P.N.MOOKERJEE, J. -
(1.) IN this rule, obtained by the Eastern Railway Administration, represented by the Union of India, the only point that arises is whether the learned Judge, Second Bench, Court of Small Causes, Calcutta, acting as the appropriate appellate authority under the Payment of Wages Act, was justified in setting aside the order of the 'authority' under the said Act, rejecting the opposite party's application, claiming certain wages from the petitioner railway, and remanding the case to the said 'authority' for trial on merit.
(2.) THE rule was issued under the following circumstances:
On 2 February 1959, the opposite party applied before the authority under the Payment of Wages Act, West Bengal, claiming Rs. 38,826 -4 -0 as 'delayed wages' against, in 'particular, the present petitioner. In the said application, the opposite party stated, inter alia, - - (a) that he was a permanent employee under the petitioner (the then East Indian Railway) in the year 1948, working as Claims Inspector, Ondal; (b) that, in October 1948, the opposite party received an order from the railway administration, purporting to be an order retrenching him from his aforesaid service; (c) that, by the Judgment and decree passed on 28 January 1958, In Suit No. 617 of 1954 of the Court of the Munsif, Nagina, District Bijnor, Uttar Pradesh, brought by the opposite party against the petitioner railway administration, the said order was declared void and inoperative and it was further declared that the opposite party was continuing in service under the petitioner with all rights and liabilities, attaching to the post of a civil servant, and the said decision was affirmed in appeal by the Civil Judge, Bijnor, on 9 August 1958; and (d) that in the circumstances, the opposite party was entitled to get his pay on the above footing from 25 May 1948.
On 6 February 1959, the authority recorded an order to the effect that, for certain reasons (with which we are not concerned In this rule), the opposite party's application, so far as it related to his claim, prior to 1 April 1958, could not be entertained by him but the said application could be proceeded with in regard to the claim from after 1 April 1958, if the applicant was employed in West Bengal during the relevant period. The proceeding, thereafter, continued, apparently, with regard to the claim for the period, subsequent to 1 April 1958, but, as, on the materials before him, the authority was not satisfied that, during the relative or relevant period, the opposite party was in the employment of the petitioner in West Bengal and, as further, he held that wages under the Act, that 18, wages which could be dealt with thereunder, must be 'earned wages' and not 'potential wages' and, the opposite party not having been reinstated, he could not claim to have earned any of the wages under consideration, 'he rejected the opposite party's application.
(3.) AGAINST the above order of rejection, the opposite party preferred an appeal to the appropriate appellate authority. That appeal was allowed and the case was remanded for further hearing according to law. In the opinion of the learned appellate authority, wages under the Act need not, necessarily, be 'earned wages' but they may well be 'potential wages' and he, further, held that, by virtus of the civil Court's declaratory decree aforesaid the opposite party must be deemed to have been and to be in service, or, to be more exact, to have continued and to be continuing in service, that is, service at Ondal, where he was last employed at the time of his purported dismissal. The petitioner then obtained the present rule.;