DIVISIONAL PERSONNEL OFFICER Vs. MAHAVIR PRASAD

JUDGEMENT

(1.) THIS revision application is directed against the judgment of the learned Additional District Judge, Ganganagar dated 14-8-1971 whereby he affirmed the direction given by the S. D. M. Karanpur (the authority under the Payment of Wages Act) on 3-7 1967.

(2.) THE non-applicant Mahavir Prasad an employee of Northern Railway was serving as head booking clerk at the relevant time. He came to be removed by the then D. T. S. Delhi with effect from 1-8-1949. He felt aggrieved by the order of removal and consequently filed a suit in the court of Sub-Judge, Gurgaon seeking the declaration that the order of removal was illegal and void and also for Rs. 300/- only in respect of wages. This suit was decreed by the Sub-Judge Gurgaon on 24-3-1958. THE Railway Administration went in appeal but the Additional District Judge Ganganagar rejected the same on 21-7-1959. THE non-applicant Mahavir Prasad was reinstated on 8. 11. 1959 as Assistant Booking Clerk at Sardargarh Railway Station. After resuming the duty the non-applicant made several representations to the concerning authorities for payment of his wages from 1. 8. 1949 to 7. 11. 1959. THE Railway Administration by a letter dated 18. 11. 1964 informed the non-applicant that his claim of wages from the period earlier to July 1959 was barred by time and that the payment for the period from July 1959 to 7. 11. 1959 was under dispute as the non-applicant worked as casual labour during that period which fact will have to be determined later on. Dissatisfied, the non-applicant moved an application under sec. 15 of the Payment of Wages Act, hereinafter called the Act on 1-4-1965 for the recovery of wages amounting to Rs. 17,099/- alleging that the same were illegally deducted and also for the compensation to the tune of ten times of the deducted wages. Yet another application was moved by the non-applicant Mahavir Prasad on 2 4-1965 wherein he claimed more wages in the sum of Rs. 3244/- and also for compensation. Both the applications were ex-facie barred by time and therefore applications for condonation of delay were made along with the claim applications.

(3.) IT was next contended that so far as the claim of wages upto the date of the institution of the suit i. e. upto 28-9-1955 is concerned it is barred by the provisions of O. 2 r. 2 C. P. C. The argument of the learned counsel in this behalf is that when the non-applicant filed the suit for declaration and recovery of Rs. 300/- it was open to him to claim the entire arrears of wages which had fallen due upto that time, as the cause of action for declaration and the claim for the arrears of wages was one and the same. This having not been done, submitted the learned counsel, it is now no more open to the non-applicant to claim for the wages antecedent to the institution of the suit. Mr. Ganpatsingh on the other side contended that the non-applicant could not have claimed wages unless and until order of dismissal was declared void as the cause of action will only accrue to him in regard to the deducted wages after the order has been declared void. In this regard learned counsel has invited my attention to D. R. Jerry vs. Union of India (7) I have given my careful consideration to this submission but I am of the opinion that this case is clearly distinguishable. In this case their Lordships of the Supreme Court were considering the starting point of limitation for the purpose of a application under sec 15 (2) of the Act and in that connection it was observed that so far as claim for wages under sec. 15 of the Act was concerned that could only be filed after the order of dismissal has been declared void and not otherwise. But that dictum of their Lordships does not apply to the case where a suit has been filed for declaration that the order of dismissal was void alongwith a fraction of the amount of wages. Indeed in such a case the plaintiff was under an obligation to claim the arrears of wages upto the date of the suit In this connection I may refer to P. J. Lartius vs. Superintendent (14) In that case suit was filed for declaring the order for dismissal to be void but no arrears of the salary from the date of dismissal to the date of suit were claimed. The dismissal order was declared void and therefore application under sec. 15 of the Act was filed thereafter. The plea was raised that the suit for arrears of salary antecedent to the period of the institution of suit was barred by the provisions of O. 2 r. 2 C. P. C. IT was held that it was necessary for the plaintiff to claim in the same suit all the reliefs arising out of the same cause of action unless he postponed claiming the relief with the leave of the court. Their Lordships further held that the suit for the recovery of salary as a consequential relief in a suit for declaration was not barred by sec. 22 of the Act as upto that stage the arrears of salary could not have been recovered by an application under sec. 10 of the Act on the basis of deducted wages. But when the arrears of salary could be claimed in previous suit but were not claimed it could not equally be recovered under sec. 15 of the Act in regard to such wages as the same would be barred under the general principle contained in O. 2 r. 2 C P. C To the same effect is the view in Union of India Ms Jagnnath (15) In Works Manager (Carriage) Western Rly. vs. Smt. Kulwanti Devi (S. B. Civil Revision No: 371 of 1968 decided on 10. 1. 1972) Hon'ble Jagat Narayan, J. has held that a claim for wages could have been made in the suit for declaration and ii it had not been done then the claim had become barred under O. 2 R. 2 CPC. This authority appears to be in conformity with the dictum laid down in State of Bihar vs. Abdul Majid (!0) where it has been held that the employee could lay claim for the arrears of salary along with the declaration suit as consequential relief. Mr. Ganpat Singh pointed out that Lodha J. in Madan Kumar vs. Surendra Kumar (17) had taken the view that the Payment of Wages Authority had exclusive jurisdiction to determine wages by virtue of sec. 22 of the Act and as a natural corollary suit for wages could not have been filed by the non-applicant. In my view the authority is clearly distinguishable as it relates to a case of the recovery of wages simpliciter. IT is true that when the claim is for wages simpliciter then that could be only made before the Payment of wages Authority under sec. 22 of the Act. But that proposition does not hold good when the suit is filed for declaration and consequential relief of arrears of salary are claimed. I am, therefore, of the view that the claim for wages of the non-applicant so far as they relate to the period prior to 28-9-1955 is barred by the provisions of O. 2 R. 2 CPC. and both the courts below had usurped the jurisdiction to entertain a claim which was barred by the provisions of O. 2 r. 2 CPC. and have thus exercised jurisdiction with material irregularity or illegality.