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Union of India Vs. L.M. Pinto and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1692 of 1967
Judge
Reported in(1973)ILLJ6Bom
ActsPayment of Wages Act, 1936 - Sections 7(2); Indian Railways Act, 1890 - Sections 47(2); Railway Establishment Code - Rules 2043, 2044 and 2044(1); Essential Services Maintenance ordinance, 1960 - Sections 4 and 5; Indian Penal Code (IPC), 1860 - Sections 506; Constitution of India - Articles 226 and 227
AppellantUnion of India
RespondentL.M. Pinto and ors.
Excerpt:
.....227 of constitution of india - appellate authority prescribed respondents to be entitled to full wages for period of suspension - impugned order sought to be quashed under article 226 and 227 - it is an attempt to decide matter required to be fixed under rule 2044 (1) (b) - time spent by two respondents whilst under suspension not to be treated as period spent by them on duty - nothing in this order which could be held by authorities under act as order directing deductions to be made from normal wages of two respondents - held, no reason to interfere with orders for payment. - - the prosecution against both the above applicants for the above two offences failed and they were ordered to be acquitted by the magistrate's court on january 17, 1961. they began to attend duty from..........xx xx'. pinto and korgaonkar filed separate applications nos. 1901 and 1902 before the payment of wages authority claiming full wages in respect of the period of their suspension mentioned in the above order, i.e., form july 18, 1960 to january 20, 1961. their case was that unauthorised and illegal deductions were made in respect of the wages due to them for the above periods and these wages claimed by them were payable to them. thus the case was that the full wages were payable for the period of suspension. the defence raised by the written statement filed on behalf of the railway administration is to be found in paragraphs 5 and 6 of the written statement and the relevant part runs as follows : '............ it is further submitted that the appellant is properly suspended and during.....
Judgment:

K.K. Desai, J.

1. This petition under Arts. 226 and 227 of the Constitution is for quashing of the order dated January 27, 1967, passed by the appellate authority prescribed under the Payment of Wages Act, 1936 whereby the Authority held in favour of the respondents 2 and 3, the original applicants, that they were entitled to their full wages for the period of suspension and that the deductions made from their salaries for the period of suspension were illegal deductions. The authority, therefore, ascertained and directed payment of these deductions subsequently by the order dated March 27, 1967.

2. The relevant facts which lead to this petition are as follows :

In July, 1960 a general strike of railway workers took place. The strike was an illegal strike. L. M. Pinto and D. S. Korgaonkar, being respectively respondents 2 and 3 to this petition and the original applicants before the authority under the Payment of Wages Act were alleged to have taken part in this strike on July 16, 1960. They were arrested by the police and subsequently prosecuted under Ss. 4 and 5 of the Essential Services Maintenance ordinance No. 1 of 1960 and S. 506 of the Indian Penal Code. By an order of suspension dated July, 1960 they were suspended from service. On August 24, 1960 in connection with the offence under the above said ordinance L. M. Pinto was discharged. The prosecution against both the above applicants for the above two offences failed and they were ordered to be acquitted by the Magistrate's Court on January 17, 1961. They began to attend duty from January 20, 1961. An order dated January 23, 1961 was passed by the Chief Personnel Officer whereby the order of suspension dated July 16, 1960 was revoked with effect from January 21, 1961 being the date on which they reported to the office for duty. They were further informed that they were liable to disciplinary action as may be ultimately decided upon. The case of the Government is that subsequently by the order dated February 3, 1961 punishment of censure was passed against these two respondents. The question which arose before the Appellate Authority and in this petition relates to the true construction and effect of an order dated February 21, 1961, the relevant part whereof runs as follows :

'The suspension period of the following employees who were placed under suspension in connection with the illegal strike in July, 1960 for the period indicated against each will remain as suspension period only, in terms of classification at Items 4 of this office secret letter No. XX XX XX dt. 17-9-1960 XX XX XX XX'.

Pinto and Korgaonkar filed separate Applications Nos. 1901 and 1902 before the Payment of Wages Authority claiming full wages in respect of the period of their suspension mentioned in the above order, i.e., form July 18, 1960 to January 20, 1961. Their case was that unauthorised and illegal deductions were made in respect of the wages due to them for the above periods and these wages claimed by them were payable to them. Thus the case was that the full wages were payable for the period of suspension. The defence raised by the written statement filed on behalf of the railway administration is to be found in paragraphs 5 and 6 of the written statement and the relevant part runs as follows :

'............ It is further submitted that the appellant is properly suspended and during the suspension whatever that is due under the rules, he has been paid. ..........

The opposite party submits that inspite of the discharge of the applicant he was proceeded against departmentally and was censured for having participated in the illegal strike.'

3. The Payment of Wages Authority formulated the points arising before him in paragraph 5 of the order dated February 26, 1964 in the following words : 'Whether the deductions are unauthorised and illegal under the Payment of Wages Act'.

In the order the authority referred to Rule 2044 of the Railway Establishment Code and the scheme relating to suspension of and suspended railway servants as contained in Appendix 31 contained in the Railway Manual and held that the above referred order dated February 22, 1962 was an order made by a competent authority directing the deductions to be made from the salaries due to the applicants for the periods of their suspension from service. The Authority, therefore, by that order dismissed the applications of the respondents 2 and 3. Two separate appeals filed by respondents being Appeal No. 24 of 1964 and Appeal No. 35 of 1964 were disposed of by the appellate authority by the judgment and impugned order dated January 27, 1967, whereby it was held that the order dated 3rd February, 1961 imposing penalty of censure on each of the applicants and the order dated February 21, 1961 directing that the period of suspension mentioned in the order in respect of each of the applicants would remain as suspension period only were null and void order for the reasons recorded by the appellate authority in paragraphs 12 to 15 of its order. It was, therefore, held that deductions sought to be made on the basis of these orders were illegal deductions. It was, therefore, found that the applicants were entitled to full wages for the period of suspension and directions for payments were made as already referred above.

4. Mr. Lokur for the Union of India contends that the authorities under the Payment of Wages Act have limited jurisdiction so that they can decide and/or calculate the amount of wages due under contracts between the parties and ascertain if illegal deductions have been made from the wages due. He, therefore, submits that the appellate authority has acted beyond the scope of its jurisdiction when it purported to decide validity and/or legality of the orders dated February 3, 1961 and February 21, 1961. The submission was that if the respondents desire to contest the legality and/or validity of these orders, the contest should have been before a tribunal with jurisdiction and not before the authorities under the above Act. The second contention was that the true effect of the order dated February 21, 1961 was that thereby the competent authority and made an appropriate order directing that in connection with the period of suspension of these two respondents they were to be paid the amounts specified as payable to Government servants whilst under suspension under Rule 2043. That being the true effect of the above order dated February 21, 1961 both the authorities below should have held that the applicants had been paid the wages due to them and the deductions which had been made from their normal wages in respect of the period of suspension were legal and proper. On that footing the applications should have been rejected.

5. Mr. Ramamurthy for these respondents (two original applicants) has submitted that the above two contentions are not justified and are incorrect. As we are about to reject the second contention made on behalf of the Union of India, we are prepared to assume that the first contention made is correct without deciding the merits of that contention.

6. In connection with the second contention, it is first necessary to refer to the sub-clause (h) of sub-s. (2) of S. 7 of the Payment of Wages Act, 1936, which provides as follows :

'7. (1) Notwithstanding the provisions of sub-s. (2) of S. 47 of the Indian Railways Act, 1890, the wages of an employed person shall be paid to him without deductions of any kind except those authorised by or under this Act.

* * * (2) Deduction from the wages of an employed person shall be made only in accordance with the provisions of this Act and may be of the following kinds only, namely :

* * * (h) deductions required to be made by order of a Court or other authority competent to make such order; * * *

The second contention is made because of the above provisions in sub-clause (h) of sub-s. (2) of S,. 7. It is clear having regard to the language of this sub-clause that in cases in which an order is made by competent authority authorising deductions to be made from the normal wages and/or salary of an employee, such deductions must be held to be legal and authorised. In such cases the authorities under the Act would not be justified in awarding full wages on the footing that the deductions ordered by the competent authority were not justified. In connection with the questions arising under the provisions of the above sub-clause (h) on behalf of the respondents Mr. Ramamurthy has submitted that it has been held that the authorities under the Act have jurisdiction to decide in an appropriate case that the orders relied upon were not made by a competent authority. In this case the question of the competence of the authority has not been argued on behalf of the respondents. The argument made is that the order dated February 21, 1961 on which reliance is placed is not an order providing for and/or requiring deductions to be made from the normal wages of the two concerned respondents. In that connection reliance has been placed on the following contents of Rule 2044 on behalf of the respondents 2 and 3 and reliance has been placed on the contents of Rule 2043 on behalf of the Union of India. The relevant part of Rules 2044 and 2043 run as follows :

'2044 (F.R. 54). Pay after reinstatement. - (1) When a railway servant who has been dismissed, removed, compulsorily retired or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order -

(a) regarding the pay and allowances to be paid to the railway servant for the period of his absence from duty; and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Where the authority mentioned in sub-rule (1) is of the opinion that the railway servant has been exonerated or, in the case of suspension that it was wholly unjustified, the railway servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended as the case may be.

(3) In other cases, the railway servant shall be given such proportion of such pay and allowances as such competent authority may prescribe. Provided that the payment of allowance under clause (2) or clause (3) shall be subject to all other conditions under which such allowances are admissible;

Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 2043 (F.R. 53).

4. In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.

5. In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose;

2043 (F.R. 53). Pay during suspension. - (1) A railway servant under suspension shall be entitled to the following payments, namely -

(i) * * * (ii) in the case of a railway servant other than that mentioned in clause (i),

(a) a subsistence allowance at an amount equal to the leave salary which the railway servant would have drawn if he had been on leave on half average pay or on half pay and in addition, dearness allowance normally admissible to him during such leave.

* * * * * * (b) Other compensatory allowance, if any, of which the railway servant was in receipt on the date of suspension :

The submission on behalf of the concerned respondents has been that there is nothing in the order dated February 21, 1961 by way of a specific order regarding pay and allowances to be paid to these two respondents. The only matter that is stated in this order is that the period of their suspension will remain as suspension period only which possibly has the effect of providing that in respect of the time during which these two respondents had remained under suspensions, they will not be treated as having attended and discharged duty in the office. The submission on behalf of the Union of India is that the above provision under the order has the effect of a specific order having been made under sub-clause (c) of clause 1 of Rule 2044 regarding the pay and allowance to be paid to these respondents in respect of the period during which they were suspended. The submission was that this order directed that for the period of their suspension the respondents were to be paid only such wages as to be fixed under Rule 2043 for payment to those placed under suspension. In other words the submission was this order was specific and decided that these respondents were to be paid for the period during which they were under suspension subsistence allowance and other compensatory allowances as fixed under cls. (a) and (b) of Rule 2043 as quoted above. In that connection reliance was placed on the fact that after the order of reinstatement was made, the order dated February 3, 1961 censuring each of these respondents had also been made and that the punishment of censure was on the footing that the two respondents had been suspended for legal and justifiable grounds as they had taken part in the illegal strike. This was the reason why the above referred order dated February 21, 1962 directed that they should not be paid anything more by way of wages except subsistence allowance and compensatory allowances as fixed under Rule 2043. We have given anxious thought to this submission made on behalf of the Union of India. In that connection we have been rightly asked on behalf of the respondents to give importance to the specific and unambiguous language of Rule 2044. There is no doubt that under the rule upon reinstating any railway servant, it is incumbent upon the competent authority to make specific orders relating to the two matters mentioned in cls. (a) and (b) of clause (1) of the Rule. These matters are the pay and allowance to be paid for the period of absence from duty and whether the said period shall not be treated as period spent on duty. In that very connection under the provisions in sub-cls. (2) and (3) and the following clauses of that Rule the competent authority is required to formulate an opinion on the question having been wholly unjustified and if so the authority is compulsorily required to direct that the servant should be given full pay and allowances as if he had not been suspended. In all other cases the authority has to decide under clause (3) the proportions of pay and allowances which should be paid over to and received by the concerned servant. The question is whether the contents of the order dated February 21, 1961 contains language disclosing that it is on order determining the two matters mentioned in cls. (a) and (b) of sub-rule (1) of Rule 2044. The only words in that order on which reliance can be placed are : 'The suspension period of the following employees who were placed under suspension in connection with the illegal strike in July, 1960 for the period indicated against each will remain as suspension period only.'

In spite of our best endeavours we are unable to accept the submission made on behalf language in the Union of India that the above language in the order on which reliance is placed attempts to make any specific order or otherwise gives any direction regarding pay and allowances to be paid to the respondents 2 and 9 in respect of the period of absence from duty (the period during which they were suspended). The best that can be said about this order is that it is an attempt to decide the matter required to be fixed under sub-clause (b) of sub-rule (1) of Rule 2044. In other words it decides that the period the two respondents spent whilst under suspension shall not be treated as a period spent by them on duty. It is quite clear that there is nothing in this order which could be held by the authorities under the Act as an order directing deductions to be made from the normal wages of the two respondents. Now, in making this finding we are doing the work which is ordinarily directed to be done by the Authority under the Payment of Wages Act. If the first contention made on behalf of the Union of India was accepted by us ordinarily we would have remanded the matter for final disposal by the appellate authority. We are not resorting to that usual method of remand in this case because the second contention made on behalf of the Union of India was contention directly dealing with the matters which would be ordinarily disposed of by the Authority under the Payment of Wags Act. We are called upon to decide this matter directly and we do not find it necessary to make an order of remand in the matter of this petition.

7. In the result we see no reason to interfere with the orders for payment made by the appellate authority by its order dated March 17, 1967.

8. Rule discharged with costs.


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