# Power Corporation Ltd v. K.Thangappan"

- **Citation:** (2009) 1 ILRA 202
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-22
- **Case number:** Criminal Misc. Application No.35450 of 2008
- **Bench:** Vinod Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/power-corporation-ltd-v-k-thangappan-41346
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Section 319Summoning-on the basis of materials
available
during
course
of
Trialsatisfaction of Trial Court is materialHigh Court can not substitute the power
of Trial Court-held-summoning order can
not
be
termed
illegal
or
capricious/made-observation
for
consideration on same day of bail
application made.

Held: Para 8

The trial judge was satisfied that the
present applicant can be tried along with
already trying accused persons and the
evidence led before it is sufficient to
summon him by exercising power under
section 319 Cr.P.C. The said opinion of
the trial judge cannot be said to be
capricious, illegal or not sustainable in
law.
Case law discussed:
2007 (58) ACC 254

## Text

202 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

20.12.2004, appeal was filed, which was
dismissed by District Judge Bijnore on
15.02.2005. I find that both the orders are
utterly illegal as neither any ground for
delay was taken nor any finding was
recorded. The Supreme Court in the
following authorities has held that filing
repeated representations is no ground to
condone the delay and it cannot keep a
course of action alive.

1. C. Jocob Vs. Director of Geology
& Mining, 2008 AIR SCW 7233
2. AIR 2006 SC 1581 "Karnataka
Power
Corporation
Ltd.
v.
K.Thangappan"

5. Ultimately, Prescribed Authority
under Payment of Wages Act, 1936
allowed the claim of respondent No.2
through order dated 25.03.2006 holding
that from 01.04.1996 to 31.03.2001
respondent No.2 is entitled to salary in
accordance with the V Pay Commission
amounting to about Rs.2,70,000/- (for this
period about Rs.2,40,000/- were paid).
Seven times of the said amount, i.e.
Rs.18,85,429/- was imposed as damages.
Total amount directed to be paid came to
Rs.21,54,776/-. This writ petition is
directed against orders dated 20.12.2004
and 25.03.2006.

6. Recommendations of V Pay
Commission when accepted by the
Government
are
applicable
upon
government employees. They are not
applicable
on
privately
managed
educational institutions.

7. Disputed question of entitlement
to a particular pay or pay scale cannot be
decided in proceedings under Payment of
Wages Act. The same principle which
applies to applications under Section 33C(2) of Industrial Disputes Act applies to
Payment of Wages Act. It has repeatedly
been held by the Supreme Court that there
cannot be any adjudication under Section
33-C(2) of I.D. Act. In this regard,
reference may be made to the authority
reported in Ghaziabad Zila Sahakari
Bank Ltd. Vs. Additional Labour
Court, Commissioner, 2007 (113) FLR
50 : 2007 (2) ADJ 25 (SC). In
U.P.S.R.T.C. Vs. Virendra Bhandari,
2006 (10) SCC 211, it has been held that
salary in terms of recommendations of
Pay Commission cannot be recovered
through proceedings under Section 33C(2).

8. Moreover by virtue of Section
1(6) of Payment of Wages Act an
employee drawing more than Rs.1600/-
per month cannot make any claim under
the said Act. Not only the claimed per
month wages but even the per month
wages actually paid to respondent No.2
were more than Rs.1600/-

9. Accordingly, writ petition is
allowed. Impugned orders are set aside.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2009

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No.35450 of
2008

Krishna Pal

...Applicant
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicant:
Sri R.P.S. Chauhan
1 All] Krishna Pal V. State of U.P. and another

203
Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 319Summoning-on the basis of materials
available
during
course
of
Trialsatisfaction of Trial Court is materialHigh Court can not substitute the power
of Trial Court-held-summoning order can
not
be
termed
illegal
or
capricious/made-observation
for
consideration on same day of bail
application made.

Held: Para 8

The trial judge was satisfied that the
present applicant can be tried along with
already trying accused persons and the
evidence led before it is sufficient to
summon him by exercising power under
section 319 Cr.P.C. The said opinion of
the trial judge cannot be said to be
capricious, illegal or not sustainable in
law.
Case law discussed:
2007 (58) ACC 254

(Delivered by Hon'ble Vinod Prasad, J.)

1. The order dated 11.02.2008
passed by Addl. District and Sessions
Judge in S.T. No.1122 of 06, State Vs.
Ram Charan and another under Section
307 and 504 IPC has been questioned in
this application under section 482 Cr.P.C.
invoking inherent jurisdiction of this
Court.

2. I have heard learned counsel for
the applicant at a great length and perused
the record including annexure-3 and the
impugned order.

3. Sri Chauhan, learned counsel for
the applicant raised many contentions first
being that during the investigation the
complicity of the applicant was found to
be false, secondly, only the role of
exhortation has been assigned to the
present applicant in the deposition of the
injured recorded in the aforesaid sessions
trial, thirdly, the applicant has no criminal
history and has got no conviction to his
credit and lastly, he relied upon a
judgment of Apex Court, reported in 2007
(58) ACC 254, Mohd. Shafi Vs. Mohd.
Rafique and another to support his
argument that the summoning of the
applicant exercising power under section
319 Cr.P.C. is bad in law and the
impugned order be quashed.

4. Learned AGA vehemently refuted
all the contentions raised by the learned
counsel for the applicant.

5. Dealing with the contentions
raised by the learned counsel for the
applicant first of all material collected
during investigation is wholly irrelevant
and is beyond the scope of Section 319
Cr.P.C. What is to be looked into, for
summoning a person under section 319
Cr.P.C. is the recorded evidence during
trial and not materials collected during
investigation. All the allegations made
during the investigation are alien for
exercise of power under section 319
Cr.P.C. therefore, first contention raised
by the learned counsel for the applicant is
hereby repelled.

6. Coming to the second contention
that the only role of exhortation has been
assigned to the applicant, the applicant
can very well be convicted with aid of
Section 34 or 149 of I.P.C.

7. Coming to the third contention
that applicant does not have any criminal
history and therefore, should not be
prosecuted, to say the least, the said
204 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

argument is wholly irrelevant and has
been advanced without any basis.

8. Coming to the judgement relied
upon by the applicant, the said decision
does not apply at all on the fact of the
present case. What happened in the case
of Mohd. Shafi was that the trial judge, on
the basis of examination-in-chief only did
not thought it fit to summon the accused
by exercise of power under Section 319
Cr.P.C. Informant being aggrieved from
the aforesaid inaction on the part of the
trial judge approached the concerned
High
Court
challenging
the
non
summoning of the accused. The High
Court while allowing the prayer of the
informant set aside the order passed by
the trial judge and directed the trial judge
to summon the accused persons. The
accused was aggrieved by the order
passed by the High Court against him and
therefore, he had approached the Supreme
Court. The Apex Court set aside the order
of the High Court for the reasons that
under section 319 Cr.P.C. it is the
satisfaction of the Trial Judge to summon
any person as an accused. The High Court
cannot not substitute its satisfaction with
that of the trial judge. The Apex Court has
held that if the trial judge was not
satisfied only on the basis of examinationin-chief to summon the accused, no fault
can be find with the order of the trial
judge and therefore, the Apex Court set
aside the order of High Court. This fact is
clear from paragraph no. 12 and 13 of the
aforesaid judgment of Mohd. Shafi
(supra). That is not the situation here. The
trial judge was satisfied that the present
applicant can be tried along with already
trying accused persons and the evidence
led before it is sufficient to summon him
by exercising power under section 319
Cr.P.C. The said opinion of the trial judge
cannot be said to be capricious, illegal or
not sustainable in law.

9. In view of the above discussions,
I find no reason to set aside the impugned
order dated 11.2.08 passed by Additional
Sessions Judge in S.T. No. 1122 of 06
State Vs. Ram Charan and others. This
application is therefore devoid of merit
and is hereby dismissed.

10. After this order was passed,
learned
counsel
for
the
applicant
requested for a direction for disposal of
bail prayer of the applicant in the
aforesaid trial.

11. On the peculiar facts of the case,
I direct the trial judge to consider and
dispose of the bail prayer of the applicant
in the aforesaid trial on the same day on
which it is moved after hearing the public
prosecutor as complete materials against
the applicant is already available with the
trial judge.

12.

This
application
stands
dismissed with aforesaid direction.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No.37954 of 1996

M/s Hindustan Aeronautics Ltd.

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

Counsel for the Petitioner:
Sri S.D. Singh