Allahabad High Court
Kailash Chandra Tiwari Son Of Late K.D. ... vs The Second Additional District Judge, ... on 14 September, 2007
Author: D.P. Singh
Bench: D.P. Singh
JUDGMENT D.P. Singh, J.
1. (Heard counsel for the petitioner and Sri Govind Saran for the contesting respondent.
2. The petitioner was employed as a clerk in the respondent Railway Establishment and was posted as Head Clerk within the jurisdiction of the Divisional Railway Manager, Allahabad in the Electrical Department when he was transferred on 20.8.1981 to the office of Senior Foreman (Train Lighting) in Allahabad itself. He did not join at the transferred place but made an application for medical leave which was not granted. He remained absent from duty till 8.10.1984 when he was able to get his posting in the Electrical Department on the interference of a Member of Parliament and thus joined on 9.10.1984. He claimed wages for the period of his aforesaid absence which was denied by the Railway Establishment and, thus, he preferred an application under Section 15 (2) of the Payment of Wages Act, 1936 before the Prescribed Authority (here-in-after referred to as the Act). After pleadings were exchanged, the Prescribed Authority repelled the contention of the Railway Establishment that the application under Section 15(2) was not maintainable and granted the alleged deducted/delayed wages to the extent of Rs. 43,302.56 together with Rs. 86,605.12 i.e. twice amount of wages as compensation, Rs. 150/- as cost and Rs. 4800/- as litigation cost of a litigation during the intervening period vide its order dated 21.3.1988.
3. The Railway Establishment preferred an appeal under Section 17 of the Act and the Appellate Authority referred to various paragraphs of Railway Establishment Code and after recording finding that certain leave was outstanding in the account of the petitioner, it thus granted the leave and directed for payment together with twice the amount as compensation. The petitioner aggrieved by the latter part of the judgement reducing the payment to be made to him, has preferred writ petition No. 2686 of 1989 while the Railway Establishment preferred writ petition No. 4602 of 1989 Challenging both the orders.
4. Learned Counsel for the Railways has contended that the application itself was not maintainable under Section 15 (2) as deductions were made for absence of the petitioner and was referable to Section 7 (2) (b) read with Section 9 of the Act. He has further urged that the Appellate Authority could not have usurped managerial functions of the authorities of the Railway. Establishment to adjust the leave standing in the account of the petitioner.
Section 15 (2) of the Act provides as under:
(2) 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,...may apply to such authority for a direction under sub Section 3.
5. Under sub Section 3 the authority may direct refund of the wages so deducted or so delayed together with payment of compensation not more than ten times the deductions, Thus, the sine qua non for making an application under Section 15 (2), it is necessary to allege and prove that deduction of wages or delay in payment thereof is against the provisions of the Act. Section 7 of the Act directs that wages to an employed person shall be paid without any deductions except those authorized under the Act. Clause 2-(b) of Section 7 of the Act authorizes deductions for absence from duty. Section 9 (2) of the Act stipulates deductions of wages not more than the proportion of absence from work. The Apex Court in the case of Dilbag Rai Jerry v. Union of India has held that deductions from wages is the same thing as deductions of wages. In this background, the application of the employee has to be considered.
6. In the application made under Section 15 (2) the employee has alleged that while working in the Electrical Branch he was transferred by a competent authority to the office of Senior Foreman (Train Lighting) and as it was a hazardous job and he was not well, he made a representation dated 5.9.1981 In pursuance of which, the transfer was cancelled in May, 1984 but the same Bias not informed to him and when he was declared fit, he joined the etablishment on 9.10.1984. On these averments he has claimed wages from 20.8.1981 to 8.10.1994. However, there is neither any averment that he worked between those dates nor there is any averment that any leave was sanctioned to him. In the reply filed by the Establishment, a specific allegation was made that he did not join at his transferred place and stayed away from work with effect from 20.8.1981 and only joined on 9.10.1984 and that no leave was ever sanctioned by the Establishment. The question is whether on these allegations the application was maintainable?
7. It is neither the case of the employee nor there is any finding by any of the two authorities that any leave was granted to him for the aforesaid period. The Prescribed Authority and so also the Appellate Authority have held that an enquiry for unauthorized absence was started against the employee where the charge of unauthorized absence was not found proved and, therefore, it has proceeded on assumption that the absence of the employee has been regularized. The Appellate Authority, after examining as to the amount of leave due to the employee, has usurped the power of the Management and has awarded the wages for the period for which leave was due in the account of the employee. In the counter affidavit filed by the employee in the connected petition filed by the Railways, a copy of the alleged enquiry is annexed as Annexure-1. Its perusal shows that an enquiry was initiated in pursuance of an order dated 9.8.1982 and the charges shown in the preamble are that though the employee had applied for 15 days leave with effect from 20.8.1981 on the ground of his illness, he was found roaming in the office. It is evident that the charge was apparently for making false applications which was found to be not proved on the ground that the entire record was missing. A note was put up and the Disciplinary Authority informed the employee through letter dated 15.4.1985 (Annexure-III to the said Counter Affidavit) that as the records were missing, the charge was dropped. Therefore, it cannot be said that there was an order regularizing or condoning the absence of the employee. The authority under the relevant service rules would be empowered to pass order either treat the absence as leave with or without pay on the principles of no work, no pay. But neither the Prescribed Authority or its appellate authority under the Act cannot usurp the power of the management. Unless there was an order regularizing or condoning the absence of the employee, the deduction was fully covered by the provisions of the Act and therefore the application under Section 15(2) of the Act was not maintainable.
8. For the reasons above, the writ petition No. 2686 of 1989 is hereby dismissed while the writ petition No. 4602 of 1989 is allowed and both the orders of the authority below dated 21.3.1988 and 22.11.1988 are hereby quashed. In the circumstances of the case, no order as to cost.