# Jayant Srivastava v. Prescribed Authority, Payment of Wages Act, 1936, Kanpur & Ors

- **Citation:** (2024) 1 ILRA 999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-11
- **Case number:** Nagar in Misc. Civil Appeal No. 3 of 2023
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jayant-srivastava-v-prescribed-authority-payment-of-wages-act-1936-kanpur-ors-51400
- **Pages:** 9

## Headnote

A. Constitution of India, 1950-Article
227-Payment of Wages Act, 1936-Section
17-maintainability
of-Court
of
small
causes
or
the
District
Court,
while
exercising the power under section 17(1)
of the Act, 1936 functions as a Civil Court
and not as persona designate-When the
district court decides an appeal u/s 17 of
the Act, the High Court has power to
revise an order passed by the District
court-Hence, the order passed in exercise
of such power is amenable under Article
227 of the Constitution of India.(Para 13
to 27)
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Agreement executed between Smt.
Madhubala
and
M/s
Bhoomi
Shakti
developers Ltd. Under which a sub
contract is given. There is no written
contract between the petitioner with
Shyamji
Verma/Respondent
no.1
or
other respondent no.s 3 to 5. The
prescribed
authority
overlooked
the
principle that a plaintiff must stand on
his own legs and not rely upon the
shortcomings of the defendant. Both the
Authorities have not addressed the issue
regarding the maintainability of case
against M/s Bhoomi Shakti Developers
Ltd. Of which the petitioner was simply
the Managing Director. Prima facie claim
could
not
be
raised
against
the
petitioner in his individual capacity
describing him as a Builder. No liability
of payment of wage could be fixed on
the Director of the Company u/s 3 of the
act and the petitioner cannot be brought
under the ambit of employer under the
Act.(Para 29)

The writ petition is allowed. (E-6)

List of cases cited:

## Text

1 All. Jayant Srivastava Vs. Prescribed Authority, Payment of Wages Act, 1936, Kanpur & Ors.
999
High Court, a common judgment and order
passed by the Sessions Judge, Varanasi in
two criminal revisions, whereby both the
criminal revisions were allowed, was
challenged. The revisional court had held
that when a specific task was given to the
Magistrate, he ought to have performed in
true spirit of order of the court. The
revisional court had set aside the order of
the C.J.M. concerned, expressing surprise
that the main appellant, the circle officer
was absolved of the charge, while public
persons who were said to be merely
standing there, were made accused under
section 34 IPC. The revisional court had
sent back all the record directing the
C.J.M., Varanasi for passing a fresh order,
after considering all material facts and
circumstances. The order of the revisional
court was challenged before the Allahabad
High Court. In para no. 17 of the judgment,
the Allahabad High Court observed that the
Sessions Judge had only set aside the order
of the learned Magistrate and to pass an
order a fresh and therefore the parties
would have another opportunity to address
the Magistrate's court. Hence, there was no
need to rush to High Court. The court
expressed a view that such an order falls
within the order of interlocutory order.

18. This may be noted at this juncture
that the present petition has been filed
under Article 227 of the Constitution of
India and the principles, if any, laid down
in the above noted judgment cited by the
respondents, definitely do not apply here.
The issue here is quite different. In the
instant case, the revisional court made
certain cogent observations in the backdrop
of certain facts and circumstances. It was of
the view that in the light of the contention
that the deceased-Patri Devi died a natural
death, the evidence of the doctor and
another witness ought to have been
recorded, before the Magistrate could have
decided the matter of summoning. When
the allegations are of serious nature, the
courts have to be extra cautious and
careful. And this view finds support from
the judgment of the Supreme Court in
Pepsi Food Limited and another (supra).

19. In my view, there is no good
ground to interfere in the impugned order.
Hence, the petition is dismissed.
----------
(2024) 1 ILRA 999
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2024

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Matters U/A 227 No. 12595 of 2023 (Civil)

Jayant Srivastava ...Petitioner
Versus
Prescribed Authority, Payment of Wages
Act, 1936, Kanpur & Ors. ...Respondents

Counsel for the Petitionera:
Sri Prabhav Srivastava

Counsel for the Respondents:
Sri Satyendra Narayan Singh, Sri Ishan
Mehta (Addl. C.S.C.)

A. Constitution of India, 1950-Article
227-Payment of Wages Act, 1936-Section
17-maintainability
of-Court
of
small
causes
or
the
District
Court,
while
exercising the power under section 17(1)
of the Act, 1936 functions as a Civil Court
and not as persona designate-When the
district court decides an appeal u/s 17 of
the Act, the High Court has power to
revise an order passed by the District
court-Hence, the order passed in exercise
of such power is amenable under Article
227 of the Constitution of India.(Para 13
to 27)
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
B. Agreement executed between Smt.
Madhubala
and
M/s
Bhoomi
Shakti
developers Ltd. Under which a sub
contract is given. There is no written
contract between the petitioner with
Shyamji
Verma/Respondent
no.1
or
other respondent no.s 3 to 5. The
prescribed
authority
overlooked
the
principle that a plaintiff must stand on
his own legs and not rely upon the
shortcomings of the defendant. Both the
Authorities have not addressed the issue
regarding the maintainability of case
against M/s Bhoomi Shakti Developers
Ltd. Of which the petitioner was simply
the Managing Director. Prima facie claim
could
not
be
raised
against
the
petitioner in his individual capacity
describing him as a Builder. No liability
of payment of wage could be fixed on
the Director of the Company u/s 3 of the
act and the petitioner cannot be brought
under the ambit of employer under the
Act.(Para 29)

The writ petition is allowed. (E-6)

List of cases cited:

1. Radhey Shyam Vs Chhabi Nath (2015) 5 SCC
423

2. Abdul Rashid Vs BDO, Civil Rev. No. 38 of
2000

3. Central Talkies Vs Dwarka Prasad (1961) AIR
SC 606

4. Debidutt Dube Vs Cent. India Elec. Supply Co.
(1945) AIR Nag. 244

5. Jogendra Nath Vs Chandreswar Singh (1951)
Cal. 29

6. Rajkumar Mills Ltd.Indore Vs Insp. PW,
(1955) AIR MB 60,

7. A.C Arumughan Vs Mang. Jawahar Mills Ltd.
(1956) Mad 79

8. Mang. Codialobail Press Vs K. Monappa
(1963) Mys 128
9. The G.M. Vs Paras Nath Tewari (1967) All
576

10. Rameshwar Lal Vs Jogendra Das (1970) AIR
Ori 76

11. French Moter Car Co. Ltd. Workers Union Vs
French Motor Car Co. Ltd (1989) Lab IC 2134

12. Mukri Gopalan Vs Cheppilat Puthanpurayil
Aboobacker (1995) 5 SCC 5

13. LIC Vs Nandini J. Shah & ors.(2018) 15 SCC
356

(Delivered by Ashutosh Srivastava, J.)

1. 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 Addl.
District & Sessions Judge,-IX at Kanpur
Nagar in Misc. Civil Appeal No. 3 of 2023
(Jayant Srivastava and another versus
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/Addl. Labour
Commissioner, Kanpur in PW Case No. 47
of 2018 (Shyamji Verma and others versus
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
1 All. Jayant Srivastava Vs. Prescribed Authority, Payment of Wages Act, 1936, Kanpur & Ors.
1001
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 (Addl.
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 Addl. 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 rest
before the merits of the respective case can
be gone into. The Court, therefore,
proceeds to decide the issue regarding
maintainability.

7. According to the petitioner, the
order passed in Appeal under Section 17 of
the Payment of Wages Act, 1936 is
assailable under a petition under Article
227 of the Constitution of India and not a
writ petition under Article 226 of the
Constitution of India as suggested by the
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the contesting respondents. The
learned Addl. Chief Standing Counsel for
the State of U.P., however, contends that a
revision petition under Section 115 CPC is
maintainable against the order passed under
Section 17 of the Payment of Wages Act,
1936.

8. Before the Court proceeds to
examine the respective stand, it would be apt
to reproduce the relevant provisions of the
Payment of Wages Act, 1936, which
provides for an appeal. The relevant
provision under Section 17 of the Payment of
Wages Act, 1936 is reproduced hereunder:-

"17. Appeal.-

(1) 69 [An appeal against an
order dismissing either wholly or in part an
application made under sub-section (2) of
section 15, or against a direction made
under sub-section (3) or sub-section (4) of
that section] may be preferred, within thirty
days of the date on which 70 [the order or
direction] was made, in a Presidency-town
71 [***] before the Court of Small Causes
and elsewhere before the District Court-

(a) ............

(b) .............

(c) .............

(1A) ..........

(2) .............

(3) .............

(4) ............."

9. A perusal of the provision of
Section 17 (1) contemplates that an appeal
against an order passed under Section 15
sub-section (2), (3) or (4) may be preferred
within 30 days of the date on which the
order or direction was made may be
preferred in a Presidency Town before the
Court of Small Causes and elsewhere
before the District Court. The issue is,
therefore, as to whether an order passed in
appeal under the Payment of Wages Act,
1936 can be held to be a judicial order
passed by a Civil Court and as to whether
the same would be amenable to a petition
under Article 227 or Article 226 or in a
Civil Revision under Section 115 CPC.

10. Learned counsel for the petitioner
contends that the Court of Small Causes or
the District Court by virtue of Section 17
(1) functions as a Court and not as a
persona designata, the High Court has the
power to test the order passed in Appeal
under Article 227 of the Constitution of
India in view of the law laid down by the
Apex Court in the case of Radhey Shyam
versus Chhabi Nath reported in 2015 (5)
SCC 423. Learned
counsel
for
the
contesting
respondents,
however,
has
submitted that the Court of Small Causes or
the District Court (the Addl. District &
Sessions Judge-IX, at Kanpur Nagar in the
case at hand) functions as a persona
designata and in such circumstances, the
order passed in appeal would be amenable
in a writ petition under Article 226 of the
Constitution of India and the petition under
Article 227 of the Constitution of India is
not maintainable. Shri Ishan Mehta, learned
Addl. Chief Standing Counsel has also
submitted that in the context of the
Payment of Wages Act, the Court of Small
Causes or the District Court by virtue of
Section 17 (1) of the Act functions as a
Court and not as a persona designata and as
such, being subordinate to the High Court,
the orders passed in exercise of powers
1 All. Jayant Srivastava Vs. Prescribed Authority, Payment of Wages Act, 1936, Kanpur & Ors.
1003
under Section 17 (1) are subject to
revisional jurisdiction under Section 115 of
the Code of Civil Procedure. Reliance has
been placed upon a Division Bench
decision of the High Court of Jummu &
Kashmir at Jammu in the case of Abdul
Rashid versus Block Development Officer
(Civil Revision No. 38 of 2000, decided on
6.8.2004).

11. Though the counsel for the
petitioner and the learned Addl. Chief
Standing Counsel are on the same floor on
the issue that the Court of Small Causes or
the District Court while exercising powers
under Section 17 (1) of the Payment of
Wages Act, 1936 function as Civil Courts
and not as persona designata, but are at
variance as to remedy available against the
orders passed in exercise of appellate
powers under Section 17 (1). The counsel
for the contesting respondents asserts that
the Court of Small Causes and District
Courts (i.e. District Judge), functions as
persona designata and as such, orders
passed under Section 17 (1) shall be
amenable under a writ petition under
Article 226 of the Constitution of India.
The air is to be cleared of any such
ambiguity.

12. In the opinion of the Court where
a judge is appointed purely in his individual
capacity by name, he acts as a persona
designata, but where he is appointed by his
designation alone, he acts as a Court and
not as a persona designata. The test to
determine whether an appointment has
been made as a persona designata or as a
member or a class is to find out whether the
person appointed has been appointed by his
name alone, the description or designation
being given only to identify him. Where
only the profession or the occupation of the
person or the post held by him is
mentioned, the appointment is not as
persona designata. The Apex Court in the
case of Central Talkies versus Dwarka
Prasad (AIR 1961 SC 606) made the
following observations:-

"The argument that the District
Magistrate was a persona designate can
not be accepted. Under the definition of
'District
Magistrate'
the
special
authorisation by the District Magistrate
had
the
effect
of
creating
officers
exercising the powers of a District
Magistrate under the Eviction Act. To that
extent,
those
officers
would,
on
authorization, be equated to the District
Magistrate. A persona designata is 'a
person who is pointed out or described as
an individual, as opposed to a person
ascertained as a member of a class, or as
filling
a
particular
character'.
(See
Osborn's Concise Law Dictionary, 4th Edn.
page 253). In the words of schwabe C.J. in
AIR 1924 Mad 561 (FB) personae
designatae are "person selected to act in
their private capacity and not in their
capacity as judges'."

13. Shri Ishan Mehta, learned Addl.
Chief Standing Counsel has argued that the
High Court of Jammu & Kashmir at Jammu
while deciding the case of Abdul Rashid
(supra) has observed in Para 9 of the
judgment that there appears a consensus of
judicial opinion throughout the country. In
Debidutt Dube v. Central India Electrical
Supply Co., AIR 1945 Nagpur 244, the
Nagpur High Court held that District Court
acting under Section 17 of the Payment of
Wages Act is subordinate to the High
Court. It decides a 'case' within the
meaning of Section 115 of the Civil
Procedure Code when it decides an appeal
under Section 17 of the Act and the High
Court has power to revise an order passed
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
by the District Court in appeal under
Section 17 of the Payment or Wages Act.

14. In Jogendra Nath versus
Chandreswar Singh, AIR 1951 Calcutta
29, it was held by a Division Bench of the
Calcutta High Court that the Small Causes
Court (which is at par with the District
Court within the meaning of Section 17 of
the Payment or Wages Act) does not act as
a persona designata but as a court and,
therefore, its orders are revisable by the
High Court under Section 115 of Civil
Procedure Code.

15. In Rajkumar Mills Ltd., Indore
versus Inspector, Payment of Wages,
AIR 1955 MB 60, a Division Bench of
the then Madhya Bharat High Court held
that when an appeal is provided under
Section 17 of the Payment of Wages Act
to the District Court, that Court is
appealed to as one of the ordinary courts
of the country, consequently its orders
and decrees will be governed by the rules
of Civil Procedure Code. Therefore, a
revision is competent against the decision
of the District Court under Section 115 of
Civil Procedure Code.

16. In A. C. Arumughan versus
Manager, Jawahar Mills Ltd., AIR 1956
Madrass, 79, it was held that the word
'final' in Section 17(2) of the Payment of
Wages Act prohibits further appeal and not
revision under Section 115 of the Code of
Civil Procedure and, therefore, the revision
would be competent.

17. In Manager, Codialabail Press
versus K. Monappa, AIR 1963 Mysore
128, the Mysore High Court taking the
same view, observed that since the District
Court hearing an appeal under Section 17
from an order under Section 15 is a 'court
subordinate to the High Court', the
revisional power of the High Court under
Section 115 of the Code of Civil Procedure,
clearly extends to its decision and to the
proceedings before it. The District Court
functioning under Section 17 is not a
persona designata, but a court, and, so long
as that court is subordinate to the High
Court, the proceedings before it are clearly
revisable under Section 115 of the Code of
Civil Procedure. There is nothing in Subsection (2) of Section 17 which precludes
the exercise or such revisional jurisdiction.

18. In The General Manager versus
Paras Nath Tewari, AIR 1967 Allahabad
576, a Division Bench of the Allahabad
High Court held that when the power to
hear an appeal is given under Section 17 to
the District Judge as such, and not to any
individual, it must be assumed as power
given to the court of the District Judge and
not as a persona designata to any particular
Judge. Hence the District Court hearing an
appeal under Section 17 of the Payment of
Wages Act acts as a civil court subordinate
to the High Court and not as a persona
designate.

19. In Rameshwar Lal versus
Jogendra Das, AIR 1970 Orissa 76, a
Division Bench of the Orissa High Court
held that though an order passed by the
authority under Section 15 of the Payment
of Wages Act is not directly revisable by
High Court under Section 115 of Civil
Procedure Code for the reason that the
Authority is not a 'Court' but only a persona
designata, the appellate order by the Court
of Small Causes or the District Court, as
the case may be, passed in an appeal under
Section 17 of the Act from the original
order by the Authority under Section 15 of
the Act is revisable, they being civil courts
subordinate to the High Court.
1 All. Jayant Srivastava Vs. Prescribed Authority, Payment of Wages Act, 1936, Kanpur & Ors.
1005

20. In French Motor Car Co. Ltd.
Workers' Union versus French Motor Car
Co. Ltd., 1989 Lab. I. C. 2134, the Gauhati
High Court has also held that the appellate
court constituted under Section 17 of the
Payment of Wages Act is amenable to the
revisional jurisdiction of the High Court
and error of jurisdiction committed by them
can be corrected under Section 115 of the
Code of Civil Procedure.

21. It would appear from the above
brief survey of the case law on the point
that almost all the High Courts have
unanimously taken the view that the
appellate orders - passed by the District
Court or the Small Causes Court, as the
case may be, being courts subordinate to
the High Court in the hierarchy, their
orders would not lie outside the scope of
Section 115 of the Code of Civil
Procedure which empowers the High
Court to interfere with the orders of any
court subordinate to it. Whereas opinion
seems to be divided as to whether the
Authority
under
Section
15(2)
is
amenable to the revisioinal jurisdiction of
the High Court, there is no discordant
note as regards the amenability of the
appellate orders of District Court/Small
Causes
Court
to
the
revisional
jurisdiction of the High Court.

22. It is thus submitted that the order
passed in Appeal under Section 17 (1) of
the Payment of Wages Act, 1936 would be
amenable to a revision under Section 115
CPC

23. I have considered the rival
submissions of the parties.

24. There can be no doubt that the
Court of Small Causes or the District
Court, as the case may be, while exercising
the powers under Section 17 (1) of the
Payment of Wages Act, 1936 functions as a
Civil Court and not as persona designata.
The Apex Court in Mukri Gopalan vs
Cheppilat
Puthanpurayil
Aboobacker
reported in 1995 (5) SCC 5 observed that
the Appellate Authorities constituted under
the enactment constitute a class and cannot
be considered as a persona designata.
Further, the Appellate Authority functions
as a Court.

25. Now, coming to the other issue
i.e. whether an order of the Civil Court is
amenable to writ jurisdiction under Article
226 or 227 of the Constitution of India
before the High Court or to the Revisional
jurisdiction of the High Court under
Section 115 CPC? The Apex Court in the
case of Radhey Shyam versus Chhabi
Nath, [2015 (5) SCC 423] while drawing a
distinction
between
judicial
acts
of
Tribunals and judicial orders of Civil Court
held that judicial orders of Courts stand on
a different footing and the remedy of a writ
petition
under
Article
226
of
the
Constitution of India is available against
judicial Acts of Tribunals and quasijudicial authorities and not against judicial
orders of Civil Courts, which can be
assailed
under
Article
227
of
the
Constitution of India. Their Lordships of
the Apex Court proceeded to hold that (i)
judicial orders of Civil Court are not
amenable to writ jurisdiction under Article
226 of Constitution of India (ii) Jurisdiction
under Article 227 of the Constitution of
India is distinct from jurisdiction under
Article 226.

26. The Apex Court in the case of
Life Insurance Corporation of India Vs.
Nandini J. Shah and others reported in
2018 (15) SCC 356 in para 58 of the
judgment held as under:
1006 INDIAN LAW REPORTS ALLAHABAD SERIES

"In other words, the Appellate
Officer while exercising power under Section
9 of the 1971 Act, does not act as a persona
designata but in his capacity as a pre existing
judicial authority in the district (being a
District Judge or judicial officer possessing
essential qualification designated by the
District Judge). Being part of the district
judiciary, the judge acts as a Court and the
order passed by him will be an order of the
Subordinate Court against which remedy
under Article 227 of the Constitution of India
can be availed on the matters delineated for
exercise of such jurisdiction."

27. In view of the above discussion, I
hold that the learned Additional District
and Sessions Judge-IX, Kanpur Nagar
while exercising powers in Appeal under
Section 17 of the Payment of Wages Act,
1936 functions as a Civil Court and not as a
persona designata and the order passed in
exercise of such powers is amenable before
this Court in a petition under Article 227 of
the Constitution of India. The instant
petition
under
Article
227
is
held
maintainable and the objections are
overruled.

28. Now, coming to the merits of the
petition.

29 . On the perusal of the order of the
Prescribed Authority dated 04.06.2022, I
find that the claim of the respondent Nos. 2
to 5 has been allowed merely on surmises
and conjectures. The learned Prescribed
Authority has relied upon the shortcoming
of the defence of the petitioner that he
failed to produce the attendance register for
the period the respondent Nos. 2 to 5 allege
to have worked. The petitioner failed to
demolish the case of the respondent Nos. 2
to 5. In the opinion of the Court, the
learned Prescribed Authority was liable to
consider the case of the respondent Nos. 2
to 5 who had instituted the proceedings
before it. No written agreement/contract
was placed on record and yet, the
Prescribed Authority proceeded to allow
the claim of the respondent Nos. 2 to 5. A
Builder
Agreement
dated
04.02.2017
executed between Smt. Madhubala and M/s
Bhoomi Shakti Developers Ltd., under
which a sub contract is stated to have been
given to Sri Shyamji Verma, respondent
no. 1 herein, has been brought on record.
There is no written contract between the
petitioner with Shyamji Verma or other
respondent nos. 3 to 5. The Prescribed
Authority
has
overlooked
the
basic
principle that a plaintiff must stand on his
own
legs
and
not
rely
upon
the
shortcomings
of
the
defendant.
The
Appellate Authority committed the same
mistake
as
was
committed
by
the
Prescribed Authority. Both the Authorities
have not addressed the issue regarding the
maintainability of the case against M/s
Bhoomi Shakti Developers Pvt. Ltd., of
which the petitioner was simply the
Managing Director. Prima facie, the Court
is of the view that the claim if any could be
raised
against
M/s
Bhoomi
Shakti
Developers Pvt. Ltd., and not the petitioner
in his individual capacity describing him as
a Builder. No liability of payment of wages
could be fixed on the Director of the
Company under Section 3 of the Act and
the petitioner cannot be brought under the
ambit of employer under the Act.

30. Matter requires consideration.

31. Issue notice to the respondent
Nos. 3 to 5, returnable within a month.
Steps be taken within a week.

32. Notice on behalf of respondent
No. 2 has been accepted by Shri Satyendra
1 All. Smt. Saloni Yadav & Anr. Vs. State of U.P. & Ors.
1007
Narayan Singh, learned counsel who has
filed caveat.

33. List this case on the date fixed in
the notice.

34. All the respondents, if so advised,
may file counter affidavit during the said
period.

35. Considering the submissions
advanced by learned counsel for the
petitioner and taking note of the fact that
the amount awarded by the Prescribed
Authority as upheld in Appeal, has already
been deposited by the petitioner with the
respondent No. 1, the respondent No. 1 is
restrained from releasing the same in
favour of the respondent No. 2 to 5 without
leave of this Court.
----------
(2024) 1 ILRA 1007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE RAJENDRA KUMAR -IV, J.

Criminal Misc. Writ Petition No. 7996 of 2023

Smt. Saloni Yadav & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mohd. Monis

Counsel for the Respondents:
G.A., Sri Amar Bahadur Maurya, Sri Arvind
Singh, Sri Deepak Dubey, Dharmendra
Kumar Mishra, Sri Maan Singh, Sri Manoj
Kumar Kushwaha, Sri Sunil Kumar Kushwaha

A. Constitution of India, 1950-Article 226Indian Penal Code, 1860-Sections 363 &
366-petitioners are in live-in-relationship
-petitioner no. 1 (major girl) ran away
from her parent's custody and she filed
habeas corpus petition for the custody of
petitioner no. 2 (minor boy)-In the
present case, element of inducement is
there or not is yet to be investigated
particularly in the background of the
admitted facts of this case when nobody is
coming forward for recording statementeven the victim statement not recorded
u/s 161 or 164 Crpc-The act of abduction
has been done u/s 366 IPC or not is yet to
be
ascertained
by
the
Investigating
Agency.(Para 1 to 33)

The writ petition is dismissed. (E-6)

List of cases cited:

1. Kiran Rawat & anr.. Vs St. of U.P. & ors.,
CMWP No. 3310 of 2023

2. D.Velusamy Vs D. Patchaiammal (2010) 10
SCC 469
3. Lata Singh Vs St. of U.P & anr. (2006) 5 SCC
475

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Rajendra Kumar -IV, J.)

1. Supplementary affidavit sworn by
the petitioner no. 1 filed today is taken on
record.

2. Sri Deepak Dubey submits that he
has filed his Vakalatnama on behalf of the
informant in the office on 10.7.2023.

3. Heard Sri Mohd. Monis, learned
counsel for the petitioners, Sri Deepak
Dubey, learned counsel appearing for the
informant and Sri G.P. Singh, learned
A.G.A. appearing for the State respondents.

4. This writ petition has been filed
with the prayer to quash the First
Information
Report
dated
30.4.2023,