'955

The Collector of

Bombay

Nusserwanji Rattanji Mislri

and others

Venkatarama Ayyar J.

March I

SUPREME COURT REPORTS [1955]

by the respondents are not within the saving clause.

In the result, it must be held that the right of the appellant to levy assessment under section 8 of Act No. II of 1876 is not limited by any right in the respondents.

We accordingly allow the appeal, set aside the judgments of the Courts below, and dismiss both the suits instituted by the respondents with costs throughout.

Appeal allowed.

SURAJ PAL

ti.

THE STATE OF UTTAR PRADESH.

[VIVIAN BosE, JAGANNADHADAS and B. P. SINHA JJ.J

Indian Penal Code (Act XLV of 1860), ss. 302, 307-Charges and conviction by trial court under s. 302 read with s. 149 and under s. 307 read with s. 149 of the Code-Conviction by the appellate couri under ss. 302 and 307 of the Code-Legality-Code of Criminal Procedure (Act V of 1898), ss. 236, 237-Applicability-Retrlal.

Where a person has been charged along with others under ss. 302 and 307 of the Indian Penal Code each, only as read with section 149 of the Code, his convictions and sentences for the sub stantial offences under ss. 302 and 307 of the Code are erroneous.

The absence of specific charges in this. behalf is a serious lacuna in the proceedings, inasmuch as the framing of a specific and distinct charge in respect of every distinct head of criminal liability consti

tuting an offence is the foundation for a conviction and sentence cherefor. The conviction in these circumstances under ss. 302 and 307 of the Code and sentences of death and transportation for life -cannot be maintained unless the Court is satisfied, on the facts of the case, that the accused has not been prejudiced in his trial. Whe ther or not in such a situation the questioning of the accused during the course of his examination under s. 342 of the. Code of Criminal Procedure in relation to the offences under sections 302 and 307 of the Indian Penal Code can be relied upon as obviating the likelihood of prejudice has to be determined \Vith reference to the facts and ircumstances of each case.

All the circumstances of the case and the evidence and materials on the record should be looked into on the question arising in such a situation as to whether a retrial should be ordered or not ..

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 139 of 1954.

s.C.R.

SUPREME COURT REPORTS 1333 , Appeal by Special Leave from the Judgment and •Order dated the 29th April 1954 of the Allahabad High Court in Criminal Appeal No. 1101 of 1953 and Referred No. 111 of 1953 arising out of the Judgment . and Order dated the 3rd September 1953 of the Court of the Sessions Judge at Fatehpur in Sessions Trial / No. 50 of 1953.

+ .

Sadhan Chandra Gupta and Janardhan Sharma, : for the appellant.

K. B. Asthana and C. P. Lal, for the respondent.

1955.

March

1. The Judgment of the Court was delivered by

JAGANNADHADAS J.-This is an appeal by special leave from the judgment of the High Court at Allaha- . bad. The sole appellant before us has been convicted by the Sessions Court under sections 148, 307 and 302 of the Indian Penal Code, and sentenced to rigorous . imprisonment for two and a half years under section 148, to transportation for life under section 307, and to death under section 302.

These convictions and sentences have been confirmed by the High Court. . At the trial there were 19 other accused along with this appellant. All of them were convicted and sen- . tenced by the trial court under various sections. of the Indian Penal Code. On appeal ten out of them were acquitted by the High Court. In respect of the remaining nine besides this appellant, the convictions and sentences were partially modified.

But this appeal is not concerned with them. The incident in -the course of which these offences are said to have been committed took place in the evening of the 4th January, 1953, shortly before sun set in a village called Sonari in the district Fatehpur, Uttar Pradesh. During that incident two persons, Bisheshwar and Surajdin, are alleged to have received gun-shot wounds.

Bisheshwar survived but Surajdin died on the spot. The back-ground for this incident was as follows : In the village of Sonari there were two factions between whom there was prior history of enmity resulting ' in criminal prosecutions by each against the other. It

Suraj Pal v.

The State of Uttar Prader/,

Suraj Pal v.

The Statt of Uttar Pradesh

Jagannadhadas J.

may be broadly stated that the accused persons m the present case belong to one party and the prosecution witnesses as well as the deceased person belong to the other party. In the year 1946 there was rioting: between them in which two of the present prosecution witnesses were assaulted. This led to a criminal case against some of the present accused and other,. in which they were convicted and sentenced, the members of the other party figuring therein as prosecution witnesses. Again, just five months prior to the present incident, there was another rioting in the village bet-. ween these two group>. In that, one Ram Bharosey a.

member of the party of the present accused was killed ..

As a result 15 persons of the opposite-party (i.e. the party of the present prosecution witnesses) were prosecuted.

By the date of this incident that case had been committed to the sessions but the sessions trial had not started, According to the .prosecution case, the occasion for the incident, which concerns' us, was that some of the present accused wanted to. persuade or prevent a member of the opposite-party by name, Bisheshwar-P.W. 2 in this case-from do-- ing what is called pairavi on behalf of the accused in that case. (Pairavi is said to be the active assistance in relation to Court proceedings which a friend or agent renders to a litigant). While, Bisheshwar, P. W .. 2; and two others Bhurey Lal, P.W. 1, and Ram Saran, P.W. 3, were sitting in front of the house of Ram Saran on the evening of the 4th January, 1953,. the present appellant and the other accused are said . to have turned up before them, lathies in hand. The appellant is said to have asked Bisheshwar to give up doing pairavis in the then pending case on behalf of the accused therein.

Bisheshwar having declined to do so, the appellant is said have pulled out a pistol from bis inner pocket and fired at him, as a result of which he fell down on the ground. P.Ws. 2 and 3: are said to have dragged him inside the house and chained the door from inside, run up the roof and raised an alarm, whereupon a number of persons of the other party are said to have come running up.

One of the persons who so came running up was;

' /

~- .

Surajdin who was cutting fodder at the house of Bhurey Lal, P.W. 1. The appellant is said to have fired at him with the pistol. He fell down and died on the spot.· Another person named Gaya Prasad is said to have received some minor lathi injuries .. Accused party thereafter is said to have run away. First information of the report was lodged by Bhurey Lal, P.W. 1, near about 12 that very night at the police station which was about nine miles from the scene of the occurrence. The police came on the . scene the next · morning and the. usual investigation followed.

The police filed on the 22nd February, 1953, a charge-sheet for offences under sections 147, 148; 323/149 and 307/149. The charge-sheet in so . far as it was under section 323/149 related presumably to some minor injuries said to have been received by Ga ya . Prasad, and in so far as it was under section 307 /149 related presumably to the gun-shot wounds received by Bisheshwar, P.W. 2.

It may be noticed that the charge-sheet did not concern itself with any offence or offences alleged to have been committed, in bringing about the death of Surajdin by the firing of a pistol at him. It is on this charge-sheet that cognizance of the case was taken by the Magistrate and committal proceedings were started. It appears, however, that the complainant-party finding that the police challan . did not relate to the offence under section 302, Indian Penal Code filed; on the 2nd May, 1953, a private complaint, before the very Magistrate in whose court the commital proceedings were by then pending. That complaint was filed by the same Bisheshwar, P.W. 1, who lodged the first information in this case on the 5th January, 1953.

It sets out substantially the same facts. This complaint also was taken on the file of the Magistrate. The enquiry thereon was merged into the enquiry relating to the police challan case.

The Magistrate eventually committed all the 20 accused to take their trial before the sessions Judge by framing charges, under sections 147, 323/149, 307 /149 and 302/149. There was a specific charge under section 148, Indian Penal. Code against Suraj Pal and

,..

Suraj Pal v.

The State oj Uttar Pradesh

Jagannadhadas J.

Suraj Pal

The State of Uttar Pradesh

Jagannadhadas ,7•

bharm Raj, the former for being armed with a pistol and the latter for being armed with a pharsa, at the time of the commission of the rioting. It is in respect of charges so framed by the committing Magistrate without any amendment or alteration that the accused were tried in the Sessions Court. It may be mentioned at this .stage that the defence of the accused, apart from the general denial of their having anything to do with the incident and denials as to their having been present at the occurrence, was to the effect that it was the complainant's party including the deceased Surajdin who formed the unlawful assembly, with the common object of beating one Ram Pal of the village. This Ram Pal had appeared as a prosecution Witness at the committal stage in the criminal proceedings by then pending against the present prosecution witnesses as accused. It was also their defence that it was one Ram Bhawan of that party who, in the course of the incident, fired pistol shots in the air and also shot, later, Surajdin and brought about his death.

The learned Sessions Judge found all the accused guilty of the various offences as charged and sentenced them. On appeal the High Court considered the prosecution evidence with reference to three aspects. ( 1) How far the manner in which the prosecution alleged the incident to have taken place can be accepted; (2) How far the prosecution case regarding the presence and participation of the various persons can be accepted; and (3) What offence can be said to have been made out as against each of them.

On the first question the High Court accepted the view that the incident took place as alleged by the prosecution. With reference to the second, the High Court set out elaborately various reasons why the prosecution evidence in so far as it implicates particular individuals, could not be accepted at its face value and required to be carefully scrutinised. .With reference to certain criteria which it was considered necessary and right to adopt for purposes of scrutiny, the High Court held that the convictions of ten out of the 20 persons before it should be set aside and that

...

the other ten persons including the present appellant were participants in the rioting.

Accordingly, the Court confirmed the conviction as against these ten under section 147, Indian Penal Code. As regards the charge under section 148, Indian Penal Code, Dharm Raj was acquitted but the conviction of Suraj Pal was maintained on the ground of his having a pistol in his hand at the time of the rioting. There remained the three charges against the ten persons under sections 323/149 for injuries on Gaya Prasad, 307 /149 in respect of the gun-shot wounds received by Bisheshwar, and 302/149 in respect of the murder of Surajdin.

It was held that the assault on Gaya Prasad was not proved beyond doubt and hence all the accused were acquitted in respect of this charge.

As regards the other two charges, i.e., under sections 307/149 and 302/149, the High Court came to the conclusion that neither the attempt on the life of Bisheshwar by pistol fire nor the actual death of Surajdin by pistol fire can be said to have been in prosecution of the common object of the unlawful assembly nor to have been within the knowledge of the accused as being so likely. It was, therefore, held that none of the accused could be found guilty under section 149, with reference to, the attempt on the life of Bisheshwar, or the death of Surajdin. All the same, in view of the fact that the evidence showed that the person who inflicted the pistol fire as against both was the appellant Suraj Pal, it was held that he was guilty of the offences under sections 307 and 302, Indian Penal Code. On this ground, therefore, the High Court, while it set aside the convictions and sentences of all the accused under sections 307 /149 and 302/149, maintained the convictions of the appellant under these two sections and maintained the sentences of transportation for life under section 307 and of death under section 302, Indian Penal Code.

The High Court convicted the other nine persons under section 323/149 in respect of the injuries received by P.W. 2 and sentenced them therefor.

'!' On the above statement of the course of these proceedings, one important fact which emerges is that

Suraj Pal v.

The State of Uttar Pradesh

]agannadhadas J.

Suraj Pal v.

The State ef Uttar Pradesh

Jagannadhadas J.

there have been no direct and individual charges against the appellant for the specific offences under sections 3W and 302, Indian Penal Code. The question that arises is whether, without such direct charges the convictions and sentences for those offences can be maintained. It appears to us quite clear that a charge against a person as a member of an unlawful assembly in respect of an offence committed by one or other of the members of that assembly in prosecution of its common object is a substantially different one from a charge against any individual for an offence directly committed by him while being a member of such assembly. The liability of a person in respect of the latter is only for acts directly committed by him, while in respect of the former, the liability is for acts which may have been done by any one of the other members of the unlawful assembly, provided that it was in prosecution of the common object of the assembly or was such as the members knew to be likely to be so committed. A charge under section 149, Indian Penal Code puts the person on notice only of two alleged facts, viz., (1). that the offence was committed bv one or other of the members of the unlawful assembly. of which he is one, and (2) t.hat t.he offence was committed in prosecution of the common object or is such that was known to be likely to be so committed. Whether or not section 149, Indian Penal Code creates a distinct offence (as r_egarrls which there has been conflict of views in the High Courts), there can be no doubt that it creates a distinct head of criminal liabilitv which has come to be known as "constructive liabilitv" -a convenient phrase not used in the Indian Penal° Code. There can, therefore. be no doubt that the direct individual liabilitv of a person can only be fixed upon him with reierence to a specific charge in respect of the particular offence. Such a case is not covered by sections 236 and 237 of the Code of Criminal Procedure. The framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence. is the foundation for a conviction and sentence therefor. The absence, therefore, of specific

.-L

charges against the appellant under sections 307 and 302, Indian Penal Code in respect of which he has been sentenced to transportation for life and to death respectively, is a very serious lacuna in the proceedings in so far as it concerns him. The question then which arises for consideration is whether or not this lacuna has prejudiced him in his trial.

It is perfectly true that the initial accusation as disclosed by the first information lodged by the complainant, P.W. 1, on the 5th January, 1953, specifically, was to the effect that it was this appellant who with a pistol fired both as against Bisheshwar, P.W. 2, as also against the deceased, Surajdin. It is also true that this allegation was repeated m the private wmplaint filed by this same P.W. 1 in May, 1953, directly before the Magistrate. It is also undeniable that the evidence in court, both in the committal pro- -ceedings as well as at the sessions trial, given by the prosecution witnesses was m support of that allegation. But curiously enough, apart from the absence of any individual charges against the appellant for these specific offences, even the charges against him and others relating to the injuries inflicted on P.W. 2

and the deceased Surajdin are somewhat vague as to the authorship thereof. The relevant charges run as follows (after specifying the members alleged to constitute the unlawful assembly) :

"Firstly :-That you, on the 4th day of January 1953 at about half an hour before sunset in village Sonari, formed an unlawful assembly with the common object of committing the murders of Bisheshwar and Suraj Din and committed rioting.

And thereby committed an offence punishable under section 147 of the Indian Penal Code.

Secondly :-That you on the same date, time and place, in prosecution of the common object of the said unlawful assembly of which you were members at that time committed the murder of Suraj Din who was shot dead by a pistol fire.

And thereby committed an offence punishable under section 302/149 of the Indian Penal Code.

Suraj Pal v.

The State of Uttar Pradesh

Jagannadhadas J.

Suraj Pal v.

The Stale of Uttar Pradesh

Jagannadhada, J.

Thirdly :-That you on the same date, time and place, in prosecution of the common object of the said unlawful assembly of which you were members at that time attempted to commit the murder of Bishe-- shwar Singh by means of a pistol fire.

And thereby committed an offence punishable under section 307 /149 of the Indian Penal Code".

The portions underlined (for the purposes of this judgment) in the charge under heads 2 . and 3 above are curiously vague. They appear to indicate a definite non-committal attitude on the part of the. Public Prosecutor and the Court, which has the ultimate responsibility for the framing of the charge, ( vide section 226, Code of Criminal Procedure) as to who is the active author of the pistol fire referred to under these two heads of charge. When the charge was so pointedly vague, no accused was bound to direct his attention in his defence to the question as to whether he or somebody else was the person who fired the pistol which brought about the gun-shot wounds. It has been brought to our notice that the appellant has been specifically questioned in the Court of Sessions. under section 342, Code of Criminal Procedure on the footing that he was the person who fired at P.W .. 2 and the deceased, Surajdin, and that the accused. denied it. But this cannot be said to remove anv prejudice that would arise bv virtue of the vaguenes~·. in the charge at the sessions trial, as to who was the author of the pistol fire. Normally in a sessions . trial the accused has no right of cross-examination after the questioning under section 342, Code of Criminal Procedure. It has been suggested that sincesuch a question was put also in the questioning .by the committing Magistrate under section 342, Code of Criminal Procedure.. the accused had ample notice of this specific case before the commencement of the sessions trial But it does not follow that there could be no prejudice. On the other hand, the very fact that in spite of such questioning the charges framed in the Magistrate's Court, with their vagueness, in sc:> far as this feature therein is concerned, has been

..;..

. '

\ .

·,..i.

• f

maintained, before the Sessions Court without .any amendment, is likely to have been misleading. The appellant might well have relied on the absence of any such amendment as being an indication that he was not called upon to defend himself on the footing of his being the author of the pistol fire. In a case so serious as that which involves the sentences of transportation for life, and of death, and particularly in a case like the present one, where the death sentence has been awarded in the trial court by distinguishing this appellant from all the other accused in respect of his individual act by way of pistol fire, it is difficult to say that the accused has not been prejudiced by the absence of specific charges under sections 307 and 302, Indian Penal Code.

Further, the medical evidence indicates that P.W. 2 as well as the deceased Surajdin had gun-shot wpunds on their person. The evidence of the Doctor is to the effect that these wounds mav have been caused by a country pistol which, it is alleged, the appellant had in his hand. It has been suggested on behalf of the defence that the Medical Officer was not competent to speak about it and that if the prosecution wanted to rely thereupon, they should have called an arms expert to speak to the same. Whether or not this comment is legitimate, it is clear. that if the appellant is to be found directly responsible for inflicting the wounds, noted as gun-shot wounds by the Medical Officer, he might well have ·:\vailed himself of the opportunity to elucidate, by cross-examination or positive defence, the nature of the fire-arm which would have caused the actual injuries found on the bodies of P.W. 2 and of deceased Surajdin. In all the circumstances above noticed, we are satisfied that the absence of specific charges against the appellant under sections 307 and 302, Indian Penal Code has materially prejudiced him. We must accordingly set aside the convictions and sentences of the appellant under sections 307 and 302 of the Indian Penal Code.

The further . question that arises is whether or not we are to direct a retrial of the appellant in respect of these offences. We have given our best considera-

11-90 S. C. India/59.

Suraj Pal v.

The Stale of Utter Pradesh

• Jagannadhadas J.

Suraj Pal v.

The State of Uttar Pradesh

.Jaganniulhadas 1•

1342 SUPREl\fE COURT REPORTS [1955]

ti on to all" the circumstances of this case and have 'for this purpose -looked into the evidence and the material on the record. The case discloses certain outstanding features. At the very outset and simultaneously with >the first information filed by P.W. 1 in this case, there was another report filed by one Ram Pal at the same police station, almost exactly at the same time, relating to the same incident. This is Ex. P-16 on the record. This report is said to have been lodged at the

police station at 12-15 in the night, while the other report is said to have been lodged at 12-10 that night.

The report, Ex. P-16 alleged the present prosecution party to be the aggressors and put forward, as the occasion for the incident, an attempt on the part of the prosecution party to beat Ram Pal, the complainant of that complaint, for having given evidence in support of the prosecution in the committal proceedings of the rioting case then pending against the present prosecution witnesses (as accused therein)- obviously with a view to prevent him from giving evidence in the Sessions Court against them. That complaint specifically refers to one Ram Bhawan who is P.W. 4 in the present case as the person who had a pistol in hand and fired with it. That report makes no mention of any injuries having been by then received from pistol fire, in the course of that incident.

Of course, there is no proof, in this case, of any of the allegations in that report.

But it appears from the order of commitment in this case (which forms part of the present printed record) that with reference to that report there was pending, at the date of th.e committal, a cross-case against some of the prosecution witnesses in the present case for the same incident. The police constable moharrir of the police station where the counter complaint, Ex. P-16 was lodged and who accepted both the complaints (1) from Bhurey Lal, and (2) from Ram Pal, has stated in his eviilence that when the complaint, Ex. Pc16, was filed by Ram Pal the present appellant Suraj Pal had also accompanied Ram Pal, the complainant therein.

This may well be claimed to be the eonduct of an innocent person. It is also not without some significance

....

' .

• -

S.C.R.

SUPREME COURT REP0RTS 1343

that admittedly an_d -as a mat_ter of fact, the _ police . did not file any _charge-sheet in the present case

~ against any one for the actual offence of murder under section 302, Indian Penal Code and that even in the charge-sheet which they did file they confined the case to section 307, Inaian Penal Code but did not commit themselves as to who out of the members of the unlawful assembly was the author of the pistol fire. , So far as it appears from the police charge-sheet dated T the 22nd February, 1953, as printed in the record before us, there is a statement therein to the effect "Sura: Pal Singh and Ram Manohar were armed with -

pistols".

Ram Manohar is also one of the accused who was put up for trial.

The statements of some of the prosecution witnesses furnish indication of more than one fire-arm _having been used at the incident. Thus, for instance, Bisheshwar, P.W. 2, said "I heard 3 or 4 guns being fired outside and also heard a noise".

P.W. 4, Ra_m Bhawan, said "We four persons threw lumps of earth from the well at the accused persons, the accused retired and fired their gun twice ......... . . . . . . . . . The accused had fired a gun from the door -of Mahadeo when going away, then had fired two or three guns from his door". P.W.- 5, Gaya Prasad, said "Two or three guns afterwards had been fired from the door of Mahadeo Pandit. Those guns had been fired from the lane. The guns had been fired at the door of Ram Saran and had hit it". All these witnesses no doubt assert that so far as the particular injuries with which this case is concerned the firing was by the appellant Suraj Pal. But the above statements by these witnesses in the cross-examination may well indicate that there may have been bther persons in the unlawful assembly at that time \vith

arms in their -hands, who made use of them by firing.

Apart from the use of pistols in the course of that incident, by one party or the other, there are clear indications that there was a mutual fight between both the parties. Two of the persons on the side of the accused, viz. Lal Pratap and Chedi Lal have received some iniuries .and their injury . certificates have

ns.s

Surj Pal v.

The State of Uttar Pradesh

Jagannadhada J.

Suraj Pal v.

The State of Uttar Pradesh

Jagannadhadas J,

1344 SuPREME COURT REPORTS [1955]

been marked as Exs. D-1 and' D-2. The prbsecution witnesses themselves admit that there was 'mutual fighting to this extent, viz. that there was also thrmving of brickbats by the complainant's party against the rioters.

As already stated there is in fact'it counter case against some of the present prosecution witnesseS in respect of the same incident. In such a situation any further trial is likely to result only in very · doubdul and unreliable evidence being adduced after a considerable lapse of tinie. Even as it is, the' evidence recorded 'in the present case has been found by the High Court in its judgment as not acceptable at its face value.. The learned Judges have dealt with this :tspect at length and· they wound up their consideration of this patt cif the case as follows : · "For the above reasons, I am of opinion that there is a good deal of substance in this part of the arguments of the appellants' counsel.

The question that would arise is as . to which of the particular accused is guilty and what should be the criterion for deciding this matter. In view of the biassed and interested nature of the prosecution evidence, I am of opinion that the presence of on! y those accused should be held to have been proved who have been .assigned any definite part by the prosecution witnesses or whose presence is corroborated by some other circumstantial evidence. In view of the 'highly interested nature of the prosecution evidence, dealing with the first aspect of the case also, viz. the question as to how far the prosecution have succeeded in proving the manner in which the incident occurred, I have not accepted the prosecution case unless it found corroboration from some other factor of a circumstantial nature or from probabilities of the case".

It is by reference to these standards that they have rejected the evidence of the prosecution witnesses in so far as they implicated ten other accused whom the High Court acquitted. But it appears to us, that judged by the very same standards there is no adequate reason for accepting the evidence as being reliable in respect of this appellant also. In fact there is good reason to feel that on the same standards this a pp el- . ~

. +

.,,.

~ . S.C.R .. 1345

SUPREME.COUR~ REPORTS

~ ' . . . .. ~

- . .

. ;

lant also should have got the benefit of the doubt.· At this stage, it is not out of place to mention: one fact. It appears from the evidence of the Investigating Officer, P.W. 14, that in the course of th~ irivesti-. gation the prosecuting authorities were of the opinion that the murder in this case was to be attributed.• to the prosecution witness, Ram Bhawan, P.W. 4, and not to the appellant, and that in their view even the evidence as against Ram Bhawan was not sufficient to put him on trial for the murder. Doubtless such an opinion of the prosecuting authorities has no relevancy in the case and should not have .been placed on the record in this case. But when we have. to consider the desirability or otherwise of retrial, we need not shut our eyes to these features of .the case. which have been brought on the record. In the cir~ cumstances mentioned above we do not consider that the interests of justice require that any retrial should be ordered. We accordingly .direct that there shall be no retrial. . : . . . . . In the result, the convictions of the appellant .under sections 307 and 302 of the Indian Penal Code and the sentences therefore are hereby set aside. But his conviction under section 148 of the Indian Penal Code is maintained as also the sentence of two. year~. and a half in respect thereof. This appeal is accordingly allowed partially to the extent indicated above. Appeal partially allowed.' '

THE DIVISIONAL ENGINEER, G.LP. RAILWAY

v. ' .

MAHADEO RAGHOO AND ANOTHER;· .

[VJYIAI:" .. BosE, JAGANNADHADAs,

VEJ>T:\(ATARAMA.

A:YYAR. and B.. P. SINHA JJ.] , ,. , .. ,

Payment of Wages Act, 1936 (IV of 1936), s."2(; i}-Wages-

Houf~ rent allowance.,.-'rJlhether falls•r, vithin. the <irfinition .ofwages under the Act-Rule 3(i) of the statutor.y R_ules framed.by the Government-Legal effect thereof. ,. " .... ' ' '" ""' ·

The Railwa{ Board under the 'Ministry of Railw~s of fhd Government of India introduced a scheme with effect 1frori:l<tb:e'. 1st

Suraj Pal v.

The State of Uttar fradesh

Jagannadhadas J.

March 2

section 8

SURAJ PAL

THE STATE OF UTTAR PRADESH

VIVIAN BosE

JAGANNADHADAS

B. P. SINHA JJ

Indian Penal Code

ss. 302, 307

s. 302

s. 149

s. 307

s. 149

ss. 302 and 307

Code of Criminal Procedure

ss. 236, 237

ss. 302 and 307

Indian Penal Code

section 149

ss. 302 and 307

ss. 302 and 307

s. 342

Code of Criminal Procedure

sections 302 and 307

Indian Penal Code

Sadhan Chandra Gupta

Janardhan Sharma

K. B. Asthana

C. P. Lal

sections 148, 307 and 302

Indian Penal Code

section 148

section 307

section 302

Indian Penal Code

4th January, 1953

Sonari

Fatehpur

Uttar Pradesh

Bisheshwar

Surajdin

Jagannadhadas

Ram Bharosey

Bisheshwar

Pairavi

Bhurey Lal

Ram Saran

Surajdin

Gaya Prasad

22nd February, 1953

sections 147, 148

section 323

Ga ya . Prasad

section 307

section 302

Indian Penal Code

2nd May, 1953

5th January, 1953

sections 147, 323

section 148

Suraj Pal

State oj Uttar Pradesh

State of Uttar Pradesh

bharm Raj

Ram Pal

Ram Pal

Ram Bhawan

section 147

Indian Penal Code

section 148

Indian Penal Code

Dharm Raj

Suraj Pal

sections 323

Gaya Prasad

sections 307

section 149

sections 307 and 302

Indian Penal Code

sections 307

section 307

section 302

Indian Penal Code

section 323

agannadhadas

State ef Uttar Pradesh

sections 3W and 302

Indian Penal Code

section 149

Indian Penal Code

section 149

Indian Penal Code

sections 236 and 237

Code of Criminal Procedure

sections 307 and 302

Indian Penal Code

4th day of January 1953

Suraj Din

section 147

Indian Penal Code

section 302

Indian Penal Code

Jagannadhada

Stale of Uttar Pradesh

Bishe-- shwar Singh

section 307

Indian Penal Code

section 226

Code of Criminal Procedure

section 342

Code of Criminal Procedure

section 342

Code of Criminal Procedure

section 342

Code of Criminal Procedure

sections 307 and 302

Indian Penal Code

sections 307 and 302

Indian Penal Code

sections 307 and 302

Indian Penal Code

.Jaganniulhadas

Ram Pal

Bhurey Lal

section 302

Indian Penal Code

section 307

Inaian Penal Code

Pal Singh

Ram Manohar

Ram Manohar

Ra_m Bhawan

Mahadeo

Mahadeo Pandit

Ram Saran

Lal Pratap

Chedi Lal

sections 307 and 302

Indian Penal Code

section 148

Indian Penal Code

DIVISIONAL ENGINEER, G.LP. RAILWAY

MAHADEO RAGHOO

B.. P. SINHA

Payment of Wages Act, 1936

Railwa{ Board

State of Uttar fradesh


~ . S.C.R .. 1345

SUPREME.COUR~ REPORTS

~ ' . . . .. ~

- . .

. ;

lant also should have got the benefit of the doubt.· At this stage, it is not out of place to mention: one fact. It appears from the evidence of the Investigating Officer, P.W. 14, that in the course of th~ irivesti-. gation the prosecuting authorities were of the opinion that the murder in this case was to be attributed.• to the prosecution witness, Ram Bhawan, P.W. 4, and not to the appellant, and that in their view even the evidence as against Ram Bhawan was not sufficient to put him on trial for the murder. Doubtless such an opinion of the prosecuting authorities has no relevancy in the case and should not have .been placed on the record in this case. But when we have. to consider the desirability or otherwise of retrial, we need not shut our eyes to these features of .the case. which have been brought on the record. In the cir~ cumstances mentioned above we do not consider that the interests of justice require that any retrial should be ordered. We accordingly .direct that there shall be no retrial. . : . . . . . In the result, the convictions of the appellant .under sections 307 and 302 of the Indian Penal Code and the sentences therefore are hereby set aside. But his conviction under section 148 of the Indian Penal Code is maintained as also the sentence of two. year~. and a half in respect thereof. This appeal is accordingly allowed partially to the extent indicated above. Appeal partially allowed.' '

THE DIVISIONAL ENGINEER, G.LP. RAILWAY

v. ' .

MAHADEO RAGHOO AND ANOTHER;· .

[VJYIAI:" .. BosE, JAGANNADHADAs,

VEJ>T:\(ATARAMA.

A:YYAR. and B.. P. SINHA JJ.] , ,. , .. ,

Payment of Wages Act, 1936 (IV of 1936), s."2(; i}-Wages-

Houf~ rent allowance.,.-'rJlhether falls•r, vithin. the <irfinition .ofwages under the Act-Rule 3(i) of the statutor.y R_ules framed.by the Government-Legal effect thereof. ,. " .... ' ' '" ""' ·

The Railwa{ Board under the 'Ministry of Railw~s of fhd Government of India introduced a scheme with effect 1frori:l<tb:e'. 1st

Suraj Pal v.

The State of Uttar fradesh

Jagannadhadas J.

March 2

ig55 - The bivisional

Enginer;. G./._P.

Rail]IJay v; ..

Mahadeo Raghoo

and another

Novemer .1947 granting compensatory (city) allowance ar:.d house

ren~. allowances at certain rates to certain Railway employees (in~ eluding the 1st respondent who wa_s, rajlway einployee since 1945) stationed at specified headquarters. The first respondent. drew this allov.; ance along with his salary up io the 18th August 1948, when he was offered by the Government, quarters .<:uitable to his post, but he refused to occupy the same and the house rent allowance was stopped from the date of his refusal to occupy the quarter offered to him. Rule,}(i). of the., Statutory Rules framed by the Government arid Pllt ihto effect On 1st November 1947 runs as follows : . "Th.e ho'use rent alloace in not be admissible to those who occupy a'.ccommodation pto'.vided by Government or those to whom acCommodation has been offered by Governine'nt. but Who. have refused" . . Held," tllat the house ient alloWance is adn1issible only so long as an employee is stationed <it one of the specified places and has not been offered Government qllarters.

T.he rules distitictly provide that the allowance will not be admissible to those who occupy Government .quar.ters or. _those to whom such quarters have been offred but who have refused to take advantage of the offer. Once an employee Of the descl-iption given above has beeri offered stlitale hoUse

accommodation and he has refused it, he ceases t9 be eniitled to the house rent allowance and that allowance ceaSes to be "wages" within the meaning bf the. definition in s. 2(vi) of the Act because it is no more payable under the terms of the contract.

The grant Of house rent .allowance does not create an indefeasible. right in. the employee at .all places wherever he may be posted and in all, ircumstances, irrespective of whether or not he has Peen

offered Coverllmet qu<irters. ·

CIVIL . APPEL!, ATE JuRISDICTION : Civil Appeal No. 208 of 1952.

' .

Appeal by Special Leave from the Judgment and + Order dated the 28th day of September 1951 of the Authority under the Payment of Wages Act, Bombay in Application No. 500 of 1951.

M: C. Setalvad, Attorney-General for India

( G. N.

Joshi, Porus A. Mehta and' P. G. Go'k, hale, with him), for the appellant.

/. B. Dadachanji, M. V. /ayakar and Rajinder , Narain; for respondent No. l;

. 1755.. March ~- The Judgi; nent of,. the;. C!>urt was .leliverec!-hy - ·

• J ',.-

SINHA J.-This is an appeal by special leave from the orders dated the 28th September 1951 passed by the 2nd respondent, the Authority appointed under section 15(1) of the Payment of Wages Act (IV of 1936), (which hereinafter will be referred to as the Act) allowing the 1st respondent's claim for house rent allowance as part of his wages.

In this case the facts are not in dispute and may shortly be stated as follows : The 1st respondent . is a gangman in the employ of the Central Railway (which previously used to be known as the G.I.P. Rly.), since April 1945. At that time his wages were Rs. 18 per month plus dearness allowance.

With effect from the 1st November 1947 the Railway Board under the Ministry of Railways of the Government of India introduced a scheme of grant of compensatory (city) allowance and house rent allowance at rates specified in their memorandum No. E47 CPC/14. This scheme was modified by the Railway Board's letter No. E47 CPC/14 dated 1st December 1947. As a result of this scheme certain railway employees stationed at specified headquarters were , eligible for the allowance aforesaid at certain specified rates. The 1st respondent thus became entitled to the allowance of Rs. 10 per month. This allowance the 1st respondent drew along with his salary until the 18th August 1948 when he was offered by the Government, quarters suitable to his post, but he refused to occupy the same. On his refusal to occupy the quarters offered by the Government, the house rent allowance was stopped with effect from the 19th August 1948.

On the 8th June 1951 the 1st respondent put in his claim before the Authority for Rs. 290 on the ground that the appellant,· the Divisional Engineer, G.l.P. Rly., who was the authority responsible under section 4 of the Act for payment of wages, had stopped payment of house rent allowance to him from the 19th Augu:>t 1948.

The claim covered the period the 19th August 1948 to the 18th January 1951 at the rate of Rs. 10 per month. The appellant appeared before the Authority ; ind by his written statement" contested the claim on tl1e ground that the house rent allowance 'which was

The Divisional Engineer, G.I.P •

Railway v.

M ahadeo Raghoo and anothd

Sinha J.

The Divisional Engineer, G./.P ' Railway v.

Maadeo Raghoo and another

Sinha J.

the .. subject matter . of the claim was- -not "wages" within the meaning of -section- Z(vi) of the- Act. It was, therefore, submitted by the appellant who wa; the opposite party before the authority that .it had no jurisdiction to entertain the claim which should be dismissed in limine. It was further pleaded that the claim was inadmissible on the ground that there had been no illegal deduction •from the respondent's wages inasmuch as the respondent had been allotted railway quarters of a suitable type and as he had refused to occupy those quarters, he was not entitled under the rules to any house rent allowance. Alternatively, it was further - pleaded by the appellant that so much of the claim ' as related to a period precedirig six months immediately before the date of the application was time-barred under the first proviso to section 15 (2) of the Act. The Authority. condoned the delay and that parf of the order condoning the delay is not in controversy before us.

On the issues thus joined between the parties the Authority came to the conclusion that the house rent allowance was "wages" as defined .in the Act, that as a matter of fact, accommodation was -offered to the 1st respondent and he refused. it; but that even so, the appellant was not entitled to withhold - the -. house rent allowance. - Accordingly the claim for Rs. 290 was allowed by. the Authority.

The short point to be decided in .this case is whether the house rent allowance claimed by . the 1st· respondent came within the purview of the definition -of "wages" contained in the Act There being no difference on-· questions of fact between the parties, the answer -to the question raised must depend upon the construction -to be placed - upon: the following 1ii:aterial portion of-the definition of. '.'wages" in ectiori •2(vi)

of the Act :~ . , . . - .- . . . . " -

"'Wages~ means all emunerition, capable-'of -be. ing' •expressed, in terms :of money,; which--would; if the terms of .the -contract ofemployment;•express'.-ot implied,- ·, Were .Julfilled;• be payable,• .Whether . conditionally. upon . the, regular , attendance,_ good-w, ork .or conduct or -, othc; r;: behayour. rof the person employed or .-othrc

' .

-.,·

. ; 'y

wise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include- ( a) the v:1J:µe of any house-accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the State Government .......... ·

" Shorn of all verbiage, "wages" are remuneration payable by an employer to his employee for services rendered according to the terms of the contract between them. The question then arises, what are the terms of the contract between the parties. When the 1st respondent's employment under the railway administration represented by the appellant began, admittedly he was not entitled to any such house rent allowance. As already indicated, the scheme for payment of house rent allowance was introduced with effect from the 1st November 1947 when the rules were framed, admittedly under sub-section (2) of section 241 of the Government of India Act, 1935, by the Governor-General. Those rules were amended subsequently. We are here concerned with the amendment made by the Railway Board by its letter No. E47CPC/ 14 dated the 1st December 1947, particularly rule 3(i) whiCh'is in these terms :-

"The house rent allowance will not be admissible to those .. who occupy accommodation provided by Government. m those to whom -accommodation has been offered by Government but who have refused it".

- It has. been argued .on behalf of the appellant that the terms -of the contract between the parties -include the rule quoted above and -that therefore the position in law is that there is no absolute right in the 1st respondent to claim the house -rent allowance; in other wor.ds, it .is -contended. that _there is a .cndition precede.nt, to th~, claim for .house re11t allowmce being admissible,. nawely, hat th~ employee~ should. , e posted at on<: oL ~()se. places,,_(' like .. Boi; nbay,, .Calcutta,

The -Divisional Engineer, G.J.P.

Railway v.

Mahadeo Raghoo

and another

, Sinha J.

The .Divisional Engineer, G.J.P.

Rililway v.

Mahadeo Raghao

and another

Sinha J.

Madras, etc., before the claim for house rent, allowance could arise and. that there is a condition subsequent, namely, that. the employee posted at any one of those places will cease to be entitled to the allowance if either the Government provides accommodation to the employee in question or the employee refuses to occupy the accommodation so offered to him. On the other hand, it has been argued on behalf' of the 1st respondent that the employee's right to the allowance accrues as soon as he has fulfilled the terms of the contract of employment including regular attendance, good work. or conduct and his other behaviour in terms of the definition of "wages" as contained . in the. Act. It was also argued on. beha)f of the 1st res~ pondent that the terms of the definition have to be construed consistently. with the provisions of sections 7 and 11 of the Act; that rule 3(i) quoted above is inconsistent with some of tl1e terms of the definition of "wages" and the provisions of sections 7 and 11 and that in any event, if rule 3(i) aforesaid .were to be considered as a part of the terms of the contract between the. parties, section 23 of the Act prohibits an employee from entering into . such a .contract. , as has the effect of. depriving him of his vested rights. ·

 . It should be noted at the outset that the learned Attorney-General appearing on behalf of the appellant has not pressed the argument which appears to have been raised in the written statement of the ap:- pellant and also before the -Authority as would appear from the orders passed by him, that clause (a) excluding "the value of any house accommodation" clearly showed that house rent allowance was . not included in "wages"· as defined in section 2(vi) of the Act. As will presently appear, this . argument proceeds on the unwarranted assumption that house . rent allowance is synonymous with the value of any .house.accommoda• tion. referred . to in the definition of. "wages" and in section 7 (2) (b) and section 11 of the Act.

The answer to the question whether house rent

' .

allowance is "wages" may be 'in the affirmative if the "' rules .framed by the department relating . to the grant of. house rent allowance make it compulsory for the

employer to grant house rent allowance without anything more : in other words, if the house rent allowance had been granted without any conditions or with

conditions~ if any, which were unenforceable in law.

But the statutory rules framed by the Government governing the . grant of house rent allowance do not make it unconditional and absolute in terms. The house rent allowance in the first instance is not admissible to all the employees of a particular dass. It is admissible only to such railway employees . as are posted at specified places in order "to compensate railway servants in certain costlier cities for excessive rents paid by them over and above what they might normally be expected to pay"; nor is such an allowance "intended to be a source of profit" or to be "an allowance in lieu of free quarters", as specifically stated in the preamble to the letter No. E47CPC/14, dated 1st December 1947, issued by the Railway Board.

The argument on behalf of the 1st respondent would have been valid if the rules in terms contemplated the grant of house rent allowance to every employee of a particular category but the rules do not make the grant in such absolute terms. The house rent allowance is admissible only so long as an employee is stationed at one of the specified places and has not been offered Government quarters.

The rules . distinctly provide that the allowance will not be ad"

missible to those who occupy Government quarters or to those to whom such quarters have been offered but who have refused to take advantage of the offer. Once an employee of the description given above has been offered suitable house accommodation and he has refused it, he ceases to . be entitled to the house rent allowance and ' that allowance thus ceases to be "wages" within the meaning of the definition in the Act, because it is no more payable under the terms of the contract.

Iii 'our opinion, it is clear beyond all reasonable doubt that the rule5 which must be included in the terms Of contract btween the employer and the employ_ee contemplate that an ,. employee posted at one

The. Divisional Engineer, G.I.P.

Railway v.

Mahadeo Ragho1>

and another

Sinha J.

The D'iuisir:mal Engineer, G.J.P.

Railway v.

Mahadeo Raghoo and anotMr

Binha J.

1352 SUPREME COURT REl1QRTS [1955]

of the. specmed places would be entitled to horu; e rent allowance; but that as , soon as he. is <>ffered.. Government quarters .for. his .accommodation, .he .. ceases.. to be so entitled, whether he ·, actually, occupies ., or dqes not occupy the quarters offered to him. . Hence the grant of house rent allowance .does not .create an indefeasible right in the . employee at all , places wherever he may be posted. and in all circumstances, irrespectivs:

of whether or not he . has . been .. offered Government quarters.. . . . .

But it has been argued on behalf of the respondent that such a conclusion would be inconsistent with the provisions of sections 7 and 11 of .the Act.. .We . do not" see any such inconsistency. Section 7 of the Act deals with such:· deductions. as may be made from the wages . as defined in the Act, of .an employee .. Subsection. (2) of section 7 . categorically specifies the heads under which deductions may lawfully be made from wages. Clause ( d) of this sub-section. has reference to "deductions for . house accommodation supplied by the employer", and section .. 11 provides that stich a :deduction shall not be made unless .. the. house accommodation has . been accepted by the. employee and shall not exceed the amount equivalent to the value of such . accommodation. The definition of "wages" in the Act also excludes . from -.its. operation the value of house accommodation referred. to, in. sections ·"! and 11. as aforesaid.· The legislarnre,, has , used the expression "value of any . house. accommodation" in .the definition of '.'wages"-. •as denoting something which can .be: deducted from. ,'.'wages''., The •. c9ne ex, dudes the. other. .It .is ... thus clear-. that: the.,, definition of "wages" under the:Act cannot .include :the"value of any house accommodation •:supplied: by . the employer tothe employee;. otherwise .jc ... would.· not.be a".legally permissible' deduction' .from wages. , . It: isc equally! clea:r that house rent allowance which may . •in:::certain

cir'.umstances .. as "aforesaic\ be includd., , in, "w.ge,~' is m,>t ,)"he, .. ;~\l; J; I}~; thing. i'S the;; .valu~;, of apy .Ji~¥s~.-.ac, coinm<;>Patipn. refw; d to , in th~ J\qt., Th.at,., h!; ing,,, s9,

there i~ n, q : . rcaiidify., .ii),, , tjie .a, rgup; ient , ftd, vancer.l . on.,.h~-. half of the 1st respondent that rule 3(i) aforesaid is

....

inconsistent . witli . the provisions of sections . 7. and 11 of the Act. '. .. . . . . . . . . . " .. ,, It remains to consider the last argument advanced on behalf of the lst respondent that section. 23 of the.

Act prohibits an employee from relinquishing such a right as is the subject matter of rule 3(i) quoted above. This argument proceeds on the . assumpti9n that house rent allowance which is a right. conferred on the employee is an absolute right. It has already been held above that the Act read along with the rules which constitute the terms of the contract between the employer and the employee does not create any absolute right in the employee to the house rent allowance. That being so, there is no question of the employee relinquishing any such right as is contemplated by section 23.

For the reasons aforesaid, the appeal succeeds.

The orders passed by the Authority are set aside. Jn the special circumstances of this case there will be no order as to costs.

Appeal allowed: .

A. V. D'COSTA

B. C. PATEL AND ANOTHER.

[VIVIAN BosE, ]AGANNADHADAS, VENKATARAMA AYYAR and SINHA JJ.]

Payment of Wages Act, 1936, (IV of 1936), Ss. 5, 7, 15(1)(2)- Claim for wages due on account of the introduction of upgrading of persons-Claimant's right to be placed on monthly wages ignored- No delay in payment of wages or deduction of wages alleged-Authority under the Act-Whether had jurisdiction to decide the complaint of the applicant.

The second respondent had been an employee of the Central Railway as a daily rated casual labourer on specified daily wages since 1941. He continued to receive his wages at the specified rate until October 1949. In October 1949 he made an application through an official of the Registered Trade Union-a person permitted by the authority under sub-section (2) of s. 15 of the Payment of Wages Act, 1936-claiming his wages due in respect of six months from May to October 1949. The respondent did not allege delay in the

The Divisional Engineer, G./.P.

Railway v.

Mahadeo Raghoo and another

Sinha J.

March 4

Ram Bhawan

sections 307 and 302

Indian Penal Code

section 148

Indian Penal Code

DIVISIONAL ENGINEER, G.LP. RAILWAY

MAHADEO RAGHOO AND ANOTHER

B.. P. SINHA

Payment of Wages Act, 1936

Railwa{ Board

Jagannadhadas

Mahadeo Raghoo

1st November 1947

s. 2(vi)

Payment of Wages Act

C. Setalvad

G. N.

Joshi

Porus A. Mehta

P. G. Go'k

B. Dadachanji

M. V. /ayakar

Rajinder , Narain

SINHA

section 15(1)

Payment of Wages Act

CPC

CPC

1st December 1947

18th August 1948

8th June 1951

section 4

19th Augu:>t 1948

M ahadeo Raghoo

Sinha

section 15

section 241

Government of India Act, 1935

Mahadeo Raghao

places,,(' like .. Boi; nbay,, .Calcutta,

The -Divisional Engineer, G.J.P.

Railway v.

Mahadeo Raghoo

and another

, Sinha J.

The .Divisional Engineer, G.J.P.

Rililway v.

Mahadeo Raghao

and another

Sinha J.

Madras, etc.,

sections 7 and 11

sections 7 and 11

section 23

section 2(vi)

section 7

section 11

Mahadeo Ragho1

Binha

sections 7 and 11

Section 7

section 7

section 23

A. V. D'COSTA

B. C. PATEL

VIVIAN BosE

AGANNADHADAS

VENKATARAMA AYYAR

Payment of Wages Act, 1936

Ss. 5, 7, 15(1)(2)

s. 15

Payment of Wages Act, 1936


....

S.C.R.

SUPREME COURT REPORTS 1353

inconsistent . witli . the provisions of sections . 7. and 11 of the Act. '. .. . . . . . . . . . " .. ,, It remains to consider the last argument advanced on behalf of the lst respondent that section. 23 of the.

Act prohibits an employee from relinquishing such a right as is the subject matter of rule 3(i) quoted above. This argument proceeds on the . assumpti9n that house rent allowance which is a right. conferred on the employee is an absolute right. It has already been held above that the Act read along with the rules which constitute the terms of the contract between the employer and the employee does not create any absolute right in the employee to the house rent allowance. That being so, there is no question of the employee relinquishing any such right as is contemplated by section 23.

For the reasons aforesaid, the appeal succeeds.

The orders passed by the Authority are set aside. Jn the special circumstances of this case there will be no order as to costs.

Appeal allowed: .

A. V. D'COSTA

B. C. PATEL AND ANOTHER.

[VIVIAN BosE, ]AGANNADHADAS, VENKATARAMA AYYAR and SINHA JJ.]

Payment of Wages Act, 1936, (IV of 1936), Ss. 5, 7, 15(1)(2)- Claim for wages due on account of the introduction of upgrading of persons-Claimant's right to be placed on monthly wages ignored- No delay in payment of wages or deduction of wages alleged-Authority under the Act-Whether had jurisdiction to decide the complaint of the applicant.

The second respondent had been an employee of the Central Railway as a daily rated casual labourer on specified daily wages since 1941. He continued to receive his wages at the specified rate until October 1949. In October 1949 he made an application through an official of the Registered Trade Union-a person permitted by the authority under sub-section (2) of s. 15 of the Payment of Wages Act, 1936-claiming his wages due in respect of six months from May to October 1949. The respondent did not allege delay in the

The Divisional Engineer, G./.P.

Railway v.

Mahadeo Raghoo and another

Sinha J.

March 4

A. V. D'Costa v.

B. C. 'Patel and another

SUPREME COURT R.E?ORTS [1955]

payment of his wages or deduction _of , his wages n contravent; ion of the provisions of s. 5 or s. 7 of Act IV of 1936 respectively. The respondeot alleged that he had been paid his actual wageS' as fixed by the railv.ray adn1inistration but that after the introduction of the scheme of upgrading of persons employed under the daily wages scheme, others who were junior to him had been _placed on the monthly wages scheme whereas his claim to be so placed, had been ignored and that he had not been paid wages oi:i the .cale to which he would have been entitled .if he had been placed on the monthly wages scheme.

Held, per SINHA J. (V1v1AN BosE and VENKATAMM~ AYYAR JJ. corzcurring, JAGAN_NADHADAs J. dissenting), that the respondent's complaint feJl under the category of potential wages and the authority appointed under the Act had no jurisdiction .to decide the question of potential wages.

It had the jurisdiction to decide what actually the t_erms of the contract between the parties. were, that is to say, to determine the c.tual wages. ·

On the case as made on behalf of the respondent, orders of the superior officers were. necessary to upgrade him from a daily wage~

earner to a higher cadre. rhe authority under the Act has not

bee~ empow.ered -nder s. :is to make such .direction to the superior officers. ·

Per }AGANNADHADAS J.-Undoubtedly a claim to a higher potential wage cannot ·!be brought in under the category of "claim arising out of deduction from the wages or delay in payment of the wages" if that wage depended on the "determination by a. superior departmental or other authority as to whether or not a particular em ployee is entitled to the higher wage-a determination which in volves the exercise of administrative judgment or discretion or certi fication, and which would, in such a situation, be a condition of the payability of the wage. But where the higher wage does not depend upon such determination hut depends on the application of and giving effect to certain rules and orders which, for this purpose, must be deemed to be incorporated in the contract of employment, such a wage is not a prospective wage merely because the paying -authority concerned makes defaut or commits error in working out the application .of the rules. The wage .under the Act .i.s not nces sarily the .immediately preexisting wage but the presently payable wage. _Whetheror' not an employee was entitled to wages of a higher category than what he was till then drawing would depend entirely on the sc<?pe of the rules with reference to which he is entitled to become one in te higher category and it cannot be .assumed a priori that such a claim is a claim -to "prospective wages1".

On the facts of the case as found the. dispute as to the wage was one that fell within the jurisdiction of the '.'authority". concerned.

CIVIL

APPELLATE No. 147 of J95~.

J URJSDJCTION : Appeal Civil

Appeal by Special -Leave from the Judgment and

..... - Order dated the 24th day of August 1951 of the High Court of Judicature at Bombay in Appeal No. 50 of 1951 arising out of the Order dated the 19th day of June 1951 of the said Court exercising Original Juris-- diction in Misc. No. 143 of 1951.

. '

M. C. Setalvad, Attorney-General for India (Porus A. Mehta and P. G. Gokhale, with him), for the appellant.

J. B.

Dadachanji, M. V. f ayakar and Rajinder Narain, for respondent No. 2. 1955.

March 4. The Judgment of Vivian Bose, Venkatarama Ayyar and Sinha JJ. was delivered by Sinha J.

Jagannadhadas J. delivered a separate judgment.

SINHA J.-This is an appeal by special leave from the order of the High Court of Judicature at Bombay dated the 24th August 1951 upholding that of a single Judge of that court sitting on the Original Side, dis--

missing the appellant's petition under art. 226 of the Constitution for a writ of certiorari quashing the order dated the 23rd January 1951 passed by the 1st respondent, the Authority under the Payment of Wages Act (hereinafter referred to as the Act).

The facts leading up to this appeal may shortly be stated as follows: The 2nd respondent is and has been at all material times an employee of the Central Railway (formerly called the G.I.P. Rly.) represented by the appellant who has been nominated by the Railway Administration as responsible for payment of wages under section 3 of the Act.

Ever since 1941, the 2nd respondent has been employed by the Railway Administration as a carpenter on daily wages, and has been treated as a daily rated casual labourer and has been paid his wages at the rate of Rs. 3-4-0 per day.

He continued receiving his wages at that rate until

October, 1949 without any demur, and granting receipts for the wages thus received. On the 2nd December, 1949, an application was made by one K. N. Pitkar "an official of Registered Trade Union, a person

A. V. D'Costa

V• B •. C. Patel and another

A~ V. D'Cost~ ·

. v.

B. C. Patel 4nd another

Sinha J.

permitted by 'the Authority" under _sub-section (2) of section 15 of the Payment of Wages Act, 1936, against the G.I.P. Rly. administration through its Divisional Engineer, Pare!, Bombay. It was alleged on behalf of the 2nd respondent that his wages due in respect of six months from May to October 1949 amounting to Rs .. 245 had not been paid or had been subjected to illegal deductions as shown in the schedule. The schedule will be set out hereinafter. A claim for Rs. 245 ph.1s Rs. 15 by way of compensation was made.

The appellant, as the opposite party before the Authority, resisted the claim, inter alia, on the grounds---:

( 1) that Rs. 245 had not been illegally deducted from the wages of the 2nd resp0ndent; and

(2) that the claim of the 2nd respondent who was employed as a daily rated casual labourer on specified daily wages, to be placed on a permanent cadre on the scale of monthly rates of pay was unfounded. it was further alleged that the 2nd respondent did not come within the purview of the Railway Services (Revision of Pay) Rules as he was a daily rated casual labourer charged to works and that no rules had been laid down governing the rates of pay and the conditions of service of daily rated casual labourers like the 2nd respondent. Hence his terms of service were the daily wages paid to him all along. It was thus contended that there had been no deduction from his wages. In this connection reference was made to the award of the Railway Workers Classification Tribunal, dated the 28th May 1948.

The Authority by its orders dated the 23rd January 1951 decided that the position of the 2nd respondent was not that of a casual labourer but that of a "temporary employee" and that therefore he was entitled to be on the scale of Rs. 55-150 plus the allowances admissible. In coming to this conclusion the Authority observed that the work done by the 2nd respondent is of the same nature as that of a member of the permanent staff. Hence the 2nd respondent could not be called a casual labourer. It also made reference to

article 39( d) of the Constitution containing the direction that there should be equal pay . for equal work.

The Authority also negatived the contention raised on behalf of the appellant that the question of classification of an employee was outside its jurisdiction. In pursuance of the said order the Authority allowed the 2nd respondent's application by its further orders dated the 2nd March 1951. .

Against the said orders of the Authority the appellant moved the High Court of Judicature at Bombay by an application under article 226 of the Constitution for quashing the aforesaid orders. The matter was heard in the first instance by a learned single Judge of that court who by his orders. dated the 19th June 1951 dismissed the application. The appellant preferred an appeal under the Letters Patent which was heard by a Division Bench of that court.

The Division Bench by its order dated the 24th August 1951 dismissed the appeal and agreed with the conclusions of the Judge on the Original Side that the Authority had not acted without jurisdiction or had not exceeded its jurisdiction in entertaining the 2nd respondent's application.

On the appellant's application for leave to appeal to this court being rejected by the High Court, the appellant moved this court and obtained special leave to appeal on the 2nd February 1953.

The main controversy between the parties in this court is whether, having regard to the relevant provisions of the Act, the 1st respondent was competent to pass the orders it did, which orders had been upheld by the High Court of Bombay.

The Authority set up under section 15 of the statute in question is undisputably a tribunal of limited jurisdiction. Its power to hear and determine disputes must necessarily be found in the provisions of the Act. Such a tribunal, it is undoubted, cannot determine any controversy which is not within the ambit of those provisions.

On examining the relevant provisions of the Act it will be noticed that it aims at regulating the payment of wages to certain classes of persons employed in industry.

It applies

12 90-S. C. India/59

.. 1955

A. V. D'Costa v.

B. C. Patel and another

. Sinha J.

•955

. A. v. ncosta

v. - B. C. Parel end another -· Sinha J.

in the first. instance to the:· payment of.wages to persons employed fo any .factory or. employed by a rail- way administration; but. the State Government has the power after: giving three months' notice to extend the provisions of the Act or any of .them. to the •payment of' wages to any . cla.ss of persons employed .in any class or group of industrial .establishments. "Wages" means-

"all remuneration, capable of being expressed in terms of money, which would, if . the terms of •the contract of employment, express or implied, •were ful- filled, be: ; payabl~: .... :to a person employed in respect of his employment or of work done in such employment .... " (omitting words not necessary for our present purpose). · · · Section 3 lays down that every employer or his <epresentative or nominee shall be responsible for the payment to persons employed by him of all wages.

Section 3 provides for fixati(>n of "wage-periods" which shall not exceed one month in any case. Section 5 indicates the last date within which, with reference to the particular wage-period, wages shall be paid, Section 7 lays down that the wages of an employed person shall be paid to him without deductions of any kind except those authorized by or under die Act. Section 7(2) in clauses (a) to (k) specifies the heads under which deductions from wages may be made, namely, fines; deductions for absence from duty; deductions for damage to or loss of goods of the employer; deductions for house accommodation supplied by the employer; deductions for amenities and services supplied by the employer; deductions for recovery of advances or for adjustment of overpayments of wages; deductions of income-tax payable by the employee; deductions to be made under orders of a court or other competent authority; deductions for subscriptions to, and for repayment of advances from any provident. fund; deductions for payments to cooperative societies, etc.; and finally, deductions made with the concurr.ence of the employed person in 'furtherance .of . cenain schemes approved by Government.

No .other deductions are permissible. It is also laid

SWPRBME COUR'f REPORTS

down that every>payment. :m;:tde by .. .the employ.ed. peri

son to the employer or his agent shall be d.eerrw~ to be deduction from wages. Each of, the several, hds of deductions aforesaid is dealt with in detail , in sections 8 to 13. Section 8 lays down the, c<,)llditio~~ an\!

limits subject to which fines may be imposed. and, the procedure for imposing such .fines .. , hi ;; i.lso requil;"e$ a register of such fines to be. maintained. by. the ; per.son responsible for .. the payment of wages.

Section 9

deas with deductions on account of absence from .duty and prescribes . the. limits and the proportion therepf to wages.. Section IO similarly deals with deductions for damage or' loss to the employer and the procedure for determining the same.' Like sec; tion . 8, this section also requires a register of such deductions and . realiza- .tions to be maintained by the person fesponsible , for the payment . of wages. Section 11 lays down the limits of deductions for house accommodation and other amenities or services . which , may have been accepted by the employee, subject to such cqnditions as the State Government may .impose. Section 12 lays down the conditions subject to which deductions for recovery of advances may be made from wages .. Finally section 13 provides that the deductions for payment !O co-operative societies and insurance schemes. shall be subject to such conditions as the State. Government may prescribe. Section 14 makes provision for the appointment of Inspectors for carrying out the purpose of the Act, with power to enter on any premises and to examine any registers or documents re" lating to the calculation or payment of wages and to take evidence on the spot. His function is to s~ that the registers or documents prescribed by the Act , containing the necessary entries as regards deductions and other matters have been properly kept by. the employers or their agents in order to be able to ascertain whether any deductions from wages in excess of the provisions of sections 7 to 13 aforesaid have been made. We then come to section 15 which makes pro- . vision. for the appointment of the . Authority "to . hear and decide for .any specified area all claims arising out 'of deductions from the wages, or delay in payment of

.l/)55

A •. V, P'Costa

v. 13, C. Patel imiJ. !UIOl/zer

Sinha J.

A. V. D'Costa ' v.

B. C. Pai.I iznd anothir

SUPRBME COURT REPORTS [1955]

the wages of persons employed or• paid .in that area".

Where the Authority finds that any deduction. has been made from the wages of an employed, person or the payment of any wages had been; delayed; he may at the instance of the wage-earner himself or any legal practitioner ot any official of a registered . trade union . authorized in writing to act on his behalf, or any Inspector under the Act or any other person. acting with the permission of the Authority, after. making s1Kh enquiry as he thinks fit and 'after <giving an opportunity to the person resp0nsible for the pay, ment of. wages urider section 3 tO ,; how cause; . direct the refund to the employed person of the amount deducted or the payment of delayed wages" together with such compensation as he may determine. The section als0 lays down the limits and conditions of his power to direct payment oL compensation to the employed person . or of penalty to the employer, if. he is satisfied that the application made on behalf of an employee was either malicious or vexations. His determination is .final. subject to a very limited right of appeal under section 17.

Section 18 vests the Authority with all the powers of a civil court under the Code of Civil Procedure, for the purpose of taking evidence, of enforcing the attendance of witnesses and of compelling the production qf documents. Sec: tion 22 lays down that no court shall entertain any suit in respect of wages or of deduction from wages in so far as the claim forms the subject matter of a pending proceeding under the Act or has formed the subject of a direction in favour of or against the plaintiff under section 15, or which could have been recovered by the application under that section.

Section 26 empowers the State Government to make rules to regulate the procedure to be followed by the authorities and courts referred to in sections 15 and 17 and provides that rules may be made inter alia, requiring the maintenance of records, registers, returns and notices necessary under the Act and the display 'in a conspicuous place of notices specifying the rates of wages payable to persons employed on such premises; and prescribing the authority for making a list of

S.C.R.

SUPREME COUR17 REPORTS 1361

imposed and the procedure for imposing such fines. acts and omissions in respect of which fines ma:y be We have set. out above in some detail the relevant provisions of the Act in order to point out that those provisions are not applicable to the complaint' made in the present case. In this connection it is necessary to set out in extenso the "particulars of claim" in the schedule appended to his application which are as follows:

"The applicant is working as a carpenter-mason with the opposite party under

I.O.W., Byculla.

Accordiilg to the orders on introduction of the prescribed scales, the Railway Administration has to make the staff working under I.O.W. on permanent monthly wages scheme under the rules of the prescribed scales.

The applicant along with others was up till now under daily wages scheme. About 20 posts under I.O.W. where the applicant is working were to be made permanent. The opposite party in supersession of claim of the applicant has confirmed his juniors on the permanent scales as a skilled workman in the scale of 55-3-85-4-125-5-130, whereas the opposite party continued to pay the applicant on daily wages scheme thus depriving him of his legitimate wages under the prescribed scale, which resulted in the monetary loss to the applicant of Rs. 40-13-4 per month. Notice on behalf of the applicant was served on this count on the opposite party but of no avail and hence this application. The juniors have been paid under the prescribed scales from April, 1949, from which date the applicant was also entitled to the prescribed 'scale 55-130 (scale for skilled workman)".

There is no allegation of delay in payment of wages inasmuch as it is not the respondent's case that his wages were not paid within the time limit laid down iii section 5; nor are there allegations to show that any payments have been made by the employed person to the employer or his agent which could be deemed to be a deduction from his wages within the

meaning of section 7. None of the categories of deductions as laid 'down in section 7 have been referred to. In" other words, it is not alleged that his wages

{I V. D'Costa v.

B. C. Patel and atUJthe1"

Sinha J.

1955 were so much a"nd that so' much had been deducted

A. V.D'Costa ·.under any of the heads set out under section 7(2). v. . ·. The allegations made by the respondent only amount B. c. Patel to saying tha_t he had been paid his actual wages andanotherc__as fixed by the railway administration but that after

' the introduction of the scheme of upgrading of per- Sinha J. sons employed under the daily wages scheme, others .-- who were junior to him had been placed on the monthly wages scheme whereas his claim to be so placed had been ignored.'. The respondent's main grievance, therefore, appears to be that he had not been paid wages on the scale to which he would have been entitled if he had been placed on the monthly wages scheme. ··· In our opinion, the scheme of the Act as set forth above shows that if an employee were. to. state that his wages were, say Rs.100 per month, and that Rs.10 had been wrongly deducted by the authority responsible for the paynient of wages, that is to say, that the deductions could not come under any one of the categories laid down in section 7(2), that would be a straight case within the pur:view of the Act and the authority appointed under section 15 could entertain the dispute.

But it is said on behalf of the respondent that the authority has the jurisdiction not only to make directions contemplated by sub-section (3) of section 15 to refund to the employed person any amount unlawfully deducted but also to find out what the terms of the contract were so as to determine what the wages of the employed person were.

There is no difficulty in accepting that proposition. If the parties entered into the contract of service, say by correspondence and the contract is to be determined with reference to the letters that passed between them, it may be open to the authority to decide the controversy and find out what the terms of the contract with reference to those letters were.

But if an employee were to say that his wages were Rs. 100 per month which he actually received as and when they fell due but that he would be entitled to higher wages if his claims to be placed on the higher wges scheme had been recognized andgiven_ effect to,

. ' i\

that would not, in our opinion, be a matter within the ambit of his jurisdiction. The authority has the jurisdiction to decide what actually the terms of the contract between the parties were,.that is to say, to determine the actual wages; but the authority has no jurisdiction to determine the question of potential wages. The respondent's complaint in the present case comes within the latter illustration.

If the respon-. dent's claim to be placed on the scheme of higher wages had been unduly passed over by the appellant, if indeed he had the power to do so, the obvious remedy of the respondent. was to approach the higher authorities of the railway administration by 0 way __ of

. I' departmental appeal or revision; but instead of doing

 .I ' that, he has sought his redress by making. his claim :_ , before the authority under the Act. The question is, has the authority the power to direct the appellant or his superior officers who may have been responsible for the classification, to revise the classification so as to upgrade him from the category of a daily wageearner to that of an employee on the monthly wages scheme. If the respondent had been on the cadre of monthly wages and if the appellant had withheld his rise in wages to which he was automatically entitled, without any orders of his superior officers, he might justly have claimed the redress of his grievance from the authority under the Act, as it would have amounted to an underpayment. But in the present case, on the case as made on behalf of the respondent, orders of the superior officers were necessary to. upgrade him from a daily wage-earner to a higher cadre.

The authority under the Act has not been empowered under section 15 to make any such direction to those superior officers. The appellant is responsible to pay the respondent only such wages as are shown in the relevant register of wages presumably maintained by the department under the provisions of the.· Act, but he cannot be directed to pay the respondent higher wages on the determination by the authority that he be should have been placed on the monthly wages scheme. · In that view of the matter it is not necessary to go

A~ V. D' Costa v.

B. C. Patel and another

Sinha J.

A. V. D'Costa v.

B. C. Patti and another

Sinha ].

into the merits of the. controversy . as to , what .classification as adumbrated by · the Railway Workers' Classification Tribunal, .and adopted by. the Railway administration, the second respondent should have been brought under. ·.If that question were . open to determination by the Authority, .we would have had to remit the case to the Authority ·to give . a fresh opportunity to the parties to adduce. all the relevant evidence and then to come to its final conclusiohs, . as it appeared to us during the hearing of the case . that all relevant information had not been placed before the Authority. But, as, in our opinion; that is not a matter within' its limited jurisdiction, that contingency does not arise.

For the reasons given above we allow this appeal, quash the orde'rs of the Authority and of the High Court, but in the special circumstances of this case we make no order as to costs.

]AGANNADHADAS J.-I regret that I find myself unable to agree.

The second respondent before us, employed as a carpenter in the Railway since 1941, has' beeri working as daily-rated casual labourer. He claimed that he should have been absorbed as a monthly-rated permanent employee and that he has been wrongly superseded. His claim to be treated as a permanent employee was apparently not accepted bf the Tribunal (the Authority under section 15 of the Payment of Wages Act for Bombay). But it was held that the position of the applicant is not that of a daiJy; rated casual labourer but that of a monthly"rated temporary employee. His claim: was treated and upheld' by the Tribunal as one substantially based on. the gioun.d that . the Award of the Railway Workers' Classification Tribunal in relation to the recominendaticiils of the Central Pay Commission was approved by the Railway Board and directed to be implemented, and that by virtue thereof he was: no longer a mere castial labourer but was entitled to higher wages on the' footing of a monthly-rated labourer, No question , arises that the order of the Tribu:na:l "is bad owirig to the

"\.-

, S.C.R; SUPREME 'coURT REPORTS 1365

variation between the cl:iim ·-made and the relief _granted.

As hdd by the High Court, pleadings in these cases have tobe liberally construed. That his claim was understood as having been based on the Award of Railway Workers' Classification Tribunal, ''by the Railway Authorities themselves, is clear from the statement filed on their behalf in answer to the -employee's claim. Apart from the question of jurisdiction, the defence was two.fold.

(1) The applicant being a daily-rated casual labourer, charged to works, the directive of the Railway Board did not apply to him. (2) Even if it applied to a person in the situation of the applicant, he was not entitled to be brought •On to the monthly-rates of pay in the skilled grade, without his previously passing a trade test to establish himself as skilled in his trade and he did not pass the test. The Tribunal, on the material referred to by it in its order. came to the conclusion (1) that the applicant did Iiot fall within the category of workcharged staff, (2) that under the Award of the Rail- way Workers' Classification Tribunal,· no trade test was necessary for the applicant who was a carpenter, and (3) that as per certain instructions of the con- . ccrned authority, the period of casual labour was to -be limited to six months, and that since this applicant was admittedly a Casual labourer under the Railway for a much larger period, i.e. since 1941, he became entitled to be treated as a temporary employee and not as a casu'1,.l labourer and to receive wages as such. whether these conclusions are right or wrong is not the question before us. The only question is whether or not the Tribunal had the jurisdiction to find that the applicant was entitled to the emoluments of a monthly-rated temporary employee and not to that of a daily-rated casual labourer, as the result of the order of the Railwa7 Board directing implementation of the Award of the Classification Tribunal.

The jurisdiction of the Tribunal arises under sec- tion 15 of the Payment of Wages Act, 1936 (Act IV -of 1936) (hereinafter referred to as the Act). The 'Tribunal is set up to decide "all claims arising out of deductions from he_ wages or delay . in payment . of

 A. V. D'Costa v.

B. C, Patel and another

Jagannadhadas J.

1955 wages".

Th~ relief which it is authorised to award is -to direct "the refund of the amount deducted, or the A. v. eosia payment of the wages delayed". Such a direction B. c. Patel \ made by the Tribunal is final, under section 17 of the and another ' Act, subject to the right of appeal provided therein.

Under section 22, no suit lies in any court for the re- JagannadhadasJ. covery of wages or of any deduction therefrom which

could have been recovered by an application under section 15. However limited this jurisdiction of the Tribunal, and however elaborate. the provisions in the Act for the preparation and display by the employer of the table of wages payable to the employees, and for the inspection thereof by the Factory Inspectors, it cannot be supposed that the jurisdiction of the Tribunal is only to enforce the wages so displayed or otherwise admitted: Such a narrow construction would rob the machinery of the Act of a great deal of its utility and would confine its application to cases whiCh are not likely to arise often, in a wellordered administration like the Railways. Indeed, I do not gather that such a construction was pressed for, before us, in the arguments. Even a Tribunal of limited jurisdiction, like the one under consideration, must necessarily have ·.the jurisdiction to decide, for itself, the preliminary facts on which the claim or dispute before it depends. In the instant case, it must have jurisdiction to decide what the wages pay- able are and, for that purpose, 'what the contract of employment and the terms thereof a:re. The judgment of my learned brothers in this case apparently recognises the jurisdiction of the Tribunal as above stated, when it said that the Tribunal has the power •"to find out what the ternis of the contract were to determine what the wages of the employed person. were". 'Vhether the Tribunal's decision in this behalf is conclusive or not is a matter that does not arise for decision in this case.

But, it is said that the Tribunal bas no authority to determine the question of "potential wages''.

Undoubtedly a claim to a higher potential wage cannot be brought in under the category of "claim arising out of deduction from the wages or delay in pay-

S.C.R. \' . '

\ . 1367

1955. . ,_ ment of the wages"iif that wage depended . on the determination by a' superior. departmental or ether authority as to whether or not a particular employee A. v. costa is entitled to the higher wage-.:a determination which B. c. Pat.i involves the exercise of administrative judgment or a•a another discretion or certification, and which would, in such - a situation, be a condition of the payability of the JagannaahadasJ. wage.· But where the higher wage does not depend upon such determination but depends on the application of,· and giving effect to, certain rules and orders which, for this purpose, must be deemed to be incorporated in the contract of employment, such a wage is, in my view, not a prospective wage, merely because the paying authority concerned makes default or commits error in working out the application of the rules. In this context it is relevant to notice that the definition of "wages" in the Act is "all remuneration which would if the terms of the contract, express or implied, were fulfilled, be payable". The word "were" in this definition which I have underlined; Reems to indicate that even a "prospective wage" which would be payable on the proper application of the rules in the sense which I ha:ve explained above may well fall within its scope. The. wage under the Act is not, necessarily, the immediately pre-existing wage but the presently-payable wage. . · · In the case before us, the order of the Tribunal proceeded on the view that the applicant was present~ ly entitled to be treated as a monthly-rated tempo- . rary employee and not as a daily-rated casual labourer, by virtue of the directions of the Railway Board for

the implementation of the scheme of classification and that therefore he was entitled to the appropriate higher wage. We have not been shown any material to indicate that this higher classification of the appli- cant depended not on the mere application, of the classification scheme and the rules thereunder, to him but upon any determinll; tioii by a departmental higher authority. If it was the latter, undoubtedly the Tribunal cannot claim to sit in judgment over that determination, whether it was ight or wrong. Such

A. V. D'Costa v.

B. C. Patti and another

jagannadhadas J.

determination, ·if. wrong, could , be -, corrected only • by a further departmental appeal; if :any; available_, But the Tribunal had, to my mind,, the . authority. to find whether the applicant's .case falls within the : scope of determination bythe departmental. authority -or is oneof mere application of the. rules to the facts .. of this case. If the decision of the Tribunal in this behalf was wrong, the appropriate remedy for. the Railway Authority was by way of an appeal under section 17 of the Act. Since . the finding _of the Tribunal in this case involved the case of as many as six persons and the net additional amount ordered was a sum of Rs. 1,341, its finding was appealable. under section 17 of the Act. Whether or not an employee, was entitled to wages of a highercategory than what he was till then drawing would depend entirdy on the scope of the rules with reference tci which he is entitled to become one in the higher category and it . cannot be assumed a priori that such a claim is a claim to "prospective wages".

In my view, therefore, there is no sufficient reason to reverse the judgment of the learned Judges of the Bombay High Court and this appeal should be dismissed with .costs.

BY THE CouRT. In accordance with the decision of the majority, the appeal is allowed and the orders of the Authority and of the.High Court are quashed.

There will be no order as to costs throughout.

 Appeal allowed. '

...

section 23

A. V. D'COSTA

B. C. PATEL AND ANOTHER

VIVIAN BosE

SINHA JJ.

Payment of Wages Act, 1936

Ss. 5, 7, 15(1)(2)

s. 15

Payment of Wages Act, 1936

Sinha

The respondent did not allege delay in the

The Divisional Engineer, G./.P.

Railway v.

Mahadeo Raghoo and another

Sinha J.

March 4

A. V. D'Costa v.

B. C. 'Patel and another

SUPREME COURT R.E?ORTS [1955]

payment of his wages or deduction of , his wages n contravent; ion of the provisions of s. 5 or s. 7 of Act IV of 1936 respectively.

s. 5

s. 7

V1v1AN BosE

VENKATAMM~ AYYAR

M. C. Setalvad

Porus A. Mehta

P. G. Gokhale

J. B.

Dadachanji

M. V. f ayakar

Rajinder Narain

Vivian Bose

Venkatarama Ayyar

Jagannadhadas

art. 226

Payment of Wages Act

Central Railway

section 3

2nd December, 1949

K. N. Pitkar

A. V. D'Costa

C. Patel

B. C. Patel

section 15

Payment of Wages Act, 1936

G.I.P. Rly. administration

Railway Workers Classification Tribunal

28th May 1948

23rd January 1951

article 39( d)

2nd March 1951

High Court of Judicature at Bombay

article 226

24th August 1951

2nd February 1953

High Court of Bombay

section 15

Section 3

Section 3

Section 5

Section 7

Section 7(2)

sections 8 to 13

Section 8

Section 9

Section 11

Section 12

section 13

Section 14

sections 7 to 13

section 15

section 3

section 17

Section 18

the Code of Civil Procedure

section 15

Section 26

sections 15 and 17

section 5

section 7

section 7

A. V.D'Costa

section 7(2)

section 7(2)

section 15

section 15

section 15

section 15

Payment of Wages Act

Central Pay Commission

Payment of Wages Act, 1936

section 17

section 22

section 15

jagannadhadas

section 17

section 17

Bombay High Court