ORDER : Paresh Upadhyay, J. Challenge in this petition is made to the order passed by the Labour Court, Surat and the Authority under the Payment of Wages Act, dated 10.04.2013, whereby the Labour Court has appointed the Clerk of the Court as the Commissioner to inspect the premises of the petitioner company at Silkwala Dyeing and Printing Mills, Gulambaba Compound, Opposite Railway Station, Surat and report about the details of the assets of the company, and details of the position and possession of the said assets. 2. Learned advocate for the petitioner contended that the order passed by the Authority under the Payment of Wages Act is without jurisdiction and therefore the same needs to be quashed and set aside. 3. This Court had, on 21.06.2013 passed the following order. "Mr. Manan Shah, learned advocate for the petitioner Employer contends that the order passed by the Labour Court appointing Court Commissioner is without any authority of law. On the query put by this Court that what he has to say on merits with regard to unpaid back wages, he does not have any answer. He prays for time. At his request, list the matter for further consideration on 25th June, 2013." 4. The matter was adjourned from time to time thereafter but the petitioner has not shown readiness even to reply to the query of the Court, as to what he has to say with regard to unpaid wages of the workers of the petitioner company. The matter was listed on 22.07.2013 and on that day also learned advocate for the petitioner stated that he intends to place written submissions on record and appropriate order be passed. 5. The written submissions placed by learned advocate for the petitioner are as under. 1. The petitioner has filed the present petition under Articles 226 and 227 of the Constitution of India challenging the order dated 10.4.2013 passed by the Labour Court, Surat on application below Exhibit 4 in Payment of Wages Application No. 29 of 2009. The said application Exh. 4 was filed for appointment of Court Commissioner by the respondents. The Labour Court without appreciating the facts and circumstances of the case and settled position of law, has allowed the application Exh. 4. 2. The respondent union had filed Payment of Wages Application No. 29 of 2009 on 12.1.2009 for recovery of delayed dues of the worker. 3. 4 was filed for appointment of Court Commissioner by the respondents. The Labour Court without appreciating the facts and circumstances of the case and settled position of law, has allowed the application Exh. 4. 2. The respondent union had filed Payment of Wages Application No. 29 of 2009 on 12.1.2009 for recovery of delayed dues of the worker. 3. The petitioner appeared and filed his reply vide Exh. 11 inter alia contending that some of the workers included in Schedule-A to the Payment of Wages Application No. 29 of 2009 were either not the workers of the petitioner and that some of them had left the petitioner in the year 2005. 4. The workers had claimed bonus and overtime wages for the last 5 years. Therefore, it was contended that it is highly unbelievable that the worker would not claim his legal dues for 5 years. Various other contentions were raised in Exh. 11. Annexed hereto and marked as Annexure-W/1 is the copy of reply Exh. 11. 5. It is submitted that in the case of M/s. E. Hill & Co.(P) Ltd. v. City Magistrate, Mirzapur reported in 1980 LIC 873, it is specifically held that when there is a serious dispute raised by the Company against the worker that the worker was not the employee or left the job, then, in that case, questions arise as to whether the worker was the worker of the Company or not or whether the worker was in fact working for the Company or not. The said questions are required to be decided independently and therefore, the proceedings under the Payment of Wages Act being summary in nature, the Payment of Wages Authority would not have jurisdiction to decide the relationship of employer-employee. It is further held that such a question cannot be possibly characterised as incidental to claim of wages. Therefore, the authority would not have any power under Sec.15 of the Payment of Wages Act to try such case. It is submitted that following the said principle in the present case, the petitioner has raised serious objection with regard to the workers ever being the employees of the petitioner or whether they had tendered resignation and left the services of company. It is submitted that following the said principle in the present case, the petitioner has raised serious objection with regard to the workers ever being the employees of the petitioner or whether they had tendered resignation and left the services of company. The said questions cannot be decided by Payment of Wages Authority and therefore, if the Payment of Wages Authority does not have authority to entertain the application u/s. 15 of the Act itself, then, it definitely would not have any jurisdiction or power to entertain any ancillary application such as appointment of Court Commissioner. 6. The petitioner submits that Section 18 of Payment of Wages Act provides for powers of authorities appointed under Sec.15 of said Act and such authority shall have limited powers of a Civil Court. As per Section 15 of the Payment of Wages Act, it is clear that only cases related to deduction made from the wages and where the payment of wages has been delayed only such cases can be decided by the Payment of Wages Authority and question whether the workers of respondent union were workers of company or not is not an incidental question to the above two provisions made u/s. 15 of the Act. A bare reading of Section 18 makes it clear that the Act being summary in nature, the legislature never intended to give all the powers under the Code of Civil Procedure, 1908. The only power which is given u/s. 18 is for taking evidence and of enforcing the attendance of witness and compelling the production of documents. Therefore, it is clear that there are no powers given u/s. 18 for appointment of Court Commissioner. 7. The petitioner humbly submits that comparatively, u/s. 13(3B)(4)(v) of the Consumer Protection Act which relates to commission for examination of any witness. Then, the question arises as to whether the Consumer Court would have power to appoint court commissioner. It is submitted that in fact, a specific provision has been made under the said Consumer Protection Act for appointment of Court Commissioner, whereas in the present case, u/s. 18 of the Act, there is no such specific provision made for appointment of Court Commissioner and therefore, the impugned order is without jurisdiction. 8. It is humbly submitted that the true intention of the respondents is not properly appreciated by the Labour Court. 8. It is humbly submitted that the true intention of the respondents is not properly appreciated by the Labour Court. It is submitted that the respondents have given the said application only with a view to create evidence on record without there being any prima facie case against the petitioner. 9. The Commission could not be issued by the Labour Court as issue of an inventory commission for helping a party to fish out evidence is oppose to justice. The said principle is reiterated by this Hon'ble Court as well as Hon'ble Apex Court time and again. 10. There is no specific averment made in the application Exh. 4 as to under what provision the said application is made. Therefore also, the Labour Court ought to have rejected the application Exh. 4. 11. The respondent has not produced the authority letter to represent the case of the workers union. The respondent has also not produced any evidence to show that he is secretary of the workers union. 12. As per the settled position of law declared by the Hon'ble Supreme Court, it was not the business of the court to collect evidence for party. A commission could not be issued by the Court because issue of an inventory commission for helping the party fish out evidence is oppose to justice. 13. As per the settled position of law, the Court Commissioner cannot be appointed for creating evidence in favour of either of the parties. The same would defeat the ends of justice. It is clearly held by the Hon'ble Apex Court that it was not the business of Court to collect evidence for parties. The commission could not be issued by the Court because issue of an inventory commission for helping a party to fish out evidence is oppose to justice. 14. This Hon'ble Court in the case reported at AIR 1992 (Guj) 95 has held that collecting evidence on behalf of parties is not permissible. The Hon'ble Surpreme Court in the case reported at AIR 1961 SC 218 has held that commission to seize books of account is bad in law. 15. This Hon'ble Court in the case of Kanabhai Vishrambhai Gadhvi v. Jenabai Ali Bhukea reported at 2010 GLHEL-HC 224141 has held as under:- Constitution of India - Article 227 - Code of Civil Procedure, 1098 - Or. 15. This Hon'ble Court in the case of Kanabhai Vishrambhai Gadhvi v. Jenabai Ali Bhukea reported at 2010 GLHEL-HC 224141 has held as under:- Constitution of India - Article 227 - Code of Civil Procedure, 1098 - Or. 26 R. 9 - appointment of Court Commissioner - for ascertaining aspect of possession in respect of suit premises - application rejected - held, in fact, title of suit land is to be determined and when such prayer is made, and especially when there is no dispute with regard to over lapping boundaries or any dispute requiring local investigation as envisaged under Or. 26 R.9, Court Commissioner or else it would amount to giving opportunity to parties to have evidences or creating evidences - petition dismissed. 16. This Hon'ble Court in the case of Kishorekumar and Another v. Rejeshkumar Jayprakash Agarwal and Others reported at, 1991 (2) G.L.H. 580 has held as under:- Code of Civil Procedure, 1908-Ss. 75, 151, O.26, Rr.9, 10A - Orders relating to appointment of court Commissioner for specific purposes - In exercise of powers under S. 75 read with L 9 and 10A of 0.2 of the Code of Civil Court directing Commissioner to obtain possession of computers of defendants and to allow plaintiff to get the contents of computers recorded in a disc or in other form - Held, such orders amount to court assisting plaintiff in collecting evidence - Held further this amounts also to getting the copies of account entries in the account books prepared and brought to court - The order [@page580] held, is clearly without jurisdiction vested in the Court under S. 75 and O. 26 of the Code. 17. The Hon'ble Andhra Pradesh High Court in the case of M/s. Sivashakthi Builders, Hyderabad v. A.P. State Consumer Disputes Redressal Commission, Hyderabad reported at 2009 (0) AIJ-AP 420997 has held as under:- "Consumer Protection Act, 1986 - S. 13(4) - procedure on admission of complaint - Code of civil procedure, 1908 - or. 26r.9 - commissions to make local investigations - petition allowed." 18. The Hon'ble Orissa High Court in the case of Basant Kumar Swain v. Baidya Kumar Parida reported at 1987 (0) AIJ-OR 1504030 has held as under:- "Code of Civil Procedure, 1908 - Or.26r.9 - S.116 - Commissions to make local investigations - part to apply only to certain high courts application allowed." 19. The Hon'ble Orissa High Court in the case of Basant Kumar Swain v. Baidya Kumar Parida reported at 1987 (0) AIJ-OR 1504030 has held as under:- "Code of Civil Procedure, 1908 - Or.26r.9 - S.116 - Commissions to make local investigations - part to apply only to certain high courts application allowed." 19. The Hon'ble Orissa Court has in the case reported at AIR 1989 Ori 118 has held that court commissioner cannot be appointed to collect evidence where it can get evidence. This Hon'ble Court in the case reported at AIR 1996 Guj 72 has held that in absence of any prima facie case, there is no point in grating the application for appointment of Court Commissioner. 20. The petitioner craves leave to refer to and rely upon the judgment in the case reported at 2009 (0) AIJ-AP 420997, AIR 1978 Cal 296 , 2010 (0) GLHEL-HC 224141 and 1987 (0) AIJ - OR 1504030. 21. The grounds raised in the application Exh. 4 for seeking relief of appointment of Court Commissioner are not tenable in the eye of law. 22. Even otherwise also, the impugned order passed by the Labour Court is illegal, arbitrary, perverse, capricious, suffers from error apparent on the face of record and also bad in law. The impugned order is also contrary to the facts and circumstances of the case and also settled position of law. The impugned order is also contrary to the provisions of law and therefore the same is liable to be quashed ans set aside." 6. Having gone through the material on record, this Court finds that the workmen are clamoring for their unpaid wages and had moved labour machinery under the Payment of Wages Act. There appears to be complete non-cooperation by the petitioner before the said authority. Under these circumstances, an application was moved on behalf of the workmen, on which the impugned order is passed by the Labour Court, which is the subject matter of this petition. The Court below has recorded that, in view of the provision of Order 26, Rule 9 of Civil Procedure Code, 1908, it does have jurisdiction to exercise powers under such circumstances. The Court below has recorded that, in view of the provision of Order 26, Rule 9 of Civil Procedure Code, 1908, it does have jurisdiction to exercise powers under such circumstances. True it is, that such power has to be exercised sparingly, but when a Court of law, on facts is satisfied that attempt on the part of the employer is to frustrate the legitimate dues of workers, and if the Court is of the view that some information is required which a litigant is not providing for, the Court should not feel helpless. The Labour Court has, in the facts of this case, tried to deal with the hurdles created by the employer in arrears, by exercising powers, with which the employer is aggrieved and even before this Court, he is not ready to even reply, as to what he has to say with regard to unpaid wages of the workers. In this fact situation, interference in the impugned order of the Labour Court and the Authority under the Payment of Wages Act, in my view, would result in miscarriage of justice and would acknowledge defiance of law by the employer. Further, having gone through the reasoning recorded by the Court below, I see no illegality or infirmity in it, which may call for interference by this Court. The contentions raised and authorities relied by learned advocate for the petitioner, in this fact situation, in my view, will not take the case of the petitioner any further. In my view, the Authority under the Payment of Wages Act, does have power to pass an order which it has passed. 7. For the reasons recorded above, this petition is summarily rejected. APR150 Petition summarily rejected.