Case: A.V. D'Costa, Divisional Engineer, G.I.P. Railway Vs. B.C. Patel &amp; Another

The 2nd respondent is and has been at all material times an employee of the Central Railway (formerly called the G.I.P. Rly.) represented by the appellant who has been nominated by the Railway Administration as responsible for payment of wages under section 3 of the Act. Ever since 1941, the 2nd respondent has been employed by the Railway Administration as a carpenter on daily wages, and has been treated as a daily rated casual labourer and has been paid his wages at the rate of Rs. 3-4-0 per day. He continued receiving his wages at that rate until October, , 1949 without any demur, and granting receipts for the wages thus received. On the 2nd December, 1949 an application was made by one K. N. Pitkar " an official of Registered Trade Union, a person permitted by the Authority" under sub-section (2) of section 15 of the Payment of Wages Act, 1936, against the G.I.P. Ry. administration through its Divisional Engineer, Parel, Bombay. It was alleged on behalf of the 2nd respondent that his wages due in respect of six months from May to October 1949 amounting to Rs. 245 had not been paid or had been subjected to illegal deductions as shown in the schedule. The schedule will be set out hereinafter. A claim for Rs. 245 plus Rs. 15 by way of compensation was made.The appellant, as the opposite party before the Authority, resisted the claim, inter alia, on the grounds- (1) that Rs. 245 had not been illegally deducted from the wages of the 2nd respondent; and (2) that the claim of the 2nd respondent who was employed as a daily rated casual labourer on specified daily wages, to be placed on a permanent cadre on the scale of monthly rates of pay waswas further alleged that the 2nd respondent did not come within the purview of the Railway Services (Revision of Pay) Rules as he was a daily rated casual labourer charged to works and that no rules had been laid down governing the rates of pay and the conditions of service of daily rated casual laborers like the 2nd respondent. Hence his terms of service were the daily wages paid to him all along. It was thus contended that there had been no deduction from his wages. In this connection reference was made to the award of the Railway Workers Classification Tribunal, dated the 28th MayAuthority by its orders dated the 23rd January 1951 decided that the position of the 2nd respondent was not that of a casual labourer but that of a "temporary employee" and that therefore he was entitled to be on the scale of Rs. 55- 150 plus the allowances admissible. In coming to this conclusion the Authority observed that the work done by the 2nd respondent is of the same nature as that of a member of the permanent staff. Hence the 2nd respondent could not be called a casual labourer. It also made reference to article 39 (d) of the Constitution containing the direction that there should be equal pay for equal work. The Authority also negatived the contention raised on behalf of the appellant that the question of classification of an employee was outside its jurisdiction. In pursuance of the said order the Authority allowed the 2nd respondents application by its further orders dated the 2nd March 1951. Against the said orders of the Authority the appellant moved the High Court of Judicature at Bombay by an application under article 226 of the Constitution for quashing the aforesaid orders. The matter was heard in the first instance by a learned single Judge of that court who by his orders dated the 19th June 1951 dismissed the application. The appellant preferred an appeal under the Letters Patent which was heard by a Division Bench of that court. The Division Bench by its order dated the 24th August 1951 dismissed the appeal and agreed with the conclusions of the Judge on the Original Side that the Authority had not acted without jurisdiction or had not exceeded its jurisdiction in entertaining the 2nd respondents application. On the appellants application for leave to appeal to this court being rejected by the High Court, the appellant moved this court and obtained special leave to appeal on the 2nd February 1953.The main controversy between the parties in this court is whether, having regard to the relevant provisions of the Act, the 1st respondent was competent to pass the orders it did, which orders had been upheld by the High Court of Bombay.

Reasoning:
We have set out above in some detail the relevant provisions of the Act in order to point out that those provisions are not applicable to the complaint made in the present case. In this connection it is necessary to set out in extenso the "particulars of claim" in the schedule appended to his application which are as follows:"The applicant is working as a carpenter-mason with the opposite party under I.O.W., Byculla. According to the orders on introduction of the prescribed scales, the Railway Administration has to make the staff working under I.O.W. on permanent monthly wages scheme under the rules of the prescribed scales. The applicant along with others was up till now under daily wages scheme. About 20 posts under I.O.W. where the applicant is working were to be made per- manent. The opposite party in supersession of claim of the applicant has confirmed his juniors on the permanent scales as a skilled workman in the scale of 55-3-85-4-125-5-130, whereas the opposite party continued to pay the applicant on daily wages scheme thus depriving him of his legitimate wages under the prescribed scale, which resulted in the monetary loss to the applicant of Rs. 40-13-4 per month. Notice on behalf of the applicant was served on this count on the opposite party but of no avail and hence thisour opinion, the scheme of the Act as set forth above shows that if an employee were to state that his wages were, say Rs. 100 per month and that Rs. 10 had been wrongly deducted by authority responsible for the payment of wages that is to say, that the deductions could not come under any one of the categories laid down in section 7 (2), that a would be a straight case within the purview of the Act and the authority appointed under section 15 could entertain the dispute. But it is said on behalf of the respondent that the authority has the jurisdiction not only to make directions contemplated by sub-section (3) of section 15 to refund to the employed person any amount unlawfully deducted but also to find out what the terms of the contract were so as to -determine what the wages of the employed person were. There is no difficulty in accepting that proposition. If the parties entered into the contract of service, say by correspondence and the contract is to be determined with reference to the letters that passed between them, it may be open to the authority to decide the controversy and find out what the terms of the contract with reference to those letters were. But if an employee were to say that his wages were Rs. 100 per month which he actually received as and when they fell due but that he would be entitled to higher wages if his claims to be placed on the higher wages scheme had been recognized and given effect to,that would not in our opinion, be a matter within the ambit of his jurisdiction. The authority has the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages; but the authority has no jurisdiction to determine the question of potential wages. The respondents complaint in the present case comes within the latter illustration. If the respondents claim to be placed on the scheme of higher wages had been. unduly passed over by the appellant, if indeed he had the power to do so, the obvious remedy of the respondent was to approach the higher authorities of the railway administration by way of departmental appeal or revision; but instead of doing that, he has sought his redress by making his claim before the authority under the Act. The question is, has the authority the power to direct the appellant or his superior officers who may have been responsible for the classification, to revise the classification so as to upgrade him from the category of a daily wageearner to that of an employee on the monthly wages scheme. If the respondent had been on the cadre of monthly wages and if the appellant had withheld his rise in wages to which he was automatically entitled, without any orders of his superior officers, be might justly have claimed the redress of his grievance from the authority under the Act, as it would have amounted to an underpayment. But in the present case, on the case as made on behalf of the respondent, orders of the superior officers were necessary to upgrade him from a daily wage-earner to a higher care. The authority under the Act has not been empowered under section 15 to make any such direction to those superior officers. The appellant is responsible to pay the respondent only such wages as are shown in the relevant register of wages presumably maintained by the department under the provisions of the Act, but he cannot be directed to pay the respondent higher wages on the determination by the authority that he should have been placed on the monthly wages scheme.In that view of the matter it is not necessary to go into the merits of the controversy as to what classification as adumbrated by the Railway Workers Classification Tribunal, and adopted by the Railway administration, the second respondent should have been brought under. If that question were open to determination by the Authority, we would have had to remit the case to the Authority to give a fresh opportunity to the parties to adduce all the relevant evidence and then to come to its final conclusions, as it appeared to us during the hearing of the case that all relevant information had not been placed before the Authority. But, as, in our opinion, that is not a matter within its limited jurisdiction, that contingency does notthe reasons given above we allow this appeal, quash the orders of the Authority and of the High Court, but in the special circumstances of this case we make no order as to costs.