1954 Supreme(Bom) 36

IN THE HIGH COURT OF BOMBAY
M.C. Chagla and Tendolkar, JJ.
Appellants: C.S. Lal (Central Railway)
Vs.
Respondent: Shaik Badsha
Appeal from Original Civil - O.C.J. Appeal No. 2 of 1954 - Miscellaneous No. 305 of 1953
Decided On: 09.03.1954

The right of appeal under S. 17 of the Payment of Wages Act, 1936 is not limited to cases where the authority gives a direction to the employer to pay an amount to the employed person. The right of appeal also arises if the authority refuses to give a direction on the merits of the application.

Headnote:

PAYMENT OF WAGES ACT, 1936 - S. 15(1), 15(2), 15(3), 17 - JURISDICTION - EMPLOYEES OPTING TO SERVE IN PAKISTAN PROVISIONALLY - FINAL OPTION TO SERVE IN INDIA - ABSORPTION IN SERVICE - CLAIM FOR WAGES DURING INTERREGNUM - AUTHORITY UNDER THE ACT - JURISDICTION TO ENTERTAIN APPLICATION - RIGHT OF APPEAL - WRIT OF CERTIORARI.

Fact of the Case:

The petitioners, low-paid employees in the Parel Workshops of the Central Railway, made applications for refund of certain illegal deductions alleged to have been made in their wages by the railway authorities. A large number of applications of the same nature were preferred before the authority constituted under the Payment of Wages Act, 1936, who dismissed them on a demurrer that he had no jurisdiction to entertain the same. The petitioners filed a petition under Art. 226 of the Constitution for a writ of certiorari to quash the order of the authority and a writ of mandamus directing him to hear and determine the applications on merits.

Finding of the Court:

The Court held that the authority under the Payment of Wages Act had jurisdiction to entertain the applications preferred by the petitioners and his order dismissing the applications on the ground of want of jurisdiction was an erroneous order. The Court further held that the petitioners had no right of appeal under S. 17 of the Act as the authority had refused to assume jurisdiction and refused to deal with the respondents' application on merits.

Issues: 1. Whether the authority under the Payment of Wages Act had jurisdiction to entertain the applications preferred by the petitioners? 2. Whether the petitioners had a right of appeal under S. 17 of the Act?

Ratio Decidendi: 1. The jurisdiction under which the respondents claim the wages is, in our opinion, capable only of one construction. The notification gives the option to the employees of the railway company of serving in the future Pakistan State or in the rest of India, and it provides that option should be exercised before 30 June 1947. It then goes on to say: "Employees who are unable to make up their minds finally within this period, should fill in the form provisionally, as a further opportunity will be afforded to them to make a final choice within six months from the date of transfer of power." And Clause 2 of the notification provides: "It should be clearly understood that the existing terms and conditions of service are guaranteed by the representatives of both the future Governments and that a provisional choice now exercised will not in any way prejudice the employees seniority or other conditions of service." Now, it is not disputed that in the answer to the questionnaire which was submitted to these respondents they did not finally opt for Pakistan but their choice was provisional and they ultimately decided to come to India and serve the railway company in India. The first question that we have to consider is, what was the position of these respondents during the period they were in Pakistan ? Did they cease to be in the service of the railway company or their rights as employees were merely suspended during that interregnum ? It is clear from the fact that the railway company guaranteed to these employees their seniority and other conditions of serving, that the respondents did not cease to be in the service of the railway company during the period when a right was given to them to think over their own position and ultimately decide. The relationship of employer and employee did not cease, that relationship was merely suspended, and as soon as the option was exercised by the respondents, the suspension came to an end and the employees became entitled to all the conditions and rights of service with the railway company. It is true that the option was unilateral, but that was the whole object of the notification. Once that unilateral option was exercised by the employee, it was not open to the employer to say : "Although I gave you the option, although I guaranteed you your conditions of service, now that you have exercised, that I will not take you in my service or I will not pay you the wages although you are ready and willing to serve." That is exactly the attitude taken up by the railway company. It is not suggested that the respondents were not ready and willing to render services from 10 February, 1948. The attitude taken up by the railway company is that although the respondents were ready and willing, it was left to their own discretion when they should employ them and from what date they should pay for their services. If this attitude is justified, then the assurance given to the respondents was meaningless and was not worth the paper on which it was given. 2. Section 17 of the Act confers a right of appeal against a direction made under Sub-section (3) or Sub-section (4) of S. 15, and the right is given to the employer, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees, and it is given to an employee if the total amount of wages claimed to have been withheld from him exceeds fifty rupees. Therefore, the right of appeal is against a direction whether it is made under Sub-section (4) of S. 15. In this case we are no concerned with Sub-section (4) of S. 15 and the only question on this aspect of the case that arises for our determination is whether the order made by the authority was a direction under Sub-section (3) of S. 15. Turning to S. 15, Sub-section (1) deals with the jurisdiction of the authority to be appointed and his authority is to deal with all claims arising out of deductions from the wages, or delay in payment of the wages, of persons employed or paid in the area mentioned in that sub-section. Then Sub-section (2) gives the right to an employed person to make an application where a deduction has been made from his wages, or the payment of wages has been delayed. Then the first proviso on Sub-section (2) provides for the period of limitation within which the application is to be made, and the second proviso gives the power to the authority to admit an application after the period of limitation. Then comes Sub-section (3), and the opening words of that sub-section are "When any application under Sub-section (2) is entertained," and then the sub-section goes on to provide how the application is to be heard by the authority, and the concluding words are : "the authority may direct the refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and exceeding ten rupees in the latter." The contention of Mr. Baptista is that after the delay had been condoned by the authority, the application was entertained, and the order made by the authority is a direction under Sub-section (3) of S. 15 and that the employee is not entitled to wages, and that direction is subject to appeal under S. 17. We think Mr. Baptista is right on the authorities that the right of appeal which is conferred is not limited to a case where the authority gives a direction to the employer to pay an amount to the employed person. The with of appeal would also arise if the authority refuses to give a direction in the sense that he holds on the merits of the application that the employee is not entitled to any amount, in other words, he dismisses the application of the employee after considering the merits of his case. But what is really urged by Mr. Baptista is that even when the authority holds that the employee is not entitled to any relief, not on the ground that he has no case on merits, but on the ground that he has no jurisdiction to entertain the application, it amounts to a refusal to give a direction which is subject to appeal under S. 17. We are unable to accept that contention.

Final Decision: The appeal was dismissed with costs.