Jammu & Kashmir High Court - Srinagar Bench
Director Rural Development And Others vs Assistant Commissioner And Others on 23 April, 2021
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
.....
OWP No. 498/2014
Reserved on: 23.12.2020
Pronounced on: 23.04.2021
Director Rural Development and others
....... Petitioner(s)
Through: Mr. Sajad Ashraf, GA
Versus
Assistant Commissioner and others
....... Respondent(s)
Through: Mr. Rizwan, Advocate
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Quashment of Order dated 7th December 2013, passed by the Authority under Payment of Wages Act, 1936 (Assistant Labour Commissioner) District Anantnag, (for short "Authority") on a claim petition titled Mohammad Maqbool Ganai and others v. Director Rural Development and others, is prayed for in writ petition on hand.
2. The case set up in writ petition is that in the early 90's taking undue advantage of abnormal situation in the valley, the unscrupulous elements made uncouth attempts to cause damage to the public exchequer by trying to gain entry into different departments of the State Government on the strength of fake and forged orders and Rural Development Department was worst hit by such criminal acts. Similarly, it is next stated, respondents 2 to 11 have also manipulated some documents and tried to gain entry into Rural Development Department. Their cases were thoroughly investigated by the agencies and it was found that their appointment orders were fake and forged. They along with other 138 alleged daily rated workers approached this 2 OWP no.498/2014 court with a writ petition, being SWP No.13/1999, for release of wages and regularization of their services, which was disposed of vide order dated 11.01.1999 with the following relief/direction:
"The petitioners shall file a representation before the respondents within two weeks and if they do so, it shall be obligatory upon the respondents to consider and dispose of the same within a period of three months, which period shall be reckoned from the date this order alongwith representation is served on the respondents. Petitioners shall be also paid wages for the period they have worked on the post."
3. It is next submitted by petitioners that ion pursuance of the directions passed vide order dated 11.01.1999 in SWP No. 13/1999, the matter was considered and appointment orders of petitioners were proved fake, and resultantly, the matter was referred to Finance Department constituted by the Government to consider all these cases. In the year 2005, respondents 2 to 11 again filed one more SWP No.658/ 2005 before this Court, on identical grounds, which too met the same fate. It is stated that respondents 2 to 11 after 17 years again filed a vexatious claim under Section 15 of Payment of Wages Act before Respondent No.1 (Assistant Labour Commissioner, Anantnag) claiming therein release of wages with effect from 1997 till 2012. Respondents before Assistant Labour Commissioner - petitioners herein, also filed their objections in opposition to claim petition, insisting that claimants were neither engaged nor worked as daily rated workers, so their claim was sought to be rejected. However, the Authority allowed the claim and passed a direction/order on 07.12.2013, upon petitioners herein to pay an amount of Rs.7,92,000/- to respondents 2 to 11. Aggrieved of the order/direction passed by respondent No. 1 (Assistant Labour Commissioner, Anantnag), the petitioners have come up with writ petition on hand and seek its quashment.
4. Objections have been filed by respondents 2 to 11, in which they insist that writ petition is not maintainable as petitioners are having an alternative efficacious remedy available under Section 17 of the Payment of Wages Act, which is a proper remedy for deciding the subject-matter of the present writ petition. Further, it involves 3 OWP no.498/2014 complicated questions of facts upon which finding has been recorded by the Authority under Payment of Wages Act and the said finding of fact cannot be disputed in extraordinary writ jurisdiction of this Court. It is also contended that petitioners want to avail present remedy in order to circumvent requirements of law on two counts. Firstly, the petitioners have not filed any appeal under Section 17 of Payment of Wages Act before the Competent Authority, i.e., concerned District Judge as the appeal under Section 17 of the Payment of Wages Act is to be filed within 30 days from the date of the order and writ petition before this Court has been filed after four months from the date of order. Secondly, the petitioners want to avoid requirement of prior deposition of the amount payable in terms of the award passed before filing the appeal, hence the petitioners have not approached this court bona fidely and writ petition on this count also merits to be dismissed.
5. I have heard the learned counsel for the parties and considered the matter.
6. Learned counsel for the petitioners submits that the payment of Wages Act is not at all applicable to Rural Development Department because it does not come within the ambit and definition of 'industrial or other establishment' specified in Sub-Clause (a) to (g) of Clause (ii) of Section 2 of the Act. The Authority has gone beyond its jurisdiction and in result has passed an order unsustainable under law. Further, there was no reason and power before the Authority to reopen the case and pass direction in contravention to the orders passed by this Court. He has also submitted that the Authority has allowed the claim by condoning the long delay on irrelevant and unexplainable reasons, the order on this count alone is unsustainable both on facts and law and a claim for payment of delayed wages is to be preferred within 12 months from the date of wages have become due but in the instant case, respondents 2 to 11 have preferred a claim almost after a period of 17 years.
Learned counsel for petitioners submits that neither the evidence has been discussed and appreciated while passing the direction nor have 4 OWP no.498/2014 claimants proved their claim by way of any trustworthy or cogent evidence. The Authority has allowed the claim despite the fact that none of the petitioners have deposed before the court in support of their claim and the Authority has also formulated three issues but has not returned any finding on any of the issues. It is also averred that the Payment of Wages Act is not at all applicable to Rural Development Department because it does not come within the ambit and definition of 'industrial or other establishment' specified in Sub-Clause (a) to (g) of Clause (ii) of Section 2 of the Act. The Authority has gone beyond its jurisdiction and in result has passed an order unsustainable under law and deserves to be quashed. He has also averred that once this Court has finally decided the matter, there was no reason for the Authority to reopen the case and pass direction in contravention to the orders of this Court. The doctrine of res judicata is applied to the case in hand. In terms of proviso to Subsection (2) of Section 15 of Payment of Wages Act, a claim for payment of delayed wages is to be preferred within 12 months from the date wages have become due but in the instant case, respondents 2 to 11 have preferred a claim almost after a period of 17 years; still the Authority has allowed the claim by condoning the long delay on irrelevant and unexplainable reasons.
7. Per contra, learned counsel for respondents submits that respondents 2 to 11 have been genuinely engaged as daily rated workers in the Rural Development Department since the year 1989 and their engagement have been subjected to scrutiny from time to time and have been cleared by all the enquiries and found to be genuinely engaged as daily rated workers in the Department. Respondents have also performed Election Duty in the year 1996 and have been recommended by the Block Development Officer, Shangus (Petitioner No.3) vide communication dated 12.12.2000 for being regularized on account of their performance in the Election Duty in the year 1996.
8. As is discernible from pleadings of the parties, respondents 2 to 11 herein, had approached this Court with a writ petition (SWP no.13/1999), which was disposed of vide order dated 11th January 1999 with a direction to respondents 2 to 11 to file a representation before 5 OWP no.498/2014 the department to be considered within a period of three months, with further direction to pay wages for the period they worked on the post.
9. A contempt petition (Cont no.316/2002) was filed by respondents 2 to 11 along with others before this Court, in which the department made a statement that verification was not received and that the moment Vigilance Organization would certify genuineness of documents, they would lose no time to implement the directions of this Court. In view of the statement made by the department, this Court closed the contempt petition of respondents 2 to 11. Thereafter, in the year 2005, another writ petition, being SWP no.658/2005, is said to have been filed by respondents 2 to 11 along with others before this Court, on the same set of facts as had been taken earlier, in which they sought regularization of their services and placing them in regular establishment of the department retrospectively and pay them all consequential benefits. These imperative facts and aspects of the matter have been overlooked by the Authority while passing impugned order.
10.The Authority has also not taken into account the provisions of Sub- Clause (a) to (g) of Clause (ii) of Section 2 of the Payment of Wages Act, 1936, although insisted by petitioners before the Authority. Sub- Clause (a) to (g) of Clause (ii) of Section 2 provides that industrial or other establishment means any tramway service, or motor transport service engaged in carrying passengers or goods or both by road, for hire or reward; air transport service other than such service 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; dock, wharf or jetty; inland vessel, mechanically propelled; mine, quarry or oilfield; plantation; workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale; establishment in which any work relating to the construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water, or relating to the generation, transmission and 6 OWP no.498/2014 distribution of electricity or any other form of power is being carried on.
In the present case, petitioner-Rural Development Department, as rightly stated by learned counsel for petitioners, does not fall within the ambit of Sub-Clause (a) to (g) of Clause (ii) of Section 2 of the Act as it is not an industry and it does not generate any profits. Once that being the position, the Authority has acted without and/or in excess of jurisdiction vested in it. Before giving an Award, existence of employer
- employee relationship between private respondents and petitioner- department was to be looked into within the parameters of Payment of Wages Act, without which impugned Award appears to be misdirected and is, therefore, liable to be set-aside. Reference in this regard is made to law laid down by this Court, as relied upon by learned counsel for petitioners, in Mohammad Mushtaq v. Authority under Payment of Wages Act, 2007 KLJ 256 : 2007 (1) JKJ 602.
11.There is another submission on behalf of respondents 2 to 11 that writ petition under Article 226 of the Constitution of India, is not maintainable as petitioners have a statutory remedy of Appeal available under the Payment of Wages Act.
It may be, in view of above submission, mentioned here that existence of effective remedy does not oust jurisdiction of the High Court but it is only one of the circumstances that the court should take into consideration in exercising its discretionary jurisdiction under Article 226 of the Constitution. If the order of Authority under the Payment of Wages Act is without jurisdiction and the matter is remanded back for exhausting the remedy available, it will be of no use and will serve no purpose and will only aggravate the agony of parties to receive the verdict of the appellate Authority provided by the Statutes and only thereafter to approach the writ Court. It is well settled that where order of the Authority is patently without jurisdiction, the availability or exhausting of alternative remedy is no bar to invoke extra ordinary writ jurisdiction of the High Court by aggrieved party. Reference in this regard is made to M.G.Abrol v. Shanti Lal and 7 OWP no.498/2014 Company, AIR 1996 SC 197; Tramboo Joinery Private Limited v. Authority under Payment of Wages Act, 1998 SLJ 79.
It is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution on the ground of existence of an alternative remedy. [Vide: Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya Sitapur (UP) and others, AIR 1987 2186].
Another important aspect of the matter is that it has been a firm and vehement stand of petitioners before the Authority that engagement of respondents 2 to 11 along with others has been found fake. However, this important fact of the matter has been overlooked by the Authority while passing impugned Award.
In the case in hand the Authority has not taken into account the provisions of the Payment of Wages Act, 1936, as also peculiar facts and circumstances of the case in its right perspective and, therefore, impugned Award is liable to be set-aside.
12.For the reasons discussed above, writ petition succeeds and is, accordingly, allowed. Impugned Order dated 7th December 2013, passed by the Authority under Payment of Wages Act, 1936 (Assistant Labour Commissioner) District Anantnag, on a claim petition titled Mohammad Maqbool Ganai and others v. Director Rural Development and others. The matter is remanded back to the Authority for fresh enquiry in accordance laws/rules.
(Vinod Chatterji Koul) Judge Srinagar 23.04.2021 Qazi Amjad, Secy Whether approved for reporting? Yes/No QAZI AMJAD YOUSUF 2021.05.06 11:33 I attest to the accuracy and integrity of this document