S.K. Mal Lodha, J.
1. By this petition under Article 226 of the Constitution, the petitioner seeks to quash the order (Ex.2) dated November 4, 1981 of the Authority Under the Payment of Wages Act, 1936 (for short the Authority').
2. Respondent No. 1 Ramlal submitted an application before the Authority under Section 15(2) of the Payment of Wages Act, 1936 (for short 'the Act' herein). He claimed Rs. 4200/- as compensation amount, interest and costs. He sought direction under Sub-Section (3) of Section 15 of the Act. The application was contested by the petitioner on various grounds. An objection was raised in the reply to the effect that the Authority had got no jurisdiction to go into the question of crop share and to decide it and further that the dispute relating to that could only be adjudicated by a revenue court. By the order (Ex 2) dated November 2, 1981 direction for the payment of the sum of Rs. 14, 668.50p to respondent No. 1 was made. This amount consisted of the wages, overtime wages and costs. The petitioner has filed the writ petition as aforesaid for quashing the order (Ex.2) dated November 2, 1981.
3. A show cause notice was issued to the respondent. In pursuance of that, Mr. Bhagwati Prasad appeared on behalf of respondent No. 1.
4. When the case came up for admission on April 2, 1982, Mr. Bhagwati Prasad, learned Counsel for respondent No. 1 raised a preliminary objection to the effect that the writ petition should not be entertained as an appeal lay under Section 17(1) of the Act against the impugned order (Ex.2). Today, when the case was taken up for admission, learned Counsel for respondent No. 1 reiterated the aforesaid preliminary objection that as the petitioner failed to avail of the remedy of appeal under Section 17(1) of the Act, the writ petition should not be entertained. Learned Counsel appearing for the petitioner strenuously oppossed the preliminary objection and submitted that as the Act is not applicable to the wages of a person employed in agricultural field, the impugned order (Ex.2) is absolutely without jurisdiction and void and so, the existence of the provisions of Section 17 of the Act does not stand in the way of the petitioner to approach this Court under Article 226 of the Constitution. 'The period for preferring the appeal is 30 days from the date of the direction or order sought to be appealed against and that before preferring the appeal, the petitioner is required to deposit the amout for which direction has been made under Section 17(1A) of the Act and so, because of these reason, the writ petition should be entertained.
5. I have considered the arguments of the learned Counsel for the parties relating to the preliminary objection referred to above.
6. The impugned order (Ex.2) was passed on November 2, 1981 by the Authority and the application for its certified copy was made on November 9, 1981 It was ready on November 10, 1981 and it was delivered on November 10, 1981. The date fixed for disbursement of the amount awarded by the Authority in the impugned order (Ex. 2) is December 2, 1981. The writ petition was filed on November 16, 1981. There is no dispute in regard to the above facts.
7. The material portion of Section 17 of the Act reads as follows:
17. Appeal. 1977 WLN 84 Appeal against an order dismissing either wholly or in part an application made under Sub-section : AIR1981SC1862 of Section 15, or against a direction made under Sub-section : 2SCR603 , or Sub-section, (4) of that Section, may be preferred within thirty days of the date on which the order or direction was made, in a Presidency Town before the Court of Small Causes and elsewhere before the District Court
(a) by the employer or other person responsible for the payment of wages under Section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees, or such direction has the effect of imposing on the employer or the other person a financial liability exceeding one thousand rupees:
(1A) No appeal under clsuse (a) of Sub-section (i) shall lie unless the Memoradum of Appeal is accompanied by a certificate by the authority to the effect that the apdeallant has deposited the amount payable under the direction appealed against.
(2) Save as provided in Sub-section (1), any order dismissing either wholly or in part an application made under Sub-section (2) of Section 15, or a direction made under Sub-section (3) or Sub-section (4) of that Section shall be final.
(3) Where an employer prefers an appeal under this Section, the authority against whose decision the appeal has been preferred may, if so directed by the Court referred to in Sub-section (1) shall, pending the decision of the appeal, with hold payment of any sum in deposit with it.
(4)... ... ...
It is not disputed that an appeal under Section 17(1) of the Act lay before the District Judge concerned within 30 days from November 2, 1981, on which the order or direction was made by the Authority. The appeal was not filed in time before the concerned District Judge. However, as stated the writ petition was filed in this Court. Learned Counsel for the petitioner could not show me from the order (Ex. 2) that any objection that the Authority had no jurisdiction to entertain and hear and order for the payment of wages etc. to respondent No. 1 who has alleged that he was employed as agricultural labourer, was raised. An objection was merely taken in the reply filed by the petitioner that the Authority had no jurisdiction to go into the question of crop share as it could only be adjudicated by the revenue courts The precise objection which the petitioner had taken in the writ petitior. is that the provisions of the Act cannot be invoked for the payment of the wages to a person employed in agricultural fields.
8. It was held in M/s Nehru Motors, Jodhpur vs. Dy. Reg. Coop. Societies (1) that in the matter of issue of writ of certiorari, High Court exercises a special jurisdiction and not ordinary jurisdiction and that a question of jurisdiction cannot be allowed to be raised in the petition when no objection to the jurisdiction had been taken before the Tribunal,' whose order or proceedings are being challenged.
9. In Sohan Singh vs. G.M. Ordnance Factory, Khamaria (2), the direction made by the labour court was challenged in the writ petition on the plea of jurisdiction which was raised for the first time in the writ petition under Articles 226 and 227 of the Constitution of India. The High Court was of the view that the issue raised before the labour court could not be tried by it as it was beyond its competence and, therefore, set aside the direction. The Supreme Court observed as under:
The High Court seems to have taken the view that the trial of such an issue was beyond the competence of the labour court; but it has rightly been pointed out on behalf of the appellants that instead of challenging the competence of the jurisdiction of the labour court to try issue No. 4, the respondents went to trial, submitted to its jurisdiction and when a decision was given against them by the labour court, they for the first time, challenged its jurisdiction to try that issue in the High Court. On the facts of this case, therefore, we are satisfied that the High Court ought not to have entertained the point of jurisdiction urged on behalf of the respondents and set aside the order of the labour court on that ground alone.
The Supreme Court set aside the order of the High Court and remitted the case back to it with the direction to re-hear the miscellaneous petition on merits and dispose it of according to law.
10. As stated above, the objection relating to the jurisdiction of the Authority to award the amount on the application filed by respondent No. 1 on the ground that he is an agricultural labourer was not raised before the Authority and the petitioner seeks to challenge its order or direction in this writ petition on the ground of want of jurisdiction. In view of the aforesaid decisions of this Court and the Supreme Court, the plea relating to the jurisdiction, in the circumstances of the case, cannot be entertained.
11. As stated above, the remedy of appeal under Section 17(1) of the Act was available to the petitioner which he failed to avail of within the period of limitation and so, it would not be proper to invoke discretionary jurisdiction under Article 226 of the Constitution.
12. Learned Counsel for the petitioner has relied on Bengal Immunity Co. v. State of Bihar (3), Sewpujan Rai I. Ltd. Vs . Collector of Customs : 1958CriLJ1355 Calcutta Discount Co. Vs I T. Officer : 41ITR191(SC) Uchab Kanwar v. State of Rajasthan (6);1977 WLN (UC) 141 M/s Shiv Bus Service v. The RTA Jodhpur 1980 WLN 403; and to support his contention that despite the remedy of appeal under Section 17(1) of the Act, the petition under Article 226 of the Constitution can be entertained. I have read these decisions with care. There is no room for debate in regard to the principles laid down in these cases.
13. It is well settled that the existence of an alternative remedy has never been treated as an absolute bar to the exercise of the powers under Article 226 of the Constitution. It is equally well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ and where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution. In the facts and circumstances of the case on hand, I am of opinion that there is absolutely no justification for the petitioner for applying for the issue of a writ when he failed to avail of the remedy of appeal as provided in Section 17(1) of the Act.
14. I am unable to agree with the learned Counsel for the petitioner that as the petitioner was required to deposit the amount payable under Section 17(1A) of the Act under the direction appealed against, this being harsh and stringent provision, he has filed the writ petition and did not prefer the appeal. In I.T.Commr. W.B. vs. R.N. Ghosh 1972 Tax Law Reports 1104 the Supreme Court observed as under:
We cannot leave this case without expressing our disapproval as regards the procedure adopted by the High Court. The question whether the assessee had been served in accordance with the law or not is essentially a question of fact. The Income-tax Act provides for an appeal against the order under Section 33B. Normally the assessees should have gone up in appeal against the order under Section 33-B. They should not have been allowed to invoke the extraordinary jurisdiction of the High Court. This Court has emphasised that aspect in more than one decision. The learned Judges while noticing those decisions have tried to by-pass those decisions. But it is needless to go into that question now. It cannot be said that the High Court had no jurisdiction to entertain the writ petitions though it should not have exercised its discretion in favour of the assessees in view of the adequate alternative remedy they had.
15. In re S. Papireddy AIR 1977 AP 112 a learned Single Judge of the Andhra Pradesh High Court observed as under:
Sri Mallikarjuna Rao says that the petitioner cannot file an appeal except when he deposits an amount of Rs. 8000/-, and that, therefore, the writ may be admitted. I am unable to find any substance in this submission. Where there is a statutory right of appeal against the proceeding of any authority and certain conditions are to be satisfied for the institution of the appeal, it would not be open to the party having the right of appeal to come to this Court with an application for a writ of certiorari under Article 226 of the Constitution so as to avoid the conditions for the institution of the appeal. Ordinarily the High Court will refuse to entertain a petition under Article 226 of the Constitution when another remedy is open to the party. It is only in exceptional cases where it is demonstrably clear that the authority whose proceedings are in question, acted with utter lack of jurisdiction or in flagrant excess of its jurisdiction or acted in accordance with provisions of law which are void, the High Court exercises its extra-ordinary jurisdiction under Article 226 of the Constitution even if there an alternative remedy.
The pre-condition of deposit of amount under Section 1(1 A) of the Act for filing appeal is not a ground for filing writ petition under Article 226 of the Constitution. The preliminary objection raised by the learned Counsel for respondent No. 1 is, therefore, upheld.
15. The result is that the writ petition cannot be entertained as am appeal lay under Section 17(1) of the Act against the impugned order (Ex. 2) dated November 2, 1981. It is, accordingly, dismissed summarily.