1. Vijai Kumar Bhalla, the workman, preferred six applications purporting to be given under Section 15(2) of the Payment of Wages Act claiming his wages for different periods against the Co-operative Bank, Bahraich, before the Prescribed Authority under the Payment of Wages Act, 1936. The wages for different periods were allowed by the Prescribed Authority. The Prescribed Authority issued a direction that a sum of Rs. 6,314.76 be paid to the petitioner by the Bahraich District Co-operative Bank Ltd., Bahraich as wages of the employee and the equal amount of wages to the tune of Rs. 6,314,76 be paid as penalty. A sum of Rs. 7.50 as Court-fee and a sum of Rs. 150/- as cost of the cases, meaning thereby that a total sum of Rs. 12,787,02 was payable under the directions issued by the Prescribed Authority.

2. The employer Bahraich District Co-operative Bank Limited, Bahraich preferred a time barred appeal under Section 19(1) of the Payment of Wages Act alongwith an application under Section 5 of the Indian Limitation Act. The district Judge, Bahraich by means of the order dated 26-3-83 allowed the application under Section 5 of the Indian Limitation Act and condoned the delay under the provisions of Section 5 of the Indian Limitation Act. The District Judge Bahraich further directed that let this appeal be listed and a date be fixed for the hearing of the appeal and notice about that date be issued to both the parties.

3. The workman being aggrieved against the said order preferred this writ petition on 18-8-83 before this Court. This Court on 19-8-83 directed the issuance of the notice to the respondents and ordered that “meanwhile the final disposal of the appeal shall remain stayed. The learned District Judge is not debarred from dealing with any miscellaneous application that may be filed or that may be pending in his Court.” Shri K.S Bajpai has put in appearance on behalf of the said Bank. The main thrust of the learned counsel of the petitioner in this writ petition is two fold; firstly that there existed no provision in the payment of the Wages Act, 1936 for the application of Section 5 of the Indian Limitation Act. The act provided the limitation of 30 days for filing of appeal. Hence the Court below committed a manifest error of law in entertaining the appeal which was barred by time, secondly: that no appeal under clause (a) of sub-section (1) of Section 17 would lie unless the memorandum of appeal is accompanied by a certificate by the authority to the effect that the appellant has deposited the amount payable under the direction appealed against. But as only 6,472.76 was deposited that too beyond 30 days instead of 12,787.02 the appeal was not maintainable and deserves to be rejected.

4. A counter-affidavit has been filed. It was stated in the counter-affidavit that the decretal amount was deposited within a period of one month from the date of knowledge and as such the objection was of no avail to deposit Rs. 12,187,02 paisa. The mandatory requirement according to the opposite parties was thus complied with. It was also asserted in the counter-affidavit that the Limitation Act fully applied to the proceedings and the delay deserves to be condoned under Section 5 of the Indian Limitation Act. It was also submitted that no objection was ever taken by the petitioner against the application preferred by the petitioner under Section 5 of the Indian Limitation Act.

5. The learned District Judge, Bahraich in his order dated 26-3-83, which has been assailed in this writ petition has Laid emphasis over the fact that the Bank has not received any information of the impugned order of the Prescribed Authority dated 30th June, 1982 at any time prior to 30-9-82, and in that regard cited several authorities to arrive at a conclusion that the starting point of limitation was to be taken from the date of communication of the order. According to the district Judge, the Prescribed Authority has not pronounced or communicated his order dated 30-6-82 to the Bank on 30-6-82 or on any subsequent date. The authorised representative of the Bank had come to know of the order for the first time on 30-9-82 and the Secretary of the appellant had come to know of that order for the first time on 2-10-82. The learned District Judge also expressed a view that the starting point of limitation in the instant case had began not from the date of the passing of the impugned order on 30-6-82 but from the date on which the appellant had actually come to know of that order. So the appeal was filed within 30 days of the order.

6. Before dealing with the question as to whether the appeal preferred by the employer was maintainable or not for the reasons indicated by the petitioner in the writ petition, it is necessary to have a glance over the provisions of Section 17 of the Payment of Wages Act 1936 which is reproduced as under:—

“17. Appeal.— (1) An appeal against an order dismissing either wholly or in part an application made under sub-section (2) of Section 15, or against a direction made under sub-section (3) or sub-section (4) of that section may be preferred, within thirty days of the date on which the order or direction was made, in a Presidency-town before the Court of Small Causes and elsewhere before the District Court—

(a) by the employer or other person responsible for the payment of wages under Section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees or such direction has the effect of imposing on the employer or the other person a financial liability exceeding one thousand rupees, or

(b) by an employed person, 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 permitted by the authority to make an application under sub-section (2) of Section 15, if the total amount of wages claimed to have been withheld from the employed person exceeds twenty rupees or from the unpaid group to which the employed person belongs or belonged exceeds fifty rupees, or

(c) by any person directed to pay a penalty under sub-section (4) of Section 15. 240(1-A) No appeal under clause (a) of sub-section (1) shall lie unless the memorandum of appeal is accompanied by a certificate by the Authority to the effect that the appellant has deposited the amount payable under the direction appealed against.

25(2). Save as provided in sub-section (1), any order dismissing either wholly or in part an application made under sub-section (2) of Section 15, or a direction made under sub-sec. (3) or sub-section (4) of that section shall be final.

26(3). Where an employer prefers an appeal under this section, the Authority against whose decision the appeal has been preferred may, and if so directed by the Court referred to in sub-section (1) shall, pending the decision of the appeal, withhold payment of any sum in deposit with it.

(4) The Court referred to in sub-section (1) may, if it thinks fit, submit any question of law for the decision of the High Court and, if it so does, shall decide the question in conformity with such decision.”

7. The words “the order or direction” occurring after the words “within 30 days of the date on which”, was inserted in the Act on 1-4-1958. Thus from a plain reading of this Section it is evident that the appeal may be filed within 30 days of the date on which the order or direction was made.

8. In the Hyderabad Chemicals and Fertilizers v. Mohammad Basheer Khan, 1970 Lab IC 1082 a Division Bench of Andhra Pradesh High Court observed that Section 5 of the Limitation Act does not apply to the appeals preferred under Section 17. It was further observed that (Paras 12 and 17):—

“If it is found that special law provides a different period of limitation for an appeal then not only Section 3 of the Limitation Act will apply because of Section 29(2) but Sections 4, 9 to 18 and 22 would also apply unless their application is expressly is expressly excluded by the special Act. Clause (b) of Section 29(2), however, makes the other provisions of the Limitation Act inapplicable. It cannot be in doubt that the special Act by itself or under a valid rule can make, anyone of the provisions including Section 5 of the Limitation Act which are excluded by virtue of Section 29(2)(b), applicable. However, Section 5 of the Limitation Act is not made applicable by the Payment of Wages Act or the Rules made thereunder.

It cannot, further, be said that since the primary authority under the Payment of Wages Act exercises certain powers under the Civil Procedure Code, the appeals from the order of such an authority should be deemed to be an appeal under Section 96 of the Civil Code and thus attracts the provisions of Section 5.”

9. The Andhra Pradesh High Court while indicating the aforesaid observations followed AIR 1964 SC 1099, where it was further observed that:—

“The words “period prescribed therefor” in Section 29(2) mean prescribed for that particular appeal. Consequently, it cannot be said that since the period of 30 days prescribed by Section 17 happens to be the same as is provided in Article 152 of the Limitation Act for an appeal under the Civil Code the other provisions of Limitation Act, including Section 5 would automatically apply to an appeal under Section 17. There is no justification for any such construction of Section 29(2).

It may be that Section 3 says that subject to Sections 4 to 25 the question has to be considered whether a particular appeal is barred by limitation. It can only mean wherever these sections are made applicable to cases arising under the special law. Section 3 is not an enabling provision which automatically makes Sections 4 to 25 applicable to a case where Section 3 is applied. Whether the other provisions of the Limitation Act are excluded under Section 29(2)(a) or are made applicable to an appeal arising under a special or local law will have to be determined keeping in view not the provisions of Section 3 of the Limitation Act but the second part of Section 29(2).

It cannot, further, be said that since the primary authority under the Payment of Wages Act exercises certain powers under the Civil Procedure Code, the appeals from the order of such an authority should be deemed to be an appeal under Section 96 of the Civil Code and thus attracts the provisions of Section 5.”

10. In Anwari Basavaraj Patil v. Siddaramaiah, (1993) 1 SCC 636 : AIR 1994 SC 512, where the question of Limitation Act to a recrimination notes given under Section 97 of the representation of people Act 1951 was involved, Hon'ble Supreme Court observed in para 8 of the report:—

“8. In H.N Yadav, L.N Misra, (1974) 3 SCR 31 : (1974) 2 SCC 133 : AIR 1974 SC 480, this Court held that the words “expressly excluded” occurring in Section 29(2) of the Limitation Act do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the Limitation Act, the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the Limitation Act are necessarily excluded then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act. That too was a case arising under the Representation of the People Act and the questions was whether S. 5 of the Limitation Act is applicable to the filing of the election petition. The test to determine whether the provisions of the Limitation Act applied to proceedings under Representation of People Act by virtue of S. 29(2) was stated in the following words:

“The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petitions and their trial to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of that Act.”

11. It was next observed in para 10 of the report that:—

“10. This decision, in our view, practically concludes the question before us inasmuch as the act equates a recrimination notice to an election petition. The language of Section 97 makes the said fact abundantly clear. The relevant words are : “the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.” The proviso to sub-section (1) applies the provisions of Ss. 117 and 118 to such a recrimination notice. It may be noticed that for non-compliance with the requirement of S. 117 an election petition is liable to be dismissed by virtue of subsection (1) of S. 86. Sub-sec. (2) of S. 97 further says that the “notice referred to in sub-sec. (1) shall be accompanied by the statement and particulars required by S. 83 in the case of an election petition and shall be signed and verified in like manner”. We may also say that the proviso to sub-sec. (1) of S. 97 which requires such a notice to be given to the High Court within fourteen days of the “date fixed for the respondents to appear before the High Court to answer the claim or claims” (reading the definition of “commencement of trial” into it) has also a particular meaning and object behind it. The idea is that the recrimination notice, if any, should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. If Section 5 does not apply to the filing of an election petition, it does not equally apply to the filing of the recrimination notice.”

12. I am definitely of the view that Payment of the Wages Act, 1936 provides a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of the Act. Section 17 is very clear that the appeal may be preferred within 30 days of the day on which the order or direction was made. It does not provide that the appeal may be preferred within 30 days of the date, on which any party derived the knowledge of the order or direction made by the Prescribed Authority. Certainly in those case where the Indian Limitation Act is applicable, the limitation shall run from the date of the knowledge of the order but where a special act specifically contains a provision that an appeal can be filed within a specific time from the date of the order or direction the appeal must be filed within the aforesaid period and the provisions of Section 5 of the Indian Limitation Act cannot be made applicable.

13. As far as the another thrust of Dr. L.P Misra, the counsel for the petitioner regarding the non deposit of the whole amount payable under the directions of the appeal against is concerned as provided under Section 17(1-A), it has been clearly stated in para 10 of the writ petition that the certificate filed alongwith the appeal in regard to the deposit of the amount payable with the authority only related to Rs. 6,472,76; whereas the total amount to be deposited before filing the appeal was Rs. 12,787.02 paise. That being so, the finding recorded by the District Judge to the effect that the total amount payable under the direction was deposited under the certificate was erroneous and against the record. There is no denial of the said claim in para 8 of the counter-affidavit which deals with the contents of paras 9 and 10 of the writ petition. Only this much has been stated in para 8 of the counter-affidavit that it needed no comment and that was a matter of record. The wordings of S. 17(1-A) puts a complete bar to the effect that no appeal under Clause (a) of sub-section (1) would lie unless the memorandum of appeal was accompanied by a certificate by the authority to the effect that the appellant had deposited the amount payable under the direction appealed against. The amount payable under the direction appealed against was Rs. 12,787,02, but it seems that only a sum of Rs. 6,472.76 was deposited.

14. While dealing with the question of limitation the learned district Judge was of the view that the petitioner did not raise any objection against the application of S. 5 of the Indian Limitation Act. The attention of this Court was drawn towards the averments made in para 6 of the writ petition wherein it has been stated that the petitioner filed an objection to the application under Section 5 of the Limitation Act and also filed a counter-affidavit to the allegations made in the application under S. 5 of the Limitation Act and in the affidavit filed in support of the same. The objection filed by the petitioner against the application under S. 5 of the Limitation Act was marked as GA-30 and the counter-affidavit filed by the petitioner was marked as GA-27. The certified copy of the objection filed by the petitioner against the application under S. 5 of the Limitation Act and the certified copy of the counter-affidavit as well as the certified copy of the order sheet dated 15-1-83 and the certified copy of the order sheet dated 29-11-82 was annexed by the petitioner in the writ petition as Annexure Nos. 3, 4, 5 and 6 to the writ petition, in which specifically it was averred that the appeal was barred by time. It seems that the learned District Judge totally ignored this aspect of the matter.

15. I am of the view that the appeal preferred by the appellant was time barred and the provisions of S. 5 of the Limitation Act were not applicable. Besides the above the appeal was not accompanied by a certificate by the authority to the effect that the appellant had deposited the amount payable under the direction appealed against. The learned District Judge committed a manifest error of law in entertaining the appeal which was barred by the time and was not accompanied by a certificate issued by the author ity to the effect that the appellant had deposited the amount payable under the directions appealed against. Hence this writ petition deserves to be allowed. A writ in the nature of certiorari quashing the impugned order dated 26th March, 1983 passed by the learned District Judge, Bahraich, contained in Annexure No. 7 is issued. A writ in the nature of mandamus is issued to the learned District Judge to dismiss the appeal of opposite party No. 2 preferred against the directions dated 30th June, 1982 issued by the Prescribed Author ity u/S. 15(2) of the Payment of Wages Act, 1936.

16. Petition allowed.