JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri S.S.Nigam, learned counsel for the petitioner and Sri Y.K.Sinha, learned counsel for the respondents. Sri Nigam stated at the bar that he does not propose to file any rejoinder-affidavit. As requested by learned counsel for the parties and with their consent, the Court proceed to hear and decide the matter. 2. The writ petition is directed against the order dated 24.1.2011 passed by Assistant Labour Commissioner U.P. Ghaziabad in purported exercise of power under Section 6-H (1) of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as “1947 Act”) directing for recovery of Rs. 56,281/- from the petitioner on an application made by Sri Ram Kumar respondent No. 1. 3. Learned counsel for the petitioner submitted that impugned order is wholly without jurisdiction, inasmuch as, the application of workman itself was not entertainable under Section 6-H(1) of the 1947 Act, hence the impugned order is void ab initio and liable to be set aside. 4. The facts giving rise to the present dispute in brief are as under: 5. The petitioner is admittedly an industrial establishment and is an industry under the provisions of 1947 Act engaged in manufacturing of crystal sugar through vacuum pan process. The respondent No. 1 was terminated. An industrial dispute was raised and Deputy Labour Commissioner, Ghaziabad on 30.11.2004 made the following reference: ^^D;k lsok;kstdksa }kjk vius Jfed Jh jkedqekj iq= Jh /keZflag inuke lhtuy DydZ dh lsok;sa fnukad 31-10-2003 ls lekIr djuk rFkk@vFkok oS/kkfud gSa\ ;fn ugha rks lacaf/kr Jfed fdl fgrykHk @vuqrks"k@{kfriwfrZ ikus dk vf/kdkjh gS rFkk vU; fdl fooj.k lfgr\** 6. An industrial dispute was raised and Deputy Labour Commissioner, Ghaziabad on 30.11.2004 made the following reference: ^^D;k lsok;kstdksa }kjk vius Jfed Jh jkedqekj iq= Jh /keZflag inuke lhtuy DydZ dh lsok;sa fnukad 31-10-2003 ls lekIr djuk rFkk@vFkok oS/kkfud gSa\ ;fn ugha rks lacaf/kr Jfed fdl fgrykHk @vuqrks"k@{kfriwfrZ ikus dk vf/kdkjh gS rFkk vU; fdl fooj.k lfgr\** 6. The labour Court delivered its award on 22.10.2008 and the relevant part of the award reads as under: ^^bl deZpkjh dks lhtu ds nkSjku gVk fn;k x;k vkSj ukSdjh ls gVkus dk dksbZ dkj.k ugha crk;k x;k ;g fof/k O;oLFkk bl ekeys esa ykxw gks tk;sxhA mijksDr ds vuqlkj ,d i{kh; :i ls ;g fl) gks x;k gS fd Jfed dks lsok lekfIr dk vkns’k fnukad 31-10-2003 voS/k gS vkSj Je dkuwuksa ds fo:) gS blfy, fujLr fd;k tkrk gSA 7- cSd osftt ds lEcU/k esa Jfed us ;g c;ku fn;k gS fd lsok lekIrh ds i’pkr ukSdjh 8- mijksDr lHkh ds vuqlkj Jfed dks lhtuy fyfid ds in ij iqu% fu;ksftr djus dk vkns’k fn;k tkrk gSA vkSj lsok lekIrh dk vkns’k fnukad 31-10-2003 fujLr fd;k tkrk gSa Jfed dks mijksDr ds vuqlkj lhtu nj lhtu ds dk;Zdky ds cSd osftt ikus dk vfèkdkjh gksxkA tSlk fd Åij mYys[k fd;k x;k gSA bl izdkj ;g vokMZ ,d i{kh; :i ls Jfed ds i{k esa ikfjr fd;k tkrk gSA** 7. It is thus evident that Labour Court granted relief of reinstatement to the workman as Seasonal Clerk. His order of termination dated 31.10.2003 was declared illegal and he was granted backwages for the period he remained out of job in the past for the concerned season. Since the award was ex parte, petitioner moved an application under Rule 16(2) of U.P. Industrial Dispute Rules, 1957 (hereinafter referred to as “1957 Rules” for recall of award dated 22.10.2008. It is said that in the meantime the workman filed an application under Section 6-H(1) of 1947 Act before Additional Labour Commissioner on 19.7.2010 wherein he claimed wages for the period of 1.11.2009 to 30.6.2010. 8. Obviously and evidently, period for which wages were claimed was subsequent to the date of award and therefore, would not come within the purview of arrears of wages but form part of current wages as a result of setting aside termination order. 8. Obviously and evidently, period for which wages were claimed was subsequent to the date of award and therefore, would not come within the purview of arrears of wages but form part of current wages as a result of setting aside termination order. The matter was taken up by respondent No. 3 and notice was issued to the petitioner employer on 21.10.2010. The petitioner filed an objection dated 18.11.2010 stating firstly that application for recall of award is pending and therefore the matter may be deferred and secondly, it was stated that workman himself was already employed, for the period he has sought wages, in M/s Daurala Sugar Works, Daurala having a separate provident fund account No. 10216. A copy of certificate of employment issued by M/s Daurala Sugar Works, Daurala and Provident Fund account details was also placed on record alongwith objection filed by the petitioner. It is thus said that no wages are payable to the workman concerned for the period he has demanded. The respondent No. 3, however, has passed the impugned order which has been assailed in this writ petition. 9. Initially, when the writ petition was filed, petitioner’s main argument appears to be that the award being ex parte application for restoration is pending hence no proceedings under Section 6-H(1) of 1947 Act ought to have been initiated till the petitioner’s application for recall of the ex parte award is pending. This contention was opposed by learned counsel appearing for the respondents who appeared before this Court under caveat on 7th March, 2011. Sri Sinha informed this Court that application for recall of ex parte award had already been rejected by Labour Court on 15.2.2011. 10. At this stage, counsel for the petitioner sought adjournment and the matter was posted for 14.3.2011. On the next date supplementary affidavit was filed by the petitioner stating that though restoration application filed by petitioner is rejected on 15.2.2011 but on the same day another application seeking restoration of restoration application was filed and the same is pending. It is in these circumstances this Court passed the following order dated 14.3.2011: “Heard learned counsel for the petitioner, learned Standing Counsel, who has accepted notice on behalf of respondent Nos. 2 to 4 and Sri Y.K.Sinha, learned counsel, who has put in appearance on behalf of respondent No. 1. It is in these circumstances this Court passed the following order dated 14.3.2011: “Heard learned counsel for the petitioner, learned Standing Counsel, who has accepted notice on behalf of respondent Nos. 2 to 4 and Sri Y.K.Sinha, learned counsel, who has put in appearance on behalf of respondent No. 1. Supplementary affidavit filed by learned counsel for the petitioner today in the Court is taken on record. Learned counsel for the petitioner has drawn attention of this Court to Annexure-SA-1 to show that the restoration application filed by the petitioner is fixed for 30.3.2011, and it is therefore prayed that till the restoration application filed by the petitioner is decided, recovery pursuant to the impugned order dated 24.1.2011 may be kept in abeyance. Sri Y.K.Sinha, learned counsel for the respondent No. 1 states that some date may fixed after 30th March, 2011, in the present case and till then interest of the petitioner may be protected. Accordingly, list this case on 4th April 2011. Till the next date of list ing, recovery proceedings pursuant to the order impugned dated 24.1.2011 shall be kept in abeyance. 11. The respondent No. 1 has filed a counter affidavit stating therein that despite notice sent by registered post to the petitioner it chose not to appear before the Labour Court hence ex parte award was given. After several months, the restoration application was filed but the same was also rejected on 15.2.2011. 12. Sri Y.K.Sinha, learned counsel for the respondent contended that since the petitioner had approached this Court with unclean hands by raising a substantial argument that during pendency of restoration application proceedings under Section 6-H(1) ought not be initiated though it is factually wrong statement on the date when the affidavit of writ petition was sworn and the writ petition itself was presented before this Court hence it should be dismissed on this ground alone. 13. It cannot be disputed that petitioner has been extremely negligent in this matter. On the date when affidavit was sworn and writ petition was presented to the Court, restoration application was already rejected long back but in paras 12 and 16 of writ petition, basic ground taken by the petitioner was the pendency of restoration application for recall of ex parte award though it was not pending at all. The petitioner deserve to be seriously deprecated for such recklessness. The petitioner deserve to be seriously deprecated for such recklessness. However, in my view, this by itself is not such a serious flaw on the part of petitioner so as to justify omission of another substantial illegality in the proceedings. This Court cannot allow a serious illegality to perpetuate particularly when it also cannot be said simultaneously that impugned order though procedurally illegal but has done substantial justice. 14. The application filed by workman under Section 6-H(1) of 1947 Act claims wages for the period subsequent to the date of award i.e. from 1.11.2009 to 30.6.2010. In the entire application there is no averment made by the workman as to when he joined his service in petitioner’s establishment after award or that he made himself available to the petitioner for doing work but was declined to do so by the employer. It is a brief application having no details whatsoever and simply says that workman is entitled for recovery of Rs. 56,281/- from the employer and a chart has been added showing the period and the wages payable thereto. The petitioners filed their objection taking specific stand that workman was already employed elsewhere hence question of entitlement for any wages from the petitioner- employer does not arise at all. In para 3(b) of the objection filed by the employer before the Assistant Labour Commissioner, Annexure 5 to the writ petition, it has been categorically stated as under: “That the applicant has not come with clean hands before this authority because the period for which applicant has claimed the wages on the basis of the ex parte award dated 22.10.2008 he had been working in Daurala Sugar Works, Meerut during the same period having separate PF account No. 10216. Copy of the letter of gainful employment by M/s Daurala Sugar Works, Meerut and P.F. Account details are annexed herewith as Annexure ‘C’ and ‘D’.” 15. A certificate issued by M/s Daurala Sugar Works, Daurala on 31.7.2010 is also on record which reads as under: “This is to certify that Mr.Ram Kumar S/o Sh.Dharam Singh, Village Patla (Distt. Ghaziabad) and Mr. Rakesh Kumar Tyagi, S/o Sh. Kiran Chand, Village Baragaon (Distt. Baghpat) are working as Temporary Weighment Clerk under Wage Board since 2005 & 2006 having P.F. No. 10216 and 10309 respectively.” 16. Ghaziabad) and Mr. Rakesh Kumar Tyagi, S/o Sh. Kiran Chand, Village Baragaon (Distt. Baghpat) are working as Temporary Weighment Clerk under Wage Board since 2005 & 2006 having P.F. No. 10216 and 10309 respectively.” 16. It is thus evident that from 2005 and 2006 the workman Ram Kumar is in the employment of M/s Daurala Sugar Works, Daurala in the capacity of Temporary Weighman Clerk. His provident fund, account copy, upto 31st March, 2010 is also on record showing that he was paid salary and his provident fund was deposited from the months of November, 2009 to March, 2010. There is nothing on record to show that this stand of petitioner was ever disputed or contradicted by the workman before Assistant Labour Commissioner. 17. It is really strange that without looking into this aspect of the matter, in a mechanical manner, and by a total non application of mind, Assistant Labour Commissioner had issued recovery certificate dated 24.1.2011. Before this Court also the petitioner has stated in para 13 of writ petition that workman had been working in M/S Daurala Sugar Works, Daurala Meerut during the period for which he sought wages to be recovered from the petitioner by filing application under Section 6-H(1) of 1947 Act. Para 13 of the writ petition has been replied in para 7 of the counter affidavit which reads as under: “That the contents of paragraph No. 13 of the writ petition are not admitted. It is submitted at the most deponent shall not be entitled for the wages he received from other employer but employment for a very short period during the unemployment to sustain himself and his family cant lead to depriving the wages of the award particular when such fact was never brought to the notice of the Labour Court.” 18. A bare reading of para 7 of counter-affidavit shows that he was in the employment of M/s Daurala Sugar Works, Daurala and what he had stated is that the amount he received from M/s Daurala may be adjusted against the wages he has claimed and the difference ought to have been realized from the petitioner employer. No details of the wages he received from M/s Daurala Sugar Works, Daurala have been given and there is nothing to show that what he received was less than the amount he was entitled with the petitioner. 19. No details of the wages he received from M/s Daurala Sugar Works, Daurala have been given and there is nothing to show that what he received was less than the amount he was entitled with the petitioner. 19. In any case, question of claiming wages from employer would arise only when as a result of award of Labour Court, setting aside the order of termination, the workman makes himself available to the employer and show is readiness and willingness to perform the work but the employer fails to allow. Here, in the present case, there is not even a whisper on the part of the workman to make such a statement either before respondent No. 3 or before this Court also. There is no grievance of workman concerned that despite award of Labour Court, employer declined to permit the workman to discharge his duties though the workman was ready, willing and available. The respondent No. 3, in the above circumstances, in passing the impugned order apparently has committed a patent error of law and the impugned order is wholly illegal and cannot sustain on the facts of this case. 20. Even otherwise, in law it is true that the proceeding under Section 6-H(1) of 1947 Act are in the nature of execution but that does not mean that even if no amount is due yet a recovery certificate can be issued by Labour Commissioner or any other person to whom the power has been delegated on mere asking by the workman without looking into the fact whether the amount is due or not. The authority under Section 6-H(1) of 1947 Act shall not go behind the award but where, pursuant to the award, a situation has arisen which creates a doubt whether any amount is due to the workman or not, it has to be considered. If such entitlement is disputed and the relevant pleadings, facts and material is placed before the authority concerned, the authority can do so. If such entitlement is disputed and the relevant pleadings, facts and material is placed before the authority concerned, the authority can do so. The scope of Section 6-H of 1947 Act, which is pari materia to Section 33C of 1947 Act has been subject-matter of consideration in a catena of decisions and recently it has been discussed by this Court in State of U.P and another v. Ram Sahai and another, 2011(4) ESC 2662 : 2011(8) ADJ 127 (NOC), and I am in respectful agreement thereto but then the issues of amount due, if any, has to be considered and decided. 21. In the light of the above, I have no hesitation in holding that the impugned order cannot sustain. The writ petition is allowed. The impugned order dated 24.1.2011 and recovery certificate dated 1.2.2011 (Annexures 7 and 8 to the writ petition) are hereby quashed. 22. However, there shall be no order as to costs. ——————