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Judgment
Jaganmohan Reddy, J.—These two writ petitions have been referred to a Bench by Srinivasachari, J., inasmuch as the question involved would affect a large body of persons. In both these petitions, the point for consideration is whether an appeal would lie from an order of an authority appointed u/s 15 of the Payment of Wages Act read with Section 37-A of the Shops and Establishments Act.
The facts in W. P. No. 911 of 1960 are that the 3rd respondent who is an employee of the Hyderabad Handloom Weavers Central Co-operative Association, was suspended on 23-5-1958 and was dismissed on 26-9-1958 after departmental enquiry, for misconduct and misappropriation of property belonging to the Association. A criminal prosecution launched against him for these charges finally ended in his acquittal. The 3rd respondent thereafter filed an application before the Authority under the Payment of Wages Act, purporting to be u/s 15 of the Act, claiming a sum of Rs. 1,975/- together with Rs. 120 as delayed wages and continuing wages for the period. The Authority directed the Association to pay the 3rd respondent a sum of Rs. 2535-50 np. and the Association preferred an appeal against the said order before the Additional Chief Judge, City Civil Court, but that Court after hearing arguments returned the memorandum of appeal for presentation to the proper forum, holding that it had no jurisdiction.
Writ Petition No. 841 of 1960, also by the Hyderabad Handloom Weavers Central Co-operative Association, relates to the same matter wherein the 3rd respondent had been dismissed and had applied to the Authority under the Payment of Wages Act for directing the petitioner to deposit the amount of Rs. 946/- being the wages accrued due subsequent to the date of the dismissal. The said authority directed the payment of the sum stated above which included the additional payment. Having regard to the rejection of the memorandum of appeal by the City Civil Court in the main matter, in the previous application the subject matter of W.P. No. 911 of 1960, the petitioner stated in para 7 of the petition that althorough the Central Act provides for an appeal but it is extremely doubtful whether this remedy is available under the Hyderabad Shops and Establishments Act; and as such no adequate and satisfactory remedy exists.
Learned Government Pleader in support of the order of the City Civil Court directing the return of the memorandum of appeal contends with reference to Section 15 of the Payment of Wages Act that Section 37-A of the Shops arid Establishments Act is a legislation by reference and unless the other provisions relating to appeals namely, Section 17 of the Payment of Wages Act, are incorporated in the Shops and Establishments Act, no appeal lies against the order made by the authority u/s 37-A. He further submits that the legislature instead of adopting Section 15 ipsissima verba, merely referred to it, but the effect of Section 37-A is the same as if Section 15 was bodily incorporated mutatis mutandis in place of Section 37-A. Learned advocate for the petitioner, on the other hand, submits that the effect of Section 37-A is not to incorporate Section 15 in the Act, but to make the authority appointed u/s 15 of the Payment of Wages Act to function as an authority under the Shops and Establishments Act. If so, the other provisions of the Payment of Wages Act, relating to appeals, viz., Section 17 would become automatically applicable. In order to test the validity of these rival contentions, it is necessary to examine the language of Section 37-A read in conjunction with Section 15 and other relevant provisions of the Payment of Wages Act.
It may first be stated that the Payment of Wages Act is a Central Act being No. IV of 1936 and was made applicable to the then State of Hyderabad by the Part B States (Laws) Act III of 1951 as from the 1st of April, 1951. Section 37-A was incorporated in the Shops and Establishments Act as an amendment by Act 30 of 1952 and published in the Gazette Extraordinary of 25th July 1952. Section 37-A of the Shops and Establishments Act, and Sections 15 and 17 of the Payment of Wages Act are in the following terms:-
37-A. The provisions of Section 15 of the Payment of Wages Act, 1936 (IV of 1936) shall mutatis mutandis apply to claims arising out of deductions from wages payable under this Act, delay in payment of such wages and penalty for malicious and vexatious claims in respect of such wages and reference to an Inspector under the said Act, in the said section shall be deemed to be reference to an inspector appointed under this Act."
"15. Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims - (1) The State Government may, by notification in the Official Gazette appoint any Commissioner for workmen''s compensation or other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages of persons employed or paid in that area.
Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner, or any official of a registered trade union authorised in writing to act an his behalf, or any Inspector under this Act or any other person acting with the permission of the authority appointed under sub-section (1) may apply to such authority for a direction under sub-section (3):
Provided that every such application shall be presented within six months from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be:
Provided further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
When any application under sub-section (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages u/s 3 or give them an opportunity of being heard, and, after such further enquiry (if any) as may be necessary, may without prejudice to any other penalty to which such employer or other person is liable, under this Act, direct the refund to the employed person, of the amount deducted, or the payment of the delayed wages, together with 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 ten rupees in the latter:
Provided that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to-
a) a bona fide error or bona fide dispute as to the amount payable to the employed person, or
b) the occurrence of any emergency or the existence of exceptional circumstances, such that the person responsible for the payment of wages was unable, though exercising reasonable diligence, to make prompt payment, or,
c) the failure of the employed person to apply for or accept payment.
If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, the authority may direct that a penalty not exceeding fifty rupees be paid to the employer or other person responsible for the payment of wages by the person presenting the application.
Any amount directed to be paid under this section may be recovered-
a) if the authority is a Magistrate, by the authority as if it were a fine imposed by him as Magistrate, and
b) if the authority is not a Magistrate by any Magistrate to whom the authority makes application in this behalf, as if it were a fine imposed by such Magistrate.
Appeal:- (1) An appeal against a direction made under sub-section (3) or sub-section (4) of Section 15, may be preferred, within thirty days of the date on which the direction was made, in a Presidency town before the Court of Small Causes and elsewhere before the District Court-
a) by the employer or other person responsible for the payment of wages u/s 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees, or
b) by an employed person, if the total amount of wages claimed to have been withheld from him or from the unpaid group to which he belonged exceeds fifty rupees, or
c) by any person directed to pay a penalty under subsection (4) of Section 15.
Save as provided in sub-section (1) any direction made under sub-section (3) or sub-section (4) of Section 15 shall be final.
From a reading of the respective provisions of the two Acts, it appears to us that the Legislature did not adopt a language from which it can be considered that the provisions of Section 15 of the Payment of Wages Act were bodily incorporated in the Shops and Establishments Act. If that was the intention of the Legislature simpliciter, the language used would have been clear and unambiguous - some such language as ''the provisions of Section 15 of the Payment of Wages Act shall mutatis mutandis be deemed to have been incorporated as if it were a part of this Act.'' But instead, the draftsman employed a language to which meaning must be given as drafted, that the provisions of Section 15 of the Payment of Wages Act, shall apply mutatis mutandis to claims arising out of deductions from wages payable under this Act, delay in payment of such wages and penalty for malicious and vexatious claims in respect of such wages, meaning thereby that whenever matters arising out of the topics enumerated arise under the Shops and Establishments Act, the provisions of Section 15 of the Payment of Wages Act are attracted, namely, that applications to the authority appointed u/s 15 can be made and the matter enquired into and determined by that authority.
Secondly, the provision that the reference to an Inspector u/s 15 of the Payment of Wages Act is to be deemed to be a reference to an Inspector under the Shops and Establishments Act further clarifies the intention of the Legislature. In other words, an Inspector under the Payment of Wages Act is not to be freshly appointed under the Shops and Establishments Act, but is merely to be deemed to be appointed under that Act. The phrase ''deemed to be'' is only used with a view to extend the application of the provisions of a law which are not otherwise incorporated in the Act in which the phrase is used, a position which does not in fact exist by the use of the phrase. Coming to S. 15 of the Payment of Wages Act itself, it would be observed that every order as provided in sub-section (1) of S. 17 is an appealable order and not a final one. Only if it does not fall within S. 17(1) does an order become final, that is where an employer is directed to pay wages and compensation exceeding Rs. 300/- or by an employed person if the total amount of wages claimed to have been withheld from him or from the unpaid group to which he belonged exceed Rs. 50/- or by any person directed to pay a penalty under sub-section (4) of S. 15.
Where once the authority under S. 15 is the authority to adjudicate upon matters specified in S. 37-A of the Shops and Establishments Act, orders made by such authority become appealable under Sec. 17. That provision as well as the provisions under Ss. 18 and 19, which are incidental provisions would also be attracted. Learned Government Pleader, Mr. P. Ramachandra Reddy, contends by reference to S. 23-A of the Foreign Exchange Regulation Act (VII of 1947) that if the Legislature had intended to apply the incidental provisions it would have used a language similar to that used in the said section when it intended to apply certain provisions of the Sea Customs Act by stating that
all the provisions of that Act shall have effect accordingly except that S. 183 thereof shall have effect as if for the word ''shall'' therein the word ''may'' were substituted. At the outset we may observe that the exigencies of each Act are different and the language used in applying the provisions of other Acts are conditioned by that requirement. Certain restrictive provisions under the Foreign Exchange Regulation Act were deemed to have been imposed under S. 19 of the Sea Customs Act and the other provisions of the Sea Customs Act are to be read as giving effect to these provisions except that the word ''shall'' in S. 183 should be read as ''may''.
It is obvious even from S. 23-A of the Foreign Exchange Regulation Act, that the restrictions under that Act are made applicable to the Sea Customs Act also. But that does not, however, involve the question of attracting incidental provisions. All that the Legislature is anxious is to harmonize the provisions of the Sea Customs Act for importing all further restrictions into it and has adopted suitable language to give effect to it. A Full Bench of the Madras High Court in A.M.S. Mohammed Kasim Vs. The Assistant Collector of Central Excise, Madurai, has also observed that the rest of the Act is made applicable in logical sequence, but another legal fiction is created, whereby, in the context of that, S. 183 has to be read with a verbal alteration. The language of S. 23-A does not amount either to the incorporation of the Sea Customs Act into the Foreign Exchange Regulation Act or vice versa.
Learned Government Pleader further cited two passages, one from Maxwell and the other from Craies in support of his contention that S. 37-A is a legislation by incorporation. In our view these passages do not by themselves assist us in determining whether it is a legislation by incorporation or application of the particular authority to function as an authority under a particular Act. No exception can be taken to the proposition that where there is a legislation by reference and subsequently the referred provision is repealed, that will not have the effect of repealing the provision which has already been incorporated. The passage at page 407 of Maxwell''s Interpretation of Statutes, 10th edition, refers to this aspect of the matter. Craies on Statute Law at page 137 cites the passage of Lord Blackburn in Mayor of Portsmouth v. Smith, (1885) 10 AC 364 at p. 371 to the following effect:
Where a single section of an Act is introduced into another (i.e., a subsequent) Act, it must be read in the sense which it bore in the original Act from which it was taken, and consequently it is perfectly legitimate to refer to all the rest of that Act in order to ascertain what the section meant, though those other sections are not incorporated into the new Act. I do not mean that it there was in the original Act a section not incorporated which came by way of a proviso or exception on that which was incorporated, that should be referred to; but all others, including the interpretation clause, if there be one, may be referred to.
This passage, apart from assisting the learned Government Pleader''s contention, supports the view we have taken that the provisions must be read in the sense which it bore in the original Act from which it was taken and consequently it is perfectly legitimate to refer to all the rest of that Act in order to ascertain what the section meant, though those other sections are not incorporated into the new Act. For instance, if the contention of the learned Advocate that S. 15 only was incorporated in the Shops and Establishments Act, is for a moment accepted, it would make that provision unworkable for the reason that there is no other provision relating to the manner of taking evidence, to compel production of documents etc. If that was the only section which is applicable to the authority empowered under S. 15, he need not record any evidence, need not examine the aggrieved party, need not even give oath or conduct the enquiry in accordance with any particular procedure. That certainly could not have been the intention of the Legislature.
Section 18 of the Payment of Wages Act clearly applies the provisions of the Code of Civil Procedure, 1908, and invests the Authority appointed under sub-section (1) of S. 15 with certain powers and deems that Authority to be a Civil Court for the purposes of S. 195 and Chapter XXV of the code of Criminal Procedure. These incidental powers become a part of S. 15, so that the authority under S. 15 (sic. would be) exercising those powers, even while acting as an authority under S. 37-A of the Shops and Establishments Act. We are clear in our minds that the Legislature did not intend merely to incorporate the provisions of S. 15 into the Act, but made the authority appointed under S. 15 of the Payment of Wages Act to function as an authority under the Shops and Establishments Act.
Referring to the observations of Lord Bramwell in the case of Sandback Charity Trustees v. North Staffordshire Rly. Co. (1877) 3 QBD 1 their Lordships of the Privy Council in Rangoon Botatoung Co. Ltd. v. Collector, Rangoon, ILR 40 Cal 21 (PC) observed at page 27 that the remarks of Lord Bramwell that an appeal does not exist in the nature of things, and a right of appeal from any decision of any Tribunal must be given by express enactment, must be confined to the particular provisions of the Act. This passage was, however, subsequently explained by AIR 1936 93 (Privy Council) when he observed at page 155 (of ILR Lah): (at p. 96 of AIR) as follows:
......The Rangoon case already mentioned was considered and the decision was held to be explained by the fact that the proceedings were from beginning to end ostensible and actually arbitration proceedings, the nature of the question to be tried being merely the value to be put upon certain land. Of the case then before the Board it was said:
''The claim was the assertion of the legal right to possession of and property in land; and if the ordinary Courts of the country are seized of a dispute of that character it would require in the opinion of the Board a specific limitation b exclude the ordinary incidents of litigation.
On a reference to the provisions of the Sikh Gurdwaras Act, 8 of 1925, the Privy Council held that the provisions of the CPC apply to the decrees of the High Court made under S. 34 of the Act, which provided for an appeal to the High Court. Once an appeal to the High Court has been provided for, a right of appeal to the Privy Council also would arise. At page 157 (of ILR Lah): (at p. 96 of AIR) their Lordships observed as follows:
...............Having regard to the character, the variety and the importance of the questions to be dealt with by a tribunal, and to the terms in which the right of appeal to the High Court is provided by the section, their Lordships are of opinion that the provisions of the CPC with reference to appeals to His Majesty apply to decrees of the High Court made under S. 34 of the Sikh Gurdwaras Act.
In a later case, (1947) L.R. 74 I.A. 264 (Privy Council) the Privy Council again, referring to the view of a Full Bench of the Madras High Court that S. 19 of the Madras Agriculturists Relief Act conferred a particular right on a judgment-debtor and that as the Act conferred no right of appeal from an order of the Court made under the section, no appeal has competent, stated at page 271 (of Ind App): (at p. 14 of AIR) as follows:
..........That case, however, has been explained in later decisions of the Board as depending on the fact that the proceedings were from beginning to end ostensibly and actually arbitration proceedings. Their Lordships are not in agreement with the view of the Full Bench of the High Court of Madras. The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure, applicable thereto and an appeal lies, if authorised by such rules notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal - See Secretary of State for India v. Chelikani Rama Rao, LR 43 IA 192: (AIR 1916 PC 21) and AIR 1936 93 (Privy Council)
In the view we have taken that there is no question of legislation by incorporation of S. 15 alone simpliciter, but on the other hand the authority appointed under S. 15 of the Payment of Wages Act is the authority to determine the several matters specified in S. 37-Aof Shops and establishments Act, all the provisions incidental to the functioning of the authority specified in the Payment of Wages Act would be applicable while that authority functions under the Shops and Establishments Act.
In this view, the writ petition No. 911 is allowed and the City Civil Court is directed to entertain this appeal. The other writ petition No. 841 of 1960 is dismissed as no appeal was sought to be preferred. This however does not preclude the petitioner from filing an appeal. In the circumstances of the case there will be no order as to costs.