( 1 ) DOES a worker who is otherwise entitled to the protection of Payment of Wages Act forfeit the protection of the Act if he works overtime and claims overtime Wages in case his contractual wages along with the claim for overtime exceed the statutory limit and will the Act cease to apply to him in that event ? That is the question which has climbed to the top in this petition under Article 227 of the Constitution of India invoked by a Boiler Attendant who was attending to the boiler installed in a factory belonging to the respondent at Jamnagar known as Bajrang Mills and Fertiliser Co. during all the three shifts every day. He has challenged the impugned order passed by the learned Assistant Judge of Jamnagar exercising appellate powers under sec. 17 of the Payment of Wages Act of 1936 hereafter called the Act where by the learned Assistant Judge has set aside the award for Rs. 14850. 00 made by the Payment of Wages Authority in favour of the petitioner and rejected the application made by the petitioner in toto. The learned appellate Judge has rejected the application of the petitioner inter alia on the ground as regards the applicability of the Act itself though such a ground was not urged before the Payment of Wages Authority in the initial proceedings at any time and even though it involved a decision on a mixed question of facts and law. The view taken by the learned appellate Judge is that the Payment of Wages Act does not apply to the petitioner in view of sec. 1 (6) of the Act which provides that nothing in the Act shall apply to wages payable in respect of a wage-period which over such wage-period average four hundred rupees a month or more. As observed earlier no such contention was urged on behalf of the respondent-employer before the Authority in the course of the original proceedings. Whether or not the wages of the petitioner for the relevant wage-period would average four hundred rupees a month or more is a question of fact depending on the wages earned by the workman concerned. Unless a contention is pleaded in the original proceeding and a pointed issue is raised it would not be necessary for the employee to lead evidence in order to establish that his wages for the wage-period in question did not exceed four hundred rupees at the material time. It was therefore not open to the appellate Judge to proceed to decide this mixed question of facts and law for the first time when the attention of the parties was not focussed on this aspect and when the employer had not raised any such plea in the original proceedings.

( 2 ) BESIDES the learned appellate Judge has misinterpreted sec. 1 (6) of the Act and has determined the issue against the petitioner on the basis of a basic misconception. The learned appellate Judge has proceeded on the premise that the expression wages occurring in sub-sec. (6) of sec. 1 of the Act would include overtime wages in respect of the period to which the complaint regarding non-payment or delayed payment related. The relevant provision as it then stood deserves to be quoted:1 Nothing in this Act shall apply to wages payable in respect of a wage-period which over such wage-period average four hundred rupees a month or more. In order to understand the implication of the expression wage-period sec. 4 (1) of the Act will have to be consulted. It is provided by sec. 4 that every person responsible for the payment of wages under sec. 3 shall fix periods (which have been referred to as wage-periods in the course of the Act) in respect of which such wages shall be payable. It is further provided that no wage-period shall exceed one month. On a plain reading of sec. 4 it is clear that the expression wage-period relates to the periodicity of the payments made for the work. And the Legislature has provided that the wages shall be paid to the employees periodically and in such a manner that the period for which the wages are payable does not exceed one month. In other words the pe