Mohd. Nasir and Another vs District Judge and Another

O.P. Sharma, J.—Both these petitions involve common question of law and fact because what arises for consideration is, whether in the

absence of compliance of Section 17(1-A) of the Payment of Wages Act, an appeal could be entertained u/s 17 of the Act. Section 17(1-A)

reads as under:

17(1-A): No appeal under Clause (a) of Sub-section (1) shall lie unless the memorandum of appeal is accompanied by a certificate by the

authority to the effect that the appellant has deposited the amount payable under the direction appealed against.

This provision has been held to be mandatory. It is admitted that the (sic) before the appellate Court did not (sic) the provision. This fact was

noticed by the appellate Court by observing as under:

Under Section 17(1-A) of the Act no appeal shall lie unless memorandum of appeal is accompanied by a certificate by the authority to the effect

that the appellant has deposited the amount payable under the direction appealed against. Therefore, it is a mandatory provision under the Act that

the appellant while preferring an appeal against the order of the wages authority awarding compensation shall deposit the awarded amount with the

appellate Court since the appellant has not deposited such an amount the appeal apparently is not maintainable.

The observation notwithstanding the appeals were allowed by the judgment dated November 15, 1999 after setting aside the award.

Mr. Salaria, learned counsel appearing for the petitioner submits that appellate Court having held Section 17(1-A) mandatory, the judgment

impugned is erroneous because the appeal had been dismissed. Ms. Seema Shekhar, GA objected to the maintainability of the petitions under

Article 226 read with Section 103 of the State Constitution. According to her, the Court cannot exercise supervisory jurisdiction while exercising

powers of judicial review.

Since no second appeal is provided, the only remedy available to the petitioner is under the Constitution. In Achutananda Baidya Vs. Prafullya

Kumar Gayen and others, , their Lordships held that:

''The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but

such powers include within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure

that the Courts and Tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this

Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction,

refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of

authority or discretion, a patent error in procedure, arriving a finding which is perverse or based on no material, or resulting in manifest injustice....

Article 227 corresponds to Section 104 of the State Constitution. So as noticed above, the appeal was not competent in the absence of

compliance of Section 17 (1-A) of the Payment of Wages Act. The learned District Judge, therefore, acted illegally in allowing the appeals after

holding them non-maintainable.

The question is whether a petition under Article 226 of the Constitution of India can be treated as petition u/s 104 of the State Constitution. It is

substance of the petition and nomenclature, which should determine the jurisdiction of the Court to exercise supervisory powers. In Pepsi Foods

Ltd. and Another Vs. Special Judicial Magistrate and Others, , their Lordships while rejecting similar arguments held as under:

Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it

possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the

appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or Section 482 of the

Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but sometimes for immediate relief Section 482

of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the sub-ordinate Courts. The

present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution"".

In view of the above, these petitions are treated as petitions u/s 104 of the Constitution of Jammu and Kashmir, as the District Judge has acted

illegally.

Although the learned District Judge found that Section 17(1-A) of the Payment of Wages Act was mandatory yet he allowed the appeal and set

aside the award passed by the authority under the Payment of Wages Act.

As noticed above, the District Judge (Shri K.K. PROACH) has himself returned a finding that Section 17(1-A) is mandatory and the appeals

were not maintainable. Yet he entertained the appeals and set aside the order impugned. Why he did so, is a matter of inference. But the judgment

being without jurisdiction, as the appeals were not maintainable cannot be sustained. Accordingly, these petitions are allowed and both the

judgments are set aside. I make the order accordingly.