Kashi Nath v. General Manager, N. E. Railway, Gorakhpur
1973-05-25
D.S.MATHUR
body1973
DigiLaw.ai
JUDGMENT D.S. Mathur, J. - This is a revision under Section 115, C. P. C. by Kashi Nath against the order dated 19-4-1971 of the District Judge, Gorakhpur, allowing the appeal of the opposite parties, viz. General Manager, North Eastern Railway, Gorakhpur, and Financial Adviser and Chief Accounts Officer, North Eastern Railway, Gorakhpur, and thereby dismissing the application under Sec. 15(2) of the payment of Wages Act of Kashi Nath. 2. The material facts of the case are that Kashi Nath, a railway employee, working as Turner in the Finishing Brass Shop, North Eastern Railway Workshop, Gorakhpur, was suspended from service on 11-4-1959 on account of his being implicated in a criminal case, which was committed to the court of session. Kashi Nath and one other person were convicted by the Sessions Judge. Thereafter, the applicant was dismissed from service under order dated 26-9-1961. Kashi Nath was acquitted by the High Court under order dated 26-4-1962. It may here be mentioned that he was exonerated of the offence and not that he was given the benefit of doubt. He, therefore, deserved to be reinstated in service with full wages for the total period commencing from the date of suspension. He was reinstated in service on 19-7-1962. There was an allegation that the applicant had taken up private employment during the period of suspension and even after his dismissal from service. A detailed order as to the amount payable to the applicant towards wages from the date of suspension to his reinstatement was, therefore, passed on 19-12-1962. 3. A perusal of this order (Ext. Ka-6) makes it clear that from the date of suspension till the date prior to the acquittal by the High Court, the applicant was to be paid suspension allowance but there was to be no payment from 10-6-1959 to 9-10-1961 on account of his being engaged in private employment. From the date of acquittal the applicant was to be paid his full pay and allowance and the period was to be treated as spent on duty. 4. The present application under Sec. 15(2) of the Payment of Wages Act was moved on 18-3-1964. This application shall be within time if the limitation commences from the date of the order dated 19-12-1963, but not if the limitation commences from the date of acquittal (26-4-1962) or from the date of his reinstatement (19-7-1962).
4. The present application under Sec. 15(2) of the Payment of Wages Act was moved on 18-3-1964. This application shall be within time if the limitation commences from the date of the order dated 19-12-1963, but not if the limitation commences from the date of acquittal (26-4-1962) or from the date of his reinstatement (19-7-1962). In case the application was barred by limitation, it shall have to be considered whether the delay could be condoned as was done by the Prescribed Authority. 5. The Prescribed Authority was of opinion that the limitation commenced from 26-4-1962 or from 19-7-1962 and the application was moved beyond the prescribed period of six months. However, he condoned the delay and allowed the applicant's claim to the extent of Rs. 2049/-. 6. In appeal preferred by the opposite parties the application under Sec. 15(2) of the Act was held to be time barred and the learned District Judge was of opinion that the delay since after 19-12-1963 could not be condoned. 7. The prescribed period of six months as provided under the first proviso to Sec. 15(2) of the Payment of Wages Act commences from the date on which the deduction from the wages was made or from the date on which the payment of wages was due to be made. Soon after the acquittal the applicant became entitled to reinstatement in service and to his wages. Consequently, wages not paid were to be paid on 26-4-1962, the date of acquittal, or on 19-7-1962, the date of reinstatement. Once the limitation commences there shall be no break in the limitation, simply because a detailed order was subsequently passed on 19-12-1963. In the circumstances, the main claim was baned by limitation and could not be entertained unless the delay could be condoned within the second proviso to Sec. 15(2) of the Payment of Wages Act. 8. However, a perusal of the order Ext. Ka-6 makes it clear that it consists of two distinct parts, both being independent of each other, and further the order of deduction could be passed at a much later stage also. A Government servant under suspension has no right to take up any private employment.
8. However, a perusal of the order Ext. Ka-6 makes it clear that it consists of two distinct parts, both being independent of each other, and further the order of deduction could be passed at a much later stage also. A Government servant under suspension has no right to take up any private employment. He can take up a private job after dismissal from service, but when he is to be reinstated and on reinstatement is entitled to full wages it will not be open to him to claim full wages for the period he had taken up a private job. What he can claim for such period shall be his full salary and allowance less the salary drawn in the private job. 9. Deductions for the salary drawn in the private job could be made subsequently, not necessarily at the time of reinstatement or when the order contemplated by paragraph 2044 of the Indian Railway Establishment Code, Vol. II, third reprint, is passed. Such deductions can be made even after the full salary has been paid to the employee. In the eye of law, therefore, the deductions for or in respect of private employment are distinct from the wages due to the employee and the claim in respect of the two items must be judged separately. In this view of the matter, the limitation for deductions on account of the private employment shall commence from the date of the deductions are made, i.e. the date such an order is passed and not from the date when otherwise wages were due. 10. In other words, limitation for the main claim for wages for the period of suspension and thereafter commences from 26-4-1962 or 19-7-1963 and the application under Sec. 15(2) of the Payment of Wages Act in respect of this part of the claim was barred by limitation. However, the limitation for i deductions in respect of the private employment commences from 19-12-1963 land as the application under Sec. 15(2) of the Act was made within six months, this part of the claim was within limitation. 11.
However, the limitation for i deductions in respect of the private employment commences from 19-12-1963 land as the application under Sec. 15(2) of the Act was made within six months, this part of the claim was within limitation. 11. Under the second proviso to Sec. 15(2) of the Payment of Wages Act the application can be entertained after the prescribed period of six months, which since after the coming into force of Act 53 of 1964 is twelve months, in case the applicant satisfies the authority that he had sufficient cause for not making the application within such period. The second proviso was incorporated on the lines of Section 5 of the Limitation Act, and, consequently, the law laid down in respect of Section 5 of the Limitation Act shall be applicable to the condonation of delay under the second proviso to Sec. 15(2) also. Before the delay can be condoned it is necessary for the applicant to satisfy the authorities on two points; firstly, that he had sufficient cause for not making the application within the prescribed period, and, secondly, that there was no unnecessary delay in moving the application. He has thus to explain every day's delay since after the expiry of the period of limitation. Delay upto 19-12-1963 and, say, a month thereafter could be condoned on the ground that the applicant was under bonafide impression that he should await the decision of the competent authority as to the wages to be paid for the period of suspension and also for the subsequent period till his reinstatement in service. The Prescribed Authority could also condone another one month's period which would ordinarily be taken in seeking legal advice and moving the Prescribed Authority. There could, however, be no justifiable cause for the applicant to wait for another two months. This delay of two months could not be condoned. The learned District Judge thus acted rightly by holding that the main claim was barred by limitation and the delay in making the application under Sec. 15(2) of the Act could not be condoned. He, however, did not correctly interpret the order dated 19-12-1963 otherwise he would have known that the claim for deductions on account of the private employment, being a distinct claim, was made within the prescribed period of six months. 12. The revision thus partly succeeds.
He, however, did not correctly interpret the order dated 19-12-1963 otherwise he would have known that the claim for deductions on account of the private employment, being a distinct claim, was made within the prescribed period of six months. 12. The revision thus partly succeeds. The order of the District Judge in respect of the main claim is confirmed, but the appeal is remanded for fresh hearing in respect of the deductions from 10-6-1959 to 9-10-1961. Costs of this Court easy.