KUTTAPPA S Vs. DHARAMCHAND

JUDGEMENT

(1.) This revision petition is directed against the judgment and decree passed by the Civil Judge, Chickmagalur, in R.A. No. 57 of 1962. By the aforesaid judgment the learned civil Judge reversed the judgment and decree passed by the Munsif, Chickmagalur, in Original Suit No. 283 of 1961 on his file, decreeing the suit filed by the petitioner for the recovery of a sum of Rs. 365.75, being the arrears of wages due from the respondent.

(2.) The petitioner filed the suit for the recovery of a sum of Rs. 724.75 from the respondent on the ground that he was entitled to the said sum of money towards his salary as a writer from April 1, 1961 to May 18, 1961. The petitioner alleged in his plaint that he had been employed as a writer by the respondent in Guddadamane estate on a monthly salary of Rs. 225 on or from December 10, 1960 up to May 18, 1961; that the respondent had deducted a sum of Rs. 134 from out of his salary and that he had not been paid his salary from April 1, 1961 to May 18, 1961. He alleged that in spite of a registered notice issued to him the respondent had failed to pay him the amount and had thereby compelled him to the necessity of filing the suit. He also stated that he was entitled to one month's salary in lieu of notice of termination of service. Then petitioner accordingly claimed a sum of Rs. 724.75 from the respondent. The respondent resisted the claim of the petitioner. He admitted that the petitioner was working under him as a writer on or from December 10, 1960, on a monthly salary of Rs. 225. According to him the petitioner was on probation till the end of March 1961, and his services were terminated by efflux of time. He also stated that services of the petitioner were terminated by the end of March 1961 and therefore, he was not entitled to any salary of the months of April and May 1961. He deposited a sum of Rs. 161 which, according to him was the amount that the petitioner was entitled to claim and get from him towards arrears of his salary. The parties adduced their evidence to establish their respective contentions. The learned Munsif found that the respondent had paid all the arrears until the end of March 1961. He also found that the petitioner had taken an advance of Rs. 60 from the respondent and was liable to account for the same, and after giving deduction to these sums he decreed the suit filed by the petitioner for Rs. 365.75 with proportionate costs. Being dissatisfied with this judgment an decree passed by the Munsif, Chickmagalur, the respondent filed an appeal to the Court of the Civil Judge, Chickmagalur, in R.A. No. 57 of 1962. For the first time, it was alleged in one of the grounds in the memorandum of appeal presented to the Court of the Civil Judge that the suit filed by the petitioner was barred under S. 22(d), of the Payment of Wages Act. The learned Civil Judge who heard the arguments advanced on behalf of the parties held that the conclusion reached by the learned Munsif that the contention of the respondent that the petitioner was a probationer till the end of March 1961, and that, therefore, he was entitled to terminate his services without assigning any reason is untenable. The learned Judge further held that the petitioner continued to work as a writer in the estate of the respondent from April 1, 1961 up to May 8, 1961, and that he was entitled to claim and get his salary for the said period. But the learned Judge was of the opinion that the suit filed by the petitioner for recovery of wages for the period between April 1, 1961 and May 18, 1961, was not maintainable in a civil Court and that S. 22(d) of the Payment of Wages Act was a bar. According to the learned Judge, the only course open to the petitioner was to make an application before the authority prescribed in the Payment of Wages Act for ascertainment and payment of wages for the period between April 1, 1961 and May 18, 1961, and he could not file a suit. When the decision of the Bombay High Court in A. R. Sarin v. B. C. Patil and another [1951 - II L.L.J. 188] was cited in support of the contention of the petitioner that the course open for him in the circumstances, particularly when the respondent stated that he had terminated his services on March 31, 1961, was to file a suit for the recovery of the wages in a civil Court and an application under S. 15 of the Payment of Wages Act was not maintainable, the learned Judge, relying upon some observations in the said judgment held that the suit filed by the petitioner was not maintainable. Having come to this conclusion, the learned Judge allowed the appeal filed by the respondent, set aside the judgment and decree passed by the Munsif and dismissed the suit. But he did not allow any cost to the respondent as legal objection was taken up by him only in the appeal for the first time and directed the parties to bear their own costs throughout. It is the legality and correctness of this judgment passed by the learned Civil Judge in the appeal that is challenged in this revision petition.

(3.) It is urged by Sri Puttaswami, the learned counsel for the petitioner, that the learned Civil Judge was entirely wrong in his view that the decision in A. R. Sarin v. B. C. Patil and another [1951 - II L.L.J. 188] (vide supra) supported his conclusion that the only course open to the petitioner was to file an application for ascertainment and payment of wages before the authority prescribed in the Payment of Wages Act under S. 15 of the said Act and that S. 22(d) of the said Act is a bar for a suit in a civil Court. Sri Puttaswami read to me the decision of the Bombay High Court in A. R. Sarin v. B. C. Patil and another [1951 - II L.L.J.188] (vide supra). Having heard the same I am fully convinced that his contention is well-founded. The learned Civil Judge, as rightly contended by Sri Puttaswami, has omitted to quote the passage in which the point at issue in this case was considered. It is not necessary for me to quote the observations of the Chief Justice of the Bombay High Court in the same decision, as all the decisions of the Bombay High Court to which the learned Chief Justice has referred and many other decision of the other High Courts have been fully considered by this Court in Codialabail Press v. Monappa (K.) [1963 - I L.L.J. 638]. After reviewing the entire case-law on the point, Somnath Ayyar, J., has held that adjudication on the legality of the retrenchment of an employee or the legality of an order of dismissal is not within the domain of the authority under the Payment of Wages Act, and an adjudication into the competence of the employer to retire his employees is wholly outside the bounds of the jurisdiction created by S. 15 of the Payment of Wages Act. His lordship has referred to the several decisions of the Bombay High Court in A. R. Sarin v. B. C. Patil and another [1951 - II L.L.J. 188] (vide supra); Mushran v. Patil ;, AIR1952 Bom 235 , (1951 )53 BOMLR1009 , ILR1952 Bom 995 ; Anthony Sabastin Almeda v. R. M. T. Taylor [1957 - I L.L.J. 452] and Viswanath Tukaram v. General Manager, Central Railway [1957 - II L.L.J. 250] and also the decision in Ambica Mills Company, Ltd. v. N. S. Bhatt [1961 - I L.L.J. 1], and held that the application filed by an ex-employee of a firm for payment of wages contending that the termination of the services amounted to a retrenchment and as such entitled him to claim to be paid retrenchment compensation was not maintainable under S. 15 of the Payment of Wages Act and that the only course for the employee was to file a suit in the ordinary civil Court for recovery of wages, if any, due to him. It is not necessary for me to deal with the question elaborately in view of the decision of this Court referred to above.