Radha Kishan-Hoshiar Singh vs Sarup Lal and Another

R.S. Narula, J.—On March 13, 1961, Sarup Lal, Respondent No. 1, filed a suit for the recovery of Rs. 99 on account of alleged wages due to him for serving Messrs Radhakrishan-Hoshiar Singh (hereinafter referred to as the Defendant) in their sugar factory. By written statement, dated May 9, 1961, the Defendant denied the claim of Sarup Lal (hereinafter referred to as the Plaintiff) on the ground that he had never served in the factory of the Defendant and also on the ground that the Gram Panchayat, Bhuran, district Sangrur, had no jurisdiction to try the suit as their factory was situated in Kalwa Nagar, a place beyond the jurisdiction of the Said Panchayat. Thereafter, the Defendant absented itself and the Panchayat directed ex parte proceedings against it. In the meantime, the Defendant made an application to the Subordinate Judge having jurisdiction to transfer the case from the aforesaid Panchayat. During the pendency of the transfer application, proceedings before the Panchayat were stayed. The proceedings before the Subordinate Judge terminated with an order directing the Panchayat to decide the question of jurisdiction in accordance with law. Thereafter, by order, dated June 26, 1962, of which copy is annexure A to this application, the Panchayat decreed the claim of the Plaintiff against the Defendant for payment of Rs. 99 with costs. The Defendant''s petition for revision of the Panchayat''s order u/s 65 of the Punjab Gram Panchayat Act having been dismissed by the Court of Shri Gurpartap Singh Chahal, Subordinate Judge, First Class, Jind, by order, dated 28th February, 1963 (copy annexure B to this application), the Petitioner has come up to this Court under Article 227 of the Constitution.

Notices of this case were issued to the Plaintiff on the 19th of May, 1963, 21st June, 1963 and 13th December, 1963, but he could not be served. Thereupon, the Defendant made an application under Order 5, Rule 20 of the Code (C.M. 2832 of 1964), which was granted by Jindra Lal, J., and it was ordered that substituted service may be effected on the Plaintiff and on the pro forma Respondent by publication in the Hindi Milap. The Plaintiff is reported to have been served by publication in pursuance of the above-said order of Jindra Lal, J. No one has, however, appeared to contest this petition.

Shri Harbhagwan Singh, the learned Counsel for the Defendant, has raised two points before me in support of the application. It is firstly contended by him that the jurisdiction of the Panchayat, which was a Court for all practical purposes, was expressly barred by Section 22(d) of the Payment of Wages Act of 1936. The relevant part of the above-said section of the 1936 Act reads as follows:--

No Court shall entertain any suit for the recovery of wages ... in so far as the sum so claimed could have been recovered by an application u/s 15 (of the Payment of Wages Act).

Section 52 of the Gram Panchayat Act, under which the Panchayat had jurisdiction to entertain and adjudicate upon the claim of the Plaintiff, reads as follows:--

Notwithstanding any other law for the time being in force and subject to the provisions of this Act, ''the jurisdiction to try any of the suite mentioned hereunder shall vest in a Gram Pahchayat.

(a)__________

(b) suit for money__________

(c) _______________

(d)________________

It is, therefore, obvious that the provisions of Section 52, of the Punjab Act have to be given effect notwithstanding any others law for the time being in force including the provisions of Section 22(d) of the Payment of Wages Act.

Mr. Harbhagwan Singh has then argued that in spite of the opening words of Section 52 of the Punjab Act, effect has to be given to the provisions of Section 22(d) of the Payment of Wages Act as the latter Act has been passed by the Central Legislature and cannot, therefore, be overridden by any State legislation. He, however, admits that the legislation relating to the Payment of Wages Act is covered by the Concurrent List (List III) of the Seventh Schedule to the Constitution. That being so, the Central as well as the State Legislatures have the power to legislate on the subject relating to the payment of wages. Provisions as to jurisdiction to try any claim by a certain Tribunal are not in the nature of law which occupies a legislative field so as to leave no room for the same field to be entered upon by the other concurrent legislative authority. As at present advised, I would, therefore, hold that the bar created by Section 22(d) of the Payment of Wages Act does not take away the jurisdiction vested in a Gram Panchayat u/s 52 of the above-named Punjab Act.

The second contention raised by the learned Counsel is to the effect that the fundamental right guaranteed to the Petitioner as a citizen of this country by Article 14 of the Constitution has been violated in this case, inasmuch as the Panchayat, Which is a Tribunal within the jurisdiction of this Court, has violated the rule of law by deciding this judicial matter On the basis of private information gathered behind the back of the parties, thus violating one of the most cardinal principles of natural justice. On facts there is no dispute about this Matter. In the judgment of the Panchayat (Annexure A to this application) it has been stated as follows:--

Besides the witnesses produced by the Plaintiff, the Panchayat has also Made enquiries from the respectable of the neighborhood, who do not want to give evidence against the Defendants openly.

In Dhirajlal Girdharilal Vs. Commissioner of Income Tax, Bombay, , it was held that when a Court of facts acts on material partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding, and that such a finding is vitiated because of the use of inadmissible material. The Panchayat Was a Tribunal of fact. Its judgment is obviously vitiated as it is based on information gathered by it privately behind the back of the parties particularly when the persons who are alleged to have given that information to the members of the Panchayat had also made it known to the Panchayat that they were not willing to appear as witnesses in the presence of the Defendant.

The above point does not appear to have been dealt with by the learned Subordinate Judge, who decided the petition for revision u/s 65 of the Punjab Act. No copy of the revision petition has been produced before me, and it is, therefore, not possible to know whether this question had at all been raised there or not. But this point has been specifically taken up in this application under Article 227 of the Constitution, and it is mainly on this ground that the application appears to have been admitted by this Court. It has been authoritatively settled that nobody can waive his fundamental rights. In Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and Rajasthan and Another, , it was held that a person or a citizen of this country cannot give Up or waive a breach of the fundamental right under Article 14 of the Constitution as the right in question indirectly conferred on a citizen by the Constitutional mandate directed to the State. The right of the Plaintiff infringed in this case is enforceable under Part III of the Constitution, and, therefore, even if this point was not taken up before the learned Subordinate Judge and may, therefore, be argued to have been waived, the waiver would not disentitle the Plaintiff to raise the question before this Court for the first time. If the order of the Panchayat is vitiated on the above account, the order of the Subordinate Judge must fall with it.

Mr. Harbhagwan Singh, the learned Counsel for the Petitioner, has tried to raise several other points in support of this application, but I have not heard him on those points because of the view t am taking of the second contention raised by him.

I, therefore, allow this petition and set aside and quash the order of the Panchayat of village Bhuran, dated 26th June, 1962, and of the Court of S. Gurpartap Singh Chahal, Subordinate Judge First Class, Jind, dated 28th February, 1963, referred to above, and direct the Panchayat to re-decide the case in the light of the above observations. Nothing stated in this order would be interpreted to decide any other question which may be raised by any of the parties before the Panchayat. As no one has appeared to oppose this petition, there will be no order as to costs.