Hon'ble Anil Kumar, J.—

Heard Sri Amar Nath Tripathi, learned counsel for the petitioner, learned State Counsel for opposite parties no. 1 and 2 as well as Sri Suresh Chandra Shukla, learned counsel for opposite parties no. 3 to 7 and perused the record.

2. By means of present writ petition, the petitioner has challenged the impugned orders dated 19.5.2011 and 11.4.2012 (Anexure no. 1 and 2) passed by opposite party no.2/Assistant Labour Commissioner, Lucknow.

3. Facts, in brief, of the present case are that initially a claim under Section 15(2) of the Payment of Wages Act, 1936 (hereinafter referred to as 'Act') has been filed by opposite parties no. 3 to 7 on the basis which P.W. Case no. 676 of 2008 (Ram Sajivan and others v. Dr. Smt. Malti Chaudhari) has been registered before opposite party no.2. In the said matter, a written statement has been filed on behalf of respondent on 8.4.2010 and a defence in nut shell which has been taken in the written statement as per pleadings is that no work has been taken by the petitioners who have filed P.W. case before opposite party no.2 under the Act. Thereafter, no appearance has been put on behalf of the respondent before opposite party no.2 in P.W. Case no. 676 of 2008 as such an ex parte judgment and order has been passed by opposite party no.2 on 19.5.2011(Annexure no.1). Thereafter, an application for recall of the ex parte order was moved, the same was also rejected by opposite party no.2 vide order dated 11.4.2012 (Annexure no.2), hence the present writ petition has been filed.

4. In view of the above said factual background, Sri Suresh Chandra Shukla, who has put in appearance on behalf of opposite parties no. 3 to 7 has raised a preliminary objection that against the impugned orders which are under challenge in the present case, petitioner has got statutory remedy by way of appeal under Section 17 of the Act, as such the present writ petition is liable to be set aside on the said ground alone.

5. Sri Amar Nath Tripathi, learned counsel for the petitioner opposed the objection on the ground that the order dated 19.5.2011 (Annexure no.1) is an ex parte one passed without providing any opportunity of hearing to the petitioner as provided under the Workmen Compensation Act, so the same is without jurisdiction and will not be applicable to the petitioner, hence the petitioner cannot relegate the remedy of statutory appeal as provided under Section 17 of the Act, as such the present writ petition is maintainable under Article 226 of the Constitution of India. In support of his case, he has placed reliance on the judgement of Hon'ble the Apex Court in the case of Life Insurance Corporation of India v. Anwar Khan (deceased) through Lrs.. 2007 (113) FLR 979 and the judgment of this Court in the case of M/s. Rampur Distillery v. Competent Authority and others. 2006 (108) FLR 1210.

6. I have heard the learned counsel for the parties and gone through the record as well as the preliminary objection as raised by the learned counsel for the opposite parties no. 3 to 7 in respect to maintainability of the writ petition under Article 226 of the Constitution of India. As stated in the instant case, respondent no. 3 to 7 filed a claim petition under Section 15(2) of the Act accordingly, case no. P.W 676 of 2008 has been registered before opposite party no.2 in which petitioner filed a written statement, subsequently, on account of being absent in the proceedings before opposite party no.2, an ex parte judgment and order dated 19.5.2011 (Annexure no.1) has been passed by opposite party no.2. Aggrieved the the said order, petitioner moved an application for recall of the order, same was also rejected by order dated 11.4.2012 (Annexure no.2) by opposite party no.2 keeping in view the said facts as provided under Section 17 of the Act, there is statutory remedy to file an appeal under said section by statute.

7. In view of the said fact if a statutory remedy by way of appeal is available to a person then

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