Chagla, C.J:—

This is an appeal from a judgment of Mr. Justice Desai who on a petition filed by the respondents held that the Authority under the Payment of Wages Act had jurisdiction to entertain the application made by them and his order dismissing the application on the ground of want of jurisdiction was an erroneous order.

The facts briefly are that the petitioners were servants in the G.I.P Railway prior to June 1947 and under a notification issued by the Railway Authorities, to which attention will be drawn presently, they provisionally opted for Pakistan and they went to Pakistan in June 1947. They returned to India on February 10, 1948, and reported themselves for service to the Railway Authority. They were ultimately absorbed in the Railway service on May 1, 1948. They then claimed their wages from February 10, 1948, to May 1, 1948 and the Railway Authority's contention was that they were entitled to wages only from May 1, 1948, and not for any earlier period. They thereupon presented various applications for payment of wages which according to them had been wrongfully withheld. The applications were beyond time; the delay was condoned by the Authority; he heard the applications on the preliminary issue whether he had jurisdiction to entertain them, and he came to the conclusion that the claim of the respondents was for compensation and not for wages and, therefore, he had no jurisdiction.

Now, the first contention urged by Mr. Baptista is that the petition is not maintainable inasmuch as the respondents had the right of appeal under s. 17 of the act. Section 17 confers a right of appeal against a direction made under sub-s. (3) or sub-s. (4) of s. 15, and the right is given to the employer, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees, and it is given to an employee if the total amount of wages claimed to have been withheld from him exceeds fifty rupees. Therefore, the right of appeal is against a direction, whether it is made under sub-s. (3) or sub-s. (4) of s. 15. In this case we are not concerned with sub-s. (4) of s. 15, and the only question on this aspect of the case that arises for our determination is whether the order made by the Authority was a direction under sub-s. (3) of s. 15. Turning to s. 15, sub-s. (1) deals with the jurisdiction of the authority to be appointed and his authority is to deal with all claims arising out of deductions from the wages, or delay in payment of the wages, of persons employed or paid in the area mentioned in that sub-section. Then sub-s. (2) gives the right to an employed person to make an application where a duduction has been made from his wages, or the payment of wages has been delayed. Then the first proviso to sub-s. (2) provides for the period of limitation within which the application is to be made, and the second proviso gives the power to the authority to admit an application after the period of limitation. Then comes sub-s. (3) and the opening words of that sub-section are “When any application under sub-s. (2) is entertained”, and then the sub-section goes on to provide how the application is to be heard by the authority, and the concluding words are:

“the authority may 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 rupees in the latter.”

The contention of Mr. Baptista is that after the delay had been condoned by the authority, the application was entertained, and the order made by the authority is a direction under sub-s. (3) of s. 15 that the employee is not entitled to wages, and that direction is subject to appeal under s. 17. We think Mr. Baptista is right on the authorities that the right of appeal which is conferred is not limited to a case where the authority gives a direction to the employer to pay an amount to the employed person. The right of appeal would also arise if the authority refuses to give a direction in the sense that he holds on the merits of the application that the employee is not entitled to any amount; in other words, he dismisses the application of the employee after considering the merits of his case. But what is really urged by Mr. Baptista is that even when the authority holds that the employee is not entitled to any relief, not on the ground that he has no case on merits, but on the ground that he has no jurisdiction to entertain the application, it amounts to a refusal to give a direction which is subject to appeal under s. 17. We are unable to accept that contention. It has been urged by Mr. Baptista that the expression “entertain” used in sub-s. (3) is used in its technical sense, and that once the authority has come to the conclusion that delay should be condoned and puts the application formally on file, it is entertained by him. On the other hand, the view taken by the learned Judge below is that an application is only entertained when the Court has jurisdiction to hear that application, and, therefore, an order with regard to jurisdiction is passed under sub-s. (2) and not under sub-s. (3). In our opinion it is strictly unnecessary to consider that aspect of the case, though it may be pointed out that a plea as to jurisdiction may be taken at any stage, and if a Court or authority has no jurisdiction, even the fact that a party does not raise the plea of jurisdiction will not confer jurisdiction upon that Court or authority. But even assuming that Mr. Baptista is right, and in this particular case the application was entertained after the delay had been condoned, it is not mere entertaining an application that is sufficient for the purpose of deciding the question as to whether the right of appeal had ensued to the employee or not. In order that an employee should have a right of appeal under s. 17, not only must the petition be entertained, but there must be a refusal to give a direction on the merits of the application. Therefore, two conditions are necessary and not one in order to give rise to the right of appeal under s. 17. In this case only one condition was satisfied, assuming Mr. Baptista is right as to the argument with regard to the expression “entertained”. The authority entertained the application. Having entertained it the authority did not proceed to dispose of it on merits, but held that he had no jurisdiction to dispose of the application. It is impossible to accept the contention that because the application was entertained for the purpose of determining the preliminary issue as to jurisdiction, the decision of the authority that he had no jurisdiction was tantamount to refusal to give a direction on merits. Therefore, it is clear that in this particular case as the authority refused to assume jurisdiction and refused to deal with the respondents' application on merits, the only remedy they had was to come to this Court on a petition to compel the authority to assume jurisdiction and dispose of the application of the respondents on merits. They had no right to appeal under s. 17 as there was no decision on merits which they could appeal against.

Turning to the merits of the matter, the jurisdiction under which the respondents claim the wages is, in our opinion, capable only of one construction. The notification gives the option to the employees of the Railway Co. of serving in the future Pakistan State or in the rest of India, and it provides that option should be exercised before June 30, 1947. It then goes on to say:

“Employees who are unable to make up their minds finally within this period, should fill in the form provisionally, as a further opportunity will be afforded to them to make a final choice within six months from the date of transfer of power.”

And cl. 2 of the notification provides:

“It should be clearly understood that the existing terms and conditions of service are guaranteed by the representatives of both the future Governments and that a provisional choice now exercised will not in anyway prejudice the employee's seniority or other conditions of service.”

Now, it is not disputed that in the answer to the questionnaire which was submitted to these respondents they did not finally opt for Pakistan, but their choice was provisional, and they ultimately decided to come to India and serve the Railway Co. in India. The first question that we have to consider is, what was the position of these respondents during the period they were in Pakistan? Did they cease to be in the service of the Railway Co. or their rights as employees were merely suspended during that interregnum. It is clear from the fact that the Railway Co. guaranteed to these employees their seniority and other conditions of service that the respondents did not cease to be in the service of the Railway Co. during the period when a right was given to them to think over their own position and ultimately decide. The relationship of employee and employees did not cease, that relationship was merely suspended, and as soon as the option was exercised by the respondents the suspension came to an end and the employees became entitled to all the conditions and rights of service with the Railway Co. It is true that the option was unilateral, but that was the whole object of the notification. Once that unilateral option was exercised by the employee, it was not open to the employer to say:

“Although I gave you the option, although I guaranteed you your conditions of service, now that you have exercised that option I will not take you in my service or I will not pay you the wages although you are ready and willing to serve.”

That is exactly the attitude taken up by the Railway Co. It is not suggested that the respondents were not ready and willing to render services from February 10, 1948. The attitude taken up by the Railway Co. is that although the respondents were ready and willing, it was left to their own discretion when they should employ them and from what date they should pay for their services. If this attitude is justified, then the assurance given to the respondents was meaningless and was not worth the paper on which it was given. Mr. Baptista contends that under cl. 2 of the notification the seniority and conditions of service were not guaranteed by the Railway Co. in India, but an assurance was given to guarantee their seniority and other conditions of service in case they were absorbed by Pakistan. It is difficult to understand how such an interpretation is possible. They were not concerned with Pakistan. The Railway Co. were concerned with the terms of service of their own employees in India, and as these respondents were serving in India before Partition they were concerned with what rights they should safeguard as far as their employees were concerned, and inasmuch as the employees did not make their final choice in favour of Pakistan and inasmuch as a locus penitentiae was given to the respondents, the Railway Co. guaranteed to them their seniority and other conditions of service provided within the time indicated in the notification they made their final choice in favour of India, and inasmuch as the respondents made their choice in favour of India and reported themselves for service, the Railway Co. became liable to pay their wages.

Mr. Baptista further argues that at best this is merely a case of a breach of undertaking on the part of the Railway Co. and it may give a right to the respondents to sue for damages or compensation and not for wages. Now, a question of damages or compensation would only arise provided the respondents had ceased to be in the service of the Railway Co. and when they were absorbed they were being re-employed. But it is clear that there was no question of re-employing the respondents. They always continued to be in service, their service was temporarily suspended, and their service was resumed as soon as they showed their readiness and willingness to offer their services to the Railway Co. The question of a breach of undertaking would only arise on the assumption that the respondents were no longer in the service of the Railway Co. and they were claiming to be in service by reason of the undertaking given by the Railway Co. In our opinion that is not the true position that arises under the notification.

We are, therefore, of the opinion that the learned Judge Mr. Justice Desai was right in the view that he took. The result is that the appeal fails and must be dismissed with costs.

Attorneys for appellant: Little & Co.

Attorneys for respondents: Pandyia & Co.

Appeal dismissed.

P.M.P