Om Prakash Sharma vs Prescribed Authority Asstt Labour ... on 10 August, 2017

[Cites 3, Cited by 1]

Uttarakhand High Court

Om Prakash Sharma vs Prescribed Authority Asstt Labour ... on 10 August, 2017

The petitioner in this writ petition has questioned the order dated 21st September, 2007, whereby, while entertaining the application under sub-section (2) of Section 15 of the Payment of Wages Act, 1936, initiated at the behest of respondent No. 2, the learned Prescribed Authority, as constituted under the said Act, had issued notices to the petitioner calling upon him to submit his reply by 28th September, 2007, which is impugned in the writ petition.

On perusal of the writ petition and grounds taken therein, the petitioner has tried to project that the proceedings which has been drawn before the Prescribed Authority was not maintainable because of legal embargo, as same is not maintainable against employee who is a private individual who engages a private employee. In the present case, according to the petitioner, respondent was engaged to look after the construction site of house as a private guard, 2 thus, the provisions of Act will not apply and operation of the impugned order dated 21st September, 2007 was stayed by this Court on that premise.

Pleadings have been exchanged. Today, the argument proceeded. During the course of argument, a legal issue which crept in as to whether in view of sub-section (4) of Section 1 of the Act, the proceedings by way of impugned order could have culminated by the Prescribed Authority. But, it is very sadistic to observe that the counsel for the petitioner at the inception of the argument never address upon this Court that he was questioning the order by virtue of which the Prescribed Authority has issued notice only, it was not an adjudication on the issue by an authority on merit.

When the Court proceeded to dictate the judgment and gone through the records, then it revealed that the order impugned is nothing but an order by which notices were issued calling upon the petitioner to submit his reply. Against the issuance of the notice, it is settled preposition of law that no writ petition is maintainable against notice unless authority having jurisdiction to issue the notice, hence, in the present case, competence has not been questioned by the petitioner of the authority who had issued the notice and that too in the light of the reliefs claimed by the petitioner in the writ petition as he has not questioned the proceedings on the ground of competence. He has confined his relief to the notice dated 21st September, 2007.

This Court holds that against the issuance of the notice under the Act, all the pleas taken by the petitioner in the writ petition could be agitated before the Prescribed Authority itself.

Though, the petitioner has tried to agitate the issue pertaining to the maintainability while challenging the notice, it is a considered opinion of this Court that the validity of a notice could only be challenged invoking the writ jurisdiction under Article 226 of the Constitution of India only when the authority issuing the notice lacks jurisdiction under law. But when the issue comes pertaining to the maintainability of the proceedings, it is entirely a different concept then a challenge given to a notice because the question of maintainability would always be a mixed question of fact and law which could only be appreciated by participating in the proceedings before the authority issuing the notice by raising the plea of maintainability rather than rushing to this Court and filing a writ petition.

We, as a family of legal fraternity, owe certain responsibility towards the institution itself. The only art which an Advocate has to adopt and, particularly at the High Court level, is the interpretation of law and not twisting of facts. I express my anguish the manner in which the argument has been proceeded with.

The writ petition is dismissed.

(Sharad Kumar Sharma, J.) 10.08.2017 Shiv

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Uttarakhand High Court