# Smt. Shail Prabha Misra v. State of U.P. and others

- **Citation:** (2007) 2 ILRA 548
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-04-19
- **Case number:** Civil Misc. Writ Petition No.13623 of 1990
- **Bench:** Rakesh Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shail-prabha-misra-v-state-of-u-p-and-others-40928
- **Pages:** 4

## Headnote

Constitution of India-Art. 226-Practice &
Procedure-Petitioner's husband died in
harness on 19.5.88-worjing on the Post
2 All] Smt. Shail Prabha Misra V. State of U.P. and others
549
of officiating Principal-for the last 17
years-No counter affidavit filed-facts
remained
uncontroverted-Court
proceeded on merit-direction issued for
full arrear of salary as meant for regular
principal
with
other
consequential
benefits.

Held: Para 4

It is a pathetic case where a widow is
seeking pecuniary relief from this Court
under Article 226 of the Constitution of
India for the last about 17 years but no
counter affidavit has been filed. In the
absence of counter affidavit, this court
may proceed on the basis of assertions
made in the writ petition which remain
un-controverted till date in view of the
principles of law laid down by Hon'ble
Supreme Court reported in:
1- Choksi Tubes Co. Ltd. Vs. Union of
India (1997) 11 SCC 179 and
2- Nasim Bano Vs. State of U.P. & Others
(AIR) 1993 Supreme Court 2592
Case law discussed:
1997 (11) SCC-179
AIR 1993 SC-2592

## Text

548 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
"The liability of Insurance Company
could be statutory or contractual. A
statutory liability cannot be more than
what is required under the statute itself.
However, there is nothing in S. 95 of the
Act
prohibiting
the
parties
from
contracting to create unlimited or higher
liability to cover wider risk. In such an
event, the insurer is bound by the terms of
the contract as specified in the policy in
regard to unlimited or higher liability as
the case may be. In the absence of such a
term of clause in the policy, pursuant to
the contract of insurance, a limited
statutory liability cannot be expanded to
make it unlimited or higher. If it is so
done, it amounts to re-writing the statute
or the contract of insurance, which is not
permissible."

5. Initially we were under the
impression that even if in the earlier
judgements of the Supreme Court in Lata
Wadhwa (supra) and M.S. Grewal (supra)
the amount has been enhanced upto the
extent of Rs. 2 lacs, but if the statute does
not permit, how it will be prescribed to
pay.
However,
from
the
aforesaid
judgements we can get the guideline. The
guideline is that either it will be a
statutory liability or it will be a
contractual liability. If there is no contract
for unlimited liability, it has to be guided
by the statutory liability under Section 95
of the Act. But if the insurance policy
speaks that the same is unlimited, it has to
be governed by the principles of Section
110 (B) of the old Act i.e. Act, 1939.
Therefore, there is no bar even under the
statute unless and until it is hit by Section
95 of the Act itself. Since factually we
find that the insurance policy is unlimited,
there is no bar for the purpose of granting
an unlimited compensation in favour of
the claimants. Hence, the tribunal has
committed an error in giving an award
only to the extent of Rs. 25,200/-, which,
according to us, is totally unjust in nature.
Therefore, in disposing of the appeal we
fix the liability of compensation to be
paid to the claimants by the insurance
company for a sum of Rs. 2,00,000/-
along with the interest, as awarded by the
tribunal, at the rate of 12% simple interest
in the light of the judgement of the
Supreme Court in Lata Wadhwa (supra)
as claimed by the appellants without any
deduction since there is no question of
income and dependency on account of
death of a boy of six years old. However,
the insurance company will be entitled to
recover the said sum from the owner of
the vehicle. The amount which has
already been paid to the claimants will be
adjusted. Thus, the appeal stands disposed
of.

However, no order is passed as to
costs.

Appeal disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2007

BEFORE
THE HON'BLE RAKESH SHARMA, J.

Civil Misc. Writ Petition No.13623 of 1990

Smt. Shail Prabha Misra.
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.K. Dwivedi

Counsel for the Respondents:
S.C.

Constitution of India-Art. 226-Practice &
Procedure-Petitioner's husband died in
harness on 19.5.88-worjing on the Post
2 All] Smt. Shail Prabha Misra V. State of U.P. and others
549
of officiating Principal-for the last 17
years-No counter affidavit filed-facts
remained
uncontroverted-Court
proceeded on merit-direction issued for
full arrear of salary as meant for regular
principal
with
other
consequential
benefits.

Held: Para 4

It is a pathetic case where a widow is
seeking pecuniary relief from this Court
under Article 226 of the Constitution of
India for the last about 17 years but no
counter affidavit has been filed. In the
absence of counter affidavit, this court
may proceed on the basis of assertions
made in the writ petition which remain
un-controverted till date in view of the
principles of law laid down by Hon'ble
Supreme Court reported in:
1- Choksi Tubes Co. Ltd. Vs. Union of
India (1997) 11 SCC 179 and
2- Nasim Bano Vs. State of U.P. & Others
(AIR) 1993 Supreme Court 2592
Case law discussed:
1997 (11) SCC-179
AIR 1993 SC-2592

(Delivered by Hon'ble Rakesh Sharma, J.)

1. Heard Sri A. K. Dwivedi, learned
counsel for the petitioner and learned
Standing Counsel appearing for opposite
party Nos. 1 to 5.

2. In this case, the petitioner, a
widow of Late Sri Krishna Behari Misra,
Principal of Acharya R. N. Kela Inter
College,
Najibabad,
District-Bijnor
(hereinafter referred to as the institution)
who had died in harness on 19th May,
1988 in the premises of the institution,
had approached the management of the
institution and concerned authorities for
allowing arrears of salary to Sri Misra
who had worked as officiating Principal
of the institution from 16th October, 1982
to 19th May, 1988.
3. This writ petition was filed in this
court in the year 1990 and thus about 17
years have passed and no counter affidavit
has been filed. The case has come for
admission/hearing today i.e. after more
than 16 years and it appears that counter
affidavit has not yet been filed. Learned
Standing Counsel has requested some
more time to file counter affidavit. A
perusal of the order sheet reveals that the
case was listed on several occasions but
counter affidavit has not been filed.

4. It is a pathetic case where a
widow is seeking pecuniary relief from
this Court under Article 226 of the
Constitution of India for the last about 17
years but no counter affidavit has been
filed. In the absence of counter affidavit,
this court may proceed on the basis of
assertions made in the writ petition which
remain un-controverted till date in view of
the principles of law laid down by
Hon'ble Supreme Court reported in:

1- Choksi Tubes Co. Ltd. Vs. Union of
India (1997) 11 SCC 179 and
2- Nasim Bano Vs. State of U.P. &
Others (AIR) 1993 Supreme Court
2592

Accordingly, the court is proceeding
with the matter.

5. It emerges from the record that at
the relevant time the petitioner's husband
Late Sri Krishna Behari Misra was
working as Headmaster of High school
but later on the college was upgraded on
16.10.1982 as an Intermediate college
after receiving due recognition. The
petitioner's husband who was working as
a Headmaster of the High school in pay
scale of 770-1600 was asked to look after
the work of Principal. A formal order was
550 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
passed by the Management to allow Sri
Misra to continue to officiate as Principal
of the institution. He was possessing M.A.
and
B.T.
Qualification.
A
detailed
proposal resolution was sent to the Dy.
Director
of
Education,
Moradabad
seeking approval for the same.

6. It appears from the record that the
Dy. Director of Education did not respond
to the proposal resolution submitted by
the Management of the institution. There
is nothing on record to show whether the
Dy. Director of Education or other
concerned authorities had refused to
accord the sanction. However, petitioner's
husband continued to discharge all the
duties, functions and responsibilities of
the post of Principal of the institution. The
committee of management submitted
several letters to the authorities enclosing
resolutions of committee of management
for
according
sanction
for
formal
continuance of Sri Krishna Behari Misra
as Principal of the institution. However,
awaiting formal sanction, the petitioner's
husband Sri Krishna Behari Misra had
died in the premises of the institution on
19.5.1988 leaving behind a widow, Smt.
Shail Prabha Misra and three children
(two of them were minors). When nothing
was done by the respondents and the
management in making payment of salary
admissible to Sri Krishna Behari Misra
who had worked as officiating Principal
of the institution, the petitioner had to
enter the portals of this court by filing the
present writ petition seeking payment of
difference of salary and other monetary
benefits admissible to the legal heirs of
Late Sri Krishna Behari Misra. The
widow and children of a Principal of an
Intermediate College are suffering due the
lethargy and inaction on the part of the
respondents till date. It has been brought
to the notice of the respondents several
times but no action has been taken by the
District Inspector of Schools, Binjor or by
the Regional Dy. Director of Education
regarding the status of the reference
recommendation sent by the management
of the institution for making available
benefits to the teacher or his family.

7. In view of above, the opposite
parties Nos. 3 to 5 are directed to call for
the records from institution regarding
employment of Late Krishna Behari
Misra and after looking into the matter
pass appropriate orders on the proposal
submitted
by
the
committee
of
management
of
the
afore-mentioned
institution. If the petitioner's husband had
worked as Principal of the institution from
16.10.1982
to
29.5.1988
and
had
discharged all the duties and functions
and responsibilities of the Principal
during the aforesaid period, his legal
heirs, petitioner etc. shall be paid full
salary in the scale meant for the post of
Principal and the petitioner shall also be
paid arrears of salary and all the
consequential benefits accruing as a result
thereof. The above decision shall be taken
within a period of 3 months from the date
a certified copy of this order is produced
before the concerned Dy. Director of
Education,
Regional
Director
of
Education and District Inspector of
Schools, Binjor and the committee of
management.

With the above observations, the writ
petition is disposed of.
---------
2 All] Jangipur Sahkari Kraya Vikraya Samiti V. State of U.P. and others
551
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.04.2007

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.19156 of 1986

Jangipur Sahkari Kraya Vikraya Samiti
Ltd.

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

Counsel for the Petitioner:
Sri R.K. Mishra
Sri V.N. Agarwal

Counsel for the Respondents:
S.C.

Payment of Wages Act 1936-Section-15whether is the U.P. Cooperative Society
an establishment within the definition of
Section
2
(ii)?
Held-'No'-entire
proceeding
Ex-facie
illegal
without
jurisdiction.

Held: Para 7 & 8

In
Registrar,
Co-operative
Societies,
Allahabad Vs. The State of U.P. And
others, 1997 (75) FLR 356, this Court
held that a Co-operative Society is not
covered under the Payment of Wages
Act. I am in complete agreement with
the aforesaid judgment.

In view of the aforesaid, this Court holds
that the Payment of Wages Act is not
applicable upon a Co-operative Society
formed under the Co-operative Societies
Registration Act 1965. Consequently, the
entire proceedings under the Payment of
Wages Act, was Ex-facie, illegal and
without jurisdiction. Consequently, the
impugned order cannot be sustained and
is quashed. The writ petition is allowed.
Case law discussed;
1997 (75) FLR-356

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

1. Heard the learned counsel for the
petitioner and the learned Standing
Counsel representing the respondents.

2. The petitioner is a Society
registered under the U.P. Co-operative
Societies Act 1965. Proceedings under
Section 15 of the Payment of Wages Act,
1936, were initiated by the respondent no.
2 against the petitioner for the alleged
illegal deduction of the wages. The
Prescribed Authority passed an order to
proceed exparte and thereafter passed an
order under Section 15 of the Act.

Being aggrieved by the said orders,
the petitioner has filed the present writ
petition.

3. The short submission of the
learned counsel for the petitioner is, that
the Payment of Wages Act, is not
applicable upon the petitioner's society,
inasmuch as, it is neither a factory nor a
railway or an establishment and therefore,
the petitioners are not covered under the
provisions of the Payment of Wages Act.
Consequently, the authority had no
jurisdiction
to
proceed
against
the
petitioner.

Sub-Section [4] of Section 1 and Sub
Section [5] of Section 1 of the Act reads
as under:

"1.(4) It applies in the first instance to the
payment of wages to persons employed in
any [ factory, to persons] employed
(otherwise than in a factory) upon any
railway by a railway administration or,
either
directly
or
through
a
subcontractor, by a person fulfilling a
contract with a railway administration,