Nirmal Singh, J. - (1.) IN this petition, the petitioner has prayed for quashing the order dated 4.5.1984 passed by the authority under the Payment of Wages Act, 1936 (Labour Officer -cum -Conciliation Officer), His -sar Circle, Hissar vide which the application of respondent No. 2 was allowed.
(2.) THE case set up by the petitioner is that Anand Samp -Respondent No. 2 was appointed as Secretary for the Co -operative Credit and Service Society in the year 1974. The service of respondent No. 2 was governed under the Haryana State Control Co -operative Banks (Staff Service Common Cadre) Rules. 1975 (hereinafter referred to as 'the Rules'), Respondent No. 2 submitted his resignation from the service on 6.8.1981. The resignation was accepted and the same was received in the office of the petitioner on 10.8.1981. The resignation of respondent No. 2 was accepted by the petitioner on 13.9.1982 with effect from 6.8.1981, the date on which respondent No. 2 tendered his resignation. Respondent No. 2 withdrew his resignation vide letter dated 9.10.1982. The same was received on 11.10.1982. It was informed to the respondent on 17.10.1982 that his resignation has already been accepted. Consequently his request cannot be considered and accepted. It was further averred that after a lapse of more than two years respondent No. 2 moved an application under Section 15(2) of the Payment of Wages Act (hereinafter called 'the Act') and claimed the back wages which had not been paid with effect from 1.1.1982 to 30.3.1983. Alongwith the application moved by the respondent, the respondent attached a schedule relating to the wages due from the petitioner. The petitioner contested the application. The authority under the Payment and Wages Act allowed the application vide impugned order Annexure P -9. The petitioner impugned the order on the following grounds ; - "i) That respondent No. 1 has had no jurisdiction to' pass the impugned order inasmuch as the bare perusal of the application and Section I read with Section 2 of the Payment of Wages Act, does not cover the respondent under the Payment of Wages Act. Consequently, the impugned order is void and without jurisdiction. ii) That respondent No. 1 after holding that the application is barred by time, still without assigning any fresh cause or spelling out much less believing or there being an iota of evidence on the record inspite of the fact that there was no prayer or cause shown for condonation of delay has condoned the delay. Thus, the impugned order is illegal, arbitrary and void having been passed on a stale alleged claim barred by time. iii) That the respondent No. 1 has ignored the admitted fact by respondent No. 2 in a statement before the Authority i.e. respondent No. I that he never recorded his presence anywhere since the dale of his resignation. iv) That section 15(3) of the Payment of Wages Act provides that in case of delayed wages, maximum compensation which can be awarded is Rs. 25/ -and that too after a finding is relumed that the payment of wages has been delayed for extraneous considerations. Here, no finding has been returned with respect to the dispute much less of a bona fide nature and he treated the payment of delayed wages as deducted amount which was neither the case of respondent No. 2 nor was ever put up to trial nor was pointed out to the petitioner and has arbitrarily imposed a penalty of 4 times the amount of delayed wages, amounting to Rs. 97,227 -50 and further assessed the delayed wages at Rs. 19,445 -50. v) That respondent No. 2 was never given selection grade and inspite of that respondent No. 1 assumed thai he is entitled for the selection grade. vi) That respondent No. 1, on surmises and conjectures, has felt the necessity of seeing the internal noting of the petitioner bank from the date of resignation of respondent No. 2 till the date of passing of the forma! order which was never issued. There is not an iota of evidence on the record to show that the acceptance of resignation has been antedated nor there is any allegation of mala fide against the officers of the bank. vii) That the impugned order has been passed without there being any evidence on the record for the delayed wages and calculated delayed wages amounting to Rs. 19,445.50 and treated them perversely as deducted wages in order to facilitate his own designs to impose a penalty of unconscionable nature of Rs. 97,227 -50. This action of respondent No. 1 amounts to a legal and factual mala fide for the reasons best known to him. viii) That the impugned order of respondent No. 1 is bad for reasons that the respondent No. 2 was never in the service of the petitioner relating to the period in dispute in view of his own letter of resignation. ix) Thai the impugned order is non -speaking order which is liable to be quashed. In the written statement filed on behalf of respondent No. 2, a preliminary objection has been raised to the maintainability of the writ petition on the ground that the petitioner has failed to avail alternative remedy under Section 17 of the Payment of Wages Act. On merits, it was pleaded that respondent No. 1 was having jurisdiction to pass the impugned order and the impugned order is legal and valid one.
(3.) SHRI B.D. Sharma, learned counsel for respondent No. 2 submitted that the petitioner has failed to avail the remedy of appeal as provided under the Act, therefore, the writ petition should be dismissed. He further submitted that the petitioner has not availed the remedy of appeal intentionally as the appellant had to deposit the amount payable under the direction given by the Authority under Section 15(3) of the Act.;