# Shishupal Parihar v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 1058
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-23
- **Case number:** Civil Misc. Writ Petition No. 19200 of 2012
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shishupal-parihar-v-state-of-u-p-and-ors-42545
- **Pages:** 4

## Headnote

wages Act-1978-Section-3 Application
for recovery of wages-workman engaged
by Engineer for interior designing of
Bangla-some
daily
rated
employees
engaged held-Bungla not within meaning
of Industrial establishment-application
not maintainable-order quashed.

Held: Para-8
In the instant case the admitted fact is
that the petitioner is the owner of a
bungalow and he employed an engineer
for the purpose of redesigning and
redecorating
his
house.
Daily
rated
workers
were
employed
as
mason,
electrician and painters, who worked in
the house. The petitioner's bungalow is
not an industrial establishment, and the
facts, which has been brought on the
record
clearly
indicate
that
no
manufacturing activities of any sort was
carried
out
nor
any
articles
were
produced, processed or manufactured,
which was put up for sale, use or for
transportation. The Court further finds
that the petitioner cannot be termed as
an occupier. He is the owner of a
residential house and is not an occupier
as defined under Section 2-C of the Act.
The Act is clearly not applicable.

Case Law discussed:
1994 SCC (L&S) 286

## Text

1058 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

been filed by the petitioners. This
contention is also bereft of any force
because there was no such resolution of
Bar Association that the Magistrate or any
other officer would not pass any order on
that date and moreover, there is no law
that the Magistrate or any other officer
cannot pass any order on the day of strike
of the advocates. The impugned order of
the Magistrate concerned indicates that
the petitioners were given about 5 dates
for filing their objections against the
conditional order but no objection was
filed by the petitioners against the
conditional order and the petitioners even
remained regularly absent on two dates
from the court. So, sufficient opportunity
was given to the petitioners by the
Magistrate concerned to file objection
against the conditional order but they
failed to file the objection against the
same, as a consequence thereof the
conditional order was made absolute by
the Magistrate concerned under the
provisions of Section 136 Cr.P.C. In this
regard, the reference of Sections 135 and
136 Cr.P.C. appears essential. Sections
135 Cr.P.C. reads as follows:-

"135. Person to whom order is
addressed to obey or show cause.-The
person against whom such order is made
shall-

(a) perform, within the time and in
the manner specified in the order, the act
directed thereby; or

(b) appear in accordance with such
order and show cause against the same.

Section 136 Cr.P.C. reads as follows:

"136. Consequences of his failing
to do so.-If such person does not perform
such act or appear and show cause, he
shall be liable to the penalty prescribed in
that behalf in section 188 of the Indian
Penal Code (45 of 1860,) and the order
shall be made absolute."

11. According to the the conjoint
reading of Sections 135 and 136 Cr.P.C.,
it is clear that if the person to whom the
conditional order is addressed, does not
perform the acts within the time as
directed by the conditional order or fails
to appear and to show cause, the
conditional order is made absolute. In the
present case, the petitioners neither
performed the act as directed by the
conditional order nor showed any cause
against the said order in spite of availing
sufficient opportunity for the same. So the
Magistrate concerned rightly made the
conditional
order
absolute
and
the
revisional court rightly confirmed the
same.

12. In view of the above, I find no
illegality or impropriety or jurisdictional
or procedural error in the impugned
orders of both the courts below and
therefore, these orders call for no
interference.

13. For the foregoing reasons, the
writ petition is dismissed and the
impugned orders of both the courts below
are confirmed.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 23.05.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 19200 of 2012

Shishupal Parihar

 ...Petitioner
2 All] Shishupal Parihar Vs. State of U.P. and Ors.

1059
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sumati Rani Gupta

Counsel for the Respondents:
C.S.C., Sri Rajesh Tiwari

U.P. Industrial Piece Timely Payment of
wages Act-1978-Section-3 Application
for recovery of wages-workman engaged
by Engineer for interior designing of
Bangla-some
daily
rated
employees
engaged held-Bungla not within meaning
of Industrial establishment-application
not maintainable-order quashed.

Held: Para-8
In the instant case the admitted fact is
that the petitioner is the owner of a
bungalow and he employed an engineer
for the purpose of redesigning and
redecorating
his
house.
Daily
rated
workers
were
employed
as
mason,
electrician and painters, who worked in
the house. The petitioner's bungalow is
not an industrial establishment, and the
facts, which has been brought on the
record
clearly
indicate
that
no
manufacturing activities of any sort was
carried
out
nor
any
articles
were
produced, processed or manufactured,
which was put up for sale, use or for
transportation. The Court further finds
that the petitioner cannot be termed as
an occupier. He is the owner of a
residential house and is not an occupier
as defined under Section 2-C of the Act.
The Act is clearly not applicable.

Case Law discussed:
1994 SCC (L&S) 286

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

1. Fourteen workers filed an
application under Section 3 of the U.P.
Industrial Piece Timely Payment of
Wages Act, 1978 alleging that the
petitioner has failed to pay wages
amounting to Rs.3,86,575/- and therefore,
the said amount may be recoverred under the
Act. The petitioner appeared and objected to
the proceeding contending that, for the
purpose of interior designing and painting his
bungalow, the petitioner had engaged an
engineer Sri J.D.Geharana and under his
supervision some masons, painters and
electricians were engaged on daily rated
basis for which they were paid their wages. It
was contended that whatever wages were
payable was paid to the Engineer, who in
turn had made the payment to the workers
and that nothing was due and payable.
Further, the petitioner is not an occupier nor
the bungalow where the interior works were
carried out, is an industrial establishment.
The petitioner, consequently, contended that
no proceedings under the Act 1978 could be
initiated.

2. Inspite of this specific objection
being
raised,
the
Deputy
Labour
Commissioner has passed an order under
Section 3 of the Act for recovery of the
wages, on the ground, that no proof of
payment was filed by the petitioner or by
his Engineer, Sri Gehrana. The petitioner,
being aggrieved by the said order, has
filed the present writ petition.

3. In order to appreciate the rival
submissions of the parties the Court finds
that the statements of Objects and Reasons
given under the Act of 1978 indicates that the
provisions of the Payment of Wages Act was
found to be inadequate to ensure timely
payment of wages and that the incidence of
disturbance of industrial peace was greater in
establishment
and,
therefore,
it
was
considered necessary to provide that if the
wage bill in default exceeded Rs.50,000/-,
the amount would be recoverable as arrears
of land revenue. This became essential
because it was found that there was a
1060 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

tendency of the employers to keep large
amount of wages in arrears.

4. The Supreme Court analysed the
provisions of the Act of 1978 in Modi
Industries Ltd. Vs. State of U.P. and
others, 1994 SCC (L & S) 286 in which
the Supreme Court held:

"8. The inquiry under Section 3
being thus limited in its scope, the Labour
Commissioner's powers extend only to
finding out whether the workmen who
have put in the work were paid their
wages as per the terms of their
employment
and
within
the
time
stipulated by such terms. If the Labour
Commissioner
is
satisfied
that
the
workmen, though they have worked and
are, therefore, entitled to their wages, are
not paid the same within time, he has
further to satisfy himself that the arrears
of wages so due exceed Rs.50,000/-. It is
only if he is satisfied on both counts that
he can issue the certificate in question.
Under the Act, the Labour Commissioner
acts to assist the workmen to recover their
wages which are admittedly due to them
but are withheld for no fault on their
behalf. He does not act as an adjudicator
if the entitlement of the workmen to the
wages is disputed otherwise than on
frivolous
or
prima
facie
untenable
grounds. When the liability to pay the
wages, as in the present case, is under
dispute which involves investigation of
the questions of fact and/or law, it is not
the function of the Labour Commissioner
to adjudicate the same. In such cases, he
has to refer the parties to the appropriate
forum."

5. The Supreme Court found that the
inquiry under the Act was limited only to
find out whether the workman had earned
their wages as per the terms of their
employment or not and if the authority
was satisfied that the workers had worked
and was entitled to their wages and if the
authority further found that the arrears of
wages exceeded Rs.50,000/-, in that case
he was obligated to issue a recovery
certificate. The Supreme Court held that
the authority was required to act as the
facilitator and not as an adjudicator,
namely, that if the claim of the workers
was disputed, the authority could not
adjudicate
upon
the
dispute
unless
frivolous
or
prima
facie
untenable
grounds were taken by the employers.
The Supreme Court further observed that
where the dispute involved investigation
of questions of fact and of law, it was not
the function of the authority to adjudicate
the same and, in such matters, the parties
were required to approach the appropriate
forum.

6. The Act is applicable to an
industrial
establishment.
"Industrial
establishment" has been defined under
Section 2(a) of The Uttar Pradesh
Industrial Peace (Timely Payment of
Wages) Act, 1978. For facility, the said
provision is extracted hereunder:

"(a) "industrial establishment" means
any
factory,
workshop
or
other
establishment in which articles are
produced,
processed,
adopted
or
manufactured with a view to their use,
transport or sale;"

7. From the aforesaid, it is clear that
an industrial establishment is a factory or
a workshop or an establishment where
articles are produced, processed, adopted
or manufactured for the purpose of use,
transport or sale. Section 2-C of the Act
defines
"occupier"
as
under:
2 All] Aftab Ahmad Vs.UPPCL and Ors.

1061

"(c) "occupier" in relation to an
industrial
establishment,
means
the
employer of workmen employed in such
establishment and includes in the case
where the employer is a company the
Managing Director and where it is a firm
the partner designated in that behalf by
the firm and in case of any other employer
an officer designated in that behalf by the
employer with his consent and whose
name is intimated by the employer to the
Labour Commissioner in the prescribed
form by the prescribed date;"

8. In the instant case the admitted
fact is that the petitioner is the owner of a
bungalow and he employed an engineer
for the purpose of redesigning and
redecorating his house. Daily rated
workers
were employed
as
mason,
electrician and painters, who worked in
the house. The petitioner's bungalow is
not an industrial establishment, and the
facts, which has been brought on the
record
clearly
indicate
that
no
manufacturing activities of any sort was
carried
out
nor
any
articles
were
produced, processed or manufactured,
which was put up for sale, use or for
transportation. The Court further finds
that the petitioner cannot be termed as an
occupier. He is the owner of a residential
house and is not an occupier as defined
under Section 2-C of the Act. The Act is
clearly not applicable.

9. In the light of the aforesaid, the
impugned order cannot be sustained and
is quashed.

10. The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2013

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No.19355 OF 2013

Aftab Ahmad

 ...Petitioner
Versus
UPPCL and Ors.

 ...Respondents

Counsel for the Petitioner:
Sri Sanjay Srivastava

Counsel for the Respondents:
C.S.C., Sri Mahboob Ahmad

Constitution of India, Art. 226- Power
connection-7.50 H.P. +120 wats to run
pump-set-on private bore well-as per
circular
dt.
31.08.2010-petitioner
deposited Rs. 14,175(11,175/cost of
line+2250 toward cost of 15 meter line)
on 21.02.2011 but no connection givencorporation taking plea entire erection of
line
expense
should
bear
by
the
consumer
itself-held-illegal-direction
issued to construct entire line within 3
month-order impugned quashed.

Held: Para-11
Since as per circular of the respondentcorporation dated 31.8.2010, nothing is to
be charged from the tube-well consumer
for laying the electric line up to 300 meters
and also since for rest of 15 meters, the
respondent-corporation has charged a sum
of Rs. 2,250/- towards cost of line as
evident from line chart and the report and
they have also made provision of carriage
and erection of 315 meters line as per
estimates
of
transmission
and
transformation which has been made
chargeable to the corporation as per
approved report dated 31.1.2011 and as
such the stand of the respondents that the
petitioner should construct the whole
electric line of 315 meters from the
materials provided by the corporation, does
not appears to be correct and justified. The
maximum which the respondents could