# Union of India v. XIII A.D.J. Lko & Others

- **Citation:** (2014) 2 ILRA 785
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-07
- **Case number:** Misc. Single No. 50 of 2000
- **Bench:** Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-v-xiii-a-d-j-lko-others-42977
- **Pages:** 6

## Headnote

Payment of wages Act 1936-Section 17(i)-
applicability of limitation Act-Appeal filed
beyond 30 days-whether can the delay in
filing appeal-be condoned by appellate
authority-held-'no'-provision of Section 5
of limitation not applicable.

Held: Para-15
From the above discussions and reasons
stated by the Supreme Court in the case of
decision of Hongo India (Supra) and
decision of this court in Hind Majdoor
Sabha, U.P versus State of U.P and others
(supra), it has to be held that provisions of
Section 5 of the Limitation Act will not be
applicable to the provisions of Section 17
of the Payment of Wages Act and appellate
court has no power to condone the delay
and except the appeal beyond limitation
provided in that. The court of appeal has
rightly
rejected
the
application
for
condonation of delay and no interference
is required in that order rejected. Hence,
the petition is liable to dismissed and it is
hereby by dismissed.

Case Law discussed:
1998 (3) AWC 2216 All. 1970 LAB 1 C 1982
(Vol. 3 CN 235);

## Text

2 All] Union of India Vs. XIII A.D.J. Lko & Others.
785
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.07.2014

BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

Misc. Single No. 50 of 2000

Union of India ...Petitioner
Versus
XIII A.D.J. Lko & Others ...Respondents

Counsel for the Petitioner:
Sri Ved Prakash, Bans Raj Yadav

Counsel for the Respondents:
C.S.C., Mohd. Ilyas, Shree Pal Singh

Payment of wages Act 1936-Section 17(i)-
applicability of limitation Act-Appeal filed
beyond 30 days-whether can the delay in
filing appeal-be condoned by appellate
authority-held-'no'-provision of Section 5
of limitation not applicable.

Held: Para-15
From the above discussions and reasons
stated by the Supreme Court in the case of
decision of Hongo India (Supra) and
decision of this court in Hind Majdoor
Sabha, U.P versus State of U.P and others
(supra), it has to be held that provisions of
Section 5 of the Limitation Act will not be
applicable to the provisions of Section 17
of the Payment of Wages Act and appellate
court has no power to condone the delay
and except the appeal beyond limitation
provided in that. The court of appeal has
rightly
rejected
the
application
for
condonation of delay and no interference
is required in that order rejected. Hence,
the petition is liable to dismissed and it is
hereby by dismissed.

Case Law discussed:
1998 (3) AWC 2216 All. 1970 LAB 1 C 1982
(Vol. 3 CN 235);

(Delivered by Hon'ble Arvind Kumar
Tripathi (II), J.)

1. Heard Shri Ved Prakash, learned
counsel for the petitioner representing the
Union of India.

2. Even after revision of list, none
appeared from the side of opposite party
no.3.

3. This writ petition has been filed
by the Union of India challenging the
order
dated
20.11.1999
by
which
application for condoning the delay has
been rejected.

4. It was submitted by learned counsel
for the petitioner Union of India Shri Ved
Prakash submitted that though Section 17 of
the Payment of Wages Act provides only 30
days for filing of appeal but it nowhere
excludes the jurisdiction of the Court to
condone the delay under Section 5 of the
Limitation Act. It was further submitted that
it was a central act. Karnataka and Madhya
Pradesh have added a provision under
Section 17 and made provisions of Section 5
of the Limitation Act applicable to appeals
under this section.. It was further submitted
that a full bench of this court 1990 (8) LCD,
253 Ram Swaroop versus Board of Revenue,
this court has held that Indian Limitation Act
will apply before any court of law and
Section 5 of the Limitation Act is applicable.
It was further submitted that the appellate
court u/s 17 of the Act is also a 'Court' and
hence Section 5 of the Limitation Act is
applicable.

5. Before dealing with the matter, it
is necessary to have a glance for the
provision of Section 17 of the Payment of
Wages Act, 1936 which is produced
below:-

17. Appeal-(1) [An appeal against an
order dismissing either wholly or in part
786 INDIAN LAW REPORTS ALLAHABAD SERIES
an application made under sub-section (2)
of section 15, or against a direction made
under sub-section (3) or sub-section (4) of
that section] may be preferred, within
thirty days of the date on which [the order
or direction] was made, in a Presidencytown before the Court of Small Causes
and elsewhere before the District Court-

(a) by the employer or other person
responsible for the payment of wages under
section 3, if the total sum directed to be paid
by way of wages and compensation exceeds
three hundred rupees 1[or such direction has
the effect of imposing on the employer or the
other person a financial liability exceeding
one thousand rupees], or

[(b) by an employed person or any legal
practitioner or any official of a registered trade
union authorised in writing to act on his behalf
or any Inspector under this Act, or any other
person permitted by the authority to make an
application under sub-section (2) of section
15, if the total amount of wages claimed to
have been withheld from the employed person
exceeds twenty rupees or from the unpaid
group to which the employed person belongs
or belonged exceeds fifty rupees, or]

(C) by any person directed to pay a
penalty under [sub sec-section (4)] of
Section 15.

6. The words "the order or direction"
occurring after the words "within thirty
days of the date on which" was inserted in
the Act on 1.4.1998.

7. It is also appropriate to refer to
the second proviso of Section 15(2) of the
Payment
of
Wages
Act
which
is
reproduced below:-

"Provided
further
that
any
application may be admitted after the said
period of 1[twelve months] when the
applicant satisfies the authority that he
had sufficient cause for not making the
application within such period."

8. The issue that whether Section 5
of Limitation Act is applicable to the
provisions of Section 17 of the Payment
of Wages Act was decided by this court in
Case of Vijai Kumar Bhalla versus
District Judtge, Bharaich and another
reported in 1998 (3) AWC 2216 All, in
that case it was held in paras 9, 10, 11, 12
and 13 as under:

"9. In the Hyderabad Chemicals and
Fertilizers v. Mohammad Basheer Hahan
and another, 1970 LAB 1C 1982 (Vol. 3
CN 235), a Division Bench of Andhra
Pradesh High Court observed that Section
5 of the Limitation Act does not apply to
the appeals preferred under Section 17. It
was further observed that-

"If it is found that special law
provides a different period of limitation
for an appeal then not only Section 3 of
the Limitation Act will apply because of
Section 29(2) but Sections 4, 9 to 18 and
22
would
also
apply
unless
their
application Is expressly excluded by the
special Act. Clause (b) of Section 29(2).
however, makes the other provisions of
the Limitation Act inapplicable. It cannot
be in doubt that the special Act by itself
or under a valid rule can make, anyone of
the provisions Including Section 5 of the
Limitation Act which are excluded by
virtue of Section 29(2)(b), applicable.
However, Section 5 of the Limitation Act
is not made applicable by the Payment of
Wages
Act
or
the
Rules
made
thereunder."

"It cannot, further, be said that since
the primary authority under the Payment
2 All] Union of India Vs. XIII A.D.J. Lko & Others.
787
of Wages Act exercises certain powers under
the Civil Procedure Code, the appeals from
the order of such an authority should be
deemed to be an appeal under Section 96 of
the Civil Code and thus attracts the
provisions of Section 5."

10. The Andhra Pradesh High Court
while
indicating
the
aforesaid
observations followed AIR 1964 SC
1099, where it was observed that :

"The words "period prescribed therefor"
in Section 29(2) mean prescribed for that
particular appeal. Consequently, it cannot be
said that since the period of 30 days
prescribed by Section 17 happens to be the
same as is provided in Article 152 of the
Limitation Act for an appeal under the Civil
Code the other provisions of Limitation Act,
including Section 5 would automatically
apply to an appeal under Section 17. There is
no justification for any such construction of
Section 29(2).

It may be that Section 3 says that
subject to Sections 4 to 25 the question
has to be considered whether a particular
appeal is barred by limitation. It can only
mean wherever these sections are made
applicable to cases arising under the
special law. Section 3 is not an enabling
provision which automatically makes
Sections 4 to 25 applicable to a case
where Section 3 is applied. Whether the
other provisions of the Limitation Act are
excluded under Section 29(2)(a) or are
made applicable to an appeal arising
under a special or local law will have to
be determined keeping in view not the
provisions of Section 3 of the Limitation
Act but the second part of Section 29(2).

It cannot, further, be said that since
the primary authority under the Payment
of Wages Act exercises certain powers
under the Civil Procedure Code, the
appeals from the order of such an
authority should be deemed to be an
appeal under Section 96 of the Civil Code
and thus attracts the provisions of Section
5."

11. In Anwari Basavaraj Patil and
others v. Siddaramaiah and others, AIR 1994
SC 512, where the question of Limitation
Act to a recrimination notes given under
Section 97 of the-Representation of People
Act, 1951 was involved, Hon'ble Supreme
Court observed in para 8 of the report :--

8. In H. N. Yadav, L.N. Misra,
(1974) 3 SCR 31 : AIR 1974 SC 480, this
Court held that the words "expressly
excluded" occurring in Section 29(2) of
the Limitation Act do not mean that there
must necessarily be express reference in
the special or local law to the specific
provisions of the Limitation Act, the
operation of which is sought to be
excluded. It was held that if on an
examination of the relevant provisions of
the Special Act, it is clear that the
provisions of the Limitation Act are
necessarily excluded then the benefits
conferred by the Limitation Act cannot be
called in aid to supplement the provisions
of the Special Act. That too was a case
arising under the Representation of the
People Act and the question was whether
Section 5 of the Limitation Act is
applicable to the filing of the election
petition. The test to determine whether the
provisions of the Limitation Act applied
to proceedings under Representation of
People Act by virtue of Section 29(2) was
stated in the following words :

"The applicability of these provisions
has, therefore, to be judged not from the
788 INDIAN LAW REPORTS ALLAHABAD SERIES
terms of the Limitation Act but by the
provisions of the Act relating to the filing
of election petitions and their trial to
ascertain whether it is a complete code in
itself which does not admit of the
application of any of the provisions of the
Limitation Act mentioned in Section
29(2) of that Act."

12. It was next observed in para 10
of the Act that :

"10. This decision, in our view,
practically concludes the question before
us inasmuch as the Act equates a
recrimination
notice
to
an
election
petition. The language of Section 97
makes the said fact abundantly clear. The
relevant words are : "the returned
candidate or any other party may give
evidence to prove that the election of such
candidate would have been void if he had
been the returned candidate and a petition
had been presented calling in question his
election." The proviso to subsection (1)
applies the provisions of Sections 117 and
118 to such a recrimination notice. It may
be noticed that for non-compliance with
the requirement of Section 117 an election
petition is liable to be dismissed by virtue
of sub-section (1) of Section 86. Subsection (2) of Section 97 further says that
the "notice referred to in sub-section (1)
shall be accompanied by the statement
and particulars required by Section 83 in
the case of an election petition and shall
be signed and verified in like manner".
We may also say that the proviso to subsection (1) of Section 97 which requires
such a notice to be given to the High
Court within fourteen days of the "date
fixed for the respondents to appear before
the High Court to answer the claim or
claims"
(reading
the
definition
of
"commencement of trial" into it) has also
a particular meaning and object behind it.
The idea is that the recrimination notice,
if any, should be filed at the earliest
possible time so that both the election
petition and the recrimination notice are
tried at the same time. The recrimination
notice is thus comparable to an election
petition. If Section 5 does not apply to the
filing of an election petition, it does not
equally apply to the filing of the
recrimination notice."

13. I am definitely of the view that
Payment of Wages Act, 1936 provides a
complete code in itself which does not
admit of the application of any of the
provisions
of
the
Limitation
Act
mentioned in Section 29(2) of that Act.
Section 17 is very clear that the appeal
may be preferred within 30 days of the
day on which the order or direction was
made. It does not provide that the appeal
may be preferred within 30 days of the
date, on which any party derived the
knowledge of the order or direction made
by the Prescribed Authority. Certainly in
those cases where the Indian Limitation
Act is applicable, the limitation shall run
from the date of the knowledge of the
order but where a special Act specifically
contains a provision that an appeal can be
filed within a specific time from the date
of the order or direction, the appeal must
be filed within the aforesaid period and
the provisions of Section 5 of the Indian
Limitation
Act
cannot
be
made
applicable. '

9. The same issue came up again in
another case Hind Majdoor Sabha, U.P
versus State of U.P and others. 1999 (1)
AWC 126 All, and this court has again
held that power of condonation of delay
from the Appellate Authority has been
withheld by the legislature.
2 All] Union of India Vs. XIII A.D.J. Lko & Others.
789

10. The apex court has in the case of
Commissioner of Customs and Central
Excise versus Hongo India Private
Limited and another 2009 (5) SCC 791
while deciding the applicability of Section
5 of the Limitation Act 1963 in the
proceeding under Section 35 (H) (1) of
Central
Excise
Act
held
that
the
applicability
of
the
provisions
of
Limitation Act, therefore, to be judged not
from the terms of Limitation Act, but by
provisions of Central Excise Act relating
to filing of reference application to the
High Court. The apex court has further
held that high court has no power to
condone the delay in filing the reference
application filed by the commissioner
under unamended Section 35(H)(1) of the
Central Excise Act, 1944 beyond the
prescribed period of 180 days.

11. Section 35(H)(1) of Central
Excise Act speaks about the reference
application to the high court and in this
section it has been mentioned that
application for reference is to be made to
the high court within 180 days.

12. In the case of Union of India
versus
M/s
Popular
Construction
Company, AIR 2001 SC 4010, the apex
court while considering the Section 34
Arbitration Act, 1996 held that in para 15
as under:-

"Furthermore, section 34(1) itself
provides that recourse to a court against
an arbitral award may be made only by an
application for setting aside such award
"in accordance with" sub Section 2 and
sub Section 3. Sub Section 2 relates to
grounds for setting aside an award and is
not relevant for our purposes. But an
application filed beyond the period
mentioned in Section 34, sub section (3)
would
not
be
an
application
"in
accordance
with"
that
sub
section.
Consequently by virtue of Section 34 (1),
recourse to the court against an arbitral
award cannot be made beyond the period
prescribed. The importance of the period
fixed under Section 34 is emphasised by
the provisions of Section 36 which
provide that "where the time for making
an application to set aside the arbitral
award
under
Section
34
has
expired.......the award shall be enforced
and the Code of Civil Procedure, 1908 in
the same manner as if it were a decree of
a court". This is a significant departure
from the provisions of the Arbitration
Act, 1940. Under the 1940 Act, after the
time to set aside the award expired, the
court was required to "proceed to
pronounce judgment according to the
award and upon (he judgment so
pronounced a decree shall follow". Now
the consequence of the time expiring
under Section 34 of the 1996 Act is that
the
award
becomes
immediately
enforceable without any further act of the
Court. 5. If there were any residual doubt
on the interpretation of the language used
in Section 34, the scheme of the 1996 Act
would resolve the issue in favour of
curtailment of the Court's powers by the
exclusion of the operation of Section 5 of
the Limitation Act."

13. Going by the above principles,
this court has again in the case of Smt.
Sharda Devi versus State of U.P and
others, 2013 (3) ALJ 186, followed the
decision of this court in Hind Majdoor
Sabha, U.P versus State of U.P and others
(supra).

14. So far as the decision of full
bench of this court in Ram Swaroop
versus Board of Revenue and others, the
790 INDIAN LAW REPORTS ALLAHABAD SERIES
sole question which was to be decided by the
full bench was that whether proceedings held
on application to set aside the sole irregularity
etc. are judicial proceedings amenable to
revisional jurisdiction of the Board of
Revenue. The full bench has held that
commissioner while deciding the objection
under Rule 285-I of U.P. ZA&LR Rules will
be a 'court' and the proceedings taken before
him will deemed judicial proceedings. The
issue, whether provisions of Section 5 of the
Limitation Act is applicable to the provision
of Section 17 of the Payment of Wages Act,
has not been discussed and decided.

15. From the above discussions and
reasons stated by the Supreme Court in the
case of decision of Hongo India (Supra) and
decision of this court in Hind Majdoor
Sabha, U.P versus State of U.P and others
(supra), it has to be held that provisions of
Section 5 of the Limitation Act will not be
applicable to the provisions of Section 17 of
the Payment of Wages Act and appellate
court has no power to condone the delay and
except the appeal beyond limitation provided
in that. The court of appeal has rightly
rejected the application for condonation of
delay and no interference is required in that
order rejected. Hence, the petition is liable to
dismissed and it is hereby by dismissed.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.07.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE AKHTAR HUSAIN KHAN, J.

Criminal Misc. Application No. 193240 of
2014 in Criminal Appeal No. 119 of 1986

Phool Chand & Ors. ...Appellants
Versus

State ...Respondent
Counsel for the Appellants:
Sri P.N. Mishra, Sri Apul Mishra, Sri K.N.
Pandey

Counsel for the Respondents:
A.G.A.

Juvenile Justice(Care & Protection), Act2000, Section-7-A- Application to hold
enquiry-plea
of
juvenile-at
appellate
stage-claim based upon statement of
appellant under Section 313 Cr.P.C.-in
absence of other material-age disclosed
in statement-being tentive observation
from physical appearance-can not be
basis for enquiry-rejected.

Held: Para-7
We have examined the application made by
Heera and we find that except for referring
to the statement under Section 313 Cr.P.C.
no other material has been brought on
record which may have same bearing on
the issue of age of the appellant Heera. So
far as the statement made under Section
313 Cr.P.C. is concerned, the Apex Court in
the case of Abuzar Hossain Alias Gulam
Hossain (Supra) itself in paragraph 14 has
recorded that the statement recorded under
Section 313 Cr.P.C. is only a tentative
observation based on physical appearance
which is hardly determinative of age and
such statement cannot be regarded as
sufficient for even a prima facie impression
being formed qua the accused being a
juvenile on the date of incident.

Case Law discussed:
2012(79) ACC, 991(SC)

(Delivered by Hon'ble Arun Tandon, J.)

1. Application No. 193240 of 2014
has been filed by the appellant no. 4,
Heera in Criminal Appeal No. 119 of
1986 with the prayer that an enquiry may
be got conducted in respect of juvenility
of the convict having regard to the fact
that in his statement under Section 313
Cr.P.C. he had disclosed his age as 20