1956 Supreme(Raj) 101

Rajasthan High Court
Wanchoo C.J. & Modi, J.
Anantram - Appellant
Versus
District Magistrate, Jodhpur - Respondents
Civil Writ Applications Nos. 54, 60, 145 and 146 of 1955
Decided On : April 04, 1956

Headnote:(a) Wages—Payment of Wages Act, secs. 17 and 15-Appeal competent whether wages disallowed in part or in whole.(b) Wages—Payment of Wages Act, sec. 15(3)-Delayed payment of wages or deduction of wages.(c) Wages—Payment of Wages Act, sec.7(2)(b)—Absence from duty means voluntary absence.(d) Wages—Payment of Wages Act, sec. 7(2)(h)— Other competent authority—Wages with held by virtue of rule 2044 of Indian Railways Establishment Code.(e) Railways—Indian Railway Establishment Code, Rule 2044 -Withholding of wages by competent authority.(f) Wages— Payment of Wages Act, sec. 15(2)—Limitation—Duty of District Magistrate-Documentary evidence.(g) Wages—Payment of Wages Procedural Rules, R. 7—Party entitled to hearing.(h) Railways—Indian Railways Establishment Code, R. 2044—Order of deduction.

       Where the Authority under the Act considers the question under sec. 15(3) on the merits and either directs that part of the wages ought to be paid and rejects the claim with respect to the rest, or rejects the claim with respect to the whole of the wages, an appeal by the employee to the District Judge would be competent under sec. 17(l)(b) of the Act (Para 22).

       The applicants were dismissed on one date, and were re-instated on a later date. They were not paid their wages for the period between the dismissal and the reinstatement. Their claim is for wages for this period. Their re-instatement clearly implies that the Authority deducted (heir wages wholly or in part for the period between dismissal and re-instatement, and the case, would be covered by the provisions of the Payment of Wages Act (Para 29).

       Under sec. 7(2) (b) deductions can be made for absence from duty. This absence is voluntary absence by the employee. It cannot cover absence of the employee when he is forced by circumstances created by the employer from carrying out his duties. In the present case, the applicants were certainly absent from duty between the period of their dismissal and their re-instatement. But the absence was not a voluntary act on their part, and it is not the case of the Railway that the applicants would not have come to do their duty if the Railway had permitted to do so. In these circumstances, deductions cannot be made from their salary on the ground of absence. From duty, for such absence must be voluntary, and without the permission of the employer (Para 30).

       The Indian Railway Establishment Code is a body of statutory rules deriving its force from Art. 309 read with Art. 372 of Constitution, and his made provision for conduct and discipline including the imposition of penalties on Government servant, and has indicated the persons who are authorised to inflict them. Orders passed under rule 2044 on re-instatement with respect to pay for the period of absence from duty due to suspension, removal or dismissal are orders which come within sec. 7(2)(b) as orders of a competent authority requiring deductions to be made from wages. The fact that the railway officer, who have the power to make such orders under rule 2044, are servants of the Railway makes no difference. They are exercising their powers under statutory rules, and are competent authorities within the meaning of sec. 7(2)(h). The analogy that they are the servants of the employer does not apply in the case of statutory authorities passing orders unders statutory rules. If, therefore, there is an order under rule 2044, which directs either that the wages for this period would not be paid, or that only a certain portion of the wages would be paid, that order, is an order of the competent authority directions to be made from the wages, and would be in accordance with sec. 7(2)(h) of the Act (Paras 31 and 33).

       Sec. 15(2) lays down that a claim has to be made within six months from the date on which the deduction was made or from the date on which payment of wages was due to be made in case of delay in payment of wages. An application may be admitted after the said period of six months when the applicant satisfies the authority that there was sufficient cause for not making the application within such period. Rule 7 of the Payment of Wages Procedural Rules casts a duty on the Authority, if any application is prima facie time-barred, to give an opportunity of being heard to the applicant, and thereafter, if it is of opinion that sufficient cause has not been shown, and the application is barred by time, to dismiss it. This would, of course, include an opportunity to produce such documents as they desired to produce. The complaint of the applicants concerned is that though they were given an opportunity, the Authority did not consider the documents produced by them and dismissed the applications on the ground that they had not produced certified copies. The District Magistrate could not have dismissed the applications as barred by time without considering the effect of the documents had been produced. If he thought that those documents were spurious and could not be relied upon and there should have been production of certified copies, he ought to have given time to the applicants concerned to produce the copies (Para 36).

       Where a person is re-instated on account of procedural defect and is again proceeded against departmentally on the same charges after removing the defect, the order under rule 2044 has to be passed after the second proceeding is over. (Para 38).