S.K. Mal Lodha, J.
1. These are two connected revisions and as they have been heard together, it will be convenient to dispose them of by a common judgment.
2. The petitioner submitted an application under Section 15(2) of the Payment of Wages Act, 1936 (No. IV of 1936) (hereinafter referred to as 'the Act') before the Authority under the Act (for short 'the Authority' hereafter) at Bikaner, on July 21, 1972 against the non-petitioner. The petitioner and the non-petitioner will hereafter be referred to as 'the employee' and 'the employer1 respectively-It was stated in the application by the employee that the employer had not paid wages from August 23, 1970 to May 31, 1972 @ Rs. 200/- per month. The total amount of wages payable to the employee on account of the aforesaid period was assessed at Rupees 4253.34 p. Along with this application, a separate application for condoning delay was submitted as the claim for wages for the period from August 23, 1970 to June 30, 1971 was not within the period prescribed by proviso to Section 15 (2) of the Act. The facts, which constituted sufficient cause for not making the application within the prescribed period were mentioned in that application. The Authority issued notice to the employee on August 5, 1972 to show cause as to why the application should not be rejected as it was time barred. Copy, along with copy of the notice was also sent to the employer for appearing before the Authority on the aforesaid date.
3. On August 5, 1972, the employer submitted a reply contending that the applicant was not the employee of the employer during the aforesaid period from August 23, 1970 to May 31, 1972 and, therefore, he was not entitled to any wages for the said period. The employer questioned the locus standi of the employee to submit the application. A plea was also taken that the claim of the employee was not with in limitation
4. On September 29, 1972, the following four issues were framed by the Authority which, when translated into English, read at under
(I) VV! let her the applicant was in the employment of the non applicant?
(2) Whether the non-applicant had illegally deducted the wages of the applicant?
(3) Whether the claim is time-barred?
The case was ordered to be posted for the evidence of the employee on Oct. 21, 1972, On July 23, 1973, in the absence of the parties, the Authority ordered that the case be fixed on August 7, 1973 for arguments on the application for condonation of delay sub-milted with the claim application and notices be sent in this behalf to both the parties. On August 11, 1978, the court, with respect to the fact whether the claim is time-barred, recorded that an issue has already been framed on September 29, 1972 and that counsel for the employer agreed that the claim may be decided on merits which will also include decision on the question of limitation. After trying the claim, the Authority ordered that the employer should pay to the employee Rs. 4253.34 p. on account of arrears of wages and Rs. 4253.34 p. as compensation. The Authority issued the direction for the payment of Rs. 8506.68 P. within 30 days from the date of the order under Section 15(3) of the Act which was passed on November 14, 1977. The Authority recorded the following findings,--
(1) That the employee was in service of the employer:
(2) That the employer illegally deducted the wages of the employee; and
(3) That there was sufficient cause for not making the application in respect of arrears of wages which were not within limitation.
5. Feeling aggrieved by the order and direction made under Section 15 (3) of the Act, the employer preferred an appeal under Section 17 of the Act before the learned District Judge, Bikaner on Jan. 21, 1978. Along with the appeal, a certificate under Section 17 of the Act was submitted certifying that the employer has deposited a sum of Rupees 8506.68 by Che. No. AC 338481 D/-28 12-1977 against the direction issued on November 17, 1977, in the case and that there remains nothing outstanding against the direction issued in the case. In the memo of appeal, in para 22, it was, inter alia, mentioned that cashier of the Authority was OH leave and there was strike in the Bank and, therefore, the receipt of the amount of the cheque could not be obtained and it will be produced as soon as it is received. The appeal was ordered to be registered on January 5, 1978. On April 26, 1978, a preliminary objection was raised that as the amount in pursuance of the direction was deposited by cheque and the cheque was encashed later on, the appeal could not be registered. The learned District Judge heard arguments on this preliminary objection and overruled it holding that the delivery of the cheque for the sum to the Authority amounted to a valid tender in the eye of law and in these circumstances, the objection that the appeal could not be entertained, was rejected. This order was passed on April 26, 1978. Against this order, the employee has preferred S. B, Civil Revision No. 244 of 1978.
6. The learned District Judge heard arguments in the appeal on June 13, 1978 and allowed it by his order dated July 5, 1978, He set aside the order of the Authority dated November .14, 1977 and the direction issued in pursuance thereof and remanded the case to the Authority for re-hearing the case and deciding the application of the employee under Section 15 (2) of the Act afresh in the light of the observations made by him in the order dated July 5, 1978. Being dissatisfied with the order dated July 5, 1978, the employee has preferred S. B. Civil Revision No 238 of 1978.
7. I have heard Mr. L. R. Mehta, learned counsel for the employee and Mr. Parmatma Sharan, learned counsel for the employer and have also gone through the record of the case.
8. It was contended by the learned counsel for tbe petitioner that the learned District Judge has exercised his jurisdiction illegally in entertaining the appeal and deciding it. He submitted that as there was no compliance of Section 17(1A) of the Act, the appeal did not lie and as such, the preliminary objection raised on April 26, 1978 should have been accepted- The following facts are not in dispute before me. The appeal under Section 17 of the Act was lodged on January 2, 1978; the cheque for the amount in pursuance of the direction was delivered to the Authority on December 28, 1977 and the certificate under Section 17(1A) was issued by the Authority on the same day i. e. December 28, 1977. The limitation for filing the appeal expired on January 7, 1978 and the cheque was encashed on January 12, 1978, Learned counsel urged that as actual deposit of the amount payable under the direction appealed against was not made by the employer with the Authority, the requirement of Section 17(1A) of the Act was not satisfied and, therefore, according to him, the payment of the amount of cheque received after the expiry of period of limitation cannot be of any avail to the employer, for, the deposit of actual amount with the Authority should be prior to the expiry of period of limitation. Learned counsel submitted that the provisions of Section 17(1A) are mandatory and the view taken by the learned District Judge that the delivery of the cheque was a valid tender and, therefore, the certificate issued by the Authority showing the receipt of the cheque met the requirements of Section 17(1A), is manifestly illegal. In support of his arguments. Mr. Mehta placed strong reliance on Bhuraugya Coal Co. Ltd. v. Sahabjan Mian ATR 1956 Pat 299. The Bihar Journals Ltd. v. Nityanand Singh ATR 1959 Pat 112, Central Engineering Corporation v. Dorai Raj. ATR 1960 Orissa 59. The Hyderabad Chemicals and Fertilizers Ltd. v. Mohammed Basheer Khan 1970 Lab IC 1082 (Andh Pra), Sailendra Kumar Dutta v. General Manager, Gauhati Refinery. Indian Oil Corporation Ltd. 1973 Lab TC 383 (Gnu). Khetaram Manoharlal v. Sankar Mandal, 1975 Lab IC 274 (Pat) and R. Sankaran v. The Presiding Officer, Additional Labour Court, Madras 1977 Lab IC 1338 (Mad).
9. I have bestowed my earnest consideration to the arguments of the learned counsel.
Section 17(1A) of the Act reads as under,--
(1A) No appeal under Clause (1) of Sub-section (1) shall lie unless the Memorandum of Appeal is accompanied by a certificate by the authority to the effect that the appellant has deposited the amount payable under the direction appealed against.
I had occasion to examine the provisions of Section 17(1) of the Act in Tulsiram v. Upbhokta Sabakari Bbandar, Ward No. 25, Jodhpur, (Civil Revn. No. 574 of 1974, decided on December 4, 1978) (Raj). After noticing Ramniwas Khandelwal v. Mt. Mariam, ATR 1951 Pat 260. Bhurangya Coal Ltd.'s case, the Bihar Journals Ltd.'s case, B. P. Nandy v. General Manager, East India Rly. AIR 1954 Cal 453, and Sadaram v. Chhoturam, AIR 1957 Him Pra 26 and Sailendra Kumar Dutta's case. I had reached the conclusion that the non-production of the certificate within the period of limitation with the appeal when amount in pursuance of the direction was deposited before filing the appeal it cannot be treated as having become time barred and, therefore, I did not agree with the argument raised on behalf of the petitioner-employee in that ease that the memo of appeal as filed on January 5, 1973 was not properly presented as it was not accompanied by the certificate as required by Section 17(1A) of the Act. After examining the provisions of Section 17(1A) of the Act, and Rule 12 of the Rajasthan Payment of Wages (Procedure) Rules, 1961, in Tulsiram's ease (supra), it was observed by rue that the certificate of the authority to the effect that the appellant had deposited the amount payable under the order or direction appealed against, is a very material document which the law enjoins to be filed in order that the appeal may be entertained, but the non-production of the certificate within the period of limitation prescribed for preferring the appeal would not make it barred by time. In that case, it was held that the memorandum of appeal duly accompanied by the certified copy of the order or direction appealed against was submitted within limitation as the amount payable under order or direction was deposited with the Authority before the appeal was filed. The object of Section 17(1A) of the Act is that it attempts to put a stop to useless and harassing litigation against a poor and weak employee who may be deprived of his just dues and has to depend on the amount of wages for his sustenance. It is to assure an employee that he will receive the amount of wages awarded to him in case appeal fails as an appeal postpones his right to receive the amount of wages. It is for the Authority against whose direction or order an appeal is preferred to be satisfied that the appellant has deposited the amount payable. In this case, the cheque for the amount in pursuance of the direction was delivered to the Authority on December 28, 1977 and it was satisfied that it amounted to a valid deposit in pursuance of the direction and! that led to the issuance of the certificate on the same date. The limitation for filing the appeal expired on January 7, 1978 and the cheque was delivered and the certificate was issued on December 28, 1977. If is no doubt true that cheque is a conditional payment still the delivery of the cheque on December 28, 1977 which was encashed on January 12, 1978 constituted valid tender to the Authority which issued the certificate under Section 17(1A) of the Act to the effect that 'the employer has deposited a sum of Rupees 8506.68 by cheque No. AC 338481 D/- 28-12-77 with it on December 28, 1977 against the direction issued by it on Nov. 17, 1977- Whether a payment by cheque is a valid tender or not came up for consideration in Damadilal v. Parashram, (1976) 4 SCC 855 : (MR 1976 SC 2229). In para. 13 of the report, it was observed,
'......., It is well settled that a cheque sent in payment of a debt on the request of the creditor, unless dishonoured, operates as valid discharge of the debt. .... .We agree with the view taken by the High Court on the point. Rent is payable in the same manner as any other debt and the debtor has to pay his creditor in cash or other legal tender,..,.....'
Their Lordships of the Supreme Court excerpted from the judgment of the High Court what it has said on the validity of the tender of rent by cheque. The High Court had observed.
'........ In the highly developed society payment by cheque has become more convenient mode of discharging one's obligation. If a cheque is an instrument which represents and produces cash and it is treated as such by businessmen, there is no reason why the archaic principle of the common law should be followed in deciding the question as to whether the handing over of the cheque is not a sufficient tender of the arrears of rent if the cheque in drawn for that amount. It is no doubt true that the issuance of the cheque does not operate as a discharge of the obligation unless it is encashed, and it is treated as a conditional payment, yet. . ..this is a sufficient tender of the arrears if the cheque is not dishonoured'.
In Union of India v. Akhawri Harendra Narain Singh, 1975 Ren CJ 214 : (AIR 1974 Pat 159) it was held that payment of the amount by cheque is a valid tender. The argument that the certificate could only be issued by the Authority after the actual deposit of the amount in pursuance of the direction made by the Authority, in my humble opinion is not correct. In the facts and circumstances of this case, the learned District Judge, in my opinion, had jurisdiction to entertain the appeal when the memo of appeal which was presented on January 2, 1978 was accompanied by the certificate dated December 28, 1977 saying that the amount has been deposited with the Authority in pursuance of the direction though the certificate inter alia recited that only a cheque was delivered to the Authority. The cheque was encashed in this case on January 12, 1978 much before the appeal was heard. The Authority accepted the cheque treating it as a deposit of the amount in pursuance of the direction. Section 17(1A) was, therefore, complied with. The order of the learned District Judge dated April 27. 1976 overruling the preliminary objection that the appeal could not have been registered, is correct.
10. A Division Bench of the Patna High Court in Khetram Manoharlal's case (1975 Lab IC 274) (Pat), while considering the provisions of Section 30(1) and Section 8 (2) of the Workmen's Compensation Act, held that under a specific enactment (Workmen's Compensation Act), there is no right of appeal unless given by the Statute expressly and if there is no substantive right of appeal in such cases, then the right of appeal conferred by a special statutory provision must also be cribbed and confined to the conditions and limitations imposed for the purpose of maintaining an appeal. It was further observed,;--
' .... If the statute (Sections 30(1) and 8(2) of the Act (1923)) says that a right of appeal will be subject only to the compliance by the appellant of a technical formality, it will not be proper for the Courts of Law to sit in judgment over the wisdom of the Legislature and to hold that any such technical requirement must not be rigidly adhered to........'
11. In Khetram Manoharlal's case (1975 Lab IC 274) (Pat), Bihar Journals Ltd.'s case (AIR 1959 Pat 112) was noticed. Rule 9 of the Workmen's Compensation Rules, 1924, lays down that an employer depositing compensation in accordance with Sub-section (2) of Section 8 shall furnish therewith a statement in Form 'D' and shall be given a receipt in form 'g'. Section 8(3) of the Workmen's Compensation Act provides that the receipt of the Commissioner shall be a sufficient discharge in respect of any compensation deposited with him. In accordance with the aforesaid provision of the Workmen's Compensation Act, 1923 and Rule 9 of the Workmen's Compensation Rules, 1924, the argument that it would be rather hypertechnical to hold that even though the money had been deposited to the credit of the workman concerned in the Government treasury and a certificate of the Commissioner though not in Form E had been filed along with the memorandum of appeal, yet the appeal be held to be not maintainable merely for the non-compliance with Forms D and E mentioned above, was rejected. This case is, therefore, clearly distinguishable. In R. Sankaran's case (1977 Lab IC 1338) (Mad), Section 25F of the Industrial Disputes Act, 1947 was considered in the two inter-connected writ petitions. In that case, the retrenchment compensation was actually paid on January 23, 1970 at 4.15 p. m. by a cheque, it was after the close of banking hours. Though the retrenchment compensation was paid by a cheque on the same day when the retrenchment order was passed, but it was after the banking hours. After noticing three requirements of the valid retrenchment under Section 25F of the Industrial Disputes Act, the learned single Judge of the Madras High Court observed that in that case, undoubtedly the cheque was sent after the banking hours and, therefore, the workman was not in a position to encash the cheque on the same day on which the order of retrenchment was issued i. e. on June 23, 1970. In para 18 of the report, it is stated that,--
'......Mr. M. R. Narayanaswami fairly concedes there is no question of estoppel and the Labour Court in this regard has not correctly appreciated the argument of the management. What was contended was in so far as the cheque was encashed the next day, it would amount to waiver. I am unable to accept this argument of waiver. Where the Statute itself says it is a condition precedent, there can be no question of waiver.'
After noticing the relevant provisions of the other Acts and a decision of the Madras High Court, the learned Judge concluded that there was violation of Section 25F. R. Sankaran's case is of no avail as in that case, the question which cropped up for consideration was altogether different.
12. So far as Central Engineering Corporation's case (AIR 1960 Orissa 39) is concerned, it may be stated that after considering Section 30(1), third proviso of the Workmen's Compensation Act, 1923, the learned Judge observed that the proviso is mandatory and not merely directory. In that case, on behalf of the workman-respondent, a preliminary point as to the maintainability of the appeal was raised and the contention was that no certificate by the Commissioner to the effect that the employer-appellant had deposited with him the amount payable under the order appealed against having accompanied the memorandum of appeal as required by the third proviso to Section 30(1) of the Act, the appeal did not lie, for, the proviso, according to the learned counsel appearing for the workman-respondent was mandatory and not merely directory. After noticing the decision reported in B. P. Nandy's case (AIR 1954 Cal 453), the learned Judge carne to the conclusion that the appeal before him certainly placed the workman's right to compensation in jeopardy and, therefore, the law requires that security for the workman must be provided for by the deposit of the award amount. He, after following the aforesaid Calcutta decision, AIR 1954 Cal 453, held that the appeal was not maintainable. In the case before me, as stated above, the memorandum of appeal was accompanied by a certificate of the Authority in which it was clearly recited that the employer has deposited a sum by cheque and that there remained nothing outstanding against the direction issued by it in the case. The Central Engineering Corporation's case, AIR 1960 Orissa 39 in my opinion, is of no help to the learned counsel for the petitioner.
12A. Revision No. 244 of 1978 has, thus, no merit.
13. Now, I take S. B. Civil Revision No. 23S of 1978. The Authority, on the basis of the order Ex. P1 held that the petitioner was the employee of the employer. The learned District Judge, after examining the reasons given by the Authority, came to the conclusion that the finding given by the Authority in respect of issue No. 1 suffers from various infirmities. He, therefore, remanded the case to the Authority for deciding the question as to whether the petitioner was the employee of the employer after giving an opportunity to the parties for proving the documents in accordance with the provisions of the Evidence Act and also by permitting them to lead oral evidence. Learned counsel appearing for the employer did not dispute before me that the Authority could not determine the question as to whether the petitioner was the employee of the employer.
14. In connection with issue No. 1, the employee is required to establish that he was employed by the employer. According to Section 3 of the Act, every employer is responsible for the payment to persons employed by him of all wages required to be paid. Section 4 provides for fixing of wage periods and Section 5 deals with time of payment of Wages. Section 18 of the Act provides that only such provisions of the Code of Civil Procedure are applicable as relate to the taking of evidence and of enforcing the attendance of witnesses and compelling production of documents. Section 18 refers to the proceedings before the Authority appointed under the Act. The provisions of Rule 11 of the Payment of Wages (Procedure) Rules, 1937 read AS under,--
'11. Exercise of powers.-- In exercising the powers of a Civil Court conferred by Section 18, the Authority shall be guided in respect of procedure by the relevant orders of the first Schedule of the Code of Civil Procedure, 190S, with such alterations as the Authority may find necessary, not affecting their substance, for adapting them to the matter before him, and save where they conflict with the express provisions of the Art or these rules.'
A perusal of this rule shows that the Authority is to be guided in exercising the powers of a Civil Court conferred by Section 18 of the Act in respect of the procedure prescribed by the relevant Orders of the first Schedule of the Code of Civil Procedure with such alterations as the Authority may find necessary and which do not affect their substance for adopting them to the matters before it. If there is any conflict between the provisions of the Code of Civil Procedure and the express provisions of the Act or the Rules such provisions of the Code of Civil Procedure will not apply. The relevant provisions of the Code of Civil Procedure relating to (1) the recording of evidence are contained in Order XVIII and Order XIX, (2) summoning and enforcing the attendance of witnesses for the purpose of recording evidence are Sections 31 and 32 and Order XVI and (3) production of documents, Order XIII. Besides these, the provisions of Order XI, C- P. C. are also applicable to proceedings before the Authority as inspection is only step in aid of the final production of documents. A perusal of the order-sheets of the Authority shows that on various occasions, time was sought on behalf of the employee for getting the documents summoned and produced. The statement of the employee was partly recorded on May 6, 1976. On July 27, 1976, the employee gave his statement in writing to the Authority, This was an unusual procedure adopted by the Authority as it recorded the employee's statement on oath in part. Tereafter, part of the cross-examination was conducted on Febuary 22, 1977. Cross-examination of the employee was completed on May 29, 1977, On behalf of the employee, the statement of Shyamdus was recorded on June 22, 1977 and the statement of Kishanaram was recorded on August 4, J977. On that day, i. e. on August 4, .1977, the employee closed his evidence. The learned District Judge has observed that (1) the document Ex. P1 has not been proved, (2) the copies of the diaries have neither been proved nor exhibited and (3) the original diaries were not produced, though available. He has further recorded that the report of the Reconciliation Officer has neither been exhibited nor proved, In these circumstances, the documentary evidence produced by the employee could not form basis for deciding issue No. 1 as provisions of Order XIII, C. P. C. were not complied with. Apart from it; as stated above, the statement of the employee was partly recorded by the Authority and on July 27, 1976 the employee submitted his statement in writing which was in the circumstances of this case not in accordance with the provisions of Order XVIII, C. P. C. as the Authority had already recorded the employee's statement on oath in part. In these circumstances, in my opinion, the learned District Judge was right when he held that the proper procedure for recording of evidence and production and proof of documents was not followed by the Authority.
15. The Authority decided issue No. 2 on the basis of the finding given by it in respect of issue No. 1. The Authority was of the opinion that the employer has made illegal deductions from the wages of the employee. The Authority did not examine the evidence of the employee. The learned District Judge was of the opinion that in view of the statement in writing, dated July 27, 1976, it was necessary for the employee to show in what manner wages which were paid to him in advance, were utilised, wherein he admitted that wages used to be paid to him in advance. While deciding issue No. 2, the Authority ignored this aspect of the case and did not scrutinize the evidence led by the employee. In order to arrive at a correct finding in respect of issue No. 2, the direction has been rightly made by the learned Disfrict Judge to examine this aspect of the matter by giving a proper opportunity to the employee.
16. So far as the question of condonation of delay is concerned which forms the subject matter of issue No. 3, the Authority has merely recorded that the reasons which have been given by the employee for condoning the delay are taken as sufficient and in the inteiest of justice, delay in respect of the wages which are barred by time, is condoned. In Tulsiram's case (supra), after considering the provisions of Section 15(2)(3) and (4) and Sheo Frasad v. Addl. District Judge, Moradabud, AIR 1962 All 144; Divnl. Supdt. Northern Rly. Allahabad v. Hukumchand Jain, AIR 1967 All 459 and Divisional Personnel Officer, Northern Rly. v. Regional Labour Commissioner (Central) Jabalpur, 1965 Raj LW 210, it was held by me that it is open fo the Appellate Court (District Judge) while hearing on appeal under Section 17I of the Act to enter into a question whether the Authority was justified in condoning delay under Section 15(2) of the Act. I respectfully dissented from Hans Raj Octroi Moharrir, Municipal Committee, Sangrur v. Municipal Committee, Sangrur, (1973) 2 Serv LR 489 : (1974 Lab 1C 745) (Pun)), Prem Narain Amritlal Varma v. Divisional Traffic Manager, AIR 1954 Bom 78, and Payment of Wages Inspector MB Govt. v. Bramhodatta Bagrodia, AIR 1956 Madh B 153. Jagatnarayan, J. as he then was, in Divisional Personnel Officer's case (1965 Raj LW 210), observed,--
'Sufficient cause contemplated by the proviso is a cause sufficient in law and the sufficiency of the cause is to be decided not by the discretion of the Authority but by proper legal principles'.
In that case, the application was filed beyond the period of six months prescribed under S- 15 (2). An objection was taken that the applicant was not entitled to claim the deductions made during the period of six months immediately preceding the application. An issue was framed on the point by the Authority. He decided the issue in favour of the applicant without appending any reasons. It was held that the Authority acted improperly in not appending reasons in its order dated May 6, 1963. Following Sitaram v. M. N Nagrashna, AIR 1954 Bom 537, the learned judge took the view that the sufficient cause which has got to be established under the second proviso to Section 15(2) is not any cause which, in the opinion of the Authority, is sufficient. In the case before me, the Authority has not examined the sufficiency of cause under Section 15(2) in the light of the reasons mentioned in the application for condonation of delay and the evidence in support thereof. For condoning delay, reasons are necessary and such reasons are to be supported by evidence. Under Section 15(2) proviso, the application of the employee, beyond a period of 12 months can be admitted, when the employee satisfies the Authority that he had sufficient cause for not making the application within twelve months from the date on which the payment of his wages was due to be made, or from the date on which the deductions from the wages were made. While determining issue No. 3, the employee is only required to show sufficient cause for not presenting the application for wages for the period from August 23, 1970 to June 30, 1971. The learned District Judge did not clarify this when he examined the finding on issue No. 3. The employee will be required to show sufficient cause for not presenting the application in time in respect of the period from August 23, 1970 to June 30, 1071.
17. For the reasons mentioned above, the learned District Judge was right in setting aside the findings of the Authority in regard to the issues Nos. 1, 2 and 3, and remanding the case to it for deciding the aforesaid issues afresh on merits after giving fresh opportunity to the parties to lead evidence. I do not agree with the learned counsel for the petitioner-employee that in doing so, the learned District Judge has either exercised his jurisdiction illegally or with material irregularity. It is hoped that the Authority will dispose of the employee's application under Section 15(2) of the Act expeditiously in the light of the directions made by the learned District Judge and keeping in view the observations made hereinabove,
18. No case for interference with the orders under revisions is made out.
19. The result is that both the revisions are dismissed. In the circumstances of the case, the parties are left to bear their own costs.