{"id":155139,"date":"1973-11-05T00:00:00","date_gmt":"1973-11-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dilbagh-rai-jarry-vs-union-of-india-and-others-on-5-november-1973"},"modified":"2018-02-20T03:03:04","modified_gmt":"2018-02-19T21:33:04","slug":"dilbagh-rai-jarry-vs-union-of-india-and-others-on-5-november-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dilbagh-rai-jarry-vs-union-of-india-and-others-on-5-november-1973","title":{"rendered":"Dilbagh Rai Jarry vs Union Of India And Others on 5 November, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dilbagh Rai Jarry vs Union Of India And Others on 5 November, 1973<\/div>\n
Equivalent citations: 1974 AIR 130, \t\t 1974 SCR (2) 178<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nDILBAGH RAI JARRY\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND OTHERS\n\nDATE OF JUDGMENT05\/11\/1973\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nKHANNA, HANS RAJ\nKRISHNAIYER, V.R.\n\nCITATION:\n 1974 AIR  130\t\t  1974 SCR  (2) 178\n 1974 SCC  (3) 554\n CITATOR INFO :\n E&R\t    1974 SC1084\t (6)\n RF\t    1986 SC2045\t (67)\n R\t    1990 SC1080\t (13,14,15,17)\n\n\nACT:\nPayment\t  of  Wages  Act,  1936-S.   15(2)-Limitation\twhen\ncommences-  The date on which deduction from wages was\tmade\nor  the\t date on which, the payment of wages was due  to  be\nmade.\nRunning allowance whether part of wages.\n\n\n\nHEADNOTE:\nThe appellant, a Railway Guard, was convicted and  sentenced\nfor  an offence under s. 509, I.P.C. The High  Court  uphold\nhis   conviction.   On\tappeal\tthis  Court  set   aside.the\nconviction  and acquitted him.\tIn the meanwhile the  appel-\nlant,  was  dismissed  from service with  effect  from\t31st\nMarch, 1956.  The appellant impugned the order of  dismissal\nin  the High Court which held that his dismissal was  wholly\nvoid   and   ineffective.   Thereupon  the   appellant\t was\nreinstated  and\t was informed that the matter  of  his\tback\nwages  for the period between the date of his dismissal\t and\nthe  date  of  reinstatement would  be\tdecided\t later.\t  By\nanother letter he was informed that this period was  treated\nas  leave due.\tHe was paid Rs. 81.51 as his wages  for\t the\nentire period ending on March 7, 1959.\nThe  appellant\tmade an application under s.  15(2)  of\t the\nPayment\t of Wages Act, 1936 claiming Rs. 9,016.60  plus\t ten\ntimes  the  said amount as compensation.   In  addition,  he\nfirst  claimed\t'traveling allowance' but  later  sought  to\namend  the application by replacing 'traveling allowance  by\n'running  allowance  This  was rejected\t by  the  Prescribed\nAuthority.   The Authority allowed a part of the  claim\t but\nthe appellant preferred an appeal to the Appellate Authority\nunder the Act.\tThe Appellate Authority held that the  claim\nwas barred by time as limitation had commenced from the date\nof  dismissal  from  service  and  not\tfrom  the  date\t  of\nreinstatement  Or the date on which it was decided to  treat\nthe period of dismissal as leave due.\nOn the question (i) whether the. claim application filed  by\nthe  appellant\ttinder\ts- 15(2) was  time-barred  and\t(ii)\nwhether he was entitled to running allowance.\nAllowing the appeal,\nHELD  :\t (i)  the  first proviso to sub-ss.  (2)  of  s.  15\nindicates  two alternative starting points  for\t limitation,\nnamely, (i) the date on which deduction from wages was\tmade\nor  (ii) the date on which the payment of the wages was\t due\nto be made. [183-A]\nFrom a reading of s. 15 it is clear that the legislature has\ndeliberately  used, first. in sub-s. (2) and then in  sub-s.\n(3).  the expressions \"deduction of wages\" c and  \"delay  in\npayment of wages' as two distinct concepts.  Terminus a\t quo\n(i)  in\t the proviso expressly relates to the  deduction  of\nwages,\twhile  (ii) is referable to the delayed\t wages.\t  If\nboth these terminii were always relatable to the same  Point\nof  time,  then\t there\twould be  nor  point  in  mentioning\nterminus a quo (i)  and\t the legislature could\thave  simply\nsaid that limitation for a claim under s.    15(2)     would\nalways start from the date on which the wages \"fall due\"  or\n\"accrue\"  as  has  been\t done  under  Article  102  of\t the\nLimitation  Act which applies only to suits for recovery  of\nwages.\t The very fact that two distinct starting points  of\nlimitation  referable  to two distinct\tconcepts  have\tbeen\nstated\tin  the\t proviso. shows\t that  the  legislature\t had\nvisualised  that the date of deduction of wages and the\t due\ndate of delayed wages. may not always coincide.\t Conjunction\n\"or\" which in the context means \"either\" and the phrase\t \"as\nthe\n179\ncase  may  be\"\tat  the end of\tthe  proviso  are  clinching\nindicate   of  this  interpretation.   They  are  not\tmere\nsurpluses  and\tmust  be  given\t their\tfull  effect.\t The\nlegislature  is\t not supposed to indulge in  tautology;\t and\nwhen it uses analogous words or phrases in the\talternative,\neach  may  be  presumed to convey a  separate  and  distinct\nmeaning.  the  choice  of either of which  may\tinvolve\t the\nrejection  of the other.  To hold that the  two\t expressions\n\"wages\tdeducted\"  and \"wages delayed\" though  used  in\t the\nalternative. carry the same meaning, and in the proviso\t are\nalways referable to one and the same point of time, would be\ncontrary to this primary canon of interpretation. (183B-E]\nOrdinarily  where an employee was dismissed on one date\t and\nreinstated   on\t  another,  the\t deduction  of\t wages\t may\nsynchronize  with the act of reinstatement.  In the  instant\ncase  the  deduction  did  not take place  on  the  date  of\nreinstatement  because the order of reinstatement  expressly\nstated that decision with regard to his wages for the period\nwould  be  taken  later.   Therefore  the  deduction   would\ncoincide  with\tthe decision deducting the  wages.   Such  a\ndecision  was  taken on February, 18,  1959  and  limitation\nunder  the  first part of the proviso  commenced  from\tthat\ndate. [183G-H]\nJai  Chand  Sawhney v. Union of India<\/a> [1963] 3\tS.C.R.\t642;\nDivisional Superintendent.  Northern Railway v. Pushkar Dutt\nSharma (1967] 14, F.L.R. 204; held inapplicable.\n(ii) Running  allowance was counted towards average  pay  in\nthose  cases only where the leave did not exceed one  month.\nTravelling  allowance or running allowance was\teligible  if\nthe  officer had travelled or run, not otherwise.  it  could\nnot be said that running allowance was due to the  appellant\nas  part of his wages for the entire period of his  inactive\nservice. [185H; 186A]\nPer  Krishra Iyer J. (Concurring) In this country the  State\nis  the\t largest  litigant today and  the  huge\t expenditure\ninvolved  makes a big draft on the public exchequer, In\t the\ncontext\t of  expanding\tdimensions  of\tState  activity\t and\nresponsibility,\t it is not unfair to expect finer sense\t and\nsensibility  in its litigation policy, the absence of  which\nin  the\t present  case had led the  Railways  callously\t and\ncantankerously\tto resist an action by its own employee.  a\nsmall  man, by urging a mere technical plea which  had\tbeen\npursued\t right\tup  to\tthe  highest  court  and  had\tbeen\nnegatived, It was not right for a welfare State like ours to\nbe Janus-faced and while formulating the humanist project of\nlegal  aid to the poor contest the claims of poor  employees\nunder it pleading limitation and the like, [186-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1898 of 1967.
\nAppeal\tby Special Leave from the Judgment and\tOrder  dated
\nthe 4th November, 1965 of the Allahabad High Court in  Civil
\nMiscellaneous Petition No. 2491 of 1965.
\nBishan Narain and D. N. Mishra, for the appellant.
\nS. N. Prasad and S. P. Nayar, for respondents Nos. 1 & 2.
\nThe Judgment of the Court were delivered by-
\nSARKARIA J.-This appeal by special leave is directed against
\nthe  order  dated  November 4, 1965, of the  High  Court  of
\nJudicature  at\tAllahabad dismissing  the  appellant’s\twrit
\npetition  under Article 226 and 227 of the  Constitution  in
\nlimine.\n<\/p>\n
The appellant was a Guard ‘C’ Grade in Northern Railway.  He
\nwas  confirmed in that post in 1952.  On April 3,  1955,  an
\nincident  took place at Railway Station, Kalka, as a  result
\nof  which,  he was prosecuted for an offence under  s.\t509,
\nPenal Code.  The Additional
\n180<\/span>
\nDistrict  Magistrate, Ambala convicted and sentenced him  on
\nDecember 29, 1955 to three months simple imprisonment.\t His
\nappeal was dismissed by the Court of Session.  In  Revision,
\nthe  High Court of Punjab, on March 5, 1956, maintained\t his
\nconviction but reduced the sentence.\n<\/p>\n
On  April  2, 1956, the appellant received  a  communication
\nfrom the Divisional Personnel Officer, Northern Railway that
\nhe had been dismissed by the Divisional Superintendent\tfrom
\nservice w.e.f. March 31, 1956.\n<\/p>\n
In  Appeal  by\tspecial leave, this  Court,  set  aside\t the
\nconviction  ,of\t the  appellant and  acquitted\thim  by\t its
\njudgment  dated\t March 7, 1957.\t Thereafter,  the  appellant
\nfiled  a  writ petition in the High Court  of  Punjab  under
\nArticle 226 of the Constitution impugning the order The High
\nCourt\tby   its   judgment,   dated   of   his\t  dismissal.
\nSeptember   2,\t 1958,\tissued\tthe,  writ   directing\t the
\nrespondents  to treat the dismissal of the appellant  wholly
\nvoid  and  ineffective.\t  Pursuant  to\tthat  direction,  on
\nDecember  26, 1958 the appellant received a letter from\t the
\nDivisional Personnel Officer that he had been reinstated  to
\nthe post of Guard ‘C’ Grade and that the matter of his\tback
\nwages for the period between the date of his. dismissal\t and
\nthe  date  of reinstatement would be decided later  on.\t  By
\nanother\t letter\t of  February 13,  1959,  the  same  officer
\ninformed the appellant that the period from the date, of his
\ndismissal to the date of his reinstatement would be  treated
\nas  leave- due.\t The appellant, on March 11, 1959, was\tpaid
\nRs. 81.51 as his entire wages for the period ending March 7,
\n1959.\n<\/p>\n
On August 13, 1959, the appellant made an application  under
\nS. 15(2) of the Payment of Wages Act (Act 4 of 1936)  (here-
\ninafter\t referred  to  a$ the  Act)  before  the  prescribed
\nauthority claim-in-, a sum of Rs. 9015.60 plus 10 times\t of,
\nthe  said amount as compensation from the  respondents.\t  In
\naddition,  Traveling  Allowance\t was  claimed.\t Later,\t  an
\nattempt\t was  made  to amend  the  application\tand  replace
\n‘Traveling Allowance’ by ‘Running Allowance’.  The Authority
\ndid  not permit the appellant to do so as- he had failed  to
\namend in time despite the order of the Court.
\nThe  respondents resisted the appellant’s claim\t on  various
\ngrounds\t including  that of limitation.\t By an\torder  dated
\nAugust\t7,  1963, the Authority directed  respondent  No.  1
\n(Union of India), in its capacity as employer, to refund the
\nsum  of\t Rs.  4863.20,\t(plus Rs. 100\/-\t as  costs)  to\t the
\nappellant holding that the same had been illegally  deducted
\nfrom  his  wages.  The Authority  disallowed  the  remaining
\nclaim including that of the Running Allowance.\tAgainst\t the
\norder  of  the Authority, two appeals were  carried  to\t the
\nAppellate  Authority (Additional District Judge)-One by\t the
\nappellant  and the other by the respondents.  The  Appellate
\nAuthority-  held  that the appellant’s claim was  barred  by
\ntime as limitation had commenced from the date of  dismissal
\nfrom  service and not from the date of reinstatement or\t the
\ndate  on  which\t it  was decided  to  treat  the  period  of
\ndismissal  as  leave due.  It upheld the  dismissal  of\t the
\nappellant’s  claim to the Running Allowance, inter alia\t for
\nthe reason that he had, despite the order of the
\n181<\/span>
\nAuthority,  failed to amend the petition within\t the  period
\nindicated in 0.6, R.18 of the Code of Civil Procedure.\t The
\nAppellate   Authority\tfurther\t found\tthat   the   Railway
\nAdministration\t was  competent\t to  treat  the\t period\t  of
\nappellant’s inactive service from April 1, 1956 to  February
\n17,  1959,  as leave due and to deduct his  wages  for\tthat
\nperiod\t in  accordance\t with  rule  2044  of  the   Railway
\nEstablishment Code; and in view of s. 7 (2) (h) of the\tAct,
\nno  refund  of\tthe deducted wages  could  be  allowed.\t  It
\nfurther held that in the case of Railway Administration, the
\nDivisional  Superintendent  named  as Pay  Master  was\tres-
\nponsible for the payment of wages of the Railway  employees,
\nand  consequently, the direction of the Authority  requiring
\nthe  Union  of\tIndia to make payment to  the  claimant\t was
\nillegal. In the result, the Appellate Authority allowed\t the
\nrespondent’s  appeal  and dismissed the\t appellant’s  claim.
\nThe  appellant’s writ petition impugning this order  of\t the
\nAppellate Authority was, as already stated, dismissed by the
\nHigh Court.  Hence this appeal.\n<\/p>\n
The  first question that falls to be considered is,  whether
\nthe claim application filed by the appellant under s.  15(2)
\nof the Act was time barred?\n<\/p>\n
Mr.  Bishan  Narain,  learned  Counsel\tfor  the   appellant
\ncontends  that\tthe case falls under the first part  of\t the
\nproviso (1) to s. 15(2) which relates to deduction of  wages
\nand  limitation\t would start from March 11,  1959  when\t the
\nwages  for  the period of the appellant’s  inactive  service
\nwere  actually deducted and he was paid Rs. 81.51  only\t for
\nthe entire period ending March 7, 1959., Even on a  stricter
\nview, according to the learned Counsel, limitation would not
\nstart  earlier\tthan  the  date,  February  13,\t 1959,\twhen
\nconstructive  deduction\t took place and it  was\t decided  to
\ntreat the period of his inactive service as leave due (which
\nmeant  leave  without  pay).  Since  the  appellant’s  claim
\napplication had been presented within six months of  either
\nof these dates, it was well within time.\n<\/p>\n
Learned\t Counsel for the respondents does not  dispute\tthat
\nthis  is  a  case  of deduction\t of  wages.   His  argument,
\nhowever, is that irrespective of whether the case was one of
\ndeduction or of non-payment of wages, the starting point  of
\nlimitation  would  be the same viz., the date on  which\t the
\nwages  fell  due  or  accrued.\tThe  argument  is  that\t the
\nconcepts  of  ‘deducted wages’ and .’delayed wages’  are  so
\nintegrated with each other that the events relatable to them
\nalways\tsynchronise furnishing the same cause of action\t and
\nthe  same start of limitation.\tIt is pointed out  that\t the
\nwages  of a Railway employee fall due every month; wages  of
\none month being payable by the 10th of the succeeding month.
\nSince  the dismissal of the Appellant was declared void\t and
\nnon-est\t by the Punjab High Court-it is urged-his  right  to
\nclaim wages continued to accrue every month even during\t the
\nperiod\tof  Ills dismissal.  In the view propounded  by\t the
\nlearned Counsel, limitation for making the application under
\ns.  1  5 (2) started from January 3, 1956, the date  of\t the
\ndismissal and the application made by the appellant
\n182<\/span>
\nmore  than three years thereafter, was clearly\ttime-barred.
\nReference  has\tbeen made to this Court’s  decision  in\t Jai
\nChand Sawhney v. Union of India<\/a>(1).\n<\/p>\n
We  shall  presently see that while the contentions  of\t the
\nlearned Counsel for the respondents cannot, those  canvassed
\nby the learned Counsel for the appellant must prevail. .\n<\/p>\n
\t      The  material part of s. 15 of the  Act  reads
\n\t\t\t    “15(1)
\n\t      15(2) Where contrary to the provisions of this
\n\t      Act any deduction has been made from the wages
\n\t      of an employed person or any payment of  wages
\n\t      has been delayed, such person himself, or\t any
\n\t      legal  practitioner  or  any  official  of   a
\n\t      registered  trade union authorised in  writing
\n\t      to  act on his behalf, or any Inspector  under
\n\t      this Act, or any other person acting with\t the
\n\t      permission  of the authority  appointed  under
\n\t      sub-section  (1) may apply to  such  authority
\n\t      for a direction under sub-section (3)
\n\t      Provided that every such application shall  be
\n\t      presented within (twelve months) from the date
\n\t      on which the deduction from the wages was made
\n\t      or  from the date on which the payment of\t the
\n\t      wages was due to be made, as the case may be:
\n\t      Provided\tfurther that any application may  be
\n\t      admitted\tafter  the  said  period  of  twelve
\n\t      months   when  die  applicant  satisfies\t the
\n\t      authority\t that he had  sufficient cause\tfor
\n\t      not making the application within such period.
\n\t      15(3)  When any application under\t sub-section
\n\t      (2)  is entertained, the authority shall\thear
\n\t      the applicant and the employer or other person
\n\t      responsible  for\tthe payment of\twages  under
\n\t      section  3,  or give them\t an  opportunity  of
\n\t      being heard, and, after such further  inquiry’
\n\t      (if  any)\t as may be necessary,  may,  without
\n\t      prejudice\t to any other penalty to which\tsuch
\n\t      employer or other person is liable under\tthis
\n\t      Act, direct the refund to the employed  person
\n\t      of the amount deducted, or the payment of\t the
\n\t      delayed  wages, together with the\t payment  of
\n\t      such  compensation as the authority may  think
\n\t      fit,  not\t exceeding  ten\t times\tthe   amount
\n\t      deducted in the former case and not  exceeding
\n\t      twenty-five rupees in the latter, and even  if
\n\t      the  amount deducted or the delayed wages\t are
\n\t      paid  before the disposal of  the\t application
\n\t      direct  the payment of such  compensation,  as
\n\t      the  authority, may think fit,  not  exceeding
\n\t      twenty-five rupees :……\n<\/p>\n
The question of limitation turns on an interpretation of the
\nfirst proviso to sub-s. (2) of S. 15.  This proviso ex facie
\nindicates two\n<\/p>\n
1. [1969] 3 S.C.C. 642.\n<\/p>\n
183<\/span><\/p>\n
alternative  termini a quo for limitation, namely : (i)\t the
\ndate  on which deduction from wages was made, or,  (ii)\t the
\ndate, on which the payment of the wages was due to be made.
\nFrom  a reading of s. 15, it is clear that  the\t legislature
\nhas  deliberately  used, first, in sub-s. (2), and  then  in
\nsub-s.\t(3) the expressions “deduction of wages” and  “delay
\nin  payment of wages” as two distinct concepts.\t Terminus  a
\nquo (i) in the proviso expressly relates to the deduction of
\nwages, while (ii) is referable to the delayed wages. if both
\nthese  terminii were always relatable to the same  point  of
\ntime, then there would be no point in mentioning terminus  a
\nquo  (i), and the, Legislature could have simply  said\tthat
\nlimitation  for\t a claim under s. 15(2) would  always  start
\nfrom  the date on which the wages “fall due” or “accrue”  as
\nhas been done under Art. 102 of the Limitation\tAct  which
\napplies only to suits for recovery of wages.  The very\tfact
\nthat two distinct starting points of limitation referable to
\ntwo  distinct  concepts, have been stated  in  the  proviso,
\nshows  that the Legislature had visualised that the date  of
\ndeduction  of wages and the due date of delayed\t wages,\t may
\nnot always coincide.  Conjunction “or”, which in the context
\nmeans  “either”, and the phrase “as the case may be” at\t the
\nend   of   the\tProviso\t are   clinching-indicia   of\tthis
\ninterpretation.\t  They are not mere suplusages and  must  be
\ngiven their full effect.  The Legislature is not supposed to
\nindulge\t in tautology; and when it uses analogous  words  or
\nphrases in the alternative, each maybe presumed to convey  a
\nseparate and distinct meaning, the choice of either of which
\nmay  involve the rejection of the other.  To hold  that\t the
\ntwo  expressions  “wages  deducted”,  and  “wages  delayed”,
\nthough used in the alternative, carry the same meaning,\t and
\nin  the\t Proviso are always referable to one and  the  same’
\npoint  of time, would be contrary to this primary  canon  of
\ninterpretation
\n“Deduction from wages” has not been defined in the Act.
\nSome  illustrations of such deductions are, however,  to  be
\nfound  in  ss.\t7 and 13. One of them in s.  7\t(2)  (b)  is
\n“deductions  for  absence from duty”  which  indicates\tthat
\nsuch  deduction can be a total deduction, also. That  is  to
\nsay  “deduction\t from  wages”  may be  ‘the  same  thing  as
\n“deduction  of wages”. The deduction in the instant case  is
\nakin to this category covering the entire deficiency for the
\nperiod of absence, the only difference being that here,\t the
\nappellant   absence from duty was involuntary. Such  absence
\nin  official parlance is euphemistically called\t “in  active
\nservice’, if the employee is later on reinstated.
\n The  point to be considered further is\t when  did  such
\ndeduction ofwages take place ? Ordinarily in a case  like
\nthe present where the employee was dismissed on one date and
\nreinstated  on\ta later date,  the deduction  of  wages\t may
\nsynchronise  with  the\tact of\treinstatement.\tBut  on\t the
\npeculiar and admitted facts of this case, the deduction\t did
\nnot  take  place on the date of\t reinstatement\t(26-12-1958)
\nbecause\t the  order of reinstatement expressly\tstated\tthat
\n“decision  with\t regard\t to his wages to be  paid  for\tthat
\nperiod\twill   be  taken later on”. In\tthe  case  in  hand,
\ntherefore,  the “deduction’ will coincide with the  decision
\nimpliedly or expressly deducting the wages. Such a  decision
\nwas taken
\n184<\/span>
\nand put in the course of a communication to the appellant on
\nFebruary  18, 1959 whereby he was informed that\t the  period
\nfrom 3-1-1956 to 17-3-1959, would be treated as ‘leave\tdue’
\nWhich,\tit  is\tconceded, meant leave  without\tpay.   Thus,
\ndeduction  from\t his  wages for the  entire  period  of\t his
\n‘inactive  service’  took place on February  18,  1959.\t and
\nlimitation  under  the first part of the  Proviso  commenced
\nfrom  that  date.  The application was made  on\t August\t 13,
\n1959,  within  six months of that date and was\tthus  within
\ntime.\n<\/p>\n
in Jai Chand Sawhney’s case (supra), the, interpretation  of
\nthe   first   Proviso  to  s.  15(2)  never  came   up\t for
\nconsideration.\t Therein, the Court was concerned only\twith
\nthe construction of the expression “accrue\/due” in Art.\t 102
\nof   the  Limitation  Act,  1908  which\t does\tnot   govern
\napplications  under  S.\t 15(2)\tof  the\t Act.\tThat   case,
\ntherefore,  is of no assistance in determining\tthe  precise
\nissue before us.\n<\/p>\n
It may be observed in passing that the, rule in Sheo  Prasad
\nv. Additional District Judge,(1) relied on by the Additional
\nDistrict  Judge, was not followed by the same High Court  in
\nRam   Kishore\tSharma\t v.   Additional   District    Judge
\nSaharanpur(2),\tas is had ceased to be good law in view\t _of
\nthe  decision  of this Court in\t Divisional  Superintendent,
\nNorthern Railway v. Pushkar Dutt Sharma(3).
\nIn Pushkar Dutt’s case (supra), the application under s.  15
\n(2)  of the Act was filed within six months of the  date  on
\nwhich  the  dismissal of the employee was set aside  by\t the
\ncourt  in second appeal.  The employee’s  application  would
\nhave  been within time irrespective of whether his case\t was
\ntreated\t as  one  of “wages deducted”  or  “wages  delayed”.
\nTherefore, the necessity of examining the comparative  mean-
\ning and distinction between “deduction from wages” or “delay
\nin  payment of wages due” and the two  alternative  starting
\npoints of limitation relatable to these expressions, did not
\narise in that case.\n<\/p>\n
In the light of the above discussion, we reverse the finding
\nof   the  Additional  District\tJudge  and  hold  that\t the
\napplication filed by the appellant under S. 15(2) of the Act
\nhaving been made within six months of the date of  deduction
\nfrom his wages, was within time.\n<\/p>\n
The  second  ground on which the order\tof  the,  Additional
\nDistrict Judge proceeds, is that since the deduction of\t the
\nwages  for the period of his inactive service from April  1,
\n1956 to February 17, 1959, had been made under the order  of a\tco
\nmpetent authority passed in accordance with rule  2044
\nof  the Railway Establishment Code, in view of S. 7 (2)\t (h)
\nof  the\t Act no order could be made for the  refund  of\t the
\ndeducted  amount.   Both the learned Counsel before  us\t are
\nagreed\tthat in view of the pronouncement of this  Court  in
\nDevendra  Pratap  Narain ‘Rai; Sharma v. State\tof  U.P.(4),
\nthis  ground is not sustainable.  In Sharma’s case  (supra),
\nthis  Court  was construing rule 54 of the  U.P.  Government
\nFundamental  Rules, the language of which  is  substantially
\nthe  same as that of rule 2044 of the Railway  Establishment
\nCode.  It
\n(1)  A.I.R. 1962 All. 144.\n<\/p>\n
(2)  [1959] All Law Journal p. 225.\n<\/p>\n
(3)  [1967] 14, F.L.R. 204.\n<\/p>\n
(4)  [1962] Supp.  S.C.R. 315.\n<\/p>\n
185<\/span><\/p>\n
was held therein, that r. 54 enables the State Government to
\nfix  the pay of a public servant when  his dismissal is\t set
\naside  in  departmental\t appeal.   But\tthat  rule  has\t  no
\napplication to cases in which dismissal is declared  invalid
\nby  a  decree  of civil court and  he  is,  in\tconsequence,
\nreinstated.\n<\/p>\n
Mr.   Bishan  Narain  next  contends  that  the\t  prescribed
\nAuthority had wrongly disallowed the claim of the  appellant
\nto  “Running  Allowance’  which\t he  had  mis-described\t  as
\n“Traveling  Allowance” in his claim application.  The  point
\npressed\t into  argument\t is, that  once\t the  Authority\t had
\nallowed\t  the  appellant  to  amend  his   application\t for
\nconverting the claim of “Traveling Allowance” into  “Running
\nAllowance”, it had no discretion left thereafter to  prevent
\nhim from carrying out the amendment, on the technical ground
\nthat the period indicated by Order 6, Rule 18, Code of Civil
\nProcedure, for this purpose, has expired.  The Code of Civil
\nProcedure,  it\tis  urged,  does  not  govern  amendment  of
\napplications under s. 15(2) of the Act.\n<\/p>\n
The  contention is untenable.  While it is true that Rule  s
\n17 and 18 of Order 6 of the-Code do not, in terms, apply  to
\namendment of an application under s. 15(2), the Authority is
\ncompetent to devise, consistently with the provisions of the
\nAct  and the Rules made thereunder, its own procedure  based
\non   general   principles  of  justice,\t equity\t  and\tgood
\nconscience.   One of such principles is that  delay  defeats
\nequity.\t  The Authority found that the applicant was  guilty
\nof gross negligence.  He took no steps whatever to carry out
\nthe amendment for several months after the order  permitting
\nthe  amendment,\t and thereafter, when the case\twas  at\t the
\nfinal stage, he suddenly woke up, as it were, from  slumber,
\nand sought to amend his application.  In the  circumstances,
\nthe Authority rightly refused to put a premium on this delay
\nand  laxity  on the part of the appellant.  In the  view  we
\ntake on the claim to running allowance we need not pronounce
\nfinally\t on whether an amendment to the relief once  granted
\nrequires to be formally carried out in the petition, as in a
\npleading in court, less rigidity being permissible in quasi-
\njudicial proceedings.\n<\/p>\n
Mr.  Bishan Narain further contends that  Running  Allowance
\nwas a part of the pay or substantive wages.  In support\t of
\nthis  argument he has invited our attention to rule 2003  of
\nthe  Railway Establishment Code, clause 2 of  which  defines
\n‘average  pay’.\t  According to the second  proviso  to\tthis
\nclause in the case, of staff entitled to running  allowance,
\naverage\t pay for the purpose of leave salary-shall  include
\nthe  average running allowance earned during the  12  months
\nimmediately  preceding the month in which a Railway  servant
\nproceeds  on  leave subject to a maximum of 75 per  cent  of
\naverage\t pay  for  the\tsaid  period,  the  average  running
\nallowance once determined remaining In operation during the-
\nremaining  part of the financial year 1\t cases of leave\t not
\nexceeding  one\tmonth.\tThe crucial words, which  have\tbeen
\nunderlined.  show  that such Running  Allowance\t is  counted
\ntowards\t ‘average pay’ in those cases only where the  leave,
\ndoes  not exceed one month.  It cannot, therefore,  be\tsaid
\nthat  Running Allowance was due to the appellant as part  of
\nhis wages for the entire period of his inactive ser-\n<\/p>\n
186<\/span><\/p>\n
vice.  Traveling allowance or running allowance is  eligible
\nif  the\t officer  has traveled or run,\tnot  otherwise.\t  We
\ntherefore negative this contention.\n<\/p>\n
For  the foregoing reasons, we allow this appeal, set  aside
\nthe order of the Appellate Authority and restore that of the
\nPrescribed  Authority.\tThe appellant shall have  his  costs
\nthroughout.\n<\/p>\n
KRISHNA\t IYER,\tJ.-The judgment just delivered has  my\tfull
\nconcurrence  but I feel impelled to make a few\tobservations
\nnot  on\t the  merits  but  on  governmental  disposition  to
\nlitigation, the present case being symptomatic of a  serious
\ndeficiency.   In  this\tcountry the  State  is\tthe  largest
\nlitigant  to-day and the huge expenditure involved  makes  a
\nbig  draft  on\tthe public exchequer.\tIn  the\t context  of
\nexpanding  dimensions of State activity and  responsibility,
\nis  it unfair to expect finer sense and sensibility  in\t its
\nlitigation  policy,  the absence of which,  in\tthe  present
\ncase,  he  led the Railway callously and  cantankerously  to
\nresist an action by its own employee, a small man, by urging
\na mere technical plea which has been pursued right up to the
\nsummit\tcourt  here and has been negatived in  the  judgment
\njust  pronounced ? Instances of this type are legion  as  is
\nevidenced by the fact that then Law Commission of India in a
\nrecent\treport(1) on amendments to the Civil Procedure\tCode
\nhas suggested the deletion of s. 80, finding that  wholesome
\nprovision  hardly ever utilised by Government, and has\tgone
\nfurther\t to  provide  a\t special  procedure  for  government
\nlitigation  to highlight the need for an activist policy  of
\njust settlement of claims where the State is a party.  It is
\nnot right for a welfare’ State like ours to be\tJanus-faced,
\nand  while formulating the humanist project of legal aid  to
\nthe  poor,  contest the claims of poor\temployees  under  it
\npleading  limitation  and the like.  That  the\ttendency  is
\nchronic\t flows from certain observations I had made  in\t the
\nKerala\tHigh Court decision(2) which I may usefully  excerpt
\nhere
\n\t      “The State, under our Constitution, undertakes
\n\t      economic\tactivities  in a vast  and  widening
\n\t      public sector and inevitably gets involved  in
\n\t      disputes\twith  private individuals.   But  it
\n\t      must  be\tremembered  that  the  State  is  no
\n\t      ordinary\tparty trying to win a  case  against
\n\t      one  of its own citizens by hook or by  crook;
\n\t      for,  the State’s interest is to\tmeet  honest
\n\t      claims,  vindicate a substantial\tdefence\t and
\n\t      never to score a technical point or  overreach
\n\t      a\t weaker party to avoid a just  liability  or
\n\t      secure  an  unfair advantage,  simply  because
\n\t      legal  devices  provide such  an\topportunity.
\n\t      The  State is. a virtuous litigant  and  looks
\n\t      with  unconcern on immoral forensic  successes
\n\t      so  that\tif on the merits the case  is  weak,
\n\t      government  shows a willingness to settle\t the
\n\t      dispute  regardless  of  prestige\t and   other
\n\t      lesser motivations which move, private parties
\n\t\t\t    to fight
\n\t      (1)   Law\t Commission of India, .54th  Report-
\n\t      Civil Procedure Code.\n<\/p>\n
\t      (2)  P.P. Abu backer v. The Union of  India  :\n<\/p>\n
\t      A.I.R. 1972 Ker. 103 : 107 para 5.\n<\/p>\n
\t       187<\/span><\/p>\n
\t      in court.\t The lay-out on litigation costs and
\n\t      executive\t time by the State and its  agencies
\n\t      is  so  staggering these days because  of\t the
\n\t      large  amount  of litigation in  which  it  is
\n\t      involved that a positive and wholesome  policy
\n\t      of cutting back on the volume of law suits  by
\n\t      the  twin\t methods of not being  tempted\tinto
\n\t      forensic\t show-downs   where   a\t  reasonable
\n\t      adjustment  is feasible and ever\toffering  to
\n\t      extinguish a pending proceeding on just terms,
\n\t      giving  the legal mentors of  government\tsome
\n\t      initiative and authority in this behalf.\tI am
\n\t      not indulging in any judicial homily but\tonly
\n\t      echoing  the dynamic national policy on  State
\n\t      litigation  evolved  at a\t Conference  of\t Law
\n\t      Ministers\t of  India way back in\t1957.\tThis
\n\t      second  appeal  strikes me as an\tinstance  of
\n\t      disregard of that policy.”\n<\/p>\n
All  these  words from the Bench, hopefully addressed  to  a
\nresponsive Government, may, if seasonable reactions  follow,
\ngo a long way to avoidance of governmental litigiousness and
\naffirmance  of\tthe image of the State as  deeply  concerned
\nonly  in Justic-Social Justice.\t The phyrric victory of\t the
\npoor appellant in this case is a sad justification, for\t the
\nabove observations.\n<\/p>\n
P.B.R.\t\t     Appeal allowed-\n188<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dilbagh Rai Jarry vs Union Of India And Others on 5 November, 1973 Equivalent citations: 1974 AIR 130, 1974 SCR (2) 178 Author: R S Sarkaria Bench: Sarkaria, Ranjit Singh PETITIONER: DILBAGH RAI JARRY Vs. RESPONDENT: UNION OF INDIA AND OTHERS DATE OF JUDGMENT05\/11\/1973 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-155139","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDilbagh Rai Jarry vs Union Of India And Others on 5 November, 1973 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dilbagh-rai-jarry-vs-union-of-india-and-others-on-5-november-1973\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dilbagh Rai Jarry vs Union Of India And Others on 5 November, 1973 - 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