G.K. Misra, C.J.
1. The opposite party serves as an accountant under the petitioner and his monthly salary is Rs. 600. As his arrear salary was not paid he filed an application (Annexure 1) before the Sub-divisional Magistrate Sadar, Cuttack, under Section 15(2) of the Payment of Wages Act, 1936 (hereinafter to be referred to as the 1936 Act), claiming arrears of pay and leave salary amounting to Rs. 7,815. He prayed for payment of his delayed wages and also refund of amounts illegally collected from him. Along with the application (Annexure 1) he filed another petition (Annexure 2) under Order 38, Rule 5, C.P.C. for attachment of certain fixed deposit standing to the credit of the petitioner's company. Initially, the Sub-divisional Magistrate granted an ex parte order of attachment. On receipt of notice the petitioner raised objection but the order of attachment was confirmed with certain modifications. This writ application has been filed under Articles 226 and 227 of the Constitution for issuing a writ of certiorari to quash the order (Annexure 3) dated 2-6-71 passed by the Sub-divisional Magistrate holding that the application (Annexure 1) is maintainable and to quash the order of attachment. The writ application is opposed on the ground that the High Court should not interfere with an interim order of attachment.
2. The first question for consideration is whether the application (Annexure 1) is maintainable.
3. Section 20(1) of the Orissa Shops and Commercial Establishments Act, 1956 (Orissa Act 30 of 1956) (hereinafter to be referred to as the 1956 Act) runs thus:
Notwithstanding anything contained in the Payment of Wages Act, 1936 (herein referred to as 'the said Act'), the State Government may, by notification, direct that subject to the provisions of Sub-section (2), the said Act or any of the provisions thereof shall apply to all or any class of employees in any establishment to which this Act applies.
4. There is no dispute that the 1956 Act is applicable to the petitioner's company. Mr. Mohanty, however, contends that the 1936 Act itself imposes a restriction that it shall have no application to persons drawing a salary of more than Rs. 400 per month, and the same restriction will apply to the 1956 Act. The argument of Mr. Mohanty in that wide form is not entertainable. It will depend upon the nature and terms of notification issued by the State Government under Section 20(1) of the 1956 Act. The notification (Annexure 1) dated 27-8-62 runs thus:
Government of Orissa
Dated Bhubaneshwar the 27-8-1962.
No. IW-39/60-9443/Lab.-In exercise of the powers conferred by Sub-section (1) of Section 20 of the Orissa Shops and Commercial Establishments Act, 1956 (Orissa Act 30 of 1956) the State Government do hereby direct that all the prbvisions of the Payment of Wages Act, 1936 (4 of 1936) shall apply to all the employees in any establishment to which the said Orissa Act applies.
By order of the Governor
Sd/- R.N. Das
Joint Secretary to Government.
5. The notification makes it clear that all the provisions of the 1936 Act shall apply to all the employees in any establishment to which the 1956 Act applies.
6. Sub-sections (5) and (6) of Section 1 of the 1936 Act runs as follows:
1(5) The State Government may, after giving three months' notice of its intention of so doing, by notification in the Official Gazette, extend the provisions of this Act or any of them to the payment of wages to any class of persons employed in any industrial establishment or in any class or group of industrial establishments:
Provided that in relation to any industrial establishment owned by the Central Government with objects not confined to one State, no such notification shall be issued except in consultation with that Government.
(6) Nothing in this Act shall apply to wages payable in respect of a wage-period which, over such wage-period, average four hundred rupees a month or more.
7. Sub-section (6) makes it clear that nothing in the 1936 Act shall apply to wages payable in respect of a wage-period which, over such wage-period, average Rs. 400 a month or more. In this case the opposite party was getting a salary of Rs. 600 per month. In terms, therefore, the 1936 Act has no application to him.
8. By notification issued under Section 1(5) it was open to the State Government to extend the provisions of the 1936 Act or any of them to the payment of wages to any class of persons employed in any industrial establishment. The notification (Annexure A 1) under Section 20(1) of the 1956 Act clearly says that all the provisions of the 1936 Act shall apply to all the employees in any establishment to which the 1956 Act applies. Section 1(6) of the 1936 Act is one of the provisions which applies to the petitioner's establishment and accordingly as the opposite party gets a salary of Rs. 600 per month, the 1936 Act has no application to him on account of the unrestricted nature of the notifications issued under Section 20(1) of the 1956 Act.
9. On the aforesaid analysis, the Sub-divisional Magistrate has no jurisdiction to entertain the application (Annexure 1). It follows that he has no jurisdiction to pass the interim order of attachment.
10. In the result, (Annexure 3) is quashed. Awrit of certiorari be accordingly issued. The writ application is allowed, but in the circumstances without costs.
B.K. Ray, J.
11. I agree.