Dismissed

Sardar Charanjit Singh and Others v. the Assistant Labour Commissioner Acting as Prescribed Authority,Payment of Wages Act,Lko. and Ors.

Allahabad HC11 Jan 2023/185/2023

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging ex-parte orders under the Payment of Wages Act. It held that despite no jurisdiction being raised before the authority in the recall application, the petitioners cannot first raise that ground before the writ court given the principle of exhaustion of remedies.

What did the court decide?

The writ petition was dismissed; a further order noted that other remedies may be pursued.

Sardar Charanjit Singh and Others Vs the… — Writ and Judicial Review | Allahabad HC (2023)

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Court No. - 7

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Case :- WRIT - C No. - 185 of 2023 Petitioner :- Sardar Charanjit Singh And Others Respondent :- The Assistant Labour Commissioner Acting As Prescribed Authority,Payment Of Wages Act,Lko. And Ors. Counsel for Petitioner :- Pritish Kumar,Shantanu Gupta Counsel for Respondent :- C.S.C.,Piyush Srivastava,Shobhit Nigam

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Hon'ble Abdul Moin,J.

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Heard learned counsel for the petitioners, learned Standing Counsel for the respondents no. 1 and 3 and Shri Shobhit Nigam, learned counsel for the respondent no. 2.

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The instant petition has been filed challenging the orders dated 14.01.2019 and 09.12.2022 passed by the Assistant Labour Commissioner under the provisions of the Payment of Wages Act, 1936 (hereinafter referred to as the Act, 1936), a copy of the said orders are annexures 1 and 2 respectively to the petition. A further prayer is for quashing of the recovery citation issued by the respondent no. 3.

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The case set forth by the petitioners is that an application under Section 14 of the Act 1936 was filed by the respondent no. 2. No notice of the said application was served upon the petitioners and the matter was decided ex-parte vide the order dated 14.01.2019. It is only when the recovery notice was issued by the authority and the same was served upon the petitioners that they came to know about the ex-parte order dated 14.01.2019. The petitioners immediately filed an application for recall of the said order which has been rejected by means of the order dated 09.12.2022.

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Being aggrieved the instant petition has been preferred.

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A preliminary objection has been taken by Shri Shobhit Nigam, learned counsel appearing for the respondent no. 2 that there is statutory remedy of appeal under Section 17 of the Act 1936 against the order impugned and hence keeping in view the

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aforesaid statutory remedy, the instant writ petition would not be maintainable.

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Responding to the same Shri Pritish Kumar and Shri Shantanu Gupta, learned counsels for the petitioners argue that as the order impugned dated 14.01.2019 is patently without jurisdiction the writ petition would be maintainable before the writ court keeping in view the law laid down by Hon'ble the Apex Court in the case of Magadh Sugar and Energy Ltd vs State of Bihar reported in AIROnline 2021 SC 770 in as much as where an order is patently without jurisdiction, a writ petition would be maintainable despite availability of statutory alternative remedy.

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Having heard learned counsel for the parties on the preliminary objection and having perused the record what emerge is that an application under Section 14 of the Act 1936 was filed by the respondent no. 2. The matter was decided exparte vide the order dated 14.01.2019. The petitioners claim to have come to know of the said proceedings and order only when the recovery notice was issued and served on them. They filed an application for recall which has been rejected by an order dated 09.12.2022. Being aggrieved the instant petition has been preferred.

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The ground for not availing the statutory remedy of appeal under Section 17 of the Act 1936 being taken before this Court is that the authority did not have jurisdiction to entertain and decide the matter.

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Once the petitioners chose to file an application for recall then it is not that the petitioners have straightaway approached this Court challenging the order passed by the authority raising the point of jurisdiction in as much as they filed an application for recall of order dated 14.01.2019 which has been rejected

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vide order dated 09.12.2022 and challenging both those orders, the instant petition has been filed.

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This aspect of the matter should have been first indicated to the authority itself by means of an application for recall which admittedly was filed before the authority concerned which application has been rejected vide the order date 09.12.2022. A perusal of the application for recall, a copy of which is annexure 14 to the petition, would indicate that the aforesaid ground of the authority not having justification was never taken before it. Consequently, despite the petitioners having had an opportunity of raising the said ground before the appropriate authority they failed to raise the said ground before the authority concerned itself. As such it cannot be said that they can be permitted to take the ground of the authority having no jurisdiction for the first time before the writ court despite having had an opportunity of raising the said ground before the authority but having failed to raise the same.

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As regards the judgement of Hon'ble the Apex Court in the case of Magadh Sugar (supra) , the Apex Court in the said judgement has held as under:

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" 19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai 19 and Harbanslal Sahni v. Indian Oil Corporation Ltd 20. Recently, in Radha Krishan Industries v. State of Himachal Pradesh & ors 21 a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:

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“28. The principles of law which emerge are that:

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(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

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(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

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(iii) Exceptions to the rule of alternate remedy arise where

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(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

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(b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

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(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

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(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion19 20 21

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(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” (emphasis supplied)

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The principle of alternate remedies and its exceptions was also reiterated recently in the decision in Assistant Commissioner of State Tax v. M/s Commercial Steel Limited 22. In State of HP v. Gujarat Ambuja Cement Ltd 23 this Court has held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction.

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This Court observed:

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“23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v ITO [(1970) 2 SCC 355: AIR 1971 SC 33] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition.”

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From a perusal of the aforesaid judgement and the principle of law as have been laid down by the Apex Court in the aforesaid judgement it emerges that the exceptions to the rule of alternative remedy have been carved out by the Apex Court where (a) the writ petition has been filed for enforcement of fundamental rights protected by Part (III) of the Constitution of India, (b) where there has been violation of principles of natural justice, (c) the order or proceedings are wholly without jurisdiction or (d) the vires of the legislation has been challenged.

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In the instant petition, the exceptions as per (a), (b) and (d) are not attracted and the ground taken for not availing the alternative remedy of appeal had been indicated as the authority having no jurisdiction under the provisions of the Act 1936. Incidentally, as already indicated above, the petitioners have not approached this Court directly aggrieved against the

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order dated 14.01.2019 rather they filed an application for recall before the authority which has been rejected vide the order dated 09.12.2022. In the said application the ground of the authority not having jurisdiction to entertain and decide the matter under the Act 1936 has not been taken.

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An averment has been made in paragraph 7 of the said application, a copy of which is annexure 14 to the petition, that in the proceedings initiated by the respondent no. 2 the wages being claimed are beyond the limit prescribed under the Act, 1936. However while making the said averment it has not been indicated that the authority would not have the jurisdiction rather it has been prayed that the order passed by the authority be recalled. The authority while rejecting the application for recall has considered the fact that after the initial order dated 14.01.2019 was passed the petitioners have paid a certain amount as due to the respondent no. 2 in cash and that further have also given three cheques which have bounced.

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These facts taken together are all indicative of the fact that the petitioners have nowhere raised the objections of the Authority having no jurisdiction to entertain and decide the matter under the provisions of the Act 1936 rather have acquiesced to the jurisdiction of the authority under the Act 1936 by making payments. The fact of the authority having no jurisdiction to entertain and decide the matter has also not been indicated while filing the application for recall and thus even the exception as given by the Apex Court in the case of Magadh Sugar (supra) namely the order or proceedings being wholly without jurisdiction is also not attracted in the facts and circumstances of the case, more particularly, taking into consideration the contention of the petitioners in the recall application before the authority concerned.

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Considering the aforesaid, no ground for interference is made out. The petition is dismissed . However, it is open for the petitioners to pursue other remedies as may be available to them under the law.

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Order Date :- 11.1.2023 J.K. Dinkar

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Digitally signed by :- JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench

Sardar Charanjit Singh and Others v. the Assistant Labour Commissioner Acting as Prescribed Authority,Payment of Wages Act,Lko. and Ors.

Case brief

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Sardar Charanjit Singh and Others v. the Assistant Labour Commissioner Acting as Prescribed Authority,Payment of Wages Act,Lko. and Ors.

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