The nature of duties discharged by an employee is more relevant than the designation in determining exclusion from the purview of the U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962.

Per ARUN TANDON, J.

Heard learned counsel for the parties. Counsel for the parties agree that the writ petition may be finally disposed at this stage without calling for a counter affidavit specifically in view of the order proposed to be passed today.

2. Petitioner Anil Kumar Yadav made three applications under the provisions of Payment of Wages Act alleging therein that the employers Imperial Cinema have not made payment of wages for the period mentioned in the applications. The applications were numbered as PW A-1 of 1995, PW A-2/1995 and PW A-3/1995. The Prescribed Authority under the Act vide order dated July 15,2003 held that the applications made were liable to be allowed and, therefore, directed payment of withheld 2 wages along with interest thereon and penalty.

3. Against this order of the Prescribed Authority, the employers Imperial Cinema filed an appeal under Section 17 of the Payment of the Wages Act. The Additional District Judge, Moradabad Appellate Authority under the impugned order dated July 12, 2007 has allowed the appeal filed by the employers only after recording that the provisions of Payment of Wages Act are not applicable insofar as the Cinema Halls are concerned and, therefore, the applications made by the petitioner could not have been entertained.

4. Counsel for the petitioner submits that there has been complete non- consideration of the provision of Section 2 (4) read with Section 18 of the U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962. It is, therefore contended that the impugned order is patently illegal and is liable to be set aside.

5. On behalf of respondents it is stated that petitioner in his applications admitted that he was the Manager. Such persons are excluded from the provisions of U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 under Section 3 and, therefore, the applications made by the petitioner under the Payment of Wages Act were misconceived. The Appellate Authority has not committed any error in passing the impugned order.

6. For the purposes of appreciating the contention raised on behalf of the parties, it is worthwhile to reproduce Section 2 (4), Sections 18 and 3(a) of the U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962:

2(4) Commercial establishment means any premises not being the premises of a factory, or a shop, wherein any trade, business. manufacture, or any work in connection with, or incidental or ancillary thereto, is carried on for profit and includes a premises wherein journalistic or printing work, or business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on, or which is used as theatre, cinema, or for any other public amusement or entertainment or where the clerical and other establishment of a factory, to whom the provisions of the Factories Act, 1948, do not apply work;

3. The provisions of the Act not to apply to certain persons, shops and commercial establishments.(1) The provisions of this Act shall have no application to-

(a) employees occupying positions of confidential, managerial or supervisory character in a shop or commercial establishment, wherein more than five employees are employed:

Provided that the number pf employees so exempted in a shop or commercial establishment shall not exceed ten per cent of the total number of employees thereof;"

18. Recovery of wages. -The wages of an employee, if not paid as provided by or under this Act, shall be recoverable in the manner provided in the Payment of Wages Act, 1936 as if the same wages were payable under that Act."

7. From the aforesaid provisions it is apparently clear that the commercial establishments, which include a Cinema Hall are covered by the provision of U.P. Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 and employees of such commercial establishment, if not paid their wages as provided under the Act, ask for recovery of the withheld wages in accordance with the provisions of the Payment of Wages Act, 1936 (Reference Section 2 (4) read