Vatika Garden Retreat vs District Judge, Gurgaon (Haryana) and others

V.S. Aggarwal, J.—Vatika Garden Retreat, for short "the petitioner" seeks quashing and setting aside the order passed by the Authority under the Payment of Wages Act, 1936 (for short "the Act") dated January 31, 1996 and that of the Appellate Authority, namely Additional District Judge, Gurgaon, dated November 20, 1997. The Authority under the Payment of Wages Act had held that the respondent-workmen are entitled to their wages and overtime payments awarding compensation of Rs. 25/- to each respondent and Rs. 300/- as costs.

The relevant facts are that respondents No. 3 to 17 had submitted an application before the Authority appointed under the Payment of Wages Act claiming Rs. 2,23,900/- on account of earned wages and overtime along with penalty. Their claim was that they were employees of the petitioner but had not been paid wages for the period in dispute as well as over time. In the reply, the petitioner had denied that the respondents referred to above were its employees. It was asserted that the petitioner had never employed them nor is liable to the claimed wages. The precise defence offered was that the services of the workmen had been hired through security contractor Brij Kishore Singh. The contractor had been paid.

The learned Authority framed the issues and held that there was relationship of employer and employee between them. It was further held that the private respondents were entitled to their wages and overtime payment which has not been paid. The application accordingly was allowed. An appeal was filed in the Court of learned Additional District Judge, Gurgaon. Learned Additional District Judge heard the appeal and approved the findings of the Authority under the Payment of Wages Act.

In the writ petition, the petitioner had submitted that it had the requirement of certain Security Guards. The services of contractor Shri Brij Kishore Singh were engaged. He was to provide the Security Guards. Payment was made to Shri Brij Kishore Singh. Security Guards left the services of the contractor abruptly and filed an application before the Authority under the Payment of Wages Act. The Authority under the Payment of Wages Act had no jurisdiction with respect to the claim of the private respondents because the said Act is applicable only in case of factories or such other establishments to which the Act is made applicable by virtue of the notification published by the Central Government. It was denied that overtime was payable.

Respondents No. 3 to 17 (Private Respondents) filed the reply and contested the claim. It was asserted that the question of jurisdiction of the Authority under the Payment of Wages Act was never raised at any time. It was denied that there is no relationship of employer and employee between the parties. In any case, the contention raised was that the Authority under the Payment of Wages Act had the jurisdiction to entertain the said controversy.

During the course of arguments, learned counsel for the petitioner insisted that there was no relationship of employer and employee between the parties and consequently the impugned orders cannot be sustained. According to him, as already referred to above, services of the respondents were engaged only through Brij Kishore Singh who is a contractor.

The said contention of the learned counsel is simply stated to be rejected. The Authority under the Payment of Wages Act had framed an issue as to whether there is a relationship of employer and employee between them. Evidence was allowed to be produced. On appraisal of evidence, certain findings were arrived at. It was held that respondents No. 3 to 17 were the employees of the petitioner. The finding of fact was approved by the learned Additional District Judge, Gurgaon. Once the findings of fact have been arrived at on appreciation of evidence and the findings are not erroneous or absurd and there is no misreading of evidence, the High Court in exercise of its extraordinary writ jurisdiction will not interfere. Consequently, the said plea of the learned counsel for the petitioner must be held to be devoid of merit.

The main stay of the argument advanced was that the provisions of the Payment of Wages Act are only applicable if it is shown that the petitioner was a factory or an industrial or such other establishment to which the Act is made applicable. There was no controversy in this regard. The controversy was as to whether the petitioner was an industrial or other establishment within the meaning of Payment of Wages Act, 1936. The learned counsel for the respondents contended that no such plea had been taken before the Authority under the Payment of Wages Act and should not be allowed to be raised here for the first time. But we know that the questions which goes to the root of the jurisdiction of the Court can be raised at any time, provided the questions are purely of law and no further evidence is required to be taken. u/s 2(ii) of the Payment of Wages Act, 1936, "industrial or other establishment" has been defined in the following words :-

"(a) tramway service, or motor transport service engaged in carrying passenger or goods or both by road for hire or reward; (aa) air transport service other than services belonging to or exclusively employed in the military, naval or air forces of the Union or the Civil Aviation Department of the Government of India.

(b) dock, wharf or jetty;

(c) inland vessel, mechanically propelled :

(d) mine, quarry or oil-field

(e) plantation;

(f) workshop or other establishments in which articles are produced, adapted or manufactured with a view to their use, transport or sale;

(g) establishment in which any work relating to the construction, development or maintenance of buildings, roads, bridges or canals, or relating to operation connected with navigation, irrigation, development or maintenance of buildings, roads, bridges or transmission (sic) and distribution of electricity or any other form of power is being carried on.

(h) any other establishment or class of establishment which the Central Government or a State Government may, having regard to the nature thereof, the need for protection of persons, employed therein and other relevant circumstances, specify, by notification in the Official Gazette.''

A bare reading of the aforesaid provisions would reveal that under clause (f) any establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale would bring the establishment within the mischief of the definition of industrial or other establishment. There is no material placed on the record by the petitioner that no articles are manufactured or produced by it. It would be a question of fact whether any articles are produced or manufactured or not. Once it is a mixed question of fact and law and there is no material on the record, this Court will not be justified in interfering. If it was to be argued on the basis of admitted facts, the contention of the petitioner could not succeed. Therefore, at this stage, the said contention cannot be permitted to be probed further in the absence of any basis of that effect.

In that event, the attention of the Court was drawn to the decision of this Court in the case of K. L. Garg v. The New India Assurance Co. Ltd., Abohar and Others 1991 (1) RSJ 687, but reliance on the same is totally misplaced. Herein, this Court was basically concerned with industrial or other establishment. That is not the controversy raised in the present case and consequently the contention of the learned counsel for the petitioner cannot succeed.

As an off-shoot of the reasoning given, the writ petition being without merit must fail and is accordingly dismissed.