1. This is an application under Article 226 of the Constitution of India for quashing six certificates issued by the opponent No. 4, the Government of Madhya Pradesh, Labour Department, under Section 33C of the Industrial Disputes Act, 1947, for recovery of certain amounts said to be payable as compensation to six workers of the petitioner-Mills who were laid off under the provisions of the Act, and for quashing the notices of demand served by the Naib Tehsildar, Burhanpur, on the basis of those certificates.
2. The material facts are that in 1958 six workers of the petitioner-Mills, who had been laid off, applied to the Government for payment of layoff compensation for the period from July to October 1957 under Sections 25C and 33C of the Act. The applications were made under Rule 62 of the Madhya Pradesh Industrial Disputes Rules, 1957. On receipt of the applications, the Labour Commissioner acting under the said rule directed the Labour Officer, Burhanpur, to enquire into the allegations and merits', of the applications and to make a report to him. On the basis of these reports, the Government found the amount payable to each worker as lay-off compensation and accordingly issued certificates under Section 33C of the Act for recovery of the amount.
3. Shri V. S. Dabir, learned counsel appearing for the applicant, contended that under Section 33C the Government had no jurisdiction to issue certificates when there was no adjudication by the competent authority as to the amount of lay-off compensation under Chapter V-A of the Act; that without such an adjudication there could be no question of recovery of any amount under Section 33C; and that Rule 62 framed by the Government in so far as it permitted the Government to determine the money due to a workman from an employer under the provisions of Chapter V-A on an enquiry by the Labour Commissioner or the Labour Officer was ultra vires the Act. It was further submitted that the amount of compensation payable as lay-off compensation to the workers could be determined only by the Labour Court as defined in Section 7 of the Act.
4. In our judgment, this petition must be granted. The question that arises for determination in this application is whether Government was the competent authority to determine the amount of layoff compensation payable to the workers, and if it was not, whether it acted legally in issuing the certificates for the recovery of the amount. The question turns on the construction of Section 33C. This provision-was considered very recently in Bengal Nagpur Cotton Mills Ltd. Rajnandgaon v. State of Madhya Pradesh, M. P. No. 226 of 1959 : (AIR 1960 Madh-Pra 319) and it was held by a Division Bench of this Court that :
'Section 33C(1), therefore, deals with the recovery of an amount which has already been ascertained and not with the ascertainment of any amount payable to the employee. The amount due to a workman from, an employer under a settlement or an award may be an ascertained amount. But the same cannot be said of an amount due to him under the provisions of Chapter VA. This has to be determined in accordance with the relevant provisions of Chapter VA before the recovery of it can be ordered under Section 33C(1). Section 33C(1) no doubt says that the appropriate Government, if satisfied that any money is due, shall issue a certificate for the recovery of that amount. But this satisfaction of the appropriate Government is not for the purpose of the ascertainment of the amount. It is with regard to the question whether any ascertained amount payable to the worker has or has not been paid to him, or whether any balance is still due to him.'
This view was based on the decision of the Supreme Court in Kasturi and Sons (Private) Ltd. v. Salivateswaran, AIR 1958 SC 507 in which Section 17 of the Working Journalists (Conditions of Service and Miscellaneous Provisions) Act, 1955, analogous to Section 33C of the Industrial Disputes Act, 1947 was construed as providing for a procedure to recover the amount due from an employer and not a provision for the determination of the question as to what amount is due.
The Supreme Court also observed in that case that the condition precedent for the application of Section 17 is a prior determination by a competent authority or the Court of the amount due to the employee from his employer and it is only after the amount due to the employee has been duly determined that the stage is reached for the recovery of the amount and it is at that stage that the employee is given the additional advantage provided by Section 17 without prejudice to any other mode of recovery available to him. Disagreeing with the view taken by the Patna High Court in Sree Behariji Mills Ltd. v. State of Bihar, AIR 1957 Pat 488 it was observed by the Division Bench of this Court in the ease of M. P. No. 226 of 1959 : (AIR 1960 Madh Pra 319) that Section 33-C(1) of the Act of 1947 did not grant power to the Government to make an enquiry and determine the amount payable to a worker as compensation under any provision of Chapter V-A of the Act.
5. Here, it is not disputed that the amount claimed by the six workers was not due to them under a settlement or an award and that it was also not any benefit falling within Sub-section (2) of Section 33C. The amount which the workmen claimed was one under the provisions of Chapter V-A. Now, if Section 33-C(1) does not vest the Government with any power to determine the quantum of compensation, then clearly It. 62 in so far as it permits the Government to enquire into any claim for compensation and adjudicate on the amount of compensation in accordance with the provisions of Chapter V-A is ultra vires, as it goes beyond the scope of the section. That rule is as follows :
'An application under Section 33C shall be delivered personally or forwarded by registered post in triplicate, to the Secretary to the Government of Madhya Pradesh, Labour Department.
'The Government may before issuing a certificate to the Collector for recovery of the amountunder Sub-section (1) of Section 33C of the Act require the Labour Commissioner or the Assistant Labour Commissioner concerned, or the Conciliation Officer concerned, as the case may be, to enquire into the merits, allegations of the applications received by the Government under this rule. The Labour Commissioner may also direct the Labour Officer or the Assistant Labour Officer of the Division or subdivision concerned to make enquiries in the allegations and merits of the application. The officer thus empowered to make the enquiries and investigations shall have all the powers of a Labour Court under this Act.'
As under Section 33C of any other provision of the Industrial Disputes Act, 1947, the Government has not been conferred with the power to adjudicate upon the amount of compensation payable under Chapter V-A, then consistently with Section 33C the rule cannot be read as empowering the Government to adjudicate upon the amount of compensation payable under Chapter V-A. The scope of the rule would be confined only to finding whether the amount of compensation determined by the competent authority has or has not been paid to a worker or whether any balance is still due to him, and if so, the amount of the balance. When there is a dispute between an employer and a workman as regards the amount of lay-off compensation payable to him, the matter has to be referred to the Labour Court under Section 7 of the Act.
It is plain from Section 7 read with the second schedule to the Act that the matter of payment of lay-off compensation is a matter within the jurisdiction of Labour Courts under item No. 6 of the second schedule which places all matters other than those specified in the third schedule as matters within the cognizance of the Labour Courts. The Labour Court under Section 7 is the one constituted under the Act and not any officer whom the Government may empower under Rule 62 to make enquiry and investigation into an application under Section 33C giving him all the powers of a Labour Court. An officer empowered under Rule 62 with the powers of Labour Court would not be a Labour Court as contemplated by Section 7 of the Act.
6. The amount of lay-off compensation payable to a worker under Chapter V-A of the Industrial Disputes Act does not come within the definition of 'wages' under the Payment of Wages Act, 1936, and, therefore, its recovery cannot be made under that Act: see Annsuvabai v. J. H. Mehta, AIR 1960 Bom 201. Accordingly we hold that the Government had no jurisdiction to determine under Section 33C or Rule 62 the amount of layoff compensation payable to the six workers. The amount could be adjudicated only by the Labour Court under Section 7 of the Act in case of a dispute. It is only if and after the amount due to the employee is so determined that the Government gets the power of ordering its recovery under Section 33C.
7. For these reasons, the certificates issued by the opponent State and the notices of demand issued by the Naib Tahsildar are quashed. The opponents are restrained from recovering any amount from the petitioner on the basis of those certificates or the notices of demand. The petitioner shall have costs of this application. Counsel's fee is fixed at Rs.75/-. The amount of security deposit be refundedto the petitioner.