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Divisional Personnel Officer Vs. Mahavir Prasad - Court Judgment

LegalCrystal Citation
SubjectService;Limitation
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 129 of 1972
Judge
Reported in1974WLN206
AppellantDivisional Personnel Officer
RespondentMahavir Prasad
Cases ReferredMadan Kumar v. Surendra Kumar
Excerpt:
.....code--order 2 rule 2--suit for declaration and consequential relief of arrears of salary--claim for wages prior to 28.9.55 is barred.;it it true that when the claim is for wages simpliciter then that could be only made before the payment of wages authority under section 22 of the act but that proposition does not hold good when the suit is filed for declaration and consequential relief of arrears of salary are claimed. i am, therefore, of the view that the claim for wages of the non-applicant so far as they relate to the period prior to 28-9-1956 is barred by the provisions of order 2 rule 2 cpc. - - observed that because the appellate court bad held employee's dismissal was justified and valid it was only when the second appeal was allowed on january 9, 1962 that the employee..........the railway administration by a letter dated 18.11.1964 informed the non-applicant that has claim of wages from the period earlier to july 1959 was under dispute as the non-applicant worked as casual labour during that period which fact will have to be determined later on. dissatisfied, the non-applicant moved an application under section 15 of the payment of wages act, hereinafter called the act on 1-4-1965 for the recovery of wages amounting to rs. 17,099/- alleging that the same were illegally deducted and also for the compensation to the tune of ten times of the deducted wages. yet another application was moved by the non-applicant mahavirprasad on 24 4-1965 wherein he claimed more wages in the sum of rs. 3244/- and also for compensation. both the applications were ex facie.....
Judgment:

M.L. Joshi, J.

1. This revision application is directed against the judgment of the learned Additional District Judge, Ganganager dated 14 8-1971 whereby he affirmed the direction given by the S.D.M. Karanpur (the Authority under the Payment of Wages Act) on 3-7-1967.

2. The non-applicant Mahavir Prasad an employee of Northern Railway was serving as head booking clerk at the relevant time. He came to be removed by the then D.T.S. Delhi with effect from 1.8 1949. He felt aggrieved by the order of removal and consequently filed a suit in the court of Sub-Judge Gurgaon seeking the declaration that the order of removal was illegal and void and also for Rs. 300/- only in respect of wages. This suit was decreed by the Sub Judge Gurgaon on 24.3.1958. The Railway Administration went in appeal but the Additional District Judge Ganganager rejected the same on 21.7.1959. The non-applicant made several representations to the concerning authorities for payment of his wages from 1-8-1949 to 7-11-1959. The Railway Administration by a letter dated 18.11.1964 informed the non-applicant that has claim of wages from the period earlier to July 1959 was under dispute as the non-applicant worked as casual labour during that period which fact will have to be determined later on. Dissatisfied, the non-applicant moved an application under Section 15 of the Payment of Wages Act, hereinafter called the Act on 1-4-1965 for the recovery of wages amounting to Rs. 17,099/- alleging that the same were illegally deducted and also for the compensation to the tune of ten times of the deducted wages. Yet another application was moved by the non-applicant Mahavirprasad on 24 4-1965 wherein he claimed more wages in the sum of Rs. 3244/- and also for compensation. Both the applications were ex facie barred by the time and therefore applications for condonation of delay were made along with the claim applications.

3. There applications were resisted by the Railway Administration mainly on two grounds namely (I) that the applications of the non applicant were barred by time; (II) that the claim of wages relating to the period upto 28 9 1965 was barred by the provisions of Order 2 Rule 2 C.P.C. as the same was not included in full in the previous suit and only Rs. 300/- were claimed and decreed in the previous suit, more particularly when that amount was accepted by the non-applicant.

4. The Payment of Wages Authority turned down both the pleas of the applicant and decreed the claim of the non-applicant in full. The matter was taken by way of appeal before the District judge, Ganganagar which ultimately came to be decided by the Additional District Judge Ganganagar who by the impugned judgment upheld the direction of the Payment of Wages Authority and confirmed the claim of the non-applicant. Being aggrieved the applicant has come up in this Court in revision.

5. It has been firstly contended by Mr L.R. Bhansali that the impugned order suffers from material irregularity and illegality in exercise of jurisdiction as the application under Section 15 of the Act was ex facie barred by time. According to the leraned Counsel, in order to avail the proviso (2) of Section 15 of the Act it was incumbent upon the non-applicant to explain each day's delay for the entire period which has not been done in this case. The argument of the leraned Counsel is that the petitioner was removed from service on 1.8 1949 end as the order of dismissal was challenged by the non-applicant as void and has actually been adjudged void by the decree of the Civil Court Gurgaon the order of dismissal was non est and did not prevent the wages becoming due from month to month. It is contended that the cause of action in such a case for the recovery of wages accrued from month to month and not from the date of the reinstatement. It was pointed out that the dismissal older was of 1st August, 1949. The applications for recovery of wages Under Section 15 of the Act were filed on 1.4.1965 and 24.6.1965 respectively which were obviously beyond the period of one year.

6. The first question which at once arises for consideration is whether the wages accrued from month to month as contended by the leraned Counsel for the petitioner. Leraned Counsel has relied upon Pahilaj Raj v. The Works Manager (Carriage) W. Rly. Ajmer 1971 WLN 530, State of Raj v. Raganlal and Anr. 1969 WLN 339, Devi Lal v. Chander Singh 1972 RLW 32, State of Rajasthan v. Shri Sunderdas 1972 WLN 427, and Jaichand v. Union of India 1969 SLR 872. On the other side Mr. Ganpat Singh has relied upon Divisional Suprintendent N. Rly. Allhd v. Puskardutt 1967 (14) FLR 204 and D.R. Jerry v. Union of India : (1974)ILLJ164SC . It may be stated here that the point similar to the one countenancing me came up before the Supreme Court in Divisional Superintendent N. Rly Allhd. v. Puskardutt Sharms 1967 (14) FLR 204. In that case the trial court had declared the removal of the servant void The appellate court, however, dismissed the suit on August 14, 1952 The matter was again taken by second appeal and the second appellate court held that the respondent's dismissal was invalid and void. It was in context of these facts that their Lordships of the Supreme Court. Observed that because the appellate court bad held employee's dismissal was justified and valid it was only when the second appeal was allowed on January 9, 1962 that the employee had a cause of action and therefore the application under Section 15 of the Act was within time. Again in D R. Jerry v. Union of India, their Lordships laid down the rule that in a case where the employee has been dismissed and subsequently his dismissal order has been declared void then ordinarily the cause of action will synchronise with the act of reinstatement and it may be postponed to the later date if the reinstatement order itself expressly states that the decision with regard to the wages to be paid for a particular period will be taken later on Their Lordships distinguished Jaichand v. Union of India 1969 SLR 872 and observed that the cause of action in a case like the present one will accrue from the date of reinstatement and not from month to month as contended by the leraned Counsel It is true that Chhangani, J in Pahilaj Raj v. The Works Manager, W. Rly Ajmer 1971 WLN 530 cited by the leraned Counsel has taken the view that terminus a quo for the limitation for an application under Section 15 of the Act will be from month to month as and when wages accrue due but in view of the authoritative pronoun cement of their Lordships in D. R Jerry v. Union of India : (1974)ILLJ164SC the above referred to case is no longer as a good law and consequently there is no escape from the conclusion that the cause of action in a case like the present would arise at the earliest from the date of reinstatement and not from month to month. The cases State of Rajasthan v. Ratan Lal and Anr. 1969 WLN 339 Devilal v. Chander Singh 1972 RLW 32 and State of Raj v. Shri Sundersingh (4) are clearly distinguishable as they relate to the period of limitation in regard to a suit for the recovery of the wages salary, which of course is governed by Article 102 of the Limitation Act and the terminus a quo of limitation for such cases is from month to month when the wages accrue due as held in those cases and Supreme Court cases in Devendra Pratap v. State of U.P. : (1962)ILLJ266SC and Jaichand Sawhney v. Union of India (11) SCJ 288.

7. Leraned Counsel for the petitioner then centended that even if the terminus a quo is taken from the date of reinstatement even then the application is barred by time as there is no legal evidence to explain the delay for the entire period that is from 8-11-1959 to the date of filing the application. In order to examine this contention it will be appropriate to refer here to the finding of the learned District Judge The learned District Judge has referred to the statement of non-applicant wherein he has stated that he had submitted various representations and the Railway Administration itself had admitted the receipt of letters dated 22.6.1961 (Ex D. 2) and 31st of August, 1961; that he had met the Divisional Personnel Officer Bikarier & Labour Inspector and that inspite of his continuous correspondence and personal interview with the Divisional Authority Bikaner no reply was received so far by the non applicant. The learned District Judge has further referred to the copies of the letters produced by the non applicant (Ex P.7) dated 21-8-1962, (Ex P 8) dated 3-5-62 and (Ex.P.9) dated 15-1-1962, (Ex P 10) dated 11-11-1961 and (Ex P.11) dated 3-1-1962, which show that he bad been pursuing the matter of the payment of his wages. On these facts the learned District Judge concluded that 'the employee was knocking the doors of higher authorities for seeking redress regarding the payment of his wages'. The learned District judge has further proceeded to observe 'Further in my opinion, considering the facts and circumstances of the case the employee was under a bonafide belief that the Railway Authorities will respect the orders of the court and will pay his wages and it was only on the receipt of the communication dated 18-11-1964 that the Railway Administration took up the stand that the claim of the non-applicant was barred by time. It was further stated in the office order (Ex.P.5) dated 18-11-1961 that the payment after the period from July 1959 to 7-11-1959 is under dispute as he worked as casual labour for some time and will be examined later on and from this office order it would appear that the Railway was examining the case of the applicant for the payment of wages and in my opinion the applicant was expecting that he would be paid his wages,' In this view of the matter on the materials before him the learned District Judge held that there was sufficient cause in law for the condonation of the delay and the delay in the present case deserved to be condoned as the appellant employee was prevented by sufficient cause. Mr L R.Bhansali has assailed this finding of fact of the learned District Judge on the ground that the question of limitation in the first place is the question relating to the jurisdiction and the facts constituting sufficient cause are collateral facts for assuming jurisdiction and could be gone into afresh by this Court. I am afraid I am unable to agree with this contention. The question whether particular facts constitute sufficient cause is not a question relating to jurisdiction. The proviso (2) of Section 15 empowers the Court to admit the application for condonation of the delay even when it is presented after the expiry of the specified period of limitation, when the authority concerned is satisfied that the applicant had sufficient cause for the presenting it within time. The question whether there was a sufficient cause is exclusively within the jurisdiction of the authority and the authority could decide it rightly or wrongly. I am fortified in this view of mine by ML & B Corporation v. Bhutnath : [1964]3SCR495 . In M L & B Corporation v. Bhutnath : [1964]3SCR495 the applicant had applied for setting aside the abatement beyond time but prayed for condonation on the ground that there was sufficient cause for not bringing the legal representatives of the deceased in due time. Explanation for delay was accepted by the Subordinate Court but the High Court upset the finding of the subordinate Court. The Supreme Court held that it was not open to the High Court to question the findings of fact recorded by the Subordinate Court in the exercise of the revisional jurisdiction. It will be profitable to extract here the relevant observations of their Lordships on this point which read as under:-

Section 3 of the Limitation Act enjoins a court to dismiss any suit instituted, appeal preferred and application made after the period of limitation prescribed therefor in schedule I irrespective of the fact whether the opponent had set up the plea of limitation or not. It is the duty of the court not to proceed with the application if it is made beyond the period of limitation prescribed. The court had no choice and if in construing the necessary provisions of the Limitation Act or in determining which provision of the Limitation Act applied the subordinate court comes to an erroneous decision it is open to the court in revision to interfere with that conclusion as that conclusion led the court to assume or not to assume the jurisdiction to proceed with the determination of that matter. Section 5 of the Limitation Act on the other hand empowers the court to admit an application to which its provisions are made applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient cause for not presenting it within time. The court, therefore, had jurisdiction to determine whether there was a sufficient cause for the appellant in making the application for setting aside of the abatement of the suit in time and if so satisfied admit it.

From the above observations it will be obvious that the question of limitation has two facets. Where the applicability of a particular Article of the Limitation Act is clear and there is no point for the prayer of condoning the delay it will be a question relating to jurisdiction If, however, the point is as to whether there was sufficient cause that of course cannot be taken to be a question relating to the exercise of jurisdiction as the court concerned has jurisdiction to determine such question and it bad equally jurisdiction to decide it rightly or wrongly. Divl. Supdt N. Rly Alld. v. Puskardutt Sharma 1967 (14) FLR 204 is directly in point. In that case the Supreme Court has observed that the jurisdiction conferred on the Payment of Wages Authority by the second proviso to Section 15(2) of the Act clearly shows that if the authority is satisfied that there was sufficient cause for the delay the decision of the authority in a discretionary matter could not have been questioned before the High Court in its revisional jurisdiction. To the same effect is the view taken in Lonand Gram Panchayat v. Ramgiri : (1967)IILLJ870SC and Civil Appeal No 1830 of 1967 D P.O v. Ratan Singh decided on March 19, 1968 by the Supreme Court of India. In D.P.C. v. Ratan Singh (supra) the Additional District Judge had not accepted the explanation for the delay by the emplovee and, therefore, held that sufficient cause had not been made cut. That order was challenged before the High Court & the High Court interfered with the finding of fact of the Addl, District Judge. The High Court's judgment was challenged before the Supreme Court & while dealing with this aspect of the matter their lordships of the Supreme-Court observed that the finding of the Additional District Judge was a finding of fact based on material before him and the High Court could not interfere in exercise of its revisional power under Section 115 of the Code of Civil Procedure. It has of course been observed in this case that whenever a question of condonation of delay arises the person seeking condonation has to explain every day's delay and that principle applies equally to an application under Section 5 of the Limitation Act as well as to the applicability of the proviso to Section 15(2) of the Act. The conclusion of this Court in Works Manager Western Railway v. Gopal Chand (S B Civil Revision No 590 of 1970, decided on 27-7-72 also propounds the same Rule. Jagat Narayan, J. while dealing with the powers of the High Court on the question of finding on the sufficient cause observed that if the appellate court was satisfied that there was sufficient cause for the delay in filing the application it had jurisdiction to issue a direction to the Works Manager and the question of sufficient cause for delay cannot be gone into in revision by the High Court. So also is the dictum laid down in Imperial Tobacco Co v. Asstt Labour Commr. Patna AIR 1967 Pat 154 From the foregoing discussion it will appear that it is well settled that each day's delay for the entire period has of course to be explained by the employee It is also equally well settled that the question as to whether there is a sufficient cause is a matter of discretion with the court & further that the court had jurisdiction to determine such matter. Mr L.R. Bhansali's contention is that the finding of the subordinate court stands vitiated as there is no evidence to sustain such finding. The learned District judge as stated earlier has referred to various; documents and non-applicant's deposition & took note of the circumstances & has after going through alt the materials before him has held that on the materials before him he was satisfied that the employee had made out a case for condonation of delay. This finding cannot be said to be based on no evidence or perverse. There were materials before the learned District Judge which according to his opinion were sufficient.

8 Mr LR Bhansali has strenuously argued that the Labour Inspector by his letter Ex. P. 7 dated 21.8.1962 had intimated the non applicant that no legal action was possible in the matter. He has further argued that even the non-applicant himself by his letter dated 31-8-1961 (Ex D. 3) has given a final ultimatum that if his case is not finalised within 45 days he will take recourse to the courts of law for vindication of his claim & that there is no evidence for the subsequent period for explaining the delay. As stated ealier both the authorities below had on the materials before them in the shape of documents subsequent to the above letters besides the statement of Shri Mahavir Prasad and other circumstances have taken them sufficient for explaining the delay and such finding of fact cannot be interfered in revision, as held in Hindustan Aeronautic v. Ajit Prasad : (1972)ILLJ170SC wherein the Supreme Court has categorically laid down that the High Court has no jurisdiction to interfere with the finding of fact of the appellate court It has further been observed by the Supreme Court that the order of the first appellate court may be right or wrong, may be in accordance with law or may not be in accordance with law but one thing is clear that it had jurisdiction to make that order, and, the High Court could not have invoked the jurisdiction under Section 115 of the Code of Civil Procedure. At the risk of repetition I may say that both the Subordinate Courts had jurisdiction to determine the question as to whether there was sufficient cause and they have determined it in favour of the non-applicant and they had jurisdiction to decide it rightly or wrongly and such a decision cannot be interfered with in revision.

9. The leraned Counsel then contended that there was no finding relating to the period after 18 11 64. A bare perusal of the judgment of the appellate court will show that the learned Judge was alive to the proposition of law and he has observed that on the materials before him he was satisfied that there was sufficient cause for the condonation of the delay under Section 15(2) & it was on that finding of the fact that the learned District Judge held the claim of the non-applicant within time. I am therefore not at all impressed by this contention and hold that no ground has been made out for interference in revision.

10. It was next contended that so far as the claim of wages upto the date of the institution of the suit i. e. upto 28.9.1955 is concerned it is barred by the provisions of Order 2 Rule 2 CPC The argument of the leraned Counsel in this behalf is that when the non-applicant filed the suit for declaration and recovery of Rs. 300/- it was open to him to claim the entire arrears of wages which have fallen due upto that time, as the cause of action for declaration and the claim for the arrears of wages was one and the same. This having not been done, submitted the leraned Counsel, it is now no more open to the non-applicant to claim for the wages antecedent to the institution of the suit. Mr. Ganpatsingh on the other side contended that the non applicant could not have claimed the wages unless and until order of dismissal was declared void as the cause of action will only accrue to him in regard to the deducted wages after the order has been declared void. In this regard leraned Counsel has invited my attention to D R. Jerry v. Union of India : (1974)ILLJ164SC . I have given my careful consideration to this submission but I am of the opinion that this case is clearly distinguishable. In this case their Lordships of the Supreme Court were considering the starting point of limitation for the purpose of application under Section 15(2) of the Act and in that connection it was observed that so far as claim for wages under Section 15(2) of the Act was concerned that could only be filed after the order of dismissal has been declared void and not otherwise. But that dictum of their Lordships does not apply to the case where a suit has been filed for declaration that the order of dismissal was void along with a fraction of the amount of wages. Indeed in such a case the plaintiff was under an obligation to claim the arrears of wages upto the date of the suit. In this connection I may refer to P.J. Lartius v. Superintendent 1965 ALJ 292. In that case suit was filed for declaring the order for dismissal to be void but no arrears of the salary from the date of dismissal to the date of suit were claimed. The dismissal order was declared void and therefore application under Section 15 of the Act was filed thereafter The plea was raised that the suit for arrears of salary antecedent to the period of the institution of suit was barred by the provisions of Order 2 Rule 2 CPC. It was held that it was necessary for the plaintiff to claim in the same suit all the reliefs arising out of the same cause of action unless he postponed claiming the relief with the leave of the court. Their Lordships further held that the suit for the recovery of arrears of salary as a consequential relief in a suit for declaration was not barred by Section 22 of the Act as upto that stage the arrears of salary could not have been recovered by an application under Section 15 of the Act on the basis of deducted wages. But when the arrears of salary could be claimed in previous suit but were not claimed it could Dot equally be recovered under Section 15 of the Act in regard to such wages as the same would be barred under the general principle contained in Order 2 Rule 2 CPC To the same effect is the view taken in Union of India v. Jagannath : (1968)IILLJ792MP In Works Manager (Carriage) Western Railway v. Smt Kulwanti Devi (S B. Civil Revision No. 371 of 1968 decided on 10.1.72) Hon'ble Jagat Narayan, J. has held that a claim for wages could have been made in the suit for declaration and if it had not been done then the claim had become barred under Order 2 Rule 2 CPC. This authority appears to be in conformity with the dictum laid down in State of Bihar v. Abdul Majid : (1954)IILLJ678SC where it has been held that the employee could lay claim for the arrears of salary along with the declaration suit as consequential relief. Mr. Ganpat Singh pointed out that Lodha, J in Madan Kumar v. Surendra Kumar 1971 RLW 133 had taken the view that the Payment of Wages Authority had exclusive jurisdiction to determine wages by virtue of Section 22 of the Act and as a natural corollary suit for wages could not have been filed by the non-applicant. In my view the authority is clearly distinguishable as it relates to a case of the recovery of wages simpliciter. It is true that when the claim is for wages simpliciter then that could be only made before the Payment of Wages Authority under Section 22 of the Act. But that proposition does not hold good when the suit is filed for declaration and consequential relief of arrears of salary are claimed. I am, therefore, of the view that the claim for wages of the non-applicant so far as they relate to the period prior to 28.9.1955 is barred by the provisions of Order 2 Rule 2 CPC and both the courts below had usurped the jurisdiction to entertain a claim which was barred by the provisions of Order 2 Rule 2 CPC, and have thus exercised jurisdiction with material irregularity or illegality.

11. In the result this revision application is allowed in part. Mahavir Prasad non-applicant shall be entitled to the wages from 29.9 1955 to 7.11.1959 i. e. the date of reinstatement. He shall also be entitled to the emoluments i. e. increments etc. which might have fallen due in respect, of the said period. The claim for the period from 1.8.1949 to 28.9.1965 is however disallowed. There shall be no order as to costs.


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