LexA. V. DCOSTA versus B. C. PATEL AND ANOTHER.
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.... S.C.R. SUPREME COURT REPORTS 1353 inconsistent . witli . the provisions of sections . 7. and 11 of the Act. '. .. . . . . . . . . . " .. ,, ·It remains to consider the last argument advanced on behalf ·of the lst · respondent that section. 23 of the. Act prohibits an employee from relinquishing such a right as is the subject matter of rule 3(i) · quoted above. This argument proceeds on the . assumpti9n that house rent allowance which is a right. con- ferred on the employee is an absolute right. It has already been held above that the Act read along with the rules which constitute the terms of the contract between the employer and the employee does not create any absolute right in the employee to the house rent allowance. That being so, there is no question of the employee relinquishing any such · right as is contemplated by section 23. For the reasons aforesaid, the appeal succeeds. The orders passed by the Authority are set aside. Jn the special circumstances of this case there will be no order as to costs. Appeal allowed: . A. V. D'COSTA v. B. C. PATEL AND ANOTHER. [VIVIAN BosE, ]AGANNADHADAS, VENKATARAMA AYYAR and SINHA JJ.] Payment of Wages Act, 1936, (IV of 1936), Ss. 5, 7, 15(1)(2)- Claim for wages due on account of the introduction of upgrading of persons-Claimant's right to be placed on monthly wages ignored- No delay in payment of wages or deduction of wages alleged-Autho- rity under the Act-Whether had jurisdiction to decide the complaint of the applicant. The second respondent had been an employee of the Central Railway as a daily rated casual labourer on specified daily wages since 1941. He continued to receive his wages at the specified rate until October 1949. In October 1949 he made an application through an official of the Registered Trade Union-a person permitted by the authority under sub-section (2) of s. 15 of the Payment of Wages Act, 1936-claiming his wages due in respect of six months from May to October 1949. The respondent did not allege delay in the 1955 The Divisional Engineer, G./.P. Railway v. Mahadeo Raghoo and another Sinha J. 1955 March 4 1955 A. V. D'Costa v. B. C. 'Patel and another 1354 SUPREME COURT R.E?ORTS [1955] payment of ·his wages or deduction _of ,his wages ~n contravent;ion of the provisions of s. 5 or s. ·7 of Act IV of 1936 respectively. The res- pondeot alleged that he had been paid his actual wageS' as fixed by the railv.ray adn1inistration but that after the introduction of the scheme of upgrading of persons employed under the ·daily wages scheme, others who ·were· junior to him had been _placed on the monthly wages scheme whereas his claim to be so placed, had been ignored and that he had not been ·paid wages oi:i the .~cale to which he would have been entitled .if he had been placed on the monthly wages scheme. Held, per SINHA J. (V1v1AN BosE and VENKATAMM~ AYYAR JJ. corzcurring, JAGAN_NADHADAs J. dissenting), that the respondent's complaint feJl under the category of potential wages· and the autho- rity appointed under the Act had no jurisdiction .to decide the ques- tion of potential wages. It had the jurisdiction to decide what actually ·the t_erms of the contract between the parties. were, that is to say, to· determine the ~c.tual wages. · On the case as made on behalf of the· respondent, orders of the sup·erior officers were. necessary to upgrade him from a daily wage~ earner to a higher cadre. ·rhe authority under the Act has not bee~ e~mpow.ered -~nder s. :is to make such .direction to the superior officers. · · Per }AGANNADHADAS J.-Undoubtedly a claim to a higher potential wage ·cannot ·!be brought in under the category of "claim arising out of deduction from the wages or delay in payment of the wages" if that wage depended on the "determination by a. superior departmental or other authority as to whether or not a particular em· ployee is entitled to the higher wage-a determination which in· volves the exercise of administrative judgment or discretion or certi· fication, and which would, in such a situation, be a condition of the payability of the wage. But where the higher wage does not depend upon such determination hut depends on the application of and giving effect to certain rules and orders which, for this purpose, must be deemed to be incorporated in the contract of employment, such a wage is not a prospective wage merely ·because the paying
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