 6-H(2) of the Act is also erroneous. The award was passed by the Labour Court which was affirmed by the Writ Court. The benefit accruing under the said award could only be computed by the authority under Section 6-H(1) of the Act. The authority, while passing an order under Section 6-H(1) of the U.P. Industrial Disputes Act, is required to issue a certificate to the Collector for the recovery of the amount and the Collector has to recover the amount as arrears of land revenue. Once the certificate is issued, it is the duty of the Collector to recover the amount, even though the recovery is from an instrumentality of the State Government. Since the District Magistrate was not performing his duty and was not recovering the amount, the Court under Article 226 of the Constitution of India can always issue a mandamus to the authority to comply with the recovery certificate and to do the job which the authority was entrusted with.
In the present case, the Court finds, that the District Magistrate had failed in his duty in recovering the amount from the respondent. Consequently, the Court has the power to issue a mandamus to the authority to ensure that the amount is recovered from the respondents. The submission of the learned counsel for the respondents that the Court cannot act as an executing court is wholly erroneous. The Court is not acting as an executing court but only exercising its powers to ensure that the authority acts on the recovery certificate and does its duty which the authority was entrusted under law.
The submission of the learned counsel that the amount could only be recovered from U.P.S.I.D.C. and not from the present employer is also erroneous. In the first instance, necessary details in support of this submission is lacking in the counter affidavit. The Deputy Labour Commissioner while issuing the recovery certificate under Section 6-H(1) found that U.P.S.I.D.C. was not liable to pay the amount and that the amount was to be recovered from U.P. Digitals Limited. This order of the Deputy Labour Commissioner has not been challenged by U.P. Digitals Limited or by Kumaun Mandal Vikas Nigam Limited. Consequently, it does not lie in the mouth of the respondents to allege that the amount was liable to be paid by the erstwhile employers, namely, U.P.S.I.D.C. Further, in the opinion, of the Court, the provisions of Section 25-FF of the Industrial Disputes Act would be squarely applicable in the light of the facts of the present case.
The submission of the learned counsel for the respondent that U.P. Digitals Limited has been wound up under the Companies Act and therefore, no recovery of any amount could be made in view of Section 446 of the Companies Act is patently erroneous. In my opinion, there is no order of the winding up of the Company either under Chapter II or Chapter III of the Companies Act. The gazette notification dated 2.1.2007 indicates that a decision has been taken to liquidate U.P. Digitals Limited but the said unit has not been wound up as yet. It has not been dissolved as yet and only a publication of the resolution for voluntary winding up has been made in the gazette. Consequently, the provisions of Section 446 of the Companies Act is not applicable to the present facts and the circumstances of the case.
Admittedly, the award has not been complied with by the respondents as yet. The District Magistrate has failed to exercise its powers in recovering the amount as per the recovery certificate issued by the Assistant Labour Commissioner passed under Section 6-H(1) of the U.P. Industrial Disputes Act. Since the Collector has failed to recover the amount, the Court can issue a mandamus to the District Magistrate to recover the amount.
Consequently, for the reasons stated aforesaid, the Court does not find any merit in the submissions made by the learned counsel for the respondents. The writ petition is allowed and a mandamus is issued to the District Magistrate to recover the amount from U.P. Digitals Limited within six weeks from the date of the receipt of a certified copy of the order and deposit the said amount before the Deputy Labour Commissioner, Kanpur Region, Kanpur pursuant to the recovery certificate dated 15.1.2005 issued by the Additional Labour Commissioner, Kanpur under Section 6-H(1) of the U.P. Industrial Disputes Act.
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