M. A. Khan v. Divisional Personal Officer. N. R — 1971 DIGILAW 455 (ALL)

JUDGMENT Satish Chandra, J. - M. A. Khan the applicant was employed as a Travelling Ticket Examiner by the Northern Railway. Pending enquiry into certain charges, he was placed under suspension on 10th July, 1962. The applicant was prosecuted in the regular criminal Court and was convicted under Section 418, Indian Penal Code and sentenced to 18 months' R. I. on 10th May, 1963. On 31st May, 1963, the Divisional Commercial Superintendent passed an order dismissing him from service. The applicant appealed against his conviction. The Additional Sessions Judge, Agra on 7th December, 1963. allowed his appeal and acquitted him. As a consequence of this order, the Divisional Commercial Superintendent passed an order of reinstatement of the applicant on 17th April, 1964. Subsequently on 4th August, 1964, the Divisional Commercial Superintendent passed another order allowing full wages to the applicant with effect from 7th December. 1963, onwards and allowing only half wages for the period between 31st May, 1963, the date of dismissal and 7th December, 1963, when the applicant was acquitted. Feeling aggrieved, the applicant applied to the Authority under the Payment of Wages Act for an award of Rs. 3,231.50 which he claimed to have been illegally deducted out of his wages for the period beginning with 10th July, 1962, the date when he was placed under suspension till 17th April, 1964. 2. The Authority held that the deductions claimed by the applicant were illegal and unlawful. The application was held to have been made within time. The application was accordingly allowed. The respondents were directed to pay the sum of Rs. 3231.50 to the applicant. 3. It appears that during the pendency of these proceedings the respondents paid to the applicant a sum of Rs. 1,414.11 on 3rd October, 1964. The dispute remained about the balance. Feeling aggrieved, the railway authorities went up in appeal and succeeded. The Additional District Judge, Agra, held that the order directing the payment of half wages for a part of the period in dispute was an order passed under Rule 2044 of the Railway Establishment Code. 1,414.11 on 3rd October, 1964. The dispute remained about the balance. Feeling aggrieved, the railway authorities went up in appeal and succeeded. The Additional District Judge, Agra, held that the order directing the payment of half wages for a part of the period in dispute was an order passed under Rule 2044 of the Railway Establishment Code. It was passed by an authority competent to do so and since it was an order passed under statutory authority, it was covered by Clause (h) of Section 7 (2) of the Payment of Wages Act and as such was not only a permissible deduction, but that the Authority under the Payment of Wages Act had no jurisdiction to go into the merits of that order. On this view the appeal was allowed and the order passed by the Payment of Wages Authority was set aside and the application made under Section 15 (2) was dismissed. Aggrieved, the applicant has come to this Court in revision. At the hearing of the revision a learned single Judge felt that it raised important questions of law which could well be considered by a larger Bench. That is why the matter has been placed before this Bench. 4. For the applicant it was urged that the order in regard to deduction from wages from the date of his suspension till the date of his reinstatement was not an order covered by Rule 2044 of the Establishment Code, because that rule was not attracted and, further, the order having been passed in violation of the principles of natural justice, was null and void; and, thirdly, the order was not passed by the Authority competent to do so under that rule. 5. Rule 2044 provided: "2044. (F. R. 54) Pay after Rein-statement.: (1) When a railway servant who has been dismissed, removed, compulsorily retired or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order - (a) regarding the pay and allowances to be paid to the railway servant for the period of his absence from duty; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in o' sub-rule (1) is of the opinion that the railway servant has been fully exonerated or. (2) Where the authority mentioned in o' sub-rule (1) is of the opinion that the railway servant has been fully exonerated or. in the case of suspension, that it was wholly unjustified, the railway servant shall he given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended, as the case may be. (3) In other cases, the railway servant shall be given such proportion of such pay and allowances as such competent authority may prescribe. Provided that the payment of allowances under clause (2) or clause shall be subject to all other conditions under which such allowances are admissible; Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 2043 (F. R. 53). (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause (3) the period of absence from duty shall be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose. Provided that if the Railway servant so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Railway servant." 5-A. This is the state of the rule in the edition of the Establishment Code corrected up to 26th July, 1962, and issued in 1966. It appears that previously the opening part of the rule was somewhat different. Sub-rule (1) previously provided: "When a railway servant who has been dismissed, removed or suspended is reinstated the revising or appellate authority may grant to him for the period of his absence from duty..........." Interpreting the phrase "revising or appellate authority" in the rule. the Madras High Court held in Union of India v. R. Akbar Sheriff, A.I.R. 1961 Mad 486 that Rule 2044 would apply to a case where the order of reinstatement is passed by the appellate or revising authority in a case where the order of dismissal is passed by a competent railway authority after holding a proper enquiry into the charges. The Madras case is distinguishable because now the rule has been changed and the order under Rule 2044 can be passed by an authority competent to order the reinstatement. Now under the present rule it is not necessary that the initial order of dismissal should have been passed as a result of an enquiry held into some charges by the railway authorities themselves and that the appellate or revisional railway authority should have reversed the order of dismissal on the merits. The rule seems to have been amended to get rid of this constitutional difficulty. The only requirement under the present rule seems to be that if an authority competent to order the reinstatement has done so, in that event that authority can pass a further order about pay and allowances under Rule 2044. The decided cases which interpreted the old rule are hence no longer applicable. In the present case the order of as well as of reinstatement were passed by the Divisional Commercial Superintendent. It has not been denied that he was competent under the relevant rules to order the dismissal or the reinstatement of the applicant. Under the circumstances, he would be an authority competent to pass an order under Rule 2044. It cannot be said that Rule 2044 would not cover an order passed by the Divisional Commercial Superintendent in a case like the present. 6. It was then urged that the impugned order purported to have been passed under Rule 2044 was without jurisdiction because firstly it was not passed by the competent authority and secondly it was passed in violation of the principles of natural justice. 7. The first point has already been answered above. Rule 2044 does not speak of "competent authority" so as to attract the definition of that word given in sub-rule (5) of Rule 2003. Under that definition a competent authority in relation to the exercise of any power under these rules means the President or any authority to which such power is delegated in Appendix XXXII. We need, not go to the Appendix because an' order under Rule 2044 does not require to be passed by the competent' authority in the light of this definition:' but by a more clearly specified authority namely an "authority competent to order the reinstatement." We have found that the Divisional Commercial, Superintendent was an authority competent to order the applicant's reinstatement. He was clearly entitled to pass an order under Rule 2044. 8. Section 7 (1) of the Payment of Wages Act, 1936, provides that the wages of an employed person shall be paid to him without deductions of any kind except those authorised by or under the Act. Sub-section (2) says that deductions from the wages of an employed person shall be made only in accordance with the provisions of the Act, and may be of the following kinds. Clause (h) provides for deductions required to be made by order of a Court or other authority competent to make such order. In the present case the deduction was not made in accordance with any order of a Court. Therefore only the second part of clause (h) has to be interpreted. Under it are covered deductions required to be made by order of some authority competent to make such order. It was urged that authority under the Payment of Wages Act can hence see whether the order under which or because of which the deductions have been made was such an order and also whether the order was passed under some binding provision of law. It has been held by the Supreme Court in Ganeshi Ram v. District Magistrate, A.I.R. 1967 SC 356, that Rule 2044 of the Railway Establishment Code has statutory force. Consequently. an order passed under Rule 2044 by an authority mentioned in it is an order passed by an authority competent to do so under a statutory rule. 9. In Gopichand v. Western Rly., A.I.R. 1967 Guj 27 it was held that once there is an order of a Court or an order of any competent authority statutorily empowered to make the order and in pursuance of that order a deduction is made by the employer, the deduction would fall within the terms of Section 7 (2) (h) and would be permissible under that section. The order may be null or valid, regular or irregular: that would not be a matter for the Authority under the Act to examine. The only point into which the Authority under the Act Would be competent to inquire, where the order is of some Authority other than a Court, would be whether the Authority was competent under the statute to make the kind of order which it did. The only point into which the Authority under the Act Would be competent to inquire, where the order is of some Authority other than a Court, would be whether the Authority was competent under the statute to make the kind of order which it did. This would indicate that the Authority under the Payment of Wages Act has no jurisdiction to go into the merits of the order or to find whether the order was otherwise justified either on facts or in law. 10. Learned counsel for the applicant, however, relied upon a decision of the Bombay High Court in K.P. Mushran v. B. C. Patil. A.I.R. 1952 Bom 235. That case is distinguishable on facts. In that case no order of a competent authority came up for examination. Clause (h) of Section 7 (2) of the Payment of Wages Act did not come up for interpretation. On behalf of the employer it was claimed that certain deductions were permissible under Section 8 of the Payment of Wages Act. The Bombay High Court held that on facts Section 8 was not attracted. That case does not decide that if a statutory authority passes an order under a statutory rule then in order to see whether such an order is covered by clause (h) of Section 7 (2). the Authority under the Payment .of Wages Act can go into the merits of the order to find out whether the order is legal and valid. This aspect is relevant to examine the third contention of the learned counsel, namely, that the order was null and void because it violated the principles of natural justice. Learned counsel contended that since the order violated the principles of natural justice, the order was a nullity and the position would be as if no such order was ever passed. This, in our opinion, is going too far. 11. The principles of natural justice are not provisions of substantive law. They deal with the procedure to be adopted by an adjudicating authority while deciding the rights of parties. In the course of its adjudication the authority has to follow the principles of natural justice. These rules are procedural in nature. Consequently, an order passed in violation of these rules may be invalid or may not be sustainable otherwise. They deal with the procedure to be adopted by an adjudicating authority while deciding the rights of parties. In the course of its adjudication the authority has to follow the principles of natural justice. These rules are procedural in nature. Consequently, an order passed in violation of these rules may be invalid or may not be sustainable otherwise. but it cannot be said that no order adjudicating the rights was at all passed or that it has no existence at all. If an order under Rule 2044 is passed without properly complying with the prescribed procedure, the order is none-the-less under Rule 2044. Such an order can be corrected by an appeal or by the general Civil Courts or under Article 226 or 227 of the Constitution, but so long as it is not set aside, it remains an order having its own statutory force. It cannot hence be said that since the order was passed in violation of the principles of natural justice, the Authority under the Payment of Wages Act can on that ground ignore that order and refuse to take it into consideration. In A.I.R. 1967 SC 356 it was held by the Supreme Court that since R. 2044 was a statutory rule, the Authority competent to make an order under this rule fell within the description of a competent Authority under Section 7 (2) (h) of the Payment of Wages Act and there was no cause for the claim made by the reinstated railway servant and his application for the recovery of wages was misconceived. This decision tends to show that the jurisdiction of the Authority under the Payment of Wages Act is a limited jurisdiction. It cannot sit as a Court of appeal over the order passed by the railway authorities under Rule 2044. So, even if it may be established that the impugned order was passed without complying with the principles of natural justice, yet the Authority under the Payment of Wages Act was not competent to ignore that order on that ground. If that order is held effective and binding on the applicant he had no cause to complain, especially after the payment of Rupees 1, 414.11 which according to the judgment of the Court below was paid on 3rd Oct. 1964. If that order is held effective and binding on the applicant he had no cause to complain, especially after the payment of Rupees 1, 414.11 which according to the judgment of the Court below was paid on 3rd Oct. 1964. The balance of the amount having been negatived by an order passed under Rule 2044, an application under Section 15 of the Payment of Wages Act for its recovery was misconceived and was rightly rejected. 12. There is no merit in this application. It is accordingly dismissed, but we make no order as to costs.