IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.4565 (M/S) of 2001 The New Shere Punjab Restaurant . .……… Petitioner Versus The Authority of Payment of Wages Act, 1936 and Assistant Labour Commissioner, Kumaon Region, Haldwani, Nainital and others ……… Respondents Hon’ble Tarun Agarwala, J. Heard Shri Gopal Narain, the learned counsel for the petitioner and Shri N.P. Sah, the learned Standing Counsel for respondent No.1. No one appears for the workers-respondent Nos. 2 to 11. As per the direction of the Court, the Assistant Labour Commissioner, Haldwani was directed to appear in person who is present in Court alongwith the original record, which the Court has also perused. The facts leading to the filing of the writ petition is, that an application under Section 15 of the Payment of Wages Act, 1936 was filed by the respondent Nos. 2 to 11 alleging wrongful deduction of the wages for the period April, 1992 to March, 1993 and, therefore, prayed that the deducted wages should also be paid alongwith ten times compensation. It transpires that a notice was issued to the petitioner. The Prescribed Authority recorded that notice was duly served upon the petitioner inspite of which the petitioner did not appear and accordingly, the authority proceeded ex-parte and passed an ex- parte award dated 28th August, 1993 directing the petitioner to pay 2 a sum of Rs.4,73,988/- towards wrongful deduction of wages for the period April, 1992 to March, 1993. When the petitioner came to know about the said order, he moved a recall application alleging that no summons were ever served upon them. The Prescribed Authority, by an order dated 27/10/1993, rejected the application. The petitioner, being aggrieved by the said order, filed the present writ petition, which was entertained by the High Court of Judicature at Allahabad and an interim order was passed staying the recovery of the amount pursuant to the impugned order. Consequent upon the creation of the High Court of Uttarakhand, this petition has been transferred to this Court. In the meanwhile, the writ petition was dismissed on 06/09/2006 for want of prosecution. A recall application was filed which was allowed on payment of costs of Rs.3,000/- which has been deposited by the petitioner before the Bar Counsel of Uttarakhand. During the interim period when the writ petition was dismissed for want of prosecution, it transpires that the Hotel Workers Union filed an application on behalf of respondent Nos. 2 to 11 before the Payment of Wages Authority, Haldwani for the recovery of the amount pursuant to the ex-parte order dated 28th August, 1993. On that basis, a recovery certificate dated 25/09/2008 was issued. However, no recovery could be made pursuant to the said recovery certificate, as in the meanwhile, the order dismissing the writ petition was recalled and the writ petition was restored to its original number. From the aforesaid, it is clear that the respondent Nos. 2 to 11 are aware of the pendency of the writ petition but are deliberately not appearing before the Court and watching the proceedings from outside. 3 Having heard the learned counsel for the petitioner and the learned Standing Counsel, the court finds that a categorical averment was made by the petitioner that no summons were served and that the ex-parte order was liable to be recalled. The court finds that this averment was not rebutted by the respondent Nos. 2 to 11 since no objection was filed to the said recall application. Since the averments were not rebutted, the Prescribed Authority committed an error in rejecting the recall application. The learned counsel for the petitioner has filed an affidavit indicating that respondent Nos. 2 to 11 had entered into a compromise and that the wages for the period April, 1992 to March, 1993 was duly settled and that no amount whatsoever was now payable to them. These workers have filed an affidavit before the Prescribed Authority under the Payment of Wages Act, a copy of which has been filed by the petitioner in this affidavit. This affidavit also remains uncontroverted. In view of the aforesaid, this court is of the opinion that since the petitioner was not heard and that summons were not duly served, the entire proceedings being ex-parte are liable to be set aside. Consequently, the order dated 28th August, 1993 and 27th October, 1993 passed by the Prescribed Authority under the Payment of Wages Act are liable to be quashed. The recovery certificate issued pursuant to the stay order is also quashed. The writ petition is allowed. (Tarun Agarwala, J.) Dated 24.12.2009 Shiv