Karnataka High Court
Karnataka Central Cooperative Bank ... vs Karpi on 13 October, 1986
Equivalent citations: ILR1986KAR3794, (1987)ILLJ179KANT
ORDER
1. This is a revision by the Karnataka Central Co-operative Bank Ltd, against the order dated 14th April, 1980 passed by the District Judge, Dharwad, in M.A. No. 55/79 setting aside the order of the Appointment Authority under the Payment of Wages Act and remanding the matter for disposal according to law and on merits.
2. The respondent is an employee under the revision petitioner. Disciplinary action was started against the respondent by the revision petitioner and he was kept under suspension. It ordered payment of one-fourth of basic salary as subsistence allowance to the respondent. The respondent, being aggrieved by the award of one-fourth of basic salary as subsistence allowance, filed an application under Section 15(2) of the Payment of Wages Act, 1936 (hereinafter referred to as 'the Act') before the Authority concerned alleging that he was entitled to the full salary and that payment of one fourth of the basic salary as subsistence allowance was bad and that it amounted to deduction from his wages. The Authority dismissed the petition. The respondent approached the Learned District Judge. The Learned District Judge set aside the order made by the Authority under the Act and remanded the matter to him for disposal according to law and on merits. It is this remand order passed by the Learned District Judge that is questioned by the revision petitioner in this revision.
3. That the respondent is an employee under the revision petitioner is not in dispute at all. That he has been kept under suspension by the revision petitioner, is not in dispute. That he has been given some amount as subsistence allowance during the period of his suspension is not in dispute.
4. Now the question is whether an application under Section 15(2) of the Act is maintainable in such cases.
5. Section 15(2) of the Act reads as :
"Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under sub-section (1), may apply to such authority for a direction under sub-section (3)."
6. In order to attract Section 15(2) of the Act, it must be shown that contrary to the provisions of the Act, a deduction has been made from the wages of an employed person. If it is proved accordingly, then only application under Section 15(2) of the Act would be competent. That the respondent is an employee is not in dispute. Learned Counsel Sri Gururajan placed before me the decision in V. K. Govindaswamy Vs. N. Nanjappa 41 FJR 399. It has been held in the said case as :
"The Authority determining a claim under Section 15 of the Payment of Wages Act, 1936, has jurisdiction to determine whether the person who has made the application is an employee and this jurisdiction is a part of the jurisdiction of determining the incidental matters arising out of the claim made by the person because the relief under Section 15 cannot be granted unless the Authority has jurisdiction to determine this as an incidental question."
7. A read of the said ruling would show that the relationship of employer and employee itself was in dispute in the said case. This Court held that this dispute can be decided by the Authority under the Act. The question as to whether subsistence allowance would amount to a deduction within the meaning of Section 15(2) of the Act, has not been decided in the said case.
8. Section 7 of the Act reads as :
"7. Deductions which may be made from wages - (1) Notwithstanding the provisions of sub-section (2) of Section 47 of the Indian Railways Act, 1890 (9 of 1890), the wages of an employed person shall be paid to him without deductions of any kind except those authorised by or under this Act.
Explanation I : Every payment made by the employed person to the employer or his agent shall, for the purposes of this Act, be deemed to be a deduction from wages.
Explanation II : Any loss of the wages resulting from the imposition, for good and sufficient cause upon a person employed, of any of the following penalties, namely :-
the stoppage of increment at an efficiency bar);
(ii) the reduction to a lower post or time scale or a lower stage in a time scale; or
(iii) Suspension;
shall not be deemed to be a deduction from wages in any case where the rules framed by the employer for the imposition of any such penalty are in conformity with the requirements, if any, which may be specified in this behalf by the State Government by notification in the Official Gazette."
9. Section 7 of the Act makes it absolutely clear that any loss of the wages on account of the suspension, shall not be deemed to be a deduction from wages within the meaning of Section 15(2) of the Act.
10. Learned Counsel Sri Gururajan referred me to the decision in Andhra Pradesh Road Transport Corporation Vs. Payment of Wages Authority 35 FJR 417. The Andhra Pradesh High Court held that the subsistence allowance payable to an employee who has been placed under suspension pending enquiry into alleged acts of misconduct, will fall within the definition of "wages" in the Payment of Wages Act, 1936, notwithstanding that the payment of the allowance is a matter of discretion of the employer under the rules of service and that once payment of subsistence allowance has been given, in the absence of any rule providing for its withdrawal, the payment must be continued and that therefore, the authority under the Payment of Wages Act, 1936, will have jurisdiction to deal with a claim for the payment of subsistence allowance which has been withheld by the employer. It was a case where the subsistence allowance itself was withheld. The said case does not consider the question as to whether any loss of wages on account of the suspension, would amount to a deduction from the wages within the meaning of Sections 7 and 15 of the Act. As already stated above by me, Section 7 of the Act makes it absolutely clear that any loss of the wages resulting from suspension will not amount to a deduction from wages in any case within the meaning of the Act. Sub-sistence allowance is given so that an employee should survive to face the enquiry. It is not on account of any service rendered to the employer that the subsistence allowance is give. Subsistence allowance is given not by way of wages, but only with a view to see that the employee struggles to survive in order to face the enquiry. Therefore, subsistence allowance, even viewed from any angle, will not amount to wages within the meaning of the Act at all.
11. Learned Counsel Sri Gururajan submitted that if, ultimately, the respondent is to be exonerated, what should happen to his wages. If he is exonerated, the law would take its own course. But that is a different matter.
12. Learned Counsel Sri Gururajan submitted that the respondent has continued to be under suspension since the last ten years. It is strange that, with meagre subsistence allowance that is given to him, he is still surviving. It is a matter of regret that the Bank has not completed the enquiry against him. The employer would not be justified in continuing the disciplinary enquiry for such a long period. I would impress upon the revision petitioner to complete the enquiry as early as possible and at least within a period of not exceeding one year from to-day, if not already completed.
13. In the view that I have taken that subsistence allowance does not amount to any loss of wages and does not amount to a deduction from wages within the meaning of the Act, the application of the present nature before the authority concerned is not competent. Learned Counsel Sri Gururajan submitted that this question was not raised either before the Authority or before the learned District Judge. As it is a pure question of law and as it depends upon the interpretation of the provisions of the Act, I do not think that such a point even if raised for the first time in the revision should not be decided as it goes to the root of the jurisdiction of the matter. Therefore, under these circumstances, the revision is allowed. The order of remand passed by the learned District Judge is set aside. The order passed by the Authority dismissing the Petition is restored. No costs.
14. This order will not preclude the respondent from seeking relief, if any, available to him under any other provision of law.