# "Yet in another decision Hamza Haji v. State

- **Citation:** (2014) 2 ILRA 991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-27
- **Case number:** Civil Misc. Writ Petition No. 17689 of 2001
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yet-in-another-decision-hamza-haji-v-state-43064
- **Pages:** 6

## Headnote

wages) Act, 1978-Section-3-Recovery against
petitioner/management-for
Rs.
26530/-
recovery certificate issued with collection
charges-argument
that
amount
not
exceeding 50,000/-R.C. Without jurisdictionheld-wage to bill below Rs. 50,000/-beyond
perview of Act-without jurisdiction-quashedany amount deposited in pursuance of interim
order shall be refunded.

Held: Para-5
Having heard learned counsel for the
petitioner, learned standing counsel and
992 INDIAN LAW REPORTS ALLAHABAD SERIES
perused
the
impugned
recovery
certificate dated 30.03.2001 in the light
of the aforesaid pronouncements, I am
of
the
considered
view
that
the
petitioner being in default of Wage Bill
not
exceeding
Rs.50,000/-,
the
provisions
of
Section
3
were
not
attracted.
Impugned
certificate
is
without jurisdiction. The reference in the
recovery certificate to the fact that the
amount in default is Rs.26530/- but the
Wage Bill is Rs.50000/- appears to be
under
a
misconception
about
the
application of the Act of 1978. If the
total wage-bill is Rs.50,000/- and default
is of only Rs.26530/- then it is not a
default in the payment of wage-bill of all
the workmen in the establishment, thus,
outside the purview of Act, 1978. If the
wage-bill of workmen as a whole is only
Rs.26530/- and is in default, then also, it
is less than Rs.50000/- as such, out of
the purview of the said Act.

Case Law discussed:
AIR 1994 SC 536; 2013(3) 1207 (All)

## Text

2 All]. A.S.P. Sealing Products Ltd. J.P. Nagar Vs. Dy. Labour Commissioner Moradabad & Ors. 991
stand if it has been obtained by fraud.
Fraud unravels everything". The Court is
careful not to find fraud unless it is
distinctly pleaded and proved; but once it
is proved it vitiates judgments, contracts
and all transactions whatsoever."

15. In S.P. Chengalyaraya Naidu v.
Jagannath this Court stated that fraud
avoids all judicial acts, ecclesiastical or
temporal."

27. Recently the Supreme Court in
the case of Smt. Badami (Deceased) vs.
Bhali
2012
(11)
SCC
574
after
considering earlier judgements was of the
view that a party, who secures any order
or judgement by taking recourse to fraud
should not be enabled to enjoy the fruits
thereof. Para 24 is reproduced:-

"Yet in another decision Hamza Haji
vs.
State
of
Kerala
and
Anr.
MANU/SC8416/2006 AIR 2006 SC 3028
it has been held that no Court will allow
itself to be used as an instrument of fraud
and no court, by way of rule of evidence
and procedure, can allow its eyes to be
closed to the fact it is being used as an
instrument of fraud. The basic principle is
that a party who secures the judgement by
taking recourse to fraud should not be
enabled to enjoy the fruits thereof."

28. The petitioner was given ample
opportunity, the evidence was led by the bank
against the petitioner which was proved on the
basis of records available in the normal course
of business. The factum of the allegations is
not being denied by the petitioner, however,
explanations have been given. Since the bank
has lost money by fraud and manipulation
committed by the petitioner while working as
Computer Terminal Operator, his services
was rightly terminated for loss of confidence
and unsuitability by the Bank. The petitioner
is guilty of not approaching the Court with
clean hands.

29. In view of the law and reasons
stated, herein above, the writ petition fails
and is, accordingly, dismissed.

30. Cost of Rs. 20,000/- is imposed
upon the petitioner, payable to the
respondent Bank within three months, for
dragging the respondents into litigation on
misrepresentation and suppression of
material facts.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2014

BEFORE
THE HON'BLE RAJAN ROY, J.

Civil Misc. Writ Petition No. 17689 of 2001

A.S.P. Sealing Products Ltd. J.P. Nagar
 ...Petitioner
Versus
Dy. Labour Commissioner Moradabad &
Ors. ...Respondents
Counsel for the Petitioner:
Sri Shakti Swarup Nigam

Counsel for the Respondents:
C.S.C.

U.P. Industrial Peace (Timely Payment of
wages) Act, 1978-Section-3-Recovery against
petitioner/management-for
Rs.
26530/-
recovery certificate issued with collection
charges-argument
that
amount
not
exceeding 50,000/-R.C. Without jurisdictionheld-wage to bill below Rs. 50,000/-beyond
perview of Act-without jurisdiction-quashedany amount deposited in pursuance of interim
order shall be refunded.

Held: Para-5
Having heard learned counsel for the
petitioner, learned standing counsel and
992 INDIAN LAW REPORTS ALLAHABAD SERIES
perused
the
impugned
recovery
certificate dated 30.03.2001 in the light
of the aforesaid pronouncements, I am
of
the
considered
view
that
the
petitioner being in default of Wage Bill
not
exceeding
Rs.50,000/-,
the
provisions
of
Section
3
were
not
attracted.
Impugned
certificate
is
without jurisdiction. The reference in the
recovery certificate to the fact that the
amount in default is Rs.26530/- but the
Wage Bill is Rs.50000/- appears to be
under
a
misconception
about
the
application of the Act of 1978. If the
total wage-bill is Rs.50,000/- and default
is of only Rs.26530/- then it is not a
default in the payment of wage-bill of all
the workmen in the establishment, thus,
outside the purview of Act, 1978. If the
wage-bill of workmen as a whole is only
Rs.26530/- and is in default, then also, it
is less than Rs.50000/- as such, out of
the purview of the said Act.

Case Law discussed:
AIR 1994 SC 536; 2013(3) 1207 (All)

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Sri S.S. Nigam, learned
counsel for the petitioner and learned
standing counsel for the respondents.

2. By means of this writ petition, the
order dated 30.03.2001 by which a
recovery certificate has been issued by the
Deputy Labour Commissioner under
Section 3 of the U.P. Industrial Peace
(Timely Payment of Wages) Act, 1978 for
recovery of an amount of Rs.26,530/- plus
ten percent recovery charges, i.e. total
amount
of
Rs.29183/-
has
been
challenged. This court by means of an
interim order dated 11.05.2001 ordered
that in case the petitioner deposited a sum
of Rs.20,000/- with respondent No.1
within
two
weeks,
the
recovery
proceedings against the petitioner shall
remain stayed, therefore, the impugned
recovery proceedings have remained in
abeyance during pendency of the writ
petition.

3. The contention of Sri Nigam is
that the Wage Bill in respect of which, the
petitioner was allegedly in default did not
exceed Rs.50,000/- as is evident from the
amount
mentioned
in
the
recovery
certificate
itself,
therefore,
the
controversy was beyond the purview of
the aforesaid Act of 1978 and the
recovery
certificate
is
without
jurisdiction. In this regard he has placed
reliance upon a judgment of the Supreme
Court reported in Modi Industries Ltd. Vs.
State of U.P. and others, AIR 1994 SC
536. The relevant extract of the said
judgment relied upon by Sri Nigam is
being quoted hereinbelow:

"3..........................................Section
2(a) of the Act defines "industrial
establishment" to mean "any factory,
workshop or other establishment in which
articles are produced, processed, adopted
or manufactured with a view to their use,
transport or sale". "Wage-bill" is defined
by Section 2(d) to mean "the total amount
of wages payable by an industrial
establishment to its workmen". Subsection (1) of Section 3 then states that
where the Labour Commissioner is
"satisfied" that the occupier of an
industrial establishment is in default of
payment of wages and that the "wagebill" in respect of which such occupier is
in default "exceeds fifty thousand rupees",
he
may,
without
prejudice
to
the
provisions of Sections 5 and 6, forward to
the Collector, a certificate ... specifying
the amount of wages due from the
industrial establishment concerned. Subsection (2) of that section states that upon
receipt of "the certificate" referred to in
sub-section (1), the Collector shall
2 All]. A.S.P. Sealing Products Ltd. J.P. Nagar Vs. Dy. Labour Commissioner Moradabad & Ors. 993
proceed to realise from the industrial
establishment,
the
amount
specified
therein, besides recovery charges at the
rate of ten per cent, as if such amount was
an arrear of land revenue. Sub-section (3)
of that section states that the amount so
realised shall be placed at the disposal of
the Labour Commissioner and he shall
disburse the same among the workmen
entitled thereto. Sub-section (4) states that
when the amount so realised falls short of
the wage-bill in respect of which there
has
been
a
default,
the
Labour
Commissioner
may
arrange
for
disbursement of such proportion or
respective proportions of the wages due to
"various categories of workmen", as he
may think fit. Subsection (5) then states
that the liability of the occupier towards
each workman in respect of payment of
wages shall to the extent of the amount
paid to such workman, stand discharged.
Section 4 specifies the powers of the
Labour Commissioner when he entertains
the complaint of the default of payment of
the wage-bill. It states that for the
purposes of ascertaining the "wage-bill"
of an establishment in respect of which
default has been committed, the Labour
Commissioner shall have all the powers
of a civil court while trying a suit under
the Code of Civil Procedure, 1908 in
respect of enforcing the attendance of
witnesses, examining them on oath and
compelling production of documents, and
shall be deemed to be a civil court for the
purposes of Section 195 and Chapter
XXVI of the Code of Criminal Procedure,
1973. Section 5 prescribes penalty. It
states that no occupier of an industrial
establishment shall at any time be in
default of a wage-bill exceeding Rs 1
lakh, and every occupier who is so in
default
shall
be
punishable
with
imprisonment for a term which shall not
be less than three months but which may
extend to three years and shall also be
liable to fine. The Court is given power to
impose a sentence of imprisonment for a
term of less than three months for
adequate and special reasons to be
recorded in writing. Section 6 provides,
for punishment of persons when the
offence is by the company, which includes
firms and association of individuals.

It will thus be clear from the
preamble, the statement of objects and
reasons and the provisions of the Act that,
firstly, the Act has been placed on the
statute book to ensure timely payment of
wages by the bigger establishments, the
incidence of disturbance of industrial
peace
being
greater
in
such
establishments on account of the default
in payment of wages. Secondly, the Act
deals with defaults in payment of the
wage-bill of all the workmen in the
establishment. It is not meant to provide a
remedy for the default in payment of
wages of individual workmen. That can be
taken care of by the provisions of the
Payment of Wages Act, 1936 which
provisions are found inadequate to ensure
timely payment of wages of the whole
complement
of
workmen
in
an
establishment. Thirdly, it is not in respect
of the default in payment of every wagebill but only of a wage-bill exceeding Rs
50,000 that the Labour Commissioner can
be approached under the Act for redressal
of the grievance. Fourthly, the Act is not
applicable to all establishments but only
those establishments which produce,
process, adopt or manufacture some
articles. It will, therefore, be evident that
the Act does not supplant or substitute the
Payment of Wages Act, 1936 but
supplements the said Act, in the limited
area, viz., where the establishment, as
994 INDIAN LAW REPORTS ALLAHABAD SERIES
stated above, (i) produces, processes,
adopts or manufactures some articles, (ii)
where there is a default in the wage-bill of
the
entire
such
establishment
and
(iii)where such wage-bill exceeds Rs
50,000. The object of the Act as stated
above is not so much to secure payment of
wages to individual workmen but to
prevent industrial unrest and disturbance
of industrial peace on account of the
default on the part of the establishment in
making payment of wages to their work
force as a whole. It appears that many
establishments had a tendency to delay
the payment of wages to their workmen
and were playing with the lives of the
workmen with impunity. This naturally led
to a widespread disturbance of industrial
peace in the State. Hence the legislature
felt the need for enacting the present
statute. This being the case, the inquiry by
the Labour Commissioner contemplated
under Section 3 of the Act is of a very
limited
nature,
viz.,
whether
the
establishment has made a default in
timely payment of wages to its workmen
as a whole when there is no dispute that
the workmen are entitled to them.

The inquiry under Section 3 being
thus limited in its scope, the Labour
Commissioner's powers extend only to
finding out whether the workmen who
have put in the work were paid their
wages as per the terms of their
employment and within the time stipulated
by
such
terms.
If
the
Labour
Commissioner
is
satisfied
that
the
workmen, though they have worked and
are, therefore, entitled to their wages, are
not paid the same within time, he has
further to satisfy himself that the arrears
of wages so due exceed Rs. 50,000. It is
only if he is satisfied on both counts that
he can issue the certificate in question.
Under the Act, the Labour Commissioner
acts to assist the workmen to recover their
wages which are admittedly due to them
but are withheld for no fault on their
behalf. He does not act as an adjudicator
if the entitlement of the workmen to the
wages is disputed otherwise than on f
it is not the function of the Labour
Commissioner to adjudicate the same. In
such cases, he has to refer the parties to
the appropriate forum."

4. He has also placed reliance upon
a pronouncement of this court reported in
M/s. Shakumbari Sugar and Allied Ind.
Ltd. Vs. Deputy Labour Commissioner,
2013 (3) ESC 1207 (All). Paragraphs 8, 9
& 10 of the said judgment relied upon by
him are being quoted hereinbelow:

"Having heard the learned counsel
for the parties, the Court finds that the
statements of Objects and Reasons given
under the Act of 1978 indicates that the
provisions of the Payment of Wages Act
was found to be inadequate to ensure
timely payment of wages and that the
incidence of disturbance of industrial
peace was greater in establishment and,
therefore, it was considered necessary to
provide that if the wage bill in default
exceeded Rs.50,000/-, the amount would
be recoverable as arrears of land
revenue. This became essential because it
was found that there was a tendency of
the employers to keep large amount of
wages in arrears.

The Supreme Court analysed the
provisions of the Act of 1978 in Modi
Industries Ltd. Vs. State of U.P. and
others, 1994 SCC (L & S) 286 in which
the Supreme Court held :

"8. The inquiry under Section 3
being thus limited in its scope, the Labour
2 All]. A.S.P. Sealing Products Ltd. J.P. Nagar Vs. Dy. Labour Commissioner Moradabad & Ors. 995
Commissioner's powers extend only to
finding out whether the workmen who
have put in the work were paid their
wages as per the terms of their
employment and within the time stipulated
by
such
terms.
If
the
Labour
Commissioner
is
satisfied
that
the
workmen, though they have worked and
are, therefore, entitled to their wages, are
not paid the same within time, he has
further to satisfy himself that the arrears
of wages so due exceed Rs.50,000/-. It is
only if he is satisfied on both counts that
he can issue the certificate in question.
Under the Act, the Labour Commissioner
acts to assist the workmen to recover their
wages which are admittedly due to them
but are withheld for no fault on their
behalf. He does not act as an adjudicator
if the entitlement of the workmen to the
wages is disputed otherwise than on
frivolous
or
prima
facie
untenable
grounds. When the liability to pay the
wages, as in the present case, is under
dispute which involves investigation of the
questions of fact and/or law, it is not the
function of the Labour Commissioner to
adjudicate the same. In such cases, he has
to refer the parties to the appropriate
forum."

The Supreme Court found that the
inquiry under the Act was limited only to
find out whether the workman had earned
their wages as per the terms of their
employment or not and if the authority
was satisfied that the workers had worked
and were entitled to their wages and if the
authority further found that the arrears of
wages exceeded Rs.50,000/-, in that case
he was obligated to issue a recovery
certificate. The Supreme Court held that
the authority was required to act as the
facilitator and not as an adjudicator,
namely, that if the claim of the workers
was disputed, the authority could not
adjudicate upon the dispute unless
frivolous
or
prima
facie
untenable
grounds were taken by the employers. The
Supreme Court further observed that
where the dispute involved investigation
of questions of fact and of law, it was not
the function of the authority to adjudicate
the same and, in such matters, the parties
were
required
to
approach
the
appropriate forum.

The
Supreme
Court
in
Modi
Industries Ltd. (supra) clearly indicates
that the claim of the workers as a whole
could only be filed and that claim of
individual workers was not sustainable
under the Act.

In the light of the aforesaid, the
claim of the workers in question against
the
principal
employer
was
not
maintainable, though it was maintainable
against the contractor. The Court further
finds that the question of applicability of
the Minimum Wages Act vis-a-vis the
notification issued therein was never an
issue, which was not raised by the
workers in their claim application. Their
only grievance was that their wages for
the month of April and May, 2010 was not
disbursed by the contractor."

5. Having heard learned counsel for
the petitioner, learned standing counsel and
perused the impugned recovery certificate
dated 30.03.2001 in the light of the aforesaid
pronouncements, I am of the considered
view that the petitioner being in default of
Wage Bill not exceeding Rs.50,000/-, the
provisions of Section 3 were not attracted.
Impugned certificate is without jurisdiction.
The reference in the recovery certificate to
the fact that the amount in default is
Rs.26530/- but the Wage Bill is Rs.50000/-
996 INDIAN LAW REPORTS ALLAHABAD SERIES
appears to be under a misconception about
the application of the Act of 1978. If the total
wage-bill is Rs.50,000/- and default is of
only Rs.26530/- then it is not a default in the
payment of wage-bill of all the workmen in
the establishment, thus, outside the purview
of Act, 1978. If the wage-bill of workmen as
a whole is only Rs.26530/- and is in default,
then also, it is less than Rs.50000/- as such,
out of the purview of the said Act.

6. The Impugned order is quashed.

7. The amount deposited by the
petitioner in pursuance to the interim
order dated 11.05.2001 shall be refunded
to the petitioner.

8. It shall, however, be open for the
workmen to pursue the remedy available
to them under the Payment of Wages Act,
1936.

9. Subject to above, the writ petition
is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2014

BEFORE
THE HON'BLE SHEO KUMAR SINGH, J.
THE HON'BLE RAJAN ROY, J.

Civil Misc. Writ Petition No. 26182 of 2014

Rakesh Kumar Nayak ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri H.R. Mishra, Sri K.M. Mishra
Counsel for the Respondents:
C.S.C., Sri Ajay Kumar

Constitution of India, Art. 342(2)-Cast
certificate-'Nayak'-included
as
SC
by
amendment of 2002-any executive order
contrary to that-not sustainable-petitioner
being Nayak by cast applied in S.C. Quotaqualified in written examination-but not
allowed to participate in interview-on
ground Nayak belongs to B.C. And not SC
candidate-held-illegal-direction issued to
hold interview and if aggregate found
more than last selected candidate-of SC
OR
General
category-Public
Service
Commission to -make recommendation.

Held: Para-38
In the peculiar facts and circumstances of
this case, it is accordingly ordered that
the caste certificate of the petitioner as
issued in the year 2007 and as affirmed
by the decision of the State Level Scrutiny
Committee
dated
29.06.2011
and
consequential order of the Tehsildar,
Farenda dated 16.01.2012, shall stand
restored and the petitioner shall be
treated as belonging to the scheduled
tribe.
Consequently,
the
U.P.
Public
Service
Commission
is
directed
to
consider the candidature of the petitioner
in the Uttar Pradesh Combined Upper
Subordinate Services Examination, 2010
under the category of scheduled tribe by
holding an interview for the said purpose
and
assigning
appropriate
marks
accordingly. If after calculating marks
obtained by the petitioner, in the said
examination, it is found that he has
secured
more
marks
than
the
last
selected candidate under the scheduled
tribe category or under the general
category, then suitable recommendation
shall be made, accordingly, to the State
Government
for
the
purpose
of
appointment and the latter shall offer
appointment to the petitioner, either
against an existing available vacancy
relating to the selection of 2010 or
against
future
vacancy,
within
a
reasonable time. The consequences shall
follow
in
accordance
with
law.
Case Law discussed:
AIR 1995 SC 94; [(2012) 1 SCC 333]; [2014
(3) ADJ 595].