C S LAL CENTRAL RAILWAY Vs. SHAIK BADSHA

JUDGEMENT

(1.) THIS is a petition for a writ, order or direction under Art. 226 of the Constitution directing respondent 2 to hear and determine, on merits, certain applications preferred to him by the petitioners under the Payment of Wages Act, 1936, and which applications were dismissed by him on a preliminary objection that he had no jurisdiction to entertain the same. In the petition the petitioners have also asked for a mandate under Art. 227 of the Constitution, but learned counsel for the petitioners gave up the petition so far as it was based under that article.

(2.) THE petitioners at present are, and in partition days were, low-paid employees in the Parel Workshops of the Central Railway (formerly G. I. P. Railway ). Respondent 1 is the person responsible for the payment of wages to the petitioners under S. 3 of the Payment of Wages Act, 1936. Respondent 2 is the authority constituted under the Payment of Wages Act. The petitioners made applications for refund of certain illegal deductions alleged to have been made in their wages by respondent 1. A large number of applications of the same nature were preferred before respondent 2 who disposed of the same by one common judgment. Before respondent 2 an objection by way of demurrer was raised on behalf of the employers. The contention was that respondent 2 had no jurisdiction to entertain any of the applications, and was based on the ground that the claims were not covered by the Payment of Wages Act. Respondent 2 accepted the plea and dismissed the applications on the demurrer. The applications having been so dismissed, it will be only necessary for me to state the petitioners' case very briefly and the facts set out by them in their applications which are not disputable.

(3.) IN their applications the petitioners averred that the petitioners were ordered by the employers, the opposite party, in or about June 1947, to exercise an option whether they desired to serve in the then proposed State of Pakistan or the rest of India. The petitioners were informed by the General Manager of the railway of the railway that such of the employees as were unable to make up their mind finally within the period prescribed should fill in a form provisionally, as a further opportunity would be afforded to them to make a final choice within six months from the date of transfer of power. They were clearly given to understand by the General Manager of the railway that the terms and conditions of service were guaranteed by the representatives of both the future Governments and that a provisional choice, if exercised, would not in any way prejudice the employees' seniority or other conditions of service. The petitioners duly exercised a provisional choice for serving in Pakistan and were thereupon transferred to serve in that country. Within the period of six months prescribed therefor the petitioners exercised their final option to serve permanently in the rest of India. They were re-transferred to India and on arrival in Bombay they reported for duty to the General Manager of the railway who asked them to report to the Chief Mechanical Engineer. The latter officer recorded the fact of the petitioners' re-transfer and their reporting for duty but did not allow them to resume duty at once. The petitioners regularly called on the General Manager and the Chief Mechanical Engineer who did not respond to their request to take them back on duty. They were not called back to duty till after a lapse of several months. The petitioners were not paid any wages for the period between their re-transfer to India and the date when they were actually taken back on duty. They made several petitions to the opposite party, respondent 1, the Chief Mechanical Engineer, he General Manager and the Secretary of the Railway Department at Delhi to accede to their request that they should be paid wages for that period as they were in law employees of the railway but had been kept out from actual duty. The opposite party, however, refused to pay them wages for the said period, with the result that the petitioners preferred a number of applications to respondent 2 under the Payment of Wages Act. The applications having been dismissed on a demurrer respondent 2 was bound to base his decision on the footing of the correctness of the facts set out by the petitioners in their applications. The only question that arose for his determination on the preliminary objection was whether the petitioners were, in point of law, employees of the railway during the period complained of and, as such, entitled to claim benefit under the Payment of Wages Act.