Judgment

R.P.Khosla, J.

1. This petition is under Article 226 of the Constitution of India praying for a writ in the nature of mandamus prohibiting the respondents from recovering the amount of Rs. 16,185/- in respect of a recovery certificate granted by the Labour Commissioner, respondent No. 2.

2. The facts giving rise to the present petition briefly stated are that the petitioner, a motor transport private limited company (hereafter to be referred as Company) plied buses from Muktsar on several routes. It appears that on a dispute arising between the employer transport company and its workmen on 9-6-1955, a settlement under Section 12 (3) of the Industrial Disputes Act between the company and the workmen had been arrived at and to view of item No. 10 of the settlement, which is in the following terms--

"10. The management agrees to fix headquarters of the workers and to pay night allowance as per award of the Industrial Tribunal in Kartar Bus, Jullundur, if the worker is required to remain out of headquarters" (Annexure R/1). though the headquarters, as contemplated had not yet been fixed the workers lodged a claim before the Labour Commissioner in respect thereof und obtained a certificate for recovery for the amount of Rs. 16,185/- against the company. The recovery certificate bore the date 21st of June, 1958. Before the said recovery certificate and after the settlement referred to, the workmen had taken some points again in dispute, including "whether the headquarters of the workmen should be fixed at least for six months" to the Labour Court at Amritsar and by its order dated 3-2-1958, the Labour Court had settled the matter as point No. 2 of the said order, i. e., "the headquarters of the workmen, who want them to be fixed, will not be changed for at least four months."

There appears to be no material on the record that the headquarters of the workmen at any stage or at all had been fixed. In fact, the averment in the petition contained in para 4 "that none of the workmen has so far required the petitioner company to fix his headquarters" has not been denied by the answering respondents.

3. The petition relating to the claim, the basis of the recovery certificate, was said to have been made by the workmen to the Labour Commissioner on the 20th of April, 1958. The said application was on behalf of thirty-four persons claiming night allowance on the basis of item No. 10 of the settlement dated the 9th of June, 1955, for remaining away from the head office.

It transpires that the Labour Commissions caused a letter to issue to the company to show cause in this respect on 24th of May, 1958, and on no response having been made an ex parte order resulted followed by the issuance of a certificate for the recovery of Rs. 16,185/- which was sent to the Tehsildar for recovery of the amount as arrears fit land revenue. The. document received by the company and attached to the petition is Annexure B.

The said document reciting the charge of Rs. 16,185/- and seeking to recover the said amount as arrears of land revenue gave rise to the cause, subject-matter of this writ application. The application challenges that the order was wholly without jurisdiction.

4. Mr. Bhagirath Das, learned counsel appearing for the petitioning transport company grounded the attack on the following objections :-

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(1) Headquarters not having yet been fixed as contemplated by item 10 of the settlement dated the 9th of June, 1955, referred to above, no ground for any claim could have arisen to the workmen.

(2) There was no evidence and material to come to the conclusion that the calculation of the amount in question had been made according to the award in Kartar Bus Service as laid down in said item No. 10 of the settlement dated the 9th of June, 1955. ; Apart from these two questions of fact, which as already stated have not been controverted by the respondents, the basic objection, namely, that the Labour Commissioner had no jurisdiction to entertain the claim petition of the workmen "on the 20th of April, 1958, was raised. The contention was that in view of Sub-section (1) of Section 33C of the Indus trial Disputes Act (Act No, 14 of 1947) the Labour Commissioner could certify the recovery if the amount had been ascertained and named by the Labour Court or in pursuance of the settlement or award; there was no jurisdiction otherwise. The provisions of Sub-section (1) of Section 33C are in the following terms : -- "33C (1) Where any money is due to a workman from an employer under 3 settlement or an award or under the provisions of Chapter VA, the workman may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him and if the appropriate 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 in the same manner as an arrear of land revenue."

There is no doubt that the reading of the said provision makes it plain that a certificate could only issue in a case where the money due had already been ascertained, and the Labour Commissioner could not, on his own, proceed to ascertain the amount and issue the recovery certificate. Reference to Section 33C (2), which is worded as follows, "33C (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 appropriate Government, and the amount so determined may be recovered as provided for in Sub-section (1)."

makes it further clear that the determination of the benefit capable of being computed in terms of money is referred to the Labour Court and after the ascertainment of the amount by the Labour Court, the recovery certificate would issue as provided in Sub-section (1). Conclusion from the above is, therefore, obvious that the Labour Commissioner could not, on the petition for a claim, ascertain the amount himself. It had to be so determined by the Labour Court. On another ground too, namely that the Labour Commissioner on the 20th of April, 1958, had no jurisdiction whatever to act in any event, for appropriate Government had not on that date delegated any power to him, as envisaged by Section 39, for the purposes of recovery of money due from an employer as envisaged under Section 33C, this petition must succeed. It is stated and admitted by the respondents that on the 20th of April, 1958, there had been no such delegation.

Obviously, therefore, the claim petition was not competent before the Labour Commissioner, for he had no jurisdiction to go into the matter. In this view, the recovery proceeding that followed would be wholly without basis in a forum hardly having any jurisdiction to adjudicate upon the same. There appears to be no real answer to these points evolved: Learned counsel for the respondents, in spite of good deal of effort, has not been able to persuade me to conclude that this recovery certificate was either based on a proper claim or had been adjudicated upon by the Labour Commissioner with jurisdiction. For these considerations, this petition must succeed and writ must issue as prayed. I would order accordingly. Petitioner company must get its cost which I would assess at Rs. 100/-.