United Provinces Commercial Corporation vs Mishra (K.N.)

Untwalia, J.—This is an application in revision filed by the employer against the employee. It is directed against the order dated 15 March 1961 passed by the presiding officer of the industrial tribunal, Bihar, holding that an appeal u/s 28(7) of the Bihar Shops and Establishments Act (Bihar Act VIII of 1954) (hereinafter to be referred to as the ("Bihar Act"), is competent.

A preliminary objection has been raised on behalf of the opposite party that the industrial tribunal is not a Court subordinate to this Court within the meaning of Section 115 of the CPC and, therefore, this Court has no jurisdiction to interfere with the order of the tribunal. Without deciding this point, I am of the opinion that if the order of and the appeal proceedings pending before the industrial tribunal are erroneous and without jurisdiction, this Court pan quash the appeal proceedings either in exercise of the revisional jurisdiction of this Court u/s 115 of the CPC if the tribunal is a Court, or under Article 227 of the Constitution of India if it is not a Court as there cannot be any doubt that the industrial tribunal is a tribunal subject to the superintendence of this Court under Article 227 of the Constitution.

The opposite party filed an application before the authority u/s 28(1) of the Bihar Act from certain directions to the petitioner. The authority, after hearing the parties, held that the petition was not maintainable and hence it was rejected, and no direction was given. As against this order on that authority the opposite party filed B.S.E. Appeal No. 32 of 1960 before the industrial tribunal u/s 28(1) of the Bihar Act.

In order to appreciate the point for decision it is necessary to refer to and to quote some of the provisions of Section 28. Sub-section (1) provides that an employee may make an (application to the authority, where contrary to the provisions of the Act any deduction has been made from the wages of the employee, or any sum is otherwise due from the employer. I would better quote the whole of Sub-section (2):

When an application under Sub-section (1) is entertained, the prescribed authority shall hear the application in the prescribed manner and may, without prejudice to any other penalty to which an employer is liable under this Act, direct the refund of is the amount deducted or payment of the delayed wages or any other sum, to the employee, together with the payment of a consideration not exceeding tea times the f amount deducted in the first case and not I exceeding ten rupees in other cases:

Provided that no direction for the payment of compensation shall be made in the case of delayed wages if the authority besatisfied that the delay was due to-

(a) a bona fide error or bona fide dispute as to the amount payable to the employed parson, or

(b) the occurrence of an emergency, or the existence of exceptional circumstances, such that the person responsible for the payment of the wages was unable, though exercising reasonable diligence, to make prompt payment, or

(c) the failure of the employed person to apply for or accept payment.

Sub-section (3) says:

If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, the authority may direct that a penalty not exceeding 25 rupees be paid to the employer or person responsible for the payment of wages by the person presenting the application.

The provision of appeal in Sub-section (1) runs thus:

An appeal against a direction made under Sub-section (2) or Sub-section (3) may be preferred in such manner, within such time and to such authority as may be prescribed and such authority shall consider and dispose of such appeals in the prescribed manner.

Rules have been framed under the Bihar Act known as the Bihar Shops and Establishments Rules, 1955. Rule 22 provides the procedure for dealing with an application under Sub-section (1) of Section 28 and Clause (1) of Sub-Rule (6) empowers the authority to refuse to entertain an application presented under Sub-section (1) on certain grounds; but, if the application is entertained and notice is given to the employer, the method of disposing of such application has been indicated in Sub-rule (8). Rule 24, prescribing the procedure to be followed in dealing with an appeal under Sub-section (7) of Section 28, reads thus:

(1) An appeal under Sub-section (7) of Section 28 shall be preferred, within thirty days of the date on which the direction was made, before the industrial tribunal, Bihar, or an officer authorized in this behalf by a notification in the official gazette.

Provided that the appeals pending before the Labour Commissioner or District Magistrate before 26 March 1953 shall be heard and disposed of by him.

Provided also that the appeals pending before a labour court before coming into force of this rule shall be heard and disposed of by him.

(2) An appeal shall be preferred in the form of a memorandum in duplicate, one copy of which shall bear the requisite court-fee stamps as prescribed in Rule 25 setting forth concisely the grounds of appeal and accompanied by a certified copy of the direction against which the appeal la preferred.

(3) When an appeal is lodged, the appellate authority shall cause a notice to be issued to the respondent in form XVIII through registered post with acknowledgement due.

(4) The appellate authority, after hearing the parties and making such further enquiry, if any, as it may deem necessary, may confirm, vary or set aside the direction from which the appeal is preferred, and shall record an order accordingly with reasons there for. The order so passed shall be communicated to the parties without delay.

It is, therefore, manifest on reading Sub-section (7) of Section 28 and Rule 24 that an appeal Can lie to the appellate authority only if a direction has been made under Sub-section (2) or Sub-section (3) of Section 28. If no direction has been made, that is to say, if the application of the employees has been rejected either without entertaining it or even after entertaining it and hearing the employer on any grounds whatsoever no appeal baa been provided for in the Act. in support of this view, reference baa to be made to three Bench decisions of the three differents High Courts, in Rajendranath Karmakar and Others Vs. Manager, French Motor Car Co., Ltd., ; Sitaram Ramchandran v. M.N. Nagrashna 1954 2 L.L.J. 703: and Mohammad Matin Kidwai v. District Executive Engineer, N.E. Ry., Izatnagar 1955 1 L.L.J. 669. All these cases are concerned with the interpretation of Section 17 of the Payment of Wages Act (Central Act IV of 1936), 1936 (hereinafter referred to as the Central Act), as it stood before the amendment Act LXVIII of 1957. The said Section 17 of the Central Act as it stood before the amendment read thus:

(1) An appeal against a direction made under Sub-section (3) or Sub-section (4) of Section 15 may be preferred, within thirty days of the date on which the direction was made, in a Presidency town before the Court of Small Causes and elsewhere before the District Court-

(a) by the employer or other person responsible for the payment of wages u/s 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees, or

(b) by an employed person, if the total amount of wages claimed to have been withheld from him or from the unpaid group to which he belonged exceeds fifty rupees, or

(c) by any person directed to pay a penalty under Sub-section (4) of Section 15.

(2) Save as provided in Sub-section (1), any direction made under Sub-section (3) or Sub-section (4) of Section 15 shall be final.

While interpreting the section it was pointed out by the Calcutta High Court in the case referred to above that

We find nothing either in the Act itself or in the rules or the form to which our attention has been drawn which would go to indicate that the word ''appeal'' which occurs in Section 17 of the Act can be construed in each a broad sense as to embrace within its scope all kinds of orders including those rejecting an application filed by an employee before the authority.

After referring as to what kind of directions could be given under Sub-section (3) or (4) (which are respectively similar to Sub-sections (2) and (3) of Section 28 of the Bihar Act), it has further been observed.

Now these are the directions against which an appeal may He under the provisions of Section 17. An appeal cannot be preferred under the Act against other kinds of orders unless they come precisely within the scope of the directions mentioned above.

In the Bombay case, their lordships were concerned with a decision under Sub-section (2) holding that the applicants bad failed to show sufficient cause for not filing the application within time, and they held that such an order was not made applicable u/s 17. The point as to whether if an application was rejected after notice to the employer and an appeal could He did not fall to be decided and was not decided. It may, therefore, be Bald that the Bombay decision, although to a certain extent, helps the petitioner, is not on all fours. The Allahabad decision in the case of Mohammad Matin Kidwai v. District Executive Engineer, N.E. Ry., Izatnagar, referred to above 1955 1 L.L.J. 669 is on all fours. Their lordships of the Allahabad High Court, the Bench consisting of Raghubar Dayal and Roy, JJ., held:

We are clearly of opinion and accordingly hold that no appeal lies when an authority under the Payment of Wages Act rejects an application by an employee u/s 15(3) and does not make any order or direction to the employer for making any payment to the employee.

Mr. Chatterjee, appearing for the petitioner, has in all fairness drawn my attention to a small passage occurring in the judgment of Ramaawami, J., in A.C. Arumugham v. Manager, Jawahar Mills, Ltd., Salem Junction 1956 1 L.L.J. 519 at 524, which reads thus:

The limits in regard to preferment of appeal from directions or orders are as follows:

An order rejecting a claim in toto is also appealable for the word ''direction'' in Sub-section (1) must be construed as including a refusal to make a direction.

But he has submitted that the said observation has been made without any discussion and relying upon the decision of the Calcutta High Court in Rajendranath Karmakar and Others Vs. Manager, French Motor Car Co., Ltd., which is a decision to the contrary. I say with great respect that that seems to be so, Mr. M.K. Verma appearing for the opposite party placed great reliance upon the decision of Chagla, C.J. in P.N. Amritlal Varma v. Divisional Traffic Manager, Central Railways 1953 1 L.L.J. 334. In that case a direction had been made by the first authority. Then an appeal had been taken to the learned District Judge, who allowed the appeal holding that the decision pf the authority under the Payment of Wages Act directing the employer to pay certain wages to his employee was incompetent inasmuch as the authority had no jurisdiction to decide the question whether the suspension of the employee was rightful or wrongful and the case was sent back by the High Court to the District Judge who decided ultimately in favour of the employee himself. Then the matter was again taken to the High Court. It is manifest that the question at issue before me neither fell to be decided or was in any manner decided by the learned Chief Justice in the Bombay case.

No other case has been cited before me by Mr. Verma in support of his contention that refusing to give a direction under Sub-section (2) Of Section 28 of the Bihar Act is tantamount to riving a direction and such an order is subject to an appeal under Sub-section (7) of Section 28 find it difficult to differ from the view expressed in the three Bench decisions of the three High Courts referred to above, specially of the Allahabad and the Calcutta High Courts; rather, with great respect I am in agreement with that view. Before part with this case, I may point rat that the Central Legislature because of these decisions thought that it was a lacuna in the Act and amended Section 17 of the Central. lot which section now reads thus:

(1) An appeal against an order dismissing either wholly or in part an application made under Sub-section (2) of Section 15, or against a direction made under Sub-section (3) or Sub-section (4) of that section may be preferred, within thirty days of the date on which the order or direction was made, in Presidency town before the Court of Small Causes and elsewhere before the District Court is-

(a) by the employer or other person responsible for the payment of wages u/s 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees, or

(b) by an employed person or any official of a registered trade union authorized in writing to act on his behalf, if the total amount of wages claimed to have been withheld from the employed person or from the unpaid group to which the employed person belonged exceeds fifty rupees, or;

(c) by any person directed to pay a penalty under Sub-section (4) of Section 16(2) Save as provided in Sub-section (1), any order dismissing either wholly or in part an application made under Sub-section (2) of Section is, or a direction made under Sub-section (3) or Sub-section (4) of that section, shall b final.

I was also inclined to take the view, in view of the fact that the Central Legislature thought it to be a lacuna in the Act inasmuch as, as held by the various High Courts, it did not provide a right of appeal to the employee if the first authority refused to give any direction as asked for by him against the employer, that there is a similar lacuna in the Bihar Act also and I should refer this case to a Division Bench for decision and in the meantime somebody might draw the attention of the Bihar Legislature to remove this lacuna. But Mr. M.K. Verma appearing for the opposite party did not welcome this course and invited me to decide this point sitting singly. He submitted that all the Bench decisions relied upon by Mr. Chatterjee were in his favour, or in any event, he would be able to draw a distinction between the wordings of the Central Act and the Bihar Act and the rules framed thereunder. Having heard him, I failed to notice any point of distinction between the two Acts and the rules as also I could not appreciate as to how the three Bench decisions of the three High Courts or any of them were or was in his favour.

In the result, I allow this application, sat aside the order of the industrial tribunal, Bihar, and hold that the appeal filed by the opposite party before it is incompetent. I would make no order as to costs.