Payment Of Wages Act | District Judge Deciding Appeal U/S 17 Acts As A Court, Not As 'Persona Designata': Allahabad High Court

The Allahabad High Court has held that a judge appointed in individual capacity by name acts as a persona designata but when he is appointed by his designation alone, he acts as a Court. The Court held that the test to determine whether appointment is made as a persona designata or not is to see if the person has been appointed by “his name alone, the description or designation being given only to identify him.” If only the post or the designation is mentioned, then the appointment is as Court and not as persona designata.The Court thus held that order passed by a judge in appeals under Section 17 (Appeals) of the Payment of Wages Act, 1936 in his official capacity are amenable to the jurisdiction of the High Court under Article 227 of the Constitution of India.The bench comprising Justice Ashutosh Srivastava held that “the learned Additional District and Sessions Judge-IX, Kanpur Nagar while exercising powers in Appeal under Section 17 of the Payment of Wages Act, 1936 functions as a Civil Court and not as a persona designata and the order passed in exercise of such powers is amenable before this Court in a petition under Article 227 of the Constitution of India.”Factual BackgroundPetitioner, Managing Director of M/s Bhoomi Shakti Developers Pvt. Ltd. which entered into a Builders' Agreement with one Smt. Madhubala for development of a residential house. The sub-contract was given to Shri Shyam Ji for doing false ceiling etc., in the building. Though Rs.30,000/- was advanced to Shri Shyam Ji, the work was not done by him and the payment was stopped by the bank. Subsequently, Shri Shyam Ji and others filed an application under the Payment of Wages Act, 1936 before the Prescribed Authority (Addl. Labour Commissioner) alleging that they were engaged as mason on daily wages of Rs.500/- and had worked for from 1.10.2017 to 28.3.2018 regularly. It was alleged that they were only paid Rs.32,500/- out of total amount of Rs.75,000/.The company was not made a party to these proceedings, but the petitioner was impleaded in personal capacity. The Prescribed Authority allowed the claim of the respondents directing the petitioner to deposit Rs.2,50,500/- with the Labour Commissioner, Kanpur, failing which the amount would be recovered by issuing recovery certificate. Petitioner preferred an appeal under Section 17 of the Act before the Appellate Authority i.e. the District & Sessions Judge, Kanpur Nagar which was rejected. Accordingly, petitioner filed a petition under Article 227 of the Constitution of India. Counsel for respondent raised a preliminary objection to the maintainability of a petition under Article 227 against the order passed under Section 17 of the Payment of Wages Act. It was argued that such order can be challenged under Article 226 of the Constitution of India. The state counsel contended that the appropriate remedy would be a civil revision under Section 115 of CPC. Per contra, counsel for petitioner argued that under Section 17(1), Court of Small Causes or District Court function as Courts and not as a persona designata. Relying on the decision of Supreme Court in Radhey Shyam v. Chhabi Nath, it was argued that the High Court can test such orders while exercising jurisdiction under Article 227. High Court VerdictReferring to the decision of the Supreme Court in Central Talkies v. Dwarka Prasad, the Court held,“In the opinion of the Court where a judge is appointed purely in his individual capacity by name, he acts as a persona designata, but where he is appointed by his designation alone, he acts as a Court and not as a persona designata. The test to determine whether an appointment has been made as a persona designata or as a member or a class is to find out whether the person appointed has been appointed by his name alone, the description or designation being given only to identify him. Where only the profession or the occupation of the person or the post held by him is mentioned, the appointment is not as persona designata.”The Court relied on decisions of various High Courts of the country where it had been held that appellate authority under Section 17 acts as a Court and not as persona designata. Reliance was placed on The General Manager v. Paras Nath Tewari wherein the Allahabad High Court held that power to hear an appeal under Section 17 under the Payment of Wages Act is given to the District Judge and not the person sitting on the post in individual capacity. Hence, the District Judge hearing an appeal under Section 17 acts as a civil court which is subordinate to the High Court. Further, the Court observed that the Apex Court in Radhey Shyam v. Chhabi Nath had held that “(i) judicial orders of Civil Court are not amenable to writ jurisdiction under Article 226 of Constitution of India (ii) Jurisdiction under Article 227 of the Constitution of India is distinct from jurisdiction under Article 226.”The Court also placed reliance on the decision of the Supreme Court in Life Insurance...

Payment Of Wages Act | District Judge Deciding Appeal U/S 17 Acts As A Court, Not As 'Persona Designata': Allahabad High Court

Upasna Agrawal

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