A.N. Grover, J.
1. The question involved in this petition for revision which has been referred to a Division Bench is whether there is any right of appeal-under Section 17(1) of the Payment of Wages Act, 1936 (hereinafter called the Act) when an application under Section 15 has been dismissed by the-Authority constituted under the Act.
2. Briefly the facts are that the petitioner is a Sation Master in the employ of Northern Railway. He filed two applications under the-Act. His allegations were that since 13-1-1954, he had not been paid his salary in full and that unauthorised deductions had been made therefrom by withholding increments in contravention of the Act.
He claimed a refund of Rs. 1.130/- and also compensation at ten times the amounts deducted by the Railway Administration. The position taken by the respondent was that the petitioner had been under suspension and had been paid half pay as allowance during the period of suspension in accordance with the rules. It was further stated that the Authority had no jurisdiction to go into the legality of the suspension of the petitioner.
3. On 10-3-1955, the Authority dismissed the application on the ground that the petitioner was being paid subsistence allowance during the period of suspension and was not entitled to full wages. Against this order the petitioner preferred an appeal to the District Judge of Sangrur. By his order dated 23-5-1955, the District Judge dismissed the appeal on the ground that no direction had been made by the Authority and therefore, no appeal was competent under Section 17(1) of the Act.
The petitioner then preferred a petition for revision to the then Pepsu High Court which was heard by Mehar Singh J., who noticed the-conflict of authority on the question and referred the matter for decision by Division Bench.
4. Section 17 confers the right of appeal against a direction made under Sub-section (3) or Sub-section (4) of Section 15 of the Act and if the appeal is by the employer or other persons responsible for the payment of wages under Section 3, If the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees.
If the appeal is by an employed person then the total amount of wages claimed to have been withheld from him should exceed rupees fifty. A 'difficulty has arisen with regard to the meaning and interpretation of the word 'direction'. A similar point came up for decision before a Division Bench of this Court in Civil Revn. No. 54 of 1947, D/- 27-12-1948 (EP) (A). It was contended before the Bench that the word 'deduction' was synonymous with the expression 'order' and even if the application under Section 15 was dismissed 'that would amount to an order and an appeal would lie from the said order.
It was contended, on the other hand, that the word 'direction' must be regarded as a positive order directing one person to make a payment to the other. Bhandari J., as he then was, examined the matter fully and after discussing the relevant authorities came to the following conclusion :
'The only inference that may reasonably be drawn from these provisions of law is that while the Legislature was anxious to confer a right of appeal against a direction made under Section 15 of the Act of 1936, it did not wish to confer a similar right in respect of an order refusing to make a direction.
Nor can such right be presumed on the ground only that it is somewhat unreasonable that while the Legislature had provided for an appeal where the claim was partially allowed by the Authority it had failed to provide for a remedy when the whole of the claim was refused.'
The view that no appeal lay from an order refusing to make a direction was approved. That decision must be followed by this Court unless it can be shown that it was erroneous in which case the matter might have to be examined by a larger Bench.
5. Mr. D.S. Nehra has invited our attention to several cases according to which an order refusing to make a direction under Section 15(3) of the Act is appeal able under Section 17(1). He has relied particularly on Mahomed Haji Umar v. Divisional Supdt. N.W. Railway, AIR 1941 Sind 191 (B); C.S. Lal v. Shaikh Badshah, (S) AIR 1955 Bom 75 (C); Arumugham v. Manager, Javaher Mills Ltd., Salem, AIR 1956 Mad 79 (D); M.B. Govt. v. Bramhodatta, (S) AIR 3956 Madh B. 152 (E); and Anant Ram v. Dtst. Magistrate, Jodhpur, (S) AIR 1956 Raj 145 (P).
6. The Sind case was examined in the previous judgment of this Court, but the view of Weston J., was not followed. Mr. Nehra has not been able to point to any particular reasoning which may have escaped the notice of the Bench.
7. In (S) AIR 1955 Bom 75 (C) the question was whether the Authority under the Payment of Wages Act, 1936, had jurisdiction to entertain the application and an objection was taken that the petition was not maintainable inasmuch as there was a right of appeal under Section 17 of the Act. In that connection it was observed that the right of appeal which had been conferred by Section 17 was not limited to a case where the Authority gave a direction to the employer to pay an amount to the employed person. The right of appeal would also arise if the Authority refused, to give a direction in the sense that it held on the merits of the application that the employee was not entitled to any amount. In this case there is hardly much discussion of the exact point which is involved in the present case nor is the contrary view examined at all.
8. In AIR 1956 Mad 79 (D), Ramaswami J., was of the view that an order rejecting a claim in toto was appeal able under Section 17(1) of the Act, for the word 'direction' in Sub-section (1) must be construed as including a refusal to make a direction. It was observed at page 84:
'The limits in regard to preferment of appeal from directions or orders are as follows: An order rejecting a claim in toto is also appealable, for the word 'direction' in Sub-section (1) must be construed as including a refusal to make a direction AIR 1941 Sind 191 (B); Rajendranath Karmakar v. Manager, French Motor Car Co., Ltd., AIR 1952 Caj 928 (G); P. Kumar v. Running Shed Foreman, E. I. Rly., AIR 1946 Oudh 148 (H); and Khema Nand v. Easf Indian Rly., AIR 1943 All 243 (I)'.
9. It is true that the Sind case supported this view, but it is not understood how the Oudh case has been pressed into service in favour of the aforesaid view. In the Oudh case Thomas C. J. held that the language of Section 15 indicated that a direction under that section was an order to one side to make payment to the person to whom the wages were due. But where an application of the employee under Section 15 had been rejected, it must be taken that there was no direction and hence no appeal lay against the order rejecting the application.
10. The Allahabad and the Calcutta cases referred to by the learned Judge of the Madras High Court also supported the view of Thomas C. J., expressed in the Oudh case.
11. In (S) AIR 1956 Madh-B 152 (E), Dixit J., dissented from AIR 1946 Oudh 148 (H), and came to the conclusion that the word 'direction' in Section 17(1) with reference to an appeal by an employed person must be construed as including a refusal to make a direction and an appeal would be perfectly competent against an order rejecting on merits an application of the employee under Section 15.
Even Dixit J., had to agree that the use of the words 'direction made' in Section 17 no doubt lent support to the contention that it was only a positive direction made under Section 15(3) or Section 15(4) which was appealable under Section 17. He decided more on the unfortunate result which follows if the Oudh and the Allahabad view were to be accepted, namely, that there would be a right of appeal if the claim is allowed even to a very small extent but that no appeal would-be competent if there was total rejection.
12. Wanchoo C. J. and Modi J., consideredthis question in (S) AIR 1956 Raj 145 (P). Theywer cf the opinion that though Section 15(3) did not sayin so many words that the Authority might refuseto give a direction, it was obvious that it hadthe power to refuse to give a direction on themerits. That refusal would obviously be anorder under Section 15(3), and amounted to a direction that nothing was due to the employee.
The main reason given for taking this view was that the right of appeal given under Section 17 to an employee did not depend upon the amount disallowed, but upon the total amount of the claim which must be more than Rs. 50/-. Wanchoo C. J., preferred the Sind and the Bombay view to the Calcutta, Allahabad and Oudh view. (13) in Mohd. Matin Kidwai v. Dist. Executive Engineer, N. E. Rly., Izatnagar, AIR 1955 All 180 (J), Raghubar Dayal and Roy JJ., examined the question at length and followed the Oudh and previous Allahabad view and did not accept the Sind and Bombay view. The Allahabad Bench considered the illogical and curious result which flowed from the acceptance of the aforesaid view but made the following observations which deserve notice:
'It is not necessary to elucidate this logical position for the purpose of this case, as we are of opinion that even if the interpretation of the precise language used in the statute leads to that conclusion the court is not to interpret the precise language in any different manner merely because the Legislature had not been logical in providing for all the eventualities in connection with the certain dispute.'
14. The previous Bench decision of this Court adopted a similar view and if such a view is plausible and can be taken there seems to be no reason why the same should not be accepted for the purposes of this case. As was observed by Bhandari J., as he then was, a right of appeal cannot be presumed on vague surmisings and the Legislature cannot be presumed to have done something which the Courts consider it should have done. An appeal is a creature of the statute and the right of appeal cannot be presumed unless it has been expressly conferred.
15. Mr. D.S. Nehra has not been able to give any cogent and strong reasons which should persuade us to differ from the view already adopted by this Court and which has also prevailed in the Calcutta, Allahabad and Oudh Courts. No question, therefore, arises of referring this matter to a larger Bench, as has been strenuously urged by Mr. Nehra.
16. It will be proper to point out that the provision relating to appeal in the Act certainly needs amendment by the Legislature inasmuch as Section 17, as it stands at present, has led to a great deal of conflict of opinion which has already been noticed. It does seem very anomalous that there should be a right of appeal if any direction is made in favour of an employee, say for a refund of only rupee one, but that there should be no right of appeal if his claim is dismissed in toto. It is high time that the Legislature made its intention clearer. For the present, however, it must be held that no appeal lies from an order refusing to make a direction or dismissing an application in toto, as was done in the present case.
17. The counsel for the respondent contends that there are other points involved apart from the question of law referred to the Bench. This matter must, therefor, be set down for hearing before a learned Single Judge for final disposal. There will be no order as to costs.
Bishan Narain, J.
18. I agree.