S. K. MAL LODHA, J. - (1.) THESE are two connected revisions and as they have been heard together, it will be convenient to dispose them of by a common judgment.
(2.) THE petitioner submitted an application under Sec. 15 (2) of the Payment of Wages Act, 1936 (No. IV of 1936) (hereinafter referred to as 'the Act') before the Authority under the Act (for short 'the Authority' hereafter) at Bikaner, on July 21, 1972 against the non-petitioner. THE petitioner and the non-petitioner will hereafter be referred to as 'the employee' and 'the employer' respectively. It was stated in the application by the employee that the employer had not paid wages from August 23, 1970 to May 31, 1972 @ Rs. 200/- per month. THE total amount of wages payable to the employee on account of the aforesaid period was assessed at Rs. 4253. 34 p. Along with this application, a separate application for condoning delay was submitted as the claim for wages for the period from August, 1970 to June 30, 1971 was not within the period prescribed by proviso to Section 15 (2) of the Act. THE facts, which constituted sufficient cause for not making the application within the prescribed period were mentioned in that application. THE Authority issued notice to the employee for August 5, 1972 to show cause as to why the application should not be rejected as it was time-barred. Copy, along with copy of the notice was also sent to the employer for appearing before the Authority on the aforesaid date. On August 5, 1972, the employer submitted a reply contending that the applicant was not the employee of the employer during the aforesaid period from August 23,1970 to May 31, 1972 and, therefore, he was not entitled to any wages for the said period. The employer questioned the locus siandi of the employee to submit the application. A plea was also taken that the claim of the employee was not within limitation. On September 29, 1972, the following four issues were framed by the Authority which, when translated in to English, read as under, - (1) Whether the applicant was in the employment of the non-applicant? (2) Whether the non-applicant had illegally deducted the wages of the applicant ? (3) Whether the claim is time-barred ? (4) Relief. The case was ordered to be posted for the evidence of employee on October 21, 1972. On July 23, 1973, in the absence of the parties, the Authority ordered that the case be fixed on August 7, 1973 for arguments on the application for condonation of delay submitted with the claim application and notices be sent in this behalf to both the parties. On August 11, 1978, the court, with respect to the fact whether the claim is time-barred, recorded that an issue has already been framed on September 29, 1972 and that counsel for the employer agreed that the claim may be decided on merits which will also include decision on the question of limitation. After trying the claim, the Authority ordered that the employer should pay to the employee Rs. 4253. 34 p. on account of arrears of wages and Rs. 4253. 34 p. as compensation. The Authority issued the direction for the payment of Rs. 8506. 68 p. within 30 days from the date of the order under S. 15 (3) of the Act which was passed on November 14, 1977. The Authority recorded the following findings, - (1) That the employee was in service of the employer; (2) That the employer illegally deducted the wages of the employee; and (3) That there was sufficient cause for not making the application in respect of arrears of wages which were not within limitation. Feeling aggrieved by the order and direction made under Section 15 (3) of the Act, the employer preferred an appeal under Section 17 of the Act before the learned District Judge, Bikaner, on January 21, 1978. Along with the appeal, a certificate under S. 17 of the Act was submitted certifying that the employer has deposited a sum of Rs. "cheque No. AC 338431 dated 28-12-77 Rs. 8506. 68 p. " with it on December 28, 1977 against the direction issued by it on November 17,1977, in the case and that there remains nothing outstanding against the direction issued by it in the case. In the memo of appeal, in para 22, it was, inter alia, mentioned that cashier of the Authority was on leave and there was strike in the Bank and, therefore, the receipt of the amount of the cheque could not be obtained and it will be produced as soon as it is received. The appeal was ordered to be registered on January 5, 1978. On April 26, 1978, a preliminary objection was raised that the amount in pursuance of the direction was deposited by cheque and the cheque was encashed later on, the appeal could not be registered. The learned District Judge heard arguments on this preliminary objection and overruled it holding that the delivery of the cheque for the sum to the Authority amounted to a valid tender in the eye of law and in these circumstances, the objection that the appeal could not be entertained, was rejected. This order was passed on April 26, 1978. Against this order, the employee has preferred S. B. Civil Revision No. 244 of 1978. The learned District Judge heard arguments in the appeal on June 13, 1978 and allowed it by his order dated July 5, 1978. He set aside the order of the Authority dated November 14, 1977 and the direction issued in pursuance thereof and remanded the case to the Authority for re-hearing the case and deciding the application of the employee under S. 15 (2) of the Act afresh in the light of the observations made by him in the order dated July 5, 1978. Being dissatisfied with the order dated July 5, 1978, the employee has preferred S. B. Civil Revision No. 238 of 1978.
(3.) I have heard Mr. L. R. Mehta, learned counsel for the employee and Mr. Parmatma Sharan, learned counsel for the employer and have also gone through the record of the case. It was contended by the learned counsel for the petitioner that the learned District Judge has exercised his jurisdiction illegally in entertaining the appeal and deciding it. He submitted that as there was no compliance of Section 17 (1a) of the Act, the appeal did not lay and as such, the preliminary objection raised on April 26, 1978 should have been accepted. The following facts are not in dispute before me. The appeal under S. 17 of the Act was lodged on January 2, 1978, the cheque for the amount in pursuance of the direction was delivered to the Authority on December 28, 1977 and the certificate under S. 17 (1a) was issued by the Authority on the same day i. e. December 28, 1977. The limitation for filing the appeal expired on January 7, 1978 and the cheque was encashed on January 12, 1978. Learned counsel urged that as actual deposit of the amount payable under the direction appealed against was not made by the employer with the Authority, the requirement of S. 17 (1a) of the Act was not satisfied and, therefore, according to him, the payment of the amount of cheque received after the expiry of period of limitation cannot be of any avail to the employer, for, the deposit of actual amount with the Authority should be prior to the expiry of period of limitation. Learned counsel submitted that the provisions of S. 17 (1a) are mandatory and the view taken by the learned District Judge that the delivery of the cheque was a valid tender and, therefore, the certificate issued by the Authority showing the receipt of the cheque met the requirements of S. 17 (1a), is manifestly illegal. In support of his arguments, Mr. Mehta placed strong reliance on Bhurangya Coal Co. Ltd. vs. Sahebjan Mian (1), The Bihar Journals Ltd. vs. Nityanand Singh (2), Central Engineering Corporation vs. Dorai Raj (3), The Hyderabad Chemicals and Fertilizers Ltd. vs. Mohammed Basheer Khan (4), Sailendra Kumar Dutta alias S. K. Dutta vs. The General Manager, Gauhati Refinery Indian Oil Corporation Ltd. (5), M/s Khetaram Manoharlal vs. Sankar Mandal (6) and R. Sankaran vs. The Presiding Officer, Additional Labour, Madras (7 ). I have bestowed my earnest consideration to the arguments of the learned counsel. ;