PETITIONER: DILBAGH RAI JARRY Vs. RESPONDENT: UNION OF INDIA AND OTHERS DATE OF JUDGMENT05/11/1973 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH KHANNA, HANS RAJ KRISHNAIYER, V.R. CITATION: 1974 AIR 130 1974 SCR (2) 178 1974 SCC (3) 554 CITATOR INFO : E&R 1974 SC1084 (6) RF 1986 SC2045 (67) R 1990 SC1080 (13,14,15,17) ACT: Payment of Wages Act, 1936-S. 15(2)-Limitation when commences- The date on which deduction from wages was made or the date on which, the payment of wages was due to be made. Running allowance whether part of wages. HEADNOTE: The appellant, a Railway Guard, was convicted and sentenced for an offence under s. 509, I.P.C. The High Court uphold his conviction. On appeal this Court set aside.the conviction and acquitted him. In the meanwhile the appel- lant, was dismissed from service with effect from 31st March, 1956. The appellant impugned the order of dismissal in the High Court which held that his dismissal was wholly void and ineffective. Thereupon the appellant was reinstated and was informed that the matter of his back wages for the period between the date of his dismissal and the date of reinstatement would be decided later. By another letter he was informed that this period was treated as leave due. He was paid Rs. 81.51 as his wages for the entire period ending on March 7, 1959. The appellant made an application under s. 15(2) of the Payment of Wages Act, 1936 claiming Rs. 9,016.60 plus ten times the said amount as compensation. In addition, he first claimed 'traveling allowance' but later sought to amend the application by replacing 'traveling allowance by 'running allowance This was rejected by the Prescribed Authority. The Authority allowed a part of the claim but the appellant preferred an appeal to the Appellate Authority under the Act. The Appellate Authority held that the claim was barred by time as limitation had commenced from the date of dismissal from service and not from the date of reinstatement Or the date on which it was decided to treat the period of dismissal as leave due. On the question (i) whether the. claim application filed by the appellant tinder s- 15(2) was time-barred and (ii) whether he was entitled to running allowance. Allowing the appeal, HELD : (i) the first proviso to sub-ss. (2) of s. 15 indicates two alternative starting points for limitation, namely, (i) the date on which deduction from wages was made or (ii) the date on which the payment of the wages was due to be made. [183-A] From a reading of s. 15 it is clear that the legislature has deliberately used, first. in sub-s. (2) and then in sub-s. (3). the expressions "deduction of wages" c and "delay in payment of wages' as two distinct concepts. Terminus a quo (i) in the proviso expressly relates to the deduction of wages, while (ii) is referable to the delayed wages. If both these terminii were always relatable to the same Point of time, then there would be nor point in mentioning terminus a quo (i) and the legislature could have simply said that limitation for a claim under s. 15(2) would always start from the date on which the wages "fall due" or "accrue" as has been done under Article 102 of the Limitation Act which applies only to suits for recovery of wages. The very fact that two distinct starting points of limitation referable to two distinct concepts have been stated in the proviso. shows that the legislature had visualised that the date of deduction of wages and the due date of delayed wages. may not always coincide. Conjunction "or" which in the context means "either" and the phrase "as the 179 case may be" at the end of the proviso are clinching indicate of this interpretation. They are not mere surpluses and must be given their full effect. The legislature is not supposed to indulge in tautology; and when it uses analogous words or phrases in the alternative, each may be presumed to convey a separate and distinct meaning. the choice of either of which may involve the rejection of the other. To hold that the two expressions "wages deducted" and "wages delayed" though used in the alternative. carry the same meaning, and in the proviso are always referable to one and the same point of time, would be contrary to this primary canon of interpretation. (183B-E] Ordinarily where an employee was dismissed on one date and reinstated on another, the deduction of wages may synchronize with the act of reinstatement. In the instant case the deduction did not take place on the date of reinstatement because the order of reinstatement expressly stated that decision with regard to his wages for the period would be taken later. Therefore the deduction would coincide with the decision deducting the wages. Such a decision was taken on February, 18, 1959 and limitation under the first part of the proviso commenced from that date. [183G-H] Jai Chand Sawhney v. Union of India [1963] 3 S.C.R. 642; Divisional Superintendent. Northern Railway v. Pushkar Dutt Sharma (1967] 14, F.L.R. 204; held inapplicable. (ii) Running allowance was counted towards average pay in those cases only where the leave did not exceed one month. Travelling allowance or running allowance was eligible if the officer had travelled or run, not otherwise. it could not be said that running allowance was due to the appellant as part of his wages for the entire period of his inactive service. [185H; 186A] Per Krishra Iyer J. (Concurring) In this country the State is the largest litigant today and the huge expenditure involved makes a big draft on the public exchequer, In the context of expanding dimensions of State activity and responsibility, it is not unfair to expect finer sense and sensibility in its litigation policy, the absence of which in the present case had led the Railways callously and cantankerously to resist an action by its own employee. a small man, by urging a mere technical plea which had been pursued right up to the highest court and had been negatived, It was not right for a welfare State like ours to be Janus-faced and while formulating the humanist project of legal aid to the poor contest the claims of poor employees under it pleading limitation and the like, [186-E] JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1898 of 1967.
Appeal by Special Leave from the Judgment and Order dated
the 4th November, 1965 of the Allahabad High Court in Civil
Miscellaneous Petition No. 2491 of 1965.
Bishan Narain and D. N. Mishra, for the appellant.
S. N. Prasad and S. P. Nayar, for respondents Nos. 1 & 2.
The Judgment of the Court were delivered by-
SARKARIA J.-This appeal by special leave is directed against
the order dated November 4, 1965, of the High Court of
Judicature at Allahabad dismissing the appellant’s writ
petition under Article 226 and 227 of the Constitution in
limine.
The appellant was a Guard ‘C’ Grade in Northern Railway. He
was confirmed in that post in 1952. On April 3, 1955, an
incident took place at Railway Station, Kalka, as a result
of which, he was prosecuted for an offence under s. 509,
Penal Code. The Additional
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District Magistrate, Ambala convicted and sentenced him on
December 29, 1955 to three months simple imprisonment. His
appeal was dismissed by the Court of Session. In Revision,
the High Court of Punjab, on March 5, 1956, maintained his
conviction but reduced the sentence.
On April 2, 1956, the appellant received a communication
from the Divisional Personnel Officer, Northern Railway that
he had been dismissed by the Divisional Superintendent from
service w.e.f. March 31, 1956.
In Appeal by special leave, this Court, set aside the
conviction ,of the appellant and acquitted him by its
judgment dated March 7, 1957. Thereafter, the appellant
filed a writ petition in the High Court of Punjab under
Article 226 of the Constitution impugning the order The High
Court by its judgment, dated of his dismissal.
September 2, 1958, issued the, writ directing the
respondents to treat the dismissal of the appellant wholly
void and ineffective. Pursuant to that direction, on
December 26, 1958 the appellant received a letter from the
Divisional Personnel Officer that he had been reinstated to
the post of Guard ‘C’ Grade and that the matter of his back
wages for the period between the date of his. dismissal and
the date of reinstatement would be decided later on. By
another letter of February 13, 1959, the same officer
informed the appellant that the period from the date, of his
dismissal to the date of his reinstatement would be treated
as leave- due. The appellant, on March 11, 1959, was paid
Rs. 81.51 as his entire wages for the period ending March 7,
1959.
On August 13, 1959, the appellant made an application under
S. 15(2) of the Payment of Wages Act (Act 4 of 1936) (here-
inafter referred to a$ the Act) before the prescribed
authority claim-in-, a sum of Rs. 9015.60 plus 10 times of,
the said amount as compensation from the respondents. In
addition, Traveling Allowance was claimed. Later, an
attempt was made to amend the application and replace
‘Traveling Allowance’ by ‘Running Allowance’. The Authority
did not permit the appellant to do so as- he had failed to
amend in time despite the order of the Court.
The respondents resisted the appellant’s claim on various
grounds including that of limitation. By an order dated
August 7, 1963, the Authority directed respondent No. 1
(Union of India), in its capacity as employer, to refund the
sum of Rs. 4863.20, (plus Rs. 100/- as costs) to the
appellant holding that the same had been illegally deducted
from his wages. The Authority disallowed the remaining
claim including that of the Running Allowance. Against the
order of the Authority, two appeals were carried to the
Appellate Authority (Additional District Judge)-One by the
appellant and the other by the respondents. The Appellate
Authority- held that the appellant’s claim was barred by
time as limitation had commenced from the date of dismissal
from service and not from the date of reinstatement or the
date on which it was decided to treat the period of
dismissal as leave due. It upheld the dismissal of the
appellant’s claim to the Running Allowance, inter alia for
the reason that he had, despite the order of the
181
Authority, failed to amend the petition within the period
indicated in 0.6, R.18 of the Code of Civil Procedure. The
Appellate Authority further found that the Railway
Administration was competent to treat the period of
appellant’s inactive service from April 1, 1956 to February
17, 1959, as leave due and to deduct his wages for that
period in accordance with rule 2044 of the Railway
Establishment Code; and in view of s. 7 (2) (h) of the Act,
no refund of the deducted wages could be allowed. It
further held that in the case of Railway Administration, the
Divisional Superintendent named as Pay Master was res-
ponsible for the payment of wages of the Railway employees,
and consequently, the direction of the Authority requiring
the Union of India to make payment to the claimant was
illegal. In the result, the Appellate Authority allowed the
respondent’s appeal and dismissed the appellant’s claim.
The appellant’s writ petition impugning this order of the
Appellate Authority was, as already stated, dismissed by the
High Court. Hence this appeal.
The first question that falls to be considered is, whether
the claim application filed by the appellant under s. 15(2)
of the Act was time barred?
Mr. Bishan Narain, learned Counsel for the appellant
contends that the case falls under the first part of the
proviso (1) to s. 15(2) which relates to deduction of wages
and limitation would start from March 11, 1959 when the
wages for the period of the appellant’s inactive service
were actually deducted and he was paid Rs. 81.51 only for
the entire period ending March 7, 1959., Even on a stricter
view, according to the learned Counsel, limitation would not
start earlier than the date, February 13, 1959, when
constructive deduction took place and it was decided to
treat the period of his inactive service as leave due (which
meant leave without pay). Since the appellant’s claim
application had been presented within six months of either
of these dates, it was well within time.
Learned Counsel for the respondents does not dispute that
this is a case of deduction of wages. His argument,
however, is that irrespective of whether the case was one of
deduction or of non-payment of wages, the starting point of
limitation would be the same viz., the date on which the
wages fell due or accrued. The argument is that the
concepts of ‘deducted wages’ and .’delayed wages’ are so
integrated with each other that the events relatable to them
always synchronise furnishing the same cause of action and
the same start of limitation. It is pointed out that the
wages of a Railway employee fall due every month; wages of
one month being payable by the 10th of the succeeding month.
Since the dismissal of the Appellant was declared void and
non-est by the Punjab High Court-it is urged-his right to
claim wages continued to accrue every month even during the
period of Ills dismissal. In the view propounded by the
learned Counsel, limitation for making the application under
s. 1 5 (2) started from January 3, 1956, the date of the
dismissal and the application made by the appellant
182
more than three years thereafter, was clearly time-barred.
Reference has been made to this Court’s decision in Jai
Chand Sawhney v. Union of India(1).
We shall presently see that while the contentions of the
learned Counsel for the respondents cannot, those canvassed
by the learned Counsel for the appellant must prevail. .
The material part of s. 15 of the Act reads
“15(1)
15(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 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)
Provided that every such application shall be
presented within (twelve months) from the date
on which the deduction from the 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 twelve
months when die applicant satisfies the
authority that he had sufficient cause for
not making the application within such period.
15(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
section 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 the payment of
such compensation as the authority may think
fit, not exceeding ten times the amount
deducted in the former case and not exceeding
twenty-five rupees in the latter, and even if
the amount deducted or the delayed wages are
paid before the disposal of the application
direct the payment of such compensation, as
the authority, may think fit, not exceeding
twenty-five rupees :……
The question of limitation turns on an interpretation of the
first proviso to sub-s. (2) of S. 15. This proviso ex facie
indicates two
1. [1969] 3 S.C.C. 642.
183
alternative termini a quo for limitation, namely : (i) the
date on which deduction from wages was made, or, (ii) the
date, on which the payment of the wages was due to be made.
From a reading of s. 15, it is clear that the legislature
has deliberately used, first, in sub-s. (2), and then in
sub-s. (3) the expressions “deduction of wages” and “delay
in payment of wages” as two distinct concepts. Terminus a
quo (i) in the proviso expressly relates to the deduction of
wages, while (ii) is referable to the delayed wages. if both
these terminii were always relatable to the same point of
time, then there would be no point in mentioning terminus a
quo (i), and the, Legislature could have simply said that
limitation for a claim under s. 15(2) would always start
from the date on which the wages “fall due” or “accrue” as
has been done under Art. 102 of the Limitation Act which
applies only to suits for recovery of wages. The very fact
that two distinct starting points of limitation referable to
two distinct concepts, have been stated in the proviso,
shows that the Legislature had visualised that the date of
deduction of wages and the due date of delayed wages, may
not always coincide. Conjunction “or”, which in the context
means “either”, and the phrase “as the case may be” at the
end of the Proviso are clinching-indicia of this
interpretation. They are not mere suplusages and must be
given their full effect. The Legislature is not supposed to
indulge in tautology; and when it uses analogous words or
phrases in the alternative, each maybe presumed to convey a
separate and distinct meaning, the choice of either of which
may involve the rejection of the other. To hold that the
two expressions “wages deducted”, and “wages delayed”,
though used in the alternative, carry the same meaning, and
in the Proviso are always referable to one and the same’
point of time, would be contrary to this primary canon of
interpretation
“Deduction from wages” has not been defined in the Act.
Some illustrations of such deductions are, however, to be
found in ss. 7 and 13. One of them in s. 7 (2) (b) is
“deductions for absence from duty” which indicates that
such deduction can be a total deduction, also. That is to
say “deduction from wages” may be ‘the same thing as
“deduction of wages”. The deduction in the instant case is
akin to this category covering the entire deficiency for the
period of absence, the only difference being that here, the
appellant absence from duty was involuntary. Such absence
in official parlance is euphemistically called “in active
service’, if the employee is later on reinstated.
The point to be considered further is when did such
deduction ofwages take place ? Ordinarily in a case like
the present where the employee was dismissed on one date and
reinstated on a later date, the deduction of wages may
synchronise with the act of reinstatement. But on the
peculiar and admitted facts of this case, the deduction did
not take place on the date of reinstatement (26-12-1958)
because the order of reinstatement expressly stated that
“decision with regard to his wages to be paid for that
period will be taken later on”. In the case in hand,
therefore, the “deduction’ will coincide with the decision
impliedly or expressly deducting the wages. Such a decision
was taken
184
and put in the course of a communication to the appellant on
February 18, 1959 whereby he was informed that the period
from 3-1-1956 to 17-3-1959, would be treated as ‘leave due’
Which, it is conceded, meant leave without pay. Thus,
deduction from his wages for the entire period of his
‘inactive service’ took place on February 18, 1959. and
limitation under the first part of the Proviso commenced
from that date. The application was made on August 13,
1959, within six months of that date and was thus within
time.
in Jai Chand Sawhney’s case (supra), the, interpretation of
the first Proviso to s. 15(2) never came up for
consideration. Therein, the Court was concerned only with
the construction of the expression “accrue/due” in Art. 102
of the Limitation Act, 1908 which does not govern
applications under S. 15(2) of the Act. That case,
therefore, is of no assistance in determining the precise
issue before us.
It may be observed in passing that the, rule in Sheo Prasad
v. Additional District Judge,(1) relied on by the Additional
District Judge, was not followed by the same High Court in
Ram Kishore Sharma v. Additional District Judge
Saharanpur(2), as is had ceased to be good law in view _of
the decision of this Court in Divisional Superintendent,
Northern Railway v. Pushkar Dutt Sharma(3).
In Pushkar Dutt’s case (supra), the application under s. 15
(2) of the Act was filed within six months of the date on
which the dismissal of the employee was set aside by the
court in second appeal. The employee’s application would
have been within time irrespective of whether his case was
treated as one of “wages deducted” or “wages delayed”.
Therefore, the necessity of examining the comparative mean-
ing and distinction between “deduction from wages” or “delay
in payment of wages due” and the two alternative starting
points of limitation relatable to these expressions, did not
arise in that case.
In the light of the above discussion, we reverse the finding
of the Additional District Judge and hold that the
application filed by the appellant under S. 15(2) of the Act
having been made within six months of the date of deduction
from his wages, was within time.
The second ground on which the order of the, Additional
District Judge proceeds, is that since the deduction of the
wages for the period of his inactive service from April 1,
1956 to February 17, 1959, had been made under the order of a co
mpetent authority passed in accordance with rule 2044
of the Railway Establishment Code, in view of S. 7 (2) (h)
of the Act no order could be made for the refund of the
deducted amount. Both the learned Counsel before us are
agreed that in view of the pronouncement of this Court in
Devendra Pratap Narain ‘Rai; Sharma v. State of U.P.(4),
this ground is not sustainable. In Sharma’s case (supra),
this Court was construing rule 54 of the U.P. Government
Fundamental Rules, the language of which is substantially
the same as that of rule 2044 of the Railway Establishment
Code. It
(1) A.I.R. 1962 All. 144.
(2) [1959] All Law Journal p. 225.
(3) [1967] 14, F.L.R. 204.
(4) [1962] Supp. S.C.R. 315.
185
was held therein, that r. 54 enables the State Government to
fix the pay of a public servant when his dismissal is set
aside in departmental appeal. But that rule has no
application to cases in which dismissal is declared invalid
by a decree of civil court and he is, in consequence,
reinstated.
Mr. Bishan Narain next contends that the prescribed
Authority had wrongly disallowed the claim of the appellant
to “Running Allowance’ which he had mis-described as
“Traveling Allowance” in his claim application. The point
pressed into argument is, that once the Authority had
allowed the appellant to amend his application for
converting the claim of “Traveling Allowance” into “Running
Allowance”, it had no discretion left thereafter to prevent
him from carrying out the amendment, on the technical ground
that the period indicated by Order 6, Rule 18, Code of Civil
Procedure, for this purpose, has expired. The Code of Civil
Procedure, it is urged, does not govern amendment of
applications under s. 15(2) of the Act.
The contention is untenable. While it is true that Rule s
17 and 18 of Order 6 of the-Code do not, in terms, apply to
amendment of an application under s. 15(2), the Authority is
competent to devise, consistently with the provisions of the
Act and the Rules made thereunder, its own procedure based
on general principles of justice, equity and good
conscience. One of such principles is that delay defeats
equity. The Authority found that the applicant was guilty
of gross negligence. He took no steps whatever to carry out
the amendment for several months after the order permitting
the amendment, and thereafter, when the case was at the
final stage, he suddenly woke up, as it were, from slumber,
and sought to amend his application. In the circumstances,
the Authority rightly refused to put a premium on this delay
and laxity on the part of the appellant. In the view we
take on the claim to running allowance we need not pronounce
finally on whether an amendment to the relief once granted
requires to be formally carried out in the petition, as in a
pleading in court, less rigidity being permissible in quasi-
judicial proceedings.
Mr. Bishan Narain further contends that Running Allowance
was a part of the pay or substantive wages. In support of
this argument he has invited our attention to rule 2003 of
the Railway Establishment Code, clause 2 of which defines
‘average pay’. According to the second proviso to this
clause in the case, of staff entitled to running allowance,
average pay for the purpose of leave salary-shall include
the average running allowance earned during the 12 months
immediately preceding the month in which a Railway servant
proceeds on leave subject to a maximum of 75 per cent of
average pay for the said period, the average running
allowance once determined remaining In operation during the-
remaining part of the financial year 1 cases of leave not
exceeding one month. The crucial words, which have been
underlined. show that such Running Allowance is counted
towards ‘average pay’ in those cases only where the leave,
does not exceed one month. It cannot, therefore, be said
that Running Allowance was due to the appellant as part of
his wages for the entire period of his inactive ser-
186
vice. Traveling allowance or running allowance is eligible
if the officer has traveled or run, not otherwise. We
therefore negative this contention.
For the foregoing reasons, we allow this appeal, set aside
the order of the Appellate Authority and restore that of the
Prescribed Authority. The appellant shall have his costs
throughout.
KRISHNA IYER, J.-The judgment just delivered has my full
concurrence but I feel impelled to make a few observations
not on the merits but on governmental disposition to
litigation, the present case being symptomatic of a serious
deficiency. In this country the State is the largest
litigant to-day and the huge expenditure involved makes a
big draft on the public exchequer. In the context of
expanding dimensions of State activity and responsibility,
is it unfair to expect finer sense and sensibility in its
litigation policy, the absence of which, in the present
case, he led the Railway callously and cantankerously to
resist an action by its own employee, a small man, by urging
a mere technical plea which has been pursued right up to the
summit court here and has been negatived in the judgment
just pronounced ? Instances of this type are legion as is
evidenced by the fact that then Law Commission of India in a
recent report(1) on amendments to the Civil Procedure Code
has suggested the deletion of s. 80, finding that wholesome
provision hardly ever utilised by Government, and has gone
further to provide a special procedure for government
litigation to highlight the need for an activist policy of
just settlement of claims where the State is a party. It is
not right for a welfare’ State like ours to be Janus-faced,
and while formulating the humanist project of legal aid to
the poor, contest the claims of poor employees under it
pleading limitation and the like. That the tendency is
chronic flows from certain observations I had made in the
Kerala High Court decision(2) which I may usefully excerpt
here
“The State, under our Constitution, undertakes
economic activities in a vast and widening
public sector and inevitably gets involved in
disputes with private individuals. But it
must be remembered that the State is no
ordinary party trying to win a case against
one of its own citizens by hook or by crook;
for, the State’s interest is to meet honest
claims, vindicate a substantial defence and
never to score a technical point or overreach
a weaker party to avoid a just liability or
secure an unfair advantage, simply because
legal devices provide such an opportunity.
The State is. a virtuous litigant and looks
with unconcern on immoral forensic successes
so that if on the merits the case is weak,
government shows a willingness to settle the
dispute regardless of prestige and other
lesser motivations which move, private parties
to fight
(1) Law Commission of India, .54th Report-
Civil Procedure Code.
(2) P.P. Abu backer v. The Union of India :
A.I.R. 1972 Ker. 103 : 107 para 5.
187
in court. The lay-out on litigation costs and
executive time by the State and its agencies
is so staggering these days because of the
large amount of litigation in which it is
involved that a positive and wholesome policy
of cutting back on the volume of law suits by
the twin methods of not being tempted into
forensic show-downs where a reasonable
adjustment is feasible and ever offering to
extinguish a pending proceeding on just terms,
giving the legal mentors of government some
initiative and authority in this behalf. I am
not indulging in any judicial homily but only
echoing the dynamic national policy on State
litigation evolved at a Conference of Law
Ministers of India way back in 1957. This
second appeal strikes me as an instance of
disregard of that policy.”
All these words from the Bench, hopefully addressed to a
responsive Government, may, if seasonable reactions follow,
go a long way to avoidance of governmental litigiousness and
affirmance of the image of the State as deeply concerned
only in Justic-Social Justice. The phyrric victory of the
poor appellant in this case is a sad justification, for the
above observations.
P.B.R. Appeal allowed-
188