# Mohd. Arif / v. M/s Mirza Glass Works and others

- **Citation:** (2005) 4 ILRA 1184
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-26
- **Case number:** Special Appeal No. 884 of 2005
- **Bench:** Ajoy Nath Ray, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-arif-v-m-s-mirza-glass-works-and-others-40590
- **Pages:** 4

## Headnote

High Court Rules-Chapter VIII Rule5High Court Rules-Chapter VIII Rule-5
readwith Payment of Wages Act 1936-S15 and 18-Special Appeal-against the
judgment
passed
by
Single
Judgepetition arises out against Order passed
by
the
Prescribed
Authority
under
Section 15 of the Payment of wages Act
1936-(withing the meaning of tribunal)-
entrested with the Power of Civil Courtheld-appeal barred-not maintainable.

Held: Para 5 & 6

From a conjoint reading of Section 15 (1)
with Section 18 of the Payment of Wages
Act, 1936, it is clear that the authority
empowered to decide claims arising out
of deduction from wages is entrusted all
the powers of Civil Court under the Code
of Civil Procedure for the purposes of
taking evidence and for attendance and
compelling the protection of documents.
Thus the said authority has trapping of
Court and is a tribunal. Any order, thus,
passed by authority under Section 15 of
the Payment of Wages Act, 1936 is an
order passed by tribunal. The special
appeal being barred against an order of
one Judge exercising jurisdiction under
Article 226/227 of the Constitution
arising out of a writ petition from an
order
of
tribunal,
the
preliminary
objection raised by counsel for the
respondents has substance.

The appeal is barred under Chapter VIII
Rule 5 of the Rules of the Court and is
dismissed as not maintainable.

## Text

1184 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
applicable to the facts and circumstances
of the present case.

8. In Kunal Nanda vs. Union of
India and another, 2000 (5) SCC 362,
the
Supreme
Court
held
that
a
deputationist can always and at any time
be repatriated to his parent department
either at the instance of the borrowing
Department or on the instance of the
lending department. The Supreme Court
further held that incumbent who had
which has been posted had no vested right
to continue on deputation or get absorbed
in borrowing department. The Supreme
Court held-

"On the legal submissions also made
there are no merits whatsoever. It is well
settled that unless the claim of the
deputationist for a permanent absorption
in the department where he works on
deputation is based upon any statutory
rule, regulation or order having the force
of law, a deputationist cannot assert and
succeed in any such claim for absorption.
The basic principle underlying deputation
itself is that the person concerned can
always and at any time be repatriated to
his parent department to serve in his
substantive
position
therein
at
the
instance of either of the departments and
there is no vested right in such a person
to continue for long on deputation or get
absorbed in the department to which he
had gone on deputation."

Similar view was taken by a Division
Bench of this Court in Dr. O.P. Singh vs.
State of U.P. and others, 2002 (4) AWC
3067 (LB).

9. There is another aspect of the
matter. The borrowing department cannot
be saddled with surplus staff and if their
services are not required, it is always open
to the borrowing department to sent the
employee back to the parent department.
In my view, the borrowing department
was competent to pass the orders
repatriating the petitioners back to their
parent department.

10. In view of the aforesaid and in
the absence of any Rules or Regulations, I
am of the opinion that the Trade Tax
Department was competent to repatriate
the
petitioners back
to the parent
department. The borrowing department
had complete and full jurisdiction to pass
the order repatriating the petitioners to
their parent department.

11. Consequently, I do not find error
in the impugned order. The writ petitions
fail
and
are
dismissed.
In
the
circumstances of the case, there shall be
no order as to cost.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 884 of 2005

Mohd. Arif
 ...Petitioner/Appellant
Versus
M/s Mirza Glass Works and others

...Respondents

Counsel for the Petitioner:
Sri Y.S. Saxena
Sri D.K. Kulshreshtha

Counsel for the Respondents:
Sri V. Sahai
C.S.C.
4 All] Mohd. Arif V. M/s Mirza Glass Works and others
1185
High Court Rules-Chapter VIII Rule5High Court Rules-Chapter VIII Rule-5
readwith Payment of Wages Act 1936-S15 and 18-Special Appeal-against the
judgment
passed
by
Single
Judgepetition arises out against Order passed
by
the
Prescribed
Authority
under
Section 15 of the Payment of wages Act
1936-(withing the meaning of tribunal)-
entrested with the Power of Civil Courtheld-appeal barred-not maintainable.

Held: Para 5 & 6

From a conjoint reading of Section 15 (1)
with Section 18 of the Payment of Wages
Act, 1936, it is clear that the authority
empowered to decide claims arising out
of deduction from wages is entrusted all
the powers of Civil Court under the Code
of Civil Procedure for the purposes of
taking evidence and for attendance and
compelling the protection of documents.
Thus the said authority has trapping of
Court and is a tribunal. Any order, thus,
passed by authority under Section 15 of
the Payment of Wages Act, 1936 is an
order passed by tribunal. The special
appeal being barred against an order of
one Judge exercising jurisdiction under
Article 226/227 of the Constitution
arising out of a writ petition from an
order
of
tribunal,
the
preliminary
objection raised by counsel for the
respondents has substance.

The appeal is barred under Chapter VIII
Rule 5 of the Rules of the Court and is
dismissed as not maintainable.

(Delivered by Hon'ble Ajoy Nath Ray, CJ)

1. A preliminary objection has been
raised by counsel for the respondents that
this special appeal is not maintainable in
view of the fact that writ petition was
filed
against
an
order
passed
by
Prescribed Authority against the appellant
under the Payment of Wages Act, 1936.

2. Chapter VIII Rule 5 of the Rules
of the Court provides that special appeal
shall not lie from a judgment of learned
single Judge passed in exercise of
jurisdiction conferred by Article 226/227
of the Constitution in respect of any
judgment, or order or award of a tribunal,
Court or statutory arbitrator. Chapter VIII
Rule 5 of the Rules of the Court is
extracted below:-

[5 Special appeal.- An appeal shall
lie to the Court from a judgment (not
being a judgment passed in the exercise of
appellate jurisdiction in respect of a
decree or order made by a Court subject
to the Superintendence of the Court and
not being an order made in the exercise of
revisional jurisdiction or in the exercise
of its of Superintendence or in the
exercise of criminal jurisdiction [or in the
exercise of jurisdiction conferred by
Article 226 or Article 227 of the
Constitution in respect of any judgment,
order or award (a) of a tribunal Court or
statutory arbitrator made or purported to
be made in the exercise or purported
exercise of jurisdiction under any Uttar
Pradesh Act or under any Central Act,
with respect to any of the matters
enumerated in the State List or the
Concurrent List in the Seventh Schedule
to the Constitution, or (b) of the
Government or any Officer or authority,
made or purported exercise of appellate
or revisional jurisdiction under any such
Act of one Judge.]"

3. The question for consideration is
as to whether the Prescribed Authority
under the Payment of Wages Act, 1936 is
a tribunal. Section 15 (1) of the Payment
of Wages Act, 1936 provides that the
State government may, by notification in
the Official Gazette, appoint the Presiding
1186 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Officer of any Labour Court or Industrial
Tribunal, or under any corresponding law
relating
to
the
investigation
and
settlement of industrial disputes or any
Commissioner
for
Workmen's
Compensation or other officer with
experience as a Judge of a Civil Court to
be authority to hear and decide all claims.
Section 15 (1) of the Payment of Wages
Act, 1936 is extracted below:-

"15
Claims
arising
out
of
deductions from wages or delay in
payment of wages and penalty for
mallclous or vexatious claims.- (1) The
State Government may, by notification in
the Official Gazette, appoint [a presiding
officer of any Labour Court or Industrial
Tribunal, constituted under the Industrial
Disputes Act, 1947 (14 of 1947), or under
any corresponding law relating to the
investigation and settlement of industrial
disputes in force in the State or] any
Commissioner
for
Workmen's
Compensation
or
other
office
with
experience as a Judge of a Civil Court or
as a stipendiary Magistrate to be the
authority to hear and decide for any
specified area all claims arising out of
deductions from the wages, or delay in
payment of wages, [of persons employed
or paid in that area, including all matters,
incidental to such claims:

.................."

4. Section 18 provides for powers of
authorities appointed under Section 15
which is extracted below:-

"18. Powers of authorities appointed
under
Section
15-
Every
authority
appointed under sub-section (1) of section
15 shall have all the powers of a Civil
Court under the Code of Civil Procedure,
1908 (5 of 1908), for the purpose of
taking evidence and of enforcing the
attendance of witnesses and compelling
the production of documents, and every
such authority shall be deemed to be a
Civil Court for all the purposes of section
195 and of [Chapter XXVI of the Code of
Criminal Procedure, 1973 (2 of 1974.]"

5. From a conjoint reading of
Section 15 (1) with Section 18 of the
Payment of Wages Act, 1936, it is clear
that the authority empowered to decide
claims arising out of deduction from
wages is entrusted all the powers of Civil
Court under the Code of Civil Procedure
for the purposes of taking evidence and
for
attendance
and
compelling
the
protection of documents. Thus the said
authority has trapping of Court and is a
tribunal. Any order, thus, passed by
authority under Section 15 of the Payment
of Wages Act, 1936 is an order passed by
tribunal. The special appeal being barred
against an order of one Judge exercising
jurisdiction under Article 226/227 of the
Constitution arising out of a writ petition
from an order of tribunal, the preliminary
objection raised by counsel for the
respondents has substance.

6. The appeal is barred under
Chapter VIII Rule 5 of the Rules of the
Court
and
is
dismissed
as
not
maintainable.
----------
4 All] Mohammad Ehteshamul Hasan V. State of U.P. and others
1187
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2005

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No.47817 of 2005

Mohammad Ehteshamul Hasan

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

Counsel for the Petitioner:
Sri Jai Prakash Rai

Counsel for the Respondents:
Sri K.C. Sinha
Sri D.S. Shukla
Sri V.K. Singh
S.C.

Constitution of India, Art 226-Sevice
Law- Right to appointment-vacancies of
Tuberculosis Health Visitors-advertised
on
2.3.05
prescribing
the
essential
qualification-Intermediate with scienceafter
interview-
by
subsequent
advertisement the requisite qualification
prescribed Intermediate with Biology-
challenged on the ground once the
petitioner participated in the interview
as per earlier advertisement-it cannot be
denied
by
the
change of requisite
qualification-held-the
subsequent
advertisement issued as per guidelines
of State Govt.- in absence of essential
qualification petitioner has no right to
challenge the subsequent advertisement.

Held: Para 6

Considering the aforesaid facts and
circumstances and keeping in view that
the subsequent advertisement has been
issued on the basis on the guidelines
issued by the State Government and also
considering that the petitioner does not
posses the essential qualification for
appointment on the post of T.B.H.V. even
according to the guidelines of the Central
Government as have been relied by the
petitioner and also keeping in view the
law laid down by the Supreme court in
the aforesaid two cases relied upon by
the learned counsel for the respondents,
the prayer made in this writ petition is
not liable to be granted.
Case law discussed:
J.T. 1991 (2) SC-380
1994 (6) SCC-151

(Delivered by Hon'ble Vineet Saran, J.)

1. Heard learned counsel for the
petitioner as well as learned Standing
Counsel
appearing
for
the
State-
respondents no. 1,2 and 3, Sri V.K. Singh,
learned counsel appearing for respondent
no. 4 and Sri D.S. Shukla, learned
Additional Standing Counsel for the
Union of India appearing for respondent
no. 5.

2. The facts in brief are that in
response to an advertisement issued on
2.3.2005 by respondent no. 4, District
Tuberculosis
Officer
as
Member
Secretary of the District Tuberculosis
Control
Society,
Allahabad
inviting
applications for filling up the post of
Tuberculosis Health Visitor (T.B.H.V.)
the
petitioner
had
applied.
The
qualification as mentioned in the said
advertisement was that the candidate
should have passed Intermediate with
Science. It is not the case of the petitioner
that in response to the said application
filed by the petitioner he had been call for
interview or any other action has been
taken with regard to his selection.
However, a fresh advertisement was
issued
on
14.6.2005
again
inviting
applications for the post of T.B.H.V. in
the subsequent advertisement the essential
qualification for appointment on the post
of T.B.H.V. was Intermediate with