S P AWATE Vs. C P FERNANDES

JUDGEMENT

(1.) THIS is an application for review of a decision of this Court on a writ application directed against the decision of the Payment of Wages Authority, and the decision which is sought to be reviewed followed an earlier decision in Thillai Natarajan v. Fernandes, Special Civil Appln. No. 950 of 1956 which was decided on 3-7-1956 (Bom ). It is hardly necessary to state that the powers of review enjoyed by this Court are very limited powers and we have had occasions to point out that when a decision is challenged on the ground that there is an error apparent on the face of the record, the error contemplated is an error so manifest, so clear, that no Court would permit such an error to remain on the record. The error is not an error which could be demonstrated by a process of ratiocination, nor would it be correct to say that when two views on a question of law are possible and the Court has taken one view, the fact that the other view is a more acceptable view would render the first view an error apparent on the face of the record. It is with these reservations and limitations that we must approach the point of view put forward before me by Mr. Singhvi.

(2.) THE facts briefly are that the petitioner in this case was a ticket collector employed by the railway authorities on the 14th January 1948 on wages which amounted with all the allowances to Rs. 150-8-0, and on the 27th August 1955 he was served with a charge-sheet and suspended and during the period of suspension he was paid only Rs. 104, and the petitioner thereupon filed an application before the Payment of Wages Authority claiming the difference between his contractual wages and the wages which he was being paid by the railway authorities. It was not disputed before us in that case that the payment made by the railway authorities was according to the rules. The rules dealt with a case of suspension and what a railway servant was entitled to when he was under suspension. Nor was it disputed that these rules formed part of the Railway Code which was enacted under the authority of the Governor General. What was argued before us was that the Payment of Wages Act should prevail over the rules framed by the railway authorities and that if the Payment of Wages Act prohibited the deduction of any amount from the wages of an employee, then the railway authorities could not deduct any part of the wages even if the rules in the Railway Code permitted them to do so. This argument was considered and rejected by us and both the argument and the reason for its rejection appear in the reported judgment of 58 Bom LR 821. In rejecting the argument we considered the scheme of the Government of India Act and we pointed out that under section 241 (2) power was conferred upon the Governor General to make rules with regard to the conditions of service of persons serving His Majesty in a civil capacity in India, and we also took the view that under sub-section (4) of section 241 power was given to the Legislature to regulate the conditions of service, but looking to the language of sub section (4) that power was intended to be exercised after the Government of India Act Came into force and it did not deal with any laws passed by the Legislature prior to the coming into force of the Government of India Act. Having taken that view we pointed out that the Payment of Wages Act came into force on the 28th March 1937 and the Government of India Act came into force on the 1st April 1937. Therefore, as far as the Government of India Act was concerned, the rules which were to be framed by the Governor General were to prevail over any legislation prior to the passing of the Government of India Act, even assuming that that legislation dealt with the subject of regulation of service of railway employees. Having come to that conclusion, we turned to the Indian Constitution to point out that the provisions of law in the Government of India Act and the Indian Constitution Were not parallel and we referred to Article 313 of the Constitution. That Article provided:

(3.) NOW, the main attack made by Mr. Singhvi against the judgment is that in saying that there was no provision in the Government of India Act corresponding to Article 313 of the Constitution we had overlooked an obvious provision in the Government of India Act and in overlooking this provision we were guilty of an error which should not be permitted to remain on the record, and what is pointed out is that there is section 276 of the Go vernment of India Act which corresponds to Article 313. Turning to section 276 it provides: