Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 1069 (ALL)

Malti Chaudhary v. State of U. P. and Others

2012-05-05

ANIL KUMAR

body2012
Hon'ble Anil Kumar, J.— Heard Sri Amar Nath Tripathi, learned counsel for the petitioner, learned State Counsel for opposite parties no. 1 and 2 as well as Sri Suresh Chandra Shukla, learned counsel for opposite parties no. 3 to 7 and perused the record. 2. By means of present writ petition, the petitioner has challenged the impugned orders dated 19.5.2011 and 11.4.2012 (Anexure no. 1 and 2) passed by opposite party no.2/Assistant Labour Commissioner, Lucknow. 3. Facts, in brief, of the present case are that initially a claim under Section 15(2) of the Payment of Wages Act, 1936 (hereinafter referred to as 'Act') has been filed by opposite parties no. 3 to 7 on the basis which P.W. Case no. 676 of 2008 (Ram Sajivan and others v. Dr. Smt. Malti Chaudhari) has been registered before opposite party no.2. In the said matter, a written statement has been filed on behalf of respondent on 8.4.2010 and a defence in nut shell which has been taken in the written statement as per pleadings is that no work has been taken by the petitioners who have filed P.W. case before opposite party no.2 under the Act. Thereafter, no appearance has been put on behalf of the respondent before opposite party no.2 in P.W. Case no. 676 of 2008 as such an ex parte judgment and order has been passed by opposite party no.2 on 19.5.2011(Annexure no.1). Thereafter, an application for recall of the ex parte order was moved, the same was also rejected by opposite party no.2 vide order dated 11.4.2012 (Annexure no.2), hence the present writ petition has been filed. 4. In view of the above said factual background, Sri Suresh Chandra Shukla, who has put in appearance on behalf of opposite parties no. 3 to 7 has raised a preliminary objection that against the impugned orders which are under challenge in the present case, petitioner has got statutory remedy by way of appeal under Section 17 of the Act, as such the present writ petition is liable to be set aside on the said ground alone. 5. 3 to 7 has raised a preliminary objection that against the impugned orders which are under challenge in the present case, petitioner has got statutory remedy by way of appeal under Section 17 of the Act, as such the present writ petition is liable to be set aside on the said ground alone. 5. Sri Amar Nath Tripathi, learned counsel for the petitioner opposed the objection on the ground that the order dated 19.5.2011 (Annexure no.1) is an ex parte one passed without providing any opportunity of hearing to the petitioner as provided under the Workmen Compensation Act, so the same is without jurisdiction and will not be applicable to the petitioner, hence the petitioner cannot relegate the remedy of statutory appeal as provided under Section 17 of the Act, as such the present writ petition is maintainable under Article 226 of the Constitution of India. In support of his case, he has placed reliance on the judgement of Hon'ble the Apex Court in the case of Life Insurance Corporation of India v. Anwar Khan (deceased) through Lrs.. 2007 (113) FLR 979 and the judgment of this Court in the case of M/s. Rampur Distillery v. Competent Authority and others. 2006 (108) FLR 1210. 6. I have heard the learned counsel for the parties and gone through the record as well as the preliminary objection as raised by the learned counsel for the opposite parties no. 3 to 7 in respect to maintainability of the writ petition under Article 226 of the Constitution of India. As stated in the instant case, respondent no. 3 to 7 filed a claim petition under Section 15(2) of the Act accordingly, case no. P.W 676 of 2008 has been registered before opposite party no.2 in which petitioner filed a written statement, subsequently, on account of being absent in the proceedings before opposite party no.2, an ex parte judgment and order dated 19.5.2011 (Annexure no.1) has been passed by opposite party no.2. Aggrieved the the said order, petitioner moved an application for recall of the order, same was also rejected by order dated 11.4.2012 (Annexure no.2) by opposite party no.2 keeping in view the said facts as provided under Section 17 of the Act, there is statutory remedy to file an appeal under said section by statute. 7. Aggrieved the the said order, petitioner moved an application for recall of the order, same was also rejected by order dated 11.4.2012 (Annexure no.2) by opposite party no.2 keeping in view the said facts as provided under Section 17 of the Act, there is statutory remedy to file an appeal under said section by statute. 7. In view of the said fact if a statutory remedy by way of appeal is available to a person then in that circumstances, the same shall not be amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India as in the case of Titaghur Paper Mills Company Limited and another v. State of Orissa and others. (1983 )2 SCC 433 Hon'ble the Supreme Court held as under:- "Where a right or liability is created by statute which give special remedy for enforcing it, that must be availed as the said statute provides a complete machinery in order to challenge the impugned action taken therein in the statute itself and not under Article 226 of the Constitution of India." 8. In the case of Karnataka Chemical Industries and others v. Union of India and others. (2000) 10 SCC 12, wherein it was held as under:- "When there is no challenge to the validity of any statutory provision, we see no reason as to why a writ petition should have been filed by passing the alternative remedy which is provided under the statute. On the short ground we dismiss this appeal, vacate the interim orders, direct the payment of the balance amount of duty along with interest @ 15% per annum with yearly rests. It will be open to the appellant to avail of such statutory remedy as may be available to it. If an appeal is filed within four weeks from today, the Department will take a lenient view in condoning the delay." 9. In the case of Central Coalfilds Limited v. State of Jharkhand and others. (2005) 7 SCC 492 , wherein it was held as under:- "If there is statutory alternative remedy available to a person under an statute itself, in that case the writ petition should nto be entertained under Article 226 of the Constitution of India and the petitioner is directed to avail the alternative statutory remedy." 10. (2005) 7 SCC 492 , wherein it was held as under:- "If there is statutory alternative remedy available to a person under an statute itself, in that case the writ petition should nto be entertained under Article 226 of the Constitution of India and the petitioner is directed to avail the alternative statutory remedy." 10. In the case of State Bank of India v. Allied Chemical laboratories and another, (2006) 9 Supreme Court Cases, 252, Hon'ble Supreme Court has held as under:- "In the facts and circumstances of this case, we hold that the respondent ought to have availed the remedy provided under Section 20 of the Act and preferred an appeal before the Appellate Tribunal wherein he could have urged all his grievances and challenged the decree/final order passed by the DRT. The order passed by the High Court in exercise of writ jurisdiction is wholly unjustified and it is accordingly set aside." 11. In the case of Kanaiyalal Lal Chand Sachdev and others v. State of Maharashtra and others. (2011) 2 SCC 782 , in para Nos. 23 and 24 held as under:- "Para - 23 - In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the Appellants under Section 17 of the Act. It is well-settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See: Sadhana Lodh v. National Insurance Co. Ltd. and Anr. (2003) 3 SCC 524 ; Surya Dev Rai v. Ram Chander Rai and Ors. (2003) 6 SCC 675 ; State Bank of India v. Allied Chemical Laboratories and Anr. (2006) 9 SCC 252 ." Para - 24- In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors. (See: Sadhana Lodh v. National Insurance Co. Ltd. and Anr. (2003) 3 SCC 524 ; Surya Dev Rai v. Ram Chander Rai and Ors. (2003) 6 SCC 675 ; State Bank of India v. Allied Chemical Laboratories and Anr. (2006) 9 SCC 252 ." Para - 24- In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors. (2009) 1 SCC 168 , this Court had observed that: The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a)adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the Petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; LCD Shiv Anjali Srivastava v. University of Allahabad (Amreshwar Pratap Sahi, J.) 1883 (f) grant of relief is against public policy or barred by any valid law; and host of other factors." 12. So far as the reliance been placed by the learned counsel for the petitioner on the decision of Hon'ble Apex Court in the case of Life Insurance Corporation of India (Supra) is concerned, in the said matter Hon'ble Apex Court has not dealt with the question that in case where a statutory remedy by way of appeal is available to a person, aggrieved by an order passed under Section 15(3) of the Payment of Wages Act, 1936 then in that circumstances can he file a writ petition, challenging the said order under Article 226 of the Constitution of India, without exhausting the alternative statutory remedy available to him? Hence, the petitioner cannot deprive any benefit from the said judgment as the same is not applicable to the facts and circumstances of the present case. 13. Hence, the petitioner cannot deprive any benefit from the said judgment as the same is not applicable to the facts and circumstances of the present case. 13. So far as the reliance placed by learned counsel for the petitioner in the Case of M/s Rampur Distillery (Supra) is concerned, petitioner cannot derive any benefit from the same, as the said writ petition was entertained in the year 1988 and the interim order was granted in the matter keeping in view the said facts as well as the authority who has passed the impugned order exceeded his jurisdiction and taking into consideration that alternative remedy is not an absolute bar to the maintainability of the writ petition, the same was decided on merit. However, said situation does not exists in the present case, as the order in question can be very well challenged by the petitioner before the appellate authority under Section Section 17 of the Act by way of statutory appeal on the grounds taken in the instant writ petition. 14. For the foregoing reasons, the writ petition is dismissed on the ground of availability of statutory remedy of appeal to the petitioner under Section 17 of the Payment of Wages Act, 1936. _