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Judgment
Paresh Upadhyay, J.—Challenge in this petition is made to the order passed by the Labour Court, Surat and the Authority under the
Payment of Wages Act, dated 10.4.2013, whereby the Labour Court has appointed the Clerk of the Court as the Commissioner to inspect the
premises of the petitioner-company at Silkwala Dyeing and Printing Mills, Gulambaba Compound, Opposite Railway Station, Surat and report
about the details of the assets of the company, and details of the position and possession of the said assets.
Learned advocate for the petitioner contended that the order passed by the Authority under the Payment of Wages Act is without jurisdiction and
therefore the same needs to be quashed and set aside.
This Court had, on 21.6.2013 passed the following order.
Mr. Manan Shah, learned advocate for the petitioner-employer contends that the order passed by the Labour Court appointing Court
Commissioner is without any authority of law. On the query put by this Court that what he has to say on merits with regard to unpaid back wages,
he does not have any answer. He prays for time.
At his request, list the matter for further consideration on 25th June, 2013.
The matter was adjourned from time to time thereafter but the petitioner has not shown readiness even to reply to the query of the Court, as to
what he has to say with regard to unpaid wages of the workers of the petitioner-company. The matter was listed on 22.7.2013 and on that day
also learned advocate for the petitioner stated that he intends to place written submissions on record and appropriate order be passed.
The written submissions placed by learned advocate for the petitioner are as under:
The petitioner has filed the present petition under Articles 226 and 227 of the Constitution of India challenging the order dated 10.4.2013
passed by the Labour Court, Surat on application below Exhibit 4 in Payment of Wages Application No. 29 of 2009. The said application Exh.4
was filed for appointment of Court Commissioner by the respondents. The Labour Court without appreciating the facts and circumstances of the
case and settled position of law, has allowed the application Exh.4.
The respondent-union had filed Payment of Wages Application No. 29 of 2009 on 12.1.2009 for recovery of delayed dues of the worker.
The petitioner appeared and filed his reply vide Exh.11 inter alia contending that some of the workers included in Schedule-A to the Payment of
Wages Application No. 29 of 2009 were either not the workers of the petitioner and that some of them had left the. petitioner in the year 2005.
The workers had claimed bonus and overtime wages for the last 5 years. Therefore, it was contended that it is highly unbelievable that the
worker would not claim his legal dues for 5 years. Various other contentions were raised in Exh.11. Annexed hereto and marked as Annexure-
W/1 is the copy of reply Exh.11.
It is submitted that in the case of M/s. E. Hill & Co.(P) Ltd. v. City Magistrate, Mirzapur 1980 LIC 873 : 1980 AIJ-U.P. 334954, it is
specifically held that when there is a serious dispute raised by the Company against the worker that the worker was not the employee or left the
job, then, in that case, questions arise as to whether the worker was the worker of the Company or not or whether the worker was in fact working
for the Company or not. The said questions are required to be decided independently and therefore, the proceedings under the Payment of Wages
Act being summary in nature, the Payment of Wages Authority would not have jurisdiction to decide the relationship of employer-employee. It is
further held that such a question cannot be possibly characterized as incidental to claim of wages. Therefore, the authority would not have any
power u/s 15 of the Payment of Wages Act to try such case.
It is submitted that following the said principle in the present case, the petitioner has raised serious objection with regard to the workers ever being
the employees of the petitioner or whether they had tendered resignation and left the services of company. The said questions cannot be decided
by Payment of Wages Authority and therefore, if the Payment of Wages Authority does not have authority to entertain the application u/s 15 of the
Act itself, then, it definitely would not have any jurisdiction or power to entertain any ancillary application such as appointment of Court
Commissioner.
The petitioner submits that section 18 of Payment of Wages Act provides for powers of authorities appointed u/s 15 of said Act and such
authority shall have limited powers of a Civil Court. As per section 15 of the Payment of Wages Act, it is clear that only cases related to deduction
made from the wages and where the payment of wages has been delayed only such cases can be decided by the Payment of Wages Authority and
question whether the workers of respondent-union were workers of company or not is not an incidental question to the above two provisions
made u/s 15 of the Act. A bare reading of section 18 makes it clear that the Act being summary in nature, the legislature never intended to give all
the powers under the Code of Civil Procedure, 1908. The only power which is given u/s 18 is for taking evidence and of enforcing the attendance
of witness and compelling the production of documents. Therefore, it is clear that there are no powers given u/s 18 for appointment of Court
Commissioner.
The petitioner humbly submits that comparatively, u/s 13(3-B)(4)(v) of the Consumer Protection Act which relates to commission for
examination of any witness. Then, the question arises as to whether the Consumer Court would have power to appoint Court Commissioner. It is
submitted that in fact, a specific provision has been made under the said Consumer Protection Act for appointment of Court Commissioner,
whereas in the present case, u/s 18 of the Act, there is no such specific provision made for appointment of Court Commissioner and therefore, the
impugned order is without jurisdiction.
It is humbly submitted that the true intention of the respondents is not properly appreciated by the Labour Court. It is submitted that the
respondents have given the said application only with a view to create evidence on record without there being any prima facie case against the
petitioner.
The Commission could not be issued by the Labour Court as issue of an inventory commission for helping a party to fish out evidence is
opposed to justice. The said principle is reiterated by this Hon''ble Court as well as Hon''ble Apex Court time and again.
There is no specific averment made in the application Exh.4 as to under what provision the said application is made. Therefore also, the
Labour Court ought to have rejected the application Exh.4.
The respondent has not produced the authority letter to represent the case of the workers union. The respondent has also not produced any
evidence to show that he is secretary of the workers union.
As per the settled position of law declared by the Hon''ble Supreme Court, it was not the business of the Court to collect evidence for party. A
commission could not be issued by the Court because issue of an inventory commission for helping the party fish out evidence is opposed to
justice.
As per the settled position of law, the Court Commissioner cannot be appointed for creating evidence in favour of either of the parties. The
same would defeat the ends of justice. It is clearly held by the Hon''ble Apex Court that it was not the business of Court to collect evidence for
parties. The commission could not be issued by the Court because issue of an inventory commission for helping a party to fish out evidence is
opposed to justice.
This Hon''ble Court in the case reported at Kishore Kumar and Another Vs. Rakesh Kumar, Jayaprakash Agarwal and Others, has held that
collecting evidence on behalf of parties is not permissible. The Hon''ble Supreme Court in the case reported at Padam Sen and Another Vs. The
State of Uttar Pradesh, has held that commission to seize books of account is bad in law.
This Hon''ble Court in the case of Kanabhai Vishrambhai Gadhvi v. Jenabai Ali Bhukea 2010 GLHEL-HC 224141, has held as under:--
Constitution of India--Art. 227 - Code of Civil Procedure, 1098 - Order XXVI, Rule 9 appointment of Court Commissioner-for ascertaining
aspect of possession in respect of suit premises application rejected held, in fact, title of suit land is to be determined and when such prayer is
made, and especially when there is no dispute with regard to over lapping boundaries or any dispute requiring local investigation as envisaged
under Order XXVI, Rule 9, Court Commissioner or else it would amount to giving opportunity to parties to have evidences or creating evidences-
petition dismissed.
This Hon''ble Court in the case of Kishorekumar and another v. Rejeshkumar Jayprakash Agarwal and others 1991 (2) G.L.H. 580, has held
as under:--
Code of Civil Procedure, 1908-Sections 75, 151, Order XXVI, Rule 9, 10A Orders relating to appointment of Court Commissioner for specific
purposes - In exercise of powers u/s 75 read with Rules 9 and 10A of Order 2 of the Code of Civil Court directing Commissioner to obtain
possession of computers of defendants and to allow plaintiff to get the contents of computers recorded in a disc or in other form--Held, such
orders amount to Court assisting plaintiff in collecting evidence--Held further this amounts also to getting the copies of account entries in the
account books prepared and brought to Court. The order [@ page 580] held, is clearly without jurisdiction vested in the Court u/s 75 and Order
XXVI of the Code.
The Hon''ble Andhra Pradesh High Court in the case of M/s. Sivashakthi Builders, Hyderabad v. A.P. State Consumer Disputes Redressal
Commission, Hyderabad 2009(0) AIJ-AP 420997, has held as under:--
Consumer Protection Act, 1986--Section 13(4) procedure on admission of complaint--Code of Civil Procedure, 1908 Order XXVI, Rule 9
Commissions to make local investigations-petition allowed.
the Hon''ble Orissa High Court in the case of Basant Kumar Swain v Baidya Kumar Parida 1987(0) AIJ-OR 1504030, has held as under:--
Code of Civil Procedure, 1908--Order XXVI, Rule 9--Section 116 Commissions to make local investigations - part to apply only to certain High
Courts application allowed.
The Hon''ble Orissa Court has in the case reported at Basanta Kumar Swain Vs. Baidya Kumar Parida and Others, has held that Court
Commissioner cannot be appointed to collect evidence where it can get evidence. This Hon''ble Court in the case reported at Shantadevi
Pratapsingh Gaekwad and Another Vs. Shrimant Sangramsingh Pratapsingh, has held that in absence of any prima facie case, there is no point in
granting the application for appointment of Court Commissioner.
The petitioner craves leave to refer to and rely upon the judgment in the case reported at 2009 (0) AIJ-AP 420997, The Institution of
Engineers (India) and Another Vs. Bishnu Pada Bag and Another,
The grounds raised in the application Exh. 4 for seeking relief of appointment of Court Commissioner are not tenable in the eye of law.
Even otherwise also, the impugned order passed by the Labour Court is illegal, arbitrary, perverse, capricious, suffers from error apparent on
the face of record and also bad in law. The impugned order is also contrary to the facts and circumstances of the case and also settled position of
law. The impugned order is also contrary to the provisions of law and therefore the same is liable to be quashed and set aside.
Having gone through the material on record, this Court finds that the workmen are clamoring for their unpaid wages and had moved labour
machinery under the Payment of Wages Act. There appears to be complete non-cooperation by the petitioner before the said authority. Under
these circumstances, an application was moved on behalf of the workmen, on which the impugned order is passed by the Labour Court, which is
the subject-matter of this petition. The Court below has recorded that, in view of the provision of Order XXVI, Rule 9 of Civil Procedure Code,
1908, it does have jurisdiction to exercise powers under such circumstances. True it is, that such power has to be exercised sparingly, but when a
Court of law, on facts is satisfied that attempt on the part of the employer is to frustrate the legitimate dues of workers, and if the Court is of the
view that some information is required which a litigant is not providing for, the Court should not feel helpless. The Labour Court has, in the facts of
this case, tried to deal with the hurdles created by the employer in arrears, by exercising powers, with which the employer is aggrieved and even
before this Court, he is not ready to even reply, as to what he has to say with regard to unpaid wages of the workers. In this fact situation,
interference in the impugned order of the Labour Court and the Authority under the Payment of Wages Act, in my view, would result in
miscarriage of justice and would acknowledge defiance of law by the employer. Further, having gone through the reasoning recorded by the Court
below, I see no illegality or infirmity in it, which may call for interference by this Court. The contentions raised and authorities relied by learned
advocate for the petitioner, in this fact situation, in my view, will not take the case of the petitioner any further. In my view, the Authority under the
Payment of Wages Act, does have power to pass an order which it has passed. For the reasons recorded above, this petition is summarily
rejected.