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Mahadeswara Lorry Service Vs. Muniappa (P.) and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberCivil Revision Petition Nos. 868 and 869 of 1968
Judge
Reported in(1970)ILLJ546Kant; (1969)2MysLJ216
ActsPayment of Wages Act, 1957 - Sections 15, 15(2), 15(3), 15(4), 17, 17(1) and 17(2); ;Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantMahadeswara Lorry Service
RespondentMuniappa (P.) and anr.
Excerpt:
- industrial disputes act, 1947 [c.a. no. 14/1947]. section 25-f: [subhash b. adi, j] retrenchment employment of a workman in respect of non-sanctioned post - claim of the workman/respondents that he has worked for 240 days of continuous service in a year termination award for reinstatement held, having found that the engagement of the respondent in respect f a particular project and against the non-sanctioned post, there is no provision for continuing the workman in a post, which is not sanctioned and continuing the person in respect of a non-sanctioned post amounts to continuation in a post which is not in existence, would be illegal and amount to creating the post without cadre strength. on facts, held, in the present case the workman has proved that he has worked 240 days in a..........hukum chand jain [1967 - ii l.l.j. 70]. that was a case of an appeal by an employers against the final direction made for payment under sub-section (3) of s. 15. in that appeal it was held that the employer could challenge the correctness of an order condoning the delay in making the application. the court pointed out that an order condoning the delay does not become final under sub-section (2) of s. 17 and therefore, it was open to challenge in appeal against the final direction made under sub-section (3). on the contrary, an order dismissing an application for condonation of delay must be held to become final because it amounts to a dismissal of the main application wholly or in part which is made expressly appealable. the reasoning contained in the ruling cited supports the position.....
Judgment:
ORDER

1. The respondent made an application under S. 15(2) of the Payment of Wages Act, to the Second City Magistrate, Bangalore. Part of the claim related to a period more than twelve months anterior to the date of application. Discovering later that the paid part of the claim would be barred by limitation, he made an application for condonation of delay invoking the powers of the Magistrate under proviso 2 appended to S. 15(2) of the Act. The Magistrate dismissed that application.

2. The respondent, first preferred Civil Revision Petition No. 1181 of 1966 to this Court. An objection as to its maintainability raised by the Registrar was upheld by Govinda Bhat, J., who made the following order :

'The order against which the above revision has been preferred in made under Sub-section (2) of S. 15 of the Payment of Wages Act. Against such an order, an appeal is provided under S. 17 of the said Act. The petitioner should exhaust his remedies provided under the Act before he approaches this Court under S. 115 of the Code. The office objections are upheld. The papers may be returned.'

3. The respondent took back the papers and presented the same as an appeal to the District Court, Bangalore. The appeal was entertained, heard on merits and allowed by the District Court by its order dated 30 March, 1968. The employer-petitioner, aggrieved by that order has presented this revision petition.

4. So far as the merits of the case for condonation are concerned, there is, of course, no ground for interference under S. 115, Civil Procedure Code. The only point raised both before the District Court and before me which has a bearing on jurisdiction is that the order of the Magistrate dismissing the application for condonation of delay was not at all appealable.

5. Now, S. 15(2) of the Act, to the extent relevant, reads as follows :

'Where contrary to the provisions of this Act any deduction has been made from wages of an employed person, or any payment of wages has been delayed, such person ... may apply to such authority for a direction under Sub-section (3) :

Provided that every such application shall be presented within twelve months from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be : Provided further that any application may be admitted after the said period of twelve months when the application satisfies the authority that he had sufficient cause for not making the application within such period.'

6. Sub-section (3) deals with the position subsequent to the entertaining of the application, refers to a hearing, etc., and empowers the authority to make a direction for payment if it finds sufficient reasons to do so.

7. Section 17(1) of the Act, conferring a right of appeal, to the extent relevant, reads as follows :

'An appeal against an order dismissing either wholly or in part an application made under Sub-section (2) of S. 15, or against a direction made under Sub-section (3) or (4) of that section may be preferred, within thirty days of the date on which the order or direction was made, in a Presidency town before the Court of Small Causes and elsewhere before the District Court -

* * *

Sub-section (2) of S. 17 reads :

'Save as provided in Sub-section (1), any order dismissing either wholly or in part an application made under Sub-section (2) of S. 15 or a direction made under Sub-section (3) or (4) of that section shall be final.'

8. In view of the language of these two provisions of the statute which are the only relevant provisions bearing on the controversy before me, the only point for consideration is whether an order dismissing an application made under Sub-section (2) of S. 15 either wholly or in part. If it answers that description, there can be no doubt whatever that the same would be appealable under S. 17 of the Act.

9. It appears to me that there can be little doubt that the only correct way of reading the sections is to regard an order dismissing an application for condonation of delay as an order dismissing the application itself. The order dismissing an application which is made applicable under S. 17(1) is expressly described as an order made under Sub-section (2) of S. 15. The reference must be read as extending to the entire sub-section inclusive of the provisos, because an order made under proviso 2 is undoubtedly an order made under S. 15(2). An order dismissing an application for condonation of delay undoubtedly results in the dismissal of the main application itself or that part of it which makes a claim which is barred by limitation.

10. The argument strenuously pressed on behalf of the petitioner before me is that there is something in Sub-section (2) of S. 17 which makes some difference to the above interpretation. According to the argument, only such orders under S. 15(2) which may be regarded as final are made appealable under Sub-section (1) of S. 17 of the Act. I am unable to accept the suggestion. The real effect of Sub-section (2) of S. 17 is that if an order made appealable under Sub-section (1) of S. 17 remains unchallenged without an appeal being presented against it, the said order becomes final within the framework of the statute. Indeed, this finality attaching to an order furnishes a further reason why an order dismissing the application for condonation of delay must be regarded as appealable at the instance of the employee-applicant. As already pointed out, such an order has the effect of dismissing his claim made in the main application and if he does not appeal against it within thirty days, the order will become final and he will be precluded from raising the question once again in the final order that may be made on his application if some part of it survives after the dismissal of the application for the condonation of delay.

11. The rulings of the High Court of Allahabad, Bombay and Calcutta cited on behalf of the petitioner deal with the position as existing before the amendment of S. 17 carried out by Act 68 of 1957 which came into force on 1 April, 1958. The discussion continued in these rulings is of no assistance for interpreting the language of the section as amended and as it stands today.

12. The only case cited before me which deals with the position as after the amendments the one in Northern Railway (by Divisional Superintendent), Allahabad v. Hukum Chand Jain [1967 - II L.L.J. 70]. That was a case of an appeal by an employers against the final direction made for payment under Sub-section (3) of S. 15. In that appeal it was held that the employer could challenge the correctness of an order condoning the delay in making the application. The Court pointed out that an order condoning the delay does not become final under Sub-section (2) of S. 17 and therefore, it was open to challenge in appeal against the final direction made under Sub-section (3). On the contrary, an order dismissing an application for condonation of delay must be held to become final because it amounts to a dismissal of the main application wholly or in part which is made expressly appealable. The reasoning contained in the ruling cited supports the position already stated by me and does not, to any extent, detract from it.

13. I, therefore, hold that an order made by a Magistrate functioning as the original authority under the Payment of Wages Act dismissing or rejecting an application by an employed person for condonation of delay under proviso 2 to Sub-section (2) of S. 15 of the Act is appealable under Sub-section (1) of S. 17 of the Act.

14. Hence, these two revision petitions are dismissed. No costs.


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