CW 7351/09 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH [1] S.B. Civil Writ Petition No.7351/09 M/s. Kushal Education Trust & Anr. Versus The Authority Payment of Wages Act & Ors. [2] S.B. Civil Writ Petition No.11337/09 M/s. Kushal Education Trust & Anr. Versus The Authority Payment of Wages Act & Ors. DATE OF ORDER : 16/11/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Rajesh Kala, for petitioner Mr. Suresh Kashyap, for respondent *** Matter has come up on application U/Art.226 (3) of the Constitution for vacation of ex-parte stay order passed by this court dt.1st July, 2009. Taking note of nature of controversy and with the consent of parties, it is finally decided at this stage. The workers, who are represented by respondent no.2, filed a joint application before the Prescribed Authority under Payment of Wages Act, 1936 for their unpaid wages u/s.15(2) of the Act impleading present petitioner & respondent no.3 as respondent. After notices were served upon petitioner & respondent no.3, written statement was filed in which it was averred that agreement was executed between petitioner & CW 7351/09 [2] respondent no.3 through whom the building was constructed. The workers, who are represented by respondent no.2, if had not been paid their wages, as alleged, in the applications, can recover from respondent no.3. However, after evidence of 26 workers out of 39 were recorded who were duly cross-examined by the petitioner and as informed to this court, their evidence was closed by December, 2006 and thereafter, opportunity was afforded to the petitioner for their evidence, but time was sought for one or other reason. At this stage, application was filed [Ann.3] in CWP No.7351/09 on 11th May, 2009 raising preliminary objection that there was no relationship between petitioner & present workers of employer & employee and the building was constructed in regard to which the workers are claiming their wages at Jodhpur and respondent no.3 was their Contractor and if at all, there is any wages remained unpaid, it was the respondent no.3 Contractor herein, who is responsible and in such circumstances, in absence of any relationship between workers and petitioner, they have been unnecessarily impleaded as party respondent and the claim application qua them be rejected. Application filed at such a belated stage [Ann.3] dt.11th May, 2009 was rejected by CW 7351/09 [3] the Prescribed Authority vide order dt.11th May, 2009 itself and last opportunity was afforded to the petitioner to lead their evidence. Against the order of rejecting their misc. application dt.11th May, 2009, the petitioner preferred CWP No.7351/09 and this Court while issuing notice by an ex-parte order stayed further proceedings which are pending before Prescribed Authority vide order dt.1st July, 2009. It appears that respondents filed further application dt.25/06/2009 for impleading one Shri Sita Ram Kumawat, as alleged, that was a Sub-Contractor to be impleaded as party respondent in the application filed by respondent-workers which was also rejected on 25th June, 2009 [Ann.6] on the premise that this objection was neither raised in the written statement nor at any stage, thereafter, in absence of any pleadings on record the Sub-Contractor, as alleged, cannot now be impleaded as party respondent and accordingly, their application was rejected and this has been assailed by petitioner in their separate CWP No.11337/09. Main thrust of the submission of Counsel for petitioner is that order dt.11th May, 2009 is a non-speaking order, does not disclose reasons CW 7351/09 [4] while rejecting their application. Counsel further submits that there is no relationship of employer & employee between petitioner and workers who have filed application under Payment of Wages Act, 1936 impleading present petitioners as one of the respondent and apart from it, there is no territorial jurisdiction vests with the Prescribed Authority under the Payment of Wages Act at Jaipur since building was constructed at Jodhpur and obviously, payment must have been made to them at Jodhpur itself and further submits that ultimate responsibility of making payment of wages vests with the immediate employer through whom the workers were engaged in terms of Sec.3(2) of the Act and a suit has been filed by the petitioner against respondent no.3 for recovery of excess amount paid, which is pending at Jodhpur and there was a delay in filing application claiming wages. However, application u/s.5 of Limitation Act has been filed along with application which is still pending and the matter could not have been adjudicated for the purpose of making payment of unpaid wages u/s.15(2) of the Act unless a specific order is passed by the Prescribed Authority condoning delay under proviso to sub- sec.(2) of Sec.15 of the Act and in such CW 7351/09 [5] circumstances, application could not have been adjudicated unless preliminary objections are first decided specifically raised in the application filed by the writ petitioner on 11th May, 2009. Counsel for respondent-workers represented by Mr.Kashyap, submits that it has not been disputed and controverted by petitioner that building which was constructed, belongs to the petitioner, but it was constructed through respondent no.3 its Contractor and respondent-workers had worked in raising construction puting their heart & soul that certainly make them entitled for payment of wages and it is their inter se dispute between contractor & petitioner for the purpose of making payment of wages. But, so far as workers are concerned, they are entitled to claim their wages under the provisions of the Act, 1936 and it will be decided by the Prescribed Authority as amongst two i.e. petitioner & respondent no.3, who is responsible for making payment of their wages and which is yet to be considered after the matter be riped up for hearing, the petitioner approached this court by filing instant petitions. CW 7351/09 [6] Counsel further submits that application has been filed by respondent-workers along with application u/s.5 of the Limitation Act and it is always open for the Prescribed Authority to consider either at the preliminary stage or at the stage of final disposal of the application. Counsel further submits that pending dispute, all such objections are available which could be raised by the petitioner before the Prescribed Authority and in absence of any finding being recorded, petitioner cannot be said to be prejudiced compelling him to approach this court by filing of instant petitions. I have heard counsel for parties and with their assistance examined material on record. The uncontroverted facts remain that these workers jointly through respondent no.2 submitted their application claiming unpaid wages under the Act, 1936 impleading petitioner & so also respondent no.3 as party respondent. They have filed their written statement raising their preliminary objections and so also on merits as well and after pleadings were complete, evidence of the workers were recorded which were duly cross-examined by petitioner by December, 2006 CW 7351/09 [7] and, thereafter, opportunity was afforded to the petitioner to lead their evidence. At this stage, two misc. applications were filed; firstly on 11th May, 2009 & second on 25th June, 2009 with two separate grievance, of which reference has been made supra and both the two applications were rejected, first one vide order dt.11th May, 2009 and second application vide order dt.25th June, 2009. It is true that Prescribed Authority was expected to pass speaking order assigning reasons which discloses application of mind while rejecting misc. application filed by petitioner dt.11th May, 2009, but it still remains to be examined by this court that in absence of passing non-speaking order what prejudice can at all be caused to the petitioner when the facts remained uncontroverted and all such objections raised by petitioner in their written statement are certainly be examined by the Prescribed Authority at the final stage of hearing and making any observation at interim stage pending application may certainly cause prejudice to either of parties. Apart from it, as regards objection raising of relationship between employer & employee and so also u/s.3(2) of the Act in CW 7351/09 [8] regard to responsibility of making payment of wages and so also Sec.5 of the Limitation Act, these are objections, which are based on appreciation of facts, can be examined by the Prescribed Authority at the final stage of hearing and that too after pleadings are complete. But, as already observed supra, the petitioner filed these two misc. applications at the stage when their evidence was to be recorded and for which ample opportunity was afforded and the Prescribed Authority in the facts of the instant case, has rightly not disclosed the reasons in detail while rejecting application since disposal of misc. application, pending application, filed by the respondent-workers certainly would have caused prejudice and the rights of either parties. In the opinion of this Court, passing non- speaking order by the Prescribed Authority dt.11th May, 2009 in no manner cause prejudice to the petitioner and so far as second application rejected on 25th June, 2009 is concerned, since alleged Sub-Contractor Mr. Sita Ram Kumawat was neither party to the dispute nor such objection was raised in the written statement filed by petitioner at this belated stage, he otherwise could not be impleaded as party respondent and CW 7351/09 [9] this court can certainly infer that such misc. applications were filed only to defer/delay the proceedings which may deprive the workers to claim their alleged unpaid wages to which they are otherwise entitled for under law, however, it is subject to adjudication of the dispute in terms of procedure provided under the Act. Consequently, this court finds no substance in both the writ petitions and the same, are, accordingly, dismissed. Interim order, if any, stands vacated. [AJAY RASTOGI], J. FRBOHRA7351CW09 16-11.doc