The Assam State Transport Corporation And Another v. Nalini Ranjan Aditya Opp. Party.

1. This revision petition is directed against the judgment and order dated 22.6.89 passed by the learnsd Additional District Judge, Cachar, at Silchar in Misc. Appeal Nos. 19, 23 to 27 of 1981. By the said order the learned court set aside the order of the learned Additional Deputy Commissioner, Cachar passed under the Payment of Wages Act, 1936, for short, ‘the Act’.

2. The facts briefly stated are as follows:

The opp. party herein was a permanent L.D Assistant in the establishment of State Transport Corporation, petitioner herein and he submitted his resignation on 1.11.71 with a notice making effective the said resignation from 1.12.1971 He also prayed that he may be released immediately. His resignation was held up for various reasons and ultimately on 31.1.76 it was accepted with retrospective effect from 1.7.73 The said employee claimed that he was not paid his wages from August, 1972 to December, 1975 except for the period from December, 1972 to June, 1973. Accordingly, the employee filed applications under the Payment of Wages Act, 1936 before the learned Addl. Deputy Commissioner on different dates to save limitation. It has been pleaded that acceptance of resignation with, retrospective effect is an illegality and cannot be sustained. According to the employee as he was not released till December, 1975, he could not jein the legal profession as the whole purpose for submitting the resignation was to join the said profession.

3. The State Transport Corporation resisted the claim on the ground that the employee was not entitled to get any wage for the period he remained absent without leave or without authority from. 1.7.73 to 29.12.75 when his resignation was finally accepted. It was also pleaded that the date of effect of the resignation was subsequently changed to 1.7.73 Main contention on behalf of the Corporation was that no wages were payable as the employee was absent without leave or authority. The learned Addl. Deputy Commissioner considered as to whether the employee actually worked for the period from March to December, 1975; or whether he is entitled to any wages as claimed. Taking the Attendance Registers exhibits—1 and 2 and also evidence of P.W 3 into consideration, the learned Additional Deputy Commissioner came to the finding that nobody prevented the employee to sign his name in the Attendance Registers and as his name did not appear in the said Registers for the relevant period and as such no wages can be claimed as no work was done. The learned Court also took into consideration Section 15 of the Act and came to the finding that as there was a dispute about the foundation of the claim, the controversy was out-side the scope of the Act. Accordingly, the claim was rejected on the ground that an employee is not bound to pay for work which has not been done. The learned lower appellate Court took into consideration the Attendance Registers exhibits—A and B and other materials on record and relying on the oral evidence of the employee held that the plea of the employee that he was not allowed to sign the Attendance Register cannot be accepted. However, applying clause (b) of sub-section (2) of Section 7, the learned lower appellate Court held that for absence from duty, it must be a volutnary absence by the employee and it cannot cover the absence of the employee when he is forced by the circumstances created by the employer from carrying out his duties. According to the learned court as the employee was absent from the duty, the corporation was justified in deducting his wages for the period under section 7(2)(b) of the Act. After examining the provisions of Section 7(3) read with Section 9 of the Act, the Court held that not more than 50% of the wages can be deduced for unauthorised absence from duty. Learned court also fouad another lecuna in this case that the deduction being a penal one, it is not sustainable in law as no show-cause notice was given. Learned court made same observation about giving retrospective effect of the order of the acceptance of the resignation and accordingly held that it cannot be so given and the date of resignation shall be deemed to be 30.12.1975 In the result, all the appeals were allowed and the corporation was directed to pay 50% of the wages from 1.8.72 to 30.11.72 and from 1.7.73 to 30.12.75 and also compensation @ five times of that aimount under Section 15(3) of the Act.

4. Heard Mr. Defca, learned counsel for the petitioner and Mr. Singh, learned counsel for the opp. party.

5. Mr. Singh has raised a preliminary objection that the present petition under section 115 C.P.C is not maintainable considering the scheme of the Act. section 115 C.P.C inter alia, provides that High Court may-call for the record of any case which has been decided by any Court subordinate to such High Court and in which, no appeal lies and make such order in the case as it thinks fit. It is not necessary to state the power of revisional court for the present purpose as contained in the said section 115 C.P.C

6. For application of Section 115 CPC, the following conditions must be fulfilled before calling any record of any case, namely, (1) the case has been decided by any Court; (2) the said court is sub-ordinate to High Court and (3) no appeal lies against the said order of the subordinate Court.

7. Section 17 of the Act, inter alia, provides that 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 in a Presidency-town before the Court of Small Cause and elsewhere before the District Court. There cannot be any dispute that both the Court of the Small Causes and the District Court are subordinate to High Court. In the case in hand all the petitions filed under the Act has been decided by the Additional Deputy Commissioner and the Act does not provide for a Second Appeal against the order of the Additional District Judge. Therefore, contention of. Mr. Singh is not tenable in law and I hold that the revision petition under section 115 C.P.C is maintainable against any order passed by the Court of Small Causes or District Court in an appeal under Section 17 of the Act. It may also be mentioned that sub-section (4) of Section 17, inter alia, provides that the Court 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. This provision also strengthen the view that a revision petition is maintainable as both the courts mentioned above are subordinate to High Court. It is needless to say that for exercising levisional powers any one of the conditions laid down in clauses (a)(b) and (c) of sub-section (1) of section 115 C.P.C must be fulfilled.

8. Reliance has been placed on a decision of a Division Bench of Bombay High Court of C.T Daru v. Manager, Ahmedabad Spinning and Manufacturing Co. Ltd. A.I.R 1955 Bombay 460. The court speaking through the C.J Hon'ble Mr. Changla, as his Lordship ihen was held that if a decision is given by the authority under the Payment of Wages Act which is not subject to appeal, it could only be challenged under Article 227 of the Constitution and if an appeal is provided and a party aggrieved appeals and decision is given by the District Judge, then the decision can be challenged in a revision under Section 1(5) CPC. Of course, it was held that as a matter of practice it would be better that all decisions under the Payment of Wages, if they are to be challenged at all are, challenged under Article 227 of the Constitution as the Court has-jurisdiction under Article 227 of the Constitution not only to interfere with the decisions of the Tribunals, but also of Courts suber-dinate to the High Court in the interest of uniformity. I am in respectful agreement with the views expressed that against an appeal order of District Judge under the Act, a revision petition under Section 115 CPC is maintainable and if no appeal is provided, the order of authority under the Act can be challenged before High Court under Article 227 of the Constitution. It is not necessary for this High Court to maintain the uniformity and give a direction that all orders under the Act may be challenged only under Article 227 of the Constitution.

9. For the purpose of present petition, following provisions or the Act are relevant:—

“7. Deductions which may be made from wages,

(1) ************

(i)************

(2) Deductions from the wages of an employed person shall be made only in accordance with the provisions of this Act, and may be of the following kinds only, namely:—

(a) fines;

(b) deductions for absence from duty

(c)************

(d) ************

(e) ************

(3) Notwithstandiog anything contained in this Act, the total amount of deductions which may be made under sub-section (2) in any wage-pericd from the wages of any employed person shall not exceed:—

(i) ************

(ii) in any other case, fifty per cent of such wages;

Provided that where the total deductions authorised under sub-section (2) exceed seventy-five percent or as the case may be, fifty percent of the wages, the excess may be recovered in such manner as may be prescribed.

8. ************

14. ************

15. Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims.

(i) ************

(3) When any application under sub-section (2) is enter tained, 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, as the authority may think fit, not exceeding twenty-five rupees…”

10. From the above provisions of Section 7 of the Act, it is clear that deduction from the wages of an employed person can be made as laid down in sub-section (2) of Section 7. According to clause (b) of sub-section (2) of Section 7 deduction can definitely be made for absence from duty but such deduction under clause (ii) of sub-section (3) of Section 7 cannot exceed 50% of the Wages.

11. Coming to the case in hand admittedly the resignation sub mitted was not accepted and as such the relation of master and servant between the employed person and corporation continued. Even if the employed person was absent without authority, his total wages cannot be withheld and be is entitled under the provisions of the Act to get 50% of she total wages. Both the courts below have held that the employed person was absent from duty without any authority, in other words, it was case of absence from duty. Therefore, in my opinion the learned District Judge rightly held that the employed person was entitled to get 50% of the Wages. Next question is regarding the effect of the acceptance of the resignation letter. The settled position of law is that a resignation becomes effective from the date of its acceptance. So in the case in hand accepting resignation with retrospective effect is a clear violation of the legal provisions and accordingly, I hold that the resignation became effective from 29.12.75 i.e the date an which it was accepted. Therefore, till that date the relationship of master and servant between the employed person and the Corporation continued and the employed person is entitled to get 50% of the Wages for the unpaid period till that date.

12. Now the last question is regarding the payment of compensation under Section 15 of the Act. Admittedly, no payment was made as wages to the employed person for the period in question. Under sub-section (3) of Section 15 the authority can direct the payment of compensation not exceeding ten times the amount deducted in case of deduction and not exceeding Rs. 25/- in case of delayed wages. The language of the said sub-section is clear on this point and there cannot be any dispute. Though Mr. Deka has tried to impress this Court that it is a case of delayed wages, it is not at all convincing as no payment was made. The last portion of the said subsection is not alio applicable in the case in hand as no payment was made before disposal of the applications filed before the authority. I hold that the present case being a case of deduction as covered by sub-section (2) of Section 7 the learned District Judge rightly awarded compensation @ 10 times the amount deducted i.e 50% of the wages. In the result, I do not find any merit in the present petitions and accordingly it is dismissed and the rule is discharged. Interim order, if any stands vacated. No costs.