# Union of India & another v. Central Administrative Tribunal and others

- **Citation:** High Court of Judicature at Allahabad #39563
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1997-10-03
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-another-v-central-administrative-tribunal-and-others-39563
- **Pages:** 4

## Text

1ALL] Union of India & another V. Central Administrative Tribunal and others 35
well as the State of Uttar Pradesh shall be
subject to costs, to be deposited with the
Registrar, High Court, within fifteen days
from today. These costs will stand as
Rs.10,000/- against the U.P. Jal Nigam, one
set and Rs. 10,000/- against the State of Uttar
Pradesh second set to be paid by the District
Magistrate, Jaunpur, who had knowledge of
the acquisition proceedings, but would not file
the counter affidavit, despite an order of the
Court.

A copy of this judgement will be sent by
the Registrar, High Court, to the Accountant
General, U.P., for an audit on the public
project on the manner of initiating it and its
execution.

The petition is allowed with costs, as
above.
Petition Allowed.

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By the Court

1. This Writ petition has been filed against
the
impugned
order
of
the
Central
Administrative Tribunal dated 03.10.1997
Annexure 4 to the petition and against the
award of the Central Government Industrial
Tribunal cum Labour Court, Kanpur dated
18.06.1993 Annexure 3 to the petition.

2. It appears that a reference was made by
the central Government to the Central
Government Industrial Tribunal-cum-Labour
Court, Kanpur regarding the termination of
service of respondent no. 2 and the Tribunal
an award dated 18.06.1993 in favour of the
workman. Against that award of the Central
Government Industrial Tribunal -cum-Labour
court it appears that the petitioner approached
the Central Administrative Tribunal and the
Central Administrative Tribunal passed the
impugned order dated 03.10.1997.

3. In our opinion, the petition before the
Central Administrative Tribunal was wholly
misconceived. It may be mentioned that under
Section 17 (2) of the Industrial Disputes Act
the award of the Industrial Tribunal if final.
This means way of any statutory remedy. It
can only be challenged by means of the
constitutional remedy under Article 226 of the
Constitution.
The
Central
Administrative
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
36
Tribunal
has
been
created
by
the
Administrative Tribunal Act which is a
statutory enactment and not a constitutional
enactment. Hence the award of the Industrial
Tribunal can only be challenged in this Court
by means of a writ petition under Article 226
of
the Constitution and it cannot be
challenged before the Central Administrative
Tribunal. The decision of the Supreme Court
in Air 1997 SC 408 in our opinion has no
relevance in this case. In that case the
Supreme Court only held that the Payment of
Wages Authority will continue to have
jurisdiction to decide claims under Section 15
of the Act even after establishment of the
Central Administrative Tribunal. This has
nothing to do with the question whether any
petition can be filed before the Central
Administrative Tribunal against an award of
the Industrial tribunal or labour Court. In our
opinion it cannot in view of the bar of s. 17
(2) of the Industrial Disputes Act.

However, since the petitioner has also
challenged
the
award
of
the
Central
Government Industrial Tribunal cum labour
court we have carefully perused the award and
find no illegality in the same. The respondent
no. 2 was alleged to be absent unauthorisedly
for certain period but the Industrial Tribunal
has held that there is no evidence to show that
the
workman
was
absenting
himself
unauthorisedly for the period in question.
Moreover, even if the respondent was
absenting the remedy of the petitioner was to
charge sheet him and hold disciplinary
proceeding but the service could not be
terminated straightaway of a regular employee
without giving him an opportunity of hearing.
Thus there is no illegality in the award of the
industrial tribunal. There is no force in this
petition and it is accordingly dismissed.

Petition Dismissed.

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By the Court

1. The core question involved here is
whether the appellant is liable to pay fixed
court fee of Rs.37.50 under Article 21-A of
Schedule II of the Court Fees Act as amended
in U.P. for the purposes of payment of court
1ALL] Dinesh Chandra Saxena V. Smt. Nootan Saxena 37
 fee in the appeal from final order passed
in disposing of the application under Section
27 of the Hindu Marriage Act, 1955 (in short
the Act) or advalorem court fee on the basis of
valuation fixed in the appeal.

2. Briefly stated the facts are that Dinesh
Chandra Saxena, the appellant herein, filed
suit for divorce against his wife Smt. Nootan
Saxena on the grounds mentioned under
Section 13 of the Act before the Family Court.
The suit for divorce was decreed. His wife
filed an application under Section 27 of the
Act to return her stridhan which were in
possession of her husband. The Judge Family
Court allowed the application and directed the
appellant to pay sum of Rs.51,000/- to the
respondent
for
the
goods
which
were
returnable by him to his wife. The appellant
filed appeal against this order dated 27.7.1999
under Section 19 of Family Court Act, 1984
(in short 1984 Act). The Stamp Reporter
reported that the appellant was liable to pay
advalorem court fee of Rs.4,195/-. The
appellant
disputed
this
demand.
The
Additional Registrar took the view that the
advalorem court fee is payable by the
appellant under Section 7(1) (iv) of the Court
Fees Act, 1870. The appellant raised an
objection against this decision. The matter has
now been referred to me by the Hon'ble the
Chief Justice.

3. If any decree is passed under the
provisions of Hindu Marriage Act, 1955
appeal lies under Section 28 of the said Act.
Section 28 reads as under :-

"[28. Appeal from decrees and orders.-
(1) All decrees made by the court in any
proceeding under this Act shall, subject to the
provisions of sub-section (3), be applicable as
decrees of the court made in the exercise of its
original civil jurisdiction, and every such
appeal shall lie to the court to which appeals
ordinarily lie from the decisions of the court
given in the exercise of its original civil
jurisdiction.
(2) Orders made by the court in any
proceeding under this Act, under Section 25
or Section 26 shall, subject to the provisions
of sub-section (3), be appealable if they are
not interim orders and every such appeal shall
lie to the court to which appeals ordinarily lie
from the decisions of the court given in
exercise of its original civil jurisdiction.
(3) There shall be no appeal under this
section on the subject of costs only.
(4) Every appeal under this section shall be
preferred within a period of thirty days from
the date of the decree or order."

4. The Court fees payable on such an
appeal is given under Article 21-A of
Schedule II of Court Fees Act as amended by
U.P. Act No.44 of 1958 which reads as
under:-

"Application, petition or Memorandum of
Appeal under the Special Marriage Act, 1954,
or the Hindu Marriage Act, 1955." .............
"Thirty-seven rupees and fifty naye paise."

5. The appellant has filed appeal under
Section 19 of the Family Courts Act. Article
21-A does not make any reference to any
appeal under the provisions of the Family
Court Act.

6. The Family Courts Act confers
jurisdiction on the Family Court in regard to
substantive rights of a party in respect of
family matters covered by provisions of
Hindu Marriage Act. Sub-section (1) of
Section 7 of 1984 Act lays down that subject
to the other provisions of the Act, a Family
Court shall have and exercise all the
jurisdiction exercisable by any District Court
or any Subordinate Civil Court under any law
for the time being in force in respect of suits
and proceedings of the nature referred to in
the explanation. Explanation (a) of subsection (1) refers to a suit or proceeding
between the parties to a marriage for a decree
of nullity of marriage (declaring the marriage
to be null and void or, as the case may be,
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
38
annulling the marriage) or restitution of
conjugal rights or judicial separation or
dissolution of marriage. Clause (c) provides in
respect of a suit or proceeding between the
parties to a marriage with respect to the
property of the parties or of either of them.
The Family Court gets the jurisdiction to
entertain a suit for divorce or other matters
provided
under
Hindu
Marriage
Act.
Similarly it can entertain an application by a
party under Section 27 of the Hindu Marriage
Act in regard to any direction in respect of the
property.

7. Section 28 only gives a right to a party
to file an appeal against decrees and certain
orders passed under the Act. It is a substantive
right given to a party to submit an appeal but
it does not refer to a forum of appeal. The
forum of appeal, in absence of any other
provision, is to be determined by Bengal,
Agra and Assam Civil Courts Act, 1887. An
appeal from a decree or order of a
Subordinate Judge lies to the District Judge
under Section 21 of the Act and from a decree
or order of a District Judge or Additional
Judge to the High Court under Section 20 of
the said Act. Section 19 of 1984 Act provides
for filing an appeal from every judgment and
order not being interlocutory order of a
Family Court to the High Court both on facts
and law. Sub-section (1) of Section 19 reads
as under:-
"Save as provided in sub-section (2) and
notwithstanding anything contained in the
Code of Civil Procedure, 1908 (5 of 1908) or
in the Code of Criminal Procedure, 1973 (2 of
1974), or in any other law, an appeal shall lie
from every judgment or order, not being an
interlocutory order, of a Family Court to the
High Court both on facts and on law."

8. Substantive right of appeal is given
under Section 28 of Hindu Marriage Act but
the forum of appeal is determined under
Section 19 of 1984 Act in respect of such
matters which are decided by a Family Court.
A Division Bench of this Court in Smt. Sarla
Devi Vs. Balwant Singh, AIR 1969 Alld. 601,
held that a right of appeal is a substantive
right and is not mere matter of procedure. As
regards where the appeal will lie, it was held
that the words "under any law for the time
being in force" occurring in Section 28 of
1955 Act only mean that the appeal shall be
governed by the provisions contained in the
Act which deals with the forum of Civil
Appeals.

9. The words 'application, petition or
memorandum of appeal' under the Hindu
Marriage Act, 1955 must relate to a
substantive right of appeal under its Section
28 but when the matter is decided by the
Family Court exercising power under Section
7 of 1984 Act, the forum of appeal will be
determined under Section 19 of 1984 Act.
Under Article 21-A of Schedule II of Court
Fees Act as amended by U.P. Act No.44 of
1958 a fixed court fee of Rs.37.50 is payable
on a memorandum of appeal. The appellant
shall not be liable to pay advalorem court fee
on the basis of valuation contained in Section
7(1)(iv) of the Court Fees Act. The appellant
has affixed stamps of Rs.38/- on the memo of
appeal. The court fee paid by the appellant is
held sufficient.
Appeal Allowed.

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