Divisional Personnel of ficer, Western Railway, Kota v. Amar Singh
1978-05-17
R.R.RASTOGI
body1978
DigiLaw.ai
JUDGMENT R. R. Rastogi, J. These two revision applications have been filed under section 115 of the Code of Civil Procedure by the Divisional Personnel Officer, Western Railway, Kota. The facts which have given rise to these revision applications briefly stated are that Amar Singh opposite party was employed as a Khalasi in the Western Railway and was posted at Agra. He had been appointed on 1271962. On 1821963 he was removed from service by an order passed by the Assistant Mechanical Engineer, Western Railway, Kota. He filed an appeal against that order before the Divisional Mechanical Engineer, Kota but to no effect. He then filed a civil suit for the declaration that the order terminating his services was illegal and infructuous. That suit was decreed by the learned Munsif, Kota on 18121967. Thereafter an application under section 15 of the Payment of Wages Act (hereinafter referred to as the 'Act') was given before the City Magistrate, Agra, who is the Prescribed Authority under the Act. A sum of Rs. 2,304.79 was claimed by way of wages and allowance after deduction for provident fund contributions and compensation and that was for the period 1821962 to 1121965. It seems that the opposite party was taken back in service on 1221965, and was paid his wages thereafter. An application for condonation of delay under section 5 of the Limitation Act was also given. The Divisional Personnel Officer, who is the applicant before this Court, filed a written statement and pleaded, inter alia that the application was barred by time. The learned Prescribed Authority condoned the delay. Subsequently, after hearing the parties the claim as a whole was allowed for payment of Rs. 2,392.81 p. Two appeals were preferred by the Divisional Personnel Officer, one against the order condoning the delay and that was numbered as appeal no. 4 of 1968 and the other against the order allowing the claim of the opposite parties which was numbered as Appeal No. 2 of 1969. These Appeals come up for hearing before the Additional District Judge, Agra.
4 of 1968 and the other against the order allowing the claim of the opposite parties which was numbered as Appeal No. 2 of 1969. These Appeals come up for hearing before the Additional District Judge, Agra. On the question of condonation of delay, relying on a Division Bench decision of this Court in Satva Narain Lal v. Divisional Superintendent N. R. Allahabad & another(1969 A.L.J. 646), the learned Additional District Judge held that the cause of action for making an application for payment of wages arose after the decision of the civil suit and the application could have been filed within six months of the decree obtained by him and it was actually filed within that period. On merits of the claim it was contended before him on behalf of the Divisional Personnel Officer that the claim was barred by Order 2, Rule 2 of the Code of Civil Procedure. The learned Additional District Judge did rot accept this contention as well for there as on that the cause of action arose only after the decision of the civil suit. He, therefore, dismissed both the appeals. The present revision application have been filed against this combine order. The first submission made before me by the learned counsel for the applicant was that the courts below erred in condoning the delay and the view taken by them is wholly erroneous. I do not agree with this submission because this point is covered by a Division Bench decision of this Court in Satya Narain Lal's case (supra) and another decision of the Supreme Court in Divisional Superintendent, Allahabad v. Pushkar Dutt Sharma(1965 A.W.R. 274). What has been laid down in these cases is that it may be that the claim for payment of wages has to be made within 6 months (which period, by Act No. 53 of 1964 with effect from 1st February, 1965 has been made 12 months) from the date when the wages fell due and ordinarily an application under section 15(2) of the Act must be within the aforesaid period of the accrual of the cause of action counted month to month, but where the declaratory suit is filed challenging the order of termination the cause of action of the employee to file an application under section 15 of the Act arises within 6 months of the decree made in that case.
In the present case the application under section 15(2) of the Act was given within six months of the decree made in the civil case and hence the delay was rightly condoned and the grievance of the applicant to the contrary cannot be accepted. Another submission made before me by the learned counsel for the applicant was that the claim was clearly barred by the provisions of Order 2 of the Code of Civil Procedure and in support of the same there is a direct decision of a learned single Judge of this Court in P. J. Larthis v. Superintendent, Printing and Stationery, U.P., Allahabad(1965 A.L.J. 293). In that case the applicant was dismissed from service under an order dated 491955. He instituted a suit for declaration that his dismissal was null and void. No claim was then made for the arrears of salary up to the date of the suit. The suit was decreed and the applicant was paid his salary from the date of suit to the date of his reinstatement, but the arrears of salary from the date of dismissal to the date of suit were not paid. The applicant moved an application under section 15 of the Act for the recovery of arrears of salary from the date of dismissal to the date of suit. It was held that: "The revision can be dismissed on a different point though it appears that the applicant has been a victim of wrong legal advice given by his counsel. It was prior to 1950 that no suit for the recovery of arrears of salary was maintainable against the Crown and the aggrieved employee had merely to sue for declaration that his dismissal from service was null and void. But after India became a Republic there was no Crown and arrears of salary could be claimed in the suit. See The State of Bihar v. Abdul Majid(A.I.R. 1954 S.C. 245) and Om Prakash Gupta v. State of Uttar Pradesh(A.I.R. 1955 S.C. 600). The applicant was, however, illadvised to merely sue for declaration and not for the arrears of salary also.
See The State of Bihar v. Abdul Majid(A.I.R. 1954 S.C. 245) and Om Prakash Gupta v. State of Uttar Pradesh(A.I.R. 1955 S.C. 600). The applicant was, however, illadvised to merely sue for declaration and not for the arrears of salary also. The law must therefore have its course though the applicant would be free to move the State Government for such relief as it may like to grant even though the claim is barred under the law." In the instant case also the claim made in the application under section 15 of the Act was for arrears of salary from the date of dismissal up to the date of suit, and thus it was submitted that the claim for arrears of salary was barred by Order 2 Rule 2, of the Code of Civil Procedure. According to the learned counsel since the omission to claim arrears of salary in the aforesaid suit was not with the leave of the court the opposite party could not claim this relief in any subsequent proceeding. On behalf of the opposite party it was, however submitted that the claim for arrears of salary was based on a different cause of action and hence the claim was not hit by Order 2, Rule 2 of the Code of Civil Procedure. There can be no dispute that if the subsequent suit is based on a different cause of action, this provision would not apply. There are several decisions of this Court which have taken the view that the claim or arrears of salary under section 15 of the Act is based on a different cause of action and that cause of action arises which in a suit for declaration the order of termination of service has been concluded as illegal or ineffective. In Ram Prakash v. Union of India(A.I.R. 1967 Alld. 228), a Division Bench of this Court took the view that wherever wages are due and they are withheld for some reason or the other it is clearly a case of deduction of wages and if the reason for deducting of wages is not an authorised reason under section 7, then the employee has a remedy under section 17 of the Act.
Under section 22(d) of the Act no Court shall entertain any suit for the recovery of wages or for any deduction from wages in so far as the sum so claimed could have been given by an application under section 16. The Division Bench thus took the view that the suit being for the recovery of the deductions made from the wages of the plaintiff was barred by section 22(d) of the Act. In Ram Kishore Sharrr.a v. Additional District Judge, Sharanpur(1969 A.L.J. 225), the view taken was that an application under section 15(2) of the Act should be made within 6 months of the accrual of the cause of action from month to month. The declaration in favour of the petitioner was made by the Punjab High Court on 26th November, 1956 and the application to the Payment of Wages Authorities given within six months of that decision was held to be within time. In other words the basis of the decision was that the cause of action for claiming arrears of wages arose only after the declaration had been given that the order of termination of service was illegal. There is another decision, also of a Division Bench, of this Court in Satya Narain Lal v. Divisional Superintendent, N. R., Allahabad and another(1969 A.L.J. 646), in which it was held that when the suit for declaration was decreed by the Civil Judge, Allahabad on 7111963 declaring that the order of removal, was the illegal employee had a cause of action to file an application under section 15 of the Act. In Dilbagh Rai Jerry v. Union of India and others (9), the view taken was that the first proviso to section 15(2) exfacie indicates two alternative terminus a quo for limitation, namely, (i) the date on which deduction from wages was made, or (ii) the date on which the payment of the wages was due to be made. Terminus a quo (i) in the proviso expressly relates to the deduction of wages (ii) is referable to the delayed wages. The alternative under the first part of the proviso will commence from the date on which it was decided to treat the period of dismissal as leave due and the application for claim under section 15(2) filed within six months from the date of that decision was held within time.
The alternative under the first part of the proviso will commence from the date on which it was decided to treat the period of dismissal as leave due and the application for claim under section 15(2) filed within six months from the date of that decision was held within time. The preponderance of authorities, therefore, is in favour of the view that there is separate cause of action for claiming the arrears of wages under section 15(2) of the Act. There is yet another aspect of the matter and it is that the maintenance of the application under section 15(2) of the Act has not been disputed. It would be noted that this section provides for claims arising out of the deduction of wages and delay in payment of wages. In U. I. C. Paper Mills Co. v. J. C. Mathur, the scope of the word "deduction" came up for consideration and it was observed: "The word "deductions" in section 15 appears to be used in a wide sense so as to include the entire deficiency which the employee alleges to have been caused in the payment of wages, as a result of the withholding of the same by the employer whether partially or wholly. It is unreasonable to hold that the Legislature intended that where the employer withheld payment of one pie from the salary due, the application would be maintainable it being a case of deduction, but where the employer withheld the entire salary the application would not be maintainable, as it was not a case of deduction. Further such a case would be covered by the category of 'delayed wages'." The position, therefore, is that for the disputed amount of arrears of wages an application under section 15 of the Act was clearly maintainable and, as noted above, its maintainability is not disputed to the applicant also. There is, as noted above, almost a settled view that there is separate cause of action for claiming the arrears of wages under section 15 and this cause of action arises after the decision of the civil suit holding that the employee's dismissal was not justified. Also see Divisional Superintendent v. Pushkcar Dutt(1965 A.W.R. 274 (S.C.)). In this view of the matter it could not be said that the claim was barred by Order 2 Rule 2, of the Code of Civil Procedure.
Also see Divisional Superintendent v. Pushkcar Dutt(1965 A.W.R. 274 (S.C.)). In this view of the matter it could not be said that the claim was barred by Order 2 Rule 2, of the Code of Civil Procedure. It would be seen that in the case of P. J. Lartius v. Superintendent, Printing and Stationery(1965 A.L.J. 293), the earlier decisions of this court and of the Supreme Court and the aspects which have been discussed above were not taken into consideration. On facts also that decision can be distinguished inasmuch in the instant case the maintainability of the application under section 15(2) of the Act has not been disputed. Hence this Court is not bound to follow that decision. These revision applications are hence liable to be dismissed and are accordingly dismissed with costs.