Jharkhand High Court
Ramesh Kumar Singh vs Lal Mohan Mahato on 27 November, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.1691 of 2013
Ramesh Kumar Singh S/o Ramanuj Singh, Junior Engineer, Rural
Work's Division, P.O. + P.S.+ Dist.-Motihari (Bihar).
... ... Petitioner
Versus
1. Lal Mohan Mahato s/o Late Banshi Mahto
2. Umesh Pahan S/o Chatur Pahan (Munda).
Both resident of village-Runday, P.O.-Bariyatu, P.S.-Gola, Disst.-
Ramgarh.
3. National Rural Employment Programme (NREP) through Executive
Engineer, Hazaribagh, P.O. + P.S.+ Disst.-Hazaribagh (Jharkhand)
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Ashish Verma, Advocate
For the Respondents : Mr. Arbind Kr. Sinha, Advocate
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06/Dated 27th November, 2021
1. The matter has been listed to be heard through video conferencing.
2. The instant writ petition under Article 227 of the Constitution of
India has been filed for the following reliefs:
"(i) for issuance of an appropriate Writ(s), Order(s), Rule(s) and
Direction(s) in the nature of Certiorari for quashing the order dated
01.10.2012 passed by the learned Sub-Divisional Judicial Magistrate
(S.D.J.M.) Civil court Hazaribagh issued in obedience to the order
dated 24.11.2010 passed by the Presiding Officer Labour Court
Hazaribagh in M.W. Case No.01/2005 to 04/2005 against the
petitioner and petitioner further prays for quashing/set aside the order
dated 26.07.2012 passed by the Presiding Officer Industrial Tribunal
Ranchi in M.W. A. No.4,8,9&10/2011 confirming the order of the
Labour Court Hazaribagh against the petitioner.
(ii) During pendency of this writ application the petitioner further
pray that the operation of the order dated 01.10.2012 passed by the
learned Sub-Divisional Judicial Magistrate, Civil Court Hazaribagh
may be stayed."
3. It is the case of the petitioner that one complaint has been filed by
respondent No.1 & 2, namely, Lal Mohan Mahato and Umesh Pahan
respectively, under the provision of Minimum Wages Act for less
payment of wages in the work of construction of Puliya (of
Kharkachha Nala) being registered as M.W. Case No.1-4/2005
before the Labour Court, Hazaribagh.
4. The aforesaid work was commenced by virtue of an order passed by
the concerned competent authority in view of the scheme of National
Rural Employment Programme (NREP) vide memo No.671 dated
19.11.2003 and one Sri Samrendra Prasad, Assistant Engineer, Gola,
District-Hazaribagh was allotted this work. The petitioner was Junior
Engineer during the relevant time in the Rural Engineering
Origination (R.E.O.) and not in N.R.E.P. but even then he has been
impleaded as party and subsequently the authority under the
Minimum Wages Act has passed an order on 02.11.2010 appended
Annexure-7 to the writ petition whereby and whereunder direction
has been passed for the disbursement of the entire amount pertaining
to the wages.
5. The aforesaid order was challenged by the writ petitioner before the
appellate forum, i.e., Industrial Tribunal, Ranchi being M.W. Appeal
No.4, 8, 9 & 10 of 2011 but the same has been dismissed vide order
dated 26.07.2012. The concerned respondents has filed an execution
case for executing the order passed by the original authority being
T.R. No.1200/2013 arising out of M.W. Case No.1-4/2005 wherein
an order has been passed by the Executing Court dated 01.10.2012
which has been assailed and notice has been issued upon the
petitioner for recovery of the said amount. The petitioner also
questioned the order passed by the appellate authority passed in
M.W. Appeal No.4, 8, 9 & 10 of 2011.
6. Mr. Ashish Verma, learned counsel for the petitioner has submitted
that two fold prayers have been made in the instant writ petition, i.e.,
quashing the order passed by the appellate authority confirming the
order passed by the original authority as also the order passed by the
executing court issuing notices to the petitioner for recovery of the
aforesaid amount.
7. None appears for the State.
8. This Court has heard the learned counsel for the parties and gone
across the material available on record. The writ petition has been
filed under Article 227 of the Constitution of India wherein the order
passed by the executing Court dated 01.10.2012 has been assailed as
also the order passed by the appellate authority is under challenge
under Article 227 of the Constitution of India.
9. This Court deems it fit and proper to first deal with the
maintainability of the writ petition taking into consideration the
prayers made in the writ petition.
So far as the first prayer is concerned pertaining to
quashing of the order dated 01.10.2012 passed by the executing
court, this Court is of the view that the petition filed under Article
227 of the Constitution of India will be maintainable by taking into
consideration the judgment rendered by the Hon'ble Apex Court in
Radhey Shyam and Anr. vs. Chhabi Nath and Ors., (2015) 5 SCC
423 wherein it has been laid down by the Hon'ble Apex Court that
the order passed by the judicial authority is to be looked into by the
High Court sitting under Article 227 of the Constitution of India.
Further, it has been laid down that the order passed by
the administrative authority or the quasi-judicial authority is not to be
interfered with in exercise of power conferred under Article 227 of
the Constitution of India
10. This Court, therefore, is of the view that so far as prayer pertaining to
quashing of the order dated 01.10.2012 passed by the Executing
Court will well be maintainable under Article 227 of the Constitution
of India because the order passed by the Executing Court will be a
judicial order, therefore, the High Court can well exercise its power
to look into the legality and propriety of the order in exercise of
power conferred under Article 227 of the Constitution of India.
However, the order dated 26.07.2012 cannot be looked
into since the petitioner has made a prayer for quashing of the order
passed by the appellate authority in M.W. Appeal No.4, 8, 9 & 10 of
2011 by issuance of appropriate writ. It is the admitted fact that the
issuance of appropriate writ is only considered to be issued in
exercise of power conferred under Article 226 of the Constitution of
India and not in exercise of power conferred under Article 227 of the
Constitution of India.
11. Article 226 of the Constitution of India contains a provision for
issuance of propagative writ, i.e., in the nature of mandamus, the writ
of certiorari, writ of prohibition, writ of habeas corpus and writ of
quo warranto but if the provision of Article 227 of the Constitution
of India will be seen, the same only speaks about the power of
superintendence as would appear from the judgment rendered by the
Hon'ble Apex Court in Radhey Shyam and Anr. vs. Chhabi Nath
and Ors. (supra) as also the judgment rendered in Pepsi Foods Ltd.
and Anr. vs. Special Judicial Magistrate and Ors., (1998) 5 SCC
749 and Md. Eqbal and Ors. vs. Madina Begum and Ors., 2021
SCC OnLine Jhar 659 wherein it has been laid down that the
nomenclature of the writ petition under which the petition has been
filed is not material to be considered rather the prayer of the writ
petition is required to be seen while exercising the power.
12. So far as the second prayer pertaining to quashing of the order passed
by the appellate authority, i.e., Industrial Disputes Tribunal, Ranchi,
is concerned, by which the order passed by the original authority
under the Minimum Wages Act has been confirmed which
admittedly is not a judicial order rather it is an order passed by quasi-
judicial authority, therefore, the legality and propriety of the
aforesaid order cannot be looked into by the High Court sitting under
Article 227 of the Constitution of India in view of the judgment
rendered by Hon'ble Apex Court in Radhey Shyam and Anr. vs.
Chhabi Nath and Ors. (supra).
Herein, admittedly, the petitioner has questioned the
order passed by the quasi-judicial authority in exercise of power
conferred under Article 227 of the Constitution of India and
therefore, the said writ petition is not maintainable under Article 227
of the Constitution of India because the order passed by the appellate
authority cannot be treated to be a judicial order rather passed by the
quasi-judicial authority, therefore, prayer pertaining to interfering
with the order passed in M.W. Appeal No.4, 8, 9 & 10 of 2011 is
held to be not maintainable, accordingly, dismissed.
13. So far as the merit of prayer for recovery of the amount is concerned
as would appear from the order dated 01.10.2012 whereby and
whereunder notice has been issued upon the petitioner for recovery
of the amount as has been determined by the original authority in
exercise of power conferred under the Minimum Wages Act, the
execution court has considered while issuing notice about the order
passed by the original authority which has been found to be
confirmed by the appellate authority.
14. It is settled position of law that the execution court has got least
power to go into the legality and propriety of the order rather it is the
duty of the execution court to execute the order as it is. The Hon'ble
Apex Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul
Rehman & Ors., (1970) 1 SCC 670 in essence enunciated that only a
decree which is nullity can be subject matter of objection under
Section 47 of the Code and not one which is erroneous either in law
or on facts. The following extract from this decision needs to be
referred herein:
"6. A court executing a decree cannot go behind the decree: between
the parties or their representatives it must take the decree according
to its tenor, and cannot entertain any objection that the decree was
incorrect in law or on facts. Until it is set aside by an appropriate
proceeding in appeal or revision, a decree even if it be erroneous is
still binding between the parties.
7. When a decree which is a nullity, for instance, where it is passed
without bringing the legal representative on the record of a person
who was dead at the date of the decree, or against a ruling prince
without a certificate, is sought to be executed an objection in that
behalf may be raised in a proceeding for execution. Again, when the
decree is made by a court which has no inherent jurisdiction to make
objection as to its validity may be raised in an execution proceeding
if the objection appears on the face of the record: where the
objection as to the jurisdiction of the Court to pass the decree does
not appear on the face of the record and requires examination of the
questions raised and decided at the trial or which could have been
but have not been raised, the executing Court will have no
jurisdiction to entertain an objection as to the validity of the decree
even on the ground of absence of jurisdiction."
15. Herein, the execution court after taking into consideration the fact
that the order passed by the original authority has been affirmed by
the appellate authority and since notice has been issued after
considering the aforesaid fact, the same cannot be said to suffer from
an error.
16. Accordingly, this Court is of the considered view that no interference
is required in the order passed by the execution court in T.R.
No.1200/2013 arising out of M.W. Case No.1-4/2005 dated
01.10.2012, hence, the writ petition stand dismissed so far as it
relates to interference in the order dated 01.10.2012 passed in M.W.
Case No.1-4/2005, is concerned.
(Sujit Narayan Prasad, J.)
Saurabh/-
