P L D 1973 Supreme Court 589 (PLP)

MUHAMMAD GUL. J. ‑A common question of law as to the interpretation of section 7 of the Payment of Wages Act, 1936 (Act 1V of 1936) and Rule 2044 of Pakistan Railway Establish ment Code, Vol. II, arises in these three appeals, by special leave. The essential facts in the three appeals are also similar. The respondent in each appeal is a railway employee in whose case, it is not disputed that in the matter of payment of wages, the Payment of Wages Act applies. Each of them was removed from service for sore misconduct. Ha than filed a suit and obtained a decree declaring his removal from service to be unlawful and that lay; continued in service. In consequence of the decree, each respondent was to‑instated, but was refused his full salary for the period he remained out of employment under the wrongful order of his removal from service (hereinafter called the relevant period). The Railway Administration, purporting to act under Rule 2044 of the Railway Code allowed respondent in Civil Appeal No. K‑31 of 1967, 1/10th of the normal salary which would have been payable to him during the reliever s period anti in the case of respondents in the other two appeals, 5 Y. of their respective salaries. Not satisfied with this fractional payment of their salaries, the respondent in each appeal applied to the Commissioner under section 15 of the Act for the payment of his fall salary fm the relevant period. The claim w &s allowed by the Commissioner or as the case may tit, the District Court in appeal under section 17 of the Act. A revision taken by the Rail hay Administration under section 115, Civil Procedure Code, against the grant of full salary in each cast has failed. It was held that rule 2044 of the Railway Code authorising deductions from salary in circumstance is not covered by sub. section (P L D 1963 S C 3402) of section 7 of the Act. Leave was granted because there was no clear enunciation of law bearing on the point, Mr. Usman Ghani, learned Assistant Advocate‑General, Sind basing himself on the two judgments of this Court is the cases of Ghulam Mustafa Shah (P L D 1963 S C 268) and Muhammad Sharif (P L D 1963 S C 340), argued that in the circumstances of each of the three cases, the Railway Administration had plenary power under Rule 2044 of the Railway Code in particular clause (b) thereof, to make any deduction from the salary of the respondent payable to him during the relevant period. In the first precedent case, Ghulam Mustafa Shah, a railway employee, was initially reduce) in rank and later dismissed from service on charges of misconduct. On a suit filed by him, both the orders were declared illegal and inoperative. On being restored to his office, he put in a claim for salary for the period during which he remained out of employment due to his suspension and subsequent dismissal. The claim was negative by the Railway Administration on the ground that the period In question bad been treated by the Divisional Superintendent as extraordinary leave without allowance within the meaning of Rule 2026‑R. II read with Rule 2022‑R. II and consequently no salary was admissible to him. Aggrieved by this order, Ghulam Mustafa Shah moved a writ petition for mandamus which was dismissed in limine, against which he came to this Court in appeal. The learned Advocate‑General who appeared for the Railway Administration in that case, however, conceded that Rules 2026 and 2022 had no application to that case but canvassed that Rule 2044 covered the situation which empowered the Railway Administration to make deduction from the salary admissible for the relevant period. As rightly pointed out by the learned Judges of the Division Bench in R. A. No. 375 of 1962, the judgment of this Court proceeded on the above concession made by learned counsel for the Railway Administration without any reference to the provisions of the Payment of Wages Act. In the second precedent case relied upon by the learned Assistant Advocate-General, Muhammad Sharif, also a railway employee, was wrongfully dismissed from service and who after obtaining a declaration as to the invalidity of his dismissal also applied to the Commissioner under section 15 of the Act for arrears of salary. The claim was resisted by the Administration on the plea that it was not "for wages earned" as during the relevant period Muhammad Sharif did no work and that under the condition of his service the relevant period has been treated as "extraordinary leave without pay". This plea was repelled and the Commissioner allowed the claim for Rs. 2,858‑8‑

0. The same was upheld by the District Judge in appeal and in the High Court in revision and finally by this Court. It was held by this Court in that case that "wages" as defined in section 2(vi) of the Act, does not necessarily mean earned wages. Where an employee to whom the Act applies, is ready and willing to render service, but the employer is not affording him opportunity to render such service, the employee is entitled to full wages, unless a deduction is expressly allowed under the Act. It was also observed in that precedent case, that the main purpose of the Act is to compel employers to "make prompt and full payment of wages to certain class of persons employed by them". It may be pointed out that the Act applies to persons whose monthly wages do not exceed Rs.

200. The learned Assistant Advocate‑General, however. particularly relied upon the following passage at page 345 of the report :‑ 'The Railway Administration, however, did not elect to make any order under this rule after re‑instatement of the employee. In these circumstances the Authority was justified to hold that the claimant was entitled to the payment of full wages for the relevant period' and sought to distinguish the precedent case from the three instant cases on the ground that the Railway Administration in all these cases have elected to deduct a portion of the salary payable to each respondent. The argument, however, overlooks the provisions of section 7 of the Act which for the relevant purpose reads : ‑ "7.‑(1) Notwithstanding the provisions of subsection (2) of section 47 of the Railways Act, 1890, the wages of an employed person shall be paid to him without deductions of any kind except those authorised by or under this Act. (2) Deductions from the wages of an employed person shall be made only in accordance with the provisions of this Act, and may be of the following kinds only, namely :‑‑ (a) .. (h) deductions required to be made by order of a Court or other authority competent to make such order; The language of the above provision is both exacting and peremptory which makes the legislative intendment clear beyond any doubt that in relation to the class of persons to which the Act applies, law will not countenance any deduction In wages unless, a particular case is squarely covered by any of the clauses e in subsection (2). It is also important to point out that the statute is remedial in its object, and it is well‑established principle of Interpretation that remedial statute should be construed in a manner so as to advance the remedy and suppress the mischief or else it would frustrate the legislative Intendment. Keeping in view, the above principles, let us proceed to consider, whether rule 2044 of the Pakistan Railway Code, Volume if upon which the learned Assistant Advocate‑General relied, can avail the Railway Administration in these appeals. According to him the rule is covered by clause (h) set out above. But that, in our opinion, is wholly a mistaken view. Rule 2044 for the relevant purpose reads "2044 (F. R. 54). Pay after re‑instatement‑, when a railway servant who has been dismissed, removed or suspended is re‑instated; the revising or appellate authority may grant to him for the period of his absence from duty (a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and. by an order to be separately recorded, any allowance of which he was as receipt prior to his dismissal, removal or suspension; or (b) if otherwise such proportion of such pay and allowances as the revising or appellate authority may prescribe. It is not controverted that the respondents secured declarations in their favour not because the charges of misconduct against them were false or unfounded but because their removal from service was summary or perhaps arbitrary and therefore violative of Constitutional guarantee, which requires the affording of reason able opportunity to show cause against a proposed major penalty it was perfectly open to the Railway Administration to draw fresh proceedings against the respondents even after the declaratory decrees in their favour and remove them from service after compliance with the above requirement of the Constitution. Therefore these cases cannot be treated as cases of honourable acquittal within the meaning of clause (a) above. Nor clause (b) would in our opinion cover the instant cases, for the power for the relevant purpose is exercisable by "the revising or the appellate authority" which equally covers (a) and (b) above and envisages sitting in judgment by such authority over tile order of a subordinate authority making the initial order. In the instant cases the respondents claimed arrears of salary in consequence of the decrees in their favour by the civil Courts and not of any order by revisional or appellate authority. It would be idle to suggest that in the instant cases the concerned authority in the Railway Administration was the revising or the appellate authority over the civil Courts. The application of the rule, according to its tenor and terry, is confined only to those oases in which in departmental proceedings, a case is taken in appeal or revision before the revisional or the appellate authority against the order of a subordinate authority. Therefore, any reliance on clause (a) or (b) of rule 2044 of the Railway Code as justification for the deductions in the three cases will be wholly illusory. This is all the more so, after the decision of this Court in Pakistan v. Mrs. A. V. Issacs (PLD 1970 SC 415) in which the claim for the arrears of full salary of a civil servant who was kept out of employment under a wrongful order was recognise, subject to the only qualification that if during the relevant period he was gainfully employed he shall account for his earnings in making claim for the arrears of salary. On the basis of the provisions of sub‑clause (a) of clause ( P L D 1959 S C (Pak.) 147) of Article 178 of the 1962 Constitute ion it was also observed that, n, 3.v remuneration of a civil servant It is one of terms of service which is guaranteed by the Constitution. Indeed, after judgment is Isaac s case a civil suit by a wrongfully dismissed civil servant for a declaration and for the recovery of arrears of salary by way of consequential relief would be competent. Before thin, no such consequential relief could be claimed, because of the Privy Council's decision In I. M. Lall's ease (PLD 1948 PC 150) and this Court's decision in Merajaddin s case (P L D 1959 S C (Pak.) 147) both of which, have nod become obsolete. .'The Pa, men, a! Wage; A'‑'I, as pointed out in the case of Muhammad Sharif, is designed to compel the employers to make prompt and fall payment of wages to certain class of workers to which the respondents before us, belong. In their case, the Act countenances a deduction only under the provisions of the Act and not allude For the foregoing reasons, we see no merit in there appeals which are dismissed with costs. K. B. A. appeals dismissed.