# Anil Kumar Yadav v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 776
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-16
- **Case number:** Civil Misc. Writ Petition No. 37896 of 2007
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-yadav-v-state-of-u-p-and-others-41177
- **Pages:** 3

## Headnote

Payment of wages Act Section 17-read
with U.P. Dukan aur Vanijya Adhisthan
Adhiniyam 1962-section-18(2) and (3)-
Petitioner
working
as
manager
in
Cinema Hall-claim wages-allowed by the
prescribed authority -appellate authority
decided
the
claim
on
the
ground
provision of payment of wages not
applicable on cinema oil-and being the
manager excluded from the definition of
workman
-held-totally
misconceivedcomplete non consideration of the Act of
1962-nature of duty discharged by the
workman
is
material
and
not
the
designation- Appellate authority directed
to consider and decide as fresh.

Held: Para 7 & 9

From the aforesaid provisions it is
apparently clear that the commercial
establishments, which include a Cinema
Hall are covered by the provision of U.P.
Dookan
Aur
Vanijya
Adhishthan
Adhiniyam, 1962 and employees of such
commercial establishment, if not paid
their wages as provided under the Act,
the withheld wages can be recovered in
accordance with the provisions of the
Payment of Wages Act, 1976 (Reference
Section 2 (4) read with Section 18 of the
Act). The provisions of Payment of
Wages Act have been made applicable by
in corporation. The aforesaid aspect of
the matter has completely been ignored
by the Appellate Authority while passing
the impugned order. Consequently the
finding recorded in the impugned order
to the effect that provisions of Payment
of Wages Act do not apply to Cinema
Halls is totally misconceived.

Counsel for the petitioner submits that
the petitioner although designated as
Manager in fact did not discharge any
duties,
which
can
be
termed
as
managerial in nature. He clarifies that it
is the character of the duties discharged
which
is
material
and
not
the
designation.

## Text

776 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2007

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 37896 of 2007

Anil Kumar Yadav

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Miss Bushra Maryam

Counsel for the Respondents:
Sri. Abhinav Prasad

Payment of wages Act Section 17-read
with U.P. Dukan aur Vanijya Adhisthan
Adhiniyam 1962-section-18(2) and (3)-
Petitioner
working
as
manager
in
Cinema Hall-claim wages-allowed by the
prescribed authority -appellate authority
decided
the
claim
on
the
ground
provision of payment of wages not
applicable on cinema oil-and being the
manager excluded from the definition of
workman
-held-totally
misconceivedcomplete non consideration of the Act of
1962-nature of duty discharged by the
workman
is
material
and
not
the
designation- Appellate authority directed
to consider and decide as fresh.

Held: Para 7 & 9

From the aforesaid provisions it is
apparently clear that the commercial
establishments, which include a Cinema
Hall are covered by the provision of U.P.
Dookan
Aur
Vanijya
Adhishthan
Adhiniyam, 1962 and employees of such
commercial establishment, if not paid
their wages as provided under the Act,
the withheld wages can be recovered in
accordance with the provisions of the
Payment of Wages Act, 1976 (Reference
Section 2 (4) read with Section 18 of the
Act). The provisions of Payment of
Wages Act have been made applicable by
in corporation. The aforesaid aspect of
the matter has completely been ignored
by the Appellate Authority while passing
the impugned order. Consequently the
finding recorded in the impugned order
to the effect that provisions of Payment
of Wages Act do not apply to Cinema
Halls is totally misconceived.

Counsel for the petitioner submits that
the petitioner although designated as
Manager in fact did not discharge any
duties,
which
can
be
termed
as
managerial in nature. He clarifies that it
is the character of the duties discharged
which
is
material
and
not
the
designation.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard learned counsel for the
parties.
Counsel for the parties agree that the
writ petition may be finally disposed at
this stage without calling for a counter
affidavit specifically in view of the order
proposed to be passed today.

2. Petitioner Anil Kumar Yadav
made
three
applications
under
the
provisions of Payment of Wages Act
alleging therein that the employers M/s.
Imperial Cinema have not made payment
of wages for the period mentioned in the
applications.
The
applications
were
numbered as PWA-1 of 1995, PWA-2 of
1995 and PWA-3 of 1995. The Prescribed
Authority under the Act vide order dated
15.7.2003 held that the applications made
were liable to be allowed and, therefore,
directed payment of withheld wages along
with interest thereon and penalty.

3. Against this order of the
Prescribed Authority, the employers M/s.
Imperial Cinema filed an Appeal under
3 All] Anil Kumar Yadav V. State of U.P. and others
777
Section 17 of the Payment of the Wages
Act. The Additional District Judge,
Moradabad/Appellate Authority under the
impugned order dated 12.7.2007 has
allowed the Appeal filed by the employers
only after recording that the provisions of
Payment of Wages Act are not applicable
in so far as the Cinema Halls are
concerned and, therefore, the applications
made by the petitioner could not have
been entertained.

4. Counsel for the petitioner submits
that there has been complete nonconsideration of the provision of Section
2 (4) read with Section 18 of the U.P.
Dookan
Aur
Vanijya
Adhishthan
Adhiniyam,
1962.
It
is,
therefore,
contended that the impugned order is
patently illegal and is liable to be set
aside.

5. On behalf of respondents it is
stated that petitioner admitted himself to
be a Manager. Such persons are excluded
from the provisions of U.P. Dookan Aur
Vanijya Adhishthan Adhiniyam, 1962
under Section 3 and, therefore, the
applications made by the petitioner under
the
Payment
of
Wages
Act
were
misconceived. The Appellate Authority
has not committed any error in passing
the impugned order.

6. For the purposes of appreciating
the contention raised on behalf of the
parties, it is worthwhile to reproduce
Section 2 (4), Section 18 and 3(a) of the
U.P. Dookan Aur Vanijya Adhishthan
Adhiniyam, 1962:

2(4).
Commercial
establishment
means any premises not being the
premises of a factory, or a shop, wherein
any trade, business, manufacture, or any
work in connection with, or incidental or
ancillary thereto, is carried on for profit
and
includes
a
premises
wherein
journalistic or printing work, or business
of banking, insurance, stocks and shares,
brokerage or produce exchange is carried
on, or which is used as threatre, cinema,
or for any other public amusement or
entertainment or where the clerical and
other establishment of a factory, to whom
the provisions of the Factories Act, 1948,
do not apply work;

3. The provisions of the Act not to
apply to certain persons, shops and
commercial
establishments.(1)
The
provisions of this Act shall have no
application to-

 (a) employees occupying positions
of confidential, managerial or supervisory
character in a shop or commercial
establishment, wherein more than five
employees are employed: Provided that
the number of employees so exempted in
a shop or commercial establishment shall
not exceed ten per cent of the total
number of employees thereof;"

18. Recovery of wages.- The wages
of an employee, if not paid as provided by
or under this Act, shall be recoverable in
the manner provided in the Payment of
Wages Act, 1936 as if the same wages
were payable under that Act."

7. From the aforesaid provisions it is
apparently clear that the commercial
establishments, which include a Cinema
Hall are covered by the provision of U.P.
Dookan
Aur
Vanijya
Adhishthan
Adhiniyam, 1962 and employees of such
commercial establishment, if not paid
their wages as provided under the Act, the
withheld wages can be recovered in
accordance with the provisions of the
Payment of Wages Act, 1976 (Reference
Section 2 (4) read with Section 18 of the
778 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Act). The provisions of Payment of
Wages Act have been made applicable by
in corporation. The aforesaid aspect of the
matter has completely been ignored by the
Appellate Authority while passing the
impugned order. Consequently the finding
recorded in the impugned order to the
effect that provisions of Payment of
Wages Act do not apply to Cinema
Halls.is totally misconceived.

8. The issue, which remains for
consideration before this Court is as to
whether in view of Section 3 of the U.P.
Dookan
Aur
Vanijya
Adhishthan
Adhiniyam,
1962
the
petitioner
is
excluded from the purview of the said Act
on the plea that in his applications he has
stated that he has employed as Manager
of the Cinema Hall.

9. Counsel for the petitioner submits
that the petitioner although designated as
Manager in fact did not discharge any
duties, which can be termed as managerial
in nature. He clarifies that it is the
character of the duties discharged which
is material and not the designation.

10. In the opinion of the Court the
contention so raised is based on correct
reading of Section 3 (a) of the Act. Mere
designation of a workman as a Manager
will not exclude him from the operation
of the provision of U.P. Dookan Aur
Vanijya Adhishthan Adhiniyam, 1962.

11. The authorities are under legal
obligation to examine as to whether
employee occupies as a Managerial or
supervisory position or not. The aforesaid
aspect of the matter has not been
examined by the Appellate Authority in
its impugned order. No final opinion can
be expressed by this Court at this stage of
proceedings. The issue is left open to the
Appellate Authority to adjudicate upon
the same after examining the record as are
available and after affording opportunity
of hearing to the parties concerned.

12. Accordingly the writ petition is
allowed. The order dated 12th July, 2007
is quashed. Let the Appellate Authority
decide the Appeal filed by the petitioner
afresh preferably within three months
from the date a certified copy of this order
is filed before him specifically in light of
the observations made herein above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2007

BEFORE
THE HON'BLE V.K. SHUKLA, J.

Civil Misc. Writ Petition No. 37367 of 2007

Arvind Kumar Sinha

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Arun Kumar Mishra

Counsel for the Respondents:
Sri Piyush Shukla
Sri R.S. Parihar
S.C.

U.P. Jail Executive Subordinate (Non
Gazetted) Service Rule 1980, rule-20,21readwith
U.P.
State
Government
Servants Confirmation Rules 1991-Rule4-termination of service-appointment on
the post of Deputy Jailor-after facing
selection process though Public Service
Commission-joined on 22.4.01-probation
period come to an end on 21.4.03-prior
to it on 24.3.03 left the Jail without by
making forged signature - confirmation