GH MOHD HAJI Vs. GH RASOOL HAJI

JUDGEMENT

(1.) BY means of this petition, the petitioner has challenged the validity of an order passed on 5th of November, 1980, by the Judicial Magistrate 1st class Anantnag, decling to execute an award passed by the payment of wages Act authority. The petitioner has styled this petition as a revision petition and in the alternative, a writ petition under Section 103 of the Constitution of Jammu and Kashmir. The event leading up to this petition are these : On 5 -12 -1974, the petitioner moved an application before the Assistant Labour Commissioner against the present respondent for the recovery of arrears of wages of Rs. 300/ - mansons amounting to Rs 5.00/ - The Assistant Labour Commissioner allowed the application on 2 -4 -1975 and passed an award in respect of the amount sued for and additional sum of - Rs. 300/ - by way of compensation. Subsequently, the award was sent for execution to the Judl Magistrate, first Class Anantnag, By means of the impugned order, he has declined to executed the award on the ground that it is invalid. As I am of the opinion that he had no jurisdiction to go into the validity of the award, it will not be necessary to mention the grounds on which he has found the award to be invalid Section 15(5) of the payment of wages Act, provides as under: Any amount directed to be paid under this Section may be recovered : If the authority is a magistrate, by the authority as if it were a fine imposed by him as magistrate, and, (b) If the authority is not a magistrate, by any magistrate to whom the authority makes the application in this behalf, as if it were a fine imposed by such magistrate." c

(2.) ON the terms of this Section, it is clear that the amount of the award is recoverable as fine imposed by a court. The provisions governing the recovery of fine are contained in Section 386 Cr. p. C. reads thus: - "warrant forlevy of fine. (i) Whenever an offender has been sentenced to pay a fine, the court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may - (a) Issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender: (b) issue a warrant to the Collector of the District authorising him to realize the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter ; Provided that if the sentence directs that in default, of payment of fine, the offender shall be imprisoned and if such offender has undergone the whole of such imprisonment, in default, no court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so. (2) (The Government) may make rules regulating the manner in which warrants under sub -Section (1) clause (a) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the court issue a warrant to the Collector under Sub -section (1), cl. (b) such warrants shall be deemed to be a decree and the Collector to be the decree holder, within the meaning of the Code of Civil Procedure, 1977, and the nearest civil court, by which any decree for a like amount could be executed shall, for the purpose of this Code, be deemed to be the court which passed the decree and the provisions of that Code as to execution of of decrees shall apply accordingly ; Provided) that no such warrant shall be executed by the arrest or detention in prison of the offender."

(3.) IN accordance with this Section, the court imposing the fine may either itself recover the amount or direct the recovery by the Collector. When the second mode, is adopted the warrant of recovery shall be treated as decree of a civil court. On this premises, it was contended on behalf of the respondent that the magistrate had jurisdiction to go behind the award and decline to execute the same on the ground that it was a nullity in the eye of law. For this he relied upon decisions reported in A. I. R. 1952 pepsu, 136, and A. I. R. 1933 P. C. 51. These authorities lay down the executing court can go behind the terms of the decree and refuse to execute the same where the decree is a nullity. On this principle the pepsu authority has further laid down that the recovery of punitive fine imposed under Section 14 of the police Act could be challenged before the 386 Cr. P. C. on the ground that the notification imposing the punitive fine was ultra -vires.