# M/s Luxmi Palace(Cinema) v. Prescribed Authority/Additional Labour Commissione & Anr

- **Citation:** (2013) 2 ILRA 1154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-03
- **Case number:** Civil Misc. Writ Petition No. 44781 of 2009
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-luxmi-palace-cinema-v-prescribed-authority-additional-labour-commissione-anr-42587
- **Pages:** 3

## Headnote

Constitution of India Art. 226-Applicability
of minimum wages Act- application by
workman-against
ex-parte
award-writ
petition
by
management-writ
court
-
allowed to work and pay salary by month to
month-argument that entitle salary on last
pay drawn basis-application for minimum
wages not maintainable-held-wages means
current wages-application maintainable-in
absence of mens-rea-penality can not be
imposed-petition partly allowed.

Held: Para-9
The words to "take work" and the words to
"pay salary month to month" leads to an
irresistible inference, namely, to pay the
current salary. It would be too much to
expect that the employer will take work
and pay last drawn wages. it is not
permissible to pay last drawn wages when
work is being taken. The workman becomes
entitled to be given a fair remuneration and
in
the
opinion
of
the
Court,
fair
remuneration is nothing else, but current
salary since the last drawn wages was
being paid, the workman rightly moved an
application for payment of minimum wages
under the provisions of the Minimum
Wages Act. The said application was
maintainable and the Prescribed Authority
rightly calculated the difference. The Court
is of the opinion that the order of the
Prescribed Authority was perfectly justified.

## Text

1154 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 44781 of 2009
M/s Luxmi Palace(Cinema) ...Petitioner
Versus
Prescribed Authority/Additional Labour
Commissione & Anr. ...Respondents

Counsel for the Petitioner:
Sri S.S. Nigam

Counsel for the Respondents:
C.S.C., Sri Ankit Saran

Constitution of India Art. 226-Applicability
of minimum wages Act- application by
workman-against
ex-parte
award-writ
petition
by
management-writ
court
-
allowed to work and pay salary by month to
month-argument that entitle salary on last
pay drawn basis-application for minimum
wages not maintainable-held-wages means
current wages-application maintainable-in
absence of mens-rea-penality can not be
imposed-petition partly allowed.

Held: Para-9
The words to "take work" and the words to
"pay salary month to month" leads to an
irresistible inference, namely, to pay the
current salary. It would be too much to
expect that the employer will take work
and pay last drawn wages. it is not
permissible to pay last drawn wages when
work is being taken. The workman becomes
entitled to be given a fair remuneration and
in
the
opinion
of
the
Court,
fair
remuneration is nothing else, but current
salary since the last drawn wages was
being paid, the workman rightly moved an
application for payment of minimum wages
under the provisions of the Minimum
Wages Act. The said application was
maintainable and the Prescribed Authority
rightly calculated the difference. The Court
is of the opinion that the order of the
Prescribed Authority was perfectly justified.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri S.S. Nigam, the learned
counsel for the petitioner and Sri Ankit
Saran, the learned counsel for the
respondents.

2. The facts leading to the filing of
the writ petition is that an ex parte award
dated 3rd July, 1995 was passed by the
labour court directing reinstatement with
backwages. The petitioner, thereafter,
filed a recall application, which was
rejected by the labour court by an order
dated 06th August, 1997. The petitioner,
being aggrieved, filed a writ petition, in
which an interim order was passed staying
the award subject to deposit of 50 per cent
of the amount of the backwages before
the Registrar of this Court. Subsequently,
by an order dated 25th November, 2003,
the interim order was modified. Since this
order will have bearing on the ultimate
result of this petition, the order dated
25.11. 2003 is extracted here under:

".After hearing the Learned Counsel for
the parties and perusal of the record. I
consider it appropriate to direct petitioner to
allow opposite party No. 4 to join service
latest by 15th December, 2003. In case
respondent submits joining report to the
petitioner, petitioner shall take work from
here and pay salary month to month on due
date. Put up on 16th December, 2003.

3. Pursuant to this order, the
workman was reinstated. The writ petition
eventually was decided finally and was
allowed by a judgement dated 24th
February, 2005 and the award of the
labour
court
was
set
aside.
2 All] M/s Luxmi Palace (Cinema) Vs. Prescribed Authority/Additional Labour Commissioner &Anr.

1155

4. During the pendency of the writ
petition,
the
workman
filed
two
applications
before
the
Prescribed
Authority under the Minimum Wages
Act, 1948 for payment of minimum
wages for the period 1.11.2004 to 31st
January, 2005 and for the period 1.5.2004
to 31st July, 2004. Both the applications
were allowed by the Prescribed Authority
by two separate orders dated 18th June,
2009 awarding 11,570/- towards balance
of the minimum wages plus double the
amount i.e. Rs. 23,240/- towards penalty
and in the second application awarded Rs.
22,125.50/- towards minimum wages and
Rs. 44,251 towards penalty including
cost. The petitioner, being aggrieved by
the said orders, has filed the present writ
petition.

5. Before the Prescribed Authority
as well before this Court, the petitioner
has contended that the workman was
being paid last drawn wages in terms of
Section 17-B of the Industrial Disputes
Act in pursuance of the interim order
passed by this Court, and consequently,
the application under the Minimum
Wages Act was patently misconceived
and could not have been adjudicated. It
was contended that in the event, the
workman had any grievance, he should
have moved an appropriate application
before
the
Writ
Court
itself
for
clarification or modification of the interim
order.

6. In order to appreciate the
submission of the learned counsel for the
petitioner, Section 17-B of the Industrial
Disputes Act is extracted hereunder:

" Section 17-B Payment of full wages
to workman pending proceedings in
higher courts.- Where in any case, a Labour
Court, Tribunal or National Tribunal by its
award directs reinstatement of any workman
and the employer prefers any proceedings
against such award in a High Court or the
Supreme Court, the employer shall be liable
to pay such workman, during the period of
pendency of such proceedings in the High
Court or the Supreme Court, full wages last
drawn by him, inclusive of any maintenance
allowance admissible to him under any rule
if the workman had not been employed in
any establishment during such period and an
affidavit by such workman had been filed to
that effect in such Court:

Provided that where it is proved to
the satisfaction of the High Court or the
Supreme Court that such workman had
been employed and had been receiving
adequate remuneration during any such
period or part thereof, the Court shall
order that no wages shall be payable
under this section for such period or part,
as the case may be"

7. A perusal of the aforesaid
provision indicate that where the Labour
Court or Tribunal makes an award
directing reinstatement of a workman and
the employer prefers a writ petition
questioning the validity of the award, in
which case, the employer shall be liable to
pay such workman, during the period of
pendency of such proceedings in the High
Court, full wages last drawn by him.

8. In the opinion of the Court, this
provision automatically comes into play
the moment an employer files a writ
petition, but this provision get superseded
the moment the Writ Court passes an
interim order on wages.

9. In the instant case, the Writ Court
passed an interim order dated 25th
1156 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

November, 2003 directed the petitioner to
reinstate the workman and further directing
the petitioner to take work from the
workman and pay salary month to month on
the due date. The words to "take work" and
the words to "pay salary month to month"
leads to an irresistible inference, namely, to
pay the current salary. It would be too much
to expect that the employer will take work
and pay last drawn wages. it is not
permissible to pay last drawn wages when
work is being taken. The workman becomes
entitled to be given a fair remuneration and
in the opinion of the Court, fair remuneration
is nothing else, but current salary since the
last drawn wages was being paid, the
workman rightly moved an application for
payment of minimum wages under the
provisions of the Minimum Wages Act. The
said application was maintainable and the
Prescribed Authority rightly calculated the
difference. The Court is of the opinion that
the order of the Prescribed Authority was
perfectly justified.

10. However, the Court is of the
opinion that awarding penalty was harsh.
No mens rea was involved and the
petitioner had taken a stand to pay wages
as the provision of 17-B of the Industrial
Disputes Act . In the absence of mens rea,
the Court is of the opinion that the
imposition of penalty was not correct.
Consequently, the award of the Prescribed
Authority awarding penalty can not be
sustained and to that extent, the order of
the Prescribed Authority is liable to be
quashed.

11. In the result, the writ petition is
partly
allowed.
The
order
of
the
Prescribed Authority dated 18th June,
2009 is partly quashed to the extent of
imposition of the penalty. The amount
towards payment of the balance amount
of wages is affirmed, which shall be paid
to the workman concerned.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED:ALLAHABAD 01.05.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No.50962 of 2008

Smt. Vineeta Agarwal

 ..Petitioner
Versus
Addl. Commissioner & Ors...Respondents

Counsel for the Petitioner:
Sri Ramesh Chandra Dwivedi

Counsel for the Respondents:
C.S.C., Sri Satish Chaturvedi
Sri Ashwani Mishra, Sri R.K. Pandey.

Indian Stamp Act 1899-schedule I-B-Art.
34- Stamp duty on correction of sale deedwhether payable?-held-'No'-on execution of
sale deed-stamp duty already paid-on
certain
mistake
in
number
of
plotscorrection deed executed paying stamp
duty as
Rs. 100/-held-only
Rs. 10/-
payable-demand of extra duty treating
fresh document-illegal.

Held: Para-9
In view of the above, the aforesaid deed
dated 7.2.2006 is a deed of correction
and since it was necessitated on account
of
clerical
mistake
it
would
be
chargeable to stamp duty under Article
34-A of Schedule 1-B of the Indian
Stamp Act, 1899 and stamp duty of
Rs.10/- alone shall be payable on it. The
petitioner has already paid a stamp duty
of Rs.100/- on the said deed.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri Ramesh Chandra
Dwivedi,
learned
counsel
for
the
petitioner, learned Standing Counsel for