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Judgment
Rajiv Narain Raina, J.
C.M. No. 5069 of 2011
C.M. is allowed subject to all just exceptions.
L.P.A. No. 1891 of 2011
In this Letters Patent Appeal, a challenge has been made to the judgment and order dated 23.8.2011 passed by the learned Single Judge in a petition filed before this Court under Articles 226/227 of the Constitution of India praying for a writ of certiorari to quash the order dated 25.2.2011 (Annexure P-4) passed by the Assistant Labour Commissioner, Ferozepur (exercising powers of the Authority under the Payment of Wages Act, 1936).
The brief facts of the case are that the appellant filed an application u/s 15(2) of the Payment of Wages Act,1936 (for short,''The Act") making certain claims as per retrenchment notice dated 1.12.2009 served by the management upon the respondent-workman. There would be no necessity to go into the claim on merits as the adjudication of those claims are still pending before the authority under the Payments of Wages Act and that the present proceedings arise only from an interim determination of the preliminary objection raised by the management as to the maintainability of the claim application.
In support of the preliminary objection as to maintainability, the appellant has cited provisions of Section 1(4) of the Payment of Wages Act to contend that the Act does not apply to it. It has also relied upon the definition section of the Act with a view to throw out the claim of the workman at the threshold. Sub Section 4 of Section 1 states that the Act applies in the first instance to payment of wages to persons employed in any "factory,,,,". The definition of factory under the Factories Act, 1948 is of wide amplitude as settled by a long chain of decisions of this Court and of the Hon''ble Supreme Court and of different High Courts. A Refrigerator Mechanic such as the respondent -workman working with a Godrej Dealer would come within the ambit of a claim u/s 15(2) of the Act who admittedly was engaged to repair defective goods in a workshop maintained by the dealer. This activity falls within the scope of the Factories Act to wit Sections 2(k), since a ''manufacturing process'' is undertaken in the workshop. The appellant has based his claim on a Division Bench judgment of the Bombay High Court, reported as Lal and Co. Vs. Kulkarni (R.N.) and Others, . In Section 2(i-b) of the Payment of Wages Act, 1936 the word, ''factory'' has been defined to mean a factory as defined in Section 2(m) of the Factories Act, 1948. In Section 2(ii)(f) of the Payment of Wages Act it has been laid down that the Act would apply to a "workshop or other establishment in which articles are produced, adapted or manufactured with a view to their use, transport or sale". The activity carried on by the dealer appellant clearly falls within the ambit of the Payment of Wages Act and would be a manufacturing process undertaken in an ''industrial or other establishment''. We are not impressed by the argument based on the decision of the Bombay High Court which is clearly distinguishable on facts. That decision has been rendered in the context of a claim made for recovery of wages u/s 22(d) of the Act and whether such claim bars a claim u/s 33C(2) of the Industrial Disputes Act, 1947. It was held that a claim u/s 33C (2) was not barred by Section 22 of the 1936 Act. Section 22 this Act bars suits if the claim is maintainable under the special Act (1936). Further more in Lal & Co. (supra), the right claimed by the workman arose u/s 18(3) of the Bombay Shops and Establishments Act and that there was nothing in Section 38(1) of that Act to suggest that the authority under the Payments of Wages Act is to have exclusive jurisdiction for adjudication of claims under the Bombay Shops and Establishments Act. The deducible principle in the judgment on which the Court proceeded was that where a right is created by a statute which gives a special remedy for enforcing it, that remedy alone is available for the enforcement of that right.
On a query from the Bench, learned counsel for the appellant was asked whether the provisions of the Bombay Shops and Establishments Act are in pari materia with the provisions of the Punjab Shops and Commercial Establishments Act, 1958. The query met no response. No other argument was pressed.
We do not find anything wrong with the judgment of the learned Single Judge, which is upheld and consequently, the matter would now proceed to be heard on merits before the Authority under the Payment of Wages Act as expeditiously as possible.
The appeal stands dismissed with no order as to costs.