Nandlall and Sons Tea Industries (P) Ltd. v. State of Assam
2007-03-16
AMITAVA ROY
body2007
DigiLaw.ai
JUDGMENT Amitava Roy, J. 1. The validity of the proceedings under the Payment of Wages Act, 1936 (hereafter referred to as the Wages Act) as well as that under the Bengal Public Demands Recovery Act, 1913 (hereafter referred to as the Recovery Act) before the Assistant Labour Commissioner, Tinsukia, respondent No. 2 and the Certificate Officer, Tinsukia, respondent No. 3 respectively, orders passed therein and the eventual auction sale of the petitioner's land pursuant thereto, constitute the subject matter of assailment in the instant petition. This Court by order dated 14.9.2004 while issuing notice of motion had in the interim directed the private respondents not to alter the features of the land to involved and the maintain the status quo thereof. The disbursement of the sale proceeds was also kept in abeyance. 2. I have heard Mr. K. Agarwal, Advocate for the petitioner assisted by Mr. V.K. Bhatra, Advocate, Mr. B.J. Talukdar, Additional Sr. Government Advocate for the official respondents, Mr. S.K. Barkataky, Advocate for the respondents 11 to 16 and Mr. Shyam, Advocate for the respondents 5 to 10. 3. The factual backdrop would be essential to asses the rival submissions. The version of the petitioner first. The petitioner No. 1 is a private Company incorporated under the Companies Act, 1956, and owns and possesses a tea garden namely Hukanpukhuri Tea Estate in the District of Tinsukia, Assam. The petitioner No. 2 is the Manager of the said Tea Estate. The petitioner Company inspite of its best efforts started losing business and incurred huge loss since 1998. Inspite thereof, it had been discharging its obligations under the law inter alia making payment to its employees/workers. However, from middle of July, 2003, till October of the same year, it could not pay the salary/wages to its employees/workers because of severe financial constraints. It, however, resumed payment of the salary/wages thereafter and had not failed since then. In view of the default for the period aforementioned arrears mounted to Rs.22,10,320/-. The employees unions induced the workers and the staff to disrupt work resulting in dislocation of the affairs of the tea estate, defilement of the environment therein thus adversely affecting the production and manufacture of tea.
In view of the default for the period aforementioned arrears mounted to Rs.22,10,320/-. The employees unions induced the workers and the staff to disrupt work resulting in dislocation of the affairs of the tea estate, defilement of the environment therein thus adversely affecting the production and manufacture of tea. In view of the labour unrest, the management had to suspend work temporarily and finally the differences were resolved through a tripartite agreement arrived at on 5.9.2003 whereunder it was decided that one fortnightly labour wages and one month salary to the staff and the sub-staff would be made in middle of September, 2003 and that the issue relating to pending labour wages and staff salary would be discussed and sorted out at the garden level itself. The Assistant Labour Commissioner, respondent No. 2 who acted as the authority under Section 15 of the Wages Act, superintended the process and was a signatory to the said settlement. Pursuant thereto, an amount of Rs.3,27,350/ - being the wages of the workers/staff for the period 19.7.2003 to 1.8.2003 was paid by the petitioner. The petitioners inspite of the tripartite agreement being rendered unable to pay the dues in time offered some proposals on 2.12.2003 to the Assistant Labour Commissioner, Tinsukia, to evolve ways and means for the survival of the industry as well as its workers. Accordingly a meeting was held between the management and the workers on 10.12.2003 and a bipartite settlement was arrived at a copy of which was forwarded to the aforementioned authority, jurisdictional Deputy Commissioner and others whereunder the petitioners agreed to pay the wages and salary regularly from August 2003. The first payment to be made on or before 20.12.2003. 4. At or about the same time, the Labour Inspector, Tinsukia, respondent No. 4 made an application on 18.10.2003 before the respondent No. 2 alleging that earned wages of 1105 persons engaged in the tea estate amounting to Rs.41,53,000/- had not been paid for the period 19.7.2003 to 10.10.2003 praying for a direction under Section 15(3) of the Wages Act for the disbursement thereof or any other amount as may be found due. The same was registered as Application No. 12 of 2003. The respondent No. 2 thereafter on 20.10.2003 issued notice to the petitioners to appear before him and to answer all material questions relating to the said application.
The same was registered as Application No. 12 of 2003. The respondent No. 2 thereafter on 20.10.2003 issued notice to the petitioners to appear before him and to answer all material questions relating to the said application. The petitioners accordingly arranged for a representation on 23.10.2003 and submitted an application requesting the respondent No. 2 to furnish the details of the claim of Rs.41,53,000/-. While pointing out that the Tea Estate inspite of huge loss was somehow being administered, the petitioners requested the said authority to condone the delay and to allow them to pay their dues. According to the petitioners, on receipt of their application, the respondent No. 2, by order dated 23.10.2003 directed them to pay the aforementioned amount within 15 days thereof. This was, however, without furnishing to them the details of the claim sought for or affording any opportunity of making any further representation. Situated thus, the petitioners on 31.10.2003 submitted an application praying for extension of time mentioning therein inter alia that in the meantime an amount of Rs.3,27,350/- had been defrayed by them as wages for the period 19.7.2003 to 1.8.2003. This was followed by an application by them on 18.11.2003 before the same authority seeking a review of the earlier order dated 23.10.2003. Therein the petitioners categorically averred that the liability of the Company was Rs.22,10,320/-and not Rs.41,53,000/- of which an amount of Rs.3,27,350/- having been paid, the balance liability stood at Rs.18,52,970/-. 5. The petitioners requested the respondent No. 2 to make an enquiry with regard to the correctness of the figure of Rs.41,53,000/-, which was not borne out by their records and then to allow them sufficient time to pay the outstanding wages. The petitioners have complained that inspite thereof they were not afforded any opportunity of hearing or to adduce any oral or documentary evidence in support of then-stand. Instead they were served with a notice dated 3.3.2004 issued by the Certificate Officer, Tinsukia (respondent No. 3) along with the copy of the certificate of public demand dated 3.3.2004 intimating them that a certificate for an amount of Rs.41,53,000/- had been filed and that if they sought to deny their liability, they could file an application to that effect within 30 days from the service of notice. It appeared therefrom that a proceeding under the Recovery Act had been registered being Case No. 6/Misc./2003. 6.
It appeared therefrom that a proceeding under the Recovery Act had been registered being Case No. 6/Misc./2003. 6. The petitioners having received the notice on 12.4.2004 submitted an application on 29.4.2004 before the said authority denying their liability. It was asserted inter alia that no opportunity had been accorded to them either to submit their case or to place the Company's register and other materials despite a prayer being made to that effect on 18.11.2003. They reiterated the payment of Rs.3,27,350/- and expressed their readiness and willingness to pay the admitted dues if provided with sufficient time even by disposing of their property or by easy instalments. As the respondent No. 3 did not pass any order the petitioners again on 5.5.2003 submitted another application requesting the said authority to afford them an opportunity of hearing. However, the respondent No. 3 on 5.6.2004 issued a proclamation of sale of the property of the petitioners measuring 31B 3K 15L of land described therein fixing 29.6.2004 as the date of sale. On the same date, the said authority also issued a notice fixing 29.6.2004 for settlement of the terms of the proclamation. 7. Both the proclamation of sale and the notice were received by the petitioners on 23.6.2004. On the very next date, they submitted an application before the respondent No. 3 requesting him to compute the amount payable by them, as the figure of Rs.41,53,000/- was incorrect. They also prayed for a hearing besides seeking leave to sell apart of the Company's land to liquidate the outstanding dues. A period of two months was sought for by them. As no order, as prayed for, was forthcoming the petitioners again represented on 5.7.2004 reiterating the above and prayed for cancellation of the certificate of sale purported to be held on 29.6.2004. By order dated 7.7.2004, the petitioners' representation dated 5.7.2004 was rejected without extending any opportunity of hearing to them. Their application dated 21.7.2004 for reconsideration of the above decision was also declined. 8. The petitioners have averred that the Certificate Officer by order dated 30.7.2004 made the sale conducted on 29.6.2004 absolute and directed that the purchasers be provided a certificate in Form No. 28 and possession of the purchased land be delivered to them. Thereby disbursement of the sale proceeds under different heads was also directed.
8. The petitioners have averred that the Certificate Officer by order dated 30.7.2004 made the sale conducted on 29.6.2004 absolute and directed that the purchasers be provided a certificate in Form No. 28 and possession of the purchased land be delivered to them. Thereby disbursement of the sale proceeds under different heads was also directed. The petitioners have further stated that in the auction sale 24B of land with standing tea crop had been sold to 12 persons at a throw away price of Rs.28,43,000/- 9. No affidavit in opposition on behalf of the State respondents has been filed. The respondents 5 to 10, some of the auction purchasers in there application praying for vacation and/or modification of the interim order of this Court have pleaded that the petitioners having defaulted to pay the wages of its employees/workers for the period from 19.7.2003 to 10.10.2003 an amount of Rs.41,53,000/- was in arrears and, therefore, the Labour Inspector, Tinsukia, moved an application before the Assistant Labour Commissioner, Tinsukia, for recovery of the said amount. Notices were issued to the petitioners under the Wages Act whereupon they duly appeared before the authority and admitted their liability to make payment of the amount specified. As they failed to discharge their liability, the Assistant Labour Commissioner, Tinsukia, by order dated 23.10.2003 directed them to make payment within a period of 15 days. The having still defaulted to liquidate their dues and the prayer for review of the order dated 23.10.2003 having been rejected a certificate was issued for recovery of the said amount from them through a Bakijai proceeding. Though a notice was issued under the Recovery Act, the petitioners on receipt thereof as well did not make the payment. Their application seeking leave to deposit the amount in instalment was rejected and a proclamation of sale dated 5.6.2004 was issued fixing 29.6.2004 for the auction sale. According to the applicants/ auction purchasers, the sale was duly conducted on 29.6.2004 in course of which land measuring 31B3K15L belong to the petitioners/certificate debtors was sold in auction and purchased by respondents 5 to 16 for valuable consideration. The applicants stated that they amongst others purchased 12 B of land with individual share of 2 Bighas. Following the sale, the auction purchasers deposited the sale price whereupon necessary certificates of sale in Form No. 28 were issued to them on 19.7.2004.
The applicants stated that they amongst others purchased 12 B of land with individual share of 2 Bighas. Following the sale, the auction purchasers deposited the sale price whereupon necessary certificates of sale in Form No. 28 were issued to them on 19.7.2004. Actual physical possession of the purchased land was also handed over to them on 10.8.2004 and necessary possession certificates were issued by the concerned Circle Officer. According to them, the proceedings under the two Acts were conducted in compliance of the provisions thereof and that the petitioners having failed to make payment of the amount due their property was rightly sold in auction to liquidate the same. They contented that they are all bonafide purchasers of the land for value and that the sale proceeds having in the meantime been disbursed, under different heads, no interference by this Court is warranted. 10. Mr. Agarwal initiated the challenge by questioning the jurisdiction of the Assistant Labour Commissioner, Tinsukia, to act as the authority under Section 15 of the Wages Act. According to him, the Assistant Labour Commissioner was not comprehended to be competent to exercise the power sanctioned by the said legal provision and, therefore, the proceeding before him and the orders passed therein are non est in law. Moreover, the said officer having presided over the proceedings culminating in the tripartite settlement on 5.9.2003 in which the same issue was agreed to be resolved at the garden level, his action of entertaining the application of the Labour Inspector, Tinsukia, and directing payment of Rs.41,53,000/- without either affording any opportunity of hearing to the petitioners or ascertaining the authenticity thereof lacked bonafide as well, he urged. Mr. Agarwal contended that in any view of the matter, the procedure prescribed under Section 15(3)of the Act not having been observed, the purported proceeding before the Assistant Labour Commissioner, Tinsukia, was ab initio null and void and, therefore, the orders passed therein are inoperative and ineffectual, he maintained that as Section 15(5) of the Wages Act, did not either sanction or contemplate a proceeding under the Recovery Act to realize any amount ascertained to be due under the Wages Act, the certificate of demand based on which the Bakijai proceeding was launched is also invalid.
The learned Counsel urged that the amount ostensibly ascertained to be due from the petitioners under the Wages Act not being a public demand within the meaning of the Recovery Act, the Bakijai proceeding also stood vitiated by the vice of want of jurisdiction. The learned Counsel argued that even assuming that the petitioners' reply in the said proceeding was not in the prescribed form, they were entitled in law to be heard in support of their stand and the denial of such an opportunity has vitiated the Bakijai proceedings on this count as well. 11. Referring to Rule 46 of the Rules contained in the Schedule II to the Recovery Act (hereafter referred to as the Recovery Rules), the learned Counsel has asserted that the date for settlement of the terms of proclamation of sale having been fixed on 29.6.2004, the auction sale could not have been held on the very same date. The petitioners as certificate debtors being entitled to a period of 30 days to deposit the amount for which the auction sale had been ordered in terms of Rule 48 of the Recovery Rules, the conduct of auction sale in violation thereof though a request on their behalf to the said effect was pending vitiated the entire process by an incurable illegality, he urged. Mr. Agarwal suggested lack of bonafide in view of the inexplicable rush in completing the auction sale by overlooking the provisions of Rule 66 and 80 of the Recovery Rules envisaging opportunities to the certificate debtor to make payment of the amount due by instalments. The very fact that the certificates of sale had been issued on 19.7.2004 even before the auction sale had been confirmed on 30.7.2004 betrays bias and a predetermined approach, he urged. Contending that the impugned orders and the disposal of petitioner's immovable property have been in infraction of their fundamental rights guaranteed under Articles 14, 19 and 21 as well as their constitutional rights under Article 300A, the learned Counsel has argued that the interference of this Court in the exercise of its writ jurisdiction is warranted in the interest of justice. According to Mr. Agarwal, the remedy provided in Sections 5 and 51 of the Wages Act and the Recovery Act respectively not really being equally efficacious and alternative in nature, would not be a bar for entertaining the instant proceeding. 12. Mr.
According to Mr. Agarwal, the remedy provided in Sections 5 and 51 of the Wages Act and the Recovery Act respectively not really being equally efficacious and alternative in nature, would not be a bar for entertaining the instant proceeding. 12. Mr. Talukdar has replied that the petitioners having failed to clear the dues admitted by them inspite of several opportunities being granted, the contentions raised are wholly untenable. The concerned authorities having passed the orders on due compliance of the provisions of the law, no case has been made out to merit interference therewith. The learned State Counsel emphatically denied the allegation of malafide and extraneous considerations and argued that thereby the petitioners have unnecessarily endeavoured to malign the authorities and take advantage of their own wrong under the cover of the instant proceeding. Mr. Talukdar produced the relevant records of the proceedings before the aforementioned authorities in support of his submissions. 13. Endorsing the above, Mr. Shyam has argued that the auction sale having attained finality conferring valid title to the purchasers, there is no live issue at this distant point of time to be adjudicated upon. In any view of the matter, adequate alternative remedies being available to the petitioner under both the legislations involved, the instant petition is not maintainable, he urged. The learned Counsel though conceded that the Assistant Labour Commissioner, Tinsukia, at the relevant time might not have been the authority under Section 15 of the Wages Act, the petitioners having submitted to his jurisdiction, the plea of want of competence is untenable, they not having challenged the notification appointing him to exercise the powers thereunder. This is more so in absence of any bar under the Wages Act (un-amended) to appoint the Assistant Labour Commissioner as such authority. No serious endeavour on behalf of the petitioner to dispute the dues quantified in the proceedings having been made at any point of time there had been a systematic waiver and acquiescence and, therefore, their challenge at this belated stage ought not to be entertained, he urged. 14. Mr. Shyam contended that in view of Section 3(32) of the General Clauses Act, the certificate Officer was a Magistrate and, therefore, the certificate of demand issued by him is valid.
14. Mr. Shyam contended that in view of Section 3(32) of the General Clauses Act, the certificate Officer was a Magistrate and, therefore, the certificate of demand issued by him is valid. The demand within the meaning of Clause 4 of Schedule I of the Recovery Act comprehend dues ascertained under the Wages Act and, therefore, the Bakijai proceeding was competent, he argued. According to the learned Counsel, the order dated 22.7.2004 of the Certificate Officer having clearly demonstrated that the petitioners had been heard at all relevant stages but lacked intention to make payment of their dues, their complaint of want of fairness in procedure is frivolous. As in terms of Section 27 of the Recovery Act, the Certificate Officer is a Court, the auction sale is construable as a Court sale and in the face of Order 21, Rule 92 CPC which is in pari materia with Section 25 of the said Act, the only remedy available to the petitioners is as provided in Sections 34 and 35 thereof. In that view of the matter, the auction sale in law was effective from the date thereof and not from its confirmation and, therefore, the certificates of sale dated 19.7.2004 were unassailable. Mr. Shyam contended that the irregularities, if any, were trivial in nature and did not invalidate the proceedings. As the contentions now raised, if entertained, would call for an investigation into disputed questions of facts, this Court in exercise of its power of judicial review would not indulge therein, he maintained. To buttress his submissions, the learned Counsel has placed reliance on the decisions of the Apex Court in Municipal Corporation of Delhi v. Pramod Kumar Gupta AIR 1991 SC 401 , Gurbax Singh, S/o Chanda Singh v. Financial Commissioner and Anr. (1991) 1 SCC 167, Kumud Kumar v. Central Bank of India and Anr. (2000) 9 SCC 244 and Supdt. of Taxes, Dhubri and Ors. v. Onkarmal Nathmal Trust AIR 1975 SC 2065 . 15. Adopting the above arguments in substance, Mr. Barkataky reiterated that the petitioners having participated in the proceedings before the Assistant Labour Commissioner, Tinsukia, without any demur, they are estopped from turning therefrom and questioning his jurisdiction. He insisted that the petitioners conduct through out the proceedings before the authorities below lacked bonafide and, therefore, they are not entitled to any equitable consideration of this Court. 16. Mr.
Barkataky reiterated that the petitioners having participated in the proceedings before the Assistant Labour Commissioner, Tinsukia, without any demur, they are estopped from turning therefrom and questioning his jurisdiction. He insisted that the petitioners conduct through out the proceedings before the authorities below lacked bonafide and, therefore, they are not entitled to any equitable consideration of this Court. 16. Mr. Agarwal in reply has contended that mere submission of a party before any authority lacking jurisdiction would not per se endow it therewith and in absence of any affidavit rebutting the pleaded facts in the writ petition, the same deserve to be accepted and acted upon by this Court. While reiterating the impugnment on the jurisdictional deficiency of the Assistant Labour Commissioner, Tinsukia, Mr. Agarwal argued that the amendment to the Wages Act w.e.f. 9.11.2005 fortifies his stand. In any view of the matter, the statutes involved having laid down procedures to be essentially followed by the authorities concerned, any omission on the part of any party to the proceedings did not absolve them (authority) of their legal obligation to comply therewith. The proceedings under the two Acts having been furthered in patent violation of the procedure so prescribed, the orders passed therein and the auction sale if sustained would be a travesty of justice and mockery of the rule of law, he urged. Mr. Agarwal to reinforce his arguments placed reliance on the decisions of the Apex Court in State of U.P. v. Mohammad Nooh AIR 1958 SC 86 , Seth Banarsi Dass (Dead) v. District Magistrate and Collector, Meerut and Ors. [1996] 2 SCR 268, Surya Dev Rai v. Ram Chander Rai and Ors. AIR 2003 SC 3044 and State of Maharashtra and Ors. v. Jalgaon Municipal Council and Ors. [2003] 1 SCR 1112. 17. I have bestowed a thoughtful consideration to the arguments advanced. Considering the multifaceted challenge to the proceedings under the aforementioned legislations and in absence of any pleaded impeachment of the maintainability of the writ petition, I am not inclined to non-suit the petitioner, remedies in the alternative though available to them under the Wages Act and the Recovery Act, at this distant point of time. Contravention of the various provisions of the two statutes have been categorically asserted besides pleading violation of the principles of natural justice which, if sustained, would render the impugned proceedings and the orders passed therein non est.
Contravention of the various provisions of the two statutes have been categorically asserted besides pleading violation of the principles of natural justice which, if sustained, would render the impugned proceedings and the orders passed therein non est. I, therefore, feel persuaded to adjudicate the issues raised on merits. 18. The Apex Court in State of UP v. Md. Nooh (supra), had held that there is no rule with regard to a writ of certiorari that it would issue only when there is no other equally effective remedy and if requisite grounds exist, certiorari would lie although a right of appeal is conferred by the statute. Enunciating the proposition further, it observed that the rule requiring exhaustion of statutory remedies is one of policy, convenience and discretion rather than a rule of law and a superior Court would rightly issue a certiorari in a case where there has been a denial of natural justice before a Court of summary jurisdiction. It proclaimed that existence of other adequate legal remedies is per se not a bar to the issue of certiorari and in a proper case it may be the duty of the superior Court to issue the same to correct the errors of an inferior Court or Tribunal rather than relegating the petitioner to the other legal remedies. 19. The decision in Kumud Kumar (supra), underlying the interdiction against availment of two parallel remedies in law does not clinch the issue in favour of the Respondents in the accompanying facts. 20. As the grounds of assailment if upheld would strike at the root of the impugned proceedings, I am not inclined to sustain the objection to the maintainability of the writ petition. It, therefore, fails. 21. The impugnment of the proceedings under the Wages Act may first be examined. Section 15deals with the scrutiny of claims arising out of deduction from wages or delay in payment thereof and penalty for malicious or vexatious claims. Sub-section (1) thereof specifies the persons who can be appointed by the State Government by a notification in the official gazette to be the "authority" to hear and decide for any specified area the claims arising out of deductions from wages, or delay in payment thereof of persons employed or paid in that area including all matters, incidental to such claims.
The categories of persons identified for the above purpose are: (a) Presiding Officer of any Labour Court or Industrial Tribunal constituted under the Industrial Disputes Act, 1947 or under any corresponding law relating to the investigation and settlement of industrial disputes in force in the State, or (b) Commissioner for Workmen's Compensation, or (c) Any Officer with the experience as a Judge of a Civil Court or a Stipendiary Magistrate. 22. A plain reading of the said sub-section signifies that the list of persons determined for the purpose is exhaustive and does not admit of any other individual or officer to act as the authority under the said provision. Though the State Government has been empowered to make the appointment by a notification in the official gazette the legislative mandate limits its choice to those clearly designated therein. The Assistant Labour Commissioner of any District is not one of the persons or officers named hereinabove. In absence of any affidavit by the State respondents disclosing the source of authority of the State Government to appoint the Assistant Labour Commissioner, Tinsukia, to act as the authority under Section 15 of the Wages Act or the notification of appointment, I am of the view, having regard to the statutory enjoinment, that the aforementioned officer in the instant case could not have exercised his power thereunder. 23. Incidentally the Wages Act had undergone an amendment in the year, 2005, whereafter in terms of the Payment of Wages (Amendment) Act, 2005, following officers/ persons can be appointed by the appropriate Government to act as the authority thereunder. (a) Any Commissioner for Workmens Compensation, or (b) Any Officer of the Central Government exercising functions as (i) Regional Labour Commissioner, or (ii) Assistant Labour Commissioner with at least two years experience, or (c) Any Officer of the State Government not below the rank of Assistant Labour Commissioner with at least two years experience or (d) The Presiding Officer of any Labour Court or Industrial Tribunal constituted under the Industrial Disputes Act, 1947, or under any corresponding law relating to the investigation and settlement of industrial dispute in the State. (e) Any other Officer with experience as a Judge of a Civil Court or a Judicial Magistrate. 24. It is evident from herein above that an Assistant Labour Commissioner following the amendment is empowered to act as the authority under Section 15.
(e) Any other Officer with experience as a Judge of a Civil Court or a Judicial Magistrate. 24. It is evident from herein above that an Assistant Labour Commissioner following the amendment is empowered to act as the authority under Section 15. The Amendment Act does not disclose that the same had been accorded a retrospective effect. In other words, at all relevant times for the instant proceedings, the unamended Section 15 of the Act was in force. The fact that the Assistant Labour Commissioner of any District has now been enlisted as one of the Officers to be appointed as the authority under the above provision of the Wages Act is obviously suggestive of the fact that such an Officer was not in contemplation to discharge the said role under the unamended provision. The respondents having failed to demonstrate that the Assistant Labour Commissioner, Tinsukia, the plain and unambiguous language of Section 15(1) notwithstanding, had the competence and jurisdiction to act as the authority thereunder, the contention that the proceedings before him lacked jurisdiction and validity has substance and is hereby upheld. The plea of submission of the petitioners to the jurisdiction of the Assistant Labour Commissioner, Tinsukia, does not appeal to this Court in face of the scheme of the above legal provision. 25. The records of the Wages proceedings discloses that on 18.10.2003, the Labour Inspector, Tinsukia, had submitted an application before the Assistant Labour Commissioner, Tinsukia, alleging that the earned wages of 1105 employees of Hukanpukhuri Tea Estate had not been paid for the period w.e.f. 19.7.2003 to 10.10.2003 which according to the applicant's estimate was Rs.41,53,000/-. It was prayed that a direction be issued under Section 15(3) of the Wages Act to the petitioners responsible for payment of earned wages to the said persons. The figure 1105 was reduced to 1049 by the applicant vide his application dated 20.10.2003. A list of the employees with the wages to which they were entitled for the above period was also submitted. The application was registered as 12/2003 and the Assistant Labour Commissioner, Tinsukia, issued notice on 20.10.2003 to the petitioners so as to enable them to answer all material questions relating to the application. The notice indicated the date of appearance to be 23.10.2003 requiring the petitioners to produce evidence oral and documentary, if so intended, in support of their defence. 26.
The notice indicated the date of appearance to be 23.10.2003 requiring the petitioners to produce evidence oral and documentary, if so intended, in support of their defence. 26. The petitioners on the said date while contending that the wages had accumulated in view of the persistent loss suffered by the Tea Estate requested the authorities to furnish the details of the demand of Rs.41,53,000/-. They prayed for condonation of the delay and sought the leave to pay the dues and furnish further clarification if any. The Assistant Labour Commissioner, Tinsukia, by order dated 23.10.2003 observed that the petitioners had admitted the delay in making the payment of five fortnightly labour wages. He recorded his satisfaction that the accumulated amount was Rs.41,53,000/-being the wages w.e.f. 19.7.2003. He, therefore, in exercise of the power under Section15 of the Wages Act directed the petitioner Company to make payment of the said sum within 15 days of the order. 27. According to the petitioners, on receipt of the said order, they on 18.11.2003, represented in writing before the Assistant Labour Commissioner, Tinsukia, contending that the figure of Rs.41,53,000/- was erroneous and was not as per their records. They asserted that their present liability was Rs.22,10,320/- and not Rs.41,53,000/-and further on payment of Rs.3,27,350/- the amount outstanding was Rs.18,52,970/-. The Assistant Labour Commissioner, Tinsukia, was thus requested to review the order dated 22.7.2003, verify the figure of Rs.41,53,000/- and allow the petitioner Company sufficient time to pay the wages due considering its critical financial condition. The said application, however, is not available in the records produced. Instead it appears therefrom that on 12.11.2003, the Assistant Labour Commissioner, Tinsukia, submitted an application before the District Magistrate, Tinsukia, stating that the petitioner Company inspite of his order has failed to disburse the amount of Rs.41,53,000/- and that, therefore, the aforesaid sum be realized as fine imposed by a Magistrate in terms of Section 15(5)of the Wages Act. A reminder on 24.12.2003 to the above effect with a requisition certificate envisaged under Section 5 of the Recovery Act was thereafter submitted by the Assistant Labour Commissioner, Tinsukia, before the District Magistrate, Tinsukia. The requisition certificate which is in the prescribed form disclosed the Manager, Hukanpukhuri Tea Estate and the Managing Director, Hukanpukhuri Tea Estate to be the certificate debtors and the amount of Rs.41,53,000/-to be the public demand for which the same had been drawn up.
The requisition certificate which is in the prescribed form disclosed the Manager, Hukanpukhuri Tea Estate and the Managing Director, Hukanpukhuri Tea Estate to be the certificate debtors and the amount of Rs.41,53,000/-to be the public demand for which the same had been drawn up. A certificate by the Assistant Labour Commissioner, Tinsukia, that the said sum was due from the Management of the Hukanpukhuri Tea Estate as the wages of the labour and the staff was also furnished. 28. A bare reading of the application submitted by the Labour Inspector, Tinsukia, noticed hereinabove does not reveal the basis of the quantification of the due wages to be Rs.41,53,000/-. The contents of the representation dated 23.10.2003 of the petitioners read as a whole do not proclaim an unequivocal and unqualified admission of their liability to the extent of Rs.41,53,000/-. Thereby they sought the particulars and details of the claim while recording their inclination to pay the dues. The records of the wages proceedings do not disclose that the details as prayed for by the petitioners were furnished to them or any further opportunity on the issue was extended. The Assistant Labour Commissioner proceeded on the premise that the petitioners had admitted the outstanding dues to be Rs.41,53,000/- and thus issued a direction for payment thereof within a period of 15 days of the order. 29. Section 15(3) of the Wages Act ordain that when an application against any deduction from the wages or delayed payment thereof as made under Sub-section 2 is entertained, the authority would hear the applicant and the employer or other persons responsible for the payment of wages and give them an opportunity of being heard and after such further enquiry, if any, as may be necessary may without prejudice to any other penalty to which such employer or the other person is liable under the Act, direct the refund to the employee of the amount deducted or payment of the delayed wages together with such compensation as the authority may think fit subject to the computations provided in the provision. 30. The Wages Act, therefore, obligates the "authority" to afford an opportunity of hearing to the parties and conduct further enquiry, if deemed necessary before arriving at any conclusion on merits. The said provision, therefore, makes it imperative for the authority to make a probe into the claim after hearing both sides and thereafter record its findings.
30. The Wages Act, therefore, obligates the "authority" to afford an opportunity of hearing to the parties and conduct further enquiry, if deemed necessary before arriving at any conclusion on merits. The said provision, therefore, makes it imperative for the authority to make a probe into the claim after hearing both sides and thereafter record its findings. If either the claim registered is admitted without any reservation or inspite of an opportunity being granted the parties or any one of them do not avail the same, it may be permissible for the authority to determine the issue on the basis of the materials available before it. However, if the claim is neither admitted nor is the opportunity declined any decisions sans the procedure prescribed would be void and ineffectual. This accords with the fundamental maxim "a verbis leges non est recedendus" (there would be no departure from the dictate of law). 31. Rule 3 of the Assam Payment of Wages (Procedure) Rules, 1981, (hereafter referred to as the wages Rules) delineates the procedure for disposal of an application presented under Section 15(2)of the Wages Act. In addition to the prescription of 60 days for disposal thereof from the date of its receipt it mandates that the hearing including the arguments of the parties should be held day to day and the decision of the authority should be rendered immediately after the close of hearing. Rule 4 refers to the form in which the application(s) is/are to be made and Rule 5 and 6 deal with the representation of the parties before the "Authority". The mode of presentation of documents and application before the authority is prescribed by Rule 7. Rule 9 recites the procedure to be followed after the application under Section 15(2) is entertained requiring inter alia service of a notice in prescribed form on the employer to appear therein. While the said Rule permits the "authority" to hear and determine the applicant ex-parte on the failure of the employer or his representative to appear on the specified date, it empowers it to set aside any such order and re-hear an application on good cause being shown within the period specified. 32. Section 15(4B) designates an enquiry under Section 15 to be a judicial proceeding within the meaning of Section 193, 219 and 228 of the IPC.
32. Section 15(4B) designates an enquiry under Section 15 to be a judicial proceeding within the meaning of Section 193, 219 and 228 of the IPC. A conjoint reading of the above provisions, therefore, irrefutably proclaim that the proceedings before the "authority" inhere the trappings of judicial procedure so much so that any departure therefrom would be at the cost of invalidation of the process undertaken. 33. Bearing in mind, that the petitioners in the instant case neither had conceded their liability of Rs.43,51,000/- as wages due for the period in question nor had refused to utilize the opportunity of being heard to correctly determine the amount outstanding, in my considered opinion, the Assistant Labour Commissioner, Tinsukia, grossly erred in directing payment of the amount estimated by the Labour Inspector, Tinsukia, on the misconception that the same was admitted by the petitioners. Considering the stand taken by the petitioners in their representation dated 23.10.2003, it was incumbent on the Assistant Labour Commissioner, Tinsukia, to furnish them with the factual and other details pertaining to the amount of claim as well as an opportunity to them to project their defence, if any, before finally deciding on their liability. The proceedings before the Assistant Labour Commissioner, Tinsukia, as the facts reveal, have therefore been in infraction of Section 15(3) of the Act rendering the order dated 23.10.2003 patently illegal and non est in law. 34. The Apex Court in Supdt. Of Taxes, Dhubri and Ors. v. M/s Onkarmal Nathmal Trust (supra), had ruled that jurisdiction could neither be waived nor created by consent. There can neither be any waiver of a statutory requirement nor a provision, which touches the jurisdiction of the authority concerned or its decision. 35. In Surya Dev Rai (supra), the Apex Court while dilating on the scope and extent on the certiorari jurisdiction under Article 227 of the Constitution held that the said writ could be issued for correcting gross error of jurisdiction i.e. when a subordinate Court or an authority is found to have acted without jurisdiction, by assuming one when it does not exist or in excess of its jurisdiction, by over stepping or crossing the limits thereof or by acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified and thereby occasioning failure of justice. 36.
36. Elaborating on the essentiality of an opportunity of fair hearing the Apex Court in State of Maharashtra and Ors. v. Jalgaon Municipal Council and Ors. (supra), pronounced that all administrative acts or decisions affecting rights of individuals must comply with the principles of natural justice and the person or persons sought to be affected adversely must be afforded not only an opportunity of hearing but a fair opportunity of hearing. The proceedings before the Assistant Labour Commissioner, Tinsukia, therefore has to be adjudged illegal, null and void. 37. Notwithstanding the invalidity of the proceedings under the Wages Act as held, the challenge to the Bakijai proceedings and the auction sale deserve to be independently scrutinized in view of the consequences that would ensue. The Recovery Act applied in the instant case pre-supposes that the dues to be realized thereunder must constitute a public demand as enumerated in Schedule I thereto. Clause 4 of the said Schedule amongst others identifies any money declared by any enactment for the time being in force to be a public demand recoverable under the said Statute. Section 15(5) of the Wages Act envisages that any amount determined under the said section may be recovered if the authority under Sub-section (b) thereof is not a Magistrate, by any Magistrate to whom the authority makes application in that regard as if it was a fine imposed by such magistrate. Therefore any amount assessed to be payable under the said provision would be construable to be a demand under the said legislation and recoverable as a public demand under the Recovery Act. The plea that the amount found due and payable by the petitioners was not recoverable as a public demand under the Recovery Act, therefore, cannot be sustained. In other words had the proceedings under the Wages Act been valid and conducted by an authority duly empowered to do so and in accordance with the procedure prescribed, the sum found due from the petitioners could have been recovered as a public demand under the Recovery Act. 38. The records of the Bakijai Proceedings reveal that on 24.12.2003, the Assistant Labour Commissioner, Tinsukia, submitted an application with the District Magistrate, Tinsukia, forwarding a requisition certificate for recovery of an amount of Rs.41,53,000/- under the Recovery Act. The letter referred to an earlier communication dated 12.11.2003 also by the Assistant Labour Commissioner to the same effect.
38. The records of the Bakijai Proceedings reveal that on 24.12.2003, the Assistant Labour Commissioner, Tinsukia, submitted an application with the District Magistrate, Tinsukia, forwarding a requisition certificate for recovery of an amount of Rs.41,53,000/- under the Recovery Act. The letter referred to an earlier communication dated 12.11.2003 also by the Assistant Labour Commissioner to the same effect. On receipt of the said letter along with the requisition certificate, the Certificate Officer, Tinsukia, by order dated 33.2004 passed in a cyclostyled form, initiated a proceeding under the Recovery Act directing issuance of notice under Section 7 thereof to the petitioners. Under Section 6of the Recovery Act, a Certificate Officer on receipt of any such requisition may sign a certificate in the prescribed form stating that the demand involved is due, if he is Satisfied that it is recoverable and not barred by law. The satisfaction of the Certificate Officer is, therefore, a condition precedent for drawing up a proceeding under the Recovery Act. 39. A cursory glance of the order dated 3.3.2004 discloses that the said satisfaction of the Certificate Officer, Tinsukia, was derived on a perusal of the requisition certificate issued by the Assistant Labour Commissioner, Tinsukia. No other endeavour on his part to ascertain that the demand is recoverable in law and not barred by time is discernible. The notice in the prescribed form that was issued on the same date informed the Certificate debtor that an amount of Rs.41,53,000/- was due and that if they sought to deny the liability they could within 30 days from the service thereof file a petition to the said effect. The notice indicated that in case of failure to show cause, the certificate would be executed under the Recovery Act for realizing the above amount. The notice did not disclose that the reply thereto has to be in any particular form. 40. By the order dated 3.10.2004, the Certificate Officer after recording that the Certificate Debtors were not personally present directed issuance of "Latkai Notice" (notice by hanging) for attachment of the moveable and immovable property of the Tea Garden directing the Assistant Nazir to take necessary action. The order sheet does not disclose any prior order of the Certificate Officer directing execution of the certificate by attachment and sale of the properties of the petitioners. 41.
The order sheet does not disclose any prior order of the Certificate Officer directing execution of the certificate by attachment and sale of the properties of the petitioners. 41. Accordingly the notice of attachment was issued on 3.4,2004 directing the petitioners to deposit the entire amount of Rs.41,53,000/- to avoid the said process as well as consequential warrant of arrest fixing 12.4.2004. The report dated 12.4.2004 of the Process Server demonstrates that though the notice could be hung on the gate of the closed office of the petitioners, no witness was available to endorse the service thereof. The records do not establish that the notice under Section7of the Recovery Act issued on 3.3.2004 had been served on the petitioners earlier than that. 42. This is significant in view of the provision for service of notice made in Rule 2 to 9 of the Rules under Schedule II of the Recovery Act. Rule 2 requires that service of notice under Section 7 or any other provision of the said statute has to be made by delivering or tendering a copy thereof signed by the Certificate Officer or such ministerial officer, as he would authorize on the Certificate Debtor in person if practicable unless he has an agent empowered to accept the same. Service on any adult male member of the family of the certificate debtor if the latter is not available is permissible under Rule 4. The serving officer, as Rule 5 enjoins, is to obtain the signature of the person on the original notice to whom the copy is so delivered or tendered as an acknowledgment of such service. Separate provisions under Rules 6, 7 and 8 have been made outlining the procedure if the certificate debtor refuses to accept service or if is not found. The copy of the notice dated 3.3.2004 available in the records does not indicate service thereof on the certificate debtor before the notice of attachment was ordered to be issued on 3.4.2004. It, therefore, transpires that the notice of attachment of the properties of the petitioners had been ordered to be issued before ascertaining the service of the notice under Section 7 of the Recovery Act on them. 43. That the initial notice dated 3.3.2004 had not been served on the petitioners before 12.4.2004 is evident from their application dated 29.4.2004 submitted in response thereto.
43. That the initial notice dated 3.3.2004 had not been served on the petitioners before 12.4.2004 is evident from their application dated 29.4.2004 submitted in response thereto. Therein the petitioners inter alia contended that the figure Rs.41,53,000/- was totally erroneous as per the Company's records and that no opportunity had been granted to them and the amount had been assessed without reference of their records, books, registers etc. They asserted that the Management was ready to pay all outstanding dues and that an amount of Rs.3,27,350/-had already been paid for the period 19.7.2003 to 11.8.2003. Their decision to sell some lands to restore cash liquidity was also indicated. A prayer was made against attachment of their properties and for permission to pay the dues in easy instalments considering the financial constraints of the Company. 44. A reading of the application as a whole does not evidence the petitioner's admission of their liability to the extent Rs.41,53,000/-as the outstanding dues for which the recovery proceedings had been initiated. Amongst others along with the said application they had also annexed their reply dated 18.11.2003 before the Assistant Labour Commissioner, Tinsukia, also in the same lines. The Certificate Officer, Tinsukia, however, on the same date i.e. 29.4.2004 rejected the petition on the sole ground that it was not as per Section 9of the Recovery Act. The petition filed by the petitioners on 5.5.2004 requesting a hearing in the matter was also rejected on 7.5.2 004 on the same ground. 45. Under Section 9of the Recovery Act, the certificate debtor may within 30 days from the service of notice under Section 7 present to the Certificate Officer a petition in the prescribed form signed and verified in the prescribed manner denying his liability wholly or in part. The Certificate Officer in such an eventuality as Section 10 mandates shall hear the petition, take evidence, if necessary, and determine whether the certificate debtor is liable for the whole amount or any part thereof for which the certificate is signed and may set aside, verify and modify the same accordingly. The form in which the petition denying the liability has to be filed is as prescribed. The comparison thereof that the petition dated 29.4.2004 makes it manifest that the petitioners had not adhered to the form prescribed though in substance they had denied their liability.
The form in which the petition denying the liability has to be filed is as prescribed. The comparison thereof that the petition dated 29.4.2004 makes it manifest that the petitioners had not adhered to the form prescribed though in substance they had denied their liability. An obdurate adherence to the letters of Section 9 of the Recovery Act and the form would indubitably justify the order dated 29.4.2004. Considering the primary objective of according an opportunity to the Certificate Debtor to deny his liability as comprehended in Section 9of the Recovery Act and the serious adverse consequence that would visit him, would the insistence for such a dogmatic observance of the form sub serve the purpose thereof and be in accord with the Legislative intendment and the tenets of justice and fair play? 46. The Apex Court in M. Subba Reddy and Anr. v. A.P. State Road Transport Corporation and Ors. AIR 2004 SC 3517 , had ruled that when two interpretations are possible, the one which promotes justice and equity should be preferred. Although hardship cannot be a ground for striking down a law but when two views are possible, it is permissible in law that the Court interprets a statute in a way so that the possible hardship is avoided. 47. In Bhatia International v. Bulk Trading S.A. and Anr. [2002] 2 SCR 411, the Apex Court declared that in selecting out of different interpretations, the Court should adopt that which is just, reasonable and sensible rather than that which is none of those and it is presumed that the legislature must have used the word in that interpretation which least offends our sense of justice. 48. The Apex Court in Kuldip Nayar and Ors. v. Union of India and Ors. AIR 2006 SC 3127 , with regard to the literal construction, as a guide to the interpretation of statutes, the Apex Court while acknowledging the same to be the primary rule, cautioned against the application thereof if the language used is contradictory or ambiguous or adherence thereto may lead to absurd results. 49. The norms of interpretation applicable for construing a law of procedure was summarized by the Apex Court in N. Balaji v. Virendra Singh and Ors. (2004) 8 SCC 312 as hereunder.
49. The norms of interpretation applicable for construing a law of procedure was summarized by the Apex Court in N. Balaji v. Virendra Singh and Ors. (2004) 8 SCC 312 as hereunder. In the matter of applicability of the procedural rigours the Constitution Bench of this Court in Sardar Amarjit Singh Kalra v. Pramod Gupta has observed that laws of procedure are meant to regulate effectively, assist and aid the object of substantial and real justice and not to foreclose even an adjudication on the merits of substantial rights of citizen under personal, property and other laws. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. It follows from the decision by the Constitution Bench that the procedure would not be used to discourage the substantial and effective justice but would be so construed as to advance the cause of justice. 50. The pronounced judicial opinion as above proclaims that the norms of plain and literal meaning of the words as a tool of interpretation even if the primary rule therefore the same ought to be eschewed if it has the potential of yielding absurd results or lead to unwarranted hardship and inconvenience. A procedural law deserves a construction to uphold the cause of substantial justice. Applying the above tests in my opinion, any non-compliance with the prescribed form as referred to in Section 9 of the Recovery Act, would not per se entail the rejection of any petition thereunder if the denial of liability is otherwise decipherable therefrom. The requirement of denying the liability in a prescribed form being dominantly a matter of procedure, any interpretation subversive of fairness and justice would be repugnant to the basic precepts of construction of statutes. The Certificate Officer, Tinsukia, therefore was apparently in error in rejecting the petitioners' application dated 29.4.2004 on the ground that it was not in the prescribed form. 51. The developments thereafter leading to the auction sale may next be adverted to.
The Certificate Officer, Tinsukia, therefore was apparently in error in rejecting the petitioners' application dated 29.4.2004 on the ground that it was not in the prescribed form. 51. The developments thereafter leading to the auction sale may next be adverted to. The Certificate Officer, Tinsukia, by his order dated 26.5.2004 recorded that the Certificate Debtor had not deposited any instalment against the public demand and ordered the Assistant Nazir/Nazir to prepare a proclamation of sale in Form 21 for the sale of immovable property of the Certificate Debtors. This was, as alluded hereinabove, after the rejection of the petitioners application dated 29.4.2004 interalia praying for an opportunity to deposit the dues by instalments. In terms of the above direction, the proclamation of sale was prepared and by order dated 5.6.2004, the Certificate Officer, Tinsukia, inter alia directed the Nazir/Assistant Nazir to forward the same to the Office of the local newspaper for wide publicity. On the same date, the Assistant Nazir was also directed to issue a notice to the petitioners informing them about the proclamation of sale fixing 29.6.2004 as the next date of the proceedings. The records contain copies of the proclamation of sale dated 5.6.2004 as well as notice for settlement of the terms of proclamation of sale signed by the Certificate Officer, Tinsukia. The date of sale and the date of settlement of the terms of proclamation of sale was however the same, i.e. 29.6.2004. To put it differently whereas the petitioners by the notice dated 5.6.2004 were informed about the settlement of the terms of proclamation of sale to be made on 29.6.2004 by the proclamation of sale, their properties were to be put on auction sale on the same date. 52. Rule 46 of the Recovery Rules enjoins that where any immovable property or any moveable property exceeding twenty rupees in value, is ordered to be sold by public auction, the Certificate Officer shall cause a proclamation of the intended sale to be made in the language of the Court of the district. Sub-rule (2) mandates that such a proclamation shall be drawn up after notice to the Certificate Debtor and should state the time and place of sale specifying as fairly and accurately as possible the other particulars as set out therein.
Sub-rule (2) mandates that such a proclamation shall be drawn up after notice to the Certificate Debtor and should state the time and place of sale specifying as fairly and accurately as possible the other particulars as set out therein. The Certificate Officer in this regard has been empowered to summon any person for ascertaining any matter to be specified in the proclamation and to examine him and cause him to produce any document in his possession or power relating thereto. Evidently in the case in hand, the proclamation of sale had been issued on the same date as the notice informing the petitioners about the date of settlement of the terms of proclamation in contravention of Rule 46(2) of the Recovery Rules. 53. On receiving the notice dated 5.6.2004, the petitioners on 29.6.2004 submitted an application before the Certificate Officer, Tinsukia, denying the demand of Rs.41,53,000/- with a prayer for correctly ascertaining the extent of their liability. They prayed for an opportunity of hearing before issuance of the sale proclamation and also sought the permission to sell some of their properties to pay off the dues recoverable from them in law. The Certificate Officer on the same date rejected the said application on the ground that the petitioners had not denied the liability as per Section 9 of the Recovery Act and that there was no provision for hearing them at that stage. The permission for sale of land was also rejected as in the meantime the proclamation of sale had been ordered to be published. 54. This approach of the Certificate Officer is also opposed to the letter and spirit of the provisions contained in Rule 50 and 66 of the Recovery Rules. Whereas under Rule 50, the Certificate Officer is endowed with the discretion to adjourn the sale to a specified day and hour, the said authority is also empowered to postpone the sale if the certificate debtor can satisfy him that there is reason to believe that the amount of the certificate may be raised by the mortgage or lease or private sale of such property, or of any other immovable property so as to raise the said amount.
In such a case, the Certificate Officer is permitted to grant a certificate to the Certificate Debtor authorizing him (Certificate Debtor) to make the proposed mortgage, lease or sale notwithstanding the bar under Section 8 or Section 18 of the Recovery Act. 55. Even assuming that the petitioners in the instant case had not denied their liability of Rs.41,53,000/- it was open for the Certificate Officer, Tinsukia, to consider their request on merits for the sale of their properties to pay off the dues admissible in law. The rejection of the prayer on the ground that no hearing at that stage was contemplated and that the sale proclamation had been published in my view has been in mechanical exercise of his powers without any reference to the above provisions of the Rules. 56. The sale as the records reveal was conducted on 29.6.2004 and the petitioners' properties specified in the sale proclamation dated 5.6.2004 were auctioned off. The private respondents claim to have purchased the same. In terms of the order dated 5.6.2004, the sale proclamation was published in the issues dated 18.6.2004 and 19.6.2004 of the local dailies Purbanchal Batori and Dainik Bhumiputra mentioning 29.6.2004 as the date of the sale. 57. The copy of the sale proclamation and the order for the publication thereof as required under Rule 47 establish that the same was served on the petitioners and affixed on the notice board of the Certificate Officer on 9.6.2004. In view of the above, the auction sale held on 29.6.2004 is patently in contravention of the Rule 48 of the Recovery Rules which demands that no sale without the consent in writing of the Certificate Debtor, should take place until after the expiry of at least 30 days in the case of immovable property or 16 days in the case of moveable property exceeding twenty rupees in value, from the date on which a copy of a sale proclamation is affixed in a conspicuous part of the office of the Certificate Officer. The records do no contain any consent of the petitioners in writing obviating the compliance of the above edict. 58. While the matter rested at that the petitioners again on 5.7.2004 submitted another application before the Certificate Officer, Tinsukia, denying the demand of Rs.41,53,000/- and complaining against denial of opportunity of hearing to them.
The records do no contain any consent of the petitioners in writing obviating the compliance of the above edict. 58. While the matter rested at that the petitioners again on 5.7.2004 submitted another application before the Certificate Officer, Tinsukia, denying the demand of Rs.41,53,000/- and complaining against denial of opportunity of hearing to them. They asserted of having sustained injuries by the auction sale and prayed for setting aside the same. This application too was rejected on 7.7.2004 on the ground that the same was not maintainable, as the petitioners had not deposited the money specified in the sale proclamation as required under Section 22 of the Recovery Act. In passing the said order the Certificate Officer overlooked Section 23 of the Recovery Act whereunder a Certificate Debtor was permitted to apply for annulment of the sale inter alia on the ground of material irregularity in the certificate proceeding or the conduct of sale. The said provision of the Rules also absolved the Certificate Debtor of the requirement of depositing the amount recoverable from him in execution of the certificate if he could satisfy the Certificate Officer that he was not liable to pay such amount. No opportunity what so ever was extended to the petitioners though they had categorically denied their liability for the entire amount of Rs.41,53,000/- and claimed opportunity of representing against the said demand. Their application dated 21.7.2004 submitted subsequent thereto reiterating the above and praying for the permission to clear the dues recoverable from them in law by instalment was rejected on same Considerations on 22.7.2004. 59. The certificate Officer, Tinsukia, thereafter made the sale absolute on 30.7.2004 and directed the disposal of the sale proceeds in the manner referred to therein. The manner in which the Certificate Officer, Tinsukia, as the preceding narration would illustrate, had proceeded is in gross violation of the provisions of the Act and the Rules. Not only the petitioners were denied the opportunity of establishing the dues realizable from them under the Wages Act, they were not permitted either to deposit any amount by instalments as persistently prayed for by them. The sequence of events proclaims a predetermined mind and inexplicable zeal in executing the certificate by subjecting the petitioners' properties to sale, in the process trampelling the legally prescribed procedure. 60. The exercise, to say the least, is fraught with apparent illegalities at different stages.
The sequence of events proclaims a predetermined mind and inexplicable zeal in executing the certificate by subjecting the petitioners' properties to sale, in the process trampelling the legally prescribed procedure. 60. The exercise, to say the least, is fraught with apparent illegalities at different stages. The invocation of the powers of the Certificate Officer, Tinsukia, from the very initiation of the Bakijai proceedings has been in flagrant contravention of the letter and spirit of law. While unmistakably a demand of the nature as in the instant case ought to be recovered without undue delay, the process, therefor, has to be essentially in confirmation with the mode enjoined by law. In view of the revelations as above and the conclusions on the basis thereof, I am constrained to hold that the impugned Bakijai proceedings as well is unsustainable. As it is when the law confers a power to do a certain thing in a certain way, it must be done in that way or not at all and other methods of performance are necessarily forbidden as held by their Lordships of the Privy Council in Nazir Ahmed v. King Emperor. 61. The Apex Court in Municipal Corporation of Delhi v. Pramod Kumar Gupta (supra), on the issue of effective date of an auction sale held with reference to Order XXI, Rule 92 and 94 CPC that the title to the property on such sale passes under the law and by the certificate issued under Rule 94, the Court formally declares the effect thereof. 62. The same view was expressed in Gurbax Singh (supra). 63. In Seth Banarsi Dass (Dead) by LRs, (supra), the Collector of Bijnor issued a recovery certificate for an amount against the appellant in his personal capacity. Subsequent thereto a citation was issued by the Tehsildar, Meerut on the appellant under Section 280 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, calling upon him to pay a sum of Rs.50,42,523/- failing which his property was to be attached and sold. The appellant filed objections on various counts, which, however, remained undecided and in the auction sale that followed the appellant's equity and preference shares in M/s Jaswant Sugar Mills Limited were sold.
The appellant filed objections on various counts, which, however, remained undecided and in the auction sale that followed the appellant's equity and preference shares in M/s Jaswant Sugar Mills Limited were sold. Upholding the plea that non-adjudication of his objections had vitiated the auction sale, the Apex Court declared that the failure to dispose of the objections resulted in the denial of the appellant's valuable right to have the same adjudicated in accordance with law. It held that the failure to deal with the appellant's objections therefore vitiated the same with a material irregularity. 64. These decisions in view of the above determinations on contextual facts do not warrant further elaboration. 65. In the wake of the above, the proceedings before the Assistant Labour Commissioner, Tinsukia, being Application No. 12/2003 and Case No. 6/Misc./2003 before the Certificate Officer, Tinsukia, are hereby adjudged illegal, null and void. The impugned order dated 23.10.2003 and the requisition dated 24.12.2003 of the Assistant Labour Commissioner, Tinsukia, are hereby set aside. The certificate dated 3.3.2004, proclamation of sale dated 5.6.2004 and the impugned orders dated 29.4.2004, 24.6.2004, 7.7.2004, 22.7.2004 and 30.7.2004 are also interfered with. As a corollary, the auction sale held on 29.6.2004 pursuant to the sale proclamation dated 5.6.2004 and all consequential proceedings and orders in connection therewith are also adjudged as ineffectual and non est in law. 66. The petition is thus allowed. This adjudication notwithstanding it would be open for the statutory authorities to initiate appropriate proceedings for ascertaining the petitioners' dues for the period involved and realize the same in accordance with law. No costs. Petition allowed.