ORDER :

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 10.04.2013, 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.

2. 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.

3. This Court had, on 21.06.2013 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."

4. 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 22.07.2013 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.

5. The written submissions placed by learned advocate for the petitioner are as under.

1. 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.

2. 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.

3. 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.

4. 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.

5. It is submitted that in the case of M/s. E. Hill & Co.(P) Ltd. v. City Magistrate, Mirzapur reported in 1980 LIC 873, 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 characterised as incidental to claim of wages. Therefore, the authority would not have any power under Sec.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