Mohd. Asraf Beigh vs Ab. Rashid Mir

R.C. Gandhi, Judge

Petitioner seeks to quash, by means of this petition order dated 20.10.2001 passed by the Authority under Payment of Wages Act (Assistant

Development Commissioner, Anantnag) (hereinafter called ""the Authority"") whereby he has passed an award of Rs. 1,48,500/- as wages in favour

of the applicants, respondents herein, for the period 4/90 failing which it shall be recovered in terms of Section 15[5] [6] of Payment of Wages

Act.

The petitioner has challenged the award on the ground that the he has not been heard by the Authority and the award is based on flimsy and

non-existing evidence.

I have heard learned Counsel for the parties and perused the record.

Perusal of the impugned award reveals that the petitioner/non applicant before the Authority has chosen to remain absent and an ex parte award

has been passed.

At the very outset, learned Counsel for the respondents has submitted that the writ of certiorari can not be issued by the Court as the petitioner

has not availed of the Statutory remedy available to him u/s 17 of the payment of Wages Act, which envisages that the award is applicable before

the District Judge.

Learned Counsel for the petitioner, in rebuttal, has submitted that the award passed by the Authority is without jurisdiction, therefore, the writ

petition is maintainable.

Learned Counsel for the petitioner, in support of his plea has relied upon the Division Bench judgment of this Court delivered in case tilted

Tramboo Joinery Private Limited V. Authority under Payment & Wages Act reported in 1998 SLJ 78:

The facts of the case before the Division Bench were that the appellant Tramboo Joinery Private Limited informed respondent no. 2 herein that due

to the shortage of raw material he and others will be laid off and not paid wages during the lay off period and as soon as raw material is arranged,

they will be taken back in service. Other employees were taken back but respondent no. 2 was not permitted to resume the services. He

approached the Authority for declaring retrenchment as illegal. Non applicant before the Authority did not appear and ex parte award was passed

directing that the retrenchment is illegal. Writ petition was filed. The Court refused to issue a writ on the ground that the statutory remedy of appeal,

available to respondent no. 2 under the payment of Wages Act, has not been exhausted and instead approached the writ court invoking extra-

ordinary jurisdiction. The Letters Patent Appeal was preferred against the order of Learned Single Judge and on perusal of the legal position, the

Bench held in Para 14 of the judgment as under:-

It is clear from the bare reading of 2A of the Industrial Disputes Act that an action of retrenchment of respondent no. 2 is an industrial dispute

and the Authority under the payment of wages Act has no jurisdiction to entertain and deal with the dispute of retrenchment.

In the aforesaid judgment, the Authority was not having jurisdiction to entertain the dispute of retrenchment. In the present case, the Authority

has decided the dispute of wages and was possessed of the jurisdiction to adjudicate and determine the dispute.

Section 17 of the Payment of Wages Act provides Statutory remedy by way of appeal to challenge the award passed by the Appellate

Authority. The petitioner has not exhausted the statutory remedy of appeal and invoked the extraordinary jurisdiction of the Court. This proposition

of law has been settled by the Supreme court that where the Statutory remedy is available the court should not entertain the petition, in case

reported in 1982 SC 2186.

It is not in dispute that where the court acts without jurisdiction, the alternate remedy is not an absolute bar to the maintainability of the writ

petition. In the case in hand, the Authority was not bereft of the jurisdiction. Therefore, the argument of learned counsel for the petitioner that the

court has acted without jurisdiction in untenable. The plea that the award has been passed by the Authority on flimsy ground can not also be taken

to be in law that the authority has no jurisdiction.

For the reason given above, the writ petition having found without any merit and dismissed.