# Kailash Chandra Tiwari v. IInd Additional District Judge, Allahabad

- **Citation:** (2007) 3 ILRA 842
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-14
- **Case number:** Civil Misc. Writ Petition No. 2686 of 1989
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-chandra-tiwari-v-iind-additional-district-judge-allahabad-41081
- **Pages:** 3

## Headnote

Payment of Wages 1936-Section-15 (2)-
claim
of
wages
for
the period
of
unauthorise
absence-after
Transfer
petitioner
instead
of
joining
at
transferred place-remained absent from
20.08.81 to 08.10.94-unless the leave
sanctioned-not
entitled
for
wages
prescribed authority as well as appellate
authority ignored this aspect during
illness period he was found roaming in
the
office-apparently
making
false
application-held-appellate
authority
cannot usurp the power of managementdeduction
in
accordance
with
the
provisions
of
Act-application
not
maintainable.

Held: Para 8

The authority under the relevant service
rules would be empowered to pass order
either treat the absence as leave with or
without pay on the principles of no work,
no pay. But neither the Prescribed
Authority or its appellate authority under
the Act cannot usurp the power of the
Management. Unless there was an order
regularizing or condoning the absence of
the employee, the deduction was fully
covered by the provisions of the Act and
therefore the application under section
15(2) of the Act was not maintainable.

## Text

842 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
destination for tourists and pilgrims, the
land of Rama, Krishna and Gautam.

9. Under the above compelling
circumstances, we are recording these
observations to be conveyed to the
concerned
authorities
like
Regional
officers of National Highways Authority
of India located in Uttar Pradesh,
Engineer-in-Chief, U.P. Public Works
Department,
Lucknow
and
other
concerned authorities. Learned standing
counsel shall send a copy of this judgment
and order to the State Government and
National Highways Authority of India by
communicating it through Dr. Ashok
Nigam,
learned
Additional
Solicitor
General of India pursuing the cases of
Union of India.

Subject to the observations made
above, the writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2007

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 2686 of 1989
Connected with
Civil Misc. Writ Petition No.4602 of 1989

Kailash Chandra Tiwari
...Petitioner
Versus
IInd Additional District Judge, Allahabad

 ...Respondents

Counsel for the Petitioner:
Sri K.N. Tripathi
Sri Prabhat Tripathi
Sri G.S. Dwivedi
Sri S. Chatterji

Counsel for the Respondents:
Sri Govind Saran
S.C.

Payment of Wages 1936-Section-15 (2)-
claim
of
wages
for
the period
of
unauthorise
absence-after
Transfer
petitioner
instead
of
joining
at
transferred place-remained absent from
20.08.81 to 08.10.94-unless the leave
sanctioned-not
entitled
for
wages
prescribed authority as well as appellate
authority ignored this aspect during
illness period he was found roaming in
the
office-apparently
making
false
application-held-appellate
authority
cannot usurp the power of managementdeduction
in
accordance
with
the
provisions
of
Act-application
not
maintainable.

Held: Para 8

The authority under the relevant service
rules would be empowered to pass order
either treat the absence as leave with or
without pay on the principles of no work,
no pay. But neither the Prescribed
Authority or its appellate authority under
the Act cannot usurp the power of the
Management. Unless there was an order
regularizing or condoning the absence of
the employee, the deduction was fully
covered by the provisions of the Act and
therefore the application under section
15(2) of the Act was not maintainable.

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard counsel for the petitioner and
Sri Govind Saran for the contesting
respondent.

2. The petitioner was employed as a
clerk
in
the
respondent
Railway
Establishment and was posted as Head
Clerk within the jurisdiction of the
Divisional Railway Manager, Allahabad in
the Electrical Department when he was
transferred on 20.8.1981 to the office of
Senior
Foreman
(Train
Lighting)
in
Allahabad itself. He did not join at the
3 All] Kailash Chandra Tiwari V. A.D.J.-II, Allahabad
843
transferred place but made an application
for medical leave which was not granted.
He remained absent from duty till 8.10.1984
when he was able to get his posting in the
Electrical Department on the interference of
a Member of Parliament and thus joined on
9.10.1984. He claimed wages for the period
of his aforesaid absence which was denied
by the Railway Establishment and, thus, he
preferred an application under section 15 (2)
of the Payment of Wages Act, 1936 before
the Prescribed Authority (here-in-after
referred to as the Act). After pleadings were
exchanged,
the
Prescribed
Authority
repelled the contention of the Railway
Establishment that the application under
section 15(2) was not maintainable and
granted the alleged deducted/delayed wages
to the extent of Rs.43,302.56 together with
Rs.86,605.12 i.e. twice amount of wages as
compensation,
Rs.150/-
as
cost
and
Rs.4800/- as litigation cost of a litigation
during the intervening period vide its order
dated 21.3.1988.

3.

The
Railway
Establishment
preferred an appeal under section 17 of the
Act and the Appellate Authority referred to
various
paragraphs
of
Railway
Establishment Code and after recording
finding that certain leave was outstanding in
the account of the petitioner, it thus granted
the leave and directed for payment together
with twice the amount as compensation.

4. The petitioner aggrieved by the
latter part of the judgement reducing the
payment to be made to him, has preferred
writ petition no. 2686 of 1989 while the
Railway
Establishment
preferred
writ
petition no. 4602 of 1989 challenging both
the orders.
5. Learned Counsel for the Railways
has contended that the application itself was
not maintainable under section 15 (2) as
deductions were made for absence of the
petitioner and was referable to section 7 (2)
(b) read with section 9 of the Act. He has
further urged that the Appellate Authority
could
not
have
usurped
managerial
functions of the authorities of the Railway
Establishment to adjust the leave standing in
the account of the petitioner.

Section 15 (2) of the Act provides as
under:-

"(2) Where contrary to the provisions of this
Act any deduction has been made from the
wages of an employed person or any
payment of wages has been delayed, such
person himself,........, may apply to such
authority for a direction under sub section
3."

Under sub section 3 the authority may direct
refund of the wages so deducted or so
delayed
together
with
payment
of
compensation not more than ten times the
deductions.

6. Thus, the sine qua non for making
an application under section 15 (2), it is
necessary to allege and prove that deduction
of wages or delay in payment thereof is
against the provisions of the Act. Section 7
of the Act directs that wages to an
employed person shall be paid without any
deductions except those authorized under
the Act. Clause 2-(b) of section 7 of the Act
authorizes deductions for absence from
duty. Section 9 (2) of the Act stipulates
deductions of wages not more than the
proportion of absence from work. The Apex
Court in the case of Dilbag Rai Jerry Vs.
Union of India. [1974(3) SCC 554 has held
that deductions from wages is the same
thing as deductions of wages. In this
background,
the
application
of
the
employee has to be considered.
844 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
7. In the application made under
section 15 (2) the employee has alleged that
while working in the Electrical Branch he
was transferred by a competent authority to
the office of Senior Foreman (Train
Lighting) and as it was a hazardous job and
he was not well, he made a representation
dated 5.9.1981 in pursuance of which, the
transfer was cancelled in May, 1984 but the
same was not informed to him and when he
was
declared
fit,
he
joined
the
Establishment on 9.10.1984. On these
averments he has claimed wages from
20.8.1981 to 8.10.1994. However, there is
neither any averment that he worked
between those dates nor there is any
averment that any leave was sanctioned to
him. In the reply filed by the Establishment,
a specific allegation was made that he did
not join at his transferred place and stayed
away from work with effect from 20.8.1981
and only joined on 9.10.1984 and that no
leave
was
ever
sanctioned
by
the
Establishment. The question is whether on
these allegations the application was
maintainable?

8. It is neither the case of the
employee nor there is any finding by any of
the two authorities that any leave was
granted to him for the aforesaid period. The
Prescribed Authority and so also the
Appellate Authority have held that an
enquiry for unauthorized absence was
started against the employee where the
charge of unauthorized absence was not
found proved and, therefore, it has
proceeded on assumption that the absence
of the employee has been regularized. The
Appellate Authority, after examining as to
the amount of leave due to the employee,
has usurped the power of the Management
and has awarded the wages for the period
for which leave was due in the account of
the employee. In the counter affidavit filed
by the employee in the connected petition
filed by the Railways, a copy of the alleged
enquiry is annexed as Annexure-1. Its
perusal shows that an enquiry was initiated
in pursuance of an order dated 9.8.1982 and
the charges shown in the preamble are that
though the employee had applied for 15
days leave with effect from 20.8.1981 on
the ground of his illness, he was found
roaming in the office. It is evident that the
charge was apparently for making false
applications which was found to be not
proved on the ground that the entire record
was missing. A note was put up and the
Disciplinary
Authority
informed
the
employee through letter dated 15.4.1985
(Annexure-III to the said Counter Affidavit)
that as the records were missing, the charge
was dropped. Therefore, it cannot be said
that there was an order regularizing or
condoning the absence of the employee.
The authority under the relevant service
rules would be empowered to pass order
either treat the absence as leave with or
without pay on the principles of no work, no
pay. But neither the Prescribed Authority or
its appellate authority under the Act cannot
usurp the power of the Management. Unless
there
was
an
order
regularizing
or
condoning the absence of the employee, the
deduction was fully covered by the
provisions of the Act and therefore the
application under section 15(2) of the Act
was not maintainable.

9. For the reasons above, the writ
petition no. 2686 of 1989 is hereby
dismissed while the writ petition no. 4602
of 1989 is allowed and both the orders of
the authority below dated 21.3.1988 and
22.11.1988 are hereby quashed. In the
circumstances of the case, no order as to
cost.
---------