1. These two revision petitions filed by Risal Singh and Gobind Singh are both against orders of the Authority constituted under the Payment of Wages Act (No. IV) of 1936 dismissing the petitioners' applications under Section 15 of the Act, and although the details are not identical the point involved is much the same.
2. Briefly the facts in the case of Risal Singh are that he was employed as an Inspector in the Watch and Wards Department of the Eastern Punjab Railway and in 1948, after being reduced to the rank of Sub-Inspector, he was removed from service by an order of the Divisional Commercial Officer, Watch and Ward, Delhi, dated 9-11-1948. After protesting unsuccessfully to the higher authorities that both his reduction in rank and removal from service contravened the provisions of Section 240 of the Government of India Act, 1935 Risal Singh instituted a suit in December, 1951 for a declaration that his reduction in rank and removal from service were illegal and that he still continued to be as Inspector in the Watch and Ward Department, and he was successful in obtaining a decree on 9-11-1951.
3. The authorities did not appeal against this decree and eventually gave effect to it by restoring Risal Singh as an Assistant Inspector, Watch and Ward, Northern Railway at Delhi as from 31st of August 1954 at a salary of Rs. 1407-p.m. plus Rs. 55/- as dearness allowance. In the letter by which his restoration was communicated it was stated that the period of his absence from the date of his removal from service i.e., 9-11-1948 to the date of his resumption of duty should be treated as leave without pay.
4. Risal Singh claimed that a sum of Rs. 14,6257- was due to him at Rs. 195/- P. M. for the period in question and filed an application on 13-11-1954 before the Authority under Section 15 of the Act.
5. The facts in Gobind Singh's case are that he was employed as a Ticket Collector and when he was serving at Ambala an order was passed removing him from service on 25-7-1949. He also filed a similar declaratory suit and was granted a decree on 21-7-1953 to the effect that his removal from service was void and illegal and that he was still in service.
Although the authorities did not appeal against that decree, they had not given effect to Gobind Singh's representations that he should be restored to his position when he filed his application under Section 15 of the Act on 8-1-1954 claiming payment of the wages which were due to him from the date of his removal up to the date of application.
5a. Although the Railway authorities in both the cases opposed the applications on various grounds including limitation, which was decided in the petitioners' favour, the ground on which the petitions were dismissed, and which has been mainly argued before me, was the finding that the dispute between the parties did not fall within the scope of Section 15 of the Act, which only provides for the recovery by employed persons of wages either wrongfully deducted or delayed, and according to the view taken by the Authority this does not cover a case in which wages are withheld because the liability to pay them at all is disputed, such disputes being only Justiciable by an ordinary Civil Court.
5b. In coming to this conclusion the Authority has relied on a number of decisions cited before it which require consideration. The first of these cases is Simpalax . v. Alla-ud-Din, AIR 1945 Lah 195 (A). This decision was in a revision petition arising out of a regular suit filed by an employee claiming a sum of money alleged to be due to him in lieu of notice after dismissal from employment.
There is no reason to dissent from the view expressed by Beckett J., that such a suit is tribal by a Civil Court the jurisdiction of which is not barred by Section 22 of the Act. The suit in this case was obviously for damages and the amount claimed in lieu of notice could not be described as delayed wages.
This, however, does not seem to me to have any bearing on the question which arises in the present case, viz., whether, having been restored-to service by a decree of a Civil Court after removal, the petitioners are entitled to their wages from the date of their removal till the date of their restoration to service.
5c. The next case relied on is Rajkumar Mills Ltd., Indore v. Inspector, Payment of Wages, M. B., AIR 1955 Madh B 60 (B). In that case the dispute seems to have been between Chowkidars and their employer the chowkidars having been employed at Rs. 267- p.m., and after some dispute had arisen about wages for non-working days, an interim arrangement was made by which they were paid an extra amount of Rs. 5/- p.m.
A dispute then apparently arose as to what the wages of the Chowkidar were, and the Authority under the Act held that their minimum basic wage was Rs. 317- p.m. This was set aside by the High Court on the ground that the scope of the Act was confined to the claims specified in Section 15, namely regarding deductions alleged to have been made contrary to the provisions of the Act, and delay in payment of wages, and the Authority was not supposed to adjudicate upon a wage dispute of this kind.
This case also does not seem to me to have much bearing on the present dispute, and if it is to be regarded an authority for the proposition that the Authority under the Act cannot decide what wages the employees are entitled to under their contract of employment, then there is ample authority to the contrary.
6. The next case is N. Venkatavaradan v. Sembiam Saw Mills, Sembiam, Madras, AIR 1955 Madras 597 (C), in that case a dispute arose between the employee and the firm employing him about an extension of a period of leave which he had taken, and by an order dated 13th of February 1951, after an enquiry, his services were terminated as from the 1st of January 1951 for having absented himself without permission.
He proceeded to claim his wages for January and part of February and also a sum as damages and it was held by Krishnaswami Nayudu J., that the jurisdiction of the Authority does not extend to determining the question whether the contract has been terminated, as alleged by the employer, or the contract is still subsisting, as alleged by the servant, and where the claim is in effect damages for wrongful termination of services, the proper course for him is to institute a suit for damages and not to claim wages under the Act. This case also seems to me to have no bearing on the present dispute.
7. Finally there is the case of Kishan Chand v. Divisional Supdt. Lahore Division, N.W. Rly., AIR 1948 Lah 202 (D). This was a case of a workman who had been promoted and then reverted again, and Mahajan J., held that the Authority had no power to go into a dispute regarding wages arising in such a situation.
He held, 'The Act furnishes a summary remedy for wages earned in an office and not paid but it does not provide a remedy for investigation of querries which concern the office itself, in other words, whether a man should be retained in one Job or should be reverted to another job. Cases of unjustifiable reversion cannot be decided by the Authority appointed under the Act exercising jurisdiction under Section 15(3).'
It thus seems to me that none of the cases on which the Authority has relied really goes to the root of the matter at all, and another decision now cited on behalf of the respondents seems equally wide of the mark. This is a decision of a Full Bench consisting of Khosla, Passey and Mehar Singh JJ., in Divisional Superintendent Northern Delhi Division v. Mukand Lal, 59 Pun LB 173: ( (S) AIR 1957 Punj 130) (FB) (E).
This related to a case in which a railway employee had been placed under suspension for a short period, during which he received a subsistence allowance considerably less than his wages, and subsequently he sought to recover the balance of his full wages under Section 15. While it was held by the learned Judges that the Authority constituted under the Act was not competent to order the employer to pay full amount of wages during such period, the ratio decidendi was that the rules framed by the Indian Railway Establishment must take precedence over the provisions of the Act as regards deductions.
It does not seem that the jurisdiction of the Authority under the Act to adjudicate upon the dispute of this kind was even considered.
8. On the other hand there are a number of authorities, chiefly from the Bombay High Court, to the effect that a dispute of this kind can be decided by the Authority under the Act and that wages withheld in circumstances analogous with those in the present case can be regarded as either deducted or delayed within the meaning of Section 15.
The first of these cases is K.P. Mushran v. B.C. Patil, AIR 1952 Bom 235 (F). In that case a railway employee had been detained under the Preventive Detention Act from February to June 1949 and the Railway authorities shortly after he had been detained suspended him from service, his period of suspension having ended long after his release in 1950. He was, however, then compelled to go on leave under certain rules and for about two months he was given full pay and then for about four months half pay, and after that he was not given any pay at all, and he was still apparently on leave without pay when the matter came before the High Court by way of a writ petition challenging the order of the Authority under the Act directing the Railway authorities to pay the employee his full wages without any deductions.
A considerable portion of the judgment ofChagla C.J., with which Bhagwati J., concurred,was devoted to the question raised by the autho-rities that during the period of the employee'ssuspension his contract, of employment was itselfsuspended and no wages were due for that periodwhich was decided against the authorities. Thejurisdiction of the Authority regarding the periodwhen the employee was compelled to remain onleave for a time on reduced, and later withoutany pay at all, was also contested and the matter was dealt with by the learned Chief Justice as follows:
'Now, turning to the contention with regard to leave without pay, the position is even simpler, because it is not disputed that, during the period of leave, the employee continues to remain the servant of the employer and no question of suspension of the contract can possibly arise.
The only contention that Mr. Palkhiwala can raise with regard to this point is that there is a dispute as to the liability to pay full wages during the period of leave and that dispute as to liability cannot be determined by the Authority. There is no doubt that, as far as this question is concerned, the only dispute is as to the quantum of wages. Employment is admitted; the fact that the employee was a servant is admitted.
The only dispute is that the employer says that, for a certain period, he is only liable to pay half, the wages, and for a certain period he is not liable to pay any wages at all. Now Mr. Palkhiwala says that there is no dispute as to what is the amount due, and if there was any dispute as to the amount, then the Authority could have determined the amount, but in this case the dispute raises the question of liability, and that question is kept outside the jurisdiction of the Authority.
As we have pointed out in A.R. Sarin v. B.C. Patil, 53 Bom LR 674: (AIR 1951 Bom 423) (G), it is only when the contract of employment is put an end to and the liability to pay damagesfor wrongful dismissal, is disputed that the Authority has no jurisdiction to consider that question. But, when the employment is admitted, non-payment of wages can only raise the question as to deduction or delay, both of which are questions within the jurisdiction of the Authority.
Now, with regard to leave on half pay, there is no doubt there is a deduction from the wages to which the employee was entitled, and the question that the Authority had to decide was whether the deduction was justified or not. The Act deals with cases of absence from duty under Section 9, and certain deductions are permissible for absence from duty.
But the deductions that the employer has made are not covered by the provisions of Section 9, and. therefore, the Authority had jurisdiction to decide that, the deduction being unjustifiable, there was a liability upon the employer to pay the full amount of wages. Then with regard to the period when the employee was on leave without pay, the Authority has held that there was a delay in payment as no wages whatsoever were paid.
Now. I find it rather difficult to accept the proposition that, if an employer were to deduct from wages of Rs. 100/- a sum of Rs. 99-15-9 It would be deduction, but that, if he were to deduct the whole amount of Rs. 100/- and not pay the employee at all, it would not be a deduction. I should have thought that, giving to 'delay' Its plain natural meaning, delay in payment would only arise when there was no dispute as to payment of wages but the employer was only in de-fault in not paying them on the due date.
But when there is a dispute as to payment of wages, and the dispute is as to the quantum or as to the whole amount of the wages then, whether there is a deduction of a part of the amount or the whole amount of the wages is notpaid, it would still be a case or unjustified deduction. But it is unnecessary to decide whether, in the case of a failure to pay the whole amount of wages, a case of delay or deduction arises, because in either view of the case the Authority would have jurisdiction to decide the matter.'
9. The next case is a writ Petn. No. 156 of 1953, H.L. Finnimore v. C. P. Fernandes (Bom) (H), decided by Desai J., on 17-9-1953. This case is apparently unreported, but a certified copy of the judgment 'was placed on the record by Gobind Singh. The employee in this case was a fireman in the service of the Western Railway who was removed from service by the petitioner, the Superintendent of the Watch and Ward Department, Western Railway, by an order passed in November 1950.
This employee's representations however resulted in passing of an order on 26-5-1952 by the General Manager of the Western Railway reinstating him in service. The order of restoration however contained a provision that the period of his absence from 16-11-1950 to the date of his joining duty will be treated as 'Dies Non', an order which the learned Judge found could not be passed under any provision of the Railway Code.
10. The Writ Petition arose out of the fact that the employee had applied to the Authority under Section 15 of the Act for payment of his wages from 15-11-1950 to 15-7-1952. It is not clear from the judgment exactly how much he was awarded by the Authority, but it is clear from the fact that the order was challenged in the High Court that a direction for the payment of wages must have been passed in the employee's favour.
Among the points raised on behalf of the petitioner the question of the jurisdiction of the Authority was again one, and the learned Judge dealt with it as follows:
'It was then argued that under Section 15 of the Act the jurisdiction of the Authority was confined, so far as a case of the present nature is concerned, to claims relating to payment of wages that may have been delayed or to deductions in payment. The argument proceeded that this was a case of non-payment or refusal to pay wages and not a case of payment of wages being delayed or any wages being deducted.
Reference was also placed in this connection to Section 5 of the Act in so far as the question arose as to the payment of wages; being delayed. It was pointed out that the time for payment of wages was fixed under the Act. It was stated that as mentioned in that Section the wages in different cases became payable at the expiry of the period therein mentioned or on the dates therein specified.
I must confess that it is difficult for me to appreciate this argument. Even after the expiry of the dates mentioned in that section if wages are not paid they would still be wages payment of which was delayed within the meaning of the Act. It is true that in the applications the second respondent claimed the amounts not on the ground of delayed wages but as amounts deducted from wages.
But the jurisdiction of the Authority does not depend in my judgment entirely on the distinction between 'delayed Wages' and 'deductions'. If the first respondent came to the conclusion that this was a case of either deducted wages or delayed wages then he would have jurisdiction to decide the matter and hold whether it was a case of deduction or delayed wages.
He would be concerned more with the substance of the claim than actual words used in the application. The view I am inclined to take is that it is possible to regard the claim under consideration as one for delayed wages.' Later in the judgment some support was derived from the case cited above Sarin v. Patei (G), on the ground that there is some analogy between the position of an employee who makes a claim for wages for the period during which he was in suspension and a claim made by a per-son dismissed without authority but subsequently reinstated. The learned Judge continued:
'The view I take of the matter is that the Older being one without authority once reinstatement is made the relation between the master and servant must be deemed to have continued to subsist during the interegnum. So also the rights and obligations of the parties must be deemed to have remained unaffected during that period.
If that be the position, and I have no doubt that it ig so, it must follow that the first respondent had jurisdiction to decide the matter.'
11. The decision of Desai J., was the subject of a Letters Patent Appeal decided by Chagla C. J., and Shah J., on 1-3-1954. This case is also apparently unreported but a copy of the judgment has been placed on record. The decision of Desai J., refusing to interfere with the award in favour of the employee was upheld.
12. Another case in which the view has been taken that wages withheld in these circumstances amount to deductions is Anant Ram v. District Magistrate Jodhpur, (S) AIR 1956 Raj 145 (I). In that case the applicants, who were Railway employees, were dismissed on one date and reinstated on a later date, and they were not paid wages between the dismissal and reinstatement the claim before the authority being for the wages for this period.
It was held by Wanchoo C. J. and Modi J., that their reinstatement clearly implied that the authority deducted their wages wholly or in part for the period between dismissal and re-instate-ment, and the case would be covered by the provisions of the Payment of Wages Act.
13. It is thus clear that whereas there is no direct authority to the contrary, there are a number of decisions in which wages withheld either without actually dismissing an employee but merely compelling him to remain on leave without pay, or withheld from an employee once removed from service but later reinstated, can be treated as either wages deducted or wages regarding which there has been a delay in payment, and that the authority had jurisdiction to adjudicate upon claims like those of the present petitioners, and in my opinion this is a correct view of the matter.
14. It may be mentioned that one of the grounds raised' before the authority for holding that it had no jurisdiction in the matter was the provisions of Rule 2044 of the Indian Establish-mont Code, the relevant portion of which reads:
'When a railway servant who has been dismissed, removed or suspended is reinstated the revising or appellate authority may grant to him for the period of his absence from duty:
(a) If he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and by an order to be separately recorded, any allowance of which he was in receipt prior to 'his dismissal, removal or suspension, or
(b) If otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe.In a case falling under Clause (a) the period of absence from duty will be treated as a period spent on duty. In a case falling under Clause (b) it will not be treated as a period spent on duty unless the revising or appellate authority so directs.'
15. It is however pointed out on behalf of the petitioners that this Rule has no application in the present cases. It is clearly intended to be applicable in cases where the employee who has been dismissed, removed or suspended is reinstated by some Railway Officer acting as a revising or appellate authority, and prima facie it is doubtful whether it would be applicable in a case where an employee removed from service by the order of the Railway Officer is restored to service by a decree of a Civil Court declaring his removal to be illegal and inoperative.
If there could have been any doubt on this point, it has undoubtedly been set at rest by the decision of the Supreme Court in State of Bihar v. Abdul Majid, AIR 1954 SC 245 (J), the well-known case by which the right of a servant of the State to bring a suit for recovery of arrears of salary was established. One of the questions which arose in this case was whether Rule 95 of the Bihar and Orissa Service Code was applicable.
The officer in that case was a Sub-inspector of Police who had been dismissed by an order of the Deputy Inspector General of Police and he had obtained a decree from Civil Court declaring his dismissal to be illegal. The Rule in question was in similar terms to those of Rule 2044 of the Indian Railway Establishment Code. It was held by the Hon'ble Judges that the Rule in question had no application in a case where the reinstatement was by a decree of the Civil Court and not by actions of the Departmental appellate or revisional authority.
16. It may be mentioned that at the outset a preliminary objection was raised on behalf of the respondent to the effect that a revision petition was not competent, since an appeal lay under the Act. Section 17(1) in fact provides for an appeal against a direction made under Sub-section (3) or Sub-section (4) of Section 15 to the appropriate Appellate Authority within thirty days of the date on which the direction was made, by an employer if the total sum directed to be paid exceeds three hundred rupees, or by an employee if the total amount of wages claimed to be withheld exceeds fifty rupees.
There can be no doubt about the proposition that where a remedy is provided in the Act by way of appeal no revision petition would lie but the real question is whether the orders of the authority in this case dismissing the petitioners' applications on the ground that it had no jurisdiction to entertain them can be regarded as a direction within the meaning of Section 15. The only case relied on was a decision of Weston J., in Mohamed Haji Umar v. Divisional Superintendent, N. W. Railway, AIR 1941 Sind 191 (K). in which it was held that the word 'direction' in Section 17 should be taken to include a refusal to make a direction.
It is however clear that in that case a decision on the merits of the case was given by the authority, and it is doubtful whether dismissal of an application on a preliminary ground re-carding jurisdiction can in any sense be regard-ed as a direction. The view that this is not so has at any rate been expressed in one case, Khema Nand v. East Indian Railway, AIR 1943 All 243 (L), in which Hamilton J., has expressed the view that the language of Section 15 indicates that a direction is an order to one side to make a payment to the other side and when an application of the employee under Section 15 was rejected as time-barred without even entering into the merits it must be taken that not merely was there no direction but that the application was not even entertained, and that there is nothing in the Act which provides for an appeal in such a case.
I am in agreement with the view that an order dismissing an application on the ground of want of jurisdiction is not a direction under Section 15 and that therefore the present revision petitions were competent. The result is that I accept the present revision petitions with costs (Counsel's fee Rs. 100/-) and set aside the orders of the Authorities dismissing the petitioners' applications. The cases will have to go back to the authority concerned for determination by him of the amount of wages to which the petitioners are entitled.