S. N. DEEDWANIA, J. - (1.) THIS revision petition is filed by Vishnudutt against the judgment and order dated 6-7-1977 of the learned District Judge, Bikaner passed in appeal No. 3 of 1976.
(2.) THE relevant facts for the disposal of this revision petition are these. THE petitioner was ordered to be removed from service with effect from 12-3-1963 by the order dated 7-3 1963 of the Divisional Personal Officer Northern Railway, Bikaner. However, his appeal was accepted but was re-instated on the lower post of Signallor by the order dated 30-1-1964 of the Divisional Superintendent, Northern Railway, Bikaner. Aggrieved by this, the petitioner filed a writ petition in this Court challenging the aforesaid orders. It was accepted and the orders of the Divisional Personnel Officer dated 7-3-1963 and the Divisional Superintendent dated 23-1-1964 were quashed vide its judgment dated 19-7-69. THEreafter the petitioner preferred his claim for wages as Assistant Station Master for the period from 13-3-63 to 18-7-69 and for compensation before the Authority under the Payment of Wages Act, Bikaner. THE learned Authority held that the petitioner was entitled to Rs. 6182. 70 as deducted wages and a like amount as compensation. Aggrieved by this order dated 30-1-1970, the non-petitioner filed an appeal in the Court of District Judge, Bikaner. THE learned District Judge accepted the appeal partly and held that the petitioner was not entitled to any compensation. Aggrieved by this order the petitioner has filed this revision. I have heard the learned counsel for the parties and perused the record of the case carefully. An argument for the first time was raised by the learned counsel for the non-petitioner that the claim of the petitioner was not maintainable in view of Order 2 Rule 2 C. P. C. because he failed to claim the arrears of pay in the petition filed in this Court. On the other hand it was argued by the learned counsel for the petitioner that provisions of Order 2 Rule 2 were not attracted in the facts and circumstances of the case. No doubt it was thus observed in Divisional Personnel Officer vs. Mahavir Prasad (1 ). "but that dictum of their Lordships does not apply to the case where a suit has been filed for declaration that the order of dismissal was void along-with a fraction of the amount of wages. Indeed in such a case the plaintiff was under an obligation to claim the arrears of wages upto the date of the suit. In this connection I may refer to P. J. Lartius vs. Superintendent (14 ). In that case suit was filed for declaring the order for dismissal to be void but no arrears of the salary from the date of dismissal to the date of suit were claimed. The dismissal order was declared void and therefore application under section 15 of the Act was filed thereafter. The plea was raised that the suit for arrears of salary antecedent to the period of the institution of suit was barred by the provisions of O. 2. r. 2 C. P. C. It was held that it was necessary for the plaintiff to claim in the same suit all the reliefs arising out of the same cause of action unless he postponed claiming the relief with the leave of the court. Their Lordships further held that the suit for the recovery of salary as a consequential relief in a suit for declaration was not barred by section 22 of the Act as upto that stage the arrears of salary could not have been recovered by an application under section 10 of the Act on the basis of deducted wages. But when the arrears of salary could be claimed in previous suit but were not claimed it could not equally be recovered under Sec. 16 of the Act in regard to such wages as the same would be barred under the general principle contained in O. 2 r. 2 C. P. C. To the same effect is the view in Union of India vs. Jagnnath (15 ). In Works Manager (Carriage) Western Rly. vs. Smt. Kulwanti Devi (S. B. Civil Revision No. 371 of 1968 decided on 10. 1. 1972) Hon'ble Jagat Narayan J. has held that a claim for wages could have been made in the suit for declaration and if it had not been done then the claim had become barred under O. 2 r. 2 C. P. C. This authority appears to be in conformity with the dictum laid down in State of Bihar vs. Abdul Majid (10) where it has been held that the employee could lay claim for the arrears of salary along with the declaration suit as consequential relief. Mr. Ganpat Singh pointed out that Lodha J. in Madan Kumar vs. Surendra Kumar (17) had taken the view that the Payment of Wages Authority had exclusive jurisdiction to determine wages by virtue of section 22 of the Act and as a natural corollary it for wages could not have been filed by the non-applicant. In my view the authority is clearly distinguishable as it relates to a case of the recovery of wages simpliciter. It is true that when the claim is for wages simpliciter then that could be only made before the Payment of Wages Authority under section 22 of the Act. But that proposition does not hold good when the suit is filed for declaration and consequential relief of arrears of salary are claimed. I am, therefore, of the view that the claim for wages of the non-applicant so far as they relate to the period prior to 28. 9. 1965 is barred by the provisions of O. 2 r. 2 C. P. C. and both the courts below had usurped the jurisdiction to entertain a claim which was barred by the provisions of O. 2 r. 2 C. P. C. and have thus exercised jurisdiction with material irregularity or illegality. " I have carefully gone through this authority which is clearly distinguishable. The question for determination before his Lordship was whether in a suit where the arrears of salary could be claimed and were partly claimed, an application for the arrears of salary was maintainable before the Payment of Wages Authority. This case, therefore is no authority for the proposition that where in a writ petition the petitioner does not claim the arrears of salary or his claim is negatived for the same, an application for such arrears would not be maintainable before the authority under the Payment of Wages Act, Bikaner. It was specifically observed by their Lordships of the Supreme Court in Devendra Pratap vs. State of Uttar Pradesh (2 ):- "the bar of O. 2 R. 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution. " This authority has been followed by the Allahabad High Court in the case of R. K. Sharma vs. Addl. District Judge, Saharanpur (3) - "in P. J. Lartius vs. Supdt. Printing and Stationery U. P. 1965 All LJ292, a Single Judge of this High Court has held that an application to the Payment of Wages Authority for arrears of salary would not be maintainable in view of Order 11 Rule 2 of the Code of Civil Procedure if that claim is not made in a suit challenging the order of dismissal. But that decision has no application to the facts of this case as the order of removal of the petitioner was declared void in a writ petition and not in a civil suit. In AIR 1962 SC 1334, it has been held that the bar of Order 11 Rule 2 of the Code of Civil Procedure may not apply to a petition for a high prerogative writ under Article 226 of the Constitution. (P. 1337 ). " I may observe that the observations in this authority was made in the identical facts and circumstances. In that case also the plaintiff filed a writ petition and did not claim the arrears of salary and after the writ petition was accepted be preferred this claim before the authority under the Payment of Wages Act. I am, therefore, of the view that in a case like this where the petitioner has not claimed arrears of salary, his claim for the same before the Authority under the Payment of Wages Act cannot be defeated because of the bar contained in Order 2 Rule 2 C. P. C. It was then sought to be argued by the learned counsel for the non-petitioner that it was not a case of illegal deduction and, therefore, the Payment of Wages Authority had no jurisdiction to grant the compensation. I find no force in this contention because at the best it is a question of law whether withholding of the difference in salary of the petitioner as an Assistant Station Master and a Signallor is illegal deduction or delayed payment. Howsoever erroneous the finding on the question of law may be, but it cannot be interferred in the revisional jurisdiction of this Court. The learned counsel for the non-petitioner cannot be permitted to assail the finding of law in this respect before me as he could not have assailed the same if the non-petitioner had filed the revision. It was thus observed in DLF Housing etc. Co. v. Sarup Singh (4) - "while exercising the jurisdiction under S. 115, it is not competent to the High Court to correct error of fact however gross or even errors of law unless the said errors have relation to the jurisdiction to the Court to try the dispute itself. The words "illegally" and with material irregularity" as used in Cl. (c) so not covered either errors of fact or of law; they do not refer to the decision arrive at but simply to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision,, and not to errors either of fact or of law, after the prescribed formalities have been complied with. " I, therefore, find no force in this contention of the learned counsel for the non-petitioner. I may further state that the case before me is a clear case of illegal deduction of wages. The petitioner was re-instated as Assistant Station Master in pursuance of the order of this Court, yet his claim for the difference of salary was resisted by the non-petitioner all through and through. It was thus held in Delta Forging Works v. M. Darmakar. (5 ). "whether the non-payment of wages is an instance of 'deducted wages or delayed wages', depends on the animus of the employer. If be denies liability to pay the wages, in part or whole, it becomes a case of deducted wages but if he admits his liability and does not dispute the employee's right to the same, it is an instance of delayed payment. AIR 1952 Bom. 235 and AIR 1959 All 664 and AIR 1966 Mad 201, Ref. " This takes me to the merits of the revision. The learned Authority under the Payment of Wages Act while awarding the compensation gave cogent reasons in support thereof. It observed to the following effect: - "thus, when I have observed that there is a illegal deduction, I have to satisfy myself whether the applicant is entitled to any compensation and whether there are good and sufficient reasons for awarding compensation. The facts of the case amply prove that there was protracted litigation and the applicant had to contest his claims at various levels right from the D. P. O , N. Rly. Bikaner, D. S. N. Rly. , Bikaner, the Hon'ble Court, the court of S. D. M. (City), Bikaner, the court of the District Judge, Bikaner and this Court, and it took a long period in getting a final verdict on his claims. It is also on record that he was suffering from serious decease like Tuberculosis. In addition to the mental agony he sustained on account of long legal battle. Though the amount of compensation which could be paid in such a case has been prescribed upto ten times of the amount of deduction, but looking to the circumstances of the case, I feel that the onus of justice would be met by awarding compensation of Rs. 6,192/70 P. to the applicant. " The learned District Judge while setting aside this part of the order regarding compensation gave reasons which were not at all germinates to the controversy in issue. He observed that when the petitioner was being granted his full salary in his opinion it was not proper to grant him compensation. The District Judge wrongly observed that the petitioner has made out no case for compensation. He further erroneously relied on the fact that the costs were not awarded to the petitioner in the writ petition I am, therefore, of the view that the learned District Judge committed jurisdictional error. It therefore, clearly appears that the District Judge has acted with material irregularity in the exercise of his jurisdiction and denied the petitioner his just claim for compensation which rather erred on the lower side. The impugned order of the learned District Judge clearly has caused a failure of justice and irreparable injury to the petitioner. I, therefore, accept this revision petition with costs and set aside the order of the learned District Judge to the extent of refusing the compensation to the petitioner and restore the order made by the Authority under the Payment of Wages Act in this respect. . ;