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PETITIONER: A.V. D’COSTA

       Vs.

RESPONDENT: B. C. PATEL AND ANOTHER.

DATE OF JUDGMENT: 04/03/1955

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. BOSE, VIVIAN JAGANNADHADAS, B. AIYYAR, T.L. VENKATARAMA

CITATION:  1955 AIR  412            1955 SCR  (1)1353

ACT: 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.

HEADNOTE: 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 1354 payment   of  his  wages  or  deduction  of  his  wages   in contravention of the provisions of s. 5 or s. 7 of Act IV of 1936 respectively.  The respondent alleged that he had  been paid his actual wages as fixed by the railway administration 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 on the scale to which he would  have  been  entitled if he had  been  placed  on  the monthly wages scheme. Held,  per SINHA J. (VIVIAN BosE and VENYATARAMA  AYYAR  JJ. concurring,   JAGANNADHADAS   J.   dissenting),   that   the respondent’s complaint fell under the category of  potential wages  and  the  authority appointed under the  Act  had  no jurisdiction to decide the question of potential wages.   It had  the jurisdiction to decide what actually the  terms  of the  contract between the parties were, that is to  say,  to determine the actual wages. On  the case as made on behalf of the respondent, orders  of the  superior officers were necessary to upgrade him from  a

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daily wageearner to a higher cadre.  The authority under the Act  has  not been empowered under s. 15 to  make  any  such direction to the superior officers. Per  JAGANNADHADAS  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 employee is  entitled  to the higher wage-a determination which involves the  exercise of  administrative judgment or discretion or  certification, 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  but  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   authority concerned makes default or commits error in working out  the application  of  the rules.  The wage under the Act  is  not necessarily  the  immediately  pre-existing  wage  but   the presently  payable  wage.  Whether or not  an  employee  was entitled to wages of a higher category than what he was till then drawing would depend entirely on the scope of the rules with reference to which he is entitled to become one in  the higher category and it cannot be assumed a priori that  such a claim is a claim to "prospective wages". On the facts of the case as found the dispute as to the wage was one that fell within the jurisdiction of the "authority" concerned.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No, 147 of 1953,                             1355 Appeal  by Special Leave from the Judgment and  Order  dated the 24th day of August 1951 of the High Court of  Judicature at Bombay in Appeal No. 50 of 1951 arising out of the  Order dated the 19th day of June 1951 of the said Court exercising Original Jurisdiction in Misc.  No. 143 of 1951. M.   C. Setalvad, Attorney-General.for India (Porus A. Mehta and P. G. Gokhale, with him), for the appellant. J.   B.  Dadachanji, M. V. Jayakar and Rajinder  Narain  for respondent No. 2. 1955.   March  4. The Judgment of Vivian  Bose,  Venkatarama Ayyar and Sinha JJ. was delivered by Sinha J.  Jagannadhadas J. delivered a separate judgment. SINHA  J.-This is an appeal by special leave from the  order of  the  High Court of Judicature at Bombay dated  the  24th August  1951 upholding that of a single Judge of that  court sitting  on  the Original Side, dismissing  the  appellant’s petition  under art. 226 of the Constitution for a  writ  of certiorari  quashing the order dated the 23rd  January  1951 passed  by  the  1st respondent,  the  Authority  under  the Payment of Wages Act (hereinafter referred to as the Act). The facts leading up to this appeal may shortly be stated as follows: The 2nd respondent is and has been at all  material times  an employee of the Central Railway  (formerly  called the  G.I.P. Rly.) represented by the appellant who has  been nominated  by the Railway Administration as responsible  for payment  of  wages under section 3 of the Act.   Ever  since 1941,  the 2nd respondent has been employed by  the  Railway Administration  as a carpenter on daily wages, and has  been treated  as a daily rated casual labourer and has been  paid

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his  wages at the rate of Rs. 3-4-0 per day.   He  continued receiving  his  wages  at that  rate  until  October,,  1949 without any demur, and granting receipts for the wages  thus received.  On the 2nd December, 1949 an application was made by one K. N. Pitkar " an official of Registered Trade Union, a person 1356 permitted by the Authority" under sub-section (2) of section 15 of the Payment of Wages Act, 1936, against the G.I.P. Ry. administration  through  its  Divisional  Engineer,   Parel, Bombay.  It was alleged on behalf of the 2nd respondent that his  wages due in respect of six months from May to  October 1949  amounting  to Rs. 245 had not been paid  or  had  been subjected  to illegal deductions as shown in  the  schedule. The  schedule will be set out hereinafter.  A claim for  Rs. 245 plus Rs. 15 by way of compensation was made. The  appellant, as the opposite party before the  Authority, resisted the claim, inter alia, on the grounds- (1)  that  Rs. 245 had not been illegally deducted from  the wages of the 2nd respondent; and (2)  that  the claim of the 2nd respondent who was  employed as  a daily rated casual labourer on specified daily  wages, to  be placed on a permanent cadre on the scale  of  monthly rates of pay was unfounded. It was further alleged that the 2nd respondent did not  come within the purview of the Railway Services (Revision of Pay) Rules  as  he was a daily rated casual labourer  charged  to works  and  that no rules had been laid down  governing  the rates  of pay and the conditions of service of  daily  rated casual laborers like the 2nd respondent.  Hence his terms of service were the daily wages paid to him all along.  It  was thus  contended  that there had been no deduction  from  his wages.   In this connection reference was made to the  award of  the Railway Workers Classification Tribunal,  dated  the 28th May 1948. The  Authority  by its orders dated the  23rd  January  1951 decided that the position of the 2nd respondent was not that of a casual labourer but that of a "temporary employee"  and that therefore he was entitled to be on the scale of Rs. 55- 150  plus  the  allowances admissible.  In  coming  to  this conclusion the Authority observed that the work done by  the 2nd respondent is of the same nature as that of a member  of the permanent staff.  Hence the 2nd respondent could not  be called a casual labourer.  It also made reference to                             1357 article 39 (d) of the Constitution containing the  direction that  there  should  be  equal  pay  for  equal  work.   The Authority also negatived the contention raised on behalf  of the  appellant  that the question of  classification  of  an employee was outside its jurisdiction.  In pursuance of  the said  order  the  Authority  allowed  the  2nd  respondent’s application by its further orders dated the 2nd March 1951. Against the said orders of the Authority the appellant moved the  High  Court of Judicature at Bombay by  an  application under  article  226  of the Constitution  for  quashing  the aforesaid  orders.   The  matter  was  heard  in  the  first instance by a learned single Judge of that court who by  his orders  dated the 19th June 1951 dismissed the  application. The  appellant preferred an appeal under the Letters  Patent which  was  heard by a Division Bench of  that  court.   The Division  Bench  by  its order dated the  24th  August  1951 dismissed the appeal and agreed with the conclusions of  the Judge on the Original Side that the Authority had not  acted without jurisdiction or had not exceeded its jurisdiction in entertaining  the  2nd  respondent’s  application.   On  the

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appellant’s  application for leave to appeal to  this  court being  rejected by the High Court, the appellant moved  this court  and  obtained  special leave to  appeal  on  the  2nd February 1953. The  main controversy between the parties in this  court  is whether,  having  regard to the relevant provisions  of  the Act, the 1st respondent was competent to pass the orders  it did,  which  orders  had been upheld by the  High  Court  of Bombay.  The  Authority  set up under section 15 of the  statute  in question is undisputably a tribunal of limited jurisdiction. Its power to hear and determine disputes must necessarily be found in the provisions of the Act.  Such a tribunal, it  is undoubted,,  cannot determine any controversy which  is  not within  the  ambit of those provisions.   On  examining  the relevant  provisions of the Act it will be noticed  that  it aims  at regulating the payment of wages to certain  classes of persons employed in industry.  It applies 1358 in  the  first instance to the payment of wages  to  persons employed   in   any  factory  or  employed  by   a   railway administration; but the State Government has the power after giving  three months notice to extend the provisions of  the Act  or any of them to the payment of wages to any class  of persons  employed  in  any  class  or  group  of  industrial establishments.  "Wages" means- "all  remuneration, capable of being expressed in  terms  of money,  which  would,  if  the  terms  of  the  contract  of employment,   express   or  implied,  were   fulfilled,   be payable........  to  a  person employed in  respect  of  his employment or of work done in such employment...." (omitting words not necessary for our present purpose). Section  3  lays  down  that  every  employer  or  his   re- presentative or nominee shall be responsible for the payment to  persons employed by him of all wages Section’s  provides for  fixation of "wage-periods’ which shall not  exceed  one month in any case.  Section 5 indicates the last date within which,  with reference to the particular wage-period,  wages shall be paid.  Section 7 lays down that the wages of an em- ployed person shall be paid to him without deductions of any kind  except those authorized by or under the Act.   Section 7(2)  in clauses (a) to (k) specifies the heads under  which deductions from wages may be made, namely, fines; deductions for  absence from duty; deductions for damage to or loss  of goods  of the employer; deductions for  house  accommodation supplied  by  the  employer; deductions  for  amenities  and services  supplied by the employer; deductions for  recovery of  advances  or for adjustment of  overpayments  of  wages; deductions of income-tax payable by the employee; deductions to  be  made  under orders of a  court  or  other  competent authority;   deductions  for  subscriptions  to,   and   for repayment  of advances from any provident  fund;  deductions for  payments to cooperative societies, etc.;  and  finally, deductions made with the concurrence of the employed  person in  furtherance of certain schemes approved  by  Government. No other deductions are permissible.  It is also laid                             1359 down  that every payment made by the employed person to  the employer or his ’agent shall be deemed to be deduction  from wages.  Each of the several heads of deductions aforesaid is dealt  with in detail in sections 8 to 13.  Section  8  lays down the conditions and limits subject to which fines may be imposed and the procedure for imposing such fines.  It  also requires  a register of such fines to be maintained  by  the person  responsible  for the payment of  wages.   Section  9

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deals  with deductions on account of absence from  duty  and prescribes  the limits and the proportion thereof to  wages. Section  10  similarly deals with deductions for  damage  or loss  to the employer and the procedure for determining  the same.  Like section 8, this section also requires a register of such deductions and realizations to be maintained by  the person  responsible  for the payment of wages.   Section  11 lays  down the limits of deductions for house  accommodation and other amenities or services which may have been accepted by  the  employee, subject to such conditions as  the  State Government may impose.  Section 12 lays down the  conditions subject to which deductions for recovery of advances may  be made  from  wages.   Finally section 13  provides  that  the deductions   for  payment  to  co-operative  societies   and insurance schemes shall be subject to such conditions as the State Government may prescribe.  Section 14 makes -provision for  the  appointment  of Inspectors for  carrying  out  the purpose of the Act, with power to enter on any premises  and to  examine  any  registers or  documents  relating  to  the calculation or payment of wages and to take evidence on  the spot.   His  function  is  to  see  that  the  registers  or documents  prescribed  by the Act containing  the  necessary entries  as regards deductions and other matters  have  been properly  kept by the employers or their agents in order  to be  able to ascertain whether any deductions from  wages  in excess of the provisions of sections 7 to 13 aforesaid  have been made.  We then come to section 15 which makes provision for the appointment of the Authority "to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of 174 1360 the wages of persons employed or paid in that area".   Where the  Authority finds that any deduction has been  made  from the wages of an employed person or the payment of any  wages had been delayed, he may at the instance of the  wage-earner himself  or  any  legal practitioner or any  official  of  a registered  trade union authorized in writing to act on  his behalf,  or any Inspector under the Act or any other  person acting  with the permission of the Authority,  after  making such   enquiry  as  he  thinks  fit  and  after  giving   an opportunity  to  the person responsible for the  payment  of wages  under section 3 to show cause, direct the  refund  to the employed person of the amount deducted or the payment of delayed  wages  together with such compensation  as  he  may determine.   The  section  also lays  down  the  limits  and conditions of his power to direct payment of compensation to the employed person or of penalty to the employer, if he  is satisfied that the application made on behalf of an employee was  either  malicious or vexatious.  His  determination  is final  subject  to  a very limited  right  of  appeal  under section  17.   Section 18 vests the Authority with  all  the powers  of a civil court under the Code of Civil  Procedure, for  the  purpose  of  taking  evidence,  of  enforcing  the attendance of witnesses and of compelling the production  of documents.   Section  22  lays  down  that  no  court  shall entertain any suit in respect of wages or of deduction  from wages  in so far as the claim forms the subject matter of  a pending  proceeding under the Act or has formed the  subject of  a direction in favour of or against the plaintiff  under section  15,  or  which could have  been  recovered  by  the application  under  that section.  Section 26  empowers  the State Government to make rules to regulate the procedure  to be  followed  by the authorities and courts referred  to  in sections 15 and 17 and provides that rules may be made inter

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alia,  requiring  the  maintenance  of  records,  registers, returns and notices necessary under the Act and the  display in  a conspicuous place of notices specifying the  rates  of wages  payable  to persons employed on  such  premises;  and prescribing the authority for making a list of                             1361 acts and omissions in respect of which fines may be  imposed and the procedure for imposing such fines. We have set out above in some detail the relevant provisions of  the Act in order to point out that those provisions  are not  applicable to the complaint made in the  present  case. In this connection it is necessary to set out in extenso the "particulars  of  claim"  in the schedule  appended  to  his application which are as follows: "The  applicant  is working as a  carpenter-mason  with  the opposite  party  under I.O.W., Byculla.   According  to  the orders on introduction of the prescribed scales, the Railway Administration has to make the staff working under I.O.W. on permanent  monthly  wages  scheme under  the  rules  of  the prescribed  scales.  The applicant along with others was  up till  now  under daily wages scheme.  About 20  posts  under I.O.W.  where the applicant is working were to be made  per- manent.  The opposite party in supersession of claim of  the applicant has confirmed his juniors on the permanent  scales as  a skilled workman in the scale  of  55-3-85-4-125-5-130, whereas the opposite party continued to pay the applicant on daily  wages  scheme thus depriving him  of  his  legitimate wages  under  the prescribed scale, which  resulted  in  the monetary  loss  to the applicant of Rs. 40-13-4  per  month. Notice  on behalf of the applicant was served on this  count on  the  opposite  party  but of no  avail  and  hence  this application.    The  juniors  have  been  paid   under   the prescribed  scales  from April, 1949, from  which  date  the applicant  was also entitled to the prescribed scale  55-130 (scale for skilled workman).". There is no allegation of delay in payment of wages inasmuch as  it is not the respondent’s case that his wages were  not paid  within the time limit laid down in section 5; nor  are there  allegations to show that any payments have been  made by  the employed person to the employer or his  agent  which could be deemed to be a deduction from his wages within  the meaning  of section 7. None of the categories of  deductions as  laid down in section 7 have been referred to.  In  other words, it is not alleged that his Wages 1362 were so much and that so much had been deducted under any of the heads set out under section 7(2).  The allegations  made by  the  respondent only amount to saying that he  had  been paid his actual wages as fixed by the railway administration 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. The  respondent’s main grievance, therefore, appears  to  be that  he  had not been paid wages on the scale to  which  he would  have  been  entitled if he had  been  placed  on  the monthly wages scheme.  In  our opinion, the scheme of the Act as set  forth  above shows that if an employee were to state that his wages were, say  Rs.  100  per month and that Rs. 10  had  been  wrongly deducted  by authority responsible for the payment of  wages that is to say, that the deductions could not come under any one  of  the categories laid down in section 7 (2),  that  a would  be a straight case within the purview of the Act  and the authority appointed under section 15 could entertain the

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dispute.   But it is said on behalf of the  respondent  that the  authority  has  the  jurisdiction  not  only  to   make directions contemplated by sub-section (3) of section 15  to refund to the employed person any amount unlawfully deducted but also to find out what the terms of the contract were  so as to -determine what the wages of the employed person were. There  is no difficulty in accepting that  proposition.   If the  parties  entered into the contract of service,  say  by correspondence  and  the contract is to be  determined  with reference to the letters that passed between them, it may be open to the authority to decide the controversy and find out what  the  terms  of the contract with  reference  to  those letters were.  But if an employee were to say that his wages were  Rs.  100 per month which he actually received  as  and when  they fell due but that he would be entitled to  higher wages if his claims to be placed on the higher wages  scheme had been recognized and given effect to,                             1363 that would not in our opinion, be a matter within the  ambit of his jurisdiction.  The authority has the jurisdiction  to decide  what actually the terms of the contract between  the parties were, that is to say, to determine the actual wages; but  the  authority  has no jurisdiction  to  determine  the question of potential wages.  The respondent’s complaint  in the  present case comes within the latter illustration.   If the respondent’s claim to be placed on the scheme of  higher wages  had  been. unduly passed over by  the  appellant,  if indeed he had the power to do so, the obvious remedy of  the respondent  was  to approach the higher authorities  of  the railway  administration  by way of  departmental  appeal  or revision;  but  instead  of doing that, he  has  sought  his redress  by making his claim before the authority under  the Act.  The question is, has the authority the power to direct the  appellant  or his superior officers who may  have  been responsible   for   the  classification,   to   revise   the classification  so as to upgrade him from the category of  a daily wageearner to that of an employee on the monthly wages scheme.  If the respondent had been on the cadre of  monthly wages and if the appellant had withheld his rise in wages to which  he was automatically entitled, without any orders  of his  superior  officers, be might justly  have  claimed  the redress  of his grievance from the authority under the  Act, as  it would have amounted to an underpayment.  But  in  the present  case,  on  the  case  as  made  on  behalf  of  the respondent,  orders of the superior officers were  necessary to  upgrade him from a daily wage-earner to a  higher  care. The  authority  under the Act has not been  empowered  under section  15  to make any such direction  to  those  superior officers.    The  appellant  is  responsible  to   pay   the respondent  only  such wages as are shown  in  the  relevant register  of wages presumably maintained by  the  department under  the provisions of the Act, but he cannot be  directed to  pay the respondent higher wages on the determination  by the authority that he should have been placed on the monthly wages scheme. In that view of the matter it is not necessary to go 1364 into the merits of the controversy as to what classification as   adumbrated  by  the  Railway  Workers’   Classification Tribunal,  and  adopted by the Railway  administration,  the second  respondent should have been brought under.  If  that question  were  open to determination by the  Authority,  we would have had to remit the case to the Authority to give  a fresh opportunity to the parties to adduce all the  relevant evidence  and then to come to its final conclusions,  as  it

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appeared  to  us  during the hearing of the  case  that  all relevant   information  had  not  been  placed  before   the Authority.     But, as, in our opinion, that is not a matter within  its limited jurisdiction, that contingency does  not arise. For the reasons given above we allow this appeal, quash  the orders  of the Authority and of the High Court, but  in  the special  circumstances of this case we make no order  as  to costs. JAGANNADHADAS  J.-I  regret  that I find  myself  unable  to agree. The second respondent before us, employed as a carpenter  in the  Railway since 1941, has been working as  a  daily-rated casual  labourer.   He  claimed that  he  should  have  been absorbed  as a monthly-rated permanent employee and that  he has  been wrongly superseded.  His claim to be treated as  a permanent employee was apparently not accepted by the Tribu- nal (the Authority under section 15 of the Payment of  Wages Act  for Bombay).  But it was held that the position of  the applicant  is not that of a daily-rated casual labourer  but that  of a monthly-rated temporary employee.  His claim  was treated  and  upheld by the Tribunal  as  one  substantially based  on the ground that the Award of the Railway  Workers’ Classification  Tribunal in relation to the  recommendations of  the Central Pay Commission was approved by  the  Railway Board  and  directed to be implemented, and that  by  virtue thereof  he  was no longer a mere casual  labourer  but  was entitled  to higher wages on the footing of a  monthly-rated labourer.  No question arises that the order of the Tribunal is bad owing to the 1365 variation between the claim made and the relief granted.  As held by the High Court, pleadings in these cases have to  be liberally  construed.   That  his claim  was  understood  as having   been  based  on  the  Award  of  Railway   Workers’ Classification   Tribunal,   by  the   Railway   Authorities themselves,  is  clear  from the statement  filed  on  their behalf in answer to the J. employee’s claim.  Apart from the question of jurisdiction, the defence was two-fold. (1)  The applicant  being a daily-rated casual labourer,  charged  to works,  the directive of the Railway Board did not apply  to him. (2) Even if it applied to a person in the situation  of the  applicant, he was not entitled to be brought on to  the monthly-rates  of  pay  in the skilled  grade,  without  his previously  passing  a trade test to  establish  himself  as skilled  in  his trade and he did not pass  the  test.   The Tribunal.  on the material referred to by it in  its  order, came  to the conclusion (1) that the applicant did not  fall within the category of workcharged staff, (2) that under the Award  of the Railway Workers’ Classification  Tribunal,  no trade  test  was  necessary  for the  applicant  who  was  a carpenter,  and (3) that as per certain instructions of  the concerned  authority, the period of casual labour was to  be limited  to  six months, and that since this  applicant  was admittedly  a casual labourer under the Railway for  a  much larger  period,  i.e. since 1941, he became entitled  to  be treated as a temporary employee and not as a casual labourer and to receive wages as such.  Whether these conclusions are right  or  wrong is not the question before  us.   The  only question is whether or not the Tribunal had the jurisdiction to find that the applicant was entitled to the emoluments of a  monthly-rated  temporary employee and not to  that  of  a daily-rated  casual labourer, as the result of the order  of the  Railway Board directing implementation of the Award  of the Classification Tribunal.

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The jurisdiction of the Tribunal arises under section 15  of the Payment of Wages Act, 1936 (Act IV of 1936) (hereinafter referred  to as the Act).  The Tribunal is set up to  decide "all  claims  arising out of deductions from  the  wages  or delay in payment of 1366 wages".   The relief which it is authorised to  award,is  to direct "the refund of the amount deducted, or the payment of the  wages delayed".  Such a direction made by the  Tribunal is final, under section 17 of the Act, subject to the  right of appeal provided therein.  Under section 22, no suit  lies in  any court for the recovery of wages or of any  deduction therefrom which could have been recovered by an  application under section 15.  However limited this jurisdiction of  the Tribunal,  and however elaborate the provisions in  the  Act for the preparation and display by the employer of the table of  wages payable to the employees, and for  the  inspection thereof  by  the Factory Inspectors, it cannot  be  supposed that the jurisdiction of the Tribunal is only to enforce the wages  so  displayed or otherwise admitted.  Such  a  narrow construction  would rob the machinery of the Act of a  great deal  of  its utility and would confine its  application  to cases which are not likely to arise often, in a  wellordered administration  like the Railways.  Indeed, I do not  gather that such a construction was pressed for, before us, in  the arguments.   Even a Tribunal of limited  jurisdiction,  like the  one  under  consideration, must  necessarily  have  the jurisdiction to decide, for itself, the preliminary facts on which  the  claim  or dispute before  it  depends.   In  the instant  case, it must have jurisdiction to decide what  the wages  payable are and, for that purpose, what the  contract of employment and the terms thereof are.  The judgment of my learned  brothers  in this case  apparently  recognizes  the jurisdiction  of the Tribunal as above stated, when it  said that the Tribunal has the power "to find out what the  terms of  the  contract were to determine what the  wages  of  the employed  person were".  Whether the Tribunal’s decision  in this  behalf is conclusive or not is a matter that does  not arise for decision in this case. But,  it  is  said that the Tribunal  has  no  authority  to determine the question of "potential wages".  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 pay-                             1367 ment   of   the  wages"  if  that  wage  depended   on   the determination by a superior departmental or other  authority as  to whether or not a particular employee is  entitled  to the higher wage-a determination which involves the  exercise of  administrative judgment or discretion or  certification, 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 but depends on the  applica- tion  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, in my  view, not a prospective wage, merely because the paying  authority concerned makes default or commits error in working out  the application of the rules.  In this context it is relevant to notice  that  the definition of "wages" in the Act  is  "all remuneration  which  would  if the terms  of  the  contract, express  or implied, were fulfilled, be payable".  The  word "were" in this definition which I have underlined, seems  to indicate  that  even  a "prospective wage"  which  would  be payable on the proper application of the rules in the  sense

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which I have explained above may well fall within its scope. he  wage under the Act is not, necessarily, the  immediately pre-existing wage but the presently-payable wage. In  the case before us, the order of the Tribunal  proceeded on the view that the applicant was presently entitled to  be treated  as a monthly-rated temporary employee and not as  a daily-rated casual labourer, by virtue of the directions  of the  Railway Board for the implementation of the  scheme  of classification  and  that therefore he was entitled  to  the appropriate  higher  wage.   We  have  not  been  shown  any material to indicate that this higher classification of  the applicant  depended  not  on the mere  application,  of  the classification  scheme and the rules thereunder, to him  but upon  any determination by a departmental higher  authority. If it was the latter, undoubtedly the Tribunal cannot  claim to  sit in judgment over that determination, whether it  was right or wrong.  Such 175 1368 determination,  if  wrong,  could be  corrected  only  by  a further  departmental  appeal, if any, available.   But  the Tribunal had, to my mind, the authority to find whether  the applicant’s case falls within the scope of determination  by the departmental authority or is one of mere application  of the rules to the facts of this case.  If the decision of the Tribunal  in this behalf was wrong, the  appropriate  remedy for  the  Railway Authority was by way of  an  appeal  under section 17 of the Act.  Since the finding of the Tribunal in this  case involved the case of as many as six  persons  and the  net additional amount ordered was a sum of  Rs.  1,341, its  finding  was appealable under section 17  of  the  Act. Whether or not an employee was entitled to wages of a higher category  than  what he was till then drawing  would  depend entirely  on the scope of the rules with reference to  which he  is entitled to become one in the higher category and  it cannot  be assumed a priori that such a claim is a claim  to "prospective wages". In  my  view, therefore, there is no  sufficient  reason  to reverse  the  judgment of the learned Judges of  the  Bombay High Court and this appeal should be dismissed with costs. BY  THE  COURT.   In accordance with  the  decision  of  the majority,  the  appeal  is allowed and  the  orders  of  the Authority and of the High Court are quashed.  There will  be no order as to costs throughout. Appeal allowed.                             1369