IMPORTANT POINT
Orders passed by the appellate authority under the Payment of Wages Act are subject to revision under Article 227 of the Constitution, not Article 226.

JUDGMENT :

Ashutosh Srivastava, J.

Heard Shri Prabhav Srivastava, learned counsel for the petitioner and Shri Satyendra Narayan Singh, learned counsel, who has appeared on behalf of respondent No. 2 on caveat.

2. Learned counsel for the petitioner is permitted to make necessary correction in the Serial Number of the parties appearing at various places of the petition.

3. The instant petition under Article 227 of the Constitution of India has been filed for setting aside the final judgment/order dated 19.9.2023 and formal order dated 16.11.2023 passed by the Additional District & Sessions Judge,-IX at Kanpur Nagar in Misc. Civil Appeal No. 3 of 2023 (Jayant Srivastava and another v. Prescribed Authority, Payment of Wages Act, 1936/Assistant Labour Commissioner, Kanpur Nagar, Kanpur and others) as also the final Award dated 4.6.2022 passed by the Prescribed Authority/Additional Labour Commissioner, Kanpur in PW Case No. 47 of 2018 (Shyamji Verma and others v. Jayant Srivastava and another). A further direction to the respondent No. 2 to release/return the amount deposited in pursuance to the Award dated 4.6.2022 in favour of the petitioner has also been prayed for.

4. It is the case of the petitioner that he is the Managing Director of M/s. Bhoomi Shakti Developers Pvt. Ltd., a Limited Company incorporated under the Provisions of Companies Act, 1956. The said company entered into a Builders' Agreement with one Smt. Madhubala for development of a residential house. In furtherance of the said Builders' Agreement, a sub contract was given to Shri Shyam Ji/respondent No. 2 for doing false ceiling etc., in the building in question. A sum of Rs. 30,000/- was advanced to the said Shri Shyam Ji. However, the work was not got done through Shri Shyam Ji and the payment of Rs. 30,000/- was stopped by the Bank upon the instructions from the company. The respondent Nos. 2 to 5 filed an application under the Payment of Wages Act, 1936 before the Prescribed Authority (Additional Labour Commissioner) which proceeding were registered as PW Case No. 47 of 2018. It was alleged that the respondent Nos. 2 to 5 were engaged as mason on daily wages of Rs. 500/- and they worked for the period 1.10.2017 to 28.3.2018 regularly. They were paid a sum of Rs. 32,500/- out of total amount of Rs. 75,000/-. The company M/s. Bhoomi Shakti Developers Pvt. Ltd., was not made a party to the proceedings and only the petitioner was impleaded in the personal capacity as Builder. The learned Prescribed Authority vide its order dated 4.6.2022 allowed the claim of the respondent Nos. 2 to 5 and directed the petitioner to deposit a sum of Rs. 2,50,500/- with the Labour Commissioner, Kanpur, failing which the amount would be recovered by issuing recovery certificate. The appeal preferred by the petitioner under Section 17 of the Payment of Wages Act, 1936 before the Appellate Authority i.e. the District & Sessions Judge, Kanpur Nagar has been rejected.

5. At the very out set, a preliminary objection has been raised on behalf of the contesting respondent regarding the maintainability of the petition under Article 227 of the Constitution of India. Learned counsel for the contesting respondent submits that the order of the Appellate Authority under the Payment of Wages Act, 1936 is liable to be assailed in a writ petition under Article 226 of the Constitution of India and the present petition under Article 227 of the Constitution of India is not maintainable. Learned counsel for the petitioner, however, has asserted that the petition under Article 227 of the Constitution of India is maintainable. Shri Ishan Mehta, learned Additional Chief Standing Counsel for the State of U.P. has also assisted the Court by making submissions that a civil revision under Section 115 CPC would be maintainable.

6. Since the parties are at variance as to the maintainability of the present petition, the Court is of the opinion that the preliminary objection as to the maintainability should be brought to