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Sadhan Sahkari Samiti Ltd. & Others v. D.J. Deoria & Others - WRIT - C No. 6109 of 2002  RD-AH 1714 (21 July 2005)
Hon'ble Rakesh Tiwari, J
This writ petition has been filed for quashing the impugned order dated 5.1.2002 passed by the respondent no. 1- District Judge Deoria in Miscellaneous Appeal No. 38 of 1998 contained in Annexure 6 to the writ petition and order dated 6.1.2002 (Annexure 7 to the writ petition) passed by the same authority rejecting application for condonation of delay.
Sadhan Sahkari Samiti Ltd, Chharauli, Gauri Bazar, District Deoria is a primary agricultural credit society. It carries on the business of supply of fertilizers and other agricultural manures, seeds and related articles to the members who are enrolled with the society. It is a registered co-operative society governed by the provisions of U.P. Co-operative Societies Act, 1965 and rules framed thereunder.
It appears that Grijesh Mani Tripathi- respondent no. 2 moved an application under Section 15 of the Payment of Wages Act, 1936 (hereinafter referred to as ''the Act') before the Assistant Labour Commissioner, U.P., Deoria, sn authority appointed under the Act for deciding claims of delay and deduction of wages in his jurisdiction. He claimed salary w.e.f. April 1995 to August 1996 as an employee of the petitioners'-society. An ex parte order dated 12.3.1997 was passed by the Assistant Labor Commissioner, U.P. Deoria in favour of the respondent-workman directing that a sum of Rs.17,510/- as outstanding wages together with an amount of Rs.17,510/- towards compensation and Rs.100/- as litigation expenses be paid by the petitioners to the workman.
It is alleged by the petitioners that since the order/direction dated 12.3.1997 was passed ex parte, they had no knowledge about it and as soon as the impugned order came to their knowledge, they moved a recall application, which was rejected vide order dated 30.8.1997. The petitioners thereafter approached this Court by means of Civil Misc. Writ No. 18008 of 1998, which was dismissed on the ground of availability of alternate remedy of appeal under Section 70 of the Act. The appeal as well as application for condonation of delay moved by the petitioners having been dismissed by the District Judge Deoria- respondent no. 1, the petitioners have come up before this court by means of the instant writ petition.
Counsel for the petitioner has vehemently urged that the impugned award is not sustainable in law as it has been passed under the provisions of the Payment of Wages Act, which are not applicable to the Co-operative Society, which is governed by the provisions of U.P. Co-operative Societies Act, 1965 and rules framed thereunder. In support of this contention, the learned counsel drew the attention of the Court to the decision of this Court in Civil Misc. Writ Petition no. 30948 of 1995- Assistant Registrar, Co-operative Societies, U.P., Allahabad Vs. State of U.P. and others, decided on 5th November, 1996. Per counter, standing counsel defended the award and contended that there is no illegality or infirmity in the award.
Having considered the arguments advanced by counsel for the parties and gone through the record, I am of the view that the provisions of the Act are not applicable to the instant case; as has been held in Assistant Registrar, Co-operative Societies, U.P., Allahabad Vs. State of U.P. and others (supra) as under:-
"....The respondent no. 6 was employee as Secretary of a Co-operative Society and he made an application under Section 15 of the Payment of Wages Act. In my opinion, the Payment of Wages Act does not, at all, apply in this case. Section 1(4) of the said Act states that the Act will apply to persons employed in a factory or in railway administration or to establishment covered by Section 2(ii) (ag).
The petitioner is not covered by any of the aforesaid persons of section 2 of the Act. Hence the Payment of Wages Act has no application at all. The remedy, if any, of the petitioner was to apply under section 33-C (2) of the Industrial Disputes Act or Section 5-H of the U.P. Industrial Disputes Act."
The ratio laid down in the above case is fully applicable to the case, on hand. The provisions of the Act being not applicable to the establishment of the petitioners, the impugned order passed under the Act is without jurisdiction and is liable to be quashed.
In so far as the impugned order dated 5.1.2002 passed by the District Judge, Deoria in Misc. Appeal No. 38 of 1998 rejecting the application for condonation of delay is concerned, it appears that he has not applied his mind to the facts and circumstances of the case and has not passed the order in consonance with the letter and spirit of the judgment dated 10.5.1998 in Civil Misc. Writ No. 18808 of 1998 which required the case to be decided expeditiously in accordance with law and not on any technicality, which could have been cured. It appears from the order dated 5.1.2002 that some carbon copy of the affidavit had been filed and the original affidavit had not been filed. This was not an incurable defect and the petitioner could have been granted time to file original affidavit. If carbon copy had been inadvertently filed, naturally the same would not bear the seal and signatures of the Notary/Oath Commissioner on paper no. 7-C. If a party is not served with summons, it is settled law that limitation will flow from the date of knowledge. Merely observation that day to day delay, as required by law, has not been explained, is not sufficient in such cases. Justice is not only to be done but seem to have been done between the parties. The matter can not be remanded back to the Authority under the Payment of Wages Act in view of the law that provisions of Payment of Wages Act are not applicable. It would in the circumstances be very harsh on the workman who has been fighting for payment of wages which he claims to be due for the period April 1995 to August 1996 and must have incurred huge expenses. In these circumstances, ends of justice would be met if the petitioners are directed to pay a sum of Rs.5000/- towards litigation expenses to the respondent no. 2 within a period of one month from today. Respondent no. 2 may approach the Labour Court under Section 33-C(2) of the U.P. Industrial Disputes Act, 1947 thereafter and file his claim. If the claim application is filed under Section 33-C (2) or Section 6-H(2) of the U.P. Industrial Disputes Act, 1947 by or on behalf of the workman concerned within two months from today, the Labour Court shall decide the same within a further period of six months from the date of filing of the application.
In the result, the writ petition is allowed. The impugned orders dated 5.1.2002 passed by the respondent no. 1- District Judge Deoria in Miscellaneous Appeal No. 38 of 1998 and order dated 6.1.2002 passed by the same authority (Annexures 6 and 7 to the writ petition) are hereby quashed. The petitioners are directed to pay a sum of Rs.5000/- towards litigation expenses to the respondent no. 2 within a period of one month from today. If the respondent no. 2-workman files claim under Section 33-C(2) or Section 6-H(2) of the U.P. Industrial Disputes Act, 1947 within two months from today, the Labour Court shall decide the same within a further period of six months from the date of filing of the application No order as to costs.
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