Khema Nand Vs. East Indian Rly., Administration Through Divisional Superintendent - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - it may well be said, therefore, not merely that there was no direction but that the application was not even entertained. it may be that the legislature held that if an employee had made good his claim in part he should have a right of appeal as regards the part as to which he had failed but the legislature thought that if he had entirely failed then he had not made out a prima facie case so he should have no right of appeal.orderhamilton, j.1. this is an application in revision against an order of the district judge of moradabad dismissing an appeal on the ground that under the payment of wages act in the circumstances of this case no appeal lay. khemanand, the present applicant, was employed by the e. i. railway and in the year 1934 he drew wages of rs. 120 a month but from the month of march he was suspended and on 9th april 1940 he wag given a post the wages of which were rs. 70. on 2nd april 1941, that is to say almost a year after the order fixing his wages at rs. 70 he made an application under the payment of wages act. the magistrate rejected his application on the ground that it was time-barred, not having been made within six months of the date when the new wages of rs. 70 were fixed. against this order of the magistrate, khemanand went in appeal to the district judge who held that it was not an order to appeal.2. appeals are governed by section 17 and must be preferred within 30 days of the day on which a direction has been made. the employer may appeal if the sum that he has been directed to pay under section 15(3) exceeds rs. 300 and the employed person may appeal if the total amount of wages claimed to have been withheld from him exceeds rupees 50. under section 15(4) a person presenting an application against an employer may be directed to pay a penalty not exceeding rs. 50 if the application is found to be malicious or vexatious. when a direction has been made under this provision the person directed to pay the penalty may appeal. otherwise, there is no right of appeal, any direction made under either sub-section (3) or sub-section (4) of section 15 being final. from the language of section 17 it appears that appeals are allowed when there has been a direction and save as provided in the first part of section 17 directions are final. the learned district judge held that, as in the present case the magistrate passed no direction having found that the application is time-barred, there was no provision in the act for an appeal. in section 15, clause (3) it is when an application has been entertained that the authority which deals with it hears both sides or gives them an opportunity of being heard and after further enquiry, if any, as may be necessary it may direct a 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 deem fit. an order for the payment of compensation is also a direction, for, the section also states that no direction for the payment of compensation shall be made in certain eases. if the application is malicious or vexatious, the authority may make another direction, namely it may direct that a certain penalty should be paid to the employer. it appears from the language of the section that a direction is an order to one side to make a certain payment to the other side. it is obvious that there was no direction to any party in this case for the application was rejected as being time-barred and the parties were not called upon to state their case. it may well be said, therefore, not merely that there was no direction but that the application was not even entertained.3. learned counsel for the applicant has referred me to a case mir mahomed haji umar v. divisional superintendent, n. w. railway ('41) 28 a. i. r. 1941 sind 191. it appears that in that case an application by an employee was entertained but was dismissed on the merits. the decision was questioned by an appeal which was decided by a learned judge of the chief court of sind. he held that although the use of the word 'direction' in section 17 lends some support to the argument that no appeal would lie unless an order of the nature explicitly contemplated by section 15(3) had been made, it would be a remarkable result if an employed person were held to have a right of appeal only if he had obtained an order allowing a part of a claim, and to have no right of appeal if his claim had been rejected in toto, however much it might have been. the learned judge, therefore, had no doubt whatever that the legislature did not intend such a result and that the word 'direction' in section 17 should be taken to include a refusal to make a direction. it may be hard that there should not be an appeal in certain cases, but i find, it difficult to hold that a refusal to make a direction is a direction. it may be that the legislature held that if an employee had made good his claim in part he should have a right of appeal as regards the part as to which he had failed but the legislature thought that if he had entirely failed then he had not made out a prima facie case so he should have no right of appeal. it may be that there would still be a right of suit in certain cases though there are bars of suits specified in section 22. 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 but when the application has been rejected as being time-barred without even entering into the merits i find it quite impossible to hold that there is anything in the act which provides for an appeal. i agree with the decision of the learned district judge and, therefore, reject this application with costs.

Judgment:
ORDER

Hamilton, J.

1. This is an application in revision against an order of the District Judge of Moradabad dismissing an appeal on the ground that under the Payment of Wages Act in the circumstances of this Case no appeal lay. Khemanand, the present applicant, was employed by the E. I. Railway and in the year 1934 he drew wages of Rs. 120 a month but from the month of March he was suspended and on 9th April 1940 he wag given a post the wages of which were Rs. 70. On 2nd April 1941, that is to say almost a year after the order fixing his wages at Rs. 70 he made an application under the Payment of Wages Act. The Magistrate rejected his application on the ground that it was time-barred, not having been made within six months of the date when the new wages of Rs. 70 were fixed. Against this order of the Magistrate, Khemanand went in appeal to the District Judge who held that it was not an order to appeal.

2. Appeals are governed by Section 17 and must be preferred within 30 days of the day on which a direction has been made. The employer may appeal if the sum that he has been directed to pay under Section 15(3) exceeds Rs. 300 and the employed person may appeal if the total amount of wages claimed to have been withheld from him exceeds Rupees 50. Under Section 15(4) a person presenting an application against an employer may be directed to pay a penalty not exceeding Rs. 50 if the application is found to be malicious or vexatious. When a direction has been made under this provision the person directed to pay the penalty may appeal. Otherwise, there is no right of appeal, any direction made under either Sub-section (3) or Sub-section (4) of Section 15 being final. From the language of Section 17 it appears that appeals are allowed when there has been a direction and save as provided in the first part of Section 17 directions are final. The learned District Judge held that, as in the present case the Magistrate passed no direction having found that the application is time-barred, there was no provision in the Act for an appeal. In Section 15, Clause (3) it is when an application has been entertained that the authority which deals with it hears both sides or gives them an opportunity of being heard and after further enquiry, if any, as may be necessary it may direct a 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 deem fit. An order for the payment of compensation is also a direction, for, the section also states that no direction for the payment of compensation shall be made in certain eases. If the application is malicious or vexatious, the authority may make another direction, namely it may direct that a certain penalty should be paid to the employer. It appears from the language of the section that a direction is an order to one side to make a certain payment to the other side. It is obvious that there was no direction to any party in this case for the application was rejected as being time-barred and the parties were not called upon to state their case. It may well be said, therefore, not merely that there was no direction but that the application was not even entertained.

3. Learned Counsel for the applicant has referred me to a case Mir Mahomed Haji Umar v. Divisional superintendent, N. W. Railway ('41) 28 A. I. R. 1941 Sind 191. It appears that in that case an application by an employee was entertained but was dismissed on the merits. The decision was questioned by an appeal which was decided by a learned Judge of the Chief Court of Sind. He held that although the use of the word 'direction' in Section 17 lends some support to the argument that no appeal would lie unless an order of the nature explicitly contemplated by Section 15(3) had been made, it would be a remarkable result if an employed person were held to have a right of appeal only if he had obtained an order allowing a part of a claim, and to have no right of appeal if his claim had been rejected in toto, however much it might have been. The learned Judge, therefore, had no doubt whatever that the Legislature did not intend such a result and that the word 'direction' in Section 17 should be taken to include a refusal to make a direction. It may be hard that there should not be an appeal in certain cases, but I find, it difficult to hold that a refusal to make a direction is a direction. It may be that the Legislature held that if an employee had made good his claim in part he should have a right of appeal as regards the part as to which he had failed but the Legislature thought that if he had entirely failed then he had not made out a prima facie case so he should have no right of appeal. It may be that there would still be a right of suit in certain cases though there are bars of suits specified in Section 22. 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 but when the application has been rejected as being time-barred without even entering into the merits I find it quite impossible to hold that there is anything in the Act which provides for an appeal. I agree with the decision of the learned District Judge and, therefore, reject this application with costs.