Mohammed and Sons vs Mohammed Ayub and Another

K.S. Lodha, J.—The two revisions involve common questions and therefore, they are being disposed by common order.

Briefly stated, the facts giving rise to these revisions are that there was a firm styed as M/s Mohammed and Sons, which was started somewhere in the year 1951 by Mohammed and his sons. It carried on the business of gypsum. Non-petitioner Mohd. Ayub claims to be an employee of this firm. He filed several claims against the firm Mohammed and Sons before the Payment of Wages Authority, one claim being No. PWA 65/80 was for wages for February, 1979 to December, 1979 and other claims 11 in number in all, and all these claims were consolidated. In some of them, the names of various partners of the firm Mohd. and Sons were stated and in some others only the name of the firm Mohd. and Sons was stated as the person responsible for payment of wages to the claimants. In the other claim No. PWA 65/80, name of the firm alone was mentioned in Col. 3-C of the application. It appears that on 24-4-1981, all these claims were dismissed in default. Shri Mohd. Ayub filed application for restoration of these claims, on 20-5-81, but the same also were dismissed in default. Thereafter, other applications for restoration of the said applications were filed on 4-12-1981 and after contesting these application were also dismissed on 31-12-1983. Mohd. Ayub thereupon filed two appeals before the learned Additional District Judge, Nagaur and in these two appeals he only impleaded one Yusuf as respondent. He neither impleaded the firm M/s Mohd. and Sons nor any other partner thereof. Before the learned Additional District Judge, two applications were filed by Abdul Waheed and the other by some of other partners of the firm praying that they may be impleaded as respondents in the appeals since their interests were vitally effected. So far as Abdul Waheed is concerned, it was further stated that in a suit for rendition of accounts pending between the partners of the firm, Shri Abdul Waheed bad been appointed as interim receiver by this Court on 5-1-1982 in Civil Misc. Appeal No. 86/86 and as a Receiver of the firm, he is interested in the disposal of the appeals. It was also stated that the only respondent, who had been impleaded in these appeals, viz. Shri Yusuf, was father-in-law of the appellant and there was collusion between the two and Shri Yusuf was bent upon harming the partners and helping his son-in law. This application appears to have been opposed by the appellant before the learned Additional District Judge and the learned Additional District Judge, by his order dated 30-7-1987, dismissed these applications on the ground that there had been a change in the constitution of the firm and that original firm Mohd. and Sons did not continue and had been dissolved. Therefore its partners or the Receiver cannot be deemed to be necessary parties to the appeals. He was also of the opinion that the applications were belated. Aggrieved by the dismissal of these applications, these two revisions have been filed by the alleged partners as well as Abdul Waheed.

I have heard learned Counsel for the petitioners and Mohd. Ayub in person. Non-petitioner No. 21 has not appeared despite service.

A preliminaty objection has been raised by Shri Mohd. Ayub to the effect that revision u/s 115, CPC is not maintainable against the order of the learned Additional District Judge as he is persona designate under the Payment of Wages Act and not court subordinate to this Court. In this connection, he has placed reliance on Kaliash Chandra Sharma v. Union of India and Ors. 1984 RLR 740. Learned Counsel for the petitioners submits that the District Judge hearing appeals against the orders of the authority under the Payment of Wages Act is not persona designate but is a court subordinate to this Court within the meaning of Section 115, CPC and therefore, the revision is maintainable. He has placed reliance upon Bhonwari Singh v. Dy CEM Loco Shops W. Rly 1958 RLW 420. I have carefully considered the rival contentions of the parties. The Division Bench of Court in Bhonwari Singh''s case (supra), has clearly laid down that the District Judge hearing the appeals u/s 17 of the Payment of Wages Act is not persons designate but is a court subordinate to the High Court and revision aga:nst his order lies to the High Court, I am bound by this Division Bench decision and in this view of the matter, the preliminary objection deservea to be rejected. It may however, be added that so far as the authority relied upon by Shri Mohd. Ayub i.e. Kailash Chandra''s case (supra) is concerned, it does not lay down that the revision against the order passed by the District Judge in exercise of his powers u/s 17 of the Payment of Wages Act, is not maintainable. What the learned Judge has observed is--

He has also submitted that a revision lies in the High Court against the order of the learned District Judge and since the petitioner had an alternative remedy, the High Court should not interfere in the writ jurisdiction. In my opinion, since there is no appeal or revision provided under the Payment of Wages Act it cannot be said that the petitioner had an alternative remedy by way of filing a revision in the High Court and even if it be held that there is an alternative remedy I am of the opinion that if the order is illegal and against law, there is no legal bar in exercising the writ jurisdiction for doing justice.

The observations clearly appear to be obiter and in the circumstances of the case and in view of the decision of the Division Bench, these observations are of no avail. I am clearly of the opinion that the revisions are maintainable.

Now coming to the merits of the matter, it may at once be stated that in all 11 claim petitions, which have been consolidated relating to the period from 16-11-71 to 24-7-74, non-petitioner No. 1 himself has named the partners of the firm M/s. Mohammed and Sons as the person responsible for the payment of the wages, for example, in the claim dated 16-11-1971, he has named Inayatullah; in the claim dated 26th December,'' 1971, he has named Yusuf and Inayatullah; in claim dated 23-1-1972, he has named Abdul Rahim, Abdul Hakim, Yusuf, Inayatullah, Abdul Aziz, Hamidullah and Smt. Janeb; in the claim dated 21-2-1972, he has named Yusuf and Inayatullah, in the claim dated 21-2-1972 he has named Abdul Rahim, Abdul Hakim, Yusuf, Inayatullah, Hamidullah, Abdul Aziz and Smt. Janeb; in the claim dated 20-3-1972, he has named Yusuf; in the claim dated 20 3-1972, he has named Abdul Rahim, Abdul Yusuf, Inayatullah, Hamidullah. Abdul Aziz and Smt. Janeb. In another claim dated 24-4-1972, he has named only Yusuf but in claim dated 13-4-1972 he has named firm Mohammed and Sons and also in the claim dated 27-4-1974 again he has named firm Mohammed and Sons. In the claim dated 26-2-1980 i.e. Claim No. PWD 65/80, he named the firm. Thus, it would be clear that atleast in some of the claims the claimant had named the different partners as responsible for payment of his wages and in some other claims, he merely named the firm as person responsible for the payment of wages. Therefore, I am of opinion on the face of the appeals, that appeals were not properly constituted, as the persons who had been made parties or named as persons responsible for payment of wages, had not been impleaded in the appeals. It would have, therefore, been for the court hearing the appeals when discrepancy was pointed out, to say that the appeals were properly constituted and necessary parties were brought on the record. However the Court inspite of this fact being brought to its notice by different applications of the Receiver as well as other partners, refused to implead these persons as parties to the appeals merely on the ground that the firm had undergone changes in its Constitution in the meantime the applications were belated. So far as the questition of delay is concerned, in the facts and circumstances of this case, it appears to be immaterial inasmuch as the appeals had not been disposed of and the objections had been raised even before the appeals came up for hearing. So far as the change in the constitution of the firm was concerned, the court failed to take note of the fact that in atleast some of the claims, the firm itself had been named as person responsible for the payment of wages and, therefore, the persons, who claimed to be partners of the firm, clearly appeared to be necessary parties unless any one particular person had been named as a person responsible for payment of wages. Apart from this, the court also failed to consider the material and significant fact that the dispute between the partners had been the subject-matter of a suit for rendition of accounts and in that suit, the court had appointed an interim Receiver by its order dated 5-1-1982 in Civil Misc. Appeal No. 86/80, the decision of which has been reported in Yusuf v. Hamidulla 1982 RLW 116. When the Receiver in the suit for rendition of accounts relating to partnership firm M/s Mohd. and Sons, had been appointed he was really the person, who was responsible for the management of the partnership business and, therefore, he must be deemed to be a person responsible for the payment of the wages to the employees of the firm. The court-below also appears to have lost sight of the fact that there was serious allegation that Mohd. Ayub, who had been impleaded as the only respondent, was father-in-law of the appellant and in view of the strained relations between Mohd. Ayub and the other partners and the collusion between Mohd. Ayub and Shri Yusuf, it was necessary to implead the Receiver as the respondent in order to safeguard the rights of other partners. He, therefore, certainly was a necessary party and the learned lower court acted with material irregularity in the exercise of its jurisdiction in not impleading him as party-respondent.

Non-petitioner Shri Mohd. Ayub has submitted written arguments. I have carefully gone through them. The fact that Abdul Waheed had been appointed Receiver in the aforesaid suit has not been denied in these arguments. However, it has been submitted that in a reply filed to the writ petition being S.B. Civil Writ Petition No. 1308/80, and other connected writ petitions, it has been stated by the Receiver Shri Abdul Waheed--"It is denied that this Hon''ble Court while appointing Shri Abdul Waheed (one of the petitioner firm) as the Receiver made any direction in its order dated 5-1-1982, appointing Receiver to hand-over all the assets to the Receiver", and it is urged that in face of this admission of Shri Abdul Waheed, he cannot claim now to be impleaded as a party. I am not impressed by this contention in as much as this statement in the reply to the writ petition was made in a very different context and this statement does not detract from the fact that Abdul Waheed has been appointed as Receiver and is, therefore, responsible for the management of the partnership firm. It was also mentioned in the arguments that Mohd. Ayub has been employed by Shri Yusuf, the partner, through an appointment letter dated 20-6-1962 and since then, he is a servant, who has been working under the control, supervision and direction of his own master Shri Yusuf, and therefore, any person other than Shri Yusuf need not be impleaded as a party. But, this circumstance also cannot be of any avail since the dispute between the partners has arisen and a Receiver has been appointed. Now, after the appointment of the Receiver, it is the Receiver who should be held responsible for the management of the firm. The change of the constitution of the firm also has been referred but that also,in my opinion, is of no avail. The constitution of the firm is a matter inter-se the partners and so far as the employee is concerned, he cannot take any advantage of this, at this stage.

A contention has also been raised that the provisions of Order 1, Rule 10, CPC are not applicable to the proceedings under the Payment of Wages Act. In my opinion, this contention also is devoid of any substance. Once it is held that the first appellate court, from whose order, the revisions have been filed, is not persons a designate, but is Court, the provisions of the CPC clearly apply. In the second place, as already stated above, in the claims filed by the non-petitioner Shri Ayub, the persons apart from Shri Yusuf have also been made parties and described as persons responsible for payment of wages. Therefore, those persons were clearly necessary parties to the appeal also and even if for the sake of argument it is held that Order 1, Rule 10, does not apply in terms, the principle underlying it will certainly apply. In these circumstances, I am firmly of the opinion that the learned lower court was not at all justified in refusing the application for impleading the applicants as parties to the appeal. However, it may be added that when the Receiver Shri Abdul Waheed has come forward for being impleaded, he being the receiver and representative of the firm, the other partners of the firm need not be impleaded, as they will be deemed to be represented by Shri Abdul Waheed.

The revisions are, accordingly, partly accepted. The orders of the learned Additional District Judge, Nagaur dated 13-7-1987 are set aside and it is directed that Shri Abdul Waheed, the Receiver, shall he implcaded as a party respondent to the appegls. Looking to the circumstances of the case, I shall make no order as to costs of these revisions.