Citation Codes

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citation codes

Case Number

Matter No. 434 of 1964

Judges

B.C Mitra, J.

Acts

PAYMENT OF WAGES ACT 1936
section 33(2)(b) of the Industrial Disputes Act
section 33(2) of the Industrial Disputes Act.7.
s. 33 (2) (b) of the Industrial Disputes Act, 1947,

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner is a business manufacturing and selling cigarettes at a factory in Agarpara, district of 24-Parganas. Respondent No. 2 was employed by the petitioner as a member of the Watch and Ward staff. It is alleged that on the night of 29 December 1961 respondent No. 2 was found sleeping at about 10:50 p.m., was charged with misconduct and, after an enquiry, was dismissed around 6 January 1962.

At the time of dismissal proceedings were pending before the First Industrial Tribunal under a reference relating to an industrial dispute. On or about 17 April 1962 the petitioner applied under section 33(2)(b) of the Industrial Disputes Act, 1947 for approval of the dismissal. The matter was transferred to the Second Labour Court and, by an order dated 26 November 1963, approval to the petitioner's order of dismissal was refused.

On 15 April 1964 respondent No. 2 filed an application under the Payment of Wages Act, 1936 before respondent No. 1 claiming Rs. 2,067.21 for wages from December 1961 to March 1964 and Rs. 10 as compensation, and seeking condonation of delay on the ground that the cause of action arose on 27 November 1963 when the Labour Court refused approval. The petitioners filed a written statement on 9 June 1964 contending that respondent No. 1 had no jurisdiction to entertain the application. On 7 July 1964 respondent No. 1 held that he had jurisdiction and that there was sufficient cause to condone the delay.

The petitioners sought writs prohibiting respondents from enforcing or acting on the order dated 7 July 1964 and for quashing that order. This Court found that respondent No. 1 had committed an error apparent on the face of the record in treating limitation as commencing from the date when the Labour Court refused approval rather than from the date of dismissal (6 January 1962), and made the rule absolute. A Writ of Certiorari was issued quashing the order dated 7 July 1964. The Court clarified that this quashing would not prevent respondent No. 2 or respondent No. 1 from proceeding to deal with the claim in light of the observations in the judgment and in accordance with law. Each party was to pay its own costs and the records were directed to be sent back.

Legal Issues Presented

Whether respondent No. 1 had jurisdiction under the Payment of Wages Act, 1936 to entertain respondent No. 2's application for back wages filed on 15 April 1964.
Whether respondent No. 1 had jurisdiction under section 15(2) of the Payment of Wages Act to condone the delay in making the application, given the limitation period and the correct starting point of limitation.
Whether the High Court, in exercise of writ jurisdiction under Article 226, could quash the order of respondent No. 1 (by certiorari) on the ground of an error apparent on the face of the record.

Arguments of the Parties

Petitioner's Arguments (as advanced by Mr. Ginwalla)

Definition of "wages" (section 2(vi) of the Payment of Wages Act) requires that wages be remuneration payable for services rendered according to the terms of the contract; thus, wages are earned only if terms of employment are fulfilled and services are rendered.
Respondent No. 2 did not render service after dismissal and therefore could not claim wages—at most he might have a claim in damages for wrongful dismissal but not wages for unrendered service.
Reliance on authorities holding that "wages" equate to remuneration for services rendered according to contract.
The claim for back wages is barred by limitation under the first proviso to section 15(2) of the Payment of Wages Act; condonation requires proof of sufficient cause for the entire period of delay, not only for the last six months.
The correct starting point of limitation is the date of suspension or removal (dismissal) — 6 January 1962 in this case — and not the date when the Labour Court refused approval; thus respondent No. 1 erred in condoning delay computed from the Labour Court order.
Contended that respondent No. 1's order contained an error of law apparent on the face of the records and therefore was amenable to certiorari.

Respondent's Arguments (as advanced by Mr. Manash Roy for respondent No. 2)

The contentions now raised by the petitioners were not raised before respondent No. 1 (the authority) and therefore should not be permitted to be raised in this writ petition.
The High Court should not interfere with respondent No. 1's order because it does not sit as an appellate body; writ jurisdiction is supervisory, not appellate (relying on Hari Vishnu Kamath).
The impugned order merely condoned delay and entertained the application; no order directing payment of wages has been made yet, and therefore the petition is premature.
Even if part of the claim is time-barred, the claim for the last six months would still be open and respondent No. 1 lawfully condoned delay to enable consideration of that part of the claim.
Reliance on Supreme Court authorities (Strawboard; Tata Iron & Steel Co. Ltd. v. Modak) that where a Tribunal refuses to approve an employer's dismissal, the workman is deemed to have continued in service and thus may claim wages for the period up to the Tribunal's order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Divisional Engineer, G.I.P. Railway v. Mahadeo Raghoo, AIR (1955) SC 295	Wages are remuneration payable by an employer to an employee for services rendered according to the terms of the contract.	Relied upon by the petitioner to argue that wages are payable only for services rendered; the Court acknowledged this principle when considering whether respondent No. 2 could claim wages despite not rendering service.
Bala Subrahmanya Rajaram v. B.C. Patil, AIR 1958 SC 518	Affirmed the equivalence of 'wages' to remuneration payable if the terms of the contract of employment were fulfilled.	Relied upon by the petitioner to support the argument that wages are earned only upon fulfillment of contractual terms; treated as part of the legal background to the wages issue.
Strawboard Manufacturing Company Ltd. v. Govind, AIR 1962 SC 1500	Where a Tribunal does not approve the employer's action of dismissal the dismissal is of no effect and the workman is deemed never to have been dismissed; no separate reinstatement order is necessary.	Relied upon by both parties: petitioner referenced it but respondent emphasised it to argue that refusal to approve means the employee is deemed in service and thus entitled to wages; the Court accepted that principle as correctly stating the law on entitlement to wages where approval is refused.
Sitaram Ramcharan v. M.N. Nagrashana, AIR 1960 SC 280	To admit an application after six months under s.15(2) of the Payment of Wages Act sufficient cause must be shown for the whole period of delay, not merely for the last six months.	Relied upon by the petitioner to argue that condonation requires explanation for the entire period; the Court considered this when evaluating whether respondent No. 1 properly condoned delay.
B.N. Elias & Company Pvt. Ltd. v. The Authority, AIR 1960 Cal. 603	Whether there is sufficient cause under s.15(2) is a mixed question of law and fact; negligence and inaction are relevant; explanation must cover the whole period and calculation of time may not start from the last day of correspondence.	Relied upon by the petitioner to argue that respondent No. 1 misapplied the law on limitation and condonation; the Court treated the decision as supporting the view that an error in computing limitation can be an error apparent on the record.
Sheoprosad v. Additional District Judge, AIR 1962 All. 144	Wages fell due in the year of removal from service; the starting point of limitation is the date of suspension or removal and not the date of reinstatement.	Relied upon by the petitioner to support the contention that limitation began on dismissal (6 January 1962); the Court applied this principle to hold the authority erred in starting limitation from the date of the Labour Court's refusal.
Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) SCA 105	Explains the scope of certiorari: it corrects jurisdictional errors or manifest errors apparent on the face of records; it is supervisory, not appellate, and does not allow review of findings of fact unless there is a manifest error.	Relied upon by respondent to argue against interference by the High Court; the Court accepted the principle but distinguished cases where a manifest error apparent on the record exists and held that such error existed here.
Parry's (Calcutta) Employees Union v. Parry & Co. Ltd., AIR (1966) Cal. 31	Reiterates that High Court generally should not review findings of fact unless there is a manifest error apparent on the face of the proceedings.	Relied upon by respondent but the Court found it not helpful because the present case involved an error of law apparent on the face of the record (misapplication of limitation principles).
Tata Iron & Steel Co. Ltd. v. S.N. Modak, (1965) 2 SCA 681	If the Tribunal does not grant approval to an order of dismissal, that dismissal is invalid/ineffective and the employee may legitimately claim to continue in employment and claim wages for the period.	Relied on by respondent to support entitlement to wages where Tribunal refused approval; the Court accepted this as correctly stating the law that an employee may be entitled to wages if the dismissal is found ineffective, subject to limitation rules.

Court's Reasoning and Analysis

The Court proceeded by identifying the applicable legal principles and then applying them to the facts disclosed in the record.

The Court recognised the established principle (from authorities cited) that when a Tribunal refuses to approve an employer's dismissal under section 33(2)(b) of the Industrial Disputes Act the dismissal is of no effect and the workman is, in law, deemed to have continued in the employer's service for the period in question. Consequently, such a workman may be entitled to claim wages for that period.
However, that entitlement is subject to the statutory limitation regime under the Payment of Wages Act, especially section 15(2) and its provisos which prescribe a six-month presentation period and permit condonation only upon sufficient cause shown for the whole period of delay.
A crucial legal contention was the correct starting point for the running of limitation. Petitioner argued (and the Court accepted) that limitation starts from the date of termination of service (the date of dismissal, 6 January 1962), not from the later date when the Labour Court refused approval. The Court held that respondent No. 1 misapplied the settled law by computing limitation from the date of the Labour Court's refusal rather than from the date of dismissal.
The Court treated respondent No. 1's order condoning delay for the entire claimed period as reflecting a failure to apply the law of limitation correctly. The impugned order contained an error apparent on the face of the record because it condoned delay for the whole claim without addressing the limitation bar that started at dismissal.
The Court considered and rejected respondent's procedural objections (failure to raise points before the authority; prematurity) to the extent that those objections would preclude issuing certiorari. The Court noted that omission to raise the question before the authority does not prevent a writ petition where an error of law is apparent on the face of the record.
Concluding from the foregoing, the Court found that the error was manifest and apparent on the record and therefore appropriate for correction by certiorari.

Holding and Implications

Holding: Rule made absolute; a Writ of Certiorari is issued quashing the order dated 7 July 1964 made by respondent No. 1.

Direct implications and consequences:

The impugned order of respondent No. 1 dated 7 July 1964 is quashed for being an error apparent on the face of the record in respect of the computation of limitation and condonation of delay for the entire claimed period.
The quashing does not prevent respondent No. 2 from pursuing his claim before respondent No. 1 or prevent respondent No. 1 from dealing with that claim; the Court expressly permitted further proceedings in light of the observations in the judgment and in accordance with law (i.e., with proper application of limitation principles and attention to what portion of the claim may be maintainable).
Each party was directed to pay its own costs, and the record was to be returned.
The Court's decision rests on application of settled principles; the opinion does not purport to establish a new precedent beyond articulating and applying existing law on entitlement to wages where dismissal is not approved and on the correct computation of limitation under s.15(2) of the Payment of Wages Act.

End of summary. All content in this summary is drawn exclusively from the provided opinion text.

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Re: National Tobacco Co. Of India Ltd. v. The Authority Appointed Under The Payment Of Wages Act And Others.

The Judgment of the Court was as follows:

1. In this application the petitioner seeks appropriate writs and order prohibiting the respondents from enforcing, giving effect to and acting upon an order dated July 7, 1964, and also to forbear from entertaining an application being application No. 67 of 1964 and for quashing the said order.

2. The petitioners' business consists in the manufacture and sale of cigarettes at its factory at Agarpara, in the district of 24-Parganas. The respondent No. 2 was, until he was dismissed, as hereinafter mentioned, an employee of the petitioner at the said factory as a member of the Watch and Ward staff. It is alleged that on the night of December 29, 1961, the respondent No. 2 was found sleeping at about 10-50 p.m Thereupon he was charged by the petitioner with misconduct, and after an enquiry had been held, the respondent No. 2 was dismissed by the petitioner on or about January 6, 1962. As at the date of the dismissal proceedings were pending before First Industrial Tribunal, under a reference relating to an industrial dispute, the petitioner on or about April 17; 1962, made an application under s. 33 (2) (b) of the Industrial Disputes Act, 1947, for approval of the action taken by it in dismissing the respondent No. 2.

3. The case was thereafter transferred to the Second Labour Court and this Court, by an order dated November 26, 1963, refused to accord approval to the petitioners' order dismissing the respondent No. 2. The petitioners' case is that the respondent No. 2 did not present himself for work at the petitioners' factory until April 20, 1964, on which date the petitioners took the respondent No. 2 back to this employment. On April 15, 1964, respondent No. 2 made an application under the Payment of Wages Act, 1936, (hereinafter referred to as the Act) to the respondent No. 2 who is the authority under the said Act. In this application the respondent No. 2 made a claim for Rs. 2067.21 paise for wages from December, 1961, to March, 1964, and Rs. 10/- by way of compensation. The respondent No. 2 further prayed for condonation of the delay in making the application on the ground that the cause of action arose on November 27, 1963, when the petitioners' said application was rejected by the Second Labour Court.

4. On June 9, 1964, the petitioners filed a written statement in which it was contended that the respondent No. 1, had no jurisdiction to entertain the said application. On July 7, 1964, the respondent No. 1 made an order by which he held that he had jurisdiction to entertain the said application and further that there was sufficient cause for condoning the delay. It is this order which is the subject-matter of challenge in this application.

5. Appearing for the petitioner Mr. Ginwalla contended that the respondent No. 2 could not claim any wages as wages, had to be earned by an employee. It was argued that the respondent No. 2 might have a valid claim in damages, for breach of contract, on the ground that the dismissal was wrongful; but the respondent No. 2 could not claim wages as he did not render any service to the petitioner. In support of this contention Mr. Ginwalla relied upon the definition of wages in section 2 (vi) of the Act which runs as follows:—

(vi) “wages” means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes—”

6. Relying upon the definition of wages in the Act Mr. Ginwalla argued that before wages could be earned by an employee he must fulfil the terms of employment,-express or implied. In other words, it was argued that unless the terms of employment were fulfilled, an employee could not be said to have earned the wages which he claimed. In this case the terms of employment were not fulfilled, as the respondent No. 2 did not render services to the petitioners, which was a condition precedent to his earning any wages, and this condition precedent, namely, the rendering of service to the petitioners, not having been fulfilled by the respondent No. 2, he could not make a valid claim for wages and, therefore, the respondent No. 1 had no jurisdiction to entertain the application for wages, nor had he the jurisdiction to condone the delay in making the application. In support of this contention reliance was placed by the learned counsel for the petitioners on the decision of the Supreme Court in (1) Divisional Engineer, G.I.P Rail way v. Mahadeo Raghoo, AIR (1955) SC 295, in which while dealing with the question of wages it was held ‘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.” Relying upon this decision it was argued that wages is the remuneration payable to an employee, for services rendered; and if an employee rendered no service whatsoever, there could be no question of paying him any remuneration and, therefore, there would be no liability for wages of the employer to the employee. The next case relied upon by Mr. Ginwalla was also another decision of the Supreme Court: (2) Bala Subrahmanya Rajaram v. B.C Patil, AIR 1958 SC 518. In that case also wages was held to be equivalent to remuneration which would, if the terms of the contract of employment were fulfilled, be payable by the employer to the employee. The next case relied upon by Mr. Ginwalla is the decision of the Supreme Court in (3) The Strawboard Manufacturing Company Limited v. Govind, AIR 1962 SC 1500. In that case, however, it was held that if the Tribunal did not approve of the action taken by the employer, the result would be that the action taken by the employer would fall and the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer. In such a case no specific provision for reinstatement was necessary, as the result of the Tribunal not approving the action of the employer, would be that the discharge or dismissal of the workman would be of no effect, and the workman concerned would be in the service of the employer as if there was no dismissal or discharge, and for this reason the order of discharge or dismissal passed by an employer did not become final until it was approved by the Tribunal under section 33(2) of the Industrial Disputes Act.

7. The next contention of Mr. Ginwalla was that the respondent No. 2 was not entitled to any wages for the period during which he did not render any service to the petitioner but he might be entitled to damages for wrongful dismissal. In support of this contention reliance was placed by Mr. Ginwalla on the Law of Master and Servant by A.S Diamond, p. 214.

8. The next contention of Mr. Ginwalla was that there was an error of law on the face of the records as the claim of the respondent No. 2 for back wages was clearly barred by limitation, and the respondent No. 1 had no jurisdiction to condone the delay in making the application. In support of this contention Mr. Ginwalla referred to the first proviso to section 15(2) of the Act which provides that every application shall be presented within six months from the date on which the reduction from the wages was made or from the date from which the payment of wages was due to be made. The second proviso to section 15(2) requires that any application may be admitted after the said period of six months, when the applicant satisfies the authority that he had sufficient cause for not making the application within such period. Relying upon these provisions in the Act, it was argued, that the respondent No. 1 had no jurisdiction to condone the delay, as the application for the back wages had been made long after the expiry of the period provided by the first proviso to section 15(2) of the Act. Mr. Ginwalla argued that the respondent No. 2 should have claimed the wages each month as it fell due, instead of waiting for the order of the Labour Court refusing to approve of the order of dismissal. In support of this contention reliance was placed by Mr. Ginwalla on the decision of the Supreme Court in (4) Sitaram Ramcharan v. M.N Nagrashana, AIR 1960 SC 280. In that case it was held that it was not enough merely to furnish explanation for not making the application within the period of six months, but that sufficient cause must be shown for not making the application for the whole period of delay and not only for the period of six months. Reliance was also placed by Mr. Ginwalla on a decision of this Court reported in (5) B.N Elias and Company Private Limited v. The Authority, AIR 1960 Cal. 603. In that case it was held that the question whether there was sufficient cause for not condoning the delay under section 15(2) of the Act was a mixed question of law and fact. It was also held that not only negligence but inaction should also be taken into account, and an explanation should be given for the whole period of delay and not only for the period of six months. It was further held that the period of six months would not be calculated from the last day of the correspondence, if there was correspondence, and that this was an error on the face of the records. Relying upon this decision Mr. Ginwalla argued that in this case also it was assumed by the respondent No. 1 that the period of limitation had to be calculated from the date of the order made by the Labour Court. This, Mr. Ginwalla contended, was an error apparent on the face of the records. The next case relied upon by Mr. Ginwalla was a decision of the All. High Court reported in (6) Sheoprosad v. Adl. Dist. Judge, AIR 1962 All. 144. In that case it was held that the wages fell due in the year of removal from service and that the starting point of limitation was the date of either suspension or removal and not the date of reinstatement. Relying upon this decision Mr. Ginwalla argued that the claim of the petitioner for back wages was clearly barred by limitation and that the respondent No. 1 had no jurisdiction to make an order condoning the delay. It was argued that the law is now well-settled that where a person is suspended or removed from service, limitation under section 15(2) of the Act will start to run from the date of the removal or suspension and not from the subsequent date when an order declaring the removal or suspension to be illegal or an order reinstating him in service was made. It was therefore contended by Mr. Ginwalla that the respondent No. 1 had no jurisdiction to make the order condoning the delay under section 15(2) of the Act.

9. Mr. Manash Roy, learned Advocate for the respondent No. 2, contended that the contentions now raised on behalf of the petitioners were not raised before the Tribunal and, therefore, the petitioners should not be allowed to urge those contentions in this application. It was argued that no order had yet been made by the Tribunal but only an order condoning the delay had been made and, therefore, the petitioners were not entitled to any relief in this application.

10. The next contention of Mr. Roy was that this Court had no jurisdiction to interfere with the impugned order as this Court was not sitting in appeal over the decision of the respondent No. 1. Mr. Roy argued that even if the Tribunal had decided wrongly this court in exercise of its writ jurisdiction could not revise or set aside or otherwise interfere with the decision of the respondent No. 1 in an application under article 226 of the Constitution. In support of this contention reliance was placed by Mr. Roy on the decision of the Supreme Court in (7) Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) SCA 105. In that case it was held that certiorari would be issued for correcting errors of jurisdiction when the inferior Court or Tribunal acted without jurisdiction or in excess of it or failed to exercise such jurisdiction. Secondly, this writ would also be issued when the Tribunal acted illegally in the exercise of its jurisdiction as when it decided matters without giving an opportunity to the parties to be heard. Thirdly, the Court issuing a writ of certiorari acted in exercise of a supervisory and not appellate jurisdiction and, therefore, the Court would not review the findings of fact reached by the inferior Court or the Tribunal even if such findings of fact were erroneous. Fourthly, it was held that an error in the decision might be amenable to a writ of certiorari but such error must be a manifest error apparent on the face of the proceedings, e.g when the decision was based on clear ignorance or disregard of the provisions of law. It was a patent error, it was held, which could be corrected by certiorari but not a mere wrong decision.

11. It is true that if the Tribunal had merely come to a wrong decision then this Court in exercise of its writ jurisdiction could not interfere with such a decision merely because a wrong inference has been drawn from the facts or the Tribunal has failed to correctly appreciate the evidence before it. But where the error is manifest and apparent on the face of the records, namely, where it is based on clear ignorance or disregard of provisions of law such an error can be corrected by a writ of certiorari. In this case the order condoning the delay has been made by the respondent No. 1 in total disregard to the settled law, namely, that limitation should run not from the date when the Labour Court refused to approve of the order of dismissal under section 33(2)(b) of the Industrial Disputes Act but from the date of termination of service which is January 6, 1962. The respondent No. 1 has, in my view, quite clearly failed to apply the law which is now well-settled, namely, that limitation under the first proviso to section 15(2) of the Act commenced not from the date when the Tribunal refused to sanction the order of dismissal under Sec. 33 (2) (b) of the Act but from the date of dismissal of the respondent No. 2 on January 6, 1962. This error, in my view, is an error apparent on the face of the re-Cords and a writ of certiorari can be issued for the purpose of dealing with such an error.

12. Reliance was next placed by Mr. Roy on the decision of this Court reported in (8) Parry's (Calcutta) Employees Union v. Parry & Co. Ltd., AIR (1966) Cal. 31, in support of the proposition that this Court should not review the findings of fact arrived at by the respondent No. 1, even though they be erroneous unless the error was a manifest error apparent on the face of the proceedings. But this decision, in my view, is of no assistance to Mr. Roy, as in this case the error of law is apparent on the face of the records, in so far as the respondent No. 1 condoned the delay in making the application, and in doing so he failed to apply the principles relating to limitation which are now well-settled.

13. The next contention of Mr. Roy was that the respondent No. 1 has not yet made any order directing the petitioners to pay the wages of the respondent No. 2. He argued that all that has been done by the impugned order is that the delay has been condoned and the application has been entertained by the respondent No. 1. If upon a full hearing of the matter, Mr. Roy argued, an order for the wages claimed by the respondent No. 2 was made by the respondent No. 1, it would be open to the petitioners to come and challenge this order on the grounds urged by the petitioners. In other words, Mr. Roy argued, that the application is premature at this stage and for that reason it is not maintainable. The next contention of Mr. Roy was that even if the claim for the entire period was barred by limitation, the claim for the last six months could not, in any event, be said to be barred, and the respondent No. 2 had a valid claim for the last six months, and, therefore, the respondent No. 1 had lawfully made the order condoning the delay.

14. The next contention of Mr. Roy was that the effect of the Labour Court's refusal to approve of the dismissal under section 33(2)(b) of the Act was that the respondent No. 2 must be deemed to be in the service of the petitioners from the date of dismissal and, therefore, the respondent No. 2, it was argued, would be entitled to the wages for the entire period commencing from the date of dismissal up to the date when the Tribunal made the order refusing the petitioners' application under section 33(2)(b) of the Act. In support of this contention reliance was placed by Mr. Roy on the decision of the Supreme Court in The Strawboard Manufacturing Co. Ltd. v. Govind, (supra). In that case it was held that in such a case no specific provision as to reinstatement was necessary and that by the very fact of the Tribunal not approving the action of the employer the dismissal or discharge of the workman would be of no effect and the workman concerned would continue to be in service as if there never was any dismissal or discharge by the employer.

15. The next case relied upon by Mr. Roy in support of this contention was also a decision of the Supreme Court in (9) Tata Iron & Steel Co. Ltd. v. S.N Modak, (1965) 2 SCA 681. In that case it was held that if approval was not granted by the Tribunal to the order of dismissal, such an order of dismissal or discharge passed by the employer would be wholly invalid or inoperative and the employee could legitimately claim to continue in the employment of the employer, notwithstanding the order dismissing or discharging him. Mr. Roy argued that if the employee could legitimately claim to continue to be in the employment of the employer in spite of the order of dismissal or discharge passed against him, the employee would certainly be entitled to claim his wages for the period.

16. In my opinion, this contention of Mr. Roy seems to be well-founded. The two decisions of the Supreme Court on which reliance was placed by Mr. Roy discussed above, plainly lay down the law, namely, that where the Tribunal had refused to approve of an order of dismissal, the employee is entitled to claim to be in the service of the employer for the entire period. If such an employee is so entitled, he certainly would be entitled to claim the wages, if in law his employment continues under the employer. It may be, as the fact is in this case, that the respondent No. 2 did not render any service to the employer to earn the wages, but nevertheless the law provides that he is entitled to claim to be in the employment for the entire period, commencing from the date of dismissal until the date when the Labour Court or the Tribunal refuse to make ah order sanctioning or approving of the order of dismissal. In that view of the matter it cannot be said that the employee is not entitled to the wages to which he would be entitled as an employee. But such a claim of wages made under the Act must necessarily be subject to the limitations provided thereunder. As I have discussed earlier in my judgment the petitionr's claim must be scrutinised on the basis of the bar of limitation provided in the statute itself. Although, therefore, the petitioner would be entitled to his wages, if he has got a valid claim, such a claim must be subject to the bar of limitation provided in the statute and the respondent No. 1 cannot, in my view, proceed to condone the delay in making the application for a claim for the entire period. There is nothing in the impugned order to show that the respondent No. 1 was proceeding to consider the claim of the respondent No. 2 only with regard to the claim for wages for the last six months to which the respondent No. 2 might be entitled. On the other hand, the impugned order shows that the delay has been condoned for the entire claim and this, in my view, the respondent No. I was not entitled to do. The order condoning the delay was made in complete disregard of the principles of limitation applicable to the case and this order, in my view, cannot stand.

17. Before I conclude I should refer to the other contention of Mr. Roy, namely, that the question raised in this application were not raised by the petitioner before the respondent No. 1. It is true that this question was not raised before the respondent No. 1, but such an omission on the part of the petitioner does not debar it from raising the question in a Writ petition where there is an error of law apparent on the face of the record, as in this case. Where, as in this case, the respondent No. 1 is proceeding to assume jurisdiction to deal with the question of claim for wages for the entire period disregarding the bar of limitation, it must be held that there is an error of law apparent on the face of the record and mere omission on the part of the petitioner to raise this question before the respondent No. 1 cannot, in my view, be such a formidable objection as to deny relief to the petitioner if it is otherwise entitled to such a relief. In my opinion, the petitioner is entitled to the relief it has claimed in this petition as there is an error of law apparent on the face of the record.

18. For the reasons mentioned above this application must succeed. The Rule is made absolute. Let a Writ of Certiorari issue for quashing the order made by the respondent No. 1 being the order dated July 7, 1964. I wish to make it clear, however, that this order will not debar the respondent No. 2 or prevent the respondent No. 1 from proceeding to deal with the claim of the respondent No. 2 in the light of the observations made in this judgment and in accordance With law. Each party to pay its own costs. Let the records be sent back.

C.R.D

Re: National Tobacco... v. The Authority Appoin...