Saru Smelting (Private), Ltd. v. Authority Under Payment Of Wages Act And Others

1. By this petition, the petitioner has challenged the maintainability of an application filed by respondent 2. Tilak Ram Gupta under S. 15(2) of the Payment of Wages Act, 1936 (in short Act). Admittedly, the application has been moved before Regional Conciliation Officer. Meerut. In the application the claim made by the respondent Tilak Ram Gupta is that the wages of two days have been wrongly deducted by the petitioner.

2. This writ petition has been filed against decision on a preliminary question whereby respondent 1 Regional Conciliation Officer. Meerut has held in its order, dated 17 April, 1982 that the application of Tilak Ram Gupta is maintainable.

3. Learned counsel for petitioner has argued that respondent 1 who is Regional Conciliation Officer. Meerut has not been authorised by any notification under S. 15(1) of the Act to hear and dispose of applications in respect of claims made under S. 15(2) of the Act. Learned counsel for petitioner during course of argument has submitted that the petitioner has also made payment to Tilak Ram Gupta of the amount which he claimed from petitioner and petitioner is not particular about getting the amount back by this writ petition but the petition is being pressed for the reason that the employees of petitioner company are approaching Regional Conciliation Officer Meerut regularly to adjudicate their claims on application under S. 15(2) of the Act which has necessitated filing of this writ petition and its being pressed on merits.

4. The argument advanced on behalf of petitioner has much more. The petitioner has specifically stated in Para. 9 of writ petition that there is no notification by the State Government in Official Gazette under S. 15(1) of the Act appearing Regional Conciliation Officer Meerut as the authority under S. 15(1) of the Act. In reply to averments made in Para. 9 of the writ petition, it has been stated in Para. 10 of the counter-affidavit of Sri T.N Naik the Conciliation Officer, Allahabad, that Conciliation Officer Meerut, being the Conciliation Officer of the Region, he stands appointed as Commissioner for Compensation under Workmen's Compensation Act and as such he has also been appointed as Prescribed Authority under S. 15 of the Act. It is relevant to mention Para. 4 of the counter-affidavit also wherein it has been asserted on behalf of respondent Conciliation Officer that he has been conferred with the power of Prescribed Authority under Sub-sec. (1) of S. 15 of the Act by Notification No. 2940/36 IV dated 26 September, 1979. However, on perusal of said notification which is Annexure CA-I to be counter-affidavit, it appears that by said notification power under S. 20 of the Workmen's Compensation Act alone has been conferred on Conciliation Officer Agra Region. Agra, it is neither a notification in respect of Conciliation Officer Meerut Region Meerut before whom application giving rise to this writ petition is pending nor it is notification in respect of conferment of power under S. 15(1) of the Act on any one. It only confers powers on Conciliation Officer under S. 20 of the Workmen's Compensation Act and not the power to hear and decide applications moved under S. 15(2) of the Act.

5. Sub-sections (1). (2) and (3) of S. 15 of the Payment of Wages Act relevant for the purposes of present case reads as follows:

“15. Claims arising out of deduction from wages or delay in payment of wages and penalty for malicious or vexations claims.— (1) The State Government may by notification in the Official Gazelle, appoint (A Presiding Officer of any Labour Court or Industrial Tribunal constituted under the Industrial Disputes Act, 1947 (14 of 1947). or under any corresponding law relating to the investigation and settlement of industrial disputes in force in the State of) any Commissioner for Workmen's Compensation or other officer with experience as a Judge of a civil Court or as a Stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages (of persons employed or paid in that area), including all mailers incidental to such claims.

Provided that where the State Government consider it necessary so to do it may appoint more than one authority for any specified area and may by general or special order, provide for the distribution or allocation of work to be performed by them under this Act.

(2) Whereas contrary to the provisions of this Act any deduction has been made from the wages of an employed person or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act., or any other person acting with the permission of the authority appointed under Sub-sec. (1) may apply to such authority for a direction under Sub-sec. (3).

Provided that every such application shall be presented within (twelve months) from the dale on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be provided further that any application may be admitted after the said period of (twelve months) when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.

(3) When am application under Sub-sec. (2) is entertained the authority shall hear the applicant and the employer or other person responsible for the payment of wages under S. 3 or give them an opportunity of being heard, and after such further inquiry (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act., direct the refund to the employed person of the amount deducted, or the payment of the delayed wages together with the payment of such compensation as the authority may think fit not exceeding ten limes the amount deducted in the former cases and (not exceeding twenty-five rupees in the latter and even if the amount deducted or the delayed wages are paid before the disposal of the application, direct the payment of such compensation, as the authority may think fit not exceeding twenty-five rupees).

Provided that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to:

(a) a bona fide error or bona fide dispute as to the amount payable to the employed person, or

(b) the occurrence of an emergency, or the existence of exceptional circumstances, such that the person responsible for the payment of the wages was unable, though exercising reasonable diligence, to make prompt payment: or

(c) the failure of the employed person to apply for or accept payment.”

6. In view of provisions of S. 15(1) of the Act unless the State Government confers power by a notification on an officer mentioned in the said sub-section, which docs not include Conciliation Officer, no person can exercise power under S. 15(1) of the Act. As there is neither notification under S. 15(1) of the Act nor power can be conferred on a Conciliation Officer under the said provisions. The Conciliation Officer took cognizance of the application filed under S. 15(2) of the Act by respondent 2. Tilak Ram Gupta, in excess of his power and therefore, a writ of prohibition is liable to be issued prohibiting him from entertaining the application on merit.

7. For aforesaid reasons, the petitioner is entitled for writ of prohibition and respondent 1 is prohibited from proceeding with application, dated 28 January, 1991 (Annexure 1 to the writ petition) for payment of wages filed by Tilak Ram Gupta, against Saru Smelting (Private). Ltd., under S. 15(2) of Payment of Wages Act, 1936. The petitioner will not be entitled to get back the wages which stand paid to respondent 2 by the petitioner. The writ petition is allowed. Cost on parties.