Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 273 (ALL)

VIJAY PICTURE PALACE v. STATE OF U. P.

2009-01-27

TARUN AGARWALA

body2009
JUDGMENT Hon’ble Tarun Agarwala, J.—Heard Sri Pramod Kumar Sinha, the learned counsel for the petitioner, the learned Standing Counsel for respondent Nos. 1, 2 and 3 and Sri Arvind Kumar, the learned counsel for respondent No. 4. 2. The Union filed an application under Section 15 of the Payment of Wages Act alleging that the employers who are running a Cinema Hall were showing four shows in a day and that as per the award, an allowance of Rs. 2/- per day was required to be given by the employer who were running four shows per day. Since this amount was not paid, an application under Section 15 of the Payment of Wages Act for the period 1.1.1975 to 31.1.1978 was filed. The Union also prayed for payment of compensation amounting to 10 times for wrongful deduction. The prescribed authority, after considering the evidence, and the reply of the employers, passed an order dated 20.3.1979 holding that the workers were entitled to the wrongful deductions. The Prescribed Authority also imposed five times penalty amounting to Rs. 1,51,050/-. The petitioners, being aggrieved, filed an appeal under Section 17 of the Payment of Wages Act before the District Judge. Section 17(1A) states that no appeal would lie unless the memorandum of appeal is accompanied by a certificate by the authority to the effect that the appellant had deposited the amount payable as per the order of the prescribed authority. The petitioners along with the memo of appeal moved an application praying that they were not in a position to pay the entire amount and submitted that they may be permitted to deposit the amount towards delayed payment and furnish security for the penalty amount. The appeal of the petitioner was rejected by the authority as not maintainable since the entire amount was not deposited by the petitioners. 3. Having heard the learned counsel for the petitioner this Court is of the opinion, that the provisions of Section 17(1A) of the Payment of Wages Act is mandatory. The usage of the word “shall” indicates that the amount payable under the orders of the Prescribed Authority is required to be deposited before the authority concerned and a certificate to this effect has to be filed along with the memo of appeal failing which the appeal would be treated as defective and would not be heard until and unless the defect was removed. In the present case, admittedly the delayed payment and penalty was not deposited. Consequently, the appeal was not maintainable and was rightly dismissed by the appellate authority. 4. However, upon perusing the claim filed by the workers and upon a perusal of the impugned order passed by the Prescribed Authority, this Court finds that the imposition of the penalty to the tune of 5 times of the amount was patently erroneous. From a perusal of the claim it is clear that the claim of the workers was a case of delayed payment was not a case of wrongful deduction of wages. From a perusal of the claim it is clear that the claim of the workers was a case of delayed payment was not a case of wrongful deduction of wages. Section 15(3) of the Payment of Wages Act provides as under : “(3) When any application under sub-section (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under Section 3, or give them an opportunity of being heard, and, after such further inquiry, if any, as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding three thousand rupees but not less than one thousand five hundred rupees in the latter, and even if the amount deducted or delayed wages are paid before the disposal of the application, direct the payment of such compensation, as the authority may think fit, not exceeding two thousand rupees : Provided that a claim under this Act shall be disposed of as far as practicable within a period of three months from the date of registration of the claim by the authority : Provided further that the period of three months may be extended if both parties to the dispute agree for any bona fide reason to be recorded by the authority that the said period of three months may be extended to such period as may be necessary to dispose of the application in a just manner : Provided also that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to— (a) a bona fide error or bona fide dispute as to the amount payable to the employed person; or (b) the occurrence of an emergency, or the existence of exceptional circumstances, the person responsible for the payment of the wages was unable, in spite of exercising reasonable diligence; or (c) the failure of the employed person to apply for or accept payment.” 5. A perusal of the aforesaid provision indicates that the authority is empowered to impose penalty upto ten times the amount on wrongful deduction of wages and, in case of delayed payment, the authority is empowered to impose a penalty upto a maximum of Rs. 3,000/-. In the present case, a penalty of 5 times has been imposed. It is necessarily means that the prescribed authority has presumed that some amount was wrongfully deducted by the employers and was not a case of delayed payment whereas, in the present case, the Court finds that it was a case of delayed payment. The workers claimed entitlement of extra allowance on the basis of some award. This entitlement, in my opinion, comes under the category of delayed payment, if any, and does not amount to wrongful deduction. 6. In the light of the aforesaid, this Court is of the opinion that the imposition of penalty of 5 times is patently erroneous and cannot be sustained since it is a case of delayed payment and not a case of wrongful deduction of wages. 7. In view of the aforesaid, the imposition of penalty amounting to Rs. 1,51,050/- cannot be sustained and is quashed and is being substituted by a penalty of Rs. 3,000/-. This amount is being awarded since the matter is a very old one relating to the period 1979 and this Court feels that no purpose would be served in remitting the matter back to the authority to reconsider the matter on the point of imposition of penalty. With regard to the delayed payment, it is clear that pursuant to the award the workers claimed similar entitlement for extra allowance of Rs. 2/- per day and therefore, the order of payment of Rs. 30,210/- towards delayed payment, being a finding fact, requires no interference. 8. In view of the aforesaid, the writ petition is partly allowed. The impugned order of the prescribed authority is accordingly modified to the extent as stated aforesaid. The amount of Rs. 30,210/- + Rs. 3,000/- shall be deposited by the petitioner before the Payment of Wages authority within four weeks from today. The prescribed authority will disburse this amount to the workers or to the legal heirs of the workers after due verification. ————