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1991 DIGILAW 1032 (ALL)

State of U. P. v. Prescribed Authority

1991-08-09

D.P.S.CHAUHAN

body1991
ORDER D.P.S. Chauhan, J. - These three petitions are directed against one and the same order dated 23.1.1987 passed by the authority under the Payment of Wages Act, 1936 (for brevity, hereinafter referred to as 'the Act') in Claim No. 3/PWA/85, 8/PWA/85 and No. 39/PWA/85 as maintained in Appeal No. 79 of 1986, No. 80 of 1986 and No. 81 of 1986 directed thereagainst. All these writ petitions, with the consent of the counsel for the parties, are being decided together as counter and rejoined affidavits have been exchanged and they involve common question for determination. 2. The brief facts leading to the controversy in the petitions are (a) One Balbir Singh, an employee in the office of the Executive Engineer, Temporary Division No. 1, Public Works Department, Shahjahanpur approached the Payment of Wages Authority (for brevity, hereinafter referred to as 'the Authority') by means of three separate claim petitions. Claim Petition No. 3/PWA/85 related to the claim for payment of salary for the period w.e.f. August, 1984 to December, 1984 during which period the claimant remained on leave, with full salary; Claim Petition No. 8/PWA/85 related to the claim for payment of salary for the period w.e.f. January, 1985 to 21.2.1985 and for subsistence allowance for the period w.e.f. 22.2.1985 to 30.6.1985; and the Claim Petition No. 39/PWA/85 related to the claim for payment of subsistence allowance for the period w.e.f. July, 1985 to September, 1985, leave encasement amount for the period w.e.f. 15.1.1985 to 13.2.1985, bonus for the year 1983-84 and arrears of additional dearness allowance. All the three claim petitions were decided jointly by one composite order dated 11.8.1986 allowing the claim in respect of salary, subsistence allowance, encashment amount and dearness allowance. (b) The said order dated 11.8.1986 was challenged by the Executive Engineer, Temporary Division No. 1, Public Works Department, Shahjahanpur by means of three separate appeals, as there were three separate claims, before the District Judge, Shahjahanpur, under Section 17(i)(ag) of the Act, which were decided on 23.1.1987 by one composite order maintaining the order appealed against. The two orders are the subject matter of challenge in the present petition under Article 226 of the Constitution for the relief of quashing the same. 3. The two orders are the subject matter of challenge in the present petition under Article 226 of the Constitution for the relief of quashing the same. 3. The present petitions are filed on behalf of the State of U.P., the Executive Engineer, Temporary Division No. 1, Public Works Department, Shahjahanpur and the Superintending Engineer, III Circle, Public Works Department, Bareilly though before the authorities below none of them except the Executive Engineer was the party. Heard the learned Standing Counsel for the petitioners and Sri G.C. Gaharana for the Respondent Claimant Balbir Singh, who is the main contesting respondent. 4. Learned counsel for the petitioners made the following submissions - (i) that the claim petitions before the authority were not maintainable in view of the bar under Section 6 of the U.P. Public Services Tribunal Act, 1976 (for brevity, hereinafter referred to as 'the Service Tribunal Act'); (ii) that the authority had no jurisdiction to grant the claim to the claimant respondent, Balbir Singh, without there being adjudication on the question of entitlement; (iii) that even if the entitlement was an incidental matter, the authorities below have failed to exercise the jurisdiction vested in them by not going into the question of entitlement; (iv) that the authorities below ought not to have granted any relief in the claim petitions unless the question of grant of subsistence allowance, medical leave and encashment leave amount were decided by the competent authority; and (v) that the claim in respect of bonus was not maintainable as the same was not the 'wage' within the meaning of clause (vi) of Section 2 of the Act. 5. In support of the first submission, the learned Standing Counsel has relied upon Section 6 of the Services Tribunal Act, which is extracted below : "6. Bar of Suits (1) No suit shall lie against the State Government or any local authority or any statutory corporation or company for any relief in respect of any matter relating to employment at the instance of any person who is or has been a public servant, including a person specified in clauses (a) to (f) of sub-section (4) of Section 1. (2) All suits for the like relief, and all appeals revisions, applications for review and other incidental or ancillary proceedings including all proceedings under Order 39 of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908), arising out of such suits, and all applications for permission to sue or appeal as prayer for the like relief, pending before any court subordinate to the High Court and all revisions arising out of interlocutory orders pending before the High Court on the date immediately preceding the appointed date shall abate, and their records shall be transferred to such. Tribunal as the State Government may specify, and thereupon the Tribunal shall decide the cases in the same manner if they were claims referred to it under Section 4; Provided that the Tribunal shall, subject to the provisions of Section 5, recommence the proceedings from the stage at which the case abated as aforesaid and deal with any pleadings presented or any oral or documentary evidence produced in the Court as if the same were presented or produced before the Tribunal. (3) All appeals pending before the High Court on the date immediately preceding the appointed date arising out of such suits shall continue to be beard and disposed of by that court as heretobefore as if this Act had not, come into force : Provided that if the High Court considers it necessary to remand or refer back the case under Rule 23 or Rule of 41 of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) the order of remand or reference shall be directed to such tribunal as the State Government may specify instead of to the subordinate court concerned and the Tribunal shall thereupon decide the case or issue, subject to the directions of the High Court, in the same manner as if it were a claim referred to it under Section 4". 6. Section 6 of the Services Tribunal Act is exclusionary provision excluding the filing of the suit by any person who is, or has been a public servant, including the persons specified in clauses (a) to (e) of sub-section (4) of Section 1 of thee Services Tribunal Act, against the State Government or any local authority or any statutory corporation or company for the relief in respect of any matter relating to employment. The bar created is in respect of the suit and the determination of the objection of the petitioners hinges on the meaning of the word 'suit'. The question is whether the claim petition can be treated as a 'suit' for the purpoposes of Section 6 of the Services Tribunal Act. The word 'suit' is not defined either in the Services Tribunal Act or under the Act or in the Code of Civil Procedure. According to the submission of the learned Standing Counsel the word 'suit' is of a wide amplitude so as to include in its fold the claim petition under the Act. 7. Learned counsel for the claimant respondent; Sri G.C. Gahrana, submitted that in view of a decision of this Court in Ghaziabad Development Authority v. Prescribed Authority, Ghaziabad, 1987 (55) FLR 556, the question is no more res integra. In the said case, a similar objection was there as to whether in view of the provisions contained in Section 6 of the Services Tribunal Act, the Authority had no jurisdiction to entertain the claim petition. In the said decision, reliance was placed on the case of the General Manager, North Eastern Railway, Gorakhpur v. Spirit, 1987 UPLBEC 384 : 1988 Lab IC 226, and the Court held that the proceedings by means of a claim petition before the Payment of Wages Authority are not barred on account of operation of Section 6 of the Services Tribunal Act. The Court also held that the claim petition preferred before the Payment of Wages Authority is not a suit within the meaning of Section 6 of the Services Tribunal Act. 8. Sub-sections (1) and (2) of Section 6 of the Services Tribunal Act, when read together, leave no doubt that the word 'suit' as used therein, relates to the proceedings in the Civil Courts, and does not relate to the proceedings before any authority or tribunal. Though the word 'suit' is not defined either in the Services Tribunal Act or under the Act or in the Code of Civil Procedure, but it has a settled connotation that the suit is a proceedings which commences with a petition in the nature of plaint and the claim should be one triable by a Court. The Authority under the Act cannot be designated as Court. 9. Apart from this, the objection, as raised by the petitioners, cannot be sustained even otherwise. The Authority under the Act cannot be designated as Court. 9. Apart from this, the objection, as raised by the petitioners, cannot be sustained even otherwise. There is no dispute so far as the status of the claimant-respondent is concerned that he is a public servant within the meaning of Section 2(b)(1) of the Services Tribunal Act. There is no dispute that he is employed in the Public Works Department and is in the service of the State of U.P. The Public Works Department is included in the expression 'industrial establishment' within the meaning of clause (ii)(g) of Section 2 of the Act, which applies to the persons employed in the Public Works Department. In the present case, the subject matter of dispute is not beyond the scope of the Act. The claimant-respondent is a workman as defined in the U.P. Industrial Disputes Act, 1947 and is a person falling in the category to which Service Tribunal Act is made inapplicable. Section 4 of the Services Tribunal Act speaks for referring the claim relating to the employment to the Tribunal where the employer has dealt with the employee in a manner which is not in conformity with any contract or in the case of a Government servant, with the provisions of Section 11 or Article 311 or with any rules or law having force of law under Article 309 or Article 313 of the Constitution. Section 4 is not attracted to the case of a workman and, therefore, there is no question of decision of the claim petitions, as made by the claimant- respondent, by the Services Tribunal. 10. Thus, the objection is unsustainable. The claim was maintainable before the Authority under the Act. The provisions of the Services Tribunal Act are not attracted and the bar under Section 6 thereof does not come into operation. Claim petitions were rightly entertained by the Authority under the Act. 11. The second objection is regarding the jurisdiction of the Authority that no claim can be granted without there being first adjudication regarding entitlement. The Authority has allowed the claim in respect of salary, subsistence allowance, encashment leave and arrears of dearness allowance, which are the matters requiring no declaration or adjudication from any authority. The claimant-respondent is entitled to receive them as of right. The Authority has allowed the claim in respect of salary, subsistence allowance, encashment leave and arrears of dearness allowance, which are the matters requiring no declaration or adjudication from any authority. The claimant-respondent is entitled to receive them as of right. The claim is confined only to the payment, which the claimant is entitled to under the law and has been wrongly deprived. The objection has no substance and is rejected 12. The third submission is that even if the entitlement is an incidental matter, the authorities below did not probe into the question of entitlement. The submission is unfounded. The Authority has considered the entitlement and after considering the material has allowed the claim. 13. The forth submission is that the respondents should not have granted the relief in the claim petitions unless the question of suspension, earned medical leave and encashment leave was decided by the proper authority. This objection is also untenable and unfounded. There was no question of any decision or determination by any authority so far as the question of subsistence allowance was concerned. The fact of suspension is not in dispute and when an employee is placed under suspension, he, as a matter of right, is entitled to receive subsistence allowance. So far the claims relating to earned medical leave and encashment leave were concerned, the authorities have not granted the claims and the objection, as raised by the petitioners, does not survive. 14. The fifth and the last submission, as made by the learned Standing Counsel, was that the claim petition in respect of bonus was not maintainable as the same was not 'wage' within the meaning of clause (vi) of Section 2 of the Act. The submission is made without any basis, and deserves to be rejected as the Authority has not granted the claim in respect of bonus. 15. In view of what has been stated above, the petitions have no force and deserve to be dismissed. 16. Accordingly all the three petitions are dismissed. In the circumstances, I make no order as to costs. Interim orders are discharged.