Bahadur Prasad v. State Of Bihar — 1989 DIGILAW 315 (PAT)

Judgment 1. In view of the urgency of the matter, we heard learned Counsel for the parties at length at the stage of admission itself. 2. This petition has been filed for a writ in the nature of mandamus commanding the respondents to pay all the post-retirement dues of the petitioner with penal interest with effect from the 24th of December, 1987. 3. The case of the petitioner is that he was serving as Compounder in the Employees State Insurance Hospital, Gaya, and retired on 24th December 1987. A dispute arose with regard to the date of his superannuation on account of wrong entry made in the Service Book about the date of his birth. This led to filing of C.W.J.C. No. 276 of 1988 by the petitioner before this Court, which was decided on 4th April 1988. 4. Further the case of the petitioner is that he retired on 24th December 1987 and on the basis of last pay drawn, he is entitled to full pension, gratuity, insurance amount, leave encashment pay with dearness allowances, provident fund, along with other dues. The respondents have withheld his entire post-retirement dues without assigning any reason and hence this petition. 5. A counter-affidavit has been filed by respondent No. 2 stating, inter alia, that from the judgment passed in C.W.J.C. No. 276 of 1988, it is manifest that the petitioner retired from service on 30th November 1983 and not on 24th December 1987 as claimed by him. The petitioner is entitled for pension, gratuity, G.P.F., unutilised leave encashment benefit up to 1st December 1983 and his claim for the dues with effect from 1st December 1983 is not tenable in view of Rule 73(1) of the Bihar Service Code. It is also stated therein that pursuant to the judgment of C.W.J.C No. 276 of 1988, the petitioner is entitled to receive the salary for the period from 1st December 1983 to 23rd December 1987, during which he continued to work even after attaining the age of superannuation, not as a Government Servant, but as a daily-rated worker as prescribed by the State Government, A copy of the notification dated 17th December 1988, issued by the Government in exercise of the power conferred by the Minimum Wages Act, has been filed as Annexure C to the counter-affidavit, by which the daily wages for different categories of workers, including the Compounders, have been fixed. According to the calculation of the respondents, the petitioner worked during the said period of 1150 days. As provided under Annexure C, his emolument has been calculated @ Rs. 25 per day, which comes to Rs. 28,750. The counter-affidavit further reveals that admittedly the petitioner was paid a sum of Rs. 68,589.00 as Government Servant for working during the said period (1st December 1983 to 23rd December 1987) and received an excess amount of Rs. 39,789.00, which is recoverable from him. After making calculation of the entire amount, it is claimed by the respondents that the excess amount, received by the petitioner, has to be adjusted from the amount of pension, which the petitioner is entitled to get. 6. A reply to the counter-affidavit has been filed by the petitioner, reiterating his claim that he is entitled to the post-retirement benefit with effect from 23rd December 1987 and in addition to it, he is also entitled for time-bound promotion and pay admissable after such promotion with interest at the current market rate. 7. Learned Counsel, appearing on behalf of the petitioner, strenuously argued that in view of the clear finding recorded by this Court in C.W.J.C. No. 276 of 1988, the petitioner was entitled to get not only salary but other benefits also from 1st December 1983 to 23rd December 1987. 8. Learned Standing Counsel No. 1, on the other hand, contended that it was clear from the finding given in the said judgment that the petitioner was entitled to get only salary and that too, not as a public servant. According to learned State Counsel, it would mean that the petitioner was entitled to get remuneration for the said period as daily wage earner, as provided under the Minimum Wages Act and prescribed by the State Government under Annexure C. 9. In view of the pleadings of the parties and arguments advanced on their behalf, the only question for consideration in this case is whether the petitioner is entitled to get salary from 1st December 1983 to 23rd December 1987 or wages as a daily wage earner? In order to appreciate the arguments advanced on behalf of the parties, it is essential to peruse the relevant findings recorded in the judgment of C.W.J.C. No. 276 of 1988, which is thus: "18. In order to appreciate the arguments advanced on behalf of the parties, it is essential to peruse the relevant findings recorded in the judgment of C.W.J.C. No. 276 of 1988, which is thus: "18. However, it is evident that the respondents proceeded on the basis that the petitioner was to superannuate on his attaining the age of 58 years, treating his date of birth as on 31st November 1931 and on that basis only the petitioner was allowed to continue his service even after 30th November 1983. 19. In my opinion, although the petitioner was, in law, not entitled to work from 30th November 1983, but in view of the fact that he actually rendered services from that date till 23rd Decmber, 1987, when the impugned order as contained in Annexure 1 to the writ petition was passed, he will be entitled to the salary during the aforementioned period, but not as a Government servant". 10. As regards the said finding, learned Counsel for the petitioner laid emphasis on the expression salary and submitted that the expression" not as a Government Servant" mentioned in the judgment was superfluous and on the facts and in the circumstances of the case, it did not carry any meaning. On the other hand, according to learned State Counsel, expression "not as a Government Servant" would mean that the petitioner was to be treated as a daily wages earner. He tried to draw support from Law of Lexicon and sumitted that "salary" and "wages," both, were emoluments paid to an employee by way of recompense for his labour and, thus, there was no substantial difference between the two expenssions. It was further submitted that the expression "salary", used in the said judgment, obviously meant wages in view of the expression incorporated therein "not as a Government Servant". 11. The meaning assigned to the two expressions, as mentioned above, is based on the observation made in Mohammadalli V/s. Union of India and Ors. (1963-I-LLJ-536). It is worthwhile to mention that in the said decision, it has also been observed tha the "salary" is remuneration paid to an employee, whose period of engagement is more or less permanent in character, for other than manual or relatively unskilled labour. 12. According to the Shorter Oxford English Dictionary (3rd Edition) salary means: "to recompense, reward, to pay for something done". 12. According to the Shorter Oxford English Dictionary (3rd Edition) salary means: "to recompense, reward, to pay for something done". In Jowitts Dictionary of English Law (1959 Edn.), the term is explained thus: "a recompense, or consideration generally periodically made to a person for his service in another persons business; also wages, stipend, or annual allowance". In Strounds Judicial Dictionary (4th Edition), the expression salary is explained thus: "Where the engagement is for a period, permanent or substantially permanent in character, and is for other than manual or relatively unskilled labour, the remuneration is generally called a salary". 13. We would like to refer to Gestetner Duplicators V/s. L.T. Commissioner, W.B. (AIR) 1979 SC 607, in which, having noticed the dictionary meanings and Mohamedallis case (supra), it has been held as follows: " Conceptually there is no difference between salary and wages both being a recompense for work done or services rendered, though ordinarily the former expression is used in connection with services of non-manual type while the latter is used in connection with manual service. It is further common knowledge that this compensation to the labourer or artisan could be a specified sum for a given time of service or a fixed sum for a specified work i.e., payment made by the job, the commonest example of the latter category being a piece-rated worker. In other words, the expression wages does not imply that the compensation is to be determined solely upon the basis of time spent in service: it may be determined by the work done; it could be estimated in either way. If conceptually salary and wages mean one and the same, then salary could take the form of payment by reference to the time factor or by the job done. In fact, in the case of salary the recompense could be determined wholly on the basis of time spent on service or wholly by the work done or partly by the time spent in service and partly by the work done. In other words whatever be the basis on which such recompense is determined it would all be salary". 14. The term "Salary" has not been defined either in the Bihar Service Code or in the Minimum Wages Act. The expressions "salary" and "wages" may convey very nearly the same meaning, but neverthless they are not identical. In other words whatever be the basis on which such recompense is determined it would all be salary". 14. The term "Salary" has not been defined either in the Bihar Service Code or in the Minimum Wages Act. The expressions "salary" and "wages" may convey very nearly the same meaning, but neverthless they are not identical. There may not be substantial difference between the two expressions, but in the eye of law, there is slight distinction, which has been drawn from time to time in context of different Acts. In this connection, reference may be made to the case of Naylor V/s. Peacehaven Electric Light and Power Co., 47 TLR 535, in which it has been held where a person is paid weekly wages, it is not permissible to multiply the weekly wage by fifty-two and call the result an annual salary. We would also like to refer to K.V.V. Sharma (1953-I-LLJ-29), according to which, if the remuneration is to be paid daily or weekly, it can be called wages, within the meaning of the Factories Act. But when it is monthly remuneration payable on the last day of the month, or after that date and when the remuneration considering the general standards of payment is fairly high, then it has to be understood as salary. In the light of the observation made in the cases referred to above, it can safely be inferred that the meanings of the two expressions slightly vary on the facts of each case and in the context of different statutes. Thus, it is difficult to accept the contention of learned Counsel for the State that there is no distinction between the two expressions. 15. The expressions "salary" and "not as a public servant" occurring in the judgment as quoted above apparently may give an impression that they are contradictory to each other, but, in fact, they are complementary. From the first part of the judgment, it is clear that the petitioner is entitled to get salary. It is not stated therein that the petitioner should be paid his wages for the services rendered by him during the said period. It is well-settled according to the rules of interpretation that when the first part is unequivocal and certain in its terms, the second part will drive its colour from the first (AIR) 1960 SC 675. 16. It is not stated therein that the petitioner should be paid his wages for the services rendered by him during the said period. It is well-settled according to the rules of interpretation that when the first part is unequivocal and certain in its terms, the second part will drive its colour from the first (AIR) 1960 SC 675. 16. As regards the expression not as a public servant, it has to be interpreted in the light of the first part. Both the expressions, occurring in the judgment have to be read harmoniously. The significance of the expression salary cannot he minimised by putting an interpretation, which is against the spirit of judgment. 17. In our view, the expression not as a public servant has been used to indicate that any benefit accruing to the petitioner for the services rendered by him from 1st December 1983 to 23rd December 1987 will not be added for the purpose of computing his pension. When the petitioner was legally due for retirement on 30th November 1983, he cannot take advantage of the mistake, on the basis of which he continued to work even after the due date of his retirement. The retirement benefit, to which the petitioner is entitled, has to be calculated, treating the petitioner in service up to the 30th November 1983.....So, according to the judgment, the petitioner is certainly entitled to get the salary from 1st December 1983 to 23rd December 1987 at the rate at which he was drawing the salary on 30th November 1983. But this period has to be excluded for the purpose of giving him time-bound promotion and calculate his salary on the basis of the notional promotion. In our view, therefore, the petitioner is entitled to get only salary for the period 1st December 1983 to 23rd December 1987 and he cannot be treated as daily wage earner by the State. 18. Admittedly, the petitioner has been paid his salary up to 23rd of December, 1987. We are unable to appreciate the stand of the respondents that for the period, during which petitioner served after 30th November, 1983, he should get remuneration only as a daily rated worker and the excess amount paid to him should be deducted from the amount of his pension. This argument is devoid of any substance. 19. We are unable to appreciate the stand of the respondents that for the period, during which petitioner served after 30th November, 1983, he should get remuneration only as a daily rated worker and the excess amount paid to him should be deducted from the amount of his pension. This argument is devoid of any substance. 19. In the result, this writ application is allowed in part with the observations made above.