JUDGMENT
Aloke Chakrabarti, J.
1. The order passed by the authority under the Payment of Wages Act has been challenged here by the employer.
2. Relevant facts stated In the writ petition are that predecessor of the respondent Nos. 3 to 10, one Anwar Khan was a Development Officer of the petitioner Corporation and the Corporation retired him on 30.4.1979, when he attained the age of 58 years. Anwar Khan filed original suit before the learned Munsif which was ultimately decreed. Appeal filed by the Corporation was dismissed and Corporation challenged the same further filing Second Appeal No. 1662 of 1982 which is pending in this Court. Anwar Khan filed application before the authority under the Payment of Wages Act claiming
various amount under various heads which was allowed by the order dated 11.6.1993. Petitioner Corporation’s appeal against the said order was rejected on 7.5.1999. Hence this writ petition was filed.
3. Dr. R. G. Padia. learned counsel for the petitioner Corporation raised several points on law. Mr. K. P. Agarwal, learned counsel appearing for the respondents, heirs of the said Anwar Khan, who has expired in the meantime, contested the proceeding and agreed to final disposal of the writ petition at this stage without filing counter-affidavit as questions raised on behalf of the petitioner are all on law.
4. Learned counsel for the petitioner’s first objection was that the suit itself was not maintainable. The second contention of the petitioner was that if the respondent wanted to get any benefit out of a decree in a civil suit, he had to execute the decree according to the provisions of the Civil Procedure Code and the application under the Payment of Wages Act was not maintainable. The third objection raised by the petitioner was that according to the provisions of subsection (6) of Section 1 of the Payment of Wages Act the respondent drawing salary at a higher rate Is not entitled to forum under the Payment of Wages Act. The next contention made by the petitioner is that limitation has been prescribed under the Payment of Wages Act and the application under the Payment of Wages Act being beyond the period of limitation is liable to be rejected particularly when no application for condonation of delay was at all filed. The last objection raised by the petitioner Is that when admittedly dispute was existing as regards payability of the amount and the petitioner Corporation has already challenged the decree in the civil suit in a second appeal which is still lying pending compensation amount should not have been directed to be paid.
5. On behalf of the contesting respondents, it is contended that decree itself caused entitlement of
payment of wages and other benefits of service. The appeal by the Corporation having failed and there being no interim order in the present second appeal, on the basis of the decree itself the claim could be made. With regard to the second objection of the petitioner it is stated that undoubtedly a civil court’s decree can be executed but here the notice of retirement having been rendered non-est, the predecessor of the contesting respondents became entitled to all relief on the basis of such decree. Such reliefs include right to be paid wages and in such circumstance a proceeding for payment of wages according to any statutory provision of a financial legislation cannot be held maintainable.
6. With regard to the next contention as regards Section 1(6) of the Payment of Wages Act. it is stated on behalf of the respondents that entitlement was under the U. P. Dukan Aur Vanljya Adhisthan Adhiniyam. 1962. The said Act in its Section 18 provides that wages of an employee if not paid as provided by or under the said Act, shall be recoverable in the manner provided in the Payment of Wages Act, as if the same wages were payable under that Act. It is further stated that the employer carrying on business of insurance is a commercial establishment within the meaning of Section 2(4) of the said Act of 1962 and, therefore, in respect of the wages proceeding under the Payment of Wages Act was available under Section 18 of the said Act of 1962.
7. With regard to question of limitation, it is contended that cause of action arose only after the civil suit was decreed, appeal by the Corporation failed and no interim order was passed in the second appeal. Therefore, it is stated that claim for wages could be made only after the aforesaid time and, therefore, there was no delay in making the application with regard to claim for wages. In this connection law decided in the case of Divisional Superintendent, N. Rly., Allahabad v. Pushkar Datt Sharma, 1967 (11) FLR 204, was relied on.
8. With regard to last contention of the petitioner, it Is stated on behalf of the respondents that after the civil court’s decree there being no stay order the wages became payable and by withholding payment of wages employer became liable to pay compensation.
9. After hearing the contention of the parties and upon perusal of the materials on record, I find thai the first objection raised by the petitioner as regards maintainability of the said suit, the said question cannot be raised in the present writ petition nor it could be urged before the authority which passed the impugned order.
10. With regard to second contention of the learned counsel for petitioner as regards relief of heirs of the workman by execution of decree in the civil suit, the record of the Second Appeal No. 1662 of 1982 pending in this Court has been checked up. A perusal of the said record indicates that the decree was passed in the civil suit whereby plaintiffs suit for declaration that the order of his retirement dated 2.11.1978 is illegal and void, was decreed with costs. Therefore, in view of said decree Itself, the order of retirement was declared illegal and void and this made the workman concerned and his heirs entitled to all benefits treating the workman as continuing in service. Therefore, the application before the authority under the Payment of Wages Act was maintainable.
11. With regard to third objection of the petitioner also, I find force in the contention of the learned counsel for respondent. A perusal of the relevant provision of Payment of Wages Act and those of U. P. Dookan Aur Vanijya Adhisthan Adhiniyam. 1962. clearly Indicates that in view of wages payable to the workman concerned, Payment of Wages Act even if not applicable, the same does not render the concerned proceeding irregular.
12. The provision of Section 18 of U. P. Dookan Aur Vanijya Adhisthan Adhinfyam clearly shows that wages of the employees, if not paid, shall be
recoverable in the manner provided in the Payment of Wages Act. 1936. as if the same wages were payable under that Act. Therefore, in the present case, application under the Payment of Wages Act was very much available to the workman and upon his death to his heirs.
13. With regard to question of delay the law decided in the case of Divisional Superintendent, N. Rly. (supra) clarifies the position and the application made after the civil suit was decreed, does not appear to suffer from delay.
14. With regard to question raised in respect of payment of compensation, it is found that after civil court’s decree dated 30.7.1981 and dismissal of appeal on 27.3.1982, the amount became payable particularly when no stay was passed in the pending second appeal. Therefore, withholding of payment of wages and delay in such factual background makes the Corporation liable for payment of same. The appellate authority has considered the matter taking into consideration the relevant facts and reduced the compensation imposed by the Prescribed Authority. The same is found reasonable and there is no reason to interfere with the same. In such circumstances, writ petition fails and the same is hereby dismissed.