Cement Corporation of India Vs P.O., Central Government Industrial Tribunal/Labour Court and Others

@JUDGMENTTAG-ORDER

S.S. Nijjar, J.@mdashThe Petitioner-Cement Corporation of India Ltd. (hereinafter referred as the Management), in this petition under Article 226/227 of the Constitution of India makes a prayer for the issuance of a Writ of Certiorari for quashing the order dated February 1, 2000 passed by the Labour Court, Chandigarh hereinafter referred to as "Labour Court") allowing the applications of the workmen u/s 33C(2) of the Industrial Disputes Act (hereinafter referred to as "the Act").

2. All the workmen were originally employees of the Cement Factory at Charkhi Dadri, Dist. Bhiwani, Haryana which was run and controlled by Dalima Dadri Cement Limited hereinafter referred to as "DDCL"). This factory was closed down by the DDCL on March 18, 1980. Services of all its, employees, except 95 employees were terminated. Subsequently, by the enactment of the DDCL (Acquisition and Transfer of Undertakings) Act, 1981, the undertakings of DDCL vested in the Central Government/ SSI with effect from June 23, 1981. The Management decided to make fresh recruitments from amongst the employees of the DDCL whose services have been terminated. Since all the employees of DDCL would not be re-employed, a Rehabilitation Compensation Scheme was formulated and approved by the Government. Those ex-employees who opted for the Scheme were paid Rs. 10,000/- as compensation. In all, 526, ex-employees were paid Rehabilitation compensation. The remaining ex-employees were kept on panel for employment against future vacancies. In the meantime, CCI Cement Factory Men''s Union (Recognised) (hereinafter called as the Union) made a demand for providing some source of livelihood by giving jobs of casual nature to the ex-employees of DDCL whose names were borne on the panel. A tripartite Standing committee comprising of representatives of employees, the Management and the Government of Haryana was constituted by the Government of India for considering the demand of the Union. The Standing Committee, after deliberations decided that the ex-employees would form a co-operative society of ex- employees which in turn would be given contract/jobs by the Management for execution of contract/jobs. The Society would itself engage the ex-employees. It was decided that the Society would be paid 45 per cent over and above minimum wages fixed by the Haryana Government, in respect of each of its members engaged by the Society for executing the work allotted to the Society. The Management would further pay 5 per cent to the Society as administrative charges. The workmen who filed application u/s 33C(2) were members of the Co-operative Society which was known as DDCL Factory Ex-employees Co-operative Labour and Construction Society Limited, Charkhi Dadri (hereinafter called as the Society). The Society functioned under the supervision and control of the Union. Some of the workmen were engaged for work by the Society and were paid wages by the Society. After some time, when the workmen were rendered jobless, they filed applications u/s 33C(2) of the Act for computation of their wages. The Management contested the claim on the ground that it was totally baseless, misconceived and non-existent.

3. The workmen had claimed that they have been working as unskilled/semi-skilled labourers with the Management since 1982-83. They have been continuously and regularly working on the jobs and posts which are of permanent nature in connection with the manufacturing process. Each of the applicants claim to be legally entitled to get the lawful benefits and facilities as per the term of Cement Arbitration award dated July 10, 1984, settlements dated May 10, 1989, July 31, 1992. The claim put forward by the applicants was as follows:

2. The claim of workmen named Pyare Lal and Banwari each is as follows:

4. The workmen also claimed interest on the amount due from the Management w.e.f. July 1, 1991 at the rate of 12 per cent per annum till payment. The Management on the basis of the facts narrated above claimed that the workmen are not the employees of the Management and the relationship of employer and employee does not exist between the Management and the workmen. The Management also claimed that the applications are not maintainable, as there is no existing right in respect of the claim made by the workmen against the Management. Since the claim of all the workmen were identical, all the applications were consolidated in L.C.A. No. 5 of 1994. After the parties had led their evidence, the Labour Court has allowed the applications by its award dated February 1, 2000.

5. Mr. Mehtani appearing for the Management submits that the relationship of employer and employee, having been denied, the Labour Court had no jurisdiction to pronounce upon the same u/s 33C(2) of the Act. In support of the proposition, learned counsel has relied on the following judgments:

6. The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., ; Central Inland Water Transport Corporation Limited Vs. The Workmen and Another, ; Mangat Hospital v. Presiding Officer, Labour Court, Jalandhar 1999 (1) RSJ 6, Punjab State Electricity Board v. Presiding Officer, Labour Court, Ludhiana 1999 (2) RSJ 711.

7. Mr. Mittal appearing for the respondents, however, submits that the Labour Court would have the jurisdiction to pronounce upon the relationship of employer and employee, if the same can be determined without any elaborate adjudication. In support of the proposition, the learned counsel relies on a Division Bench Judgment of this Court in the case of Amar Kaur v. State of Punjab 1982 LabIC 1275.

8. I do not find much force in the submission made by Mr. Mehtani. It is a settled proposition of law that the Labour Court would not be rendered powerless to grant the relief to the workmen merely on the Management raising even the slightest dispute to the claim put forward by the workmen u/s 33C(2) of the Act. The two authorities of the Supreme Court in the case of Central Bank of India (supra), and Central Inland Water Transport Corporation Ltd. (supra) do not support the proposition advanced by Mr. Mehtani. Considering the scope and ambit of the jurisdiction of the Labour Court u/s 33C(2) of the Act, a Constitution Bench of the Supreme Court in the case of The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., at p. 95:

"16. .......In our opinion on a fair and reasonable construction of Sub-section (2) it is clear that if a workman''s right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money, but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of Sub-section (2) does not admit of the construction for which the appellant contends unless we add, some words in that clause. The Clause "where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be, entitled to receive such benefit". The appellant''s construction would necessarily introduce the addition of the words "admittedly, or admitted to be" in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant''s construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by Sub-section (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman''s application. The claim u/s 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by Sub-section (2). As MAXWELL has observed "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution". We must accordingly hold that Section 33C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers."

9. In view of the ratio of law laid down by the Constitution Bench of the Supreme Court, undoubtedly, as the Labour Court will have the jurisdiction to pronounce upon the existence of the relationship of employer and employee even in proceedings u/s 33C(2) of the Act. So far as this Court is concerned, the question raised by Mr. Mehtani is squarely covered by the Division Bench Judgment of this Court in the case of Amar Kaur (supra). The question posed in the aforesaid case was as follows:

"S.S. SANDHAWALIA, C.J. : Whether the Labour Court must first entertain and decide the question, that the relationship of employer and employee existed between the parties (where the same is controverted), in proceedings u/s 33C(2), Industrial Disputes Act, 1947, is the meaningful question which has necessitated this reference to the larger Bench".

10. Therein, it was argued that the ratio of the Supreme Court in the case of Central Bank of India Ltd. (supra) was in conflict with the subsequent Judgment of the Supreme Court in the case of Central Inland Water Transport Corporation Ltd. (supra), the Division Bench observed as follows:

"5. ......However, a close analysis of the latter judgment would show that in essence, there is no conflict of opinion whatsoever between the two. Indeed, the latter judgment expressly noticed the Central Bank of India Limited''s case (supra) in paras 14, 15, and 21 of the report. Far from expressing even a hint of dissent therefrom the learned Judges applied the earlier views after quoting therefrom. I am, therefore, wholly unable to accept the stand of the learned counsel for the respondent that there is any divergence of opinion between the Central Bank of India Limited''s case (supra) and the Central Inland Water Transport Corpn. Ltd.''s case (supra).

6. As a matter of abundant caution, however, it has to be pointed out that even placing the case of the respondent employers at the highest and assuming entirely for argument sake that there is any conflict on this point, then this High Court is bound by the larger Constitution Bench of five Judges in the Central Bank of India Limited''s case (supra) in preference to the later view."

11. In view of the aforesaid ratio of laws laid down by the Division Bench, it has to be held that the Labour Court had the jurisdiction to pronounce upon the question as to whether the relationship of employer and employee existed between the Management and the workmen. To be fair to Mr. Mehtani, it must be noticed that the learned counsel has relied on two single Bench Judgments of this Court in the cases of Mangat Hospital, (supra) and Punjab State Electricity Board, (supra). Both the Judgments have been given by V.S. AGRAWAL, J. A perusal of Mangat Hospital judgment clearly shows that the workman therein was employed as a nurse. She had claimed certain benefits from April 1, 1975 till March 31, 1990. The claim included difference in wages. She had claimed that one Basir Sahotra was identically placed and was performing similar duty, but was paid higher wages. In these circumstances, the learned single Judge has held that since the claim of the workman involves adjudication of dispute, it will not fall u/s 33C(2) of the Act. In the case of Punjab State Electricity Board (supra), the workman had claimed the salary of temporary workman (work charge T. Mate) on the Principle of "Equal Pay for Equal Work". This case has been decided relying on the earlier case of Mangat Hospital (supra). In Mangat Hospital''s case (supra), the learned single Judge had relied on a decision of the Supreme Court rendered in the case of Municipal Corporation of Delhi Vs. Ganesh Razak and Another, In this case, Ganesh Razak and others who were respondents before the Supreme Court were casual workers of the Municipal Corporation, Delhi. They had asserted that they were doing the same kind of work as regular employees. They, therefore, claimed same pay as the regular employees on the principle of ''Equal Pay for Equal Work''. The learned single Judge also relied on a Division Bench Judgment of this Court rendered in CWP No. 16851 of 1997 decided on November 27, 1997 Gurmail Singh v. Punjab University. In this case, Gurmail Singh was appointed as Beldar with Punjab University, Patiala on July 1, 1967. He was appointed as a Concrete Mixer Machine Driver on October 9, 1973. He worked as such uptill December 31, 1982. On January 1, 1983 he was appointed as Pump Driver and he worked there uptill October 3, 1983. Thereafter he was appointed as Tractor Driver and worked there up to June 24, 1990. On the basis of these facts, Gurmail Singh filed an application u/s 33C(2) of the Act claiming the pay on the post of Concrete Mixer Machine Driver and Pump Driver whereas he had only been paid the wages of a Beldar. The University contested the application. It was denied that Gurmail Singh was ever appointed as a concrete Mixer Machine Driver. It was further denied that he was ever appointed as Pump Driver. It was pleaded that he worked only as helper to Pump Driver. It was denied that he was appointed as a Tractor Driver. A perusal of the facts noticed by the Division Bench, as narrated above, clearly shows that each and every claim put forward by the workman had been denied by the Management. In these circumstances, the Division Bench has held that the application u/s 33C(2) of the Act would not be maintainable. I am of the considered opinion that all the aforesaid three decisions are not applicable in the facts and circumstances of the present case. Even the judgment in the case of Municipal Corporation of Delhi (supra) relied on by the learned single Judge in the case of Mangat Hospital (supra) had been rendered in a situation where casual workmen had claimed wages equal to the regular employees. Complicated questions of fact were involved. The Labour Court certainly would not have jurisdiction to adjudicate and pronounce upon the same in an application u/s 33C(2) of the Act. It is by now well settled that the proceedings u/s 33C(2) are generally in the nature of execution proceedings. Complicated questions of facts and law on the basis of which the claim rests would have to be adjudicated in an appropriate forum by way of a reference under the Industrial Disputes Act or any other Forum that may be established for the adjudication of a particular right. But this would not mean that the Labour Court would adopt "a hands off attitude'''' when even a prima facie false dispute is raised by the Management. It has been clearly held by the Constitution Bench of the Supreme Court in the Central Bank of India Ltd. case (supra) that Section 33C(2) takes within its purview cases of workmen who claim that the benefit to which they were entitled, should be computed in terms of money, even though the right to the benefit on which the claim is based is disputed by their employers. Even in the case of Municipal Corporation of Delhi''s (supra), the Supreme Court, whilst considering the ratio of the Constitution Bench decision in the case of Central Bank of India Limited (supra) observed in paragraph 8 of the judgment as follows:

"8. .... this decision itself indicates that the power of the Labour Court u/s 33C(2) extends to interpretation of the award or settlement on which the workman''s rights rests. Like the Executing Court''s power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement on the basis of the claim if there be no prior adjudication or recognition of the same by the employer. This decision negatives instead of supporting the submission of learned counsel for the respondents."

12. In the facts and circumstances of this case, I am of the considered opinion that the Labour Court was perfectly justified in going into the question as to whether there was relationship of employer and employee between the Management and the workmen. In the proceedings before the Labour Court, the workman had claimed lawful benefits and facilities as per terms of the Cement Arbitration Award dated July 10, 1984 and Settlements dated May 10, 1989 and July 31, 1992. It is settled beyond cavil by a catena of judgments of the Supreme Court which have been noticed in the Municipal Corporation of Delhi''s case (supra) that whilst exercising jurisdiction u/s 33C(2) of the Act, the Labour Court has the power to interpret the settlements or the awards which form the basis of the claim of the workman. In the case of Chief Mining Engineer East India Coal Co. Ltd. Vs. Rameswar and Others, the Supreme Court has clearly held as follows at p. 9 of LLJ:

"5. Section 33(2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money even though the rights to the benefit on which their claim is based is disputed by their employers. It is open to the Labour Court to interpret the award or settlement on which the workmen''s right rests."

13. In view of the aforesaid ratio clearly the Labour Court had the jurisdiction to interpret the terms of Cement Arbitration Award dated July 10, 1984 and Settlements dated May 10, 1989 and July 31, 1992. To get out of this difficulty, Management raised the patently bogus claim that the workmen are not their employees. The answer to the aforesaid question was also readily available in the form of previous litigation between the parties in which it had been held that the workmen were employees of the Management. This litigation was brought to the notice of the Labour Court. On September 8, 1993, the Regional Labour Commissioner had allowed the applications of the workmen u/s 33C(2) of the Act. Identical objections with regard to the workmen not being the employees of the Management was taken in these proceedings. The Management filed CWP No. 10701-2 of 1994 against the aforesaid order. CWP No. 10701 of 1994 was dismissed by a Division Bench of this Court by order dated October 24, 1994 which is as under:

"After hearing the learned counsel for the parties, we do not find infirmity in the order of the appropriate authority specially in view of the fact that the petitioner was making contribution towards provident fund in respect of workmen-respondents nos. 5 to 11. Dismissed.

Since we have dismissed the writ petition, the directions in order dated August 11, 1994 not to disburse the amount to the respondent workmen automatically stand vacated."

14. SLP(Civil) 8918 of 1995 filed against the aforesaid decision of this Court was dismissed by the Supreme Court by order dated January 29, 1996. The management had also filed CWP No. 10876 of 1995 challenging the similar order passed by the Regional Labour Commissioner (C), Chandigarh dated May 24, 1994 and the recovery Certificate dated August 11, 1994. This Writ Petition was dismissed as withdrawn on October 5, 1995 by a Division Bench with the following order:

"Learned counsel for the petitioner prays for withdrawal of the writ petition. His request is accepted. The writ petition is dismissed as withdrawn.

With the withdrawal of the writ petition, the interim stay order passed in favour of the petitioner stands vacated and as a consequence thereof, the competent authority shall take necessary steps for disbursement of the amount to the workmen."

15. In all these writ petitions, the main prayer was as follows:

"i) a writ of certiorari be issued quashing the orders Annexure P/7 purported to have been passed u/s 33C(2) of the Act. Statement of the account of the amounts recoverable Annexure P/6, recovery certificate Annexure P/5 and summons Annexure P/4 and action of the respondent No. 1 in not deciding the application dated July 12, 1994 and representation dated July 27, 1994".

16. In all these writ petitions, the Management had pleaded that the workmen were not their employees. The findings of the High Court in the aforesaid writ petitions have been followed by the Labour Court, which, it was bound to do. A perusal of the award further shows that it was clearly admitted before the Labour Court by the witness of the Management Rajiv Mathur that the wages system in the Charkhi Dadri Cement Plant of the Management had been adopted as per terms of Cement Arbitration Award 1983 and subsequent Settlements dated May 10, 1989 and July 31, 1992. He further admitted that all the workmen have been continuously working in the Charkhi Dadri Cement Union on daily rate wages against permanent job. Workmen Pyare Lal and Banwari have been retired during the year 1991. Applicants workmen are supervised by the officials of the Management and wages were also being paid by the Management. It was further admitted that the Cement Arbitration Award and the Settlements mentioned above are binding upon the Charkhi Dadri Cement Union. Taking into consideration all the facts and circumstances the Labour Court has returned a finding that the workmen are the employees of the Management. The Labour Court has interpreted the Cement Arbitration Award of 1983 and the Settlements dated May 10, 1989 and July 31, 1992. The Labour Court has acted within its jurisdiction as repeatedly laid down by the Supreme Court. In such circumstances, it would not be possible to hold that the award of the Labour Court is beyond the jurisdiction conferred on the Labour Court u/s 33C(2) of the Act.

17. Mr. Mehtani has then argued that the benefit of the award cannot be given to the workmen due to the bar contained u/s 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "the SICA"). It is stated that a reference was made u/s 15 of the SICA in respect of the Management to the Board for Industrial and Financial Re-construction (hereinafter referred to as "the Board") by letter dated April 25, 1996. Pursuant to the reference, the Board undertook an enquiry u/s 16 of the SICA. By order dated August 8, 1996, the Management had been declared to be a sick industrial company. A scheme referred to u/s 17 of the SICA in terms of the provisions of Section 18 of the SICA is under consideration in respect of the Management. This fact was brought to the notice of the Labour Court, but still the impugned award along with the applications of the workmen u/s 33C(2) of the Act has been passed directing the Management to pay the amounts mentioned therein. It is further submitted that since the Management has been declared a sick industrial company and is under acute financial crisis, it may be unable to pay the amounts awarded against it. The passing of the award amounts to recovery of the amounts mentioned in the award by execution, distress, sale or like against the properties of the Management. Section 22 of the Act puts a statutory bar for initiating proceedings for execution, distress, sale or like against all the properties of the industrial company which has been declared sick, Therefore no such proceedings can be initiated or proceeded with further, except with the consent of the Board. The workmen having not approached the Board cannot be given the benefit of the award. In support of the aforesaid submissions, the learned counsel has relied on a Division Bench judgment of this Court rendered in CWP No. 8650 of 1998 decided on November 30, 1999 (Suraj Textile Mills, Malout v. State of Punjab and Ors.). Learned counsel also relied on the judgment of the Supreme Court in the cases of The Gram Panchayat and another Vs. Shree Vallabh Glass Works Ltd. and others, ; Tata Davy Ltd. Vs. State of Orissa and Others, and a Division Bench of the Calcutta High Court in the case of Tushar Kanti Samaddar v. Tyre Corporation of India 2000 Lab IC 3040.

18. Mr. Sudhir Mittal has, however, submitted that Section 22 of the SICA would not be a bar for payment of wages due to the workmen for the work already done. In support of his submission, the learned counsel relied on a Division Bench judgment of the Karnataka High Court in the case of Indian PlywoodManufacturing Company Limited, Dharwad Vs. The Commissioner of Labour in Karnataka, Bangalore and Others, . In this judgment the Division Bench held as under at pp. 413 & 414:

"What is barred u/s 22 of 1985 Act is the execution of distress proceedings of the appointment of the Receiver in respect of the property of the Company. The recovery of money or for enforcement of any security against the company or any guarantee in respect of any loan or advance guaranteed to the company cannot be resorted to by way of suit in a Civil Court. The impugned notice and recovery certificate cannot be termed to be the recovery of money by way of suit. Being conscious of this position of law, the learned counsel for the appellant has tried to impress upon us that the amount sought to be recovered was distress and the recovery being effected in execution proceedings was not permissible. The word "distress" used in Section 22 of the 1985 Act has to be read ejusdem generis to the words "no proceeding for winding up, execution, distress or the like against any of the properties of an industrial company". Seen in this context it transpires that the financial difficulties faced by the company would not allow the initiation or continuation of proceedings under the Companies Act. "Distress" is a remedy summary in its nature and extraordinary in its character, whereby movable property is taken from the possession of one to secure satisfaction for a demand. Distress is one of the most ancient and effectual remedies for the recovery of rent. According to the LAW LEXICON, it is the taking without legal process, cattle or goods as a pledge to compel the satisfaction for a demand, the performance of a duty or the redress of an injury. Distress, thus, is not intended to be made a basis for depriving the workmen of the recovery of their wages payable to them under the Act. Such an interpretation would defeat the purpose for which the Act was enacted. Section 33C(2) provides a method by which the workman can claim money which is due to them from employer. We are, therefore, of the opinion that application filed u/s 33C(2) for retrenchment compensation is no bar for the authorities under the Act to proceed notwithstanding the provisions of Section 22 of the 1985 Act. The provisions of the Act cannot be controlled or intended to have been cur tailed by incorporation of Section 22 of the 1985 Act. The provisions of the Act and that of 1985 Act are in no way conflicting as they are intended to deal with different situations."

19. In coming to the aforesaid conclusion, the learned judges relied on a single Bench decision of the Allahabad High Court in the case of Modi Industries Ltd. Vs. Additional Labour Commissioner and Others, . In that case, the learned Judge, after considering the Special Provisions of law, which were brought to the notice of the Court, held as follows at p. 486 of LLJ:

"14. In my opinion, the purpose and object of Section 22 cannot be to cover those proceedings of actions which are necessary for running the industry irrespective of the fact whether it is sick or non-sick. If the Industry cannot run without workers, the workers also cannot be expected to work without payment of their wages. The timely payment of the wages for which the provisions of the Act of 1978 have been enacted would thus be a step helping rehabilitation and it cannot be said that it creates any obstacle in fulfilling the object for which the Act of 1985 has been enacted. Both the Acts are thus complimentary to each other. Section 22 cannot thus affect the proceedings taken u/s 3 of the Act of 1978 for compelling petitioner to make payment of the wages already accrued to the workers".

20. In coming to the aforesaid conclusion, the learned single Judge of the Allahabad High Court has relied on certain observations made by the Supreme Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, and further observed in paragraph 15 as follows:

"15. ......The Parliament while putting Section 22 of the Act, 1985 could never have intended that the industrial unit under the garb of sickness or for any like difficulty may be allowed to shirk its liability to pay the wages to its workers for the work they have done......"

21. The decision of the Allahabad High Court in the case of Modi Industries Ltd. (supra) has also been followed by a learned single Judge of the Bombay High Court in the case of Baburao P. Tawade v. HES Ltd., Bombay 1997III LLJ (Suppl)265 In the aforesaid judgment it is held as follows at p. 274:

14. Having considered the position in law as canvassed at the Bar on the strength of the Judgments referred to by me, I am of the view that even if the application had been made by the workmen u/s 33C(2) of the Industrial Disputes Act for recovery of the monies due to them after the reference under SICA made to the BIFR, such application could not have attracted the bar u/s 22(1) of SICA; much less can the writ petition under Articles 226 and 227 of the Constitution of India pending before this Court to challenge the adverse order in the application u/s 33C(2) of the Industrial Disputes Act, be held to attract the bar u/s 22(1) of SICA.

22. The judgment of the learned single Judge in the case of Baburao P. Tawade (supra), has been followed in a subsequent Judgment of single Bench of the Bombay High Court in the case of National Textile Corporation (South Maharashtra) Ltd. v. B.N. Jalgaonkar (1997) 1 CLR 1102. Similar view has been taken by the learned single Judge of the Allahabad High Court in the case of Muir Mills Kanpur v. P. O., Labour Court, (IV) Kanpur 1997 (76) FLR 503. In this judgment, it has been held as follows:

"14. .......As the first petition is dismissed, the order passed by the Dy. Labour Commissioner dated July 4, 1996 for realization of the amount from petitioner cannot be held to be illegal and realisation of the wages of the workman cannot be resisted on the basis of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. This Court has already taken the view in this regard which has been confirmed by Hon''ble Supreme Court. In the circumstances, second petition has also no merit."

23. The Judgment of the Learned single Judge in Modi Industries Ltd. (supra) has been set aside by the Supreme Court, in the case of Modi Industries Ltd. Vs. State of Uttar Pradesh and others, it has been held on interpretation of Section 3 of the Uttar Pradesh Industrial Peace (Timely Payment of Wages) Act, 1978 that the recovery certificate could not have been issued by the Labour Commissioner. The point with regard to the bar contained in Section 22 of the SICA was not raised before the Supreme Court. Therefore, I am unable to accept the submission . of Mr. Mittal that the judgment of the learned single Judge has been affirmed by the Supreme Court.

24. On the other hand, Mr. Mehtani has placed strong reliance on the judgments mentioned above. In the case of Shree Vallabh Glass Works (supra), the Supreme Court was dealing with a case where the Gram Panchayat had initiated coercive proceedings u/s 129 of the Bombay Village Panchayat Act to recover a sum of Rs. 9,47,539/- stated to be property tax and other amounts due from the Company. The Company challenged the proceedings by way of a Writ Petition under Article 226 of the Constitution of India claiming protection u/s 22 of the SICA. The High Court accepted the writ petition and restrained the petitioner from recovering the amount without the consent of the Court. The Supreme Court, therefore, posed the question as to whether the Panchayat could not recover the amount due to it from out of the properties of the sick industrial company, without the consent of the Board. After considering the provisions of the Act, the Supreme Court has held thatunder Section 22(1), the nature of the proceedings which are automatically suspended are: 1. winding up of the industrial company: 2. proceedings for execution, distress or the like against the properties of the Sick Industrial Company and 3. proceedings for the appointment of receiver. The proceedings in respect of these matters could, however, continue against the sick industrial company with consent of the Board: or the appellate authority, as the case may be. In paragraphs 10 and 11 it is held as follows:

"10. In the light of the steps taken by the Board under Sections 16 and 17 of the Act, no proceedings for execution, distress or the like proceedings against any of the properties of the company shall lie or be proceeded further except with the consent of the Board. Indeed, there would be automatic suspension of such proceedings against the Company''s properties. As soon as the inquiry u/s 16 is ordered by the Board, the various proceedings set out under Sub-section (1). of Section 22 would be deemed to have been suspended.

11. It may be against the principles of equity if the creditors are not allowed to recover their dues from the company, but such creditors may approach the Board for permission to proceed against the company for the recovery of their dues/ outstanding/ overdues or arrears by whatever name it is called. The Board at its discretion may accord its approval for proceeding against the company. If the approval is not granted the remedy is not extinguished. It is only postponed. Sub-section (5) of Section 22 provides for exclusion of the period during which the remedy is suspended without computing the period of limitation for recovering the dues."

25. In the case of Tata Davy Ltd. (supra) again the Supreme Court was considering the provisions in relation to the recovery of arrears of sales tax. The Supreme Court relied on the earlier judgment in the case of Shree Vallabh Glass Works Ltd. (supra) and held that arrears of taxes and the like due from industrial companies that satisfy the condition set out in Section 22(1) of the SICA cannot be recovered by coercive process unless the Board gives its consent thereto. Similar is the view expressed by the Division Bench of Calcutta High Court in the case of Tushar Kanti Samaddar (supra). In paragraph 19, it is observed as follows:

"19. However, the respondents have submitted that the Court cannot direct payment of any money to the appellant by virtue of provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act. 1985. According to the respondents, reference had been made to the Board for Industrial and Financial Reconstruction (in short BIFR) and a scheme was in the course of preparation u/s 18 of the said Act. It is submitted that Section 22 of the said Act specifically forbade "any suit for recovery of money". Without going into the question whether the provisions of Section 22 of the 1985 Act will apply to the proceedings under Article 226 of the Constitution of India, we clarify that as far as this proceeding is concerned, the Court has merely declared the status of the appellant, namely, that he has ceased to be an employee of the respondent-corporation with effect from August 18, 1997. It is made clear that any proceeding for recovery of money due to him may be taken by the appellant subject to the consent of the BIFR as provided u/s 22 of the 1985 Act. This observation, however, will not apply to the mere continuation of the proceedings under the Payment of Gratuity Act, 1972, nor to the transfer of the Provident Fund dues as fairly offered by the respondent Corporation."

26, In similar circumstances a Division Bench of this Court in the case of Suraj Textile Mills, Malout (supra) has observed as follows:

"Workmen-respondents filed applications before the Labour Commissioner u/s 33C(2) of the Industrial Disputes Act, 1947, seeking to recover different sums of money due to them from the petitioner management. The Labour Commissioner has determined the amount and referred the case to the Collector, Muktsar for recovery as arrears of land revenue. Admittedly, the petitioner is a sick industrial company declared as such u/s 3(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (for Short "the Act") and a scheme for its rehabilitation is under process. This being so, the amount covered by the impugned notices cannot be recovered through any coercive means except with the consent of the Board for Industrial and Financial Re-construction. We, therefore, direct the respondents not to recover the amount in pursuance of the impugned notices till such time the workers obtain the consent of the Board in terms of Section 22 of the Act..."

27. A perusal of the aforesaid extract reproduced above from the various decisions i. e. Division Bench of this Court, Division Bench of the Calcutta High Court on the one hand and Division Bench of the Karnataka High Court, single Benches of Bombay High Court and Allahabad High Court on the other hand shows that there is a clear conflict as to whether Section 22 of the SICA would be a bar to the recovery of wages for the work already done by the workman. The Division Bench judgment of the Karnataka High Court and the single Bench judgments of the Bombay High Court and the Allahabad High Court would, however, be of no assistance to the case pleaded by Mr. Mittal, as I am bound by the decision of the Division Bench in the case of Suraj Textile Mills, Malout (supra). The finding returned by the Division Bench is clear and categoric. It has been held that the petitioner (therein) is a sick industrial company and a scheme for its rehabilitation is under process. This being so, the amount covered by the impugned notices cannot be recovered through any coercive means, except with the consent of the BIFR. The Calcutta High Court in the case of Tushar Kanti Samaddar (supra) has also held that any proceeding for recovery of the money due to him may be taken by the appellant subject to the consent of the BIFR as provided u/s 22 of 1985 Act. Furthermore, the Supreme Court in the case of Shree Vallabh Glass Works Ltd. (supra) has also observed that in view of the bar created by Section 22 of the SICA, no proceedings for execution, distress or the like shall lie or be proceeded further except with the consent of the Board. The Supreme Court has held that there would be automatic suspension of such proceedings against the company''s properties. The Supreme Court further observed that it may be against the principle of equity, if the creditors are not allowed to recover their dues from a company, but such creditors may approach the Board for permission to proceed against the company for recovery of their dues outstanding over dues or arrears by whatever name it is called. Such being the legal position, it would not be possible to agree with Mr. Mittal that in spite of the bar u/s 22 of the SICA, the respondents workmen can be permitted to recover the amounts due without the consent of the Board. It is not possible to accept the submission of Mr. Mittal that recovery of wages would not fall under the terms proceedings, execution, distress, or the like mentioned in Section 22 of the SICA. There is no ambiguity in the Section. It clearly provides that when proceedings in respect of industrial company are pending u/s 16, 17 or 25 of the SICA, no recovery proceedings shall lie or be proceeded with against the properties of the company, except with the consent of the Board. The Section does not provide that no proceedings ......distress or the like except proceedings for the recovery of the wages of the workman shall lie or be proceeded with. Accepting Mr. Mittal''s submission would amount to adding the aforesaid italicised words in Section 22 of the SICA. It is true that a particular provision can be given a narrow or a liberal construction to give effect to the real intention of the Legislature in the Act. But the liberal interpretation cannot be stretched to such an extent which would amount to amendment of the provision. Excluding the claims of the workmen for earned wages from the bar u/s 22 of the SICA would amount to amending the Section by interpretation. This is a legislative function which is best left to the wisdom of the Legislature. As noticed in the earlier part of the Judgment, the Supreme Court in the case of Central Bank of India Ltd (supra) declined to give a construction to Section! 33C(2) of the Act which would have resulted in adding some words in that clause. It was held that the Section "33C(2)" wherein workman is entitled to receive from employer any benefit "does not mean" where such workman is admittedly, or admitted to be, entitled to receive such benefits. Therefore, it is not possible to accept the submission of Mr. Mittal that the bar contained u/s 22 of the SICA would not apply to proceedings for recovery of wages. In my view the recovery would be subject to the consent of the Board. As held by the Supreme Court in the of case of Shree Vallabh Glass Works Ltd. (supra), once an application for consent is made, the Board may or may not grant the approval. However, in the event of non-grant of approval, the remedy of the workman is not extinguished. It is only postponed. The right of the workman would be protected.

28. The submission of Mr. Mittal that Section 22 of the SICA will not have any effect on the recovery certificate issued u/s 33C(2) of the Act can be examined from another angle also. Section 22 of the SICA contains a non obstante Clause. The Clause provides "...notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law...." A bare perusal of the aforesaid clause shows that Section 22 of the SICA would have an overriding effect on the provisions of the companies Act, or any other law. The provisions of the Act would fall within the ambit of the term "any other law". The aforesaid clause leaves no manner of doubt that the payment of wages on the basis of a recovery certificate issued under the Act can only be effected subject to the bar contained u/s 22 of the SICA.

29. For the foregoing reasons, the Writ Petition is partly allowed. It is held that the Labour Court has correctly exercised its jurisdiction in adjudicating the claim of the workmen u/s 33C(2) of the Act. The award passed by the Labour Court dated February 1, 2000 is valid and is upheld. The respondents workmen and the LRs of the two deceased workmen are directed to approach the BIFR for approval u/s 22 of the SICA. The amounts mentioned in the award together with interest at the rate of 12 per cent per annum w.e.f. September 1, 1992 shall be paid to the workmen and the LRs of the deceased workmen on the approval being granted by the BIFR. The BIFR is directed to take a decision on the application that may be filed by the respondents workmen and the LRs of the deceased workmen within a period of two months of the making of the application.

30. Petition disposed of in the aforesaid terms. No costs.