JUDGMENT

Abdul Moin, J.

Heard learned counsel for the petitioners, learned Standing Counsel for the respondents no. 1 and 3 and Shri Shobhit Nigam, learned counsel for the respondent no. 2.

2. The instant petition has been filed challenging the orders dated 14.01.2019 and 09.12.2022 passed by the Assistant Labour Commissioner under the provisions of the PAYMENT OF WAGES ACT , 1936 (hereinafter referred to as the Act, 1936), a copy of the said orders are annexures 1 and 2 respectively to the petition. A further prayer is for quashing of the recovery citation issued by the respondent no. 3.

3. The case set forth by the petitioners is that an application under Section 14 of the Act 1936 was filed by the respondent no. 2. No notice of the said application was served upon the petitioners and the matter was decided ex-parte vide the order dated 14.01.2019. It is only when the recovery notice was issued by the authority and the same was served upon the petitioners that they came to know about the ex-parte order dated 14.01.2019. The petitioners immediately filed an application for recall of the said order which has been rejected by means of the order dated 09.12.2022.

4. Being aggrieved the instant petition has been preferred.

5. A preliminary objection has been taken by Shri Shobhit Nigam, learned counsel appearing for the respondent no. 2 that there is statutory remedy of appeal under Section 17 of the Act 1936 against the order impugned and hence keeping in view the Neutral Citation No. - 2023:AHC-LKO:4174 aforesaid statutory remedy, the instant writ petition would not be maintainable.

6. Responding to the same Shri Pritish Kumar and Shri Shantanu Gupta, learned counsels for the petitioners argue that as the order impugned dated 14.01.2019 is patently without jurisdiction the writ petition would be maintainable before the writ court keeping in view the law laid down by Hon'ble the Apex Court in the case of Magadh Sugar and Energy Ltd v. State of Bihar reported in AIR Online 2021 SC 770 in as much as where an order is patently without jurisdiction, a writ petition would be maintainable despite availability of statutory alternative remedy.

7. Having heard learned counsel for the parties on the preliminary objection and having perused the record what emerge is that an application under Section 14 of the Act 1936 was filed by the respondent no. 2. The matter was decided ex-parte vide the order dated 14.01.2019. The petitioners claim to have come to know of the said proceedings and order only when the recovery notice was issued and served on them. They filed an application for recall which has been rejected by an order dated 09.12.2022. Being aggrieved the instant petition has been preferred.

8. The ground for not availing the statutory remedy of appeal under Section 17 of the Act 1936 being taken before this Court is that the authority did not have jurisdiction to entertain and decide the matter.

9. Once the petitioners chose to file an application for recall then it is not that the petitioners have straightaway approached this Court challenging the order passed by the authority raising the point of jurisdiction in as much as they filed an application for recall of order dated 14.01.2019 which has been rejected vide order dated 09.12.2022 and challenging both those orders, the instant petition has been filed.

10. This aspect of the matter should have been first indicated to the authority itself by means of an application for recall which admittedly was filed before the authority concerned which application has been rejected vide the orde