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Lallu Singh Kushwaha v. State Of U.P. And Others - WRIT - A No. 71636 of 2005 [2005] RD-AH 6148 (22 November 2005)


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Court No. 7

Civil Misc. Writ No. 71636 of 2005

Lallu Singh Kushwaha ... Petitioners


State of U.P. and others          ...          Respondents.

Hon'ble Rakesh Tiwari, J

The petitioner was working as Assistant Operator-cum-Chaukidar on daily wages in Kisan Co-operative Cold Storage Ltd., Sirathu, Kaushambi since 10.3.1988.  He was paid salarly @ Rs.565/- upto 31.12.1991. He claims that From January 1992 to June 2002, his salary has not been paid. In the year 1991, the Cold Storage was closed down and all the employees except the petitioner, were terminated.  He was absorbed in another Cold Storage owned and run by the Society and he was again appointed on the post of Peon w.e.f. 1.3.1993 and approval to his appointment was given on 1.12.1993.  Since the salary of the petitioner was not paid, he filed Civil Misc. Writ Petition No. 44432 of 2003.  On the basis of averments made in the Counter Affidavit, the Court allowed the writ petition vide judgment dated 27.7.2004 holding that-

  " From the reading of the above quoted averments of paragraphs 3 and 9 of the Counter Affidavit, it is evident that the employer is not in a financial position to pay his salary as no funds are available. The liability to pay the salary of the petitioner is not denied by the respondents. If a worker/employee has worked, he/she is entitled to his/her salary. The employer cannot escape from its liability topay salary of an employee on the plea of its bad financial condition.  It is the right of the employee/worker to get his/her salary/wages and the employer cannot take Begar from him/her. Taking Begar is opposed to the constitutional mandate.

For the reasons stated above, this writ petition is allowed. The respondents are directed to pay the salary of the petitioner due to him with interest at the rate of 10% per annum within a period of two months from the date or production of a certified copy of this order.  In case the due salary of the petitioner is not paid within the time granted, the same shall be recovered from the respondents as arrears of land revenue within a period of two mnths of expiry of the time granted for payment of salary."

It appears that the petitioner's claim was rejected vide order dated 12.10.2004 by the respondent no. 4 on the ground that he has been paid salary for 332 days for the period 1.7.2002 to 30.4.2003 and 1.6.2003 to 31.7.2003 on which he has worked and that he is further entitled to salary for 190 days for the period 1.1.1992 to 26.2.1992 and 1.3.93 to 16.7.95 but is not entitled to salary for the period 27.2.92 to 28.2.95, 17.7.95 to 24.7.95, 27.7.96 to 30.6.2002,1.5.03 to31.5.03 and 1.8.03 till date, when he was absent.

In the impugned order dated 12.10.2004 it has been stated that the order of this Court passed in the aforesaid writ petition would be complied with as soon as the funds are available.

The question whether the petitioner is entitled to salary or not for when he is alleged to have remained absent can only be decided under Section 6-H(2) of the U.P. Industrial Disputes Act, 1947. This Court, under Article 226 of the Constitution cannot go into any disputed question of fact which requires findings on the basis of documentary and oral evidence.

The petitioner has an alternative and efficacious remedyto get the amount, in dispute, computed under Section 6-H(2) of the U.P. Industrial Disputes Act, 1947 which is para materia to Section 33-C of the Industrial Disputes Act, 1947. The petitioner may move an application before the competent Labour Court for computation of admitted amount with 10% interest as directed vide judgment dated 27.7.2004 as well as the disputed amount.  After computation, the same may be got recovered in proceedings under Section6-H(1) of the U.P. Industrial Disputes Act, 1947.

The writ petition is accordingly disposed of. No order as to costs.

Dated 22.11.2005



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