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Judgment
A.M. Sapre, J.—The petitioner seeks to question the legality of the Recovery Certificate dated 20-2-2002 (Annexure P-2) issued by Upper Labour Commissioner, Indore, for Rs. 6,20,460/- by invoking the provisions of Section 33C(1) of Industrial Disputes Act, 1947. Facts necessary for the disposal of petition need to be taken note of.
Petitioner is a manufacturing unit engaged in the business of manufacture and sale of certain type of capes which are used in Bulbs and Tubes.
On 4-7-2001 the petitioner claimed that they applied to the Labour Commissioner, Indore, by Annexure P-1 u/s 25M of the Industrial Disputes Act for seeking permission to effect lay off in their Unit. It is their case, that since Commissioner to whom, they applied for permission to effect lay off did not pass any order either granting or refusing permission for lay off and hence in terms of Section 25M(5) ibid the petitioner was deemed to have granted permission by the Commissioner. In other words, the petitioner claimed that they got deemed permission within the meaning of Section 25M(5) of the Act on the expiry of period specified in the Section.
On 20-2-2002 the petitioner was served with the Recovery Certificate (Annexure P-2) issued by Labour Commissioner u/s 33C(1) of Industrial Disputes Act for recovery of Rs. 6,20,460/- towards salary for the period July, 2001 to November, 2001 at the instance of respondent No. 1 Union. It was said in the certificate that since the petitioner has effected lay off for the said period without obtaining the requisite permission from the Competent Authority as per Section 25M ibid hence all the workers working in the petitioner''s Unit are entitled to receive full wage for the period in question, i.e. (July, 2001 to November, 2001). It is against this demand, petitioner has felt aggrieved and filed this writ. Notice was issued to respondent No. 1-Union. They have been served and represented.
Heard Shri S.C. Bagadiya, learned Senior Advocate, assisted by Shri G.S. Patwardhan, for the petitioner and Shri M.K. Choudhary, learned Counsel for the respondent No. 1.
Learned Counsel for the petitioner has in principle made two . submissions. In the first place, he contended that once the petitioner has got deeming permission within the meaning of Section 25M(5) ibid, the Labour Commissioner had no jurisdiction to issue any certificate u/s 33C(1) of the Act for payment of salary for the said period. In the second place, learned Counsel contended that in any event, the impugned certificate u/s 33C(1) ibid could not have been issued without giving any opportunity to the petitioner. Learned Counsel maintained that a certificate for recovery of any amount can be issued only after holding an enquiry and that too after affording an opportunity to petitioner. In reply learned Counsel for the respondent defended the issuance of recovery certificate and prayed for its upholding.
In my considered view the question that will have a bearing over the legality and validity of the impugned certificate is as to whether petitioner can rely upon the deeming permission of lay off as contemplated u/s 25M(5) of the Act. In case if it is held that petitioner was granted deemed permission to effect lay off within the meaning of Section 25M(5) of the Act, the scenario will be different in case, however, if it is held that petitioner was not entitled to rely upon the deeming permission then the scenario of the case will be different.
The scheme of Section 25M ibid provides for adjudication of issue relating to grant or refusal to effect lay off by the Tribunal by making a reference. Sub-section (7) of Section 25M does empower the appropriate Government or specified authority as the case may be to either review the order of grant or refusal or refer the issue to be decided by a Tribunal. This sub-section also takes within its mischief even cases falling in Sub-section (5) because once the deeming fiction accrues to the petitioner, it becomes a grant within the meaning of Sub-section (4). In other words Sub-section (7) does empower the appropriate Government/specified authority to even make a reference to Tribunal to adjudicate whether deeming grant is made out on facts or not within the meaning of Section 25M(5) ibid. It is on account of this provision, providing for the remedy of adjudication, the Writ Court can not embark upon any inquiry on this issue in its writ jurisdiction. Indeed, once an alternative remedy is found to be available under the Act, the Writ Court can not be called upon to decide the issue. It is much more so when the issue to be decided is mixed question of law and fact. Such issue can only be tried by a Tribunal where parties can lead evidence on facts.
In view of aforesaid discussion, I at this stage refrain myself from deciding the question as to whether impugned recovery certificate issued u/s 33C(1) ibid is legal or not ?
In my considered view and looking to the nature of dispute, it would be in the interest of all parties concern that a direction to appropriate Government/specified authority is issued to refer the matter to Tribunal for deciding as to whether petitioner is entitled to take the benefit of deemed grant permission to effect lay off within the meaning of Section 25M(5) of Industrial Disputes Act. Although such power is required to be exercised at the first instance by the appropriate Government but as observed supra when the issue was debated in this Court interse parties in presence of Labour Commissioner then there arise no legal impediment for the Writ Court to issue writ of mandamus to State.
Accordingly and in view of what is observed supra it is directed to State Government as defined u/s 2(a)(ii) ibid to refer the matter of deemed granted permission of lay off to petitioner pursuant to their application dated 4-7-2000 (Annexure P-1) as contemplated u/s 25M(5) ibid to the concerned Tribunal for its adjudication in the form of reference and after formulating the terms of reference for answer on merits. Let this be done within three weeks from the date of the order. Needless to observe, no sooner the reference is made, the Tribunal will decide the same within 30 days by passing an award as per the requirements of proviso to Sub-section (7) of Section 25M ibid. It is also directed that pending adjudication of reference by the Tribunal, no effect shall be given to impugned recovery certificate dated 20-2-2002 (Annexure P-2) provided petitioner furnishes solvent security to the satisfaction of Labour Commissioner, Indore, for the value of Rs. 6,25,000/- within two weeks from the date of order.
With these directions the petition stands finally disposed of.
C.C. within 3 days.