Dilbagh Rai Jarry Vs. Union of India
& Ors [1973] INSC 198 (5 November 1973)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
KHANNA, HANS RAJ KRISHNAIYER, V.R.
CITATION: 1974 AIR 130 1974 SCR (2) 178 1974
SCC (3) 554
CITATOR INFO :
E&R 1974 SC1084 (6) RF 1986 SC2045 (67) R
1990 SC1080 (13,14,15,17)
ACT:
Payment of Wages Act, 1936-S.
15(2)-Limitation when commences The date on which deduction from wages was made
or the date on which, the payment of wages was due to be made.
Running allowance whether part of wages.
HEADNOTE:
The appellant, a Railway Guard, was convicted
and sentenced for an offence under s. 509, I.P.C. The High Court uphold his
conviction. On appeal this Court set aside the conviction and acquitted him. In
the meanwhile the appellant was dismissed from service with effect from 31st
March, 1956. The appellant impugned the order of dismissal in the High Court
which held that his dismissal was wholly void and ineffective. Thereupon the
appellant was reinstated and was informed that the matter of his back wages for
the period between the date of his dismissal and the date of reinstatement
would be decided later. By another letter he was informed that this period was
treated as leave due. He was paid Rs. 81.51 as his wages for the entire period
ending on March 7, 1959.
The appellant made an application under s.
15(2) of the Payment of Wages Act, 1936 claiming Rs. 9,016.60 plus ten times
the said amount as compensation. In addition, he first claimed 'traveling
allowance' but later sought to amend the application by replacing 'traveling
allowance by 'running allowance This was rejected by the Prescribed Authority.
The Authority allowed a part of the claim but the appellant preferred an appeal
to the Appellate Authority under the Act. The Appellate Authority held that the
claim was barred by time as limitation had commenced from the date of dismissal
from service and not from the date of reinstatement Or the date on which it was
decided to treat the period of dismissal as leave due.
On the question (i) whether the. claim
application filed by the appellant tinder s15(2) was time-barred and (ii)
whether he was entitled to running allowance.
Allowing the appeal,
HELD : (i) the first proviso to sub-ss. (2)
of s. 15 indicates two alternative starting points for limitation, namely, (i)
the date on which deduction from wages was made or (ii) the date on which the
payment of the wages was due to be made. [183-A] From a reading of s. 15 it is
clear that the legislature has deliberately used, first. in sub-s. (2) and then
in sub-s.
(3). the expressions "deduction of
wages" c and "delay in payment of wages' as two distinct concepts.
Terminus a quo (i) in the proviso expressly relates to the deduction of wages,
while (ii) is preferable to the delayed wages. If both these terminii were
always relatable to the same Point of time, then there would be no point in
mentioning terminus a quo (i) and the legislature could have simply said that
limitation for a claim under s. 15(2) would always start from the date on which
the wages "fall due" or "accrue" as has been done under
Article 102 of the Limitation Act which applies only to suits for recovery of
wages. The very fact that two distinct starting points of limitation referable
to two distinct concepts have been stated in the proviso. shows that the
legislature had visualised that the date of deduction of wages and the due date
of delayed wages. may not always coincide. Conjunction "or" which in
the context means "either" and the phrase "as the 179 case may
be" at the end of the proviso are clinching indicate of this
interpretation. They are not mere surpluses and must be given their full
effect. The legislature is not supposed to indulge in tautology; and when it
uses analogous words or phrases in the alternative, each may be presumed to
convey a separate and distinct meaning. the choice of either of which may
involve the rejection of the other. To hold that the two expressions
"wages deducted" and "wages delayed" though used in the
alternative. carry the same meaning, and in the proviso are always referable to
one and the same point of time, would be contrary to this primary canon of
interpretation. (183B-E] Ordinarily where an employee was dismissed on one date
and reinstated on another, the deduction of wages may synchronize with the act
of reinstatement. In the instant case the deduction did not take place on the
date of reinstatement because the order of reinstatement expressly stated that
decision with regard to his wages for the period would be taken later.
Therefore the deduction would coincide with the decision deducting the wages.
Such a decision was taken on February, 18, 1959 and limitation under the first
part of the proviso commenced from that date. [183G-H] Jai Chand Sawhney v.
Union of India [1963] 3 S.C.R. 642;
Divisional Superintendent. Northern Railway
v. Pushkar Dutt Sharma (1967] 14, F.L.R. 204; held inapplicable.
(ii) Running allowance was counted towards
average pay in those cases only where the leave did not exceed one month.
Travelling allowance or running allowance was
eligible if the officer had travelled or run, not otherwise. it could not be
said that running allowance was due to the appellant as part of his wages for
the entire period of his inactive service. [185H; 186A] Per Krishra Iyer J.
(Concurring) In this country the State is the largest litigant today and the
huge expenditure involved makes a big draft on the public exchequer, In the
context of expanding dimensions of State activity and responsibility, it is not
unfair to expect finer sense and sensibility in its litigation policy, the
absence of which in the present case had led the Railways callously and
cantankerously to resist an action by its own employee. a small man, by urging
a mere technical plea which had been pursued right up to the highest court and
had been negatived, It was not right for a welfare State like ours to be
Janus-faced and while formulating the humanist project of legal aid to the poor
contest the claims of poor employees under it pleading limitation and the like,
[186-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1898 of 1967.
Appeal by Special Leave from the Judgment and
Order dated the 4th November, 1965 of the Allahabad High Court in Civil Miscellaneous
Petition No. 2491 of 1965.
Bishan Narain and D. N. Mishra, for the
appellant.
S. N. Prasad and S. P. Nayar, for respondents
Nos. 1 & 2.
The Judgment of the Court were delivered bySARKARIA
J.-This appeal by special leave is directed against the order dated November 4,
1965, of the High Court of Judicature at Allahabad dismissing the appellant's
writ petition under Article 226 and 227 of the Constitution in limine.
The appellant was a Guard 'C' Grade in
Northern Railway. He was confirmed in that post in 1952. On April 3, 1955, an
incident took place at Railway Station, Kalka, as a result of which, he was
prosecuted for an offence under s. 509, Penal Code. The Additional 180 District
Magistrate, Ambala convicted and sentenced him on December 29, 1955 to three
months simple imprisonment. His appeal was dismissed by the Court of Session.
In Revision, the High Court of Punjab, on March 5, 1956, maintained his
conviction but reduced the sentence.
On April 2, 1956, the appellant received a
communication from the Divisional Personnel Officer, Northern Railway that he
had been dismissed by the Divisional Superintendent from service w.e.f. March
31, 1956.
In Appeal by special leave, this Court, set
aside the conviction ,of the appellant and acquitted him by its judgment dated
March 7, 1957. Thereafter, the appellant filed a writ petition in the High
Court of Punjab under Article 226 of the Constitution impugning the order The
High Court by its judgment, dated of his dismissal.
September 2, 1958, issued the, writ directing
the respondents to treat the dismissal of the appellant wholly void and
ineffective. Pursuant to that direction, on December 26, 1958 the appellant
received a letter from the Divisional Personnel Officer that he had been
reinstated to the post of Guard 'C' Grade and that the matter of his back wages
for the period between the date of his. dismissal and the date of reinstatement
would be decided later on. By another letter of February 13, 1959, the same
officer informed the appellant that the period from the date, of his dismissal
to the date of his reinstatement would be treated as leave due. The appellant,
on March 11, 1959, was paid Rs. 81.51 as his entire wages for the period ending
March 7, 1959.
On August 13, 1959, the appellant made an
application under S. 15(2) of the Payment of Wages Act (Act 4 of 1936) (hereinafter
referred to a$ the Act) before the prescribed authority claim-in-, a sum of Rs.
9015.60 plus 10 times of, the said amount as compensation from the respondents.
In addition, Traveling Allowance was claimed. Later, an attempt was made to
amend the application and replace 'Traveling Allowance' by 'Running Allowance'.
The Authority did not permit the appellant to do so as he had failed to amend
in time despite the order of the Court.
The respondents resisted the appellant's
claim on various grounds including that of limitation. By an order dated August
7, 1963, the Authority directed respondent No. 1 (Union of India), in its
capacity as employer, to refund the sum of Rs. 4863.20, (plus Rs. 100/as costs)
to the appellant holding that the same had been illegally deducted from his
wages. The Authority disallowed the remaining claim including that of the
Running Allowance. Against the order of the Authority, two appeals were carried
to the Appellate Authority (Additional District Judge)-One by the appellant and
the other by the respondents. The Appellate Authority held that the appellant's
claim was barred by time as limitation had commenced from the date of dismissal
from service and not from the date of reinstatement or the date on which it was
decided to treat the period of dismissal as leave due. It upheld the dismissal
of the appellant's claim to the Running Allowance, inter alia for the reason
that he had, despite the order of the 181 Authority, failed to amend the
petition within the period indicated in 0.6, R.18 of the Code of Civil
Procedure. The Appellate Authority further found that the Railway
Administration was competent to treat the period of appellant's inactive service
from April 1, 1956 to February 17, 1959, as leave due and to deduct his wages
for that period in accordance with rule 2044 of the Railway Establishment Code;
and in view of s. 7 (2) (h) of the Act, no refund of the deducted wages could
be allowed. It further held that in the case of Railway Administration, the
Divisional Superintendent named as Pay Master was responsible for the payment
of wages of the Railway employees, and consequently, the direction of the
Authority requiring the Union of India to make payment to the claimant was
illegal. In the result, the Appellate Authority allowed the respondent's appeal
and dismissed the appellant's claim.
The appellant's writ petition impugning this
order of the Appellate Authority was, as already stated, dismissed by the High
Court. Hence this appeal.
The first question that falls to be
considered is, whether the claim application filed by the appellant under s.
15(2) of the Act was time barred? Mr. Bishan Narain, learned Counsel for the
appellant contends that the case falls under the first part of the proviso (1)
to s. 15(2) which relates to deduction of wages and limitation would start from
March 11, 1959 when the wages for the period of the appellant's inactive
service were actually deducted and he was paid Rs. 81.51 only for the entire
period ending March 7, 1959., Even on a stricter view, according to the learned
Counsel, limitation would not start earlier than the date, February 13, 1959,
when constructive deduction took place and it was decided to treat the period
of his inactive service as leave due (which meant leave without pay). Since the
appellant's claim application had been presented within six months of either of
these dates, it was well within time.
Learned Counsel for the respondents does not dispute
that this is a case of deduction of wages. His argument, however, is that
irrespective of whether the case was one of deduction or of non-payment of
wages, the starting point of limitation would be the same viz., the date on
which the wages fell due or accrued. The argument is that the concepts of
'deducted wages' and .'delayed wages' are so integrated with each other that
the events relatable to them always synchronise furnishing the same cause of
action and the same start of limitation. It is pointed out that the wages of a
Railway employee fall due every month; wages of one month being payable by the
10th of the succeeding month.
Since the dismissal of the Appellant was
declared void and non-est by the Punjab High Court-it is urged-his right to claim
wages continued to accrue every month even during the period of Ills dismissal.
In the view propounded by the learned Counsel, limitation for making the
application under s. 1 5 (2) started from January 3, 1956, the date of the
dismissal and the application made by the appellant 182 more than three years
thereafter, was clearly time-barred.
Reference has been made to this Court's
decision in Jai Chand Sawhney v. Union of India(1).
We shall presently see that while the
contentions of the learned Counsel for the respondents cannot, those canvassed
by the learned Counsel for the appellant must prevail. .
The material part of s. 15 of the Act reads
"15(1) 15(2) Where contrary to the provisions of this Act any deduction
has been made from the wages of an employed person or any payment of wages has
been delayed, such person himself, or any legal practitioner or any official of
a registered trade union authorised in writing to act on his behalf, or any
Inspector under this Act, or any other person acting with the permission of the
authority appointed under sub-section (1) may apply to such authority for a
direction under sub-section (3) Provided that every such application shall be
presented within (twelve months) from the date on which the deduction from the
wages was made or from the date on which the payment of the wages was due to be
made, as the case may be:
Provided further that any application may be
admitted after the said period of twelve months when die applicant satisfies
the authority that he had sufficient cause for not making the application
within such period.
15(3) When any application under sub-section
(2) is entertained, the authority shall hear the applicant and the employer or
other person responsible for the payment of wages under section 3, or give them
an opportunity of being heard, and, after such further inquiry' (if any) as may
be necessary, may, without prejudice to any other penalty to which such
employer or other person is liable under this Act, direct the refund to the
employed person of the amount deducted, or the payment of the delayed wages,
together with the payment of such compensation as the authority may think fit,
not exceeding ten times the amount deducted in the former case and not
exceeding twenty-five rupees in the latter, and even if the amount deducted or
the delayed wages are paid before the disposal of the application direct the
payment of such compensation, as the authority, may think fit, not exceeding
twenty-five rupees :......
The question of limitation turns on an interpretation
of the first proviso to sub-s. (2) of S. 15. This proviso ex facie indicates
two 1. [1969] 3 S.C.C. 642.
183 alternative termini a quo for limitation,
namely : (i) the date on which deduction from wages was made, or, (ii) the
date, on which the payment of the wages was due to be made.
From a reading of s. 15, it is clear that the
legislature has deliberately used, first, in sub-s. (2), and then in sub-s. (3)
the expressions "deduction of wages" and "delay in payment of
wages" as two distinct concepts. Terminus a quo (i) in the proviso
expressly relates to the deduction of wages, while (ii) is referable to the
delayed wages. if both these terminii were always relatable to the same point
of time, then there would be no point in mentioning terminus a quo (i), and
the, Legislature could have simply said that limitation for a claim under s.
15(2) would always start from the date on which the wages "fall due"
or "accrue" as has been done under Art. 102 of the Limitation Act
which applies only to suits for recovery of wages. The very fact that two
distinct starting points of limitation referable to two distinct concepts, have
been stated in the proviso, shows that the Legislature had visualised that the
date of deduction of wages and the due date of delayed wages, may not always
coincide. Conjunction "or", which in the context means
"either", and the phrase "as the case may be" at the end of
the Proviso are clinching-indicia of this interpretation. They are not mere surplus
ages and must be given their full effect. The Legislature is not supposed to
indulge in tautology; and when it uses analogous words or phrases in the
alternative, each maybe presumed to convey a separate and distinct meaning, the
choice of either of which may involve the rejection of the other. To hold that
the two expressions "wages deducted", and "wages delayed",
though used in the alternative, carry the same meaning, and in the Proviso are
always referable to one and the same' point of time, would be contrary to this
primary canon of interpretation "Deduction from wages" has not been
defined in the Act.
Some illustrations of such deductions are,
however, to be found in ss. 7 and 13. One of them in s. 7 (2) (b) is
"deductions for absence from duty" which indicates that such
deduction can be a total deduction, also. That is to say "deduction from
wages" may be 'the same thing as "deduction of wages". The
deduction in the instant case is akin to this category covering the entire
deficiency for the period of absence, the only difference being that here, the
appellant absence from duty was involuntary. Such absence in official parlance
is euphemistically called "in active service', if the employee is later on
reinstated.
The point to be considered further is when
did such deduction of wages take place ? Ordinarily in a case like the present
where the employee was dismissed on one date and reinstated on a later date,
the deduction of wages may synchronise with the act of reinstatement. But on
the peculiar and admitted facts of this case, the deduction did not take place
on the date of reinstatement (26-12-1958) because the order of reinstatement
expressly stated that "decision with regard to his wages to be paid for
that period will be taken later on". In the case in hand, therefore, the
"deduction' will coincide with the decision impliedly or expressly
deducting the wages. Such a decision was taken 184 and put in the course of a
communication to the appellant on February 18, 1959 whereby he was informed
that the period from 3-1-1956 to 17-3-1959, would be treated as 'leave due'
Which, it is conceded, meant leave without pay. Thus, deduction from his wages
for the entire period of his 'inactive service' took place on February 18,
1959. and limitation under the first part of the Proviso commenced from that
date. The application was made on August 13, 1959, within six months of that
date and was thus within time.
in Jai Chand Sawhney's case (supra), the,
interpretation of the first Proviso to s. 15(2) never came up for
consideration. Therein, the Court was concerned only with the construction of
the expression "accrue/due" in Art. 102 of the Limitation Act, 1908
which does not govern applications under S. 15(2) of the Act. That case,
therefore, is of no assistance in determining the precise issue before us.
It may be observed in passing that the, rule
in Sheo Prasad v. Additional District Judge,(1) relied on by the Additional
District Judge, was not followed by the same High Court in Ram Kishore Sharma
v. Additional District Judge Saharanpur(2), as is had ceased to be good law in
view _of the decision of this Court in Divisional Superintendent, Northern
Railway v. Pushkar Dutt Sharma(3).
In Pushkar Dutt's case (supra), the
application under s. 15 (2) of the Act was filed within six months of the date
on which the dismissal of the employee was set aside by the court in second
appeal. The employee's application would have been within time irrespective of
whether his case was treated as one of "wages deducted" or
"wages delayed".
Therefore, the necessity of examining the
comparative meaning and distinction between "deduction from wages" or
"delay in payment of wages due" and the two alternative starting
points of limitation relatable to these expressions, did not arise in that
case.
In the light of the above discussion, we
reverse the finding of the Additional District Judge and hold that the
application filed by the appellant under S. 15(2) of the Act having been made
within six months of the date of deduction from his wages, was within time.
The second ground on which the order of the,
Additional District Judge proceeds, is that since the deduction of the wages
for the period of his inactive service from April 1, 1956 to February 17, 1959,
had been made under the order of a competent authority passed in accordance
with rule 2044 of the Railway Establishment Code, in view of S. 7 (2) (h) of
the Act no order could be made for the refund of the deducted amount. Both the
learned Counsel before us are agreed that in view of the pronouncement of this
Court in Devendra Pratap Narain 'Rai; Sharma v. State of U.P.(4), this ground
is not sustainable. In Sharma's case (supra), this Court was construing rule 54
of the U.P. Government Fundamental Rules, the language of which is
substantially the same as that of rule 2044 of the Railway Establishment Code.
It (1) A.I.R. 1962 All. 144.
(2) [1959] All Law Journal p. 225.
(3) [1967] 14, F.L.R. 204.
(4) [1962] Supp. S.C.R. 315.
185 was held therein, that r. 54 enables the
State Government to fix the pay of a public servant when his dismissal is set
aside in departmental appeal. But that rule has no application to cases in
which dismissal is declared invalid by a decree of civil court and he is, in
consequence, reinstated.
Mr. Bishan Narain next contends that the
prescribed Authority had wrongly disallowed the claim of the appellant to
"Running Allowance' which he had mis-described as "Traveling
Allowance" in his claim application. The point pressed into argument is,
that once the Authority had allowed the appellant to amend his application for
converting the claim of "Traveling Allowance" into "Running
Allowance", it had no discretion left thereafter to prevent him from
carrying out the amendment, on the technical ground that the period indicated
by Order 6, Rule 18, Code of Civil Procedure, for this purpose, has expired.
The Code of Civil Procedure, it is urged, does not govern amendment of
applications under s. 15(2) of the Act.
The contention is untenable. While it is true
that Rule s 17 and 18 of Order 6 of the-Code do not, in terms, apply to
amendment of an application under s. 15(2), the Authority is competent to
devise, consistently with the provisions of the Act and the Rules made there
under, its own procedure based on general principles of justice, equity and
good conscience. One of such principles is that delay defeats equity. The
Authority found that the applicant was guilty of gross negligence. He took no
steps whatever to carry out the amendment for several months after the order
permitting the amendment, and thereafter, when the case was at the final stage,
he suddenly woke up, as it were, from slumber, and sought to amend his
application. In the circumstances, the Authority rightly refused to put a
premium on this delay and laxity on the part of the appellant. In the view we
take on the claim to running allowance we need not pronounce finally on whether
an amendment to the relief once granted requires to be formally carried out in
the petition, as in a pleading in court, less rigidity being permissible in
quasijudicial proceedings.
Mr. Bishan Narain further contends that
Running Allowance was a part of the pay or substantive wages. In support of
this argument he has invited our attention to rule 2003 of the Railway
Establishment Code, clause 2 of which defines 'average pay'. According to the
second proviso to this clause in the case, of staff entitled to running
allowance, average pay for the purpose of leave salary-shall include the
average running allowance earned during the 12 months immediately preceding the
month in which a Railway servant proceeds on leave subject to a maximum of 75
per cent of average pay for the said period, the average running allowance once
determined remaining In operation during the remaining part of the financial
year 1 cases of leave not exceeding one month. The crucial words, which have
been underlined. show that such Running Allowance is counted towards 'average
pay' in those cases only where the leave, does not exceed one month. It cannot,
therefore, be said that Running Allowance was due to the appellant as part of
his wages for the entire period of his inactive ser186 vice. Traveling
allowance or running allowance is eligible if the officer has traveled or run,
not otherwise. We therefore negative this contention.
For the foregoing reasons, we allow this
appeal, set aside the order of the Appellate Authority and restore that of the
Prescribed Authority. The appellant shall have his costs throughout.
KRISHNA IYER, J.-The judgment just delivered
has my full concurrence but I feel impelled to make a few observations not on
the merits but on governmental disposition to litigation, the present case
being symptomatic of a serious deficiency. In this country the State is the
largest litigant to-day and the huge expenditure involved makes a big draft on
the public exchequer. In the context of expanding dimensions of State activity
and responsibility, is it unfair to expect finer sense and sensibility in its
litigation policy, the absence of which, in the present case, he led the
Railway callously and cantankerously to resist an action by its own employee, a
small man, by urging a mere technical plea which has been pursued right up to
the summit court here and has been negatived in the judgment just pronounced ?
Instances of this type are legion as is evidenced by the fact that then Law
Commission of India in a recent report(1) on amendments to the Civil Procedure
Code has suggested the deletion of s. 80, finding that wholesome provision
hardly ever utilised by Government, and has gone further to provide a special
procedure for government litigation to highlight the need for an activist
policy of just settlement of claims where the State is a party. It is not right
for a welfare' State like ours to be Janus-faced, and while formulating the
humanist project of legal aid to the poor, contest the claims of poor employees
under it pleading limitation and the like. That the tendency is chronic flows
from certain observations I had made in the Kerala High Court decision(2) which
I may usefully excerpt here "The State, under our Constitution, undertakes
economic activities in a vast and widening public sector and inevitably gets
involved in disputes with private individuals. But it must be remembered that
the State is no ordinary party trying to win a case against one of its own
citizens by hook or by crook;
for, the State's interest is to meet honest
claims, vindicate a substantial defence and never to score a technical point or
overreach a weaker party to avoid a just liability or secure an unfair
advantage, simply because legal devices provide such an opportunity.
The State is. a virtuous litigant and looks
with unconcern on immoral forensic successes so that if on the merits the case
is weak, government shows a willingness to settle the dispute regardless of prestige
and other lesser motivations which move, private parties to fight (1) Law
Commission of India, .54th Report Civil Procedure Code.
(2) P.P. Abu backer v. The Union of India :
A.I.R. 1972 Ker. 103 : 107 para 5.
187 in court. The lay-out on litigation costs
and executive time by the State and its agencies is so staggering these days
because of the large amount of litigation in which it is involved that a
positive and wholesome policy of cutting back on the volume of law suits by the
twin methods of not being tempted into forensic show-downs where a reasonable
adjustment is feasible and ever offering to extinguish a pending proceeding on
just terms, giving the legal mentors of government some initiative and
authority in this behalf. I am not indulging in any judicial homily but only
echoing the dynamic national policy on State litigation evolved at a Conference
of Law Ministers of India way back in 1957. This second appeal strikes me as an
instance of disregard of that policy." All these words from the Bench,
hopefully addressed to a responsive Government, may, if seasonable reactions
follow, go a long way to avoidance of governmental litigiousness and affirmance
of the image of the State as deeply concerned only in Justice-Social Justice.
The phyrric victory of the poor appellant in this case is a sad justification,
for the above observations.
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