Hon’ble Sabhajeet Yadav, J.—Heard Sri Yashwant Verma, learned counsel for the petitioners and Sri Arun Kumar Singh for respondent No. 2.

By this petition, the petitioners have sought relief of writ of certiorari for quashing the proceeding of PWA Case No.18 of 2005, Ajit Singh v. Merind Ltd. and another, pending before the Prescribed Authority (under Payment of Wages Act)/Assistant Labour Commissioner, Bijnor, Uttar Pradesh. Another relief for writ of prohibition restraining the respondent No. 1 from entertaining or adjudicating upon the proceedings in PWA Case No.18 of 2005 has also been sought for. This petition was allowed in open Court on 2.12.2008 with indication that reasons will be given later on, therefore, the same are given hereinafter.

2. The brief facts leading to the case are that respondent No. 2 made an application on 6.4.2004 under Section 15 of Payment of Wages Act, 1936 hereinafter referred to as ‘the 1936 Act’ before respondent No. 1/Prescribed Authority under 1936 Act, Bijnor and claimed wages amounting to Rs.1,26,162.50. A further sum of Rs.12,61,625/- was claimed as compensation in terms of Section 15 (3) of the said Act. The petitioners filed their written statement on 14.7.2004. Apart from reply on merits the attention of respondent No. 1 was also drawn to the jurisdictional issue raised by the petitioners with regard to the applicability of provisions of the 1936 Act, and the authority of respondent No. 1 to adjudicate upon the claim laid down by respondent No. 2. In the said written statement the petitioners have inter-alia stated that the respondent No. 2 was employed as a sales representative by the petitioners and was engaged in the work of carrying samples of medicines and other products manufactured by the petitioners to doctors etc. and was enjoined to educate and apprise them of the attributes, functions and advantages of the products of the petitioners. A copy of appointment letter issued to the respondent No. 2 dated 15.3.1997 is on record as Annexure-1 of the writ petition. It is stated that the respondent No. 2 was transferred from Bijnor to Dimapur (Assam) in the year 2003 where he was to join duties by 18.8.2003. But the respondent No. 2 had failed to join duties at Dimapur and remained absent without leave unauthorizedly thereafter and since the respondent No. 2 failed to join the place of posting, no salary was paid to him on the principle of no work no pay.

3. Feeling aggrieved against the aforesaid action the respondent No. 2 made aforesaid application dated 6.4.2004 purporting to be under Section 15 of the 1936 Act and claimed the wages referred above. It is also stated that the respondent No. 2 being a sales promotion employee is neither a workman nor he was employed in any industrial or other establishment as defined under Section 2 (ii) of the said Act. The term and conditions of services of respondent No. 2 are governed exclusively by Sales Promotion Employees Condition of Service Act 1976 (hereinafter referred to as ‘1976 Act’) and the provisions of the 1936 Act stand expressly and impliedly excluded. It is also stated that the application upon which the respondent No. 1 has taken cognizance is patently without jurisdiction as admittedly the respondent No. 2 in his application has claimed to have been employed on monthly salary of Rs.13,825/-, thus the respondent No. 2 stood excluded from the operation of provisions of the 1936 Act by virtue of provisions of Section 1 (6) of the 1936 Act which places a maximum ceiling limit on the salary of employee at Rs. 1600/- per month for applicability of the said 1936 Act but despite request of the petitioners the respondent No. 1 has not decided the question of jurisdiction first, instead thereof has proceeded to fix the case for evidence by fixing date 2.11.2004 for final hearing.

4. It is stated that aggrieved by the aforesaid action and apprehending that the respondent No. 1 would not decide the issue of jurisdiction, the petit