K. P. Mushran vs B. C. Patil and Anr

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1951 Supreme(Bom) 113

IN THE HIGH COURT OF BOMBAY
Chagla, C.J. and Bhagwati N.H. , J.
Appellants: K.P. Mushran
Vs.
Respondent: B.C. Patil and Anr.
O.C.J. Misc. Appln. No. 179 of 1951 with Misc. Appln. No. 178 of 1951
Decided On: 24.08.1951
Counsels:
For Appellant/Petitioner/Plaintiff: N.A. Palkhiwalla, Adv.
For Respondents/Defendant: M.P. Amin, Adv. General and D. Latifi, Adv.

Headnote:A.Suspension - suspended for detained under Preventive Detention Act - employees of railway - no misconduct yet on compulsory leave - authority under Section 15 Payment of Wages Act directed full wages - meaning and effect of suspension - contention: ordinarily during suspension, the contract of employment is suspended during the period of suspension and the obligations and rights of the parties under the contract are no longer in operation; during this period the railway authorities ceased to be an employer and the employee ceased to be an employee - this did not happen in the present - employee was not allowed to leave headquarters and report periodically - held, it is clear on the facts of this case that respondent No. 2 continued to remain the servant of the employer and the employer had the power, and in fact and indeed exercised the power of issuing directions and orders to his employee. ( para 4)
       B.Suspension - wages during suspension - employee was paid subsistence allowance which was half the wages - contention: employer employee relation not subsisting, no work allotted, contract of employment not subsisting hence no wages - employee asked to report, not to leave headquarter, pay scale not altered - held, all these factors are present in the present case ; and, therefore, if any remuneration is payable under the terms of the contract, it is "wages" for the purpose of the Payment of Wages Act - further held, the employee was entitled to wages during the period of suspension; and, if the employer made a deduction from the wages, it was an unauthorised deduction, and the Authority was competent to order the employer to pay the full amount of wages during the period of suspension. ( para 5 and 6)
       C.Jurisdiction - suspension - dispute about quantum of wages - jurisdiction of authority under Section 9 Payment of Wages Act - deductions - delay in payment - non payment - held, if whole amount not paid it would be still a case of unjustified deduction - in either case the authority would have jurisdiction to decide the matter. ( para 7)
       D.Writ of certiorari - authority under Payment of Wages Act - contention of error of law - If a section of a statute is clearly misconstrued, or if a provision of the law is overlooked or not applied, and that appears from the judgment of the lower Court itself, then the superior Court may interfere by a writ of certiorari. But that certainly is not the case here - jurisdiction exercised properly - petitions dismissed with cost. ( para 9)

JUDGMENT - Chagla, C.J.

[1] These two petitions challenge certain orders passed by the authority under the Payment of Wages Act, and the facts which I am about to state do cot redound very much to the credit of the railway authorities who are the employers.

[2] Respondent 2, who is the employee, was detained under the Preventive Detention Act on 19-2-1949, and the railway authorities passed an order on 23-2-1919, suspending respondent 2 from service. On 1.6.1949, respondents was released from detention, and the period of suspension ended on l5-1-1950. Under certain rules, the employee was compelled to go on leave from 16-1-1950 to 11.6.1950, on full pay, from 12.6.1950, to 7-10-1950, on half pay, and from 8-10-1950 without any pay at all. Even to day this employee is on compulsory leave and no pay is being given to him. He has not been charged with having committed any act which is contrary to the rules of service, and no result of any departmental enquiry if a departmental enquiry has indeed been held has been communicated to him. The employee went before the Authority under the Payment of Wages Act claiming that ho was entitled to his full wages throughout the period as he was in the service of the railway authorities. With regard to the suspension period, he was paid a certain allowance but which is described as a subsistence allowance but which is less than the wages to which he was entitled and he claimed for that period full wages. With regard to the period from 16-4-1950 to 11-6-1950, he was given lull pay, and no claim was made by the employee with regard to that period. Hut from 12-6-1950 to 7-8-1950, he was given only half his wages, and he made a claim for the remaining half; and from 8-10-1950, he claimed the full wages to which be was entitled. The Authority under the Payment of Wages Act ordered the railway authorities to pay to the employee his full wages without any deduction.

[3] Now, we have had occasion to consider the general provisions of the Payment of Wages Act in Sarin v. Patil, 63 Bom. L.R. 674. But it would perhaps be necessary again to draw attention to some of the important provisions of the Act. The scheme of the Act is, to compel employers, who have employed certain persons drawing certain wages to make prompt and full payment of the wages to which these employees are entitled. The only deductions which an employer is entitled to mate from the wages of his employee are the deductions referred to in Section 7 and elaborated in Sections 8 to 13, because Section 7 itself is mandatory in its terms and states that, notwithstanding the provisions of Sub-section (a) of Section 47, Railways Act, 1690, the wages of an employed person shall be paid to him without deductions of any kind except those authorised by or under this Act. Now, Sub-section (a) of Section 47, Railways Act authorised the railway authorities to punish an employee committing a breach of any of the rules with a fine which may extend to any sum not exceeding Rs. 60 and in the case of a breach of certain specific rules the power was given to the authorities to forfeit a-railway servants pay not exceeding one months pay. Now, the only power which the employer has under the Payment of Wages Act to impose a fine is the power given expressly under Section 8 Therefore, the only fine that the employer can impose is the fine specified in Section 8 of the Act. Further, under Section 241, Sub clause (2) of the Government of India Act, 1935, the conditions of service of persons serving His Majesty in a civil capacity in India shall, subject to the provisions of this section, be such as may he prescribed by rules made by the various authorities mentioned in that sub-section, But there is a proviso to this section which is contained in Sub-section (4), and that provides that, notwithstanding anything in this section, but subject to any other provision o£ this Act, Acts of the appropriate Legislature in India may regulate the conditions of service of pers

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