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Managing Member Nirmal Industries, Khairatabad, Hyderabad Vs. Naseemudding and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1035 of 1963
Judge
Reported inAIR1967AP370
ActsPayment of Wages Act, 1936 - Sections 15 and 17; Hyderabad Shops and Establishments Act, 1951 - Sections 36 and 37-A; Constitution of India - Article 226; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantManaging Member Nirmal Industries, Khairatabad, Hyderabad
RespondentNaseemudding and ors.
Appellant Advocate3rd Govt. Pleader and ;E. Kalyan Ram, Adv.
Respondent AdvocateM.A. Baig, Adv.
Excerpt:
labour and industrial - termination - sections 15 and 17 of payment of wages act, 1936, sections 36 and 37-a of hyderabad shops and establishments act, 1951, article 226 of constitution of india and section 115 of code of civil procedure, 1908 - termination of service - authority under act of 1936 had no jurisdiction to go into question whether termination of service justifiable or not. - - item (v) of the claim already extracted above clearly refers to the salary for the period from 5th september, 1956 till the date of settlement of the claims, which clearly included the claim for gratuity. but since i am clearly of the view that the writ petitioner has to succeed on another point, it is not necessary to remand the case. - 2. in this act, unless there is anything repugnant in the.....order(1) this is a petition under article 226 of the constitution of india by the managing member, m/s nirmal industries, khairtabad, hyderabad praying to call for records relating to c.m.a. 30 of 1962 on the file of the 1st additional chief judge, city civil court, hyderabad reversing the order of the 3rd respondent, authority under the payment of wages act. andhra pradesh., hyderabad and made in application no. 80 of 1961 dated 4-7-1961 and quash the same by issuing a writ of certiorari.(2) the 1st respondent, naseemuddin was appointed in the nirmal industries. he worked in the post till february, 1956. the report of the auditors for the period the applicant worked as an accountant revealed that certain amounts were not properly accounted for. so pending the enquiry, the 1st respondent.....
Judgment:
ORDER

(1) This is a petition under Article 226 of the Constitution of India by the Managing Member, M/s Nirmal Industries, Khairtabad, Hyderabad praying to call for records relating to C.M.A. 30 of 1962 on the file of the 1st Additional Chief Judge, City Civil Court, Hyderabad reversing the order of the 3rd respondent, Authority under the Payment of Wages Act. Andhra Pradesh., Hyderabad and made in application No. 80 of 1961 dated 4-7-1961 and quash the same by issuing a writ of certiorari.

(2) The 1st respondent, Naseemuddin was appointed in the Nirmal Industries. He worked in the post till February, 1956. The report of the auditors for the period the applicant worked as an Accountant revealed that certain amounts were not properly accounted for. So pending the enquiry, the 1st respondent was suspended from service on 5-9-1956 on which date a charge sheet was served upon him charging him with having misappropriated two amounts of Rs. 400 and Rs. 300. He was also charged with having misappropriated some other amounts. The total amount for which he was asked to account for was Rs. 2,598 5-9. The 1st respondent was called upon to submit his explanation as to why he should not be dismissed from service and the amounts recovered from him.

(3) The charge sheet was formed by the Secretary to Government, Commerce and Industries Department (Industrial Trust Fund) Hyderabad, on 12th September, 1956, the 1st respondent submitted his explanation denying the charges against him. He pleaded that he was not responsible. His explanation was not accepted by the Secretary to Government, Commerce and Industries Department who by his communication dated 16th November 1956 stated that the 1st respondent's explanation was not at all satisfactory and the charges of misappropriation had been proved against him. Therefore, he was informed that his services were terminated with effect from 5th September 1956, the date on which he was suspended. By that communication, the 1st respondent was further informed that a sum of Rs. 706-3-6 was due from him and he was asked to pay that amount from the date of the receipt of that letter. He was also asked to account for the advances to the employees made by him.

(4) After more than five years the 1st respondent filed application No 80 of 1961 before the Authority appointed under the Payment of Wages Act, 1936, Andhra Pradesh, Hyderabad claiming the following amounts:

(I) Leave allowance at 1 day for each 20 days at Rs. 150 p.m. .... Rs. 430; (ii) Sick leave allowance 12 days each, year. Rs. 300, (iii) Notice Pay (1 month's salary) . . . . 150; (iv) Bonus or gratuity for the service of 4 years 9 months (pay 5 years) 5x150: Rs. 750; (v) In addition to the above salary for the period from 5th Sept. 1956 till the date of settlement of claims are to be paid (Authority Factory & Establishment Act 36) Maximum 3 months, Rs. 450.

(5) He referred in his claim petition to the charges and the enquiry and the order terminating his services by the Secretary to the Government, Commerce & Industries Department. He also stated that he submitted a reply requesting to investigate the case, but his services were terminated without any enquiry from 5th September 1956. He further stated in paragraph 2 of his claim petition that his appeal was considered by the Government Board, which resolved that his case be reconsidered by the Government. Since then his case was pending before the Director, Industries, Andhra Pradhesh. Hyderabad and is not yet decided though three years elapsed, and though the 1st respondent called at the office of the Labour Commissioner about 50 times. In the last paragraph of the claim petition it is prayed:

'As such I am approaching the Authority under Payment of Wages Act, Government of Andhra Pradesh, Hyderabad, for necessary legal action. I am enclosing herewith a statement showing my claims in case if they do not want my services, otherwise I may be reinstated for the sake of justice. I am also enclosing the abstract of the charge sheet and my reply.'

(6) To the claim, a counter was field on behalf of the Nirmal Industries. In that counter they stated that it was found that several irregularities were committed by the 1st respondent in maintaining the accounts and certain misappropriation charges were framed against the 1st respondent and he was asked to explain the charges. As this explanation was not satisfactory he was dismissed from service for proved charges of misappropriation of the funds of a factory. In paragraph 2 the plea was taken that the 1st respondent cannot canvass the correctness or otherwise of the dismissal order dated 16-11-56 in these proceedings before the Authority under the Payment of Wages Act. Then the various items claimed by the claimant were referred to and objections to the same were pointed out. With regard to the bonus or gratuity in item (iv) it is stated that the said claim is not sustainable. It was pointed out that section 2(6) of the Payment of Wages Act excluded any bonous or gratuity. It was further alleged that under section 36 of the Hyderabad Shops and Establishments Act an employee is entitled to gratuity only if the termination is not for misconduct, he was not entitled to claim any gratuity. It was further pleaded that the Hyderabad Shops and Establishments Act does not apply to any establishment maintained by the State Government and Nirmal Industries is one such establishment under the Government.

(7) The Authority under the Payment of Wages Act, Andhra Pradesh held that the 1st respondent was entitled to only Rs. 150/- under the first head of claim. It is pointed out that Nirmal Industries is a factory within the meaning of Factories Act, and that the 1st respondent was employed in the factory. The Authority further held that it had no power to go into the question whether the termination of service is justifiable or not. Therefore, it refrained from considering that question. The Authority disallowed the other items.

(8) The 1st respondent filed an appeal in the court of the Chief Judge, City Civil court, Hyderabad at secunderabad. It was subsequently transferred to the court of the 1st Additional Chief Judge, City Civil court, Hyderabad and numbered as C.M.A. 30 of 1962. Before him, the claims regarding items (ii) and (iii) were not pressed But it was alleged on behalf of the appellant that the Authority had erred in the application of the Hyderabad Shops and Establishments Act in coming to the conclusion that he was not authorised to go into the question of dismissal of the appellant. It was contended that without enquiry as contemplated under section 36, his services were dispensed with and, therefore, it cannot be said that he was discharged on account of misconduct, and therefore he was entitled to gratuity as envisaged under section 36 of the Shops and Establishments Act. It was alleged on behalf of the Nirmal Industries before the learned Judge that the legality of the order terminating the appellant's services for misconduct could not be questioned: nor its propriety canvassed. It was pointed out that as the termination of the service was for misconduct, the employee was not entitled to any gratuity. It was also pointed out that gratuity was excluded from the definition of wages in the Payment of Wages Act before amendment and, therefore, the appellant was not entitled to any gratuity. On the question whether the Authority under the Payment of Wages Act had the power to go into the question of legality or propriety of the order terminating the employee's services for misconduct, the learned 1st Additional Chief Judge did not express any view, but he went into the question whether the order terminating his services for misconduct was passed after holding the enquiry as required by section 36(2) of the Hyderabad Shops and Establishments Act, 1951. It is pointed out that no witnesses were examined by the enquiring officer and that he simply perused the explanation of the 1st respondent and passed the order terminating his services on the ground that the appellant had misappropriated several amounts mentioned in the charge sheet. Therefore, in the view of the learned 1st Additional Chief Judge, termination of the appellant's services could not be taken as one for misconduct within the meaning of section 36 of the Hyderabad Shops and Establishments Act. If the termination was not one for misconduct, it followed that the employee was entitled to gratuity amounting to 15 days average wages for each year of continuous service, subject to a maximum of average wages for 15 months. This would come to Rs. 750. He also held that the employee would be entitled under clause 1 (a) of section 36 (xx) of the said Act to receive wages until the date on which the gratuity payable is actually paid.

The following is the operative part of the order in the appeal:

'I, therefore, allow the appeal and set aside the order of Authority under the Payment of Wages Act. I allow the claim of the applicant under sec. 36(1) and 1(A) of the Shops & Establishments Act.'

(9) This petition is filed on behalf of Nirmal Industries questioning the legality of the order of the 1st Additional Chief Judge, City Civil Court, Hyderabad.

(10) It is sought to be urged by the learned 3rd Government Pleader in support of this Writ Petition that there is no claim at all by the 1st respondent under clause 1 (A) of section 36 of the Hyderabad Shops & Establishments Act and that the learned 1st Additional Chief Judge, City Civil Court, Hyderabad decreed to the 1st respondent something which was not claimed at all. This objection to the order of the learned 1st Additional Chief Judge, does not in my opinion, seem to be correct. Item (v) of the claim already extracted above clearly refers to the salary for the period from 5th September, 1956 till the date of settlement of the claims, which clearly included the claim for gratuity. Therefore, this objection of the learned Government pleader cannot be sustained.

(11) It is argued on behalf of the petitioner that the Nirmal Industries, Khairatabad, Hyderabad is an establishment under the Government of Andhra Pradesh. Therefore, it is contended that the Hyderabad Shops & Establishments Act does not apply to this Industry and any claim made by the 1st respondent under section 36 of the said Act is not sustainable. The question, therefore, is whether the provisions of the Hyderabad Shops & Establishments Act, 1951 apply to the Nirmal Industries. It is common ground that Nirmal Industries is a factory within the meaning of the Factories Act. Section 2(6) clause (5) of the Hyderabad Shops & Establishments Act defines `Commercial establishment' as an establishment which is not a shop but which carries on the business of advertising, commission forwarding or commercial agency, or which is a clerical department of a factory or industrial undertaking or which is an insurance company, joint stock company, bank, brokers office or exchange and includes such other establishment as the State Government may by notification declare to be a commercial establishment for the purpose of this Act. The 1st respondent in this case, was admittedly employed in the clerical department of Nirmal Industries and the clerical department of Nirmal Industries and the clerical department comes within the definition of `commercial establishment'. Under clause (8) of section 2(6) of the said Act, an establishment includes a commercial establishment. The clerical department of the Nirmal industries comes within the definition of `establishment' in the Act. So far, there does not seem to be any difficulty, but the point taken by the learned Government pleader is that since Nirmal Industries is an establishment under the State Government, the operation of the Act is excluded by section 4(1) (c) which reads as follows:

'4(1) Nothing contained in this Act shall apply to -- (c) Establishment under the Union and the State Governments, local authorities, and contonment authorities'.

This question was not considered by the Authority under the Payment of Wages Act, thought it is pleaded in the counter to the claim petition that the Hyderabad Shops & Establishments Act does not apply to any establishment maintained by the State Government. The learned 1st Additional Chief Judge, City Civil Court. Hyderabad also does not refer to this objection in his order. Therefore, there is no finding by the Authority or the learned 1st Additional Chief Judge whether the Nirmal Industries is an establishment under the State Government within the meaning of section 4(1)(c) of the Act. If necessary, the matter would have to be remanded to the court of the 1st Additional Chief Judge for enquiry and finding on that point. But since I am clearly of the view that the writ petitioner has to succeed on another point, it is not necessary to remand the case.

(12) It is argued by the learned Government Pleader that the Authority under the Payment of Wages Act has no jurisdiction to consider the legality or propriety of the order terminating the services of the 1st respondent for misconduct. Section 15 clauses (1) of the Payment of Wages Act, 1936 provides that the State Government may by notification in official Gazette, appoint my commissioner for workmen's compensation or other officer with experience as a Judge of a Civil Court or as stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages, of persons employed or paid in that area. Clause (2) of the section provides that where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself 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 acting with the permission of the authority appointed under sub-section (1), may apply to such authority for a direction under sub-section (3). Sub-section (3) provides that 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 given 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 ten rupees in the latter. It is not necessary to refer to the provisos Section 17 of the Payment of Wages Act provides for an appeal against any order of the Authority to the District Court subject to certain conditions, the appeal to be filed within 30 days from the date of the order of the Authority. Section 17 further provides that the order of the District Court shall be final. Under section 3 every employer shall be responsible for the payment to persons employed by him of all wages required to be paid under the Payment of Wages Act. Section 7 specifies the deductions which may be made from the wages. The definition of `wages' in section 2(6) of the Payment of Wages Act before it was amended by Act 68 of 57 which came into force on 1-4-1958 is as follows:-

'2. In this Act, unless there is anything repugnant in the subject or context, - (vi) 'Wages' means all remuneration capable of being expressed in terms of money, which would, if the terms of the contract of employment express or implied, were fulfilled, be payable whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed, or otherwise, to a person employed in respect of his employment or of word done in such employment, and includes any bonus or other additional remuneration of the nature person by reason of the termination of his employment, but does not include - (a) the value of any house accommodation, supply of light, water medical attendance or other amenity or of any service excluded by general or special order of the ..... State Government, (b) any contribution paid by the employer to any pension fund or provident fund; (c) any travelling allowance or the value of any travelling concession; (d) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; of (e) any gratuity payable on discharge.'

It is seen from the said definition that wages do not include any gratuity payable on discharge. So, if an application is made claiming wages under the Payment of Wages Act, the Authority appointed under the Payment of Wages Act could not order payment of gratuities payable on discharge. In the present case, since the services of the 1st respondent were terminated on 16th November, 1956, the 1st respondent could not, it is argued, rely upon the amendment introduced into the Payment of Wages Act by Act 68 of 1957. But it is claimed that the 1st respondent is entitled to gratuity under section 36 of the Hyderabad Shops & Establishments Act, 1951. In this Act, section 2(6) clause (20) 'wages' means wages as defined in the Payment of Wages Act, 1936. At the relevant time, therefore the expression 'wages' under the Hyderabad Shops & Establishments Act, does not include any gratuity. What all the 1st respondent could claim before the Authority appointed under the Payment of Wages Act was only wages as defined before the said expression was amended and came into force from 1-4-1958. But the learned counsel for the 1st respondent relied upon section 36 of the Hyderabad Shops & Establishments Act and contended that since the order terminating the services for misappropriation which would not amount to termination of services for misconduct was passed without any enquiry as required by clause (2) of the said section, it has to be held, as it is now held by the learned 1st Additional Chief Judge that the termination was not for misconduct. It is pointed out that under section 36 it is open to the employer to terminate the services of an employee otherwise than for services of an employee otherwise than for misconduct. In such a case, it is contended that the employee is entitled to gratuity amounting to 15 days average wages for each year of continuous service, subject to maximum of average wages for 15 months. It is further argued that in the present case it has to be taken that the termination of services for misconduct is illegal. The 1st respondent had to be paid gratuity as provided by section 36 clause (1) of the Hyderabad Shops & Establishments Act and since the claim for that gratuity is not paid, the 1st respondent is entitled to his wages until the date on which such gratuity is paid under clause 1-A of S. 36. But as pointed out above, it is contended by the learned Government Pleader that the Authority under the Payment of Wages Act has no power to consider the question of legality or propriety of the order terminating the services for misconduct. Reliance is placed upon the decision in A. R. Sarin v. B. C. Patil. : AIR1951Bom423 where the ambit of the power and jurisdiction of the authority appointed under the Payment of Wages Act under section 15 is discussed and pointed out. What actually was decided by the learned Judge in that case is correctly summarised in head note (c) of the report:

'(c) Payment of Wages Act (1936) S. 15. Jurisdiction of Authority - Civil P. C. (1908) S. 9

The scheme of the Act is to set up a special tribunal, confer a special jurisdiction upon that tribunal and to oust the jurisdiction of ordinary Civil Courts. Therefore, the jurisdiction conferred upon the special Tribunal must be strictly construed. The jurisdiction of special tribunal cannot be inferred by implication. Jurisdiction must be expressly given, and we must find from the language of the stature itself that there is express ouster of the jurisdiction of the Civil Courts and an express conferment of such jurisdiction upon the special tribunal set up under the Act. It is certainly competent to the Authority to construe the terms of the contract of employment in order to be termine what wages are to be paid, and even if the contract of employment has been terminated, it is open to him to construe its terms in order to determine whether any sums are payable by reason of the termination. It would also be open to him to determine whether a person has been employed or not, because the question of contract of employment and the terms of the contract can only arise provided the person seeking relief was employed. The mere denial of the factum of employment cannot oust the jurisdiction of the Authority. If the employer denies or disputes the fact that the servant was employed by him, it will be for the Authority to decide that question, and it is only after the question of employment has been decided that the question would arise as to what are the terms of the contract and what is the liability of the master under the terms with regard to wages. The jurisdiction of the Authority really is to determine the terms of the contract in so faraas they relate to the payment of wages and in so far as he has to decide the liability of the employer to pay wages under the terms of the contract. But that jurisdiction does not extend to determining the question as to whether the contract has terminated as alleged by the employer or the contract is still subsisting as alleged by the servant.'

The learned judges expressed the clear view that the jurisdiction of the Authority under the Payment of Wages Act does not extend to determining the question as to whether the contract has terminated as alleged by the employer or the contract is still subsisting as alleged by the servant.

(13) The question came to be considered again by the Full Bench of the same High Court in Viswanath Tukaram v. General Manager Central Rly., : (1957)IILLJ250Bom (FB), where again it was held that the Authority had no jurisdiction to decide whether the services of an employee have been rightly or wrongly terminated or whether the dismissal or removal was unlawful. In Venkatavaradan v. Sembiam Saw Mills, Sembiam, Madras, : (1955)IILLJ11Mad it is pointed out that a claim by an employee which is in effect a claim for damages for wrongful termination of service is not one which a Commissioner under the Payment of Wages Act is competent to enquiry into. The remedy in such case is by a suit in civil court and not an application before the Commissioner under the Payment of Wages Act. The learned Judge further held that the question whether there has been proper termination of the services is a matter outside the scope of the authority appointed under the Act. In Kannappan v. Hoe and Co., Madras. 1961-2 Lab LJ 510 (Mad) a Division Bench of the Madras High Court held that it is not with in the province of the authority to decide the question whether the dismissal or retrenchment of a workman was lawful. The Full Bench decision of the Bombay High Court in : (1957)IILLJ250Bom is referred to and followed. The question arose before the learned Judges under section 15 of the Payment of Wages Act. A single Bench of the Mysore High Court also in Manager Codialabail Press v. K. Monappa, AIR 1963 Mys 128 took the view that it is not permissible for an authority functioning under section 15 to adjudicate upon the validity of an order of retirement or dismissal of an employee.

(!4) In Shri Ambica Mills Co. Ltd, v. Shri S. B. Bhatt, : (1961)ILLJ1SC the Supreme Court also had occasion to consider the scope of section 15 of the Payment of Wages Act, though the specific question which is now under consideration before me did not arise before it in that case. It was pointed out that the only claims which can be entertained by the authority under section 15 are claims arising out of deductions or delay made in payment of wages that the jurisdiction thus conferred on the authority to deal with these categories of claims is exclusive and that the authority would have jurisdiction to consider questions incidental to the said matters. In determining the scope of these incidental questions care must be taken to see that, under the guise of deciding incidental matters, the limited jurisdiction is not unreasonably or unduly extended. Care must also be taken to see that the scope of these incidental questions is not unduly limited so as to affect or impair the limited jurisdiction conferred on the authority. It was further held that the authority has jurisdiction under section 15 to determine what the terms of the contract are, and if the terms of the contract are admitted and the only dispute is whether or not a particular employee falls within one category or another that would be incidental to the decision of the main question as to what the terms of the contract are. Where the terms of a contract are admitted and the only point in dispute is which of the two subsisting contracts applies to the particular employees in question, the authority has jurisdiction to decide the same. No doubt there are observations of the Single Bench of the Allahabad High Court in Union of India v. Babu Ram, : (1961)IILLJ708All to the effect that an employee can claim his wages under section 15 (2) on the ground that he continues to be in the service of the employer in spite of the alleged order of his removal, without obtaining a decree from the Civil Court declaring the order o removal illegal. But this observation is really obiter because in that case the employee had already obtained a decree declaring the order as illegal. Therefore, in law, it must be taken that he continued in service and his claim on that basis for wages under section 15 (2) of the Payment of Wages Act could be entertained by the Authority under the Act. But, in other decisions referred to be me, a contrary view has been taken by the High Courts of Bombay, Madras and Mysore. I am in respectful agreement with the views expressed by the Bombay. Madras and Mysore High Courts.

(15) Reference may also be made to a decision in Namdeo Shrawan Lokhande v. Chocks Canning and Mining Ltd, Nagpur, : (1962)IILLJ323Bom . In that case also there was prior declaration by the Industrial Court that the order of dismissal was illegal. Hence a claim could be made before the Authority under the Payment of Wages Act for the wages which accrued even subsequent to the order of dismissal.

(16) It follows that in the present case neither the Authority under the Payment of Wages Act nor the learned First Additional Chief Judge. City Civil Court, Hyderabad on appeal, had jurisdiction to go into the question of legality or propriety of the order terminating the services of the 1st respondent for misconduct. It further follows that the decision of the learned 1st Additional Chief Judge. City Civil Court Hyderabad in appeal holding that because no witnesses were examined and no enquiry was made as required by section 36 clause (2) of the Hyderabad Shops & Establishments Act. 1951, termination cannot be taken as one for misconduct is without jurisdiction. But the learned counsel for the 1st respondent referred me to section 37 (a) of the Hyderabad Shops & Establishments Act and contended that since the claim for gratuity and the subsequent wages was made under section 36 (1) and 36 (1) (A) of the Hyderabad Shops and Establishments Act, the Authority under the Payment of Wages Act would have jurisdiction not only to order payment of gratuity under section 36 (1) but also subsequent wages till the gratuity is paid under section 36 (a) Section 37-A of the Hyderabad Shops & Establishments Act provides that the provisions of S. 15 of the Payment of Wages Act, 1936 shall mutatis mutandis apply to claims arising out of deductions from wages payable under this Act, delay in payment of such wages and penalty for malicious and vexatious claims in respect of such wages. But it may be noticed that even this action 37-A only refers to claims arising out of deductions from wages and delay in payment of such wages. This section 37-A obviously does not confer any jurisdiction on the Authority under the Payment of Wages Act to go into the question of legality or otherwise of an order terminating the services of an employee.

(17) The respondent's learned counsel also relied on : (1961)IILLJ708All and : (1961)ILLJ1SC which are referred to above. Reliance is placed on a decision in Balkrishna Kashinath v. A. S. Rangnekar, : AIR1957Bom288 . That is a case under section 15(3) of the Payment of Wages Act, which could be considered by the Authority under that Act, and does not apply to the facts of the present case. The learned counsel for the respondent also relied upon the decision in New Prajapat Tiles Co. V. Derasari Labh Shankar Himatlal, : AIR1964Guj22 but I do not see how that decision supports the contention of the learned counsel for the respondent.

(18) From the above authorities it is clear to my mind that even if the claim is under section 36 of the Hyderabad Shops & Establishments Act, 1951, the Authority under the Payment of Wages Act. 1936 would have no jurisdiction to decide whether termination of the 1st respondent for misconduct was legal or not, even assuming that his services were terminated without observing the procedure prescribed by the rules under the Hyderabad Shops & Establishments Act.

(19) It follows that since the services of the 1st respondent were terminated on the ground of misconduct, he would not be entitled to any gratuity. If he was not entitled to any gratutity he would not be entitled under section 36 (1-A) of the Hyderabad Shops & Establishments Act to receive his wages until the date on which the gratutity is actually paid; for the simple reason that under section 36 (1) if the termination was for misconduct, the employee is not entitled to any gratuity.

(20) It remains to refer also to one other argument addressed by the learned third Government Pleader. He contended that having regard to the definition of 'wages' in the Payment of Wages Act before the amendment which came into force on 1-4-58, the said expression could not include gratuity payable on discharge and that, therefore, the Authority under the Payment of Wages Act would have no jurisdiction to order any payment of gratuity at all in any case.

He further argued that the amendment to the definition of 'wages' including gratuity also cannot be incorporated in the definition of wages under the Hyderabad Shops & Establishments Act. In support of this, the decision in Secretary of State v. Hindustan Co-operative Insurance Society Ltd., AIR 1931 P. C. 149 is cited. Though prima facie it appears that this argument is sound, I refrain from expressing my view on the point, as it is unnecessary in the view I have taken on other points.

(21) The 1st respondent's counsel has also raised a preliminary point that this writ petition is not maintainable for the reason that the order sought to be challenged as of a civil court, namely, of the 1st Additional Chief Judge, City Civil Court, Hyderabad and that a revision lies under section 115 C. P. C. It is pointed out that since that remedy was available to the petitioner under section 115 C. P. C., this writ petition is not maintainable I quite agree with the learned counsel for the 1st respondent that a revision lies under section 115 C. P. C., but I am unable to hold that such a revision lay as a matter of right. Therefore, I am unable to hold this preliminary objection.

(22) In result, the writ petition is allowed and the order of the 1st Additional Chief Judge, City Civil Court, Hyderabad is quashed with the result that the order of the Authority under the Payment of Wages Act in application NO. 80 of 1961 will be restored. I direct the parties to bear their own costs throughout Advocates fee Rs. 100.

(23) This order is without prejudice to the result of any appeal preferred by the 1st respondent before the Government or any other Authority or to his right to file any suit for damages for wrongful dismissal or for other reliefs.

(24) Petition allowed.


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