S.B. Capoor, J. - (1.) THIS petition purporting to be under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution of India by the Divisional Superintendent, Delhi Division of the Northern Railway, has been placed before this Bench in view of the orders of Mahajan, J., dated the 18th January 1963, in which it was observed that the principal contention raised was regarding the vires of Section 7, Explanation II, of the Payment of Wages Act, and it was proper that the matter bet heard by a Division Bench after a notice was issued to the Attorney -General of India. A notice was so issued but there is no representation on behalf of the Attorney -General of India.
(2.) THE petition does not appear to be maintainable under Section 115 of the Code of Civil Procedure since the Authority under the Payment of Wages Act (Act IV of 1936)(hereinafter referred to as the Act) is not a Court subordinate to the High Court, and so Section 115 of the Code of Civil Procedure or Section 44 of the Punjab Courts Act will not apply. In this connection Union of India v. Triloki Nath : AIR 1961 P&H 154, may be referred to. We have, therefore, treated this as a petition under Article 227 of the Constitution of India. Satyendar Nath Respondent to this petition made an application under Sub -section (3) of Section 15 of the Act praying for a direction to the Divisional Superintendent of the Delhi Division of the Northern Railway for refund of a sum of Rs. 759.50 nP. to the Applicant which amount had not been paid to him on account of the Divisional Superintendent having by an order made in the year 1951 withheld his annual increment which was at the rate of Rs. 4/ - per month for one year with permanent effect. This was during the period 7 -12 -1952 to 7 -3 -1960. This order war challenged by the Applicant as being illegal. The circumstances in which it was made and which are admitted in the written statement are as follows: The Applicant while working as Assistant Station Master at Sabzimandi Railway Station was along with Bhagwan Das Pointsman placed Under suspension in May 1961 on allegations of negligence and dereliction of duty. A charge -sheet was issued and the punishment imposed on the Applicant by the Divisional Transportation Officer was stoppage of privileges for one year. Bhagwan Das was reduced in rank to that of a Gateman. He filed an appeal to the Divisional Superintendent, who was also the Appellate Authority In respect of the Applicant. In spite of the fact that there was no appeal by the Applicant, the Divisional Superintendent holding in the impugned order that he (the Applicant) had been dealt with very leniently enhanced the punishment to withholding of increment permanently for one year. It was contended in the application that the Divisional Superintendent was not, under the service rules applicable, invested with any revisional powers and since no appeal had been preferred by the Applicant it was illegal on his part to enhance the punishment of the Applicant on an appeal filed by another person, i.e. Bhagwan Das. It was also urged that the Impugned order was passed without issuing a fresh charge -sheet to the Applicant and without giving him either a show -cause notice or affording an opportunity to him to defend himself.
(3.) IN the written statement besides the contention that the Divisional Superintendent was fully empowered to make the impugned order, a preliminary objection was taken that the Authority under the Payment of Wages Act was not competent to deal with the question of legality or otherwise of the impugned order. It was also assert -ed that there was no wrong or recurring cause of action to the Applicant and the order having been made as far back as the year 1951 could not be impugned in an application which was instituted in the year 1960. It was also pleaded that the competent authority had made the order for good and sufficient cause. The following were the issues: 1. Whether the legality or propriety of the order withholding increments of the Applicant can be challenged under the provisions of Payment of Wages Act? 2. Whether the application of the Applicant on allegations contained in para No. 4 (16 -B) of the application is not maintainable? 3. Whether the order for withholding increments is unlawful and illegal for the reasons as stated in para No. 5 of the application? 4. Whether the application is within time?;