1. This appeal has been preferred by the appellant against the order dated 05.10.2009 passed in W.P(S) NO. 4129/2008 by which the writ
petition filed by the writ petitioner for payment of his salary was rejected as the learned Single Judge was pleased to accept the contention of the
respondent-State that the petitioner/appellant herein had an alternative efficacious remedy before the Payment of Wages authority under the
Industrial Disputes Act where he can claim his salary.
2. The simple case of the petitioner/appellant herein before the learned Single Judge was to the effect that the salary has not been paid to him
although he is still in service as a Mixture Operator in the Rural Engineering Organization, Works Division, Gumla which admittedly is a
Government department of the State of Jharkhand. The Counsel for the petitioner had submitted before the learned Single Judge that the petitioner
is a duly appointed employee of Rural Engineering Organization and yet he has not been paid the salary although he had been continuously
discharging his duties.
3. On the other hand, the respondent-State categorically took the stand before the learned Single Judge that the petitioner/appellant herein had an
alternative remedy before the Payment of Wages authority under the Industrial Disputes Act where he could claim his wages. This contention was
accepted by the learned Single Judge and hence the writ petition was dismissed against which this appeal has been preferred by the appellant-
employee.
4. Assailing the judgment passed by the learned Single Judge, it was submitted by learned Counsel for the appellant, that the appellant could not
have been directed to approach the Payment of wages authority as he is fully entitled to invoke the jurisdiction of this Court under Articles 226 and
227 of the Constitution of India since he had not filed the writ petition in the capacity as a workman under the Industrial Disputes Act but as a full
fledged employee of the State of Jharkhand. In view of this, it was not correct on the part of the learned Single Judge, to accept the contention of
the counsel for the State and direct the petitioner to approach the Payment of Wages authority.
5. This submission could not be countered by the Sr. Standing counsel, Mr. A. Allam who had to accept the legal position that the
petitioner/appellant herein could not be construed as a workman within the meaning of Industrial Disputes Act when he, in fact, was an employee
of the respondent-State. He, therefore, submitted that although appellant''s counsel may be correct in submitting that he could not have been
directed to approach the Payment of Wages authority claiming salary, yet he is not entitled to the salary as he has disobeyed the transfer order of
the authority and had refused to join his new place of posting.
6. However, the Sr. Standing counsel is missing that this was never submitted before the learned Single Bench that the appellant had disobeyed the
order of the authority due to which he was not paid his salary. The respondent-State had categorically submitted only to the extent that the
appellant had an alternative remedy before the Payment of Wages Authority and, therefore, his plea could not be entertained by the learned Single
Judge in which we do not find any substance and hence accepted the plea of the counsel for the appellant, that the appellant could not be
construed as a workman within the meaning of the Industrial Disputes Act as he was a full fledged and duly appointed employee of the State of
Jharkhand.
7. In that view of the matter, he was well within his right to approach the Single Bench by way of a writ petition under Article 226 of the
Constitution. Besides this, the appellant also could not have been directed to approach the Payment of Wages authority as the Payment of wages
authority is under the legal obligation to compute only the wages but whenever there is legal dispute regarding the legal entitlement of the employee
to claim wages, the same has to be referred to the Tribunal by way of a reference of the dispute.
8. However, this observation in the instant matter is purely incidental as the appellant herein cannot be treated as a workman under the Industrial
Disputes Act. In view of the aforesaid reasons, the order passed by the learned Single Judge to the effect that he had an alternative remedy before
the Payment of wages authority is not fit to be sustained. We further do not find any substance in the plea of the Sr. Standing counsel that the
petitioner/appellant herein could not be paid his wages because he had disobeyed the order of the authority concerned. Even if this is so, the
respondent-State ought to have disclosed this fact before the learned Single Judge which was not done and hence was never adjudicated by the
learned Single Judge. It is for the first time that it has been submitted at the stage of appeal that the petitioner/appellant had disobeyed the transfer
order due to which the salary could not be paid to him. We, therefore, cannot accept the contention of the Sr. Standing counsel on this count too
and, consequently, the same is rejected.
9. As a consequence of the aforesaid discussions, the obvious conclusion that can be drawn is that the respondent-State shall have to pay the
wages to the appellant to which he is entitled as a full fledged employee of the State of Jharkhand since he had been duly discharging duties with
the respondent-State. In so far the contention of the respondent-State to the effect that he could not be ordered for payment of his salary for the
period during which he had disobeyed the order of the authority cannot be gone into as this plea had not been taken by the respondent-State
before the learned Single Judge.
10. We, therefore, deem it legally appropriate to set aside the order of the learned Single Judge dated 05. 10. 2009 passed in W.P(S) NO.
4192/2008, and accordingly, this appeal is allowed.