Kerala High Court
Surendranathan Nair And Ors. vs Senior Divisional Personnel Officer ... on 31 July, 1987
Equivalent citations: (1988)ILLJ227KER
ORDER Padmanabhan, J.
1. In the legal battle between the Railway Administration and some of its employees the real issue is not the stake involved but establishment of rights. The employees are interested in getting established their unfettered right to avail of casual leave as they like on any day even for the purpose of launching an agitation against the Railway Administration under which they are working. The interest of the management is in preserving its rights to enforce discipline and ensure proper working of the Railways. So far as each of the employees is concerned, what he is gaining by success or losing by defeat is only a day's wages which may not be more than 50 or 55 rupees. They must have spent many multiples of that figure to fight out this case.
2. 28 employees of the Railway Administration are the revision petitioners. Against the management, the employees decided to have an agitation on 2nd January 1979. On 30th December 1978 the petitioners submitted casual leave applications for 2nd January 1979 to participate in the agitation. Those applications were rejected. Still they absented themselves from duty and participated in the agitation. Management withheld wages for the day. Petitioners complained before the Payment of Wages Authority under Section 15(2) of the Payment of Wages Act (for short 'the Act') and the claims were allowed. Against that order the Management filed an appeal under Section 17(2) of the Act before the District Judge, Palghat. The appeal was allowed and the order set aside. Hence they have come up in revision.
3. Section 15(1) of the Act provides for the appointment of an Authority to hear and decide all claims of employees arising out of deductions from wages or delay in payment of wages. Section 15(2) authorises the employees to apply to the Authority for direction under Sub-section (3) only in cases where deduction has been made from wages contrary to the provisions of the Act or when payments were delayed. Under Section 7(2)(b) of the Act, the Management has a legitimate right to make deductions from wages for absence from duty. If the deductions come under the authorisation in Section 7(2)(b) the petitioners cannot have any right to move under Section 15(2) for a direction under Section 15(3). Therefore the real question is whether absence from duty is authorised or unauthorised.
4. Before going into that question the first hurdle to be crossed is maintainability of revision. The Payment of Wages Authority can either dismiss the claim under Section 15(2) or give a direction under Section 15(3) or (4). From those orders an appeal is provided under Section 17(1). The Appellate Authority is the Court of Small Causes in a Presidency town and the District Court in other cases. In this case District Court is the appellate authority. Section 17(2) says that subject to the appeal under Section 17(1) the decision of the Payment of Wages Authority under Section 15(2), (3) or (4) shall be final. The only other relevant provision is Section 17(4) which authorises the appellate court to refer any question of law for the decision of the High Court pending appeal. The matter to be decided is whether in such a situation a revision under Section 115 of the Code of Civil Procedure is maintainable.
5. It is true that Section 17(2) gives a finality to the decision of the Payment of Wages Authority subject to the appeal provided under Section 17(1). That only means that the Act did not provide for any further right of appeal. The operative order in such cases where an appeal has been filed is that of the District Judge in appeal. The question then is only whether the appellate court acting as such is a court or only a persona designata. If it is a court, the absence of provision for appeal is of no consequence. District Court is a court undoubtedly subordinate to the High Court. From the decision of such a subordinate court from which no appeal lies the High Court is having undoubted revisional jurisdiction under Section 115 of the Code. What is required to attract the revisional jurisdiction under Section 115 of the Code is only the decision of a case by any court subordinate to the High Court and in which no appeal lies thereto. Subsequent matters provided in Section 115 are only those affecting the decision in revision. The word 'court' does not include any person acting in an administrative capacity nor a person acting as a persona designata. When a matter is directed to be decided by certain court, the presiding officer of such court will act only as a court and not as a persona designata. But where it is provided that a certain judge by name or otherwise is to decide a matter, the entire provisions of the statute may have to be looked into for the purpose of determining whether the judicial officer acts as a court or as a persona designata. It is the intention as gathered from the statute that determines the question. If the intention is that "the presiding officer should enforce the rights and obligations created by the statute in the exercise of the existing jurisdiction of the courts, they act only as courts, but in such cases if the intention is to create new courts then only the question will arise whether they are persona designate. The question of ouster of revisional jurisdiction of the High Court by the absence of a provision of the alleged finality or absence of provision for further appeal will arise only if the appellate authority is persona designata. and not a court subordinate to the High Court.
6. Section 17(1) of the Act does not present any difficulty at all. The two appellate forums provided under that provision are Court of Small Causes and District Court and not any particular judge. Both are courts subordinate to the High Court coming within the purview of Section 115 of the Code. The fact that no further provision for appeal is made only strengthens the applicability of Section 115 of the Code. A Division Bench of the M.P. High Court in Hindustan Journals v. Gouindan 1962-II-L.L.J.-242 took the view that jurisdiction conferred under Section 17 of the Act is on a civil court already functioning under the Code and since it is a court subordinate to the High Court, the jurisdiction under Section 115 of the Code is attracted. That decision was followed in Varghese and Ors. v. Carmal Coir Works. 1964-II-L.L.J.-368 and I am in respectful agreement with that view.
7. When once the revisional jurisdiction is there, the further question is whether the District Judge acted in excess of jurisdiction or exercised the jurisdiction illegally or with material irregularity. No such question arises in this case. The purpose of applying for leave was admittedly for participation in an agitation against the Management. It is always within the powers of the Management to refuse leave for that purpose in order to enforce discipline and maintain smooth functioning of the administration. The main contention was based on Circular No. JP 420/P dated 19th July 1978 alleged to have been issued by the Senior Personnel Divisional Officer providing that when an application for leave is presented and when no intimation has been given that it is rejected, it must be presumed that leave is granted. According to the revision petitioners, no intimation was given to them that leave is rejected and hence the presumption under the Circular is attracted and therefore the Management cannot take the stand now that leave is rejected. On this basis it was contended that absence is not unauthorised and hence deduction of wage is illegal.
8. Even going by the Circular such a stand on the part of the employees is not justified. In the first place one of the petitioners when examined admitted that they had notice of rejection. Secondly, the Circular can have application only in normal circumstances and that too only subject to the provisions of Fundamental Rule 67 contained in the Railway Establishment Code, Vol. II. In an extraordinary situation like an agitation by the employees none of the employees is having the right to compel the Management to grant leave to them for participating in the agitation. Rule 2106 of the Fundamental Rules provides that leave cannot be claimed as of right and when exigencies of public service so require, discretion to refuse or revoke leave of any description is reserved with the authority empowered to grant it. It may be true that Circular No. JP. 420/P dated 19th July 1978 was issued under authorisation from the Railway Board. But it can have effect only subject to the Code and Rules contained therein. Acting under exigencies of service is the right of the Management to meet situations and enforce discipline and smooth functioning. No employee is entitled to claim casual leave as of right. It can be availed of only after being sanctioned. If 12 days casual leave is there, they may be entitled to avail it spread over the year. But they cannot claim that casual leave has to be granted on any particular day even when exigencies of service do not justify such granting. The Railway Establishment Code and the Rules contained therein are having the authority under Article 309 of the Constitution. The Rules made under the delegated powers is having general application to the non-gazetted railway servants including the petitioners. Rejection of leave under such circumstances was legal and proper. Absence from duty in such a situation especially for the purpose of participation in an agitation against the management is unauthorised. An unauthorised absentee has no right to compel the Management to disburse wages for the period of unauthorised absence.
9. Railway Establishment Code, Vol. I are the Rules framed by the President under Article 309 of the Constitution. Rule 157 of that Code authorises the Railway Board, as permissible under Article 309 of the Constitution, to have full powers to make rules of general application to non-gazetted railway servants under their control. Such rules are having the force of rules framed under Article 309 pursuant to the delegated power to the Railway Board. It was so held by the Supreme Court in the decision in Railway Board and Ors. v. P.R. Subramaniyam and Ors. 1978-I-L.L.J.-208. When the management acted under the above powers for enforcing discipline and maintaining the smooth functioning of the establishment the employees have no right to say that the action is illegal and they must be given wages though they absented from duty. The fact that inspite of their absence and agitation the Railway establishment functioned properly on account of the arrangements made by the management, is no justification for the petitioners to claim wages. Whether the Railway establishment worked properly or not and whether the Railway Administration suffered anything or not is not the question. The question is only whether the petitioners were absent and whether their absence was unauthorised. That they were un-authorisedly absent is clear. If so, deduction of wages is proper under Section 7(2)(b) and the provisions of Section 15(2) are not attracted. The District Judge was perfectly correct in allowing the appeal.
The Civil Revision Petition has no merit and it is hereby dismissed with costs.