N. Venkatavaradan vs Sembiam Saw Mills, Sembiam, Madras

Krishnaswami Nayudu, J.—This revision is against the order of the Chief Judge, Court of Small Causes, Madras, dismissing an appeal by

the petitioner u/s 17(1)(b) of the Payment of Wages Act, 4 of 1936.

The petitioner was employed as a stenographer with the respondents, the Semhiam Saw Mills Ltd., on a salary of Rs. 85 per month and a

dearness allowance of Rs. 35. Early in December 1950, he applied for leave for a week, which was sanctioned. But before the expiry of the week

he wrote to the respondents that no extended his leave by a further period of one week. The respondents informed him by their letter dated 11-

12-1950 that he should join duty on or before 13-12-1950.

The petitioner states that he received that letter only on 17-12-1950, and in reply he wrote a letter stating that he was extending his leave by

another fortnight from the 18th December, On 3-1-1951, after the reopening of the Mills in the new year, the petitioner presented himself for work

and on that day the respondents paid his salary till 31-12-1950, and intimated him that he was under suspension pending enquiry into his conduct

for having continued to absent himself without permission.

There was an enquiry and he was finally discharged from service by an order dated 13-2-1951 by which his services were terminated as and from

1-1-1951.

The petitioner applied to the Commissioner under the Payment of Wages Act and claimed a sum of Rs. 160 as salary and dearness allowance for

January 1951, Rs. 80 as salary for 13 days in February 1951, Rs. 63 as salary for the privilege leave period of 11 days and Rs. 960 for damages.

He thus inflated his claim to a sum of Rs. 1263. He claimed that the wages were delayed by his employers and prayed for an order from the

Commissioner for payment of the amount claimed.

The claim for salary for January and for the 13 days in February was dismissed on the ground that the petitioner did not work during that-period.

So also the claim for damages. But as regards the wages for the period of 11 days during which he claimed to be entitled to privilege leave, an

order for payment of Rs. 36-8-3 was made. The respondents have agreed to pay this sum.

As against this order of the Commissioner, the petitioner appealed and the learned Chief Judge of the Court of Small Causes held that the

Commissioner was right in holding that he had no jurisdiction to entertain the claim for salary and dearness allowance for the period for which the

petitioner was not admittedly working under the respondents, following the decision of the Bombay High Court in -- A.R. Sarin Vs. B.C. Patil and

Another, , and dismissed the appeal. Hence this revision.

The right of the petitioner to recover wages arises u/s 15 of the Payment of Wages Act, and Section 15(1) of the Act provides that the

Provincial Government may appoint any Commissioner for Workmen''s compensation as the authority 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 in that area.

It is sought to be argued that the failure to pay salary for the period from the 1st January, to the 13th February 1951 amounts to delaying payment

of the wages and as such it is urged that the Commissioner has jurisdiction to enquire into the claim. Reliance is also placed on the definition of

wages in the Act. ""Wages"" is defined as meaning

all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied,

were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed,

or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional

remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his

employment.....

The argument is that the definition of ""wages"" would bring within it not only wages earned during the period the employee has actually worked, but

that even if he had not worked for the period and was otherwise entitled to the wages, it would still be wages, which the Commissioner would be

competent to enquire as to whether it was deducted or delayed u/s 15. Emphasis is laid on the word ""otherwise"" in the definition.

But it has to be noted that the payment of the wages, whether conditional upon the regular attendance or otherwise, must form part of the terms of

the contract. It is not suggested that the terms of the employment of the present petitioner were such that irrespective of his irregular attendance, he

would he entitled to wages for any particular period. Obviously, wages will be paid for work done and regular attendance as the definition of the

word indicates.

It cannot be said therefore that the amount of salary and dearness allowance claimed for the period from 1-1-1951 to 13-2-1951 during which

period he did not work, could be considered to be ""wages"" within the definition of the term under the Act, and as such the Commissioner was not

competent to enquire into the present claim as it was neither deduction nor delayed payment.

The claim is in effect damages for wrongful termination of services, and the proper course, if any, for him, is to institute a suit for damages and not

to claim wages under the Act and the forum is not the Commissioner but a civil Court. The position is made clear by the Bench of the Bombay

High Court in the case relied"" upon by the lower court, where it is held that the jurisdiction of the authority under the Payment of Wages Act is

limited to all claims arising out of deductions of wages and delay in payment of wages only and it is competent to the authority tp construe the terms

of the contract to determine wages payable even on termination of the employment, to determine the faction of employment, and the liability of the

master under the contract with regard to wages.

It is clear that ""wages"" is dependent upon the terms of the contract and not otherwise, and if the terms of the contract do not show that the

petitioner is entitled to continue in service irrespective of his not attending or working, then it may not be open to him to claim the sum as wages.

Further, as pointed out in the Bench judgment, the jurisdiction which the authority possesses does not extend to determine the question whether the

contract has been terminated as alleged by the employer or the contract is still subsisting as alleged by the servant The short question that requires

to be considered in the present claim is as to whether there has been proper termination of the services according to the respondents, or whether

the termination is wrongful according to the petitioner, which is a matter outside the scope of the authority appointed under the Act.

The civil revision petition is dismissed. No costs.