E THILLAI NATARAJAN Vs. C P FERNANDES

JUDGEMENT

(1.) THE petitioner was employed as an abstract clerk in the office of the Goods Superintendent of the Central Railway at Wadi Bunder in Bombay. On August 27, 1955, he was served with a notice to show cause why his service should not be terminated. This notice was served upon him under the Railway Services (Safeguarding of National Security) Rules, 1954. On September 5, 1955, the petitioner was suspended from service. The monthly wages to which the petitioner was entitled wore Rs. 170-8-0 and the railway authority paid to him for the month of September when he was suspended a sum of Rs. 123-12-0. The petitioner made an application to the authority under the Payment of Wages Act for the balance of the amount, viz. Rs. 4612-0. The authority dismissed the application and the petitioner has come here under Article 227 of the Constitution.

(2.) MR. Singhvi has strenuously argued before us that the Authority under the Payment of Wages Act has failed to give effect to a clear decision of this Court reported in Mushran v. Patil According to Mr. Singhvi that case lays down on identical facts that notwithstanding the suspension of the petitioner there was a subsisting contract of master and servant between the petitioner and the railway authority, and as under that contract the petitioner was entitled to his wages, the attempt on the part of the railway authority to deduct anything from those wages was an illegal deduction within the meaning of the Payment of Wages Act and the railway authority was liable to pay to the petitioner his full wages and his application should have been granted by the Authority under the Payment of Wages Act. Turning to that judgment, a significant feature to which pointed attention was drawn was the fact that notwithstanding the suspension the railway authority had issued an order upon the petitioner there to the effect that he should remain in headquarters and report to his officer-in-charge every day until his ease was finally decided, and we pointed out at p. 1014 that whatever might be the correct position in other cases of suspension, what we had to consider and decide was what was the position on the facts of that case, and on the facts of that ease we came to the conclusion that the respective obligations of master and servant continued under the contract, that the employee was under an obligation to serve, and if the employee was under an obligation to serve, the employer was under an obligation to pay wages. The Payment of Wages Authority in that case had also held that the rules of the railway authority with regard to the payment of subsistence allowance were bad as offending against the Payment of Wages Act and counsel for the railway authority wanted to argue that that decision of the Authority was erroneous in law. We refused to go into that question as in our opinion there was no error apparent on the face of the record, and we made it clear that we expressed no opinion whatever on the contention that the Authority had erroneously come to that conclusion, as that conclusion was arrived at with jurisdiction. Therefore, this particular question as to whether the rules which offend against the Payment of Wages Act were bad was left undecided and that question now directly comes up before us for decision.

(3.) IT may be pointed out that there are certain distinguishing features in this case. In this ease we do not find an order issued upon the petitioner similar to the order that was issued in that ease and which drew our pointed attention. It is true as Mr. Singhvi pointed out, that we have here a directive issued by the railway board that an employee under suspension may not leave his headquarters except with the permission of the competent authority, and Mr. Singhvi has also drawn attention to certain rules which provide that a railway servant who is suspended holds a lien on his post while under suspension, that no leave should be granted to any railway servant under suspension, that a railway servant under suspension is not permitted to retire, and that a railway servant under suspension is hot entitled to subsistence allowance if he leaves his jurisdiction. From these rules and the directive issued by the railway board Mr. Singhvi wanted to argue that the position in the case before us was the same as the position that arose in Mushran's case and that here too, notwithstanding the order of suspension, the contract of employment was not suspended and the relation of master and servant continued to subsist between the petitioner and the railway authority and that the petitioner was under an obligation to render services to the railway authority and the railway authority was under a corresponding obligation to pay wages. In view of the conclusion we have arrived at on the question of the rules framed by the Governor General, in our opinion it is unnecessary to decide this aspect of the ease. Even if the contract of employment subsisted, if the law provided that the employer was only liable to pay not the full wages but the wages fixed by the rules, then the employee could not fall back upon the Payment of Wages Act unless the payment of Wages Act prevailed over the rules regulating the conditions of service between the railway authority and the employee. It is clear and it is not disputed that the rules framed by the Governor General under s. 241 (2) of the Government of India Act regulate the conditions of service between the petitioner and the railway authority with regard to his suspension and with regard to the subsistence allowance permissible to him while he is under suspension. It is also not disputed that the railway authority has paid to the petitioner subsistence allowance according to these rules. Therefore, the only question is whether these rules can prevail over the special provisions contained in the payment of Wages Act with regard to the liability of an employer to pay wages.