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2013 DIGILAW 223 (JK)

Fayaz Ahmad Dar v. Chief Agriculture Officer Budgam & Anr.

2013-04-16

ALI MOHAMMAD MAGREY, MANSOOR AHMAD MIR

body2013
Mansoor, J.:-- The instant appeal calls in ques­tion judgment dated 13th May, 2011, for short impugned judgment, passed by the learned Writ Court in OWP No. 788/ 2008. 2. A brief narration of the contro­versy, for facility of reference, may be made, thus: 3. Appellant filed a claim petition before Deputy Labour Commissioner, Srinagar, for grant of unpaid wages, delayed wages, was granted vide exparte Award and order dated 1st July, 2006. 4. Writ petitioners, Respondent Nos. 1 and 2, feeling constrained, challenged the same by the medium of writ peti­tion viz. OWP No. 788/2006, on vari­ous grounds. 5. Appellant joined the issue, resisted the petition by filing counter. 6. Learned Writ Court, after taking note of Section 15 of Payment of Wages Act, 1936, for short Act; SRO 409 dated 2nd September, 1971, and SRO 37 dated 23rd January, 1980, held that Deputy Labour Commissioner, Srinagar, was not having the jurisdiction to entertain and determine the claim petition. 7. It is against this finding that an appeal has been preferred to seek its reversal. 8. We have heard learned counsel for the parties and considered the mat­ter. 9. It needs to be stated at the onset itself that there were some issues, as reflected in the writ petition and the counter, those had to be dealt with by the learned Writ Court, but have re­mained unattended, as the learned Writ Court has thought it proper to decide the matter on the issue of jurisdiction only. 10. It would be apt to reproduce Sub Section (1) of Section 15 of the Act herein, thus: "15. Claims arising out of deduc­tions from wages or delay in pay­ment of wages and penalty for malicious or vexatious claims. 10. It would be apt to reproduce Sub Section (1) of Section 15 of the Act herein, thus: "15. Claims arising out of deduc­tions from wages or delay in pay­ment of wages and penalty for malicious or vexatious claims. - {(1) The appropriate Government may, by notification in the Official Gazette, appoint___ (a) any Commissioner for Workmen's 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) a presiding officer of any Labour Court or Industrial Tribunal, consti­tuted under the Industrial Disputes Act, 1947 (14 of 1947), or under any corresponding law relating to the in­vestigation and settlement of indus­trial disputes in force in the State; or e) any other officer with experience as a Judge of a Civil Court or a Judi­cial Magistrate, as the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages, of persons employed or paid in that area, including all mat­ters incidental to such claims: Provided that where the appropri­ate Government considers it nec­essary so to do, it may appoint more than one authority for any specified area and may, by gen­eral or special order, provide for the distribution or allocation of work to be performed by them under this Act.)}" 11. In terms of mandate of said Sec­tion, it is the Authority appointed/ specified by the Govt. to entertain the application within their respective ju­risdictions. It would be apt to reproduce SRO 409 dated 2nd September, 1971, herein, thus: "SRO-409.- In exercise of the pow­ers conferred by sub-section (1) of Section 20 of the Workmen's Compen­sation Act, 1923 (Central Act No. 8 of 1923) and in supersession of all the previous notifications on the subject, the State Government hereby appoint the Assistant Labour Commissioners to be Commissioners for Workmen's Compensation under the said Act within the areas of their respective jurisdiction." 12. The reproduced text makes it explicit that all the notifications issued on the subject earlier have been su­perseded and that Commissioners ap­pointed vide SRO 409 under Workmen Compensation Act shall be the Author­ity for the purposes of Sub Section (1) of Section 15 of the Act, for Kashmir province and Jammu province. SRO 37 dated 23rd January, 1980, supersedes SRO 421 dated 2nd September, 1971, and it provides that all the Commis­sioners appointed under SRO 409 dated 2nd September, 1971, to be the Authori­ties for the purposes of said sub sec­tion within their respective territorial jurisdiction. Let us have a look at SRO 37 dated 23rd January, 1980, also, thus: "SRO-37.-In exercise of the powers conferred by sub-section (1) of section 15 of the Payment of Wages Act, 1936, (IV of 1936) and in superses­sion of notification SRO-421 dated 2nd September, 1971, the Government of Jammu and Kasmir hereby appoint the Commissioners for Workmen's Compensation, appointed under no­tification SRO-409 dated 2nd Septem­ber, 1971, to be authorities for the purposes of the said sub-section within their respective territorial juris­diction." 13. Learned Writ Court after notic­ing SRO 409 dated 2nd September, 1971, read with SRO 37 supra held that ap­pellant/ claimant had to file claim pe­tition before the Authority who had ju­risdiction within the district Budgam and the Authority at Srinagar had no jurisdiction to deal with the matter. 14. Learned counsel for the parties had not brought to the notice of the learned Writ Court SRO 457 dated 26th September, 1975, which was issued after SRO 409 dated 2nd September, 1971. It would be apt to reproduce SRO 457 dated 26th September, 1975, herein, thus: "SRO-457.- In exercise of the pow­ers conferred by sub-section (1) of section 15 of the Payment of Wages Act, 1936 (IV of 1936) the Government of Jammu and Kashmir hereby ap­point the Deputy Labour Commission­ers Jammu and Srinagar (Commis­sioners for Workmen's Compensa­tion) to be the authority for purposes of the said sub-section for the divi­sions of Jammu and Kashmir." 15. In terms of the said Notification Deputy Labour Commissioners Jammu and Srinagar are appointed as Com­missioners for Workmen's Compensa­tion) to be the authority for purposes of the sub Section 1 of Section 15 of the Act, for the divisions of Jammu and Kashmir. 16. In terms of the said Notification Deputy Labour Commissioners Jammu and Srinagar are appointed as Com­missioners for Workmen's Compensa­tion) to be the authority for purposes of the sub Section 1 of Section 15 of the Act, for the divisions of Jammu and Kashmir. 16. Thus the Deputy Labour Com­missioners' Jammu and Kashmir have the jurisdiction to deal with the claim petitions which had arisen within their respective divisions and this SRO is not superseded by SRO 37 supra. 17. In this view of the matter, one comes to inescapable conclusion that the claimant has a choice to either file a claim petition in a district where the cause of action has arisen or before the Deputy Labour Commissioners Jammu or Kashmir within whose jurisdiction the matter falls. 18. Having regard to the above nar­ration, while allowing the appeal, we set aside the impugned judgment. 19. Writ petition is remanded to learned Writ Court with the request that it be decided as early as possible. 20. Send down the record.