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2015 DIGILAW 424 (JK)

Dev. Pulwama v. Bilal Ahmad Bhat

2015-08-19

BANSI LAL BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J. 1. This writ petition is directed against the order dated 31.01.2015 passed by the Authority under Payment of Wages Act (Assistant Labour Commissioner, Pulwama), [for brevity 'Authority'] in a claim petition filed by Respondent No. 1 titled Bilal Ahmad Bhat v. Assistant Commissioner Development, Pulwama, in terms whereof it was held that the labour/services of the respondent were utilized by the petitioner-department from December, 1988 to July, 2013 and his unpaid wages were calculated to be Rs. 7,54,600/- and accordingly, it was directed that the Block Development; Officer, Kakapora, shall arrange for the payment of delayed wages amounting to Rs. 7,54,600/- and deposit the same in the court for disbursement to the respondent within a period of one month. The petitioners have invoked the writ jurisdiction of this Court under Article 227 of the Constitution of India read with Section 104 of the Constitution of Jammu and Kashmir for issuance of a writ of certiorari for quashing the order dated 31.01.2015 passed by the Authority. The factual matrix of the case may briefly be adverted to Respondent No. 1 filed a claim petition under Section 15 of the Payment of Wages Act, 1936, before the Authority on the ground that he has worked in the Rural Development Department, Government of Jammu & Kashmir, and his wages from December, 1988 to July, 2013 have not been paid till the filing of the claim petition, i.e., 04.09.2013. On consideration of the matter, the Authority in terms of order dated 31.01.2015 after framing the issues, directed the Block Development Officer, Kakapora, to arrange for the payment of delayed wages amounting to Rs. 7,54,600/- and directed to deposit the same with the Authority for its disbursement to the Respondent No. 1 within a period of one month stipulated therein together with the interest in terms of Section 15(5) of the Payment of Wages Act, 1936. Feeling aggrieved, the petitioners have filed the writ petition under Article 227 of the Constitution of India for setting aside the order dated 31.01.2015 passed by the Authority in the aforesaid claim petition. 2. Respondent No. 1 has filed the detailed reply and has contested the averments made in the writ petition. Feeling aggrieved, the petitioners have filed the writ petition under Article 227 of the Constitution of India for setting aside the order dated 31.01.2015 passed by the Authority in the aforesaid claim petition. 2. Respondent No. 1 has filed the detailed reply and has contested the averments made in the writ petition. It is pleaded that the writ petition is not maintainable as the writ petitioners have not availed an alternative and equally efficacious remedy in terms of Section 17 of the Payment of Wages Act by preferring an appeal and this petition has been filed to avoid the compulsory deposit as required under section 17 of the Payment of Wages Act as the petitioners have neither deposited the award amount nor obtained certificate in terms of Section 17 of the Act. 3. I have heard learned counsel for the parties at length and considered the matter. 4. Before proceeding further in the matter, it would be appropriate to have a look on the issue with regard to maintainability of the writ petition under Articles 226 and 227 of the Constitution of India read the Sections 103 and 104 of the Constitution of Jammu & Kashmir State. It is well settled that writ jurisdiction under Article 226 of the Constitution of India is extra ordinary in nature and the same is not meant for declaring the private rights of the parties. The remedy available under Article 226 is not available unless there is violation of some statutory duty on the part of the statutory authority. A writ petition is a remedy in public law which can be filed by any person but the main respondent should either be the State, Government, governmental functionaries, or its instrumentalities/agencies within the meaning of Article 12 of the Constitution. Private individuals cannot be equated with State or its instrumentalities/functionaries. All the respondents in the writ petition cannot be private individuals. However, private individuals acting in collusion with the State can be respondents in a writ petition. The person against whom writ can be issued must have some statutory or public duty to perform. Power under Article 226 is exercised at the instance of persons or citizens for vindication of their constitutional or statutory rights. The relief under Article 226 can be claimed ex debito justitiae or as a matter of right when there is infringement of fundamental rights. 5. Power under Article 226 is exercised at the instance of persons or citizens for vindication of their constitutional or statutory rights. The relief under Article 226 can be claimed ex debito justitiae or as a matter of right when there is infringement of fundamental rights. 5. However, a petition filed under Article 227, stricto-sensu is not a writ petition. The nature of exercise of power under Article 227 stands on substantially different footing. Jurisdiction under Article 227 is neither original nor appellate. Article 227 vests jurisdiction in the High Court both for administrative control and judicial superintendence over the courts and tribunals subordinate to it. While in its jurisdiction under Article 226, the High Court has power to annul or quash an order or proceedings, jurisdiction under Article 227 can be exercised to substitute the order impugned by an order which the inferior tribunal should have passed. This is apart from annulling the proceedings or quashing of the order impugned. While power under Article 226 is exercised when a party is affected, the power under Article 227 can be excised by the High Court suo motu as a custodian of justice. Thus the powers conferred under Articles 226 and 227 of Constitution of India are distinct and operate in different fields. Interference by the High Court under Article 227 is to keep the subordinate courts within the bounds of their jurisdiction. However, mere errors of fact or of law cannot be corrected by taking recourse to writ of certiorari or exercise of supervisory jurisdiction unless such error is manifest or apparent on the face of the proceedings and a gross failure of justice has occasioned thereby. Such powers are to be exercised sparingly and in appropriate cases where the judicial conscience of the court dictates it to act to bring failure of justice to halt. Caution and circumspection is to be exercised when such jurisdiction is sought to be invoked, during the pendency of any suit/proceedings before a subordinate court and the error is capable of being corrected at the conclusion of proceedings though calling for correction. I am fortified in this view by a judgment of the Apex Court in a case titled Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 . I am fortified in this view by a judgment of the Apex Court in a case titled Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 . The Hon'ble Apex Court after analyzing various decisions rendered by it, formulated the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution. "On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority. (f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality." 6. Adverting to issues raised in the instant petition, invoking of supervisory jurisdiction vested in this Court under Section 104 of the Constitution of Jammu & Kashmir State corresponding to Article 227 of the Constitution of India would be justified only if the petitioners are able to demonstrate that the impugned award if left undisturbed would occasion failure of justice. Learned counsel for the petitioners contends that the impugned award is untenable, as the same has been passed overlooking the statutory provisions engrafted under Section 15(2) of the Payment of Wages Act 1936, which provides that an application for direction to pay wages shall be presented within 12 months from the date on which deduction for wages was made or from the date on which payment of wages was due to be made, as the case may be. The relevant rule provides that claimant is required to present an application to the Authority who may refuse to entertain the same after hearing the claimants and satisfying itself, inter alia, that the claim is barred by time. If the application is entertained, the Authority is required to issue process against the employer. A conjoint reading of the statutory provision engrafted under Section 15(2) of the Payment of Wages Act, 1936 and Rules framed thereunder brings it to fore that an application presented by the claimant has to stand a preliminary screening test bearing various factors in view including the aspect of limitation and in the event of Authority coming to a conclusion that the claim is barred by limitation, it is required to consider as to whether the delay should be condoned. This exercise has to be undertaken before rejection or entertainment of the claim. This process falls within the province of the Authority under the Payment of Wages Act and lies within its exclusive domain. The Authority may accept it even if it is hit by limitation. The employer does not come into picture at this stage as the exercise is undertaken before the issue of process against the employer. The issue relating to entertainment of claim petition and condonation of delay is a matter for consideration of the Authority before it embarks upon to entertain the claim petition and decides to issue process against the employer. The issue does not involve presence or participation of the employer. It is for the claimant to satisfy the Authority, who may accept the claim petition even if it is hit by limitation. The condonation of delay is a matter involving the claimant and the Authority. The employer's role starts only if delay is condoned, the petition is entertained and the employer is summoned to appear. The employer's right is to contest the claim thereafter. The legislature did not intend to assign any role to the employer at the stage of preliminary hearing of the claim, petition, which is a matter involving a claimant and the Authority only. The employer is not required to be heard when the claim is entertained by the Authority after condonation of delay. The employer cannot be heard to say that any of his legal rights have been infringed and he has been prejudiced. The employer is not required to be heard when the claim is entertained by the Authority after condonation of delay. The employer cannot be heard to say that any of his legal rights have been infringed and he has been prejudiced. No failure of justice can be said to have been occasioned on this score. In this view of the matter, I am fortified by a judgment of this Court in State of Jammu & Kashmir v. Aftab Ahmad and others reported in 1994 JKLR 601 : 1993 KLJ 659 : JKJ Soft JKJ/12025. 7. In the case in hand, the respondent No. 1 approached the Authority under the Payment of Wages Act claiming that he had been engaged as a daily wager in the year 1988 by the Block Development Officer, Kakapora, and his wages from December, 1988 up to July, 2013 have not been paid. The claim petition was supported by a motion for condonation of delay. The Authority found that there was a sufficient cause for condonation of delay and condoned the same. Thereafter, proceeded to issue process against the petitioners herein, who filed objections denying the status of Respondent No. 1 herein as a daily wager in Rural Development Department. The Authority framed issues which were decided in favour of the respondent No. 1 herein on the basis of overwhelming oral and documentary evidence. The Authority arrived at a finding that the petitioners herein had paid wages to the Respondent No. 1 herein in part only and had sought funds for disbursement of the remaining wages. The Authority also found that the respondent No. 1 herein had admitted receiving of wages intermittently for a period of 30 months between December, 1988 up to July, 2013. The Authority found that the respondent No. 1 herein had received all the wages up to 1992. It calculated the unpaid wages at Rs. 7,54,600/-. The Authority found that the plea raised by petitioners that the claim was based on fabricated documents was not established by the petitioners herein and authenticity of the documents being copies of contemporary record was aboveboard. The finding recorded by the Authority that the labour/services of respondent No. 1 herein were utilized by the petitioner-department from December, 1988 to July 2013 and his claim for unpaid wages calculated at Rs. The finding recorded by the Authority that the labour/services of respondent No. 1 herein were utilized by the petitioner-department from December, 1988 to July 2013 and his claim for unpaid wages calculated at Rs. 7,54,600/- was unsettled is not shown to be perverse and the same cannot be disturbed in exercise of supervisory jurisdiction of this Court. 8. It emerges that the petitioners having failed to demonstrate that the Authority while adjudicating upon the claim, transgressed the limits of its jurisdiction and that the impugned award does not conform to the procedure laid down in the statute governing the claim for payment of wages, no case for intervention or interference is called for. Viewed in the above perspective, I find no perversity in the impugned order passed by the Authority, therefore, this petition filed under the supervisory jurisdiction of this Court being devoid of any force is dismissed alongwith connected CMP. Interim directions passed from time to time shall stand vacated. Registry is directed to transmit the record alongwith a copy of this judgment.