Decided on November 03,2006

Mohammad Mushtaq Appellant


BASHIR A.KIRMANI, J. - (1.) ADMITTED on 09.05.2002, this petition impugns the award dated 14.07.2001 passed by authority appointed under Payment of Wages Act in favour of respondents 3 to 22 to the tune of Rs. 1,21,735/ - on account of unpaid wages due to them in lieu of services rendered by them to the petitioner -department. Grounds pleaded are that the claim of respondents aforesaid was a total fraud as they had received whatever wages were due to them, through respondent No. 3 who engaged other respondent to execute the work of construction of house hold Latrines under allotment order No. 927 -34/RSP/95 -96 dated 05.01.1996 under a special scheme of Border Area Development Programme (BADP) which was undertaken during years 1994 -93, and 1995 -96 in Block Uri for Village Nambla and as such, claim projected before the authority was bad which was wrongly allowed particularly because respondents 4 to 22 were never engaged by petitioner -department but respondent No. 3 who had been paid all the wages by the department for construction of forty -four Latrines under the aforesaid scheme, but despite that chose to institute the time bar claim which was entertained by the authority beyond period of limitation even without notice to petitioners.
(2.) IN their reply respondents 3 to 22 while objecting to maintainability of writ petition on the ground that petitioners had not exhausted the appellate remedy available to them under Section 17 of the Payment of Wages Act without which petition could not be filed, they have also pleaded that their claim before the appointed authority below was well founded and fully justified in fact and law. During course of submission, counsel appearing for parties have reiterated the contents of their respective pleadings. I have heard learned Counsel and considered the matter. The first question that falls for consideration is whether in view of the alternate appellate remedy available to petitioners under Section 17 of the Payment of Wages Act, the writ petition could be maintained without exhausting the same and if so in what circumstances. In this behalf reference may be made to the precedent to find an answer to the question: I. In 'M.G. Abrol v. Shanti Lal and Company' reported as AIR 1996 SC 197. Hon'ble Apex Court while considering the question was pleased to hold in Para 15 of judgement among other things as under: Lastly it was argued that the High Court should not have exercised its jurisdiction under Article 226 of the constitution as the respondents had an effective remedy by way of appeal...but the High Court rightly pointed out that respondents had no effective remedy for they could not file an appeal without depositing the huge a condition precedent imposed on them that apart.... The existence of effective remedy does not oust the jurisdiction of the High Court but it is only one of the circumstances that the court should take into consideration in exercising it discretionary Jurisdiction under Article 226 of the Constitution. In this case, the High Court thought fit to exercise its jurisdiction under Article 226 of the Constitution and we do not see any exceptional circumstance to interfere its discretion. II. The question was also considered by Division Bench of this Court in 'Tramboo Joinery Private Limited v. Authority under Payment of Wages Act' reported as 1998 S.L.J. Page 79 wherein while considering the question the bench observed as under: Dealing with the contention of the learned Counsel for the respondent that the appellant had approached the writ court without exhausting efficacious remedy of appeal and the writ petition has rightly been dismissed, the writ court while recording such finding for dismissal of the petition has placed reliance upon the judgements of the Hon'ble Supreme Court reported in AIR 1969 -556 and AIR 1985 p.330. We have pursued the judgements. The Hon'ble Supreme Court has laid down law in AIR 1969 p.556 while dealing with a particular situation holding that the writ court should refuse to entertain the application where efficacious alternative remedy is available. In AIR 1985 S.C. 330, it is observed that where the Court is convinced that there are good and sufficient reasons to by pass the alternative remedy provided by the Statute, the extra ordinary jurisdiction can be invoked and exercised. In the present case, the order of the Authority under the Payment of Wages Act is without jurisdiction and in case 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 the 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 law that where the order of the Authority is patently without jurisdiction, the availability or exhausting of the alternative remedy is no bar to invoke the extra ordinary writ jurisdiction of the High Court by the aggrieved party. It is further held by the Hon'ble Supreme Court in case title Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya Sitapur (UP) and Ors.reported in AIR 1987 page 2186 in para 12 of the judgement which is extracted as; 'The next question that falls for our consideration is whether the High Court was justified in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy it is true that there was an alternative remedy for challenging the impugned order by referring the question to the Chancellor under Section 68 of the UP State Universities Act. 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. The Writ Court has not appreciated this aspect of the law laid down by the Hon'ble Supreme Court holding that where the order of the Authority is without Jurisdiction the High Court should not refuse to entertain the writ petition and exercise extra ordinary with jurisdiction under Article 226 of the Constitution of India. We feel that on this score the order under appeal deserves to be interfered and set aside.
(3.) A commutative reading of the aforesaid judgements reveals that in cases where the Authority under Payment of Wages Act has acted without or in excess of jurisdiction or has failed to exercise jurisdiction vested in it or otherwise caused failure of justice, the availability of effective alternate remedy would not amount to a circumstance sufficient enough for not exercising jurisdiction under Article 226 of the Constitution. Objections taken to the award of authority on factual side may however, be better left to be agitated before the appellate authority.;

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