Bhagwan Das and Another vs Chabili Das

Sherfuddin Ahmed, J.—The question that requires determination in this Revision Petition is whether against the order made by the competent authority u/s 37-A of the Hyderabad Shops and Establishments Act (10 of 1951), an appeal lies to the Chief Judge of the Small Causes Court or to the District Court. A claim was instituted before the competent Authority under the Hyderabad Shops and Establishments Act in respect of the service rendered by the petitioner herein as an employee of the Mukund Rice Mill at Bhiknur. The claim was decreed by the competent authority. Aggrieved by that order, an appeal was filed to the Chief Judge, Court of Small Causes in Appeal No. 304/3 of 1961. The learned Chief Judge held that he was not competent to entertain the appeal, and in that view dismissed the same. The revision petition is directed against this order.

According to Section 37-A of the Hyderabad Shops and Establishments Act, the provisions of Section 15 of the Payment of Wages Act, 1936 have been made applicable to claims arising under the Hyderabad Shops and Establishments Act. Recently, a Bench of this Court in Hyderabad Handloom Weavers'' Central Co-operative Association Ltd. Vs. Authority under Payment of Wages Act, Andhra Pradesh and Another, ) held that right of appeal as provided u/s 17 of the Payment of Wages Act is available to proceedings u/s 37-A of the Hyderabad Shops and Establishments Act, but the question as to the forum of appeal, which did not arise in that case, was not considered. u/s 17 of the Payment of Wages Act, 1936, an appeal has been provided in the case of Presidency-town before the Court of Small Causes, and elsewhere before the District Court. "Presidency-town" has been defined in Section 3, Clause (25) of the Andhra Pradesh General Clauses Act as "the local limits for the time being of the ordinary original civil jurisdiction of the High Court of Judicature at Madras", so that u/s 17 of the Payment of Wages Act, the Court of Small Causes in the City of Hyderabad is not competent to entertain an appeal. But, according to Rule 19 of the Rules framed u/s 26(3)(L) of the Payment of Wages Act, 1936, an appeal in the prescribed form against a direction made by an authority may be preferred within a period of 30 days in the cities of Hyderabad and Secunderabad to the Court of Small Causes and to the District Court elsewhere. This Rule does not seem to be consistent with Section 17 of the Payment of Wages Act, 1936. The learned counsel for the petitioner contends that as the provisions of Section 17 of the Payment of Wages Act have not been made applicable to the proceedings under the Hyerabad Shops and Establishments Act, Rule 19 would not be attracted. The Hyderabad Shops and Establishments Act does not provide for appeals, but as stated in the ruling cited above, the Rule has been extended to proceedings arising under the Hyderabad Shops and Establishments Act. In view of this divergence between the Rules framed and the statutory provision, I think it is proper to refer the matter to a Bench for an authoritative pronouncement. Post before Bench.

ORDER OF THE BENCH

Chandra Reddy, C.J.

The question that poses itself in this Civil Revision Petition is whether there is repugnancy between Section 17 of the Payment of Wages Act. hereinafter referred to as "the Act" and Rule 19 of the Rules framed u/s 26(3)(L) of the Act as amended in 1959, and it arises in the following circumstances.

The respondent made a claim before the competent Authority under the Hyderabad Shops and Establishments Act in respect of the services rendered by him as an employee of the petitioners. The claim was decreed by the competent Authority. Dissatisfied with that order, they carried an appeal to the Chief Judge, Court of Small Causes, Hyderabad. The learned Judge dismissed the appeal in the view that he was not competent to entertain the appeal. It was to revise this order that the present Revision Petition was filed. When it came on for hearing before Mr. Justice Sharfuddin Ahmed, he referred the matter to a Division Bench for an authoritative pronouncement having regard to the divergence between the rule quoted above and Section 17 of the Act.

The short point that calls for determination in this Civil Revision Petition is whether Rule 19 is in any way inconsistent with Section 17 of the Act. Section 17 in so far as it is of immediate relevancy reads thus:

"17. Appeal -- (1) An appeal against an order dismissing either wholly or in part an application made under Sub-section (2) of Section 15, or against a direction made under Sub-section (3) or Sub-section (4) of the section may be preferred, within thirty days of the date on which the order or direction was made, in Presidency town before the Court of Small Causes and elsewhere before the District Court.-----------------------"

It is manifest that an appeal can be filed in the Court of Small Causes in a Presidency town and elsewhere in the District Court. It is true that "Presidency town" is not defined in this Act. We have therefore to turn to Section 3(44) of the General Clauses Act (Central) which defines a "Presidency-town" as the local limits for the time being of the ordinary original civil jurisdiction of the High Court of Judicature at Calcutta, Madras or Bombay, as the case may be. Since the Payment of Wages Act is a Central enactment, it is governed by the General Clauses Act (Central). That apart, the Andhra Pradesh General Clauses Act adopted this definition in Section 3(25) of the Act. It is thus clear that an appeal could be filed u/s 17 in places other than the three presidency-towns in the District Court.

Complication in this behalf was created by Rule 19 of the Rules framed by the Government u/s 26(3)(1) of the Payment of Wages Act. Section 26 vests in the State Government the power to make rules to regulate the procedure to be followed by the authorities and Courts referred to in Sections 15 and 17, and also to make rules for the purposes of carrying into effect the provisions of the Act. Apart from the general powers derived under Sections 1 and 2 Sub-section (3) enables the Government, to make rules for any of the purposes enumerated in Clauses (a) to (1) of Sub-section (3). Clause (1) of Sub-section (3) of Section 26 entitled the Government to make rules prescribing the abstracts to be contained in the notices required by Section 25. We fail to see how Clause (1) could clothe the Government with power to make a rule like Rule 19 conferring a right of appeal. We think this clause does not empower the Government to make a rule like the one in Rule 19. Even if Clause (J) contemplated the making of rules like Rule 19, Rule 19 cannot co-exist with Section 17 of the Act if it is opposed to the latter. It is well-settled that rules made under an enactment should not be repugnant to the section in the Act. There could be little doubt in this case that there is a conflict between both because while the right to file an appeal in the Court of the Chief Judge, Small Causes is restricted to the Presidency-Towns by Section 17(1) which directs the appeal to be filed before the District Court in other places, Rule 19 as it stands to-day permits the filing of the appeal in the Court of Small Causes in the Cities of Hyderabad and Secunderabad which are not Presidency towns within the scope of Section 17. So this is inconsistent with Section 17 of the Act.

It may be mentioned here that the Rule as originally framed confined the right to file the appeal in the Court of Small Causes in the City of Madras. Under that rule, in other places, an appeal had to be filed in the District Court. Rule 19 as amended by the Government of Andhra Pradesh in 1959 has substituted cities of Hyderabad and Secunderabad for city of Madras. We have therefore to strike down Rule 19 as amended in 1959 as being in excess of the Rule making power of the Government.

It follows that the Chief Judge of Court of Small Causes in the City of Hyderabad cannot entertain an appeal u/s 17 of the Payment of Wages Act. Hence, the view of the Trial Court is correct. He will return the papers to the petitioners, who can present them in the proper Court, viz., the principal Court of original jurisdiction in the cities.

C.M.P. No. 548 of 1963. Not pressed. Dismissed.