EX-ENGINEER IRRIGATION DIVISION Vs. AUTHORITY UNDER PAYMENT OF WAGES ACT
LAWS(J&K)-2006-11-13
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 03,2006

Ex -Engineer Irrigation Division Appellant
VERSUS
AUTHORITY UNDER PAYMENT OF WAGES ACT Respondents

JUDGEMENT

BASHIR A.KIRMANI, J. - (1.) ADMITTED on 11.12.2000, this petition seeks quashment of award passed by authority appointed under Payment of Wages Act on 15.02.2000 in respondents favour to the tune of Rs. 30,100/ - on account of unpaid wages due to her in lieu of services rendered to petitioner -department. Grounds pleaded are that since the wages claimed by respondent were time bar, the authority below had no jurisdiction to maintain the claim particularly because respondents engagement with petitioner -department was not valid nor she had rendered any service.
(2.) IN her reply the respondents while objecting to the maintainability of writ petition on the ground that petitioners had not availed of the appellate remedy available to him under Payment of Wages Act, has also pleaded that the authority below had only directed payment of wages in her favour for services rendered and as such, the impugned award was well placed in fact and law. During course of submissions, counsel appearing for the 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 amount...as 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 of 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 judgments 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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