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S.P Awate v. C.P Fernandes
Opinion Summary — Chagla, C.J. (Review Application)
Factual and Procedural Background
The opinion concerns an application for review of this Court's earlier decision on a writ application challenging an order of the Payment of Wages Authority. The earlier decision under review followed the reported judgment in Thillai Natarajan v. Fernandes (1956, 58 Bom. L.R. 821).
Facts relating to the underlying dispute (as set out in the opinion): the petitioner was a ticket collector employed by the railway authorities from January 14, 1948, at a wage with allowances amounting to Rs. 150-8-0. On August 27, 1955, he was served with a charge sheet and suspended. During suspension the railway paid him Rs. 104. The petitioner applied to the Payment of Wages Authority claiming the difference between contractual wages and the wages actually paid. It was not disputed before the Court that the payment made by the railway authorities conformed to the railway rules governing suspension and that those rules formed part of the Railway Code, enacted under the authority of the Governor-General.
The review application alleged an error apparent on the face of the record in the earlier decision, principally that the earlier judgment had overlooked a provision (s. 276 of the Government of India Act) corresponding to art. 313 of the Constitution and that this oversight was a reviewable error.
Legal Issues Presented
- Whether the review applicant demonstrated an "error apparent on the face of the record" sufficient to justify review of the earlier judgment.
- Whether the Payment of Wages Act (a pre‑Government of India Act statute coming into force March 28, 1937) prevails over rules in the Railway Code (rules preserved and framed under the Government of India Act and the Indian Constitution) in determining wages during suspension.
- Whether s. 276 of the Government of India Act corresponds to art. 313 of the Constitution and, if so, whether the omission to refer to s. 276 in the earlier judgment amounted to a manifest error warranting review.
Arguments of the Parties
Applicant / Mr. Singhvi (on behalf of the petitioner)
- Argued that the earlier judgment erred by failing to take account of s. 276 of the Government of India Act, which corresponds to art. 313 of the Constitution; that omission was said to be an error apparent on the face of the record justifying review.
- Contended that the Payment of Wages Act should prevail over the Railway Code rules because the Payment of Wages Act is social legislation; consequently, if that Act prohibits deductions from wages, the railway rules could not lawfully permit such deductions.
Railway authorities / Respondent
- It was not disputed that the payments made by the railway authorities complied with the applicable railway rules concerning suspension and that those rules formed part of the Railway Code enacted under the Governor‑General's authority.
- The position advanced (and accepted by the earlier decision) was that the Railway Code rules regulating conditions of service govern the entitlement to wages during suspension.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Thillai Natarajan v. Fernandes, 1956, 58 Bom. L.R. 821 | The reported judgment in which the contention that the Payment of Wages Act should prevail over railway rules was considered and rejected; it contains the earlier Court's analysis on the relationship between the Payment of Wages Act, the Government of India Act, the Railway Code and later constitutional provisions. | The present review application sought to challenge the decision that followed the Thillai Natarajan judgment. The Court treats the earlier decision as the operative precedent under review and analyzes whether the claimed omission (failure to refer to s. 276 of the Government of India Act) amounted to a reviewable error. |
Court's Reasoning and Analysis
The Court opened by stating the narrow scope of its review jurisdiction: a review is available only for an error that is "apparent on the face of the record" — that is, an error so manifest and clear that no Court would permit it to remain. The Court emphasized that errors that require extended argument or a competing view of law do not qualify as "errors apparent on the face of the record." This limitation framed the approach to Mr. Singhvi's submission.
On the facts, the Court recapitulated that the Payment of Wages Act came into force on March 28, 1937, and the Government of India Act came into force on April 1, 1937. Under the Government of India Act (s. 241) the Governor‑General was empowered to make rules regarding conditions of service for civil servants; sub‑section (4) permitted the Legislature thereafter to regulate conditions of service but, by its language, that legislative power was intended to operate after the Government of India Act came into force, not to displace pre‑existing rules.
The Court explained its earlier conclusion: rules regulating conditions of service (including the Railway Code) were preserved and were intended to have primacy over legislation enacted prior to the Governor‑General's rule‑making power being exercised (i.e., the Government of India Act's scheme gave the Governor‑General's rules prevailing force over earlier legislation on that subject). Turning to the Constitution, the Court observed art. 313 preserved "all the laws in force immediately before the commencement of this Constitution" in so far as they related to public service and were consistent with the Constitution; the Court read this as saving statutory rules (the Railway Code) applicable to railway service.
Mr. Singhvi's complaint before the Court on review was that the earlier judgment had overlooked s. 276 of the Government of India Act, which he said corresponded to art. 313. The Court acknowledged that s. 276 had not been mentioned in the earlier judgment, but upon examination concluded that s. 276, rather than undermining the earlier reasoning, reinforced it. The Court explained that pre‑1935 rules regulating civil services had been framed under s. 36 of the Government of India Act, 1919, by the Secretary of State in Council; the Government of India Act, 1935 preserved those rules and transferred the future rule‑making power to the Governor‑General‑in‑Council, while s. 241(4) of the 1935 Act for the first time granted the Indian Legislature power to modify such rules.
The Court therefore treated the statutory scheme historically: pre‑existing rules (including those embodied in the Railway Code) were preserved under the successive constitutional arrangements and, in the Court's view, were the appropriate source for determining conditions of service such as suspension pay. The Court also noted the general saving provisions (s. 292 of the Government of India Act corresponding to art. 372 of the Constitution) but regarded them as not materially affecting the specific question of service‑regulating rules.
On the contention that the Payment of Wages Act is social legislation and should prevail over special rules for a class (railway servants), the Court conceded that there may be force in that contention and that possibly a higher Court on appeal might adopt that view. However, the Court stressed that the question of whether the earlier decision was wrong on merits was not a proper basis for review: review jurisdiction must be determined by whether an apparent error exists, not by the relative merits of competing legal views. Points which require reconsideration on their merits belong in appeal, not in review.
Accordingly, the Court concluded that the matters Mr. Singhvi sought to press could not be raised in a review application and did not establish an error of the kind that would justify review.
Holding and Implications
APPLICATION DISMISSED.
Direct consequences:
- The application for review of the earlier decision is dismissed; the earlier judgment (following Thillai Natarajan v. Fernandes) remains in effect.
- No order as to costs was made.
Broader implications:
The Court limited its action to disposal of the review application and declined to entertain merits‑based reconsideration of the earlier decision. The opinion does not set out any new legal precedent; it reaffirms the narrow scope of review jurisdiction and the Court's view about the relationship between pre‑existing service rules (the Railway Code), the Government of India Act scheme, and the Constitutional saving provisions. Any substantive challenge to the earlier conclusion on whether the Payment of Wages Act should override service rules would be a matter for appeal rather than for review.
Chagla, C.J:— This is an application for review of a decision of this Court on a writ application directed against the decision of the Payment of Wages Authority, and the decision which is sought to be reviewed followed an earlier decision in Thillai Natarajan v. Fernandes . 1956 58 Bom. L.R 821.. It is hardly necessary to state that the powers of review enjoyed by this Court are very limited powers and we have bad occasions to point out that when a decision is challenged on the ground that there is an error apparent on the face of the record, the error contemplated is an error so manifest, so clear, that no Court would permit such an error to remain on the record. The error is not an error which could be demonstrated by a process of ratiocination, nor would it be correct to say that when two views on a question of law are possible and the Court has taken one view, the fact that the other view is a more acceptable view would render the first view an error apparent on the face of the record. It is with these reservations and limitations that we must approach the point of view put forward before me by Mr. Singhvi.
2. The facts briefly are that the petitioner in this case was a ticket collector employed by the railway authorities on January 14, 1948, on wages which amounted with all the allowances to Rs. 150-8-0, and on August 27, 1955, he was served with a charge sheet and suspended and during the period of suspension he was paid only Rs. 104, and the petitioner thereupon filed an application before the Payment of Wages Authority claiming the difference between his contractual wages and the wages which he was being paid by the railway authorities. It was not disputed before us in that case that the payment made by the railway authorities was according to the rules. The rules dealt with a case of suspension and what a railway servant was entitled to when he was under suspension. Nor was it disputed that these rules formed part of the Railway Code which was enacted under the authority of the Governor-General. What was argued before us was that the Payment of Wages Act should prevail over the rules framed by the railway authorities, and that if the Payment of Wages Act prohibited the deduction of any amount from the wages of an employee, then the railway authorities could not deduct any part of the wages even if the rules in the Railway Code permitted them to do so. This argument was considered and rejected by us and both the argument and the reason for its rejection appear in the reported judgment of Thillai Natarajan v. Fernandes. In rejecting the argument we considered the scheme of the Government of India Act and we pointed out that under s. 241(2) power was conferred upon the Governor-General to make rules with regard to the conditions of service of persons serving His Majesty in a civil capacity in India, and we also took the view that under sub-s. (4) of s. 241 power was given to the Legislature to regulate the conditions of service, but looking to the language of sub-s. (4) that power was intended to be exercised after the Government of India Act came into force and it did not deal with any laws passed by the Legislature prior to the coming into force of the Government of India Act. Having taken that view we pointed out that the Payment of Wages Act came into force on March 28, 1937 and the Government of India Act came into force on April 1, 1937. Therefore, as far as the Government of India Act was concerned, the rules which were to be framed by the Governor-General were to prevail over any legislation prior to the passing of the Government of India Act, even assuming that legislation dealt with the subject of regulation of service of railway employees. Having come to that conclusion, we turned to the Indian Constitution to point out that the provisions of law in the Government of India Act and the Indian Constitution were not parallel and we referred to art. 313 of the Constitution. That article provided:
“Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution.”
3. Then we proceeded to draw attention to the fact that there was no similar provision in the Government of India Act.
4. Now, the main attack made by Mr. Singhvi against the judgment is that in saying that there was no provision in the Government of India Act corresponding to art. 313 of the Constitution we had overlooked an obvious provision in the Government of India Act and in overlooking this provision we were guilty of an error which should not be permitted to remain on the record, and what is pointed out is that there is s. 276 of the Government of India Act which corresponds to art. 313. Turning to s. 276 it provides:
“Until other provision is made under the appropriate provisions of this Part of this Act, any rules made under the Government of India Act relating to the civil services of, or civil posts under, the Crown in India which were in force immediately before the commencement of Part III of this Act, shall, notwithstanding the repeal of that Act, continue in force so fair as consistent with this Act, and shall be deemed to be rules made under the appropriate provisions of this Act.”
5. It is true that we have not referred to s. 276 in the judgment, but when our attention is now drawn to that section, far from undermining the reasoning of that judgment, it goes considerably to fortify it because what s. 276 says is “rules framed regulating the conditions of service which were in force before the Government of India Act 1935 was passed”, and it is not disputed and it cannot be disputed that rules regulating civil services in India including the railway services were regulated by rules framed under s. 36 of the Government of India Act, 1919, and those rules were framed by the Secretary of State in Council. Therefore, the scheme which clearly emerges is that under the old Government of India Act, the Act of 1919, rules with regard to civil services were to be framed by the Secretary of State in Council. A power of delegation under certain circumstances was given, but no power was given to the Indian Legislature to modify those rules. Then came the Government of India Act, 1935. The rules framed by the Secretary of State in Council were preserved, the scheme was altered in the sense that in future the rules were to be framed by the Governor-General-in-Council instead of by the Secretary of State in Council, and the reason for this is historical and constitutional into which we need not go. A further change was brought about in the Government of India Act, and that was that under s. 241(4) for the first time power was given to the Indian Legislature to modify or alter the rules. Therefore, when the Government of India Act was passed, there were rules regulating the conduct of railway servants. These rules were preserved until new rules were framed by the Governor-General-in-Council which now constitute the Railway Code.
6. Now, there is no provision in the Constitution corresponding to s. 276, or, putting it in the other way, there is no provision in the Government of India Act corresponding to art. 313, because art. 313 saves all laws in force before the Constitution which were applicable to any public service, and the question that arises is: What were the laws in force immediately before the commencement of the Constitution which were applicable to any public service. Clearly, the expression “laws” in art. 313 includes statutory rules, and therefore before the Constitution came into force we had a Railway Code, a self-sufficient Code, which was applicable to the railway service which was saved by this provision until rules were altered by the machinery laid down in the Indian Constitution. Mr. Singhvi says that not only these rules were saved, but also the Payment of Wages Act. Nobody disputes that proposition. The Payment of Wages Act was saved both by the Government of India Act and by the Indian Constitution. But we are now dealing with the special subject of services, with regard to the law which regulates the conditions of those services, and both under the Government of India Act and under the Constitution we have rules which regulate those services. The Government of India Act saves those rules which were framed by the Secretary of State in Council and the Constitution saves those rules which were framed by the Governor-General-in-Council. Reference has also been made to the provision of s. 292 which corresponds to art. 372 of the Constitution. That is a general section and a general article which saves all pre-Constitution laws. That does not seem to have much bearing on the question of the rules regulating the conditions of service in the railways. That can only be requisitioned for the purpose of contending that the Payment of Wages Act, both under the Government of India Act and under the Constitution, was continued. As I have just said, nobody disputes that proposition.
7. Mr. Singhvi wanted to argue, and in fairness to him I want to incorporate the argument in this judgment, that after the Constitution the Court must consider the conflict between the Payment of Wages Act and the rules embodied in the Railway Code and the Court should take the view that the Payment of Wages Act constitutes social legislation and that legislation must prevail even over a special legislation dealing with a special class of citizens. There may be force in Mr. Singhvi's argument. It may be that we were wrong in the view that we took that we must determine the wages to which the railway servant was entitled according to the rules in the Railway Code and not according to the provisions of the Payment of Wages Act. But that is a criticism which should be advanced not before this Court on a review application but before a higher Court in appeal. It is always wrong for any Judge to assume infallibility for his judgment and every Judge must be prepared to consider that his judgment is erroneous. This is exactly why higher Courts of appeal exist in a country, and it may be that possibly or rather probably, if the matter had gone to the Supreme Court, that Court would have taken a different view with regard to the law than the one we laid down in the decision just referred to. As I said before, it would be wrong on my part, whatever view I might take as to the merits of Mr. Singhvi's argument, to extend the jurisdiction of this Court on a review application. Questions of jurisdiction must not be determined from the point of view of the merits of the particular case which is being argued before a Court. Whether a Court has or has not jurisdiction does not depend upon how strong or how meritorious the case of a party is, and however meritorious the case of Mr. Singhvi's client may be, this Court is helpless and unable to give him relief because in my opinion the points that Mr. Singhvi wishes to urge are points which cannot be urged on a review application.
8. The result is that the application fails and must be dismissed.
9. No order as to costs.
10. Application dismissed.
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