1. This is an application Under Article 227 of the Constitution of India, the applicant being the Imperial Tobacco Company of India, Ltd., and it concerns an application made under Section 15 of the Payment of Wages Act, 1936, by two of their employees, the opposite parties Nos. 2 and 3, before, the Authority appointed under that Act, who is the opposite party No. 1. The application was disposed of by the impugned order of the Authority dated 25-2-67, in P.W.A Cases Nos. 73 and 75 of 1965. The application under Section 15 of the said Act is reproduced at annexure ‘A’ to the present petition. It was a simple case of alleged deduction from wages and the material averment is as follows:

“The applicant's wages have not been paid for the following wages period (s)…… (give dates)……. 6 hrs overtime wages from per week 1st January 65 to 15th March 65 (rate of wages Rs. 250/- per month).” The Payment of Wages Authority allowed this application in favour of the employees. His findings may be divided into two parts, half of which, however, was in favour of the employer. He rightly directed himself to the Statutory Rules to ‘overtime wages’ as contained in Section 59 of the Factories Act inasmuch as admittedly the workmen concerned were workmen governed by the Factories Act, 1948, Chapter VI of which contains certain Statutory provisions relating to the working hours of adult workmen governed by the Factories Act. The first relevant Section is Section 51 which fixes the maximum weekly hours for every adult worker at fortyeight hours per week. The question of overtime or extra wages for working beyond fortyeight hours dealt with in Section 59(1) thereof is relevant:

“Where a worker works in a factory for more than nine hours in any day or for more than fortyeight hours in any week, he shall, in respect of overtime work, be entitled to wages at the rate of twice his ordinary rate of wages.”

2. Now, in the first part of his order the Authority held that Section 59 of the Act did not entitle these employees to any overtime wages inasmuch as they did not, in the instant case, allege that they had been asked to work for more than fortyeight hours in a week. Had he stopped here the order of the Authority would have been entirely in favour of the employers and against the applicants before him, but in the second part of his order the authority stated that it had been established before him that prior to the transfer of these employees from the General Section to Accounts Section of the Factory, these employees had actually been working not more than forty two hours and because in the Accounts Section working hours were at the rate of fortyeight hours per week they had actually rendered six hours extra per week of work as compared with the number of working hours they used to render prior to their transfer in the Accounts Section He, therefore, concluded that the usage prior to the transfer to the Accounts Section would constitute the normal working hours of these employees and that since they had rendered more than that after their transfer to the Accounts Section they should get “extra remuneration if the working hour is increased.” Two of his observations must be noted: Firstly, he says, “Section 51 of the Factories Act authorises an employer to fix the working hours at 48 hours per week, but that does not give the employer a right to alter the service condition of the employee to the latter's disadvantage.” The second one is, “in this case the applicants were employed for doing 42 hours work in a week and accordingly their wages were fixed up. Now if the company decides to get 48 hours work from them their remuneration must increase proportionately.” On behalf of the management it is urged that the conclusion of the Authority upon which the impugned order is based is without jurisdiction, being outside the purview of Section 15 of the Payment of Wages Act, 1936, upon which the jurisdiction of the Statutory Authority is founded.

3. Mr. Das Gupta, appearing on behalf of the opposite party, raised a preliminary objection, namely, that since the petitioner before this Court did not raise any objection to the jurisdiction of the Authority before the Authority himself that objection should not be entertained in this Court under Article 227 There have been, of course, decisions under Article 226 on this point which may be taken to be applicable to the jurisdiction under Article 227 as well but those decisions proceed on the basis that the objection as to jurisdiction involves questions of fact which only the Statutory Authority has the jurisdiction to determine and in such cases the High Court, sitting in supervisory jurisdiction, should not entertain the objection involving questions of fact, in whole or in part, for the first time, but at the same time. it has been laid down in a number of cases where the question of jurisdiction goes to the root of the limited jurisdiction of a Tribunal as given by a statute the absence of jurisdiction cannot be waived by any amount of consent of tire litigant and, therefore, the business of supervisory court, whether under Article 226 or under 227, being to keep the Statutory Authority within the bounds of his limited authority the supervisory court should not throw out a petition either under Article 226 or 227 on the ground that such objection was not taken before the Statutory Tribunal. Let us, therefore, examine whether there is in the instant case any such question of jurisdiction going to the root of the Authority. There is little doubt that the jurisdiction of the Authority under the Payment of Wages Act is founded on Section 15 of that Act and it has been held in various cases of the Supreme Court, for instance, A.V D'Costa v. B.C Patel, AIR 1955 SC 412; Shri Ambika Mills Co., Ltd. v. S.B Bhatt, AIR 1961 SC 970; Payment of Wages Inspector v. B.E.S & I. Co., Ltd., AIR 1969 SC 590; that the jurisdiction of the Authority under the Act is limited by the terms of Section 15 of the Act and that he has no jurisdiction to go into other questions or to exercise any other power besides what is conferred by Section 15 and matters which are incidental thereto.

4. Now, the jurisdiction under Section 15(1) is “to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages, of persons employed or paid in that area.” In the instant case there is no question that the applicants before the Authority were persons employed within the specified area and this is also not a ease where delay in payment is alleged, We are, therefore, left to the determination of two concepts, namely, “Deductions” and “Wages” and if it is found that in the facts of the instant case neither of these two concepts are satisfied it must at once be held that the payment of wages Authority had no jurisdiction to entertain the application in question. As to what is ‘deduction’ is not directly defined in a few words but it has been explained in a number of provisions to imply that any sort of loss of wages will come within the concept of deduction unless that is excepted under any of the exceptions contained in the relevant sections, for instance, Section 7(2). The first thing, therefore, to determine is whether there was any fixed wages from which any loss or deduction has been incurred by the employee. Wages is defined in Section 2(vi) of the Act as meaning, “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, and includes ….” It must not be forgotten that the claim in the present case does not relate to ordinary wages of the employee but for ‘overtime wages' as it is explicitly mentioned in the application under Section 15 and that claim is made on the basis that the employees were asked to work for six hours, more than what they were liable to work in their employment. As I have said at the very beginning, the Factories Act statutorily deals with a claim for ‘overtime wages’ and the conditions of that statutory provision under Section 59(1) are not satisfied in this case.

5. The only other way in which the employees concerned could claim overtime wages was by establishing it under the terms of contract of employment. They were entitled to get overtime wages if they had to work in excess of fortytwo hours per week as they had been used to render previous to their transfer in the Accounts Section. Before the Authority, however, it does not appear that the petitioners made the allegation that there was any formal contract of employment between them and the company. They neither produced any copy of such contract nor did they call for any such contract from the company. The only argument which was adduced before the Authority was that the opposite party, namely, the company, had failed to produce the attendance register and therefore the cases of the applicants must be presumed to have been established but the attendance register could only testify as to what was the volume of attendance of the employees at the different periods. It could not possibly prove that there was a contract between the parties that if they rendered work in excess of a particular quantum of working hours they would be entitled to claim ‘overtime wages’.

6. The sole basis upon which the Authority bases his conclusion is that because the employees had worked for six hours more than what they used to render prior to their transfer from another section of the same company they must, without more, have a legal right to claim overtime wages. As a proposition of law this has no justification nor could Mr. Das Gupta adduce any legal support for the proposition advanced by the Authority that Section 51 of the Factories Act “does not give the employer a right to alter the service conditions of the employee to the latter's disadvantage.”

7. The real trouble is that what was the service condition of these employees has not been proved in this case. The Authority thought that factum valet was enough proof. That doctrine, however cannot be applied in the sphere of industrial establishment where the conditions of employment are either contractual or statutory in so far as a contract has been supplemented by legislation by the Welfare State.

8. Mr. Chakrabarty, on behalf of the petitioner company, is also justified in saying that what the Authority has done is not to say that the petitioners have a legal right to overtime wages under their contract of employment or under the Statute but that because they used to work previously at the rate of fortytwo hours per week and because they have since the transfer been working at the rate of fortyeight hours per week “their remuneration must increase proportionately.” This finding, in fact, is nothing but to make a contract between the parties by the Statutory Authority, which jurisdiction he could not claim under the Statute. He has no authority to say what the wages should be, as observed in D'Costa's case, AIR 1955 SC 412. He has the jurisdiction to determine what the Rules were and in this case the Payment of Wages Authority could not say that the applicants before him had a legal right to claim overtime wages under the Rules and anything which he has said beyond the first half of his order is patently without jurisdiction and vitiated by error apparent on the face of the record and, in this view, the application under Article 227 of the Constitution must succeed.

9. The Rule is, therefore, made absolute but I make no order as to costs. The impugned order in P.W.A Cases Nos. 73 and 75 of 1965 dated 25th February, 1967, is, accordingly, set aside.

10. The petitioner company will be entitled to withdraw any amount which might have been deposited in terms of the award.

11. Petition allowed.