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M/S Prashant Glass Works Ltd. v. Deputy Labour Commissioner, Varanasi &ors. - WRIT - C No. 12759 of 1987  RD-AH 1072 (7 October 2004)
Civil Misc. Writ Petition No. 12759 of 1987
M/s Prashant Glass Works Pvt. Ltd. .....Petitioner
The Dy.Labour Commissioner, Varanasi and others...Respondents.
Heard Sri M.B.Saxena, learned counsel for the petitioner, learned standing counsel for respondents no. 1,2 & 3 and Sri A.S.Dewaker,learned counsel for the respondent no.4-workmen at length.
In spite of time being granted on several occasions, no counter affidavit has been filed by the either of the respondents to the writ petition. It is a settled law as laid down in A.I.R. 1966 Alld. page 156, A.I.R. 1962 Alld. ppage 407, A.I.R. 1987 S.C. page 479 and 1999 (82) Factory Law Report, page 709 that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct. The presumption is in favour of the petitioner in terms of Section 114 Illustration (G) of the Evidence Act. In the absence of counter affidavit, this Court is left with no option but to accept the averments made in the petition to be correct and true.
The facts of the case in brief are that the workmen of the establishment of the petitioner went on an illegal strike from 10.2.1987 to 2.6.1987. The Dy. Labour Commissioner-respondent no.1 sought information in respect with the illegal strike on the allegation of the workmen that the establishment was locked out. A show cause notice dated 23.4.1987 (Annexure No.2 to the writ petition) issued by respondent no.1 was sent to the petitioner, wherein it was stated that since the workmen had not been paid their wages for January to February, 1987, the total figure of which was above Rs. 50,000/-, why the recovery of the said amount of the wages be not issued under the provision of Section 3 of the U.P. Industrial Piece (Timely Payment of Wages Act, 1978 (hereinafter referred to as the Act).
The petitioner filed his reply on 18.6.1987 thereafter the impugned order dated 18.6.1987 was passed by respondent no.1 directing to realize the total sum of Rs. 98,922 /- regarding the wages of 151 employees without disclosing the names of the employees or without assigning any reason. The earlier figure of 122 workmen was raised to 151 workmen without disclosing any reasons, whatsoever. Though, in fact, only 72 employees were on the muster roll. The respondent no.1 had inspected the entire record of the establishment, which included the muster roll, the attendance register and the wage-sheet, which had already been duly inspected earlier also by the authority including the Factory Inspector and Labour Inspector.
Learned counsel for the petitioner has submitted that the provision of Section 3 (1) of the Act is not applicable, as admittedly wages in one month had never crossed the figure of Rs. 50,000/- and the respondent no.1 had committed gross an error in calculating the two months wages illegally to bring the case within its jurisdiction according to the provision of the Act.
I have looked into the record of the case and find that the respondent no.1 had exceeded its jurisdiction under the provision of the Act, which are not attracted in the present circumstances and the impugned order is, wrong, bad and illegal being without jurisdiction. In view of the facts and circumstances of the case and observations made hereinabove, the impugned order dated 18.6.1987 (Annexure No.4 to the writ petition) passed by respondent no.1 is hereby quashed. The writ petition is allowed. No order as to costs.
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