WP(C)/2882/2021 of PANKAJ CHOUDHARY Vs ASSISTANT LABOUR COMMISSIONER SAMBA AND ANOTHER on 31 December 2021

Sr. No. 103 Supp. List-I

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

Pankaj Choudhary

WP(C) No. 2882/2021

CM No. 9647/2021

…. Petitioner/Appellant(s)

Through:- Mr. Jagpaul Singh, Advocate.

V/s

Assistant Labour Commissioner …..Respondent(s)and anr.

Through:-

CORAM : HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE ORDER

01. The petitioner is aggrieved of the order of the Assistant Labour Commissioner (Authority Under Payment of Wages Act, 1936) Samba dated 26.02.2021 seeking recovery of the amount of Rs. 1, 38,600/- to be recovered from the petitioner in exercise of powers U/S 15(5)(b) of the Payment of Wages Act, 1936.

02. Respondent No. 2 moved an application before respondent No. 1 Assistant Labour Commissioner, Samba seeking a direction for payment of wages and other dues from his employer i.e. M/S New India Distilleries, Sujwan, Nai Basti, Samba.

03. The respondent No. 2 claimed that his services were wrongly terminated on 6[th] of July 2019 by the petitioner without any prior notice or any valid reason, and his last salary as well as other dues have not been paid to him till date.

04. The respondent No. 1, it appears, summoned the petitioner in this application but since, as per the order there was no representation on his behalf an ex parte order was passed on 26.02.2021 awarding a sum of Rs. 1,38,600/- as wages, notice pay and retrenchment compensation to respondent No. 2. The petitioner was directed to deposit the awarded amount of Rs. 1, 38,600/- within a period of 30 days.

05. The case of the petitioner is that respondent No. 2 approached him for payment of the amount in terms of the order dated 26.02.2021 only on 27.03.2021. The petitioner immediately thereafter moved an application for setting aside the ex parte order dated 26.02.2021 on the ground that he has never been served and the ex parte order has been issued against him without affording him any opportunity of being heard. It was also submitted that the petitioner being neither the employer nor the owner of M/S New India Distilleries, Sujwan, Nai Basti, Samba, therefore, no direction could be issued to him for payment of wages in terms of Section 3 of Payment of Wages Act, 1936.

06. The only grievance of the petitioner, at this stage is that respondent No. 1 without deciding the application of the petitioner for setting aside ex parte order dated 26.02.2021 has issued impugned order dated 10.08.2021 seeking recovery an amount of Rs. 1,38,600/- on account of decretal amount from from the Manager, New India Distilleries, Sunjwan, Nai Basti, Samba and the same has been sent to Chief Judicial Magistrate, Samba for recovery from the defaulter.

07. Mr. Jagpaul Singh, learned counsel for the petitioner submits that the respondent No. 1 should have recalled the order or at least decided the application of the petitioner for setting aside the exparte order dated 10.08.2021 in terms of the Payment of Wages Act, 1936 and the Rules. Respondents without deciding the application has passed the impugned order for recovery of the amount. Rule 8 of the Payment of Wages Act, 1936, which is relevant, reads as under:

“–8. Appearance of parties (1) If the application is entertained, the Authority shall call upon the employer by a notice in Form E to appear before him on a specified date together with all relevant documents and witnesses, if any, and shall inform the applicant of the date so specified.

(2) If the employer or his representative fails to appear on the specified date, the Authority may proceed to hear and determine the application ex parte.

(3) If the applicant fails to appear on the specified date, the Authority may dismiss the application:

Provided that an order passed under sub-rule (2) or sub-rule (3) may be set aside and the application re-heard on good cause being shown within one month of the date of the said order, notice being served on apposite party of the date fixed for rehearing”

08. The authority herein can proceed and determine the application ex

parte in case his employer or his representative fails to appear on specified date. However, proviso to the Rule 8 provides that order made under sub-rule (2) or sub-rule (3) may be set aside and the application be re-heard on good cause being shown within one month of the said order and notice being served on opposite party for the date set for re-hearing. The authority thus had to decide whether the application made by the petitioner for setting aside the ex parte order on good cause is being shown for providing him an opportunity of being heard. The respondent No. 1, however, should have decided the application before proceeding further for recovery.

09. In view of the aforesaid, this petition is disposed of at this stage itself by directing the respondent No. 1 to decide the application for setting aside the ex parte order dated 26.02.2021 preferably within a period of four weeks and till such time the application is finally decided the impugned order dated 10.08.2021 shall remain in abeyance.

10. Disposed of accordingly.

(Sindhu Sharma) Judge

JAMMU 31.12.2021 MICHAL Whether the order is speaking : Yes Whether the order is reportable : Yes/No