. SCR. SUPREME, CQURT, REPORTS 1345 lant also should have got the benefit of the doubt. At this stage, it is not out of place to mention ‘one fact. It appears from the ‘evidence of the Investigating Officer, P.W. 14, that in the course’ of the investi- | gation the prosecuting authorities were of the opinion. that the murder in this case was to be attributed. to the prosecution witness, Ram Bhawan, P.W. 4, and not to the appellant, and that in their view even the evidence as against Ram Bhawan was not sufficient to put him on trial for thé murder. Doubtless such’ an opinion of the prosecuting authorities has no ‘relevancy in the case and should not have been placed on the record in this case. But when we have. to consider the desirability or. otherwise of retrial, we need not shut our eyes to these features of the ‘case which have been brought on the record. In the. circumstances mentioned above we do not consider that the interests of justice require that any retrial should be ordered. We accordingly direct ‘that there shall be no retrial.
In the result, ‘the convictions of the appellant. under sections 307 and 302 of the Indian Penal Code and the sentences therefore are hereby set aside. But his: conviction under section 148 of the Indian Penal Code is maintained as also the sentence of two. years: and. a half in respect thereof. This appeal is accordingly allowed partially to the extent indicated above.-
A peal partially allowed: :
THE ‘DIVISIONAL ENGINEER, GLP. RAILWAY ~ MAHADEO RAGHOO: ‘AND “ANOTHER. :
. [ Vivian. Bose, JaGANNADHADAS, VENKATARAMA. Ayyar and. B. P. Sinna JJ.J 0 we ve
Payment of Wages Act, 1936 (IV of 1936), s. 2 (vi)—Wages— House rent allowance—Whether falls‘ within the definition .of wages under the Act—Rule 3(i) of the statutory Rules framed, by the Govcrnment—Legal effect thereof.
~The Railway Board under the ‘Ministry of Railways of t the. Government of India introduced a scheme with effect ‘fromthe’ Ist
Suraj Pal ve The State of Uttar Pradesh
Jagannadhadas F.
March 2 oss
The Divisional Engineer, GLP. Reihoay.
Mahadeo Raghoo, and another
1346 SUPREME COURT REPORTS [1955]
November 1947 granting compensatory (city) allowance and house rent. allowances. at certain rates to certain Railway employees {(including the Ist respondent who was,a railway employee since 1945) stationed at specified head-quarters, “The first respondent. drew this allowance along with his salary up to the 18th August 1948, when he was offered by the Government, quarters: suitable to his post, but he refused to occupy the same and the house rent allowance was stopped from the date of his refusal to occupy the quarter offered to him,
Rule, 3Ci ),.of the. _ Statutory Rules framed: by the Government atid put into éfféct on Ist November 1947 runs as follows :
“The house rent allowance will not be admissible to those who occupy accommodation provided by Government or those to. whom accommodation has been offered by Government but who have refused”. ;
Held, that the house rent allowance is admissible only so long as an employee is stationed at one of the specified places and has not been offered Government quarters. The rules distinctly provide that the allowance will not be admissible to those who occupy: Government quarters or those to whom such quarters have been offered but who have refused to take advantage of the offer. Once an employee of the description given above has been offered suitable house accommodation and he has refused it, he ceases to be entitled to the house rent allowance and that allowance ceasés to be “wages” within the meaning of the definition in s. 2(vi) of the Act because it is no more payable under the terms of the contract.
The grant of house rent allowance does not create an indefeasible right in. the employee at all’ places wherever he may: be posted and in all, circumstances, irrespective of whether or not he has been offered Government quarters. ;
Crvit | APPELLATE JORISDICTION : Civil Appeal No. 208 of 1952.
Appeal by Special Leave from the Judgment and Order dated the 28th day of September 1951 of the Authority. under the Payment of Wages Act, Bombay in Application No. 500 of 1951.
M.. C. Setalvad, Attorney-General for India (G. N. Joshi, Porus A. Mehia and: P. G. 7. Gokhale, with him), for the appellant.
j. B: Dadachanji, M. V. Jayakar and Rajinder
_ Narain, for responderit ‘No. 1:
1955.. March 2. The | Judgment -< of. -the.. Court was delivered-by < -
*
SinHA J.—This is an appeal by special leave from the orders dated the 28th September 1951 passed by the 2nd respondent, the Authority appointed under section 15(1) of the Payment of Wages Act (IV of 1936), (which hereinafter will be referred to as the Act) allowing the Ist respondent’s claim for house rent allowance as part of his wages.
In this case the facts are not in dispute and may shortly. be stated as follows: The Ist respondent. is a gangman in the employ of the Central Railway (which previously used to be known as the GIP. Rly.), since April 1945. At that time his wages were Rs. 18 per month plus dearness allowance. With effect from the Ist November 1947 the Railway Board under the Ministry of Railways of the Government of India introduced a scheme of grant of compensatory (city) allowance and house rent allowance at rates - specified in their memorandum No. E47:‘CPC/14. This scheme was modified by the Railway Board’s letter No.. E47 CPC/14 dated Ist December 1947. As a result of this scheme. certain railway employees stationed at specified headquarters were eligible for the allowance aforesaid at certain specified rates. The Ist respondent thus became entitled to the allowance of Rs. 10 per month. This allowance the Ist respondent drew along with his salary until the 18th August 1948 when he was offered by the Government, quarters suitable to his post, but he refused to occupy the same. On his refusal to occupy the quarters offered by the Government, the house rent allowance was stopped with effect from the 19th August 1948. On the 8th June 1951 the Ist respondent put in his claim before the Authority for Rs. 290 on the ground that the appellant, the Divisional Engineer, G.LP. Rly., who was the authority responsible under section 4 of the Act - for payment of wages, had stopped payment of house rent allowance to him from the 19th August 1948. The claim covered the period the 19th August 1948 to the 18th January 1951 at the rate of ‘Rs. 10 per month. The appellant appeared before the Authority and by his written statement’ contested the claim: on the ground that the house rent allowance ‘which’ was
» 1955
The Divisional Engineer, GIP. Railway v- Mahadeo Raghoo and another
Sinha. F.
The Divisional” Engineer, GLP. ' Railway .
v. Matadeo Raghoo and another
Sinha 7.
1348 SUPREME COURT: REPORTS’ [1955].
the. subject -matter of the claim was--not “wages” within the meaning of section 2(vi) of- the- Act. It was, therefore, submitted. by the appellant who was the opposite party before the: authority that it had no jurisdiction to entertain the claim which should be dismissed in limine. It was further pleaded that the claim was inadmissible on the ground that there had been no illegal deduction ‘from the respondent’s wages inasmuch as the respondent had been allotted railway quarters of a suitable type and as he had refused to occupy those quarters. he was not entitled under the rules to any house rent allowance. Alternatively, it was further: pleaded by the - appellant that so much of the claim'‘as related to a period preceding six months immediately: before the date of the application was time-barred under the first proviso to section 15(2) of the Act. The Authority. condoned the delay: and that part’ of the order condoning the delay is not in controversy before us.
On the issues thus joined between the™ parties the Authority came ‘to the conclusion that the. house rent allowance was “wages” as defined in the Act, that as a matter of fact, accommodation was offered to the Ist respondent and he refused. it; but that ‘even so, the appellant was not entitled to withhold.. the. house rent allowance. - Accordingly’ the claim for Rs, +290 was allowed by. the Authority. .
The. short point to be decided-in -this case is whether the thouse rent ‘allowance. claimed by -the’ Ist~ respondent came within the purview of the definition - of “wages” contained in the- Act. There being no difference on questions of -fact -between the parties, the answer to the question raised- must depend upon ‘the construction .to~ be placed: upon the following material portion of the: definition of “wages" in’ section *2(vi) of the Act == .“ Wages? means all remuneration capabie. ‘of -being -expressed; in terms of money,: which--would; if the terms of the contract of- employment; » express :-of implied,:-.were ..fulfilled;: be . payable, - whether . conditionally. upon . the ; regular .,attendance, . good-work .o¢ conduct or other‘ behaviour, :of. the person employed or .-other-
S.C.R: SUPREME COURT REPORTS 1349 wise, to. a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable. to such person by reason of the termination of his employment, but does not include—
(a) the value of any house-accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the State Government..........
Shorn of all verbiage, “wages” are remuneration payable by an employer to his employee for services rendered according to the terms of the contract between them. The question then arises, what are the terms of the contract between the parties. When the Ist respondent’s employment under the railway administration represented by the appellant began, admittedly he was not entitled to any such house rent allowance. As already indicated, the scheme for payment of house rent allowance was introduced with effect from the Ist November 1947 when the rules were framed, admittedly under sub-section (2) of section 241 of the Government of India Act, 1935, by the Governor-General, Those rules were amended - subsequently. We are here concerned with the amendment made by the Railway Board’ by its letter No. E47CPC/ 14 dated the Ist December 1947, particularly rule 3(1) which:is in these terms :—
~ “The ‘house rent allowance will, not be admissible to those" who occupy accommodation provided by Government. or those to whom -accommodation has been offered by Government but who have. refused it”.
~ Tt has-been argued on behalf of the appellant that the terms: of the: contract between the _ parties - include the rule: quoted above and that therefore the position in law. is*that there is.-no absolute right: inthe Ist respondent to claim the house-rent allowance; ‘in other words, it ,is-contended, that. there is a .condition -precedent:.to. the- claim for .house rent allowance being. admissible, namely,. that the employee. should, be .posted at. one of.,- those., places, .- like.. Bombay,. Calcutta,
The ‘Divisional Engineer, G.LP. Ratlway
Ve Mchadeo Raghoo and another
The Divisional ‘Engineer, Gol P. Railway aa Mahadeo Raghoo and another
1350 SUPREME COURT REPORTS [ 1955}
Madras, ete., before the claim for house rent: allowance could arise and. that there is a condition subsequent, namely, that. the employee posted at any one of those places will cease to be entitled to the allowance if either the Government provides accommodation to the employcc in question or the employee refuses to occupy the accommodation so offered to him. On the other hand, it has been argued on behaif of the Ist respondent that the employee’s right to the allowance accrues as soon as he has fulfilled the terms of the contract of employment including regular attendance, good work.or conduct and his other behaviour in terms of the definition of “wages” as contained in the Act. It was also argued on. behalf of the Ist, respondent that the terms of the definition have to be construed ‘consistently. with the provisions of sections 7 and 11 of the Act; that rule 3(1) quoted above is inconsistent with some of the terms of the definition of “wages” and the provisions of sections 7 and 11 and that in any event, if rule 3(i) aforesaid .were to be ‘considered as a part of the terms of the contract between the. parties, section 23 of the Act prohibits an employee from entering into such a contract, as has the effect of: depriving him of his vested rights. — -.It should be noted at the outset that- the learned Attorney-General appearing on behalf of ‘the appellant has not pressed ‘the argument which appears to have been raised in the written statement: of the appellant and also before the -Authority.-as would appear
. from the orders passed by him, that clause (a) exclud- ing “the value of any house accommodation” clearly showed that house. rent’. allowance: -was . not included in “wages” as: defined’ in section 2(vi) of the Act. As will presently appear, this. argument proceeds on the unwarranted assumption that house. rent allowance is synonymous with: the value of any house:-accommodation. referred .to in the definition of. “wages” and in section 7(2) (b)-and section-11 of the Act.
The answer to: the question whether house rent allowance is “wages” may be in the: affirmative if the rules framed by the’ department relating -to the grant of house rent allowance make it compulsory for the
~< employer to grant house rent allowance without anything more: in other words, if the house rent allowance had been granted without any conditions or with conditions, if any, which were unenforceable in law. But the statutory rules framed by the Government governing the grant of house rent allowance do not make it unconditional and absolute: in terms. The house rent allowance in the first instance is not admissible to all the employees of a particular class. It is admissible only to such railway employees .as are posted at specified places in order “to compensate railway servants in certain costlier cities for excessive rents paid by them over and above what they might normally be expected to pay”; nor is such an allowance “intended to. be a source of profit” or to be “an allowance in lieu of free quarters”’,: as specifically stated in the preamble to the letter No. E47CPC/14, dated Ist December 1947, issued by the Railway Board. The argument on behalf of the Ist respondent would have been valid if the rules in terms contemplated the grant of house rent allowance to every employee of a particular category but the rules do not make the grant in such absolute terms. The house rent allowance i admissible only so long as an employee is stationed at one of the: specified places and has not been offered Government quarters. The rules . distinctly. provide that the allowance will not be admissible' to those who occupy Government quarters or to those to whom such quarters have been offered but who have refused to take advantage of the offer. Once an employee of the description given above has been offered ~ suitable house accommodation and- he has refused it, he ceases to be entitled to the house rent allowance and: that allowance thus ceases. to be “wages” within the meaning of the definition in’ the Act, because it is no more payable under the terms of the contract.
In ‘our opinion, it is clear beyond all reasonable doubt that the rules which must. be iticluded in the terms of contract between ‘the employer and the employee contemplate that an” employee posted at’ one
The. Divisional Engineer, G.IP. Railway
Vv. Mahadeo Raghoo and another
Sinha Fe
The Divisional Engineer, GIP. Railway v Mahadeo Raghoo and another
Sinha 7.
1352 SUPREME COURT REPORTS [1955]
of: the. specified places would be entitled to house -rent allowance; but. that as: soon. as he is offered, Government quarters .for . his.accommodation, he ...ceases, to be so entitled, ‘whether he «.actually, occupies-,or does not occupy the quarters offered. to him. Hence the grant of house rent -allowance does not create an indefeasible right in the ‘employee at all places . wherever he may ‘be posted. and in all circumstances, irrespective of whether’ or not he . has. been. offered Government quarters...
- But it has been argued on behalf ‘of the respondent that such a conclusion would be. inconsistent with the provisions of. sections 7 and 11 -of the <Act...We. do
‘not:‘see. any such inconsistency. Section 7 ‘of the Act deals with such: deductions. as may be made from the wages .as defined in the Act, of an employee. . Subsection. (2) of section 7. categorically specifies the heads under. which deductions may lawfully be made from wages. Clause (d) of this sub-section. has _reference to “deductions for . house accommodation supplied by the employer”, and section..11 provides that sich a deduction shall not be made unless the house accommodation has. been accepted by the. employee and shall. not exceed the amount equivalent to the value of -such:.accommodation. The definition - of “wages” -in the Act also excludes .from - its: operation the value of house accommodation - referred to, in-sections -7 and 11. as -aforesaid. - The... legislature.; has, used the expression’ “value of: any . house . accommodation” in: the - definition: of “wages”.:as denoting: something which -can .be: deducted from. s“wages”’:, The: sone excludes: ‘the. other. Jt iis..thus clear. that:.the.. definition of “wages” under the:;Act cannot include :the.,value: of any house-:accommodation «supplied: by. the employer to’the employee}. otherwise «. it..would.- not. be a”-legally permissible‘: deduction’-.from wages. ;. It: is: equally! clear that house rent allowance which may . ans: -certain circumstances, as..,aforesaid be included, ,in , “wages” is not ,the...;same: thing. as the. value ‘of | any house - ace commodation” referred. to,.jn ‘the Act. , That. being | _ $0, there -is no: validity., in,: the argument :advanced., on..be- half of the Ist respondent that rule 3(i) aforesaid is inconsistent with the | provisions of sections 7‘ and 11 | of the Act. - Co, ae ae ‘It remains to consider the last argument advanced on behalf -of the 1st-- respondent that section. 23 of the. Act ptohibits an employee from relinquishing such. a right as is the subject matter of rule 3(i) © quoted above. This argument proceeds on the assumption that house rent allowance which is a right conferred 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. In the special circumstances of this case there will be no order as to costs.
Appeal allowed. .
=
A. V. DCOSTA B. C. PATEL AND ANOTHER.
[Vivian Boss, JaGANNADHADAS, VENKATARAMA Ayyar and Sinua 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—Authority 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
The Divistonal Engineer, GIP. Railway v.
Mahadeo Raghoo and another
March 4