Jamait Ram Puraswani v. H. G. Shukla — 1977 DIGILAW 251 (ALL)

JUDGMENT T.S. Misra, J. - This appeal arises in the following circumstances. The respdt. No. 3 -was employed in Puraswani Medical Stores on a monthly salary of Rs. 175/-. His salary was not paid to him since December 23, 1965 hence he moved an application under Section 15 of the Payment of Wages Act, 1936 (for short the Act), claiming arrears of salary and compensation from the present appellants who according to the respdt. No. 3 were the proprietors of the said concern Puraswani Medical Stores. That application was resisted by the opp. parties on a variety of grounds. They pleaded inter alia that they were not the proprietors of the said concern, that the respondent was not entitled to seek redress under the Payment of Wages Act as the matter was governed by U. P. Dookan aur Vanijya Adhishthan Adhiniyam, 1962 and that the claim was barred by time. They asserted that the said concern was owned by H. A. Puraswani son of Assodamal Puraswani who was appellant No. 3 before us. The Prescribed Authority repelled all the contentions raised by the present appellants and allowed the claim of Respdt. No. 3 to the tune of Rs. 723.32 together with an amount of Rupees 25/- as compensation and Rs. 40/- as costs of pleader's fee. 2. Aggrieved by that decision the present appellants filed an appeal under Section 17, Payment of Wages Act before the Distt. Judge, Faizabad. That appeal was, however, dismissed in default of the appellants by the learned Distt. Judge on 10-1-1970. An application was then moved for setting aside that order of dismissal. The learned Distt. Judge rejected that application by bis order dated 26-3-1970. The present appellants then moved this Court by a petition under Art. 226 of the Constitution of India. That petition was dismissed by a learned single Judge on 26-2-1976. This appeal is directed against that judgment and order of the learned single Judge. 3. For the appellants it was urged that the learned Distt. Judge had no jurisdiction to dismiss the appeal for default of the appellants. The submission was that the learned Distt. Judge should have decided the appeal on merits even when no one appeared before him on behalf of the present appellants at the time of the hearing of the appeal. For the appellants it was urged that the learned Distt. Judge had no jurisdiction to dismiss the appeal for default of the appellants. The submission was that the learned Distt. Judge should have decided the appeal on merits even when no one appeared before him on behalf of the present appellants at the time of the hearing of the appeal. This point is raised in paragraph No. 13 of the petition under Article 226 of the Constitution as also in ground No. 8 therein. 4. The concern where the respdt. No. 5 was employed was governed by U. P. Dookaa Aur Vanijya Adhishthan Adhiniyam, 1962. Section 18 of the said Adhiniyam provides that the wages of an employee, if not paid as provided by or under the Act shall be recoverable in the manner provided in the Payment of Wages Act, 1936, as if the same were wages payable under that Act. Section 15 of the Payment of Wages Act provides for the recovery of claims by an employee. It sets out the procedure to be followed in that behalf. An order passed under Section 15 is appealable under Section 17 of the Act which says that an appeal against an order dismissing either wholly or in part an application made under sub-s. (2) of Section 15 or against a decision under sub-s. (3) or sub-sec. (4) of that section may be preferred within thirty days of the date on which the order or direction was made before the Distt. Court. Section 26 of the Payment of Wages Act, enables the State Govt, to make rules to regulate the procedure to be followed by the authorities and Court referred to in Sections 15 and 17. In exercise of the power conferred by sub-s. (1) of Section 26 of the said Act read with Section 22 of the General Clauses Act, 1897 the Governor General in Council made rules known as Payment of Wages (Procedure) Rules, 1937. Rule 12 of the said Rules, which is material for the purpose of this case reads: "12 (1) An appeal shall be preferred in duplicate in the form of a memorandum, one copy of which shall bear the prescribed court-fee setting forth concisely the ground of objection to the order dismissing either wholly or in part an application made under subsec. (2) of Section 15 or a direction made under sub-s. (3) or sub-s. (4) of that Section, as the case may be, and shall be accompanied by a certified copy of the said order or direction. (2) When an appeal is lodged a notice shall be issued to the respondent in Form G. (3) The Court after hearing the parties and after such further enquiry, if any, as it may deem necessary, may confirm, vary, or set aside the order or direction from which the appeal is preferred, and shall make an order accordingly." The said rule thus prescribes a procedure for appeals preferred under Section 17 of the Payment of Wages Act, and requires that the Court after hearing the parties and after such further enquiry, if any, as it may, deem necessary, may confirm, vary or set aside the direction from which the appeal is preferred and shall make an order accordingly. Rule 12 also sets out a procedure as to how an appeal is to he preferred. It requires a memo of appeal to be filed bearing the prescribed court-fee setting forth in a concise form the grounds of objection. It also requires that the memorandum shall be accompanied by a certified copy of the direction. The other requirement is the issuing of a notice to the respondent in prescribed form G, An authority referred to in Section 15 is not a `Court' but the Dist. Court referred to in Section 17 where an appeal lies from an order passed under section 15 of the Act is a `Court' and not a persona designate ( AIR 1967 All 576 , North Eastern Railway v. Paras Nath Tewari). The Prescribed Authority while dealing with an application moved under section 15 of the Act has to follow the procedure prescribed in the said Rules of 1937. It has also the power of a Civil Court under the Code of Civil Procedure, 1908 for the purposes mentioned in Section 18 of the Act and certain provisions of the Code of Civil Procedure have been made applicable with regard to the proceedings before the `authority' mentioned under Section 15 of the Act for a limited purpose. It has also the power of a Civil Court under the Code of Civil Procedure, 1908 for the purposes mentioned in Section 18 of the Act and certain provisions of the Code of Civil Procedure have been made applicable with regard to the proceedings before the `authority' mentioned under Section 15 of the Act for a limited purpose. The Act is however, silent as to whether all or any of the provisions of the Code of Civil Procedure would apply to appeals filed under Section 17 of the said Act, The procedure to be followed with regard to appeals is, however, provided in R. 42 of the aforesaid Rules of 1937. In Smt. K. L. Sahgal v. The Commissioner, Allahabad ( AIR 1971 All 573 ) a Division Bench of this Court had an occasion to consider the question as to whether a revision filed under sub-s. (3) of Section 3 of U, P. Act III of 1947 against an order relating to permission to sue for eviction could be dismissed for default. Subsec. (3) of Section 3 of the Act provides inter alia that the Commissioner shall hear the application made under sub-sec. (2) and he may,, if he is not satisfied as to the correctness, legality or propriety of the order passed by the Distt. Magistrate or as to the regularity of proceedings held before him, alter or reverse his order, or make such other order as may be just and proper. Interpreting these provisions the Division Bench in Smt. K. L. Sahgal's case ( AIR 1971 All 573 ) (supra) held: "There is no indication In Section 3 of the Act that the Commissioner may dismiss a revision in default of the applicant. On the other hand, the entire plan of sub-sec. (3) indicates that the revision application has to be disposed of on merits." A similar question arose in I. T. Commissioner, Madras v. S. Chenniappa ( AIR 1969 SC 1068 ), The Supreme Court while interpreting Section 33 of the Indian Income-tax Act, 1922 provided that the Appellate Tribunal may after giving an opportunity to the parties to put forward their case pass such orders thereon as it thinks fit, and shall communicate any such orders to the assesses and to the Commissioner. It was held by the Supreme Court that the scheme of the provisions of the Indian Income Tax Act, 1922 relating to the Appellate Tribunal is that it has to dispose of an appeal by making such orders as it thinks fit on the merits, and that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of submissions made by the appellant. This can only be done by giving decision on the merits of questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. 5. True it is that an appeal governed by the provisions of the Code of Civil Procedure may be dismissed for appellant's default under R. 17 of Order XLI, C. P. C. but if the provisions of the Code are not applicable and there are no specific provisions in the Special Act for dismissing an appeal in default, the appeal has to be decided on merits even when the party concerned has failed to appear. R. 8 aforesaid in the Payment of Wages (Procedure) Rules, 1937 does empower the `authority' under Section 15 of the Act to dismiss the application for default if the applicant fails to appear on the specified date. It also empowers the authority to set aside the order of dismissal for default and rehear the application on good cause being shown. There is no such provision as regards appeals. The Legislature 'manifestly, therefore, intended that the appeal should be decided on merits in spite of the failure of the appellant to appear on the I date fixed for its hearing. A reading of the various provisions of Payment of Wages Act, 1936 and the Rules aforesaid makes it quite plain that the Distt. Judge has no jurisdiction to dismiss an appeal filed under Section 17 of Payment of Wages Act in default of the appellant. In fact the entire scheme of the Act and the Rules aforesaid indicate that the appeal filed under Section 17 of the Act has to be disposed of on merits. There is, therefore, force in the appellant's contention that the impugned order passed by the learned Distt. Judge dismissing the appeal in default followed by the order refusing to set aside that order and rehear the appeal was bad in law. There is, therefore, force in the appellant's contention that the impugned order passed by the learned Distt. Judge dismissing the appeal in default followed by the order refusing to set aside that order and rehear the appeal was bad in law. The learned Distt. Judge has obviously not decided the appeal in accordance with law. His aforesaid order cannot, therefore, be sustained. 6. In the result, the special appeal is allowed. The order passed by the learned single Judge is set aside and the writ petition is allowed in part. The impugned order dated 10-1-1970 passed by the learned Distt. Judge and his other order dated 26-3-1970 (Annexures 9 and 10 to the writ petition) are quashed. We direct the learned Distt. Judge to restore the appeal to its original number and decide it in accordance with law. Since none appears on behalf of the respondents we make no order as to costs.