Joint Director Handicrafts vs Gulzar Ahmad Sofi and another

Petitioners have sought \indulgence of the court for issu .oe of a writ of certiorari for quashing the award dated 2791997 passed by Assistant

Labour Commissioner, Sririagar, as Authority under Payment of Wages Apt(for short the Act) in the claim petition titled Gulzar Ahmad Sofi vs.

Joint Director & ors, whereby an exparte award to the tune of Rs. 46, 909/ carne to be passed in favour of the applicant respondent No. 1 herein

read with order dated 14101998 passed by Special Mobile Magistrate, Passenger tax;Srinagar in the recovery proceedings. The brief facts of the

case are to be nonced:

Respondent No. 1, Gulzar Ahmad Sofi, filed a claim, petition before the Authority under Payment of Wages Assistant Labour Commissioner,

Kupwara with the averments that he came to be engaged by the petitioners as Chowkidar on daily wage basis in their Industrial Establishment

located at Kaka Sathoo, Nawab Bazar, but the petitioners nonapplicants failed to pay wages to him which constrained him to invoke jurisdiction of

the Authority under the Act. Exparte award came to be passed. The respondent No. 1 thereafter filed recovery proceedings before the/subJudge,

Special Mobile Magistrate, Srinagar, who vide order dated 14101998 directed attachment of the accounts of the petitioners for nonpayment of

awarded amount. Aggrieved by both the orders, the petitioners have questioned the same before this court through the medium of this writ petition

on the grounds taken in the writ petition and prayed for quashment of the same.

It is specifically averred that the petitioners have no efficacious and alternate remedy available. The question is whether the petitioner has

efficacious and alternate remedy available The answer is in affirmative for the following reasons:

The aim and object of the Payment of Wages Act is to pass effective orders for the redressal of grievances of workman and if on facts it is found

that the wages of a workman have been withheld or employer has acted in such a manner which is apparently detrimental to the employee, the

authorities under the laws administering the social justice for the working class cannot be held to be helpless in granting relief in appropriate cases.

If an award is passed in favour of the employee, the employerthe aggrieved person can file an appeal in terms of section 17 of the Act subject to

fetters and restrictions. It is profitable to reproduce section 17(1) (a) here under:

Appeal (1) An appeal against an order dismissing either wholly or in part an application made under subsection (2) of section 15, or against a

direction made under subsection (3) or subsection (4) of that section may be preferred, within thirty days of the date on which the order or

direction was made, in a Presidencytown before the court of Small Causes and elsewhere before the District Courtfa) by the employer or other

person responsible for the payment of wages under section 3, if the total sum directed to be paid by way of wages and compensation exceeds

three hundred rupees or such direction has the effect of imposing on the employer or the other person a financial liability exceeding on e thousand

rupees.....

As per mandate of this provision of law, the appellant has to annex a certificate to the effect that it has deposited the amount payable under the

award, appealed against. The aim of this section is to ensure that the wages/awarded amount is to be deposited before the authority before filing

the appeal and appeal can only thereafter be competent. It has social purpose and object behind it, i.e. to save the labourer from the social evils. If

appeal is filed without certificate, it is incompetent, ineffective and incomplete.

The petitioners instead of challenging the award before the appellate authority has straightway chosen to file this writ petition with the averment that

efficacious remedy was not available to the them, which is not correct. This writ petition has been filed with the sole aim of giving a slip to law and

to come out of rigour of section 17(1) (a) of the Act. It is beaten law that where efficacious remedy is available, writ is not maintainable. I am

fortified in my view by apex court judgement titled U.P. State Bridge Corporation Ltd. vs. U.P. Rajya Setu Nigam S. Karamchari Singh, 2005

AIR SCW 3149, wherein their lordships have held that where alternate remedy is available, writ is not maintainable. It is profitable to reproduce

para 17 of the Judgement, hereunder:

The only reason given by the High Court to finally dispose of the issues in its writ jurisdiction which appears to be sustainable, is the factor of

delay, on the part of the High Court in disposing of the dispute. Doubtless the issue of alternative remedy should be raised and decided at the

earliest opportunity so that a litigant is not prejudiced by the action of the Court. Since the objection is one in the nature of a demurer. Nevertheless

even when there has been such a delay where the issue raised requires the resolution of factual controversies, the High Court should not, even

when there is a delay, short circuit the process for effectively determining the facts. Indeed the factual controversies which have arisen In this case

remain unresolved. They must be resolved in a manner which is just and fair to both the parties. The High Court was not the appropriate forum for

the enforcement of the right and the learned single Judge in Anad Prakash's case had correctly refused to entertain the writ petition for such relief.

This court had an occasion to deal with an identical question in case Faqir Chand vs. Authority under Payment of Wages Act, KLJ 1988, 223 and

has held that the writ jurisdiction cannot be substituted for the ordinary remedy of appeal provided under a particular statute as in the instant case

under section 17 of the Payment of Wages Act. It is profitable to reproduce para 4 of the judgement hereunder:

...The object of the Labour Laws is to pass affective orders for the redress of grievances of workmen and if on facts it is found that a workman

had been deceived or forced to enter into some alleged compromise against his wishes which is apparently to his detriment, the authorities under

the laws particularly administering the social justice for the working class cannot be held to be helpless in granting relief in appropriate cases, as

was done by the respondent No. 1 in the instant case on the basis of the judgement of the Supreme Court reported in AIR 1967 SC 272. The writ

jurisdiction cannot be substituted for the ordinary remedy of appeal provided under a particular statute as in the instant case section 17 of the

Payment of Wages Act. The question raised by the petitioner could have been raised by him before the passing of the final order before the

appellate authority if he still felt aggrieved. The petitioner has tried to over reach the arms of law by not filing a regular appeal in accordance with

the provisions of law and after compliance of prerequisite conditions.......

Same view has been taken by Allahabad High Court in case Vishwamitra Karyalaya Press vs. Authority appointed under Payment of Wages act,

AIR 1955 Allahabad 702.

Otherwise also, this writ petition is liable to be dismissed on the ground that petitioners have not challengedthe constitutional validity of section

17(1)(a) of the Act.)Without satisfying the mandate of section 17(1) of the Act, the appeal was not maintainable rather it was ineffective,

incomplete and not competent. Without complying with the said position of law, writ came to be filed in order to avoid the deposit of awarded

amount, which is against the mandate of Payment of Wages Act.

(The writ petition is also liable to be dismissed as disputed questions of facts have been raised therein, which cannot be gone into by this court The

disputed question is whether the respondent No. 1 was engaged as daily wager by the petitioner or not. The apex court in case State of Kamataka

us. KGSD Canteen

Employees Welfare Association, 2006 AIR SCW 212, has held that when serious question of fact is involved, that cannot be gone into by the writ

court. It is profitable to reproduce relevant para of the judgement here under:

In a case of this nature, where serious disputed questions fact were raised, in our opinion, it was not proper for the High Court to embark

thereupon an exercise under Article 226 of the Constitution. The High Court in its judgement relied upon a large number of decisions of this Court,

inter alia, in Reserve Bank of India (supra) and State Bank of India and others vs. State Bank of India Canteen Employees Union (Bengal Circle)

and otiiers (AIR 2000 SC 1518) ignoring the fact that all such disputes were adjudicated in an Industrial adjudication.

Same view was taken by the apex court in case Antonio S.C. Pereira vs. Ricardiria Noronha ID) by L.Rs., 2006 AIR SCW 5155

In view of the above discussions, the.writ petition is not maintainable and is accordingly dismissed along with all connected CMPs'.