MODI INDUSTRIES LTD Vs. STATE OF U P

JUDGEMENT

(1.) Petitioner is a Company incorporated under the Indian Companies Act and runs various industries including the Modi Banaspati Manufacturing Co. (hereinafter referred to as the Company) at Modinagar, District Ghaziabad. On 19.12.1990 there was some dispute between the management of the Company and the Trade Union Leaders, which resulted in lodging of two first information reports by the management and the trade union leaders against each other and suspension of 30 workmen of the Company by its management. From 21.12.1990, according to the Company, the workmen came to the Company s premises but did not discharge their duties on account of which there was complete halt in production; but according to the respondents trade unions although the workmen were coming to the Company's premises regularly but the production could not be carried on as 30 workmen, who were suspended, were technicians and in their absence it was not possible to operate the machines. However, on 27.12.1990 an agreement was arrived at between the management of the Company and the trade unions in which it was provided that excepting the employees, who have been suspended, the management of the Company will permit the other workmen to work and those workmen will go to the Company for discharging their duties. It appears that in spite of this agreement the work could not be carried on in the Company. According to the management of the Company the work could not be carried on due to non-cooperation by the workmen; but according to the trade unions management did not permit the workmen to work. Under these circumstances, the District Administration and the Labour Department started making efforts so as to enable the workmen to work in the Company. On 8.2.1991 a meeting was held in the presence of the Additional District Magistrate and the Deputy Labour Commissioner in which the representatives of the management of the Company and the leaders of the trade unions were present. Before the aforesaid authorities a grievance was made on behalf of the trade unions that in the absence of the technical person, it is not possible to run the Company, although the workers are always ready to discharge their duties. In view of this position the Additional District Magistrate suggested that out of the suspended workmen all those persons against whom there are no serious charges be reinstated and the inquiry may be continued against them also so that work can be carried in the Company. But the representatives of the management did not agree with the aforesaid suggestion and requested for the postponement so as to enable them to consult the higher officials of the management. In view of this position 11.1. 1991 was fixed as the next date. It appears that no positive reply was received from the management on account of which work could not be carried on in the Company upto 3.3.1991 and it was only on 4.3.1991 that the Company started the production. The management of the Company did not pay the wages to the workmen from 21.12.1990 to 3.3.1991. The Additional Labour Commissioner issued a notice dated 27.2.1991 under Section 3 of the U.P. Industrial Peace (Timely Payment of Wages) Act, 1978 (hereinafter referred to as the Act), whereby the petitioner was called upon to show cause as to why order for payment of wages under Section-3 of the Act be not made against it and in that connection 10.3.1991 was fixed for appearance of the representatives of the petitioner The petitioner submitted its representation as well as the supplementary representation. They were also given opportunity of personal hearing. After considering the material placed by the petitioner the Additional Labour Commissioner passed an order dated 29.4.1991 (Annexure-V to the writ petition) under Section 3 of the Act directing for recovery of Rs. 3,67,474/- from the petitioner for payment of wages to the workmen for the month of January, 1991. It is against this order that the petitioner has filed this writ petition before this Court.

(2.) The respondents have filed counter-affidavit and the petitioner has filed rejoinder affidavit in reply thereto. We have heard the learned counsel for the petitioner, learned counsel for the trade unions respondents and the learned Standing Counsel.

(3.) Learned Counsel for the petitioner has made three submissions, namely, (i) authorities can act under Section 3 of the Act only when there is default on the part of the employer in payment of wages to the workmen and unless such a default is admitted or established by adjudication by appropriate authorities/Court no order can be passed under Section 3, (ii) 'no work no wages' principle is applicable to industrial establishment and as the workmen have not worked in January, 1991 they are not entitled to any wages for the said month and in these circumstances, the Labour Commissioner has no jurisdiction to take action under Section 3 of the Act; and (iii) the impugned order is a non-speaking order. Learned counsel for the respondents apart from disputing the aforesaid submissions of the learned counsel for the petitioner, have raised a preliminary objection to the effect that the petitioner has alternative remedy before the Industrial Tribunal under the Industrial Disputes Act and this writ petition is, as such, liable to be dismissed on the ground of alternative remedy.