Ranawat, C.J:— This is an application under Art. 226 of the Constitution of India by the Divisional Personnel Officer, Western Railway, Ajmer challenging the order of the Authority under the Payment of Wages Act (No. IV of 1936) at Ajmer dated the 30th of June, 1959 by which a direction was issued under sub-sec. 3 of sec. 15 of the Payment of Wages Act to the Western Railway and its officers to refund to the opposite party Brijkishore Khanna, son of Ramkishore Khanna an amount of Rs. 246/7/- held to have been illegally deducted and a further injunction was issued to refrain from making deductions from his salary in future on that account after the 1st of December, 1955.

2. The facts of the case are not in dispute. They may briefly be put as under. Brijkishore who is the opposite party in this case joined the service of the B.B & C.I Railway on the 29th of March, 1945 and he was put in the grade of Rs. 50 to 80. The B.B & C.I Railway was later on styled as Western Railway and the services of Brijkishore Khanna continued under the Western Railway. With effect from the 1st of January, 1947 the Railway revised the scales of its employees and Brijkishore was fixed in the new scale of Rs. 55/130 at Rs. 55/-. He officiated before the 1st of January, 1947 from the 8th of October, 1946 to the 6th of November, 1946 in the fixed grade of Rs. 140/- per month. After the 1st of January, 1947 he also officiated in the higher grade for short intervals on four occasions and from the 18th of August, 1953, he continuously officiated in the higher grade. He was confirmed in the higher grade thereafter on the 6th of November, 1960. During these periods when he officiated in higher grade, he was paid a salary of Rs. 136/- per month in the grade of Rs. 80-160. The Railway Board issued a circular letter on the 10th of December, 1949 to all Government Railways which runs as under—

“Officiating pay-when put to officiate after fixation of pay in prescribed scales. The Railway Board have had under consideration the question of regulation of officiating pay in prescribed scales of a Railway servant who officiated in a post, before the date from which he elected the prescribed scales, was not officiat in that post on the relevant date but was again appointed to officiate in that post after the relevant date. They desire to make it clear that in such cases para 2017-R. II, including Audit Instruction No. 4 will apply.

2. These orders do not apply to officers appointed to officiate in the senior scale as the fixation of officiating pay in their case is done according to their year of service and not under 2017-R. II.”

Thereafter the General Secretary, Indian Railway Conference Association New Delhi made a reference to the Railway Board by his letter dated 6/7.5.1950 which is document No. 4(E) at page 26 of the Paper-book and which runs as under:—

“Officiating pay whom put to officiate after fixation of pay in prescribed scales.

A doubt has arisen regarding the applicability of the provisions of Railway Board's letter No. 448 CPC/140, dated 10th December, 1949, to certain category of staff of this office. The matter was discussed with the Divisional Accounts Officer, E.P Railway, who suggested that a reference should be made to the Railway Board to clarify the points at issue.

2. The following prescribed scales were sanctioned by the Railway Board for this office for the categories of staff mentioned below:—

Designation No. of auctioned posts Existing scale on 1.1.47 Rs. Prescribed scale Rs. Reference 1. Clerk 13 104.6.140 80-160 Rly. Board's letter No. E47 CPC/139 of 28.2.48 2. Clerk 33 65.5.100/65.5.90 80-160 Rly. Board's letter No. E47 CPC/139 dated 26.7.48 3. Clerk 24 65.5.100/65.5.90 55-130 do 4. Clerk 71 39.3.60/30.3.60 55-130 Rly. Board's letter No. 47 CPC/139 dated 28.2.48

3. There are cases where staff, mentioned in category (2) above (who were fixed up in the prescribed scales on 1.1.47) had officiated prior to 1.1.47 in the existing scale Rs. 104.6.140 and also officiated in the same grade after 1.1.47 The latter officiating was, of course, ineffective on account of fixation in the prescribed scale Rs. 80-160 from 1-1-47. Will the Rly. Board please clarify whether, under the provisions of Rly. Board's letter No. E48 CPC/104 dated 10.12.49, such staff are entitled to any benefit in the fixation of pay for having previously officiated in the grade Rs. 304.6.140

4. There are also cases in which certain staff of category (3) mentioned above in the prescribed Scale were promoted to category (2) in an officiating capacity. Prior to 1.1.47 such staff had also officiating in the existing scale Rs. 104.6.140 The question has arisen whether such staff are entitled to any benefit in the fixation of pay in the grade Rs. 80-160 against category, (2) mentioned above, by the virtue of their having officiated previously in the existing scale Rs. 104.6.140

5. Will the Railway Board please issue instructions to clarify the points mentioned above.”

The Railway Board in reply to the letter of the General Secretary, Indian Railways Conference Association, issued a circular letter which is document No. 4(F) at page 29 of the Paper-book and runs as follows:—

Sub:—Officiating pay when put to officiate after fixation of pay in the prescribed scales.

Ref:—Your letter No. EG 1504/1/212 dated 6/7.5.50.

Para 3. The Railway Board have decided that in cases where two or more existing scales have been merged into a single, the benefit of the orders contained in their letter No. E48 CPC/140 dated 10.12.1949 should be permissible only with reference to the lowest existing scale. As the pay of the staff has already been fixed in the prescribed scale of Rs. 80-160 with reference to their pay in the existing scale of Rs. 65.5.100/65.5.90 no further benefit for previously officiating in the next existing higher scale of Rs. 104.4.140 is admissible.

Para 4. The same principle applies in these cases as well.”

After the receipt of the circular letter document No. 4(F), the General Manager of the Western railway ordered fixation of Brijkishore Khanna's salary in his grade Rs. 80-160 at Rs. 110/- and he ordered deductions to be made from his salary at the rate of Rs. 15/- per month against the excess payment already made to him on account of the difference between the pay that was fixed at Rs. 110/- and the pay that had been received by him at the rate of Rs. 136/- per month. The opposite party Brijkishore Khanna being dissatisfied with the said order of the General Manager of the Western Railway filed an application before the Authority under the Payment of Wages Act under sec. 15 and he claimed that the order of his fixation at Rs. 110/- was not proper and that the order of deductions at Rs. 15/- per month from his salary was illegal. He claimed refund of the sum already collected from him by the Railway and also that the Railway be restrained from collecting further deductions from his pay. The case of the Railway was that the petitioner was not entitled to be fixed at Rs. 136/- per month and he was only entitled to receive a salary of Rs. 110/- in his new grade Rs. 80-160 and reliance was placed on the letter issued by the Railway Board document No. 4(F) read with the previous letter, document No. 4(b) read with rule 2017 of Indian Railways Establishment Code, Volume II. The Authority under the Payment of Wages Act by its order dated the 30th of June, 1959 held that it had authority to adjudicate in this case and also that illegal deductions were made by the Railway from the salary of Brijkishore Khanna and granted him relief as mentioned above. On the second issue which related to the nature of the deductions made by the Railway, whether they were illegal, the observations of the Authority are as follows:—

“The Railway Board's instructions as laid down in Ex. O.P 2 and Ex. O.P 3 are to be adhered to if they are applicable in the case, but a perusal of the letter No. EG1504/1/212, dated 6/7.5.50 from the General Secretary Indian Railway Conference Association New Delhi to the Secretary, Railway Board, New Delhi, reveals that these letters have a reference only to cases where staff mentioned in category (2) and (3) are concerned. It is not applicable to staff mentioned in category (I) to which the applicant belongs. As such the only rule to ascertain the wages of the applicant is the F.R 22 Audit Instructions (4) para second.”

3. The learned counsel of Brijkishore Khanna has conceded that the logic of the observations referred to above of the Authority under the Payment of Wages Act is not sound and the learned counsel is right for the reason that the observations of the Authority in this behalf are misconceived on their very face. The letter of the Authority Secretary, Indian Railway Conference Association has been reproduced above and certain categories of the staff have been mentioned in it. The two questions that were referred by Association have also been given in it and cases were referred both relating to category (1) and (2) and also to category No. 3 and the Authority was in obvious error in thinking that the reply of the Railway Board did not cover the cases of persons falling under category No. 1 referred to in the said letter. The learned counsel has tried to justify the order of the Authority under the Payment of Wages Act on different considerations.

4. The case put forth on behalf of the petitioner is that even though Brijkishore Khanna officiated in higher scale and was paid a salary of Rs. 140/- he was not entitled on that account to be fixed at Rs. 136 in the new scale of Rs. 80-160 for the reason that in accordance with the letter of the Railway Board (Document 4(F)) he could be fixed on the pay which was admissible to him under the lower scale out of the two that were merged in the higher scale of 80-160. It is also urged that under R. 2017 Vol. 11 Brijkishore Khanna, as he was not officiating, on a higher scale on the 1.1.1947, was entitled not to be fixed at a higher position in the new scale, but for the reason of the letter of the Railway Board (Document No. 4(b)). He was allowed a salary of Rs. 136/- on the basis of his having officiated in the higher scale on previous occasions and having been paid a salary of Rs. 140/-. It is contended that this position survived before the Railway Board issued the second letter (Document No. 4(F)) and thereafter Brijkishore Khanna was entitled to claim the fixation of his salary at Rs. 100/- only and as he had earned further increments on the basis of his length of service, he was fixed at Rs. 110/- from 1.7.1955 The learned counsel for the petitioner Railway has also urged that the Authority under the Payment of Wages Act had no jurisdiction to order refund of the deductions made from the salary of Brijkishore Khanna for the reason that this is not a case of deductions which fall within the jurisdiction of the said Authority, but it is a case of fixation of the salary of Brijkishore Khanna in the grade to which he was promoted under orders of the Railway.

5. Mr. D.P Gupta for Brijkishore Khanna has tried to justify the order of the Authority under the Payment of Wages Act on the following grounds—

(1) That this is not a case of fixation of pay, but the pay had already been fixed by document No. 4 at page 18 of the Paper-book and the order by which deductions were made from the salary of Brijkishore Khanna at the rate of Rs. 15/- per month was subject to the jurisdiction of the Authority under the Payment of Wages Act. He has placed reliance on the decision of the Supreme Court in Shri Ambica Mills Co., Ltd. v. Shri S.B Bhatt (1).

(2) Brijkishore Khanna had actually drawn pay on previous occasions when he officiated in higher scales at the rate of Rs. 136/- after the 1st of January, 1947 and on this account, he was entitled to the fixation of his pay at Rs. 136/- per month in accordance with rule 2017 read with Audit instruction para 4,

(3) The letter of the Railway Board (Document No. 4(F)) could not have affected the case of the petitioner so as to have retrospective operation.

(4) The letter of the Rly. Board (Document No. 4(F) should be taken to apply to cases in which an officer did not officiate on the 1st of January, 1947, but had officiated after that date and before fixation of salary in the prescribed scales and the said letter should be distinguished from the first letter document No. 4(B) which applied to cases of officers who did not officiate on the 1st of January, 1947 but had officiated after that date and after their salaries had been fixed in the prescribed scales.

6. We shall first deal with the question whether the Authority under the Payment of Wages Act had jurisdiction to deal with this case. The objection of the Railway is that this is a case of fixation of the pay of Brijkishore Khanna in the higher scale to which he was promoted and in fixing his salary in that higher scale he was at first fixed at Rs. 136 per month, for the second letter of the Railway Board (Document No. 4(F)) was not there, and after that letter was received, it was felt that the fixation of the salary in the higher scale was not proper and the fixation was therefore revised and a salary of Rs. 110 instead of Rs. 136 was fixed and consequently, the excess amount paid to him was ordered to be recovered by easy instalments of Rs. 15/- per month. The contention of Mr. Gupta for Brijkishore Khanna is that the matter of the revision of the fixation of pay is incidental to the proceedings relating to deduction of salary and the Authority under the Payment of Wages Act therefore had jurisdiction to deal with this question.

7. Sec. 15 of the Payment of Wages Act of 1936 authorises the State Govt. to appoint by notification in the official Gazette a Commissioner for Workmen's Compensation or other officer with qualifications mentioned in the section or as stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising put of deductions from the wages, or delay in payment of the wages of persons employed or paid in that area. The term “wages” has been defined by sec. 2(vi) as under—

“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—

(a) … …….

(b) …………

(c) … … … …

(d) … … …

(e) … … …

but does not include—

(1) ……….

(2) ……….

(3) ……….

(4) ……….

(5) ………

(6) ……….

The question that has arisen for determination is whether a question regarding fixation of salary in accordance with the rules that were applicable to the case of Brij Kishore Khanna would fall within the scope of sec. 15. Obviously a question of fixation pay cannot be treated as tantamount to deduction of the salary and it could also not be regarded as incidental to the proceeding under s. 15 of the Payment of Wages Act. Fixation of pay in accordance with the rules is in fact determining the terms of employment of a person. Once pay is so determined, further deductions or delay in its payment would bring the case under the purview of sec. 15 of the Payment of Wages Act. By document No. 4 the salary of Brijkishore Khanna was determined at Rs. 136 per month on the basis of his having previously officiated in higher scale and having been paid at the rate of Rs. 140 per month fixed. The petitioner was admittedly employed in the B.B & C.I Railway service in the scale of Rs. 40-80 and he was fixed in the prescribed scale of Rs. 55-130 when the scales of the salaries of the employees of the Railway were generally revised with effect from the 1st of January, 1947, his salary was fixed in the prescribed scale at Rs. 55/- and there is no dispute about this fixation of the salary. After he had been so fixed in the prescribed scale of Rs. 55-130 he was promoted to the next higher scale of Rs. 80-160 and his salary in the higher scale was at first fixed at Rs. 136/-, but later on it was again revised to Rs. 100/- per month with effect from the 18th of March, 1953. The revision, it may be noted, was felt necessary on account of the circular letter issued by the Railway Board which is document No. 4(F) on the record. At first the salary was fixed on the basis of the officiating salary drawn by Brijkishore Khanna in the higher scale on previous occasions. Later on, the Railway Board qualified that where two scales were merged into one, one, benefit of officiation in the matter of fixation of pay should be given only with reference to the lower scale of the two. Brijkishore had officiated on previous occasions in the scale Rs. 140/- fixed, but as the two scales of Rs. 100 fixed and Rs. 140 fixed were both merged into the new prescribed scale of Rs. 80-160, he was considered entitled to a salary of Rs. 100 only on that basis. It is obvious to us that this question is purely a question relating to the fixation of pay of Shri Brijkishore Khanna in the scale of Rs. 80-160 on his promotion from the lower scale to the higher one, and even though at first his salary was fixed at Rs. 136 it was again revised and fixed at Rs. 110 after the rules were so interpreted by the Railway Board subsequently. The question of fixation of pay pure and simple do not fall within the purview of section 15 of the Payment of Wages Act and we think the learned Authority under the Payment of Wages Act had no jurisdiction to deal with this question and to issue directions when the arrears of excess payment were being collected by the railway authorities and no deductions whatsoever were made in the wages. The judgment in Shri Ambica Mills Co., Ltd.(1) cannot help the contention of Mr. Gupta and virtually the observations in that case are against him.

8. On merits also the reasons on which the Authority under the Payment of Wages Act determined the question, as has already been discussed above, are not sound and the learned counsel of Brijkishore Khanna could not support them. He has referred to other grounds which we have mentioned above. We need not enter into the discussion of the reasons referred to by Mr. Gupta as the petition succeeds on the first ground alone. Mr. Gupta also does not want a decision on those grounds at this stage. The petition is allowed and the order of the Authority under the Payment of Wages Act dated 30th June, 1959 is set aside. The respondent Brijkishore Khanna shall pay costs to the petitioner Railways.