Allahabad High Court
Vishnu Jaiswal Prop.M/S Calcutta ... vs Pradhikari Vetan Bhugtan ... on 1 August, 2019
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 25
Case :- MISC. SINGLE No. - 1587 of 2013
Petitioner :- Vishnu Jaiswal Prop.M/S Calcutta Battery Service
Respondent :- Pradhikari Vetan Bhugtan Adhiniyam-1936 Avem Upsramayut &Anr
Counsel for Petitioner :- Syed Mohammad Munis Jafri
Counsel for Respondent :- C.S.C.,Shiraj Ahmad Khan,Surendra Yadav
Hon'ble Mrs. Sangeeta Chandra,J.
Oral
Case called out.
Learned counsel for the petitioner is present.
He has pointed out the order passed by this Court on 31.1.2019. Till date no counter affidavit has been filed by the respondents although the name of Sri Shiraj Ahmad Khan and Sri Surendra Yadav have been shown as appearing for the respondents.
This Court has also perused the later orders dated 7.3.2019, 14.3.2019, 16.4.2019, 23.4.2019, 15.5.2019, 2.7.2019 and 25.7.2019. On none of the earlier dates fixed for hearing, the learned counsel for the private respondents have appeared. This Court therefore proceeds to hear the matter ex-parte.
Heard the learned counsel for the petitioner and the learned standing counsel who appears on behalf of the opposite party no. 1 - Prescribed Authority under the Payment of Wages Act, 1936 i.e. Deputy Labour Commissioner, Faizabad.
It has been submitted by the learned counsel for the petitioner that the petitioner is a Proprietor of M/S Calcutta Battery Service and he had never impleaded the opposite party no. 2 as a worker in his firm.
The opposite party no. 2 filed an application under Section 15 of the Payment of Wages Act before the opposite party no. 2 without impleading the petitioner. In the said application, it was submitted that the opposite party no. 2 had been engaged by Shanker Lal Jaiswal, Proprietor of M/S Calcutta Battery Service and when notices were issued Shanker Lal Jaiswal who is real brother of the petitioner filed his reply and also appeared before the Prescribed Authority and stated clearly that he was not the Proprietor of the Firm in question and he had never engaged the opposite party no. 2 as a worker. There was no question of such engagement also as he was not the Proprietor of the Firm.
On the basis of submissions made by Shanker Lal Jaiswal notice was issued to the petitioner, Vishnu Jaiswal as Proprietor of Calcutta Battery Service and he submitted an affidavit through post on 7.9.2011 clearly denying the averments made in the application of the opposite party no. 2, but the Prescribed Authority in the order impugned has observed that after notice was issued to the petitioner, he refused to submit any reply and on 9.8.2011, the Prescribed Authority decided to proceed ex-parte, and therefore the affidavit submitted through post received on 7.9.2011 cannot be taken into account.
It has been submitted by the learned counsel for the petitioner that even if the affidavit filed by the petitioner was not taken into account on the ground that an order had already been passed to proceed ex-parte by the Prescribed Authority, yet the facts as mentioned in the impugned order are such that Prescribed Authority could not have directed payment of 72,000/- @ 6,000/- per month in favour of the opposite party no. 2.
It has been submitted that the opposite party no. 2 is his oral evidence before the opposite party no. 1 had admitted that he did not know any person who was working in the firm concerned, and also that he did not know any thing about repair of batteries. He had no experience in working with batteries altogether. He had also admitted before the Prescribed Authority that he was the Secretary of Rastriya Janta Dal for the State of U.P. and also working President of Apradh Unmoolan Samiti.
Shanker Lal Jaiswal - the brother of the petitioner had also stated in his oral evidence before the Prescribed Authority that he knew the opposite party no. 2 for the past 22 to 25 years as he was friend of the petitioner, Vishnu Jaiswal, his real brother.
It is apparent from a perusal of the order impugned that there were two firms, one owned by the petitioner and the other owned by his brother, Shanker Lal Jaiswal which related to service and repair of batteries. The two firms may be interconnected because they were being run by two real brothers, but it cannot be said that Shanker Lal Jaiswal was the Proprietor of the firm, Calcutta Battery Service. The appointment order filed along with application of the opposite party no. 2 showed clearly that it had been issued by Shanker Lal Jaiswal who has admittedly not the Proprietor of the firm M/S Calcutta Battery Service.
No order could have been passed by the Prescribed Authority even on the fact as were evident in the affidavit and oral evidence led by the parties, ignoring the affidavit of the petitioner that was received by the Prescribed Authority on 7.9.2011.
Having heard the learned counsel for the petitioner and the learned standing counsel, this Court is of the considered opinion that the order passed on 21.4.2012 is completely arbitrary and unreasoned.
When true facts had come to the knowledge of the Prescribed Authority, he could not have directed payment of wages as prayed by the opposite party no. 2.
The impugned order is set aside.
The writ petition stands allowed. Consequences to follow.
Order Date :- 1.8.2019
Arif
