Bombay High Court
C.S. Lal (Central Railway) vs Shaik Badsha on 9 March, 1954
JUDGMENT Desai, J.
1. This is a petition for a writ, order or direction under Art. 226 of the Constitution directing respondent 2 to hear and determine, on merits, certain applications preferred to him by the petitioners under the Payment of Wages Act, 1936, and which applications were dismissed by him on a preliminary objection that he had no jurisdiction to entertain the same. In the petition the petitioners have also asked for a mandate under Art. 227 of the Constitution, but learned counsel for the petitioners gave up the petition so far as it was based under that article.
2. The petitioners at present are, and in partition days were, low-paid employees in the Parel Workshops of the Central Railway (formerly G.I. P. Railway). Respondent 1 is the person responsible for the payment of wages to the petitioners under S. 3 of the Payment of Wages Act, 1936. Respondent 2 is the authority constituted under the Payment of Wages Act. The petitioners made applications for refund of certain illegal deductions alleged to have been made in their wages by respondent 1. A large number of applications of the same nature were preferred before respondent 2 who disposed of the same by one common judgment. Before respondent 2 an objection by way of demurrer was raised on behalf of the employers. The contention was that respondent 2 had no jurisdiction to entertain any of the applications, and was based on the ground that the claims were not covered by the Payment of Wages Act. Respondent 2 accepted the plea and dismissed the applications on the demurrer. The applications having been so dismissed, it will be only necessary for me to state the petitioners' case very briefly and the facts set out by them in their applications which are not disputable.
3. In their applications the petitioners averred that the petitioners were ordered by the employers, the opposite party, in or about June 1947, to exercise an option whether they desired to serve in the then proposed State of Pakistan or the rest of India. The petitioners were informed by the General Manager of the railway of the railway that such of the employees as were unable to make up their mind finally within the period prescribed should fill in a form provisionally, as a further opportunity would be afforded to them to make a final choice within six months from the date of transfer of power. They were clearly given to understand by the General Manager of the railway that the terms and conditions of service were guaranteed by the representatives of both the future Governments and that a provisional choice, if exercised, would not in any way prejudice the employees' seniority or other conditions of service. The petitioners duly exercised a provisional choice for serving in Pakistan and were thereupon transferred to serve in that country. Within the period of six months prescribed therefor the petitioners exercised their final option to serve permanently in the rest of India. They were re-transferred to India and on arrival in Bombay they reported for duty to the General Manager of the railway who asked them to report to the Chief Mechanical Engineer. The latter officer recorded the fact of the petitioners' re-transfer and their reporting for duty but did not allow them to resume duty at once. The petitioners regularly called on the General Manager and the Chief Mechanical Engineer who did not respond to their request to take them back on duty. They were not called back to duty till after a lapse of several months. The petitioners were not paid any wages for the period between their re-transfer to India and the date when they were actually taken back on duty. They made several petitions to the opposite party, respondent 1, the Chief Mechanical Engineer, he General Manager and the Secretary of the Railway Department at Delhi to accede to their request that they should be paid wages for that period as they were in law employees of the railway but had been kept out from actual duty. The opposite party, however, refused to pay them wages for the said period, with the result that the petitioners preferred a number of applications to respondent 2 under the Payment of Wages Act. The applications having been dismissed on a demurrer respondent 2 was bound to base his decision on the footing of the correctness of the facts set out by the petitioners in their applications. The only question that arose for his determination on the preliminary objection was whether the petitioners were, in point of law, employees of the railway during the period complained of and, as such, entitled to claim benefit under the Payment of Wages Act.
4. It was common ground before respondent 2 that the option given to the employees to serve in Pakistan or the rest of India was inter alia in the following terms :
"G.I.P. RAILWAY WEEKLY GAZETTE EXTRAORDINARY.
Item No. 26 of 21-6-47. Option to employees to serve in Pakistan or the rest of India.
1. With a view to implementing the orders of Government on the partitioning of India, the Railway Board desire that every individual employee of the railway in India should be given the option of serving in the future Pakistan State or in the rest of India. This option should be exercised before 30 June 1947 and recorded in the form of questionnaire printed as annexture A to this notification. The entire G.I.P. Railway system will be included in the rest of India area. Employees who are unable to make up their minds finally within this period should fill in the form provisionally, as a future opportunity will be afforded to them to make a final choice within six months of the date of transfer of power.
2. It should be clearly understood that the existing terms and conditions of service are guaranteed by the representatives of both the future Governments, and that a provisional choice now exercised will not in any way prejudice the employees' seniority or other conditions of service."
5. The questionnaire form referred to in annexure A and used by the petitioners was as follows :
"Answers to all questions asked below should be in a simple affirmative or negative.
All Government servants are assured that their existing terms and conditions of service are guaranteed by the representatives of both the future Governments.
1. Do you elect to serve in Pakistan ?
2. Do you elect to serve in the rest of India ?
3. Is your choice final ?
* 4. Is your choice provisional ?
* Note. - If your choice is provisional you will have an opportunity to consider and indicate your final choice within a period of six months from the date of transfer of power. The provisional choice will not in any way prejudice your seniority or other conditions of service.
Signature."
6. It is common ground that all the petitioners exercised their option to serve in Pakistan but in express terms stated that their choice was not final but was provisional. It may be observed at this stage that the questionnaire itself makes it abundantly clear that the provisional choice was not in any way to prejudice the seniority of the employee or other conditions of service.
7. The nature of the preliminary objection which found favour with respondent 2 was that the claim of the petitioners was not for wages but was for damages for breach of a contract and that the applications were, therefore, not maintainable under the Payment of Wages Act. Respondent 2 observed in his judgment :
"It is true that according to the notification the Central Railway was bound to take back the applicants after they reported for duty. But on a construction of the notification I hold that there is nothing in the notification which creates the relation of employer and employee on the final choice to serve in the rest of India being exercised by the applicants."
8. Emphasis was laid by respondent 2 in his judgment on the view that the applicants could not be deemed to be in actual service of the Central Railway till they were in fact allowed to resume duty, and on the ground that wages are only due where an employee works for his employer or where he is in the employer's service. The principal question, therefore, that respondent 2 had to determine was whether during the period in dispute the applicants were in the service of the railway. This necessarily turned on the conditions of service of the applicants and construction of the notification and questionnaire which I have set out in some detail.
9. The argument pressed before me by Mr. Latifi, learned counsel for the petitioners, in substance was that under a mistaken view of law by adoption of extraneous and irrelevant considerations respondent 2 refused to exercise jurisdiction and that this was, therefore a fit case in which a certiorari should issue. The argument presented with zeal and ability was that the applicants were in pre-partition days employees of the railway and what the notification did was to impose certain additions and covenants in the original contract of employment, and that the contract all along remained a subsisting one. It was said that no doubt it was true that as long as the applicants served in Pakistan they were employees of a foreign railway, but that during that period the contract of employment with the Central Railway remained suspended in view of the fact that the choice given to the applicants had been exercised by them only provisionally. The argument ran that the moment the applicants exercised their final choice or option to serve permanently in the rest of India they became employees of the Central Railway. The argument was stressed in the form of an inter-rogation, "Why should we be treated as not in the service of the Central Railway when we had exercised our final choice ?" The argument was that on a proper construction of the notification and the questionnaire all that the applicants could be said to have done was that they exercised their option provisionally and being entitled to a final choice within six months of the transfer of power and having exercised that final choice they automatically became employees of the Central railway. Considerable stress was laid on the following words :
"Provisional choice now exercised will not in any way prejudice the employee's seniority or other conditions of service."
and also on the words :
"Employees who are unable to make up their minds finally within this period should fill in the form provisionally, as a further opportunity will be afforded to them to make a final choice within six months from the date of transfer of power."
in the notification. The question that arises for my determination as I have already indicated is one of construction of the notification and the terms and conditions of service as modified or altered by the covenants introduced by the notification and the questionnaire.
10. In opposition to the rule it was strenuously urged by Mr. Parpia, learned counsel for respondent 1, that on a proper construction of the notification and the questionnaire the applicants could not be regarded to be in the position of the employees the moment they exercised their final choice. The suggestion was that only an assurance was given to the applicants that if they opted to be re-transferred to the rest of India an opportunity would be afforded to them to join service and they would in due course be absorbed in the service of the Central Railway. The substance of the argument was that conferring a final choice on the applicants did not create in them any right of election, nor was the exercise of the choice tantamount to as exercise of an option in the strict sense in which that word is understood in law. As I understood the argument of learned counsel, it amounted to this : This was an arrangement of a complex character partly legal and partly honorary and the assurance to absorb the workmen ins service was no more than an honorary part of the arrangement and was left to the honour of the parties. I find myself unable to accept his argument : nor am I able to accept the construction sought to be placed on the notification and the questionnaire by learned counsel on behalf of respondent 1. This in my judgment is clearly a case of an option to be exercised provisionally, or, if I may so call it, a double option. But an option it was and an option it did remain. The argument that a unilateral act on the part of the applicants, by the exercise of their choice, cannot automatically result in an agreement of employment between the railway and the applicants must, in my judgment, be dismissed as untenable.
11. Now, when an option is given, usually the result depends on a unilateral act of one party. Such for instance is the case of a contract where one party has an option by the exercise of which the other party becomes bound to perform his part. In such a case once the option is exercised, contractual rights and obligations flow on the performance of the unilteral act and the objection of lack on consent or mutality is necessarily precluded. It is well-settled law that coming into existence of any particular right or obligation may be deferred to a future date or rendered contingent on a future event which may well be the unilateral act of one of the contracting parties. Until that time it may be contingent, but when the event occurs or the unilateral act is done, the right or obligation becomes valid and binding and the law will uphold the contract. The principle underlying this is certum est cuod certum reddi potest; by which I understand - that which can be rendered certain is sufficiently certain. This maxim which sets forth a rule of logic as well as of law is peculiarly applicable in construing a written instrument. The principle of this indubitably applies to the case before me. Obviously there is always an element of election or selection in an option. The contract gives a party to perform an election, and the moment the election is duly exercised, it creates obligation in the same way as under an ordinary agreement by consensus of parties. The option under consideration in fact creates an alternative covenant. And when a right is given to the effect that the exercise of the option shall be provisional during a stated period, there is in reality a double option. In such a case when the option is exercised provisionally, the right may be said to remain in suspense during the interregnum, and it would be the final exercise of the option which would be the matter to regarded. The final exercise of the option creates the contemplated relation, and it is not disputable that when the final option is duly exercised, a contract of the nature in contemplation immediately arises. Of course any matter which by the terms of the option is made condition precedent to its exercise must be strictly observed. The consequence of their final choice exercised by the petitioners in favour of ultimately serving the railway in the rest of India in my judgment was that the petitioners were during the period in question employees of the railway and as such entitled to prefer their applications under the Payment of Wages Act. Respondent 2 was in my opinion bound to entertain the applications and was in error in dismissing the same on the plea of absence of jurisdiction.
12. It is possible to view the matter from a slightly different angle. What the parties did was to render the continuance of contract of employment conditional by express words of condition. In such a case the Court must rely on the construction of the terms governing the intention of the contracting particles. The words used in the case before me read as a whole lead to only one conclusion and it is that the continuance or existence of the relation of employer and employee was to be a matter solely within the election of the employee and he was not merely given a single option, but more than that, a right to exercise that option provisionally, the locus poenitentiae all along remaining in the employee. My decision must rest on a neat point of construction. As I read the notification it amounts to this :
"You are in my employment. I give an option to serve me, or X; if you are unable to make up your mind finally and irrevocably within the given time, I give you a right to decide provisionally; and if within six months of your first choice to serve X you change your mind and decide to serve me, you will have the right to so express your choice, and on your doing so you will become my employee."
13. This clearly is a case of provisional selection or election. Election is when a person is left to his own free will to take or do one thing or another which he pleases. It is more frequently applied to the choosing between two rights by a person who derives one of them under an instrument in which an intention appears or is implied by a Court of law or in equity that he should not enjoy both. But as long as the party on whom the right to elect is conferred exercises the same in terms of the alternative covenants the choice remains his and the result would be controlled by him decision based on his own free will to take or do one thing or another which he pleases. The moment his electon is finally made, legal relations contemplated between the parties come into existence. I am aware that these are considerations more appropriate to a case inviting the application of the equitable doctrine of election, but I have referred to them because the considerations that arise in the case before me are in some respects analogous to a case of provisional election. I prefer, however, to treat the case as one of provisional choice or selection in a matter of option given to a party by express terms of a contract. Considered from both the aspects the result is the same. The crux of the matter is, and must remain, one of construction. All these considerations are in my judgment sufficient as pointing to the conclusion already arrived at by me on the question of jurisdiction.
14. Then was raised in a bold form a question which I hold to have been well-settled. In his usual persuasive manner Mr. Parpia urged that the very factum of employment was denied by the railway and no jurisdiction was conferred on the authority by S. 15 of the Payment of Wages Act to decide this question. Emphasis was also laid on the fact that admittedly no actual service was rendered by the petitioners during the period for which they claimed wages. It was also stressed that jurisdiction can only be conferred expressly by statute. Now, it is true that I am dealing with the jurisdiction of a special tribunal created under an Act and such jurisdiction cannot be inferred by implication. It is well-established that jurisdiction of a special tribunal must have been expressly conferred because it takes away the ordinary jurisdiction of municipal courts. It is equally well-established under the Payment of Wages Act that S. 15 of the Act must be strictly construed. A plain reading of S. 15 indicates that the jurisdiction is limited to
(i) all claims arising out of deductions from wages and
(ii) delay in payment of wages.
15. It is not necessary, however, that the claim must be in respect of wages earned by actually rendering service. The case of an employer who prevents the employee from carrying out his part of the contract is equally covered by the definition of "wages" in the Act, if the relation of employer and employee is proved to subsist. Again it is well-established that it is open to the authority under the Payment of Wages Act, in order to decide what sums are payable as wages, to determine whether a person has been employed or not, because the question of contract of employment can only arise if there was at the relevant time a subsisting contract of employment. The mere denial by an employer to the factum of employment cannot oust the jurisdiction of the authority. It is clear from the facts set out at the commencement of this judgment that the petitioners after they exercised their final choice were all along during the interregnum ready and willing to work for the railway authorities who did not, however, issue any directions or orders in that behalf. And if the workmen reported themselves for duty and the relation of employer and employee had subsisted as held by me, their claim for wages was clearly within the purview of S. 15 of the Act, and respondent 2 was bound to entertain their application under that section. Respondent 2 in dismissing the applications of the petitioners on the plea by way of demurrer was in error and in effect abdicated jurisdiction which was vested in him.
16. In opposition to the rule it was next argued by Mr. Parpia that no writ should issue in the present case because the petitioners have rushed to this Court without availing of the remedy by way of an appeal open to them under the Payment of Wages Act. It was urged that under S. 17 of the Act an appeal was competent and the petitioners were bound to prefer an appeal before asking this Court for the prerogative writ by way of certiorari. Section 17 of the Act is as under :-
"17. Appeal. - (1) An appeal against a direction made under Sub-section (3) or Sub-section (4) of S. 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 else-where before the District Court :
(a) by an employer or other person responsible for the payment of wages under 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 S. 15.
(2) Save as provided in Sub-section (1), any direction made under Sub-section (3) or Sub-section (4) shall be final."
17. Section 17 thus in express terms confines the jurisdiction of the appellate Court mentioned in the section to directions made by the authority under Sub-dec. (3) and Sub-section (4) of S. 15 of the Act and it will be sufficient to state only those provisions of that section which are material for the disposal of the question under consideration. They are as follows :-
"15. Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims. - (1) The State Government may, by notification in the official gazette, appoint any Commissioner for Workmen's Compensation or other officer with experience as a Judge of a Civil Court or as a stipendiary magistrate to be 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 or paid.
(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, or any legal practitioner or any official of a registered trade union authorized 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).
Provided that every such application shall be presented within six months from the date on which the deduction from wages was made or from the date on which the payment of the wages was due to be made, as the case may be :
Provided further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
(3) When any application under Sub-section (2) is entertained, the authority, shall hear the applicant and the employer or other person responsible for the payment of wages under S. 3 or give them an opportunity of being heard, and, after such further inquiry (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person, of the amount deducted, or the payment of the delayed wages, together with payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding ten rupees in the latter."
18. Now, it is clear from the language of the material parts of the two relevant sections set out above that only a limited right of appeal is given to the parties aggrieved by the directions given by the authority. Mr. Parpia, learned counsel for respondent 1, argued that an appeal lies under S. 17 in every case where a direction is given allowing or disallowing a claim for wages made by an employee under S. 15. Learned counsel relied on the following observations of Weston, J., in Muhammad Haji Umar v. Divisional Superintendent, North-western Railway [1941 A.I.R. Sind. 191 at 192] :-
"The present appeal is under Clause (b) of Sub-section (1) (of S. 17) and under this clause the right of appeal depends on the monetary value of the claim and not on any finding of the trial court. It may be that the section lends itself to exaggeration of claims for the purpose of making any orders passed thereon appealable, but the meaning of the clause is clear and the objection on the first ground must fail. As for the second ground, Clause (c) of Sub-section (1) of S. 17 provides for an appeal from an order under Sub-section (4) of S. 15. Clause (a) of the same sub-section deals with the right of appeal by the employer or other person responsible for the payment of wages, and it is Clause (b) which provides for a right of an appeal by an employed person. Now any direction under Sub-section (3) of S. 15 in the narrow sense must necessarily be a direction at least partly in favour of the employed person and obviously an employed person will not desire to appeal against a direction which is in his favour. Although the use of the word 'direction' in S. 17 lends some support to the argument that no appeal will lie unless an order of the nature explicitly contemplated by S. 15(3) has been made, it would be a remarkable result if an employed person were held to have a right of appeal only if he has obtained an order allowing a part of claim, and to have no right of appeal if his claim has been rejected in toto however large it may have been. I have no doubt whatever that the legislature did not intend such a result, and that the word 'direction' S. 17 should be taken to include refusal to make a direction. The preliminary objections to the appeal therefore fail."
19. I am in respectful agreement with the view expressed by Weston, J. Mr. Parpia's argument ran that the order passed by the authority dismissing the applications of the petitioners was tantamount to disallowing the claims preferred before him by the petitioners. It was suggested that in deciding whether any wages could be claimed by the petitioners the authority had of necessity to consider whether he was empowered to entertain the claims. This could have been a legitimate argument if the question of jurisdiction could be considered under Sub-section (3) of S. 15. But as I read the section, the question of jurisdiction has to be considered under Sub-section (1) and (2) and not under Sub-section (3) of S. 15. Sub-section (3) only comes into operation at a later stage of the proceedings and deals with the stage when the applications are to be heard, which can only mean heard on merits. The questions whether there is jurisdiction in the authority to entertain the applications, and whether the applications are in time, are questions which arise at a stage antecedent to the hearing. The argument urged on behalf of the respondents ignores some material words of the section and there is a fallacy underlying the submission.
20. An appeal is an offspring of statute. No authority is needed for the proposition and it has always been regarded as a sound principle that unless a right of appeal is clearly conferred by statute, it does not exist. While the litigant has, independently of any, statute, an inherent right to institute a suit of a civil nature in the municipal courts, he has no such right of appeal unless it has been expressly conferred. There is both principle and authority for the proposition that rights of appeal are not matters of mere procedure but on the other hand are substantive rights which can only be expressly given by the legislature. Having regard to all these considerations and the principle that S. 17 confers a special right of appeal against the directions given by a special tribunal, I am of the opinion that a very limited jurisdiction by way of appeal has been given under S. 17 of the Act and that section must be strictly construed.
21. The directions envisaged by Sub-section (3) of S. 15 can only be given when an application under Sub-section (2) of that section is "entertained" by the authority. Sub-section (3) is in express terms so stated. The applications of the present petitioners were not heard on the merits but were dismissed in limine. Now, a court, which from a real or supposed defect of jurisdiction or other cause of a like nature rejects an application on the thres-hold on a preliminary objection, cannot be said to entertain it. The question of allowing, or disallowing, a claim under S. 15 arises only when the application is entertained, i.e., when the authority holds that he has jurisdiction to entertain the same, and try it on merits. It is extremely difficult for me to see how it can be said that an order dismissing claim on the ground of absence of jurisdiction can be said to be a direction under Sub-section (3). But a "direction" is what S. 17 of the Act specifically requires. It is only in cases falling within the ambit of Sub-secs. (3) and (4) of S. 15 and a direction given under that section that a right of appeal has been conferred by the statute. The words "An appeal against a direction made Sub-section (3) or Sub-section (4) of S. 15 may be preferred ..." at the very commencement of S. 17 in express and implicit terms confine the right to appeal only against some directions given by the authority and not any order made by him under these sub-sections. There must, therefore, be some direction either allowing the claim in whole or in part or disallowing the claim or a part of it on merits and then only there is the right of appeal. Somewhat analogous considerations arose in Prem Narayan Amritlal v. D. T. M. Bhusaval [], where the the question that the Appeal Court was called upon to decide was whether an appeal lay under S. 17 of the Act from an order made by the authority under S. 15(2) of the Act condoning delay in making the application.
22. After considering the scheme of the Act and the language used in Ss. 15 and 17 my Lord the Chief Justice observed as follows (p. 737) :
"In this case the authority in ordering the employer to make payment to the employee of wages for the period during which the employee was suspended, undoubtedly made a direction under Sub-section (3) of S. 15 and the employer had the right of appeal to the District Court in respect of that direction under S. 17. But the question that has got to be considered is whether in hearing the appeal against the direction of the authority under Sub-section (3) of S. 15 the District Court had jurisdiction to consider the order made by the authority condoning delay. There can be no doubt that the order of condonation which the authority is authorized to make is an order made under Sub-section (2) of S. 15 and not under Sub-section (3) of S. 15. Sub-section (3) only comes into play when any application under Sub-section (2) is entertained, and an application under Sub-section (2) can only be entertained if it is either within the statutory period of six months, in which case the employee has a statutory right to have his application heard, of if it is beyond the period of six months, it is admitted by the order of the authority condoning the delay. The authority is not competent to entertain the application at all unless it has condoned the delay if it is filed beyond six months. Mr. Baptista has contended that Sub-section (3) provides for the authority hearing the applicant and the employer and giving them an opportunity of being heard, and Mr. Baptista says that this applies not only to the merits of the application, but also to the merits of the condonation of delay. In my opinion, that contention is entirely untenable. It is clear that what Sub-section (3) contemplates is hearing the applicant and the employer and giving them an opportunity of being heard with regard to the merits of the application, because it is only after the application is entertained that the question arises of hearing the applicant and the employer or giving them an opportunity of being heard, and as I have already pointed out, no application can be entertained if it is beyond time unless the delay has already been condoned. Therefore, no order of the authority condoning delay can every fall under Sub-section (3) of S. 15. It can never be a direction under that sub-section contemplated by S. 17. If it is not a direction under Sub-section (3) but is an order under Sub-section (2), then no appeal lies from such an order. It is suggested that in giving a direction under Sub-section (3) the authority may consider the question of limitation on merits, and if the authority considers the question of limitation on merits, the appellate authority would have that jurisdiction to decide whether the direction was properly made, and in so deciding it may also consider the question of limitation. This would be a valid argument if the question of limitation could be considered under Sub-section (3), but as I have already pointed out, he stage at which the question of limitation can be considered is a stage which is antecedent to the hearing contemplated by Sub-section (3). The question of limitation must be finally disposed of under Sub-section (2) before the authority launches upon the hearing provided for under Sub-section (3)."
23. I am in respectful and dutiful agreement with the views clearly expressed by the learned Chief Justice. It seems clear to me that what Sub-section (3) contemplates is hearing the application on merits, and no application can be entertained if it is beyond time unless the delay is condoned. A fortiori Sub-section (3) contemplates only such an application as is within the ambit of that sub-section. That the decision was right or erroneous makes no difference to the right of appeal, because the right is given for an appeal only on merits against the direction given by the authority and the stage when the question of jurisdiction can be considered is a stage which is antecedent to the hearing contemplated by Sub-section (3). The question of jurisdiction must be finally disposed of before the authority launches upon the hearing provided for under Sub-section (3). The conclusion I have reached, therefore, is that no right of appeal is conferred by S. 17 of the Payment of Wages Act against an order dismissing an application on the ground of absence of jurisdiction. A somewhat similar view was taken by the Calcutta Hieh Court in Rajendranath v. Manager, F.M.C. Co. Ltd. , where the authority under the Payment of Wages Act had dismissed an application relating to a claim by a workman for wages on the ground that the application was not maintainable. The question that arose for consideration was whether an appeal lay under S. 17 of the Act against the order of dismissal. The contention urged on behalf of the workman that an appeal did lie under that section was negatived by the Court.
24. Moreover, it is possible to view the matter from another aspect of the case and this is on the assumption that the view taken by me above as to the construction of S. 17 is erroneous. There is some conflict of judicial decisions on the scope and ambit of Sub-section (3) of S. 15 of the Act. The correctness of the view expressed by Weston J. in the decision relied upon by Mr. Parpia, and already referred to by me was questioned in a decision of the Allahabad High Court in Khema Nand v. East Indian Railway [] where it was observed as follows (p. 244) :
.... I have great doubt myself as to whether when there has been a trial on the merits and no one has been directed to make any payment to the other side any appeal lies ...."
25. Respectfully I am unable to agree with this view and prefer to take the view expressed by Weston J. in the decision of the Sind Court, It is a well-known canon of construction that if, as is often the case, an enactment is "unfortunately expressed in such language that it leaves it quite open, with regard to its form of expression as much to the one interpretation as to the other .... and if it appears that one of these constructions will do injustice, and the other will avoid that injustice it is the bounden duty of the court to adopt the second, and not to adopt the first, of these constructions."
26. However difficult it may be to put a perfectly logical construction upon a statute a Court of Justice is bound to construe it, and as far as it can, to make it available for carrying out the objects of the legislature and for doing justice between the parties for which alone it exists. The rule is not peculiar to any particular type of legislation and is applicable with all the greater force in case of beneficent legislation like the Payment of Wages Act. In such a case it is often incumbent of the Court to adopt exposition ex visceribus actus and as far as permissible to expound the statute not according to the letter but according to the meaning and spirit of it. The view I take of the matter is that the word "direction" in sub-section (3) of S. 15 means any order allowing or disallowing wholly or partially any claim for wages after considering the merits of the case. I have, however, referred to the Allahabad decision to point out that when the present petition was preferred to this Court there was no decision of this High Court on the point and there was divergence of judicial opinion on the subject as already stated by me. Now, it is an indubitable proposition that the prerogative writ by way of certiorari will not ordinarily issue where the petitioners have another equally efficacious remedy open to them under the law applicable to the case. But this is no an absolute rule. The existence of an adequate legal remedy, e.g., by way of an appeal is not an absolute bar to the issue of a prerogative writ. The rule cannot in my judgment be enforced particularly when doubt has been thrown by decisions of the Courts on the existence of the very right of appeal or where the alleged right of appeal has been conferred by the legislature in language couched in words which are obscure or capable of more than one import, for in such a case it can hardly be said that there was another equally efficacious or adequate legal remedy open to the petitioners. As, however, no argument was advanced before me from this aspect of the case, it is not necessary for me to discuss the question in any detail. The very object of the writ of certiorari is to render more sure and speedy justice and it is the bounden duty of the Court where ends of justice require, albeit within the four corners of the leading principles, which may now be regarded as well laid down, to see that complete and effectual justice is done without allowing a technicality of the nature under consideration to prevail when there is some real element of uncertainty or doubt about he existence of the very right of appeal. The present contention urged on behalf of respondent 1 must, therefore, be negatived.
27. There remains for consideration one more argument urged on behalf of respondent 1. It was urged by Mr. Parpia that the petitioners were guilty of laches as they had failed to take diligent steps to realize their alleged claims which if at all accrued to them in 1948. Now, delay in matters of prerogative writs is a matter to be seriously taken into consideration, and the argument would have been valid if the delay had not been accounted for by the petitioners. But the petitioners were all along making representations to the railway authorities and the plea of delay and limitation was strenuously pressed before the authority, who, however, was of the opinion that in the case of the applications before him the delay should be condoned. The present contention, therefore, loses much of its force in view of the decision on the point given by the authority. Writs of certiorari or mandamus when they are issued in respect of anything done by inferior courts being prerogative in character and being directly or indirectly peremptory and final commands although discretionary, must be issued to enforce clear legal rights and to compel courts to take jurisdiction or to proceed in the exercise of their jurisdiction with a view to ensuring speedy, effective and complete justice. Moreover, the delay that is fatal is such delay as disentitles a petitioner to the discretionary powers being exercised in his favour, and has to be considered on equitable grounds. Again the delay that has to be considered in a matter of the nature under discussion is really delay, if any, after the date of the order passed by the authority dismissing the applications on demurrer. There is not even a suggestion that there was any delay in the matter of the filing of the present petition after the impugned order was passed by the authority. The present contention, therefore, urged on behalf of respondent 1, must also be negatived.
28. The result, therefore, is that the authority under the Payment of Wages Act had jurisdiction and was bound to entertain the applications preferred by the petitioners under the Act. Therefore, his order must be corrected by a writ of certiorari, and an appropriate direction directing him to proceed with the applications on merits. The rule will be made absolute and respondent 1 will pay the petitioners' costs of the petition. Having regard to the fact that the hearing of the rule went on before me for seven hours, and the fact that the out-of-pocket costs of the petitioners come to Rs. 580, I think the the fair order for costs should be that respondent 1 should pay Rs. 1,000 as the petitioners' costs of this petition.
29. The works manager of the railway appealed to the High Court.
* * *
II
Chagla, C.J.
30. This is an appeal from a judgment of Mr. Justice Desai who on a petition filed by the respondents held that the authority under the Payment of Wages Act had jurisdiction to entertain the application made by them and his order dismissing the application on the ground of want of jurisdiction was an erroneous order.
31. The facts briefly are that the petitioners were servants in the G.I.P. Railway prior to June 1947 and under a notification issued by the railway authorities, to which attention will be drawn presently, they provisionally opted for Pakistan and they went to Pakistan in June 1947. They returned to India on 10 February, 1948 and reported themselves for service to the railway authority. They were ultimately absorbed in the Railway Service on 1 May, 1948. They then claimed their wages from 10 February, 1948 to 1 May, 1948 and the railway authority's contention was that they wee entitled to wages only from 1 May, 1948, and not for any earlier period. They thereupon presented various applications for payment of wages which according to them had been wrongfully withheld. The applications were beyond time; the delay was condoned by the authority; he heard the applications on the preliminary issue whether he had jurisdiction to entertain them, and he came to the conclusion that the claim of the respondents was for compensation and not wages and therefore he had no jurisdiction.
32. Now, the first contention urged by Mr. Baptista is that the petition is not maintainable inasmuch as the respondents had the right of appeal under S. 17 of the Act. Section 17 confers a right of appeal against a direction made under Sub-section (3) or Sub-section (4) of S. 15, and the right is given to the employer, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees, and it is given to an employee if the total amount of wages claimed to have been withheld from him exceeds fifty rupees. Therefore, the right of appeal is against a direction whether it is made under Sub-section (4) of S. 15. In this case we are no concerned with Sub-section (4) of S. 15 and the only question on this aspect of the case that arises for our determination is whether the order made by the authority was a direction under Sub-section (3) of S. 15. Turning to S. 15, Sub-section (1) deals with the jurisdiction of the authority to be appointed and his authority is to deal with all claims arising out of deductions from the wages, or delay in payment of the wages, of persons employed or paid in the area mentioned in that sub-section. Then Sub-section (2) gives the right to an employed person to make an application where a deduction has been made from his wages, or the payment of wages has been delayed. Then the first proviso on Sub-section (2) provides for the period of limitation within which the application is to be made, and the second proviso gives the power to the authority to admit an application after the period of limitation. Then comes Sub-section (3), and the opening words of that sub-section are "When any application under Sub-section (2) is entertained," and then the sub-section goes on to provide how the application is to be heard by the authority, and the concluding words are :
"the authority may direct the refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and exceeding ten rupees in the latter."
33. The contention of Mr. Baptista is that after the delay had been condoned by the authority, the application was entertained, and the order made by the authority is a direction under Sub-section (3) of S. 15 and that the employee is not entitled to wages, and that direction is subject to appeal under S. 17. We think Mr. Baptista is right on the authorities that the right of appeal which is conferred is not limited to a case where the authority gives a direction to the employer to pay an amount to the employed person. The with of appeal would also arise if the authority refuses to give a direction in the sense that he holds on the merits of the application that the employee is not entitled to any amount, in other words, he dismisses the application of the employee after considering the merits of his case. But what is really urged by Mr. Baptista is that even when the authority holds that the employee is not entitled to any relief, not on the ground that he has no case on merits, but on the ground that he has no jurisdiction to entertain the application, it amounts to a refusal to give a direction which is subject to appeal under S. 17. We are unable to accept that contention. It has been urged by Mr. Baptista that the expression "entertain" used in Sub-section 3 is used in its technical sense, and that once the authority has come to the conclusion that delay should be condoned and puts the application formally on file, it is entertained by him. One the other hand, the view taken by the learned Judge below is that an application is only entertained when the Court has jurisdiction to hear that application, and therefore an order with regard to jurisdiction is passed under Sub-section (2) and not under Sub-section (3). In our opinion it is strictly unnecessary to consider that aspect of the case, though it may be pointed out that a plea as to jurisdiction, may be taken at any stage, and if a Court or authority has no jurisdiction, even the fact that a party does not raise the plea of jurisdiction will not confer jurisdiction upon that Court or authority. But even assuming that Mr. Baptista is right, and in this particular case the application was entertained after the delay had been condoned, it is not mere entertaining an application that is sufficient for the purpose of deciding the question as to whether the right of appeal had ensued to the employee or not. In order that an employee should have a right of appeal under S. 17, not only must the petition be entertained, but there must be a refusal to give a directien on the merits of the application, Therefore, two conditions are necessary and not one in order to give rise to the right of appeal under S. 17. In this case only one condition was satisfied, assuming Mr. Baptista is right as to the argument with regard to the expression "entertained." The authority entertained the application. Having entertained it, the authority did not proceed to dispose of it on merits, but held that he had no jurisdiction to dispose of the application. It is impossible to accept the contention that because the application was entertained for the purpose of determining the preliminary issue as to jurisdiction, the decision of the authority that he had no jurisdiction was tantamount to refusal to give a direction on merits. Therefore, it is clear that in this particular case as the authority refused to assume jurisdiction and refused to deal with the respondents' application on merits, the only remedy they had was to come to this Court on a petition to compel the authority to assume jurisdiction and dispose of the application of the respondents on merits. They had no right to appeal under S. 17 as there was no decision on merits which they could appeal against.
34. Turning to the merits of the matter, the jurisdiction under which the respondents claim the wages is, in our opinion, capable only of one construction. The notification gives the option to the employees of the railway company of serving in the future Pakistan State or in the rest of India, and it provides that option should be exercised before 30 June 1947. It then goes on to say :
"Employees who are unable to make up their minds finally within this period, should fill in the form provisionally, as a further opportunity will be afforded to them to make a final choice within six months from the date of transfer of power."
35. And Clause 2 of the notification provides :
"It should be clearly understood that the existing terms and conditions of service are guaranteed by the representatives of both the future Governments and that a provisional choice now exercised will not in any way prejudice the employee's seniority or other conditions of service."
36. Now, it is not disputed that in the answer to the questionnaire which was submitted to these respondents they did not finally opt for Pakistan but their choice was provisional and they ultimately decided to come to India and serve the railway company in India. The first question that we have to consider is, what was the position of these respondents during the period they were in Pakistan ? Did they cease to be in the service of the railway company or their rights as employees were merely suspended during that interregnum ? It is clear from the fact that the railway company guaranteed to these employees their seniority and other conditions of serving, that the respondents did not cease to be in the service of the railway company during the period when a right was given to them to think over their own position and ultimately decide. The relationship of employer and employee did not cease, that relationship was merely suspended, and as soon as the option was exercised by the respondents, the suspension came to an end and the employees became entitled to all the conditions and rights of service with the railway company. It is true that the option was unilateral, but that was the whole object of the notification. Once that unilateral option was exercised by the employee, it was not open to the employer to say :
"Although I gave you the option, although I guaranteed you your conditions of service, now that you have exercised, that I will not take you in my service or I will not pay you the wages although you are ready and willing to serve."
37. That is exactly the attitude taken up by the railway company. It is not suggested that the respondents were not ready and willing to render services from 10 February, 1948. The attitude taken up by the railway company is that although the respondents were ready and willing, it was left to their own discretion when they should employ them and from what date they should pay for their services. If this attitude is justified, then the assurance given to the respondents was meaningless and was not worth the paper on which it was given. Mr. Baptista contends that under Clause 2 of the notification the seniority and conditions of service were not guaranteed by the railway company in India, but an assurance was given to guarantee their seniority and other conditions of service in case they were absorbed by Pakistan. It is difficult to understand how such an interpretation is possible. They were not concerned with Pakistan. The railway company were concerned with the terms of service of their own employees in India, and as these respondents were serving in India before partition, they were concerned with what rights they should safeguard as far as their employees were concerned, and inasmuch as the employees did not make their final choice in favour of Pakistan and inasmuch as a locus poenitentiae was given to the respondents, the railway company guaranteed to them their seniority and other conditions of service provided within the time indicated in the notification they made their final choice in favour of India, and inasmuch as the respondents made their choice in favour of India and reported themselves for service, the railway company became liable to pay their wages.
38. Mr. Baptista further argues that at best this is merely a case of a breach of undertaking on the part of railway company and it may give a right to the respondents to use for damages or compensation and not for wages. Now, a question of damages or compensation would only arise provided the respondents had ceased to be in the service of the railway company, and when they were absorbed, they were being re-employed. But it is clear that there was no question of re-employing the respondents. They always continued to be in service, their service was temporarily suspended, and their service was resumed as soon as they showed their readiness and willingness to offer their services to the railway company. The question of beach of undertaking would only arise on the assumption that the respondents were no longer in the service of the railway company and they were claiming to be in service by reason of the undertaking given by the railway company. In our opinion that is not the true position that arises under the notification.
39. We are, therefore, of the opinion that the learned Judge mr. Justice Desai was right in the view that he took. The result is that the appeal fails and must be dismissed with costs.