Anand Ishar Public School vs The Additional District, Judge Ludhiana-cum-Appellate Authority

S.S. Sudhalkar, J.—This writ petition is filed by the employer for quashing the order dated 9.5.1995, (copy Annexure P/3) passed by the Authority, underthe Payment of Wages Act (hereinafter referred to as "the Act") by which it has awarded the claim of respondent No. 3. The petitioners have also challenged the order dated 7.8.1999, [Copy Annexure P/8]. It is the judgment of the learned Additional District Judge, Ludhiana over the order of Authority under the Act.

The authority under the Act awarded to respondent No. 3 claim underthe Act. The case of respondent No. 3 is that the Minimum Wages Act was made applicable but the petitioner did not pay the salary in accordance with the notification and withheld the part of salary illegally, without justification and that she was entitled to the wages from the petitioners.

The appellate authority has found that the appeal was not accompanied by the certificate of authority regarding deposit of amount and that the certificate was procured afterwards. The provisions of Appeal by an employer is made in Section 17(1-A) of the Act. Section 18(1-A) of the Act provides as under :-"No appeal under clause (a) of sub-Section (1) shall lie unless the memorandum of appeal is accompanied by a certificate of the Authority to the effect that the appellant has deposited the amount payable under the directions appealed against."

Learned counsel for the petitioner has cited the case of Sailendra Kumar Dutta alias S.K. Dutta v. The General Manager, Gaahatt Refinery, 1OC Ltd. reported as 1973 Lab.I.C 383. He has argued that the principle in the case of Sailendra Kumar (supra) has been used against him but that is not applicable because no denial was proved. Similar is his argument regarding the judgment in the case of Murudhar Kshetriya Gramin Bank v. Bhagwan Ram and another reported tis 1995 L. I.C. 496.

We do not find that the interpretation of law made by the petitioner is correct. Even if no denial was proved, when an employer is held liable to pay amount and is ordered to pay on an application u/s 15 of the Act, the provision u/s 1-A of the Act will apply to appeals u/s 17(1)(a) of the Act. The correctness will have to be gone into thereafter. There is a bar to the appeal itself that it shall not lie unless the certificate of deposit of amount has been annexed.

Leaned counsel for the petitioner has argued that he had moved an application for condonation of delay in filing the appeal before the District Judge. However, the learned District Judge has not considered the question. The application for condonation of delay is vague. Copy of the application is at Annexure P/5. Para 2 of (he application states the facts on which the petitioner wanted the delay to be condoned. It is reproduced as below :-

"2. That the appellants had applied for certified copy of the order dated 9.5.1995, on 24.5.1995 vide application No. 989. The certified copy prepared on 10.3.1997, was delivered to the appellants on 18.3.1997. Although the appeal is within limitation as the same is being instituted on the first day of the opening of the Court after vacation from 24.3.1997 to 28.3.1997, yet as a precaution, it is being stated that the delay, if any, in moving appeal is inadvertent and bonafide." The prayer in the application is as under :-"It is, therefore, prayed that the delay, if any in moving the appeal, be condoned in the interest of justice and equity."

It is, therefore, an application asking for condonation of delay, if any, in filing the appeal. The learned District Judge has referred to the application and has considered the arguments of learned counsel for the petitioner that the certificate of the authority could not be procured and the payment could not be made and therefore, there was delay in making the payment which was liable to be condoned. As seen above, the text of the application for condonation of delay is not regarding delay in depositing the amount but delay, if any, in filing the appeal. There is no reason shown as to why the amount could not be deposited earlier. Moreover, it is not shown that amount can be deposited subsequent to the date of filing of the appeal and that the said delay can be condoned.

Counsel for the petitioner has relied on the case of Parsuno v. Hazara Singh reported as AIR I96S (P & H) 352. The case is regarding application u/s 5 of the Limitation Act to the petition for special leave to file appeal u/s 417(3) of the Code of Criminal Procedure (Old). It has been held therein that the provisions of Section 5 apply by virtue of Section 29(2) of the Limitation Act. This principle is not applicable to the question under consideration.

In view of the discussion above, this judgment will not also come to the rescue of the petitioners. To repeat, the reason being we are not to consider whether the District Judge could have or could not have entertained the appeal after the limitation was over but it is a limited question as to whether District Judge could have allowed the appeal to be filed without annexing of the certificate of deposit of the amount. There is no provision shown by counsel for the petitioners that after the appeal is filed, the amount can be deposited subsequently and application can be made for condoning the delay in depositing the amount. It can be seen that in the present case, which is under the Payment of Wages Act, the question is whether the appeal shall lie when there is a specific bar of Section 17(1-A) of the Act. There may be some distinction (we do not express any opinion), in cases where the provision is "Appeal shall not be entertained" or "No appeal shall be admitted".

In view of the above reasons, we find no infirmity in the judgment of learned Additional District Judge, Annexure P/8. This writ petition, therefore, deserves to be dismissed and is dismissed.

Writ petition dismissed.