WP/12019/2002 of DIVL.RAILWAY MNGR VIJAYAWADAAND2 ORS Vs ASST.COMMR.OF LABOUR ELURUAND 12 ORS on 24 December 2008

COMMON JUDGMENT:-

This batch of Writ Petitions is filed by the Union of India,represented by the Divisional Railway Manager (Commercial),South Central Railway, Vijayawada and other functionaries of SouthCentral Railway, wherein orders dated 26-10-1995 in A.S.No.61 of1986 on the file of the Additional District Judge, West Godavari,Eluru and the various consequential orders passed by the Authorityunder the Payment of Wages Act, 1936 & Deputy Commissioner ofLabour, Eluru, (for short “the Authority”) in favour of the respondentsfor payment of withheld wages are assailed.

-Background facts:

In order to adjudicate the various issues raised in thesecases, it is necessary to refer to the facts in detail.

The Railway Porters working in Eluru Railway Stationapproached the Authority with two different applications – one forthe withheld wages for the period from January, 1983 to August,1984 and the other for the similar claim for the period fromSeptember, 1984 to August, 1985. The said two applications wererejected by the Authority by order dated 31-7-1986 on the groundthat the said claims were beyond the jurisdiction of the saidauthority as they pertained to claims for potential wages. He,however, took note of the contention of the counsel for the Railwaysthat the Railway Board’s instructions for payment of wages onhourly basis are being implemented. While taking note of the saidrepresentation, the Authority noted that the workers did not appearto have been satisfied with the calculation of daily hours of workand also made a mention of the suggestion made by both the parties that they would agree for fixing the daily wages of work ofthe licenced porters at Eluru and Tadepalligudem Railway Stationsby the State Labour Officer, Eluru. The said order was carried in twoappeals filed by the porters before the District Judge, WestGodavari, Eluru, which was taken on file as A.S.Nos.60 and 61 of1986. A.S.No.60 of 1986 related to claim for wages fromSeptember, 1984 to August 1985 and A.S.No.61 of 1986 pertainedto the claim for wages from January, 1983 to August, 1984. Thesaid two appeals were allowed by the District Court by its commonorder dated 3-8-1997 wherein the Court held that the RailwayPorters were employed by the Railways and that the Payment ofWages Act, 1936 (for short “the 1936 Act”) did not make adistinction between the persons regularly employed and thepersons casually employed. The District Court, thus, negatived thecontention of the Railways that the Act has no application to theclaims made by the porters. Questioning the said order, thepetitioners filed Writ Petition No.15785 of 1987. This Court allowedthe said Writ Petition and remanded the cases to the learned District Judge to consider the following issues:

District Judge to consider the following issues:

“ 1. Whether the respondents in the writ petition (railwayporters at Eluru Railway Station) are employed persons withinthe meaning of Section 15(2) of the Payment of Wages Act?

2. If so, whether they are entitled to maintain an applicationunder Section 15(1) of the Act claiming wages on hourly basisas per Railway Board’s Order No.69-TGII/1010/29/SC/R-39 dated 8-6-1981?

3. What is the quantum of the amount the respondents areentitled?”

After remand, A.S.Nos.60 and 61 of 1986 were disposed ofby two different orders by the learned Additional District Judge,West Godavari, Eluru, after considering the oral and documentaryevidence adduced by both the parties. A.S.No.60 of 1986 wasdecided on merits by holding all the three issues against the porters. But, A.S.No.61 of 1986 was remanded to the Authority withthe direction to it to decide the application filed by the porters forcondonation of delay in making their claim for wages, and, afterdeciding the same, to dispose of the porters’ claim on merits bygiving opportunity to both the sides in support of their respectivecontentions. While the porters have not challenged the order of theDistrict Court in A.S.No.60 of 1986, the petitioners herein have notimmediately questioned the order in A.S.No.61 of 1986. Afterremand, notices were issued by the Authority to the petitioners andthey have not contested the application for condonation of delay. Accordingly, the petitioners were set ex parte on 02.03.1996 andorder was passed on 16.03.1996 in PWMP.No.27 of 1985condoning the delay of one year nine months in making the claimfor the differential wages for the period from January, 1983 toAugust, 1984. Similarly, notices were received by the petitioners forhearing of the claim petition. While petitioner Nos.4 and 5 were setex parte on 02.04.1996, petitioner Nos.1 and 3 i.e., The DivisionalRailway Manager (Commercial) and the General Manager did notappear on 15.04.1996 though the representative of the DivisionalRailway Manager appeared on 02.04.1996 and sought for anadjournment. Hence, they were set ex parte on 15-4-1996.Thereafter, the main case for differential wages renumbered asPW.4 of 1996 was disposed of by the Authority by order dated11.05.1996 by allowing claim for Rs.2,33,962=84 ps being thewithheld wages for the aforementioned period along withRs.11,69,814=20 ps representing five times the wages ascompensation. Even these orders were not questioned by thepetitioners. Instead, the petitioners filed I.A.No.1 of 1996 to setaside the ex parte orders, which was dismissed by the Authority on30.07.1996. A few days before the said order was passed, thepetitioners filed WP.No.15269 of 1996 questioning order dated 26.10.1995 in A.S.No.61 of 1986. None of the abovementionedorders passed by the Authority after the remand of the case wereeven referred to in the affidavit filed in support of the writ petition norcopies thereof were filed by the petitioners along with the writpetition. However, after hearing of the cases was commencedbefore this Court, the petitioners filed WPMP.No.34217 of 2008seeking leave of this Court to amend the affidavit in the writ petitionby adding paragraphs 1 to 11 of the additional affidavit asparagraphs 9 to 19 of the original affidavit and also to amend thememorandum of writ petition by adding the words “in case PW.No.4of 1996 dated 11.05.1996” after the words “and the consequentialorders passed by the Deputy Commissioner of Labour, Eluru”. Quite curiously, even in this amended application, the petitionershave not questioned order dated 30.07.1996 passed in I.A.No.1 of1996 by the Authority, whereby it refused to set aside ex parte orderdated 11.05.1996 passed in PW.No.4 of 1996 pertaining to theclaim of the respondents for withheld wages.

It may be mentioned at this juncture that a similar order waspassed by the Authority in PW.No.5 of 1996, which related to theclaim for wages for the period from November, 1993 to November,1995, wherein also despite receipt of notices by the petitioners theyfailed to contest the claim, on merits. The Authority passed bothorders in P.W.4 and P.W.5 of 1996 on the same day. Thepetitioners filed WP.No.20450 of 1996 questioning the order inP.W.5 of 1996. All other Writ Petitions are filed by the petitionersquestioning separate orders passed by the Authority from time totime in respect of the claims made by the porters of differentRailway Stations coming under the jurisdiction of petitioner No.1 fordifferent periods. W.P.Nos.18710 of 1997; 21322 & 23199 of 1999;4202 & 26435 of 2000; 4220 & 11485 of 2002; 13501, 13594 &15134 of 2005 were filed by the petitioners questioning the orders of the Authority passed on the claim petitions filed by the porters ofEluru Railway Station for differential wages from 1995 to 2001. WritPetition Nos.26214 of 2000 and 11903 of 2002 were filed againstthe orders of the Authority allowing the claim petitions filed by theporters of Tadepalligudem Railway Station. Writ Petition Nos.26193of 2000; 17748 of 2001; 11702 & 12019 of 2002 were filed againstthe orders of the Authority on the claim petitions filed by theBheemavaram Railway Porters. Writ Petition No.12813 of 2002 wasfiled against the order of the Authority on the claim petition ofRailway Porters of Nidadavolu Railway Station.

For convenience, the station wise details of the claims andthe respective writ petitions filed against the orders of the appellateand original authorities are shown in the following table.

CONTENTIONS:-

Sri T. Ramakrishna Rao, learned counsel assisted by SriT.S.Venkataramana for the petitioners advanced the followingcontentions.

1. Order dated 26.10.1995 passed by the Additional DistrictJudge in A.S.No.61 of 1986 is illegal, inasmuch as in theface of his own findings rendered in his order dated26.10.1995 in A.S.No.60 of 1986 pertaining to the claim forwages from September, 1984 to August, 1985, there wasno need to remand the case for consideration ofapplication for condonation of delay in filing the claimpetitions by the respondents for the period from January,1983 to August, 1984, as the findings in A.S.No.60 of 1986constitute res judicata.Judge in A.S.No.61 of 1986 is illegal, inasmuch as in theface of his own findings rendered in his order dated26.10.1995 in A.S.No.60 of 1986 pertaining to the claim forwages from September, 1984 to August, 1985, there wasno need to remand the case for consideration ofapplication for condonation of delay in filing the claimpetitions by the respondents for the period from January,1983 to August, 1984, as the findings in A.S.No.60 of 1986constitute res judicata.

2. The failure of the respondents to question A.S.No.60 of1986 constitutes acquiescence and waiver on the part of1986 constitutes acquiescence and waiver on the part of

3. The respondents failed to implead Union of India asparty to the proceedings before the Authority and, hence,the claims were liable to be rejected in limini as held by theSupreme Court in Ranjeet Mal vs. General Manager,Northern Railway. Baroda House. New Delhi[[1]],ChiefConservator of Forests, Govt., of A.P., vs. Collector andothers[[2]]and this Court in Lt. Rajender Singh Punia vs.Chief of Naval Staff and another[[3]].

4. The authority has no jurisdiction to entertain theapplications for differential wages as the respondents arenot employed by the railways as held by the SupremeCourt in Civil Appeal Nos.9381 of 1995, 752 and 753 of1997 and WP (civil) No.480 of 1990.

5. The authority committed a serious error in rejecting theapplications filed by the petitioners to set aside ex parteorders in PW.Nos.4 and 5 of 1996 on the ground of lack ofpower for such condonation, while condoning the delay ofthree, five and two years in filing the claim applications bythe respondents in PW.Nos.3 and 4 of 1998 and 4 of 1999respectively.

6. As the claims for differential wages exceeded Rs.1,600/-per month in respect of each of the respondents, theauthority is denuded of the jurisdiction, if any, and,therefore, it ought not to have entertained the claimpetitions.

7. The claims made by the respondents were for potential

8. The orders passed by the Authority are not based onadequate evidence to arrive at the differential wages andthat no proper evidence was adduced by the respondentsto show that they worked for eight hours in a day and

9. Even if any part of the claims made by the respondentswas payable, the petitioners are not liable to paycompensation in view of existence of bona fide dispute onthe entitlement of the respondents to receive the differentialwages.

Sri K. Raghuveer Reddy, learned counsel for the respondentsopposed the above contentions. He submitted that the order inA.S.No.60 of 1986 does not constitute res judicata as the claimpetitions covered by A.S.Nos.60 and 61 of 1986 were different andwere therefore based on different causes of action. Alternatively,he contended that as the petitioners entered into an agreement on14.11.1988 with the authorized representative of the respondentsand paid wages in accordance with such agreement for the periodfrom November, 1984 to October, 1988, the respondents did notpursue A.S.No.60 of 1986 and assail the order passed therein bythe appellate Court and therefore the findings rendered in such acase do not operate as res judicata.That the petitionersacquiesced in questioning the legality and the validity of order inA.S.No.61 of 1986 inasmuch as without immediately challengingthe same, they tried to participate in the proceedings before theAuthority by filing the application for setting aside the ex parteorder. He further contended that the petitioners are employed bythe railways and, therefore, the Authority is vested with thejurisdiction to entertain and adjudicate the claims for the withheld wages. He relied on the judgment of a learned Single Judge of thisCourt in Divisional Railway Manager, South Central Railway,Vijayawada and another Vs. The Labour Enforcement Officer(Central), Prakash Nagar, Rajahmundry and others[4]. He furthersubmitted that under Section 3(c) of the Act, the railways are maderesponsible for payment of wages to the persons employed by itand the person nominated by the railways for payment of wagesand other officers concerned were made parties and that, therefore,the claim petitions did not suffer from legal defect. The learnedcounsel also contended that the concept of potential wages has noapplication to the claims preferred by the respondents as the wageswere agreed to be paid with reference to circular dated 08.06.1971of the Railway Board, Ministry of Railways, Government of Indiaand that the respondents adduced cogent evidence and convincedthe Authority that differential wages as claimed by them were dueand payable.

With regard to the maximum ceiling of Rs.1,600/-, the learnedcounsel contended that the ceiling of Rs.1,600/- prescribed inSection 1(6) of the Act has no application in view of the notificationin S.O.No.2831 dated 16.10.1960 issued by the Government ofIndia in exercise of the powers conferred by it under sub-section 1of Section 22-F of the Minimum Wages Act, 1948 (for short, ‘the1948 Act’), wherein it is envisaged that the words “this Act”occurring in Section 15(2) of the 1936 Act shall be construed asreference to the 1948 Act or the Rules made thereunder. Alternatively, the learned counsel contended that even if such aceiling applies, the respondents are prepared to forego the wagesin excess of Rs.1,600/- per month wherever such excess wagesexist.

The respective submissions of the learned counsel for the parties are discussed hereunder:

The plea of resjudicata:-

This plea of the petitioners is rested on order dated26.10.1995 passed in A.S.No.60 of 1986. As noted hereinabove,the said case related to payment of differential wages for the periodfrom September, 1984 to August, 1985. The said case was filed bythe respondents against the order of the Authority rejecting theirclaim for differential wages on the premise that the Authority has nojurisdiction to entertain and allow payment of withheld wages. Theappellate Court framed the following points:

“1. Whether the appellants are the employees within the meaning of Section 15(2) of the Payment of Wages Act?meaning of Section 15(2) of the Payment of Wages Act?

2. Whether the appellants are entitled wages the applicationU/s.15(1) of the Act, claiming the wages on hourly basis ismaintainable as per the Railway Boards OrderNo.69/TGII/1010/29/SC/R-39, dated 08.06.1971?U/s.15(1) of the Act, claiming the wages on hourly basis ismaintainable as per the Railway Boards OrderNo.69/TGII/1010/29/SC/R-39, dated 08.06.1971?

3. Whether the order passed by the Deputy Commissioner of Labour is sustainable?Labour is sustainable?

4. Whether the appellants are entitled to claim Rs.1,69,101=90ps. The pending of 10 times to be paid amount?”ps. The pending of 10 times to be paid amount?”

The appellate Court recorded the oral evidence and receivedthe documentary evidence adduced by both the parties. Purportingto analyze the evidence before it and the provisions of Section15(2) of the 1936 Act, the appellate Court held:

“The appellants will not come under the purview of Section15(2) of the Act. The appellants are not the regular employees ofthe Railway Authority and there is no evidence adduced by theappellants to show that they can be treated as regular employees. On the other hand they have not led any evidence. Theythemselves are not examined to substantiate their claim.” (Emphasisadded)

Accordingly, the appellate Court held point No.1 against therespondents. Point No.2 was also held against the respondents, but a careful reading of the order does not disclose any discerniblereason given to hold the said point against the respondents. PointNos.3 and 4 were also held against the respondents in view of thefindings given by it on point Nos.1 and 2.

Conclusion

While the learned counsel for the petitioners strenuouslycontended that this order operates as res judicata on the questionwhether the respondents were employed by the railways, thelearned counsel for the respondents advanced three contentions inresisting the same. Firstly, he submitted that the finding that therespondents are not employed by the railways was rendered by theappellate Court while dealing with the claim for payment of withheldwages for the period different from the period for which therespondents’ claims were adjudicated by the Authority. Therefore,according to the learned counsel, the doctrine of res judicata hasno application. Secondly, he submitted that in view of paymentsmade by the petitioners for the periods covered by the said order,there was no necessity of questioning the said order and thirdly, thepetitioners waived their right to question order in A.S.No.61 of 1986,in pursuance of which the Authority reconsidered the petitioners’claims and granted relief, as they have submitted themselves to thejurisdiction of the Authority following the said order passed inA.S.No.61 of 1986 by the appellate Court.

In order to resolve this contentious issue, it is necessary tounderstand the true scope and purport of the doctrine of resjudicata. The rule of res judicata is based on two principles; (1) Themaxim nemo debet bis vexari pro una et eadem causa, meaning,no one ought to be twice vexed for one and the same cause, and(2) Public policy that there ought to be an end to the same litigation. Section 11 CPC is only a statutory recognition, but not thefoundation of this principle (State of Karnataka vs. All India Manufacturers Organization[5]). I n Ishwar Dutt vs. LandAcquisition Collector and another[6]the Supreme Court held thatthe doctrine of res judicata is a species of estoppel and it has gottwo limbs, namely; cause of action estoppel and issue estoppel. The Supreme Court held that in case of cause of action estoppel,the underlying principle upon which estoppel is based namelypublic policy and justice have greater force than the case involvingsubject matter estoppel. In Hope Plantations Limited vs. TalukLand Board[7], the Supreme Court held that if an issue, which hadbeen decided in an earlier litigation again arises for determinationbetween the same parties in a suit based on a fresh cause of actionor where there is a continuous cause of action, the parties may notbe bound by the determination made earlier if in the meantime, lawhas changed or has been interpreted differently by a higher forum.

In Mathura Prasad Bajoo Jaiswal and others vs. DossibaiN.B. Jeejeebhoy[8], the Supreme Court held:

“4. The rule of res judicata applies if “the matter directlyand substantially in issue” in a suit or proceeding was directly andsubstantially in issue in the previous suit between the same partiesand had been heard and finally decided by a competent Court. TheCivil Judge, Junior Division, Borivli, decided the applicationbetween the parties to the present proceeding for determination ofstandard rent in respect of the same piece of land let for constructionof buildings for residential or business purposes. The High Courthas held that a decision of a competent Court may operate as resjudicata in respect of not only an issue of fact, but mixed issues oflaw and fact, and even abstract questions of law. It was alsoassumed by the High Court that a decision relating to the jurisdictionof the Court to entertain or not to entertain a proceeding is bindingand conclusive between those parties in respect of the samequestion in a later proceeding.

5. But the doctrine of res judicata belongs to thedomain of procedure, it cannot be exalted to the status of alegislative direction between the parties so as to determine thequestion relating to the interpretation of enactment affecting thejurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to theright in dispute between the parties has been determined thereby. Adecision of a competent Court on a matter in issue may be resjudicata in another proceeding between the same parties: the“matter in issue” may be an issue of fact, an issue of law, or one ofmixed law and fact. An issue of fact or an issue of mixed law andfact decided by a competent Court is finally determined between theparties and cannot be re-opened between them in anotherproceeding. The previous decision on a matter in issue alone is resjudicata: the reasons for the decision are not res judicata. Amatter in issue between the parties is the right claimed by one partyand denied by the other, and the claim of right from its very naturedepends upon proof of facts and application of the relevant lawthereto. A pure question of law unrelated to facts which giverise to a right, cannot be deemed to be a matter in issue. Whenit is said that a previous decision is res judicata, it is meant that theright claimed has been adjudicated upon and cannot again beplaced in contest between the same parties. A previous decision ofa competent Court on facts which are the foundation of the right andthe relevant law applicable to the determination of the transactionwhich is the source of the right is res judicata. A previous decisionon a matter in issue is a composite decision: the decision onlaw cannot be dissociated from the decision on facts on whichthe right is founded. A decision on an issue of law will be as resjudicata in a subsequent proceeding between the same parties,if the cause of action of the subsequent proceeding be thesame as in the previous proceeding, but not when the cause ofaction is different, nor when the law has since the earlierdecision been altered by a competent authority, nor when thedecision relates to the jurisdiction of the Court to try the earlierproceeding, nor when the earlier decision declares valid atransaction which is prohibited by law.” (Emphasis added)

The Supreme Court discussed various cases in which theearlier judgments of different Courts dealt with the issue whether aquestion of law operates as res judicata. After a detailed analysis,the Supreme Court in para 10 held:

Issues

“A question relating to the jurisdiction of a Court cannot bedeemed to have been finally determined by an erroneous decisionof the Court. If by an erroneous interpretation of the statute theCourt holds that it has no jurisdiction, the question would not,in our judgment, operate as res judicata. Similarly by anerroneous decision if the Court assumes jurisdiction which it doesnot possess under the statute, the question cannot operate as resjudicata between the same parties, whether the cause of action inthe subsequent litigation is the same or otherwise.” (Emphasis added)

As discussed above, the substantive ground on whichA.S.No.60 of 1986 filed by the respondents was dismissed andtheir claims rejected by the appellate Court was on theinterpretation of Section 15(2) of the 1936 Act by holding that therespondents not being employed by the railways are not entitled tomaintain the claim petitions before the Authority under theprovisions of the 1936 Act. This finding being based oninterpretation of statute which for the reasons that will be given infrai s exfacie erroneous, I am of the view that the judgment inA.S.No.60 of 1986 does not operate as res judicata. In the presentcases admittedly each case is based on a different causes ofaction, as the claims relate to different periods. Therefore, thecause of action estoppel does not apply to these cases. Similarly,following the law declared by the Supreme Court in MathuraPrasad Bajoo Jaiswal (8 supra) the issue estoppel also does notarise as what was decided earlier by the appellate Court was a purequestion of law relating to the jurisdiction of the Authority toadjudicate the claim petitions for payment of withheld wages filed bythe porters. The erroneous interpretation of statutory provisionsbased on which A.S.No.60 of 1986 was adjudicated makes thesubsequent cases fall outside the realm of issue estoppel andconsequently, the doctrine of res judicata.

In this view of the matter, it is unnecessary for this Court todelve into the conduct of the petitioners as to whether they havewaived their right to raise the issue of res judicata as they havesubmitted themselves to the jurisdiction of the Authority and also onthe propriety of the appellate Court to remand A.S.No.60 of 1986while adjudicating A.S.No.61 of 1986 on merits.

The waiver and acquiescence of the rights, if any, to claim differential wages by subsequent claim petitions

It is contended that by allowing the judgment in A.S.No.60 of1986 to become final without questioning the same, therespondents have acquiesced in and waived their right to claimwages. However, it is mention worthy that the respondents pleadedthat the reason for their not questioning the judgment in A.S.No.60of 1986 was the understanding reached by them with the railwayauthorities in the meeting held on 14.11.1988, wherein it wasagreed for fixation of 280 man hours for Eluru railway station forhandling parcels by licenced porters. The respondents also reliedon the relevant copies of acquittance register evincing payment ofdifferential wages for the period from November, 1984 to October,1988, which covers the entire period for which withheld wages wereclaimed in A.S.No.60 of 1986 except for two months. The minutesof the meeting and the acquittance register were filed by therespondents and marked as Exs.A4 and A5 respectively inPW.No.5 of 1996. In their evidence, the Chief Parcel Supervisor,Eluru railway station and the Assistant Commercial Manager, SouthCentral Railway, Vijayawada, examined as RWs.1 and 2, stated inunequivocal terms that under Ex.A4, 280 man hours were agreedand the same was implemented “till such time, it worked outdepending on the parcel handling work”. They further stated that asthere was reduction in parcel handling subsequently, the manhours were reduced. It is therefore the plea of the respondents thatas they were paid the amounts claimed in A.S.No.60 of 1986, therewas no necessity for them to question the said judgment andhence, the doctrine of acquiescence and waiver cannot be pressedinto service in this case. Far from raising a specific plea againstExs.A4 and A5 under which the respondents claimed to havereceived the amounts on the basis of the understanding reachedbetween the railway management and the porters of Eluru, the petitioners’ own witnesses supported the respondents’ case.

The learned counsel for the respondents relied upon orderdated 23.09.1988 passed by this Court in WP.Nos.8933 and 8648of 1985, wherein it was observed:

“Some of the porters filed Writ Petition No.10718 of 1983. This Court disposed of the said writ petition on November 5, 1984,directing the petitioners therein to make a representation to therailway authorities and the authorities were directed to passappropriate orders within three months therefrom. The RailwayAdministration has implemented that direction after conducting workstudy. The arrears have also been paid in that regard and furtherwork study is being conducted. If any payment is found to be madeto the porters will be made after conducting work study.”

The above discussed material thus clinchingly establishesthat the claims raised by the respondents, which were the subjectmatter of A.S.No.60 of 1986, were satisfied rendering itunnecessary for them to question the judgment in A.S.No.60 of1986. It is no doubt true, as pointed out by the learned counsel forthe petitioners, this factum of satisfaction of the respondents’ claimswas evidently not brought to the notice of the appellate Court andthe order passed by it suggests as if it was passed after contest. Learned counsel for the respondents, submitted that due to theinadvertent lapse, the fact of settlement was not brought to thenotice of the appellate Court.

The fact, however, remains that the unimpeachable materialdiscussed above clearly established that the respondents werepaid the wages in pursuance of the understanding reachedbetween the parties. Though the learned counsel for the petitionersstrenuously contended that the officer, who was party to suchunderstanding, has no lawful authority, such a contention has norelevance for the purpose of considering whether the respondentshave consciously waived their right by not questioning the judgment in A.S.No.60 of 1986. As the respondents’ claims were satisfied forthe period covered by A.S.No.60 of 1986, it was wholly immaterialwhether the Authority, who entered into understanding with themand paid wages, was competent or not. In this factual matrix, thejudgment in Dr. Karan Singh vs. State of J&K and another[9], citedby the learned counsel for the petitioners in support of hiscontention of waiver and acquiescence, has no application.

Whether non-joinder of Union of India renders proceedingsinitiated by and orders passed in favour of the respondentsinvalid Section 2(20) of the Railways Act, 1989 defined Governmentrailway as a railway owned by the Central Government. UnderSection 2(32), Railway Administration in respect of a Governmentrailway is defined as the General Manager of a zonal railway. Section 3 empowers the Central Government to constitute railwaysinto as many zonal railways as it may deem fit for the purpose of theefficient administration of the Government railways. It is thecommon case that South Central Railway with headquarters atSecunderabad is one such zone and the Divisional RailwayManager (Commercial) heads the Vijayawada Railway Divisionunder whose jurisdiction the administration of Eluru railway stationfalls. In the claim petitions, the respondents stated that theDivisional Railway Manager (Commercial), Vijayawada, the SeniorDivisional Accounts Officer, Vijayawada and the StationSuperintendent, Eluru railway stations are responsible for paymentof wages under Section 3 of the 1936 Act. In the cases where therespondents filed written statements, objection was taken on themaintainability of the petition by stating, “The petition is notmaintainable as framed. If at all the applicants are entitled to anyrelief, it must be against the Union of India, which owns the railways. The applicants cannot have any relief against theindividual officials of the railway department.” It is further stated,“The allegation of para 2 of the petition that the opposite parties areresponsible for payment of wages under Section 3 of the Act isuntenable as what the applicants received from the railway is notany wage, but only charge for the particular work done. They arebeing paid when they attend to the parcel handling work.”

On the basis of the above reproduced pleadings, the learnedcounsel for the petitioners strongly contended that the petitionersraised objection as to the non-joinder of Union of India at theearliest possible time and also specifically denied that the partiesimpleaded as respondents are responsible for payment of wages. But, a careful analysis of the pleadings extracted above, revealsthat denial of the responsibility of the impleaded respondents wasnot in relation to the plea that they are responsible for payment ofwages, but the denial was with regard to the nature of payment i.e.,whether such payment constitutes ‘wages’ within the provision ofSection 3 of the 1936 Act. This is clearly evident from the words “aswhat the applicants received from the railway is not any wage, butonly charge for the particular work done” after the words “theallegation of para 2 of the petition that the opposite parties areresponsible for payment of wages under Section 3 of the Act isuntenable.” This denial is made in tune with the stand of thepetitioners that neither the respondents – porters are employed bythe railway administration nor what they received was wages withinthe definition of Section 2(vi) of the said Act. It is not the case of thepetitioners that the railway administration has not nominated anyperson as responsible for payment of wages to the personsemployed by it or even if nominated,an officer other than any of thethree impleaded parties to the claimpetitions is responsible forpayment of such wages. In the absence of any such plea and from the fact that the respondents – porters were paid money for thework extracted by one or the other officers impleaded in the claimpetitions, it is reasonable to presume that the impleadedrespondents to the claim petitions among whom respondent No.1was the head of the Vijayawada Division are responsible forpayment of wages. The question then is whether it was incumbentupon the respondents to implead Union of India as a party beforethe Authority?

The requirement of making Union of India a party stems fromthe provisions of Article 300 of the Constitution of India and Section79 of the Code of Civil Procedure, 1908 (for short, ‘CPC’). Article300 (1) contemplates that the Government of India may sue or besued by the name of the Union of India and the Government of aState may sue or be sued by the name of the State. This provision,however, further envisages that such suing or being sued in relationto their respective affairs of the Union of India and the Governmentof a State may be subject to any provisions, which may be made byAct of Parliament or of the Legislature of such State enacted byvirtue of powers conferred by the Constitution, in relation to theirrespective affairs in the like cases as the Dominion of India and thecorresponding provinces or the corresponding Indian States mighthave sued or been sued if the Constitution had not been enacted.

Section 79 CPC prescribed that in a suit by or against theGovernment, the authority to be named as plaintiff or defendant, asthe case may be, shall be in the case of a suit by or against aCentral Government, the Union of India and in the case of a suit byor against the State Government, the State. Under Section 80, nosuit shall be instituted against the Government without a noticeenvisaged therein being issued and if such a suit is against theCentral Government relating to railway, notice shall be issued to the General Manager of that railway.

The proceedings before the Authority are not governed byCPC except to the limited extent of conferment of power on it for thepurpose of taking evidence and enforcing the attendance of thewitnesses and compelling the production of documents. Therefore,Sections 79 and 80 per se do not apply to the said proceedings. Itis no doubt true that Article 300, as referred to above, mandatedthat every suit or proceeding shall be initiated in the name of Unionof India in respect of the claims made against the Government ofIndia. While interpreting this Article, the Supreme Court in Chief Conservator of Forests (2 supra) held in para 13 as under:

“The question that needs to be addressed is, whether theChief Conservator of Forests as the appellant-petitioner in the writpetition/appeal is a mere misdescription for the State of AndhraPradesh or whether it is a case of non-joinder of the State of AndhraPradesh – a necessary party. In a lis dealing with the property of aState, there can be no dispute that the State is the necessary partyand should be impleaded as provided in Article 300 of theConstitution and Section 79 CPC viz., in the name of theState/Union of India, as the case may be, lest the suit will be bad fornon-joinder of the necessary party. Every post in the hierarchy of theposts in the Government set-up, from the lowest to the highest, is notrecognized as a juristic person nor can the State be treated asrepresented when a suit/proceeding is in the name of suchoffices/posts or the officers holding such posts, therefore, in theabsence of the State in the array of parties, the cause will bedefeated for non-joinder of a necessary party to the lis, in any courtor tribunal. We make it clear that this principle does not apply toa case where an official of the Government acts as a statutoryauthority and sues or pursues further proceeding in its namebecause in that event, it will not be a suit or proceeding for oron behalf of a State/Union of India but by the statutory authorityas such.” (Emphasis added)

In the instant cases, the claims are filed under the provisionsof the 1936 Act. Under Section 3 of the said Act, the responsibilityfor payment of wages is fastened upon railways if the employer israilway administration and on the person if nominated in this behalffor the local area concerned. Thus, following the dicta contained in the abovementioned judgment of the Supreme Court, theimpleaded respondents, who represented the railway administrationfor the local area concerned, are competent either to initiateproceedings or to be impleaded as respondents in the proceedingsinitiated against them. Though they represent the railwayadministration, they are statutorily responsible to discharge theirobligation of payment of wages under the 1936 Act andconsequently they are the statutory authorities, unlike otheradministrative authorities, who merely represent the Union or theState without independent legal existence while representing theirrespective Governments. I n Chief Conservator of Forests (2supra), on which reliance is placed by the learned counsel for thepetitioners, the decree of a civil suit was questioned by the ChiefConservator of Forests by the name of his office, without showinghimself as representing the State of Andhra Pradesh. He did notfile the said writ petition as a statutory authority under a statutoryenactment. The Supreme Court, therefore, held that the saidauthority not being a juristic person could not maintain the writpetition.

As mentioned above, in the instant cases, the claim made bythe respondents – porters arise under a special enactment and theimpleaded respondents are statutorily responsible for payment ofwages. Hence, the said judgment, indeed, supports the case of therespondents instead of helping the petitioners. The judgment inThe State of Kerala vs. The General Manager, SouthernRailway, Madras[10]relied on by the learned counsel for thepetitioners is of no help to them because that was a case where amoney suit was filed by the State of Kerala against the GeneralManager, Southern Railway, without impleading the Union of India. In view of the mandatory provisions of Sections 79 and 80 CPC, the Supreme Court held that non-joinder of Union of India was fatal tothe suit. This judgment is of no relevance to the present cases, asthe provisions of CPC do not govern the proceedings before theAuthority. Equally, the judgment of the learned Single Judge of thisCourt in Lt. Rajender Singh Punia (3 supra) has no application tothe present cases because that was a case where the CentralGovernment dismissed the petitioner therein and the dismissalorder was communicated by the Chief of Navel staff. The learnedJudge held that apart from the fact that the Central Government,which passed the order impugned in the writ petition, was anecessary party, its non-joinder was fatal because any orderpassed in the writ petition is directly enforceable against the CentralGovernment. For the same reasons as are assigned supra, thisjudgment also cannot be applied against the respondents.

Here it is useful to refer to section 15(3) of the 1936 Act,which, to the extent relevant, reads:

“When any application under sub-section (2) is entertained,the authority shall hear the applicant and the employer or otherpersons responsible for the payment of wages under Section 3,or give them an opportunity of being heard, and, after suchfurther inquiry (if any) as may be necessary, may, without prejudiceto any other penalty to which such employer or other person is liableunder this Act, direct the refund to the employed person of theamount deducted, or the payment of the delayed wages, togetherwith the payment of such compensation as the authority may think fit,not exceeding ten times the amount deducted in the former case and[not exceeding twenty-five rupees in the latter, and even if theamount deducted or the delayed wages are paid before the disposalof the application, direct the payment of such compensation, as theauthority may think fit, not exceeding twenty-five rupees].” (Emphasisadded)

The scheme of the 1936 Act reflected in the abovereproduced provisions envisaged hearing of employer or thepersons responsible for payment of wages. Therefore, in view ofthis provision contained in this pre-constitution Act which remained unamended even after the advent of the Constitution of India, non-impleadment of Union of India, which in broader legal sense is theemployer does not invalidate the proceedings initiated before theAuthority as the persons responsible for payment of wages onbehalf of the employer are impleaded.

Apart from the above reasons, there are two other strongreasons, which impel me to repel the petitioners’ contention. Thefirst reason is that though the respondents have not impleadedUnion of India in the proceedings before the Authority, Union ofIndia itself got impleaded in all these writ petitions and it is shown aspetitioner No.1 represented by the Divisional Railway Manager(Commercial), South Central Railway, Vijayawada. The defect, ifany, with which the claim petitions suffered on account of the non-joinder of Union of India is fully cured with Union of India itself filingthe writ petitions along with other senior officers. Further the factthat Union of India is represented by the Divisional RailwayManager (Commercial), South Central Railway, Vijayawada, whowas opposite party No.1 before the Authority, itself shows that he isthe official representative of the Union of India. Thus, not only thatthe Union of India’s representative was a party before the Authority,but also, it has fully participated in the present proceedings, whichare for all practical purposes the continuation of the proceedingsinitiated before the Authority and contested the cases with requiredvigor. I, therefore, do not see any prejudice whatsoever havingbeen caused to the interest of Union of India for not formallyimpleading it as a party before the Authority. Another reason is thatthe 1936 Act is a piece of welfare Legislation. It is a specialenactment, which is intended to protect the interests of the bluecolor workmen who survive on doing manual labour. The Courtsshould always endeavor to see that the provisions of such a Legislation are enforced and the proceedings initiated before thecompetent authorities for such enforcement are not frustrated onmere technicalities. Whenever objections such as non-joinder ofparties are raised as in the instant cases, it is necessary for theCourts to adopt a liberal and pragmatic approach rather than a rigidand dogmatic approach, which may frustrate the object with whichthe Legislation is made. On a holistic consideration of the issue, Ihold that non-joinder of Union of India before the Authority does notrender the orders passed by it illegal or invalid.

Whether the respondents were not employed by the railwaysand the authority had no jurisdiction to pass the impugnedorders The 1936 Act is made to regulate the payment of wages tocertain classes of employed persons, as evident from its long title. When this Act was made, it was applied to persons employed bythe factory or industrial establishments and railway administration. By the amending Act of 38 of 1999, the Act was extended to thevarious categories of other establishments as well.

Section 3 of the 1936 Act imposes responsibility on theemployer for payment to the persons employed by him of all wagesrequired to be paid under the Act. Under Section 4, every personresponsible for payment of wages under Section 3 shall fix periods,referred to as wage-period in respect of which such wages shall bepayable. Section 5 prescribes time for payment of wages andunder Section 6, wages shall be paid in current coin or currencynotes or in both and also after obtaining written authorization of theemployed person either by cheque or by crediting the wages in thebank account. Sections 7 to 13 authorize the employer to deductfrom wages, amounts due from the employed person on differentcounts as indicated therein. Section 15(1) authorizes the State

Government to appoint the authority by notification in the officialGazette to hear and decide for any specified area all claims arisingout of deductions from the wages or delay in all payment of wagesof persons employed or paid in that area, including all mattersincidental to such claims.

Section 15(2), which is the bone of contention of thepetitioners, reads as under:

“Where contrary to the provisions of this Act any deductionhas been made from the wages of an employed person, or anypayment of wages has been delayed, such person himself, or anylegal practitioner or any official of a registered trade unionauthorized in writing to act on his behalf, or any Inspector under thisAct, or any other person acting with the permission of the authorityappointed under sub-section (1), may apply to such authority for adirection under sub-section (3):

Provided that every such application shall be presentedwithin twelve months from the date on which the deduction from thewages was made or from the date on which the payment of thewages was due to be made, as the case may be:

Provided further that any application may be admitted afterthe said period of twelve months when the applicant satisfies theauthority that he had sufficient cause for not making the applicationwithin such period.”

It is the case of the petitioners that the respondents were notemployed by them, but were only entrusted with the work ofhandling parcels by loading and unloading from and into the trainson payment of amounts on hourly basis as per the wages fixed bythe local authority.

The precise definition of “employed person” is not found in theAct though Section 2(i) defined the said expression as including thelegal representative of the deceased employed person. In theabsence of such a precise definition, it is necessary to understandits meaning by external aids such as the cognate Acts andDictionary. Section 2(i) of the 1948 Act defines ‘employee’ to mean any person, who is employed for hire or reward to do work, skilledor unskilled, manual or clerical, in a scheduled employment inrespect of which minimum rates of wages have been fixed andincludes an out-worker to whom any articles or materials are givenout by another person to be made up, cleaned, washed, altered,ornamented, finished, repaired, adapted or otherwise processed forsale for the purpose of trade or business of that other person wherethe process is to be carried out either in the home or the out-workeror in some other premises not being the premises under the controland management of the other person and also includes anemployee declared to be an employee by the appropriateGovernment, but does not include any member of the armed forcesof the Union.

The meanings of the words ‘employ’, ‘employed’ andemployer given in the Oxford Dictionary, Thesaurus and WordPower Guide of the first Indian Edition, 2007 are as under:

‘Employ’ – (1) give work to (someone) and pay them for it, (2)make use of and (3) keep occupied ‘Employee’ – A person employed for wages or salary.

‘Employer’ – A person or organization that employ people.

In the Thesaurus part of the dictionary, the words ‘employ’,‘employee’ and ‘employed’ are described as under:

‘Employ’ – (1) SheemployedaChauffeur HIRE, engage,recruit, take on, secure the services of, sign up, sign, put on thepayroll, enroll, appoint; retain; indenture, apprentice. (2) Samwasemployedincarvingastonefigure OCCUPY, engage, involve,keep busy, tie up; absorb, engross, immerse. (3) theteamemployedsubtlepsychologicaltactics USE, utilize, make use of,avail oneself of; apply, exercise, practise, put into practice, exert, bring into play, bring to bear; draw on, resort to, turn to, haverecourse to.

‘Employee’ – WORKER, member of staff; blue-collar worker,white-collar worker, workman, labourer, (hired) hand; wage-earner,breadwinner, (employees) personnel, staff, workforce; informalliveware.

‘Employed’ – WORKING, in work, in employment, holdingdown a job; earning, waged, breadwinning.

The dictionary meaning of the word ‘employee’ as also itsdefinition contained in the 1948 Act are wide enough tocomprehend all kinds of workers, who include hired labourers andwage earners. The employee by entrustment of work thusbecomes person employed. No distinction is drawn between apermanent employee or a temporary employee and such adistinction has absolutely no relevance whatsoever in the context ofliability of the employer to pay wages to a person, who is employedfor carrying out the work entrusted to him.

The stand of the respondents was already referred to in theearlier part of this judgment, which discloses the fact that therespondents are entrusted with the work of handling of parcels bythe railway administration. This admission is enough for therespondents to fall within the expression “employed persons” andfor the railway administration to be called ‘employer’ under theprovisions of the 1936 Act. In fact, as discussed above, theappellate Court in A.S.No.61 of 1986 concluded that the claims ofthe respondents do not fall within the provisions of the 1936 Act ona fundamentally erroneous premise that it is only the regularemployees, who satisfy the description of the “persons employed”

under the provisions of the Act. For the limited purpose ofconsidering the status of the respondents, the nature ofemployment whether permanent or purely temporary is whollyirrelevant and it will suffice if the respondents are entrusted withwork by the railway administration, to fall within the provisions of the1936 Act. A fortiori, any amount payable to the respondents forundertaking such a work falls within the definition ‘wages’ in Section2(vi) of the 1936 Act. That, the railway porters are treated aspersons employed in the context of paying their remuneration isevident from circular No.69-TG11/1010/29/SC/R-39, dated08.06.1971 issued by the Railway Board, Ministry of Railways,Government of India, which is marked as Ex.A2 in PW.No.5 of2000, wherein it is stated as under:

“The board have carefully considered the recommendationsand have not accepted the same. However, it has been decided thatthe rates payable to the licence porters when they are employed onhandling parcels, etc., should be fixed on per hour basis (whichshould be based on the minimum rate payable to the local unskilledworker per day as fixed by local authority) without linking it to theweight or number of parcel handled. The same rates will beapplicable to them when engaged at the time of accidents. It shouldbe ensured that no railway work is taken from a licence porterwithout payment.”

Further more, the respondents’ plea is fully supported by judgment of this Court in Divisional Railway Manager (4 supra)filed by no other than the Divisional Railway Manager (Commercial),South Central Railway, Vijayawada, who is opposite party No.1 inall the claim petitions filed by the respondents before the Authorityand also the officer, who is shown to be representing the Union ofIndia, petitioner No.1, in all these writ petitions. In the said writpetitions, the licenced porters, who were employed in the parceloffices of the railway, claimed minimum wages under the 1948 Act. The railway administration, which filed the writ petitions, took thestand that railway parcel offices, which are distinct and different from railway goods sheds are not covered by the notificationsissued under the 1948 Act and that they are not regular employeesof the railway, but are only self-employed labour whose mainoccupation is to carry the luggage of the passengers at the time ofalighting from and boarding into the train.

The learned Judge held that for the purpose of enforcementof the provisions of the 1948 Act, it is immaterial whether theporters, who were engaged to handle the parcel work were regularemployees of the railways or not and that in the same way as thepersons, who are engaged in the railway goods sheds, the railwayporters at the railway stations are also entitled to the payment ofminimum wages. This judgment will be discussed further at a laterstage while dealing with the petitioners’ plea on merits. For thepresent purpose, it will suffice to note that this judgment fullysupports the view taken by me that the petitioners fall within thedescription of “employed person” under the provisions of the 1936Act and the Authority had jurisdiction to entertain the claim petitionsand pass orders thereon. Opposite party No.1, in the claimpetitions, who represent petitioner No.1 in these writ petitions, beingpetitioner No.1 in the writ petitions in which the said judgment isrendered, the same is binding on him.

The learned counsel for the petitioners placed heavy relianceon three different orders of the Supreme Court. The first order waspassed in Civil Appeal Nos.9378, 9379 and 9381 of 1995. Thesaid civil appeals arose out of orders passed by the CentralAdministrative Tribunal, Calcutta Bench, in applications filed by thelicenced porters of MURI railway station of South Eastern Railwayfor their regularization as railway employees. By the said orders,the Central Administrative Tribunal held that the porters were beingutilized on the strength of the agreement as per the terms of the

licences issued to them as porters could not be treated on par withindependent casual labourers engaged by the railwayadministration and that they could not claim absorption byregularization in the railway service. The Tribunal, however, heldthat as they have rendered service for long years, it would amountto injustice if they were denied remuneration/wages at the rate,which is admissible to casual labour having temporary status. Feeling aggrieved by the said orders, the Union of India filed thecivil appeals, which are allowed by the Supreme Court by holdingthat the railway porters are not the railway employees and that theywere handling the parcels on the basis of an agreement in terms ofthe licences issued to them by the railway administration andtherefore they cannot be treated on par with casual labourersemployed on temporary basis by the railway administration. TheSupreme Court has taken note of the fact that while the casuallabourers employed on temporary basis cannot engage themselvesin other employment and that their earnings are limited to thewages/remuneration received from the railway administration, therespondents in the civil appeals being licenced porters are free totake additional earning by carrying the luggage of passengers atthe railway station. This order was followed in civil appeal Nos.752and 753 of 1997. In my considered view, these two orders do not inany manner advance the case of the petitioners to establish thatthe respondents are not persons employed under the provisions ofthe 1936 Act. The issue, which arose in the present cases, wasnever raised in the cases decided by the Supreme Court. The onlyquestion, which arose in the said cases, was whether the railwayporters, who were entrusted with the work of handling parcels bythe railway administration shall be treated on par with the casuallabourers employed by the railway administration on temporarybasis or not for the purpose of regularization of their services. I

therefore fail to understand how these orders have any bearing onthe issue raised in these cases. Similarly, order dated 06.05.1991in WP (Civil) No.480 of 1990 is of no avail to the petitioners as thesaid writ petition filed by Southern Area Railway Stations LicencedPorters Union is dismissed with one line order “The writ petition isdismissed.” The said order contains neither the facts of the saidwrit petition nor the relief claimed therein nor the reasons fordismissing the writ petition. Reliance placed on these three ordersby the learned counsel for the petitioners is therefore whollymisplaced and the contention that orders of the Authority arecontrary to the law laid down by the Supreme Court is rejected aswholly meritless.

For the abovementioned reasons I hold that the Authority waswell within its jurisdiction to entertain and adjudicate the claims.

Whether rejection of the petitioners’ applications for settingaside the ex-parte orders in PW.Nos.4 and 5 of 1996 issustainable

The facts in brief leading to passing of ex parte orders werenoted hereinabove. Hence, they need not be repeated. Thepetitioners filed applications to set aside the ex parte orders. It isnot in dispute that such applications were filed beyond one monthof the passing of the said orders and they were dismissed on theground that the applications were not filed within the prescribedperiod of limitation. The power of the Authority to set aside ex parteorders is governed by Rule 8 of the Payment of Wages (Procedure)Rules, 1937, which for convenience is reproduced below:

“8. Appearance of Parties:- (1) If the application isentertained, the Authority shall call upon the employer by a notice inForm-E to appear before him on specified date together with allrelevant documents and witnesses, if any, and shall inform theapplicant of the date so specified.

(2) If the employer or his representative fails to appear on thespecified date, the Authority may proceed to hear and determine theapplication ex parte.

(3) If the applicant fails to appear on the specified date, theAuthority may dismiss the application:

Provided that an order passed under sub-rule (2) or sub-rule(3) may be set aside and the application re-heard on good causebeing shown within one month of the date of the said order, noticebeing served on the opposite party of the date fixed for re-hearing.”

As could be seen from the proviso to Rule 8, the Authority isempowered to set aside ex parte order on good cause being shownif the application for setting aside the ex parte order is filed withinone month from the date of the order. The applications weredismissed by the Authority on two grounds. The first ground is thatthe petitioners have not shown good cause and that theapplications were filed beyond one month of the date of the order. The Authority, relied on a judgment of the Supreme Court to holdthat as the provisions of the Limitation Act, 1963 are not specificallymade applicable to it, it has no power to condone the delay.

In my opinion, rejection of the petitioners’ applications forcondonation of delay is based on sound reasoning and proper andcorrect understanding of the legal position. I am entirely inagreement with the finding of the Authority that no plausibleexplanation is given by the petitioners for not participating in theproceedings. As rightly pointed out by the Authority, it has not beenconferred with the power to condone the delay. As the Authority isnot a civil Court, Section 5 of the Limitation Act does notautomatically apply without the Act making any provision for suchapplication.

The learned Standing counsel is critical against the approachof the Authority in condoning the delay in the respondents filing PW.Nos.3 of 1998, 4 of 1998 and 4 of 1999 and refusing tocondone the delay in filing the applications for setting aside the exparte orders by the petitioners. This conduct, contends the learnedSanding counsel, reveals that the Authority applied differentyardsticks. I find no justification in this criticism, because undersecond proviso to Section 15(2) of the 1936 Act, the Authority isconferred with the specific power to admit the applications filed fordifferential wages beyond the stipulated period of 12 months whenthe applicant satisfies the Authority that he had sufficient cause fornot making the application within such period.

A perusal of the orders passed by the Authority condoningthe delay shows that he relied on the oral evidence adduced onbehalf of the claimants for explaining reasons for the delay inmaking the applications. Since specific power is conferred on therespondents to condone the delay by the abovementionedprovision of the 1936 Act, he condoned the delay by exercising hissound discretion supported by proper reasons. Therefore, thescope of the power of the Authority in disposing of the respectiveapplications of the petitioners and respondents is conditioned bythe provisions of the Act and the Authority has passed orders inaccordance with the relevant provisions while dealing with thesetwo sets of applications. Hence, I find no substance in thecontention of the learned counsel for the petitioners that theAuthority applied different standards. On a careful analysis of thenature of the applications qua the power of the Authority under the1936 Act, I am satisfied that the orders passed by the Authority onboth the sets of the applications of the respective parties do notsuffer from any illegality.

Whether the jurisdiction of the Authority is ousted as the-claims exceeded Rs.1,600/ per month in respect of each of therespondents At the hearing, it is admitted that barring two or three claimpetitions, in all other petitions, the claims made by the respondentsexceeded Rs.1,600/- per month. Under Section 1(6) of the 1936Act, the Act will not apply to wages payable in respect of a wageperiod, if such average wages are Rs.1,600/- per month or more. Though, the learned counsel for the respondents placed relianceon the notification issued by the Government of India inS.O.No.2831 dated 16.10.1960, I have not felt convinced to acceptthis contention. By the said notification, the words “this Act” inSection 15(2) is directed to be construed as reference to the 1948Act or the Rules made thereunder. The said notification was issuedfor the purpose of conferring jurisdiction on the Authority to entertainthe claims arising out of deductions from or delay in payment ofwages under the provisions of the 1948 Act. Admittedly, therespondents have not filed their applications under the provisions ofthe 1948 Act and this notification has no relevance to theapplications filed by the respondents for payment of deductedwages under the 1948 Act. At any rate, even if the words “this Act” are construed as the provisions of the 1948 Act, Section 1(6) of theAct, which places ceiling on the jurisdiction of the Authority stillapplies.

However, I am inclined to accept the alternative submission ofthe learned counsel for the respondents that the orders passed bythe Authority directing payment of differential wages shall beconfined to the maximum limit stipulated in Section 1(6). I havechosen to accept this submission in order to obviate the necessityof the respondents to embark upon a fresh litigation having spentmore than two decades in fighting this litigation. Since, up to theclaims below Rs.1,600/- the Authority is conferred with thejurisdiction to entertain and adjudicate the claims, I feel that

interests of justice would be met if the claims made by therespondents are treated to have been limited to the maximumceiling that has been prescribed under Section 1(6) of the 1936 Actand the liability of the petitioners is accordingly limited to the saidceiling.

Whether the order of the Authority is liable to be interfered withon the grounds of absence of evidence supporting the claimsand the claims being for potential wages As noted above, orders passed in PW.Nos.4 and 5 are exparte in nature. The Authority recorded the evidence of one of theworkmen given as AW.1 and considered Exs.P1 to P3. In othercases, evidence was adduced on both sides, as the petitionersseriously contested the applications. The case of the respondentsis that they are licenced porters and under the conditions of thelicences they shall work under the overall supervision of AssistantStation Master/Station Master/ Station Superintendent and carry outinstructions given either by him or by the Platform Inspector. It istheir further case that under condition No.1 of the licences, they arecharged with the responsibility of (i) handling passengers luggageand (ii) parcels and luggage in the custody of the railway at rates ofremuneration as may be fixed by the administration. Thepetitioners admit existence of these conditions in the licence. It isalso the common case of the parties that the Railway Board,Government of India, Ministry of Railways, while rejecting therecommendation of the study group of Railway Licenced Portersand Commission Vendors that when a licenced porter is engagedfor railway work, he may be paid a minimum daily rate worked outon the basis of the monthly wage (basic pay + dearnessallowances) admissible to class IV railway employees, the Board,however, decided that the rates payable to the licenced porterswhen they are employed on handling parcels etc., should be fixed on per hour basis (which should be based on the minimum ratepayable to the local unskilled worker per day as fixed by localauthority) without linking it to the weight or number of parcelshandled.

In the written statements filed by the petitioners, a portion ofthis letter has been reproduced and it is pleaded that payments arebeing made in accordance with the said letter.

The Chief Parcel Supervisor, Eluru railway station, examinedas RW.1 in PW.No.5 of 2000, referred to this circular (year of theletter is mentioned as 1997 obviously by mistake for 1971). In hischief-examination, he admitted that the said circular is being giveneffect to on the basis of the wages fixed by the Collector. In hiscross-examination, the said witness stated that the local authorityreferred in Ex.A2 – Circular was the District Collector. He alsoadmitted that as per Ex.A4, the Railway Porters Union approachedthe management in pursuance of orders passed in WP.No.19718 of1983 and arrived at an understanding for taking 280 man hours perday for handling parcels by the licenced porters at Eluru railwaystation and that arrears of Rs.4,84,613=95 ps., were paid to theporters of Eluru railway station in pursuance of Ex.A4. He alsoadmitted that Ex.A5 is the acquittance sheet for such payment. He further stated in his evidence as under:

further stated in his evidence as under:

“There are more than 30 trains involving parcel operationsduring 24 hours. Trains will come at different times. The porters andthe parcel staff must be alert round the clock to handle the parcels atdifferent trains. The parcel handling work is of regular nature. Thenature of work at Vijayawada, Rajahmundry and Eluru parcel officesis the same.”

“It is true as per Ex.A6, the railway board had entrustedhandling of parcels to the railway licenced porters at 22 stations,which include Eluru railway station.”

The Assistant Commercial Manager, South Central Railway, Vijayawada, examined as RW.2, in the said case stated that thelicenced porters, who are required to attend the parcel handlingwork are paid remuneration depending on the number ofminutes/hours they worked on hourly basis in terms of the circularissued by the railway board (Ex.A2). He further stated as under:

“Since 1980, we have been implementing the railway board’sorders regarding payment system to licenced porters without anychange. We have no right to change the system mentioned in therailway board orders. 280 man hours as agreed in Ex.A4 wasimplemented till such time, it worked out depending on the parcelhandling work. As there is reduction in parcel handlingsubsequently, man hours have been reduced.”

He referred to Ex.A5 (acquittance register) and admitted thatthe said register contains the number of days and hours for whicheach porter attended parcel handling work and for whichremuneration was paid. The witness also admitted the correctnessof Exs.A7 and A8, the bunches of extracts from muster rolls forlicenced porters maintained at Eluru railway station during severalmonths of 1981, 1982, 1983, 1984, 1985, 1986 and 1993 ascorrect. He stated that he cannot specify from which date and towhat extent the parcel work is reduced and admitted that the parcelhandling work is regular in nature.

From the evidence available on record, as discussed above,it is quite clear that all the railway stations in respect of which claimshave been made and orders passed by the Authority are includedin the 22 railway stations in which the handling of parcels havebeen entrusted to the licenced porters. It has also come on recordthat in pursuance of the railway board circular (Ex.A2), the portersare paid on hourly basis the wages fixed by the District Collector ofWest Godavari District. The only question, which was in dispute,was whether the porters have worked for more than 4 hours or not. It is admitted, as pointed out by the Authority, that the railway

porters are covered by the provisions of the 1948 Act and the 1936Act as per the Railway Board’s notification No.409-TC/LA, dated10.03.1949 and under Section 15 of the 1948 Act read with Rule 28of 1960 Rules made thereunder when an employee worked formore than 4 hours in a day, he is entitled for full day’s wages. It isadmitted by RWs.1 and 2 that in pursuance of Ex.A4,understanding, the respondents were paid full day’s wages bycalculating 280 man hours for the period from November, 1984 toOctober, 1988 in respect of the railway porters of Eluru railwaystation. The case of the respondents is that as there was reductionin the work load subsequently, they stopped paying full day’swages and they were being paid for the actual number of hoursworked. Significantly, RW.2 in his evidence stated that he wasunable to state, to what extent the work got reduced. Unless theyare able to demonstrate that the work got reduced to below 4 hours,the petitioners are not entitled to calculate wages at less than aday’s wage. The Authority having considered the material onrecord, concluded that the respondents are entitled to receive fullday’s wages as there was enough evidence to show that they haveworked for more than 4 hours in a day in accordance with Section15 read with Rule 28 of the A.P. Minimum Wages Act and Rulesrespectively. Therefore, I am unable to accept the contention of thelearned Standing counsel for the petitioners that the orders passedby the Authority are not based on evidence. It has to be stated atthis stage that the learned Standing counsel has not made anyspecific submissions with reference to the contents of variousorders passed by the Authority, but advanced a general contentionthat the orders are not based on proper evidence. In view of thediscussion undertaken above, this contention is without any basis. While examining the orders passed by the administrative and quasijudicial authorities, this Court is only concerned with the decision making process and not with the merits of the decision. I n TataCellular vs. Union of India[11]the Supreme Court held:

“The scope of judicial review under Article 226 of theConstitution, it is trite, is confined to examining the decision makingprocess and not the merits of the decision. The Court has toexamine whether the decision taken by the authorities suffers fromany illegality, irrationality or procedural impropriety. In examiningwhether a decision is irrational or not, the Courts are applyingWednesbury’s principle viz., whether the conclusion arrived at by theauthority is such that no reasonable person would ever reach such aconclusion.”

When once the order is based on some material, thesufficiency or otherwise of such material does not fall within therealm of judicial review of this Court under Article 226 of theConstitution of India. In Shamshad Ahmed and others vs. Tilak

Raj Bajaj and others[12],the Supreme Court explained the scope ofHigh Courts’ jurisdiction under Article 226 of the Constitution ofIndia, after exhaustive consideration of its earlier judgments inBathutmal Raichand Oswal Vs. Laxmibai R.Tarta–(1975) 1 SCC858, State of Maharashtra Vs. Milind-(2001) 1 SCC 4, State Vs.Navjot Sandhu-(2003) 6 SCC 641, Om Prakash Vs. SunhariDevi-(1993) 2 SCC 397, Ranjeet Singh Vs. Ravi Prakash-(2004)3 SCC 682, Bega Begum Vs. Abdul Ahad Khan-(1979( 1 SCC273 and Chandavarkar Sita Ratna Rao Vs. Ashalata S.Guram-

(1986) 4 SCC 447, and held :

“The power is supervisory in nature. The High Court does notact as a court of appeal or a court or error. It can neither reviewnor reappreciate, nor reweigh the evidence upon whichdetermination of a subordinate court or inferior tribunal purportsto be based or to correct errors of fact or even of law and tosubstitute its own decision for that of the inferior court ortribunal. The powers are required to be exercised mostsparingly and only in appropriate cases in order to keep thesubordinate courts and inferior tribunals within the limits of law”.

From the reasons contained in the orders passed by theAuthority and the evidence placed before it, I am fully satisfied that the orders for payment of differential wages are based on relevantmaterial and such orders are not liable to be interfered with by thisCourt in exercise of its supervisory jurisdiction under Article 226 ofthe Constitution of India. The contention of the learned StandingCounsel that the wages awarded by the Authority are in the natureof potential wages, can be mentioned only to be rejected. Thematerial discussed above clearly belies this contention as theclaims are covered by the Railway Board circular (Ex.A2), thenotifications being issued by the District Collector, West GodavariDistrict, from time to time and for the actual hours for which therespondents are found to have worked.

In this connection, some of the orders passed by this Courtare worth mentioning. I n B. Ramulu and others vs. Union ofIndia, rep., by GM, South Eastern Railway, Calcutta[13]some ofthe licenced porters of Kothavalasa railway station under WaltairDivision in Visakhapatnam District filed the said writ petitionquestioning reduction of working hours from eight hours a day toless than four hours. This Court, while holding that there wasrelationship of employer and employee between the railwayadministration and the porters, further held that the railways cannotunilaterally reduce the working hours for payment of minimumwages without notice and opportunity of hearing to the porters. Accordingly, this Court quashed the proceedings reducing theworking hours. The said order was confirmed in WA.No.1243 of1996 by a Division Bench of this Court while leaving open thequestion regarding the nature of relationship between the railwaysand porters. The Supreme Court confirmed the said order bydismissing the SLP with the following order:

“The respondents are entitled to be paid according to theMinimum Wages Act on per day basis even though they may not beregular employees of the petitioners. The special leave petition isdismissed.”

WP.No.14908 of 1986 was filed by the South Central Railwayagainst the Labour Enforcement Officer (Central) Government ofIndia, Ministry of Labour for a writ to declare that the licencedporters engaged by the petitioner therein in railway parcel office arenot employees within the meaning of Minimum Wages Act andaccordingly to further declare that the said Act and the Rulesthereunder have no application to the licenced porters. The saidwrit petition was dismissed by a Division Bench of this Courtfollowing the order of the Supreme Court in SLP.No.2963 of 1997,dated 26.03.1999 referred to above, whereunder the DivisionBench held that though the licenced porters are not regularemployees, they are entitled for minimum wages under theMinimum Wages Act, 1948.

In Divisional Railway Manager (4 supra) this Court rejecteda similar plea of the railways that the porters of Guduru railwaystation were not entitled to wages as claimed by them as they werebeing engaged at short intervals and that thereafter they are free toattend to their work of carrying luggage of passengers. This Courtrelying on its earlier orders in B. Ramulu ( 13 supra) and theDivision Bench judgment as confirmed in SLP.No.2963 of 1997held:

“The learned counsel for the petitioners next contended thatthe services of the licenced porters are utilized by the railway forshort intervals at the time of arrival of trains for the purpose of loadingand unloading of goods into the break-vans and, thereafter, they arefree to attend to their other work of carrying the luggage ofpassengers. This is countered by the learned counsel for therespondents by stating that the services of the porters is utilized bythe railway on rotation basis for more than 8 hours per day and whenthe working hours are sought to be reduced to 4 hours per day, theporters filed WP.No.13364 of 1994 in this Court seeking a directionthat their full-time employment cannot be converted into a part-timejob for 4 hours a day only. The said writ petition was allowed by alearned Single Judge of this Court by judgment dated 30.07.1996

and the same was confirmed by the Division Bench in WA.No.1243of 1996. The special leave petition SLP.No.2963 of 1997 filedagainst the said judgment was dismissed by the Supreme Court on26.03.1997 holding that the porters are entitled to be paid accordingto the Minimum Wages Act on per day basis even though they maynot be regular employees of the railway. In view of thispronouncement of the Apex Court, I am afraid the question raised isno longer open to debate. It may also be mentioned the pendingdisposal of WP.No.13364 of 1994, an interim direction was grantedby this Court in WPMP.No.16321 of 1994 directing the South EasternRailway, Visakhapatnam to pay the minimum wages under theMinimum Wages Act to the petitioners therein pending disposal ofthe writ petition. As the said interim direction was not implemented,Contempt Case No.752 of 1995 was filed. The said contempt casewas disposed of on 22.03.1996 holding that the petitioners thereinwere entitled to the minimum wages as fixed by the Government anddirecting the railway administration to pay the arrears within sixweeks and to continue to pay the minimum wages in future as per theGovernment notification. It is stated by the learned counsel for therespondents that the said order has been complied with. It is alsostated that all the other railways except the South Central Railwayhave implemented the minimum wages for licenced porters workingin the parcel offices.”

Conclusion

The orders referred to above further support the conclusionarrived at by the Authority that the respondents are entitled topayment of withheld wages and the orders under challenge, farfrom being contrary to the orders of the Supreme Court referred toby the petitioners’ counsel, are, in fact, in consonance with thevarious orders passed by this Court and the Supreme Court.

Whether the petitioners are liable to pay compensation Under Section 15(3), the Authority is empowered to directrefund to the employed persons of the amount deducted towardswages along with compensation not exceeding 10 times theamount so deducted. The learned Standing counsel for thepetitioners submitted that as there was genuine dispute, theAuthority was not justified in awarding 5 times the wages ascompensation.

Having regard to the facts and circumstances of the cases, I

am of the view that justice would be balanced if the orders of theAuthority to the extent of payment of compensation are set aside. Accordingly, all the orders passed by the Authority questioned inthis batch of writ petitions are modified to the above extent.

In the result, the writ petitions are partly allowed and theorders of the Authority are modified in the following terms.

1. The direction to pay the wages to the respondentscontained in the impugned orders of the Authority shall belimited to the ceiling contained in Section 1(6) of the 1936Act. The parties are given liberty to file their respectivememos of calculation before the Authority working out thewages payable applying the said ceiling. On such filing,the Authority shall pass an order fixing the liability of thepetitioners within 3 months, and

2. The petitioners are not liable to pay compensation.

As a sequel to disposal of all the writ petitions,WPMP.Nos.18720 of 1996 and WVMP.No.131 of 1997 inWP.No.15269 of 1996, WPMP.No.25240 of 1996 andWVMP.No.197 of 1997 in WP.No.20450 of 1996, WPMP.No.22687of 1997 in WP.No.18710 of 1997, WPMP.No.26742 of 1999 inWP.No.21322 of 1999, WPMP.No.29115 of 1999 in WP.No.23199of 1999, WPMP.No.5558 of 2000 in WP.No.4202 of 2000,WPMP.No.33345 of 2000 in WP.No.26193 of 2000,WPMP.Nos.33366 of 2000 and 20671 of 2001 and WVMP.No.697of 2001 in WP.No.26214 of 2000, WPMP.No.33623 of 2000 inWP.No.26435 of 2000, WPMP.No.22236 of 2001 andWVMP.No.3283 of 2001 in WP.No.17748 of 2001, WPMP.No.5239of 2002 in WP.No.4220 of 2002, WPMP.No.14147 of 2002 inWP.No.11485 of 2002, WPMP.No.14429 of 2002 in WP.No.11702of 2002, WPMP.No.14688 of 2002 in WP.No.11903 of 2002, WPMP.No.14842 of 2002 in WP.No.12019 of 2002,WPMP.No.15915 of 2002 in WP.No.12813 of 2002,WPMP.No.17135 of 2005 in WP.No.13501 of2005,WPMP.No.17242 of 2005 in WP.No.13594 of 2005,WPMP.No.19233 of 2005 in WP.No.15134 of 2005 are disposed ofas infructuous.

Date: 24.12.2008ES

__________________________

C.V.NAGARJUNA REDDY, J

[1](1977) 1 SCC 484[2](2003) 3 SCC 472[3]2007 (4) ALT 4214)WP.No.20846 of 1993 and batch dated 13.10.1997.5(2006) 4 SCC 6836(2005) 7 SCC 1907(1999) 5 SCC 5908(1970) 1 SCC 6139(2004) 5 SCC 69810 AIR 1976 SC 253811(1994) 6 SCC 65112(2008) 9 SCC 113) Order in W.P.No.13364 of 1994 of this Court.