# M.K. Shukla v. The Addl. Labour Commissioner and another

- **Citation:** (2007) 2 ILRA 519
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-04-26
- **Case number:** Civil Misc. Writ Petition No.11288 of 1984
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-k-shukla-v-the-addl-labour-commissioner-and-another-40956
- **Pages:** 5

## Headnote

U.P. Industrial Dispute Act 1947-Section
6 (2)-Power of Review-order passed
under Section 2 H (2) regarding the
arrear of wages recall application on the
ground the workman gainfully worked
during these period-objection that the
labor Commissioner has no power of
review-held-misconceived-order passed
exercising Quasi judicial power-can be
reviewed.

Held: Para 12

The submission of the learned counsel
for the petitioner that the Additional
Commissioner had no power to review or
recall
its
own
order
is
patently
erroneous. The Additional Commissioner
is exercising quasi judicial powers under
Section 6-H(1) of the Act and therefore,
the authority has the power to review or
recall its order.
Case law discussed:
AIR 1965 SC-1488
1983 LIC-1738
520 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

## Text

2 All] M.K. Shukla V. The Addl. Labour Commissioner and another
519
those governed by the Settlement dated
22.2.1966 would be entitled to continue
till the age of 60 years and shall not be
retired on attaining the age of 58 years in
view of proviso to Regulation 24 of 1975
Regulations. Ram Swarup Srivastava
(supra) was also a case arising from
Allahabad
Cooperative
Bank
where
existed a similar agreement as involved in
Lalji Srivastava (supra). It is also
worthy of notice that in Ram Swarup
Srivastava (supra) there was another
connected matter, i.e., Hari Narain Ojha
vs.Allahabad
District
Co-operative
Bank Ltd. Allahabad (Special Appeal
No.66 of 2003) but in that case it was
found that he was appointed subsequently
and was not governed by the settlement
dated 22.2.1966 but in view of the Joshi
Award was liable to retire on attainment
of 58 years and his appeal was dismissed
by the Division Bench. Similarly, in
Dhyan Chand Gupta (supra) we find
that there was a settlement dated 6.5.1965
executed by Meerut District Cooperative
Bank Meerut, providing the age of
retirement as 60 years and pursuant
thereto he was held entitled to continue
till the age of 60 years. Therefore, none of
the aforesaid judgments are applicable or
lend any support to the petitioner for the
reason that in the case in hand there is no
contract executed between the parties,
providing any higher age of retirement in
order to attract proviso to Regulation 24
of 1975 Regulations. We, therefore, do
not find any force in the contention
advanced on behalf of the learned counsel
for the petitioner that he was entitled to
continue till he attains 60 years of age.

14. The writ petition lacks merit and
is accordingly, dismissed. No order as to
costs.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.04.2007

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.11288 of 1984

M.K. Shukla

...Petitioner
Versus
The Additional Labour Commissioner,
Kanpur and another
...Respondents

Counsel for the Petitioner:
Sri K.P. Agrawal
Sri B.N. Singh
Sri N.C. Pandey
Sri Dinesh Chandra

Counsel for the Respondents:
Sri V.P. Varshney
S.C.

U.P. Industrial Dispute Act 1947-Section
6 (2)-Power of Review-order passed
under Section 2 H (2) regarding the
arrear of wages recall application on the
ground the workman gainfully worked
during these period-objection that the
labor Commissioner has no power of
review-held-misconceived-order passed
exercising Quasi judicial power-can be
reviewed.

Held: Para 12

The submission of the learned counsel
for the petitioner that the Additional
Commissioner had no power to review or
recall
its
own
order
is
patently
erroneous. The Additional Commissioner
is exercising quasi judicial powers under
Section 6-H(1) of the Act and therefore,
the authority has the power to review or
recall its order.
Case law discussed:
AIR 1965 SC-1488
1983 LIC-1738
520 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri B.N. Singh, the learned
counsel for the petitioner. No one appears
for the respondents. The services of the
petitioner was terminated by an order
dated 19.10.1968. The petitioner raised an
industrial dispute which was referred for
adjudication before the Labour Court. The
Labour Court gave an award dated
30.6.1972 directing reinstatement with
back wages. The employer filed a writ
petition which was eventually dismissed
by a judgment dated 30.1.1978. Upon the
dismissal of the writ petition, the
petitioner moved two applications under
Section 6-H(1) of the U.P. Industrial
Dispute Act, for the recovery of wages in
terms of the award. By the first
application,
wages
amounting
to
Rs.12,378.39 was sought to be recovered
for the period 1.1.1972 to 30.1.1978 and
by the second application, an amount of
Rs.6665.33 was sought to be recovered
from
1.2.1978
to
30.4.1980.
The
Additional Labour Commissioner after
considering
the
matter
issued
two
recovery certificates dated 15.12.1980 for
the recovery of the aforesaid amount from
the employers. When the petitioners came
to know about the aforesaid orders, they
filed an application for the recall of the
said
order.
The
Additional
Labour
Commissioner
after
considering
the
matter and, after hearing the parties,
recalled its order by an order dated
29.5.1984. Aggrieved by the aforesaid
order, the petitioner has filed the present
writ petition.

2. The learned counsel for the
petitioner submitted that the Additional
Commissioner committed a manifest error
in recalling its earlier order, inasmuch as,
the amount sought to be recovered was
pursuant to the award of the Labour Court
which could be recovered under Section
6-H(1) of the Act. Further, the contention
of the employers that the petitioner was
gainfully
employed
for
the
period
1.1.1972 to 30.4.1980 could not be
considered or adjudicated in proceedings
under Section 6-H(1) and could only be
adjudicated under Section 4-K of the
Industrial Disputes Act. The learned
counsel
for
the
petitioner
further
submitted
that
the
Additional
Commissioner
had
no
power
or
jurisdiction to recall or review its own
order since no such power had been
provided under the Act.

3. In support of his submission, the
learned counsel for the petitioner has
placed reliance upon the decision of the
Supreme
Court
in
case
of
Kays
Construction Co. (P) Ltd. Vs. State of
U.P. and others, AIR 1965 SC 1488,
Abhinash Chandra
Gautam (since
deceased) through its L.Rs. vs. Union
Territory of Tripura and another, 1983
LIC 1738 and Cox and Kings (Agents)
Ltd. Vs. Their Workmen and others,
1977(34) FLR 235.

4. In my opinion, the submissions of
the learned counsel for the petitioner is
misconceived and bereft of merit. Further,
the judgment relied upon by the petitioner
has no application to the present facts and
the circumstances of the case.
5. Section 6-H of the U.P. Industrial
Disputes Act is quoted herein under for
ready reference:

6-H. Recovery of money due from an
employer- (1) Where any money is due to
a workman from an employer under the
provisions of Section 6-J to 6-R or under
a settlement or award, or under an award
2 All] M.K. Shukla V. The Addl. Labour Commissioner and another
521
given by an adjudicator or the State
Industrial
Tribunal
appointed
or
constituted under this Act, before the
commencement of the Uttar Pradesh
Industrial Disputes (Amendment and
Miscellaneous Provisions) Act, 1956, the
workman may, without prejudice to any
other mode of recovery, make an
application to the State government for
the recovery of the money due to him, and
if the State Government is satisfied that
any money is so due , it shall issue a
certificate for that amount to the Collector
who shall proceed to recover the same as
if it were an arrear of land revenue.

(2) Where any workman is entitled to
receive from the employer any benefit
which is capable of being computed in
terms of money, the amount at which such
benefit should be computed may, subject
to any rules that may be made under this
Act, be determined by such Labour Court
as may be specified in this behalf by the
State Government, and the amount so
determined may be recovered as provided
for in sub-section (I).

(3) For the purposes of computing
the money value of a benefit, the Labour
Court may, if it so thinks fit, appoint a
Commissioner in the prescribed manner
who shall, after taking such evidence as
may be necessary, submit a report to the
Labour Court and the labour Court shall
determine the amount after considering
the report of the Commissioner and other
circumstances of the case]

6. The Supreme Court in Kays
Construction
Co.(P)
Ltd.(supra)
interpreted the provisions of Section
6H(1) and 6-H(2) of the U.P. Industrial
Disputes Act and held-

"It is contended before us that the
judgment of the Division Bench is
erroneous in the interpretation of S. 6H(1) and (2). The question thus is how
are the two sub-sections to be read ? This
section is analogous to S.33-C of the
Industrial Disputes Act, 1947 and S. 20 of
the
Industrial
Disputes
(Appellate
Tribunal) Act, 1950. It is significant that
in all the three statutes the cognate
section is divided into two parts and the
first part deals with recovery of 'money
due' to a workman under an award and
the
second
deals
with
a
'benefit'
computable in terms of money. Under the
first sub-section the State Government (or
its delegate), if satisfied that any money is
due, is enabled to issue a certificate to the
Collector who then proceeds to recover
the amount as an arrears of land revenue.
The second part then speaks of a benefit
computable in terms of money which
benefit after it is so computed by a
Tribunal is again recoverable in the same
way as money due under the first part.
This scheme runs through Section 6-H,
sub-ss.(1) and (2)."

7. From the aforesaid, it is clear that
under Section 6-H(1) recovery can be
made of a money due to a workman under
an award while the Section 6-H(2) deals
with computation of 'benefit' in terms of
money. The difference between the two
sub-sections
is,
that
the
benefit
contemplated under Section 6-H(2) is not
'money due' but some advantage or
perquisite is to be computed in terms of
money.

8. In the present case, the employer
filed an application for the recall of the
order
of
the
Additional
Labour
Commissioner, alleging that no money
was due or payable to the petitioner for
522 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the period 1.1.1972 to 30.4.1980 on the
ground that the petitioner was gainfully
employed and was working in Kanpur
Textile Mill and that his services was also
regularized
by
that
Company.
The
employers further submitted that after the
dismissal of the writ petition, the
employer had sent a letter asking the
petitioner to join which he failed to do so.
Consequently,
the
application
under
Section 6-H(1) of the Act filed by the
petitioner was wholly misconceived and
that no amount could be computed as no
money was due or payable pursuant to the
award.

9.

The
Additional
Labour
Commissioner in the impugned order
found that the petitioner was gainfully
employed in Kanpur Textile Mill during
the said period and that he had received
the wages from that textile mill. The fact
that the petitioner was gainfully employed
was not denied by the petitioner either
before
the
Additional
Labour
Commissioner or even before this Hon'ble
Court. Consequently, in the opinion of the
Court, no money was due or payable to
the petitioner under the award since he
was gainfully employed. The application
filed by the petitioner under Section 6H(1) of the Act was not maintainable. The
Additional Labour Commissioner, having
found that a wrong recovery certificate
was issued had rightly and validly
recalled its own order.

10. The contention of the petitioner
that disputed questions of fact, namely, as
to whether the petitioner was gainfully
employed or not could not be adjudicated
under Section 6-H(1) by the authority is,
patently misconceived. There is no
disputed
question
of
fact
involved
inasmuch as, the petitioner himself
admitted that he was gainfully employed
in Kanpur Textile Mill. Once the
petitioner admits that he was gainfully
employed and had received the wages for
that
period,
he
cannot
move
an
application under Section 6-H(1) for the
recovery of post award wages under an
award from the erstwhile employers. The
said application was wholly misconceived
and was not maintainable.

11. In M/s Punjab Beverages Pvt.
Ltd., Chandigarh vs. Suresh Chand and
another, A.I.R. 1978 SC 995, the Supreme
Court held that the workman could not
maintain an application under Section 33C (2) for determination or payment of
wages on the basis that he continues to be
in service. The Supreme Court held that
the workman could proceed under Section
33-C (2) only after his complaint was
adjudicated by the Tribunal under Section
10 of the Act. The same principle would
equally apply in the present case. The fact
that the petitioner was gainfully employed
in another establishment, debars the
petitioner from moving an application for
recovery of wages from his erstwhile
employer.

12. The submission of the learned
counsel for the petitioner that the
Additional Commissioner had no power
to review or recall its own order is
patently
erroneous.
The
Additional
Commissioner is exercising quasi judicial
powers under Section 6-H(1) of the Act
and therefore, the authority has the power
to review or recall its order.

13. In view of the aforesaid, this
Court does not find any merit in the writ
petition and is dismissed.
---------
2 All] Gaya Prasad Yadav V. State of U.P. and another
523
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.04.2007

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 51163 of 2002

Gaya Prasad Yadav

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Manu Khare

Counsel for the Respondents:
S.C.

Constitution of India-Dismissal orderPetitioner working as Accountant in
Treasury-for certain wrong payment-FIR
lodged against 7 persons-criminal Court
identified four person-but three persons
including
petitioner
not
identified-in
departmental proceeding punishment of
dismissal with recovery of Rs.1,54,481/-
while first charge regarding empossing
seal of competent authority on pension
paper-the
disbursing
authority
is
responsible-second charge signature by
sketch pen-being ink pen-can not be
held guilty-dismissal order held illegal.

Held: Para 8

With regard to the first charge, once the
pension papers produced were having
Embossed Seal of the Competent Officer,
it could not be said that there was any
fault of the petitioner, specially when the
responsibility for payment of pension
was that of Pension Disbursing Officer
and not the petitioner. As regard the
second charge, the signature had been
made by sketch pen which is also an ink
pen. In the absence of the Rule providing
for any specific pen to be used for the
signature, the petitioner cannot be held
guilty of the charge. The third charge, as
stated above, has been partly proved
against the petitioner, merely because
the petitioner was assisting the Pension
Disbursing Officer. The petitioner could
not be held responsible for any act of
some
other
officer
responsible
for
performance of such duty under law. In
such
circumstances
at
best,
the
petitioner could have been warned for
his conduct as a person who assisted the
Pension Disbursing Officer, but he could
not be held responsible for acts or
performance
of
duty
specifically
assigned
to the Pension Disbursing
Officer. As such, none of the three
charges could be said to have been
proved against the petitioner so as to
warrant any punishment. Even the order
directing recovery from the petitioner
has been wrongly made, as admittedly it
was the responsibility of the Pension
Disbursing Officer to make such payment
and not that of the petitioner. If at all,
recovery could have been made from to
officer concerned and not from the
person who assisted such officer. In its
order, the appellate authority has also
observed that the petitioner was having
38
years
of
service
career
with
unblemished record and still awarded
such
punishment
of
reversion
and
recovery, without the petitioner being
found responsible for such acts, which is
wholly
unjustified
and
cannot
be
sustained in the eyes of law.

(Delivered by Hon'ble Vineet Saran, J.)

1. The petitioner was Accountant in
the Agra Treasury. For some instance of
wrong payment made in the year 1990, an
F.I.R. was lodged against seven persons,
which did not include the name of the
petitioner.
However,
departmental
enquiry
was
initiated
against
the
petitioner, in which chargesheet was
submitted on 26.8.1992, to which the
petitioner submitted his reply. However,
in the meantime, in the criminal case, out
of seven persons named, four persons
were found to be guilty of offences and