Skip to content


General Motor-Owners' Association (By Manager), Washim Vs. Mahamoodkhan Vazirkhan (03.11.1966 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 511 and 630 of 1965
Judge
Reported in[1968(16)FLR398]; (1968)ILLJ211Bom
ActsIndustrial Disputes Act, 1947 - Sections 10, 25F and 25G
AppellantGeneral Motor-Owners' Association (By Manager), Washim
RespondentMahamoodkhan Vazirkhan
Excerpt:
.....recovery of wages for that period was filed by respondent - petitioner contended that payment of wages authority (pwa) had no jurisdiction to award any amount as what was claimed by respondent is not covered by definition of 'wages' - 'wages' is an amount which must be given by employer to person employed in respect of his employment and work done in such employment - respondent was not in employment of petitioner as his dismissal was declared illegal without any order of reinstatement - in such case pwa had no jurisdiction to award wages. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties -..........by the general motor-owners' association through its manager against the order of the payment of wages authority directing the petitioner to pay a sum of rs. 300 to respondent 1 together with the costs of the application. the short facts giving rise to this petition are that respondent 1 was in the employment of the petitioner as a bus-driver on a monthly salary of rs. 60. when he was on duty outside, he was to get a sum of rs. 90 as allowance. respondent 1 apparently appeared to be employed from time to time as and when necessary and his employment was a casual employment. he was dismissed from service on 26 december, 1955. he then made an application under s. 41 of the central provinces and berar industrial disputes settlement act, 1947, read with rule 36 of the rules framed by the.....
Judgment:

Patel, J.

1. This petition is by the General Motor-owners' Association through its manager against the order of the Payment of Wages Authority directing the petitioner to pay a sum of Rs. 300 to respondent 1 together with the costs of the application. The short facts giving rise to this petition are that respondent 1 was in the employment of the petitioner as a bus-driver on a monthly salary of Rs. 60. When he was on duty outside, he was to get a sum of Rs. 90 as allowance. Respondent 1 apparently appeared to be employed from time to time as and when necessary and his employment was a casual employment. He was dismissed from service on 26 December, 1955. He then made an application under S. 41 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, read with rule 36 of the rules framed by the State Government for a declaration that the change effected by the petitioner in respect of his employment was an illegal change. The district industrial court made a declaration on 30 March, 1960. The petitioner went in appeal. The State industrial court expressed the opinion that the employment of respondent 1 was of a casual nature, but it held that even so he could be dismissed only after holding a proper enquiry as required under the standing orders, and since no enquiry was held, the change was an illegal change. It confirmed the order of the district industrial court. Respondent 1 then filed an application before the Payment of Wages Authority for recovering his wages for the period 26 December, 1955 to 30 March, 1960, which ultimately came to be dismissed on the ground that the Payment of Wages Act was not applicable to motor transport industry. Thereafter he has raised a suit for recovering the wages of that period. Later, after the Payment of Wages Act was made applicable to this industry, he filed the present application claiming a sum of Rs. 3,750 for the period 1 April, 1960 to 30 April, 1962 at the rate of Rs. 150 per month. The petitioner raised several contentions including the one that the Payment of Wages Authority had no jurisdiction to award any amount under the Payment of Wages Act, 1936. It was further contended that the claim was barred by limitation. The Payment of Wages Authority held that the amount claimed fell within the definition of the term 'wages,' that it had jurisdiction and that the claim was not time-barred in respect of a sum of Rs. 300. The Court awarded the wages for a period of two months from 1 March, 1962, the date on which the Act came into force.

2. Sri Mohta contends that the matter does not fall within the jurisdiction of the Payment of Wages Authority inasmuch as what is claimed by respondent 1 cannot be wages within the meaning of the definition of 'wages,' contained in S. 2(vi). He further contends that the Payment of Wages Authority's jurisdiction to hear and decide claims is limited to claims arising out of deduction from wages or delay in payment of wages of persons employed and matters incidental to such claims. According to him, in order that a person should be entitled to claim wages under the Payment of Wages Act he must be employed during the period during which the claim arises.

3. The word 'employed person' has been defined in S. 2(1) and includes the legal representative of a deceased employed person. This definition must indicate when read with the terms of S. 15(1) that the Payment of Wages Authority can have jurisdiction to determine the questions if the claim arises in respect of wages of a person who is actually employed by the employer. Section 15(2) also speaks of 'wages of an employed person.' Similarly, S. 15(3), proviso (a), and Sub-section (4) refer to 'employed person.' Section 20 imposes a penalty for the contravention of the provisions of the Act by a person 'being responsible for the payment of wages to an employed person.' It is doubtful if under the circumstances even a deeming provision will make S. 15 applicable. In our view, if there is a claim which smells of some other kind of claim, the Payment of Wages Authority would not have authority to entertain the claim.

4. In the present case, respondent 1 obtained a declaration from the district industrial court that the change effected by the employer was an illegal change. We have not been shown any standing order but are told that the standing orders are the same as model standing orders under the Act. There is no standing order in the model standing orders that when a declaration of illegal change is made under S. 41, the status quo ante shall be deemed to be restored, or it shall be deemed that such illegal change had not occurred. In the Act itself, detailed provisions have been made where different jurisdiction is conferred upon different authorities to grant different kinds of reliefs to an employee. Section 41 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, falls within Chap. VI which relates to illegal strikes and lookouts and illegal changes. Section 40 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, defines what these illegal strikes and lookouts and illegal changes are and S. 41 gives authority to the State industrial court or the district industrial court on certain conditions being complied with to decide whether any strike, lookout or change which has taken place is illegal. The section does not contain any provision authorizing the industrial court to bring about a status quo ante by its order and in case of dismissal, order reinstatement. Chapter VII of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, prescribes certain penalties for continuing such illegal changes, lookouts or strikes which do not involve again bringing about the original status. Section 16 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, specially relates to orders of dismissal of workmen. The employee is given liberty to apply to the Labour Commissioner for reinstatement. The Labour Commissioner, if he comes to the conclusion that the dismissal, discharge, removal or suspension was in contravention of any provisions of the Act or a standing order made thereunder, or that the order of punishment was passed more than six months after the alleged misconduct, is empowered either to reinstate the employee or award him such compensation as he deems proper within certain limits. The meaning of the section is clear and it is that a mere illegal charge, whether declared to be so or not does not, ipso facto restore the employee to his original employment. There is still a discretion in the Labour Commissioner, who deals with those matters and who is a different authority from the one to declare the illegal change, either to restore him to his employment or award him some amount as damages. In the Act, therefore, and in the standing orders, there is no provision that merely because a dismissal is declared to be an illegal change, it ipso facto means that the employee shall be deemed to be an employee. If this is so, it appears to us that the case cannot fall within S. 15 of the Payment of Wages Act and the claim cannot amount to wages within the meaning of the word as defined in the Act itself.

5. Now, it is true that the definition of the word 'wages,' as it was originally framed, referred to the terms of contract of employment, express or implied. By the change in 1957 by the amending Act, the definition is widened to 'terms of employment, express or implied.' The terms of employment would include terms implied by law. It is clear, therefore, that the Payment of Wages Authority is not confined only to the contractual terms of employment. By the improved definition, it may also refer to the terms of employment, either under a contract or under a statute or the standing orders under the Industrial Act. Having regard to the fact that the Payment of Wages Authority can make an order for payment of wages of only a person who is employed with the employer, it only means that the claim must relate to wages during the period of employment.

6. On behalf of respondent 1, reliance is placed on a decision of a Division Bench of the Court in Namdeo Shrawan Lokhande v. Chocks Canning and Mining, Ltd., Nagpur : (1962)IILLJ323Bom . The respondents in that case were not present before the Court. The Payment of Wages Authority, under circumstances similar to the present, had held that merely because a change was declared to be illegal, it did not mean restoration of the employee in the employment and, therefore, the amount claimed was not wages. This Court held that having regard to the amendment brought about by amending Act 68 of 1957 in the definition of the word 'wages,' the amount claimed would fall within the definition. The Court held that the declaration can be taken into account as being one of the terms of employment and the order of the district industrial court would operate to show that he continued in the employment of his master. With respect, having regard to what we have stated, that is, different jurisdiction being conferred on different authorities to make different kinds of orders,

(1) a declaration that a change is illegal, and

(2) reinstatement of an employee dismissed,

7. it is not possible to make the assumption that has been suggested by the Division Bench. Apart from this, certain fundamental principles in this connexion were not brought to the notice of the Court including S. 16 of the Act. In Dr. S. Dutt v. University of Delhi : [1959]1SCR1236 there are some observations pertaining to the matter in issue. The case arose out of a wrongful dismissal of Dr. S. Dutt by the university authorities. The matter was referred to arbitration and the arbitrators declared that the dismissal was wrongful and further proceeded to reinstate Dr. S. Dutt in his previous employment. A contention was raised before the Supreme Court that the award directing reinstatement went beyond the scope of the dispute referred to the arbitrators and, therefore, was invalid. The answer to this question that was suggested was that the order of reinstatement was merely consequential to the declaration that the dismissal was wrongful. The Supreme Court negatived this contention, holding that there was no analogy between cases arising under the Industrial Disputes Act in an award and the one arising outside it. It said (p. 1054) :

'Now, it is not consequential to such a finding that the dismissal was of no effect, for a wrongful and mala fide dismissal is nonetheless an effective dismissal though it may give rise to a claim in damages.'

8. The Court distinguished the decision in Western India Automobile Association v. Industrial Tribunal, Bombay1949 L.L.J. 245 where the words 'any dispute' in S. 10 of the Industrial Disputes Act (Central), 1947], were construed while considering the validity of an order of reinstatement of an employee by the industrial tribunal. Mst. Dewli Bakaram and others v. State Industrial Court and others : (1959)ILLJ475Bom has no application since in that case the condition precedent to retrenchment not having been observed, it was held that employees were entitled to be reinstated. The decision does not say that the employees continued in employment. The Court held that S. 16 of the Act applied and the Labour Commissioner had jurisdiction. In State of Bombay v. Hospital Mazdoor Sabha and others : (1960)ILLJ251SC , it was held that requirement prescribed by S. 25F(b) of the Industrial Disputes Act, 1947, for retrenchment is a condition precedent and non-compliance with its terms makes an order inoperative. This cannot be said of the present Act with which we are dealing where the Labour Commissioner is entitled to refuse reinstatement.

9. In the present case, the Local Industrial Act itself has made a distinction between the two authorities which are entitled to grant two different kinds of reliefs. Even the district industrial court did not, while deciding the matter under S. 41 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, assume that it had jurisdiction to make an order of reinstatement in favour of the employee, nor did it make any. If it had made any such order probably that part of the order would have been held to be without jurisdiction as decided by a Division Bench of this Court in R. S. Rekchand Gopaldas Mohota Spinning and Weaving Mills (Private), Ltd. v. Laxman Das and others : (1958)IILLJ180Bom where the precise amplitude of S. 41 read with rule 96 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, fell to be considered by the Bench. After referring to the provisions of S. 16 of the Act, the Court held that the district industrial court had no jurisdiction to direct reinstatement by its order, this power being specially vested in the Labour Commissioner under S. 16.

10. The conclusion reached above is supported by the decision in Jahiruddin and others v. Model Mills, Ltd., Nagpur : (1966)ILLJ430SC . The facts here were that the State took over management of the Model Mills under powers vested in it for the purpose, and thereafter appointed one of the respondents manager of the same. It seems that the State Government suspended the operation of S. 16 of the present Act in its application to the Model Mills. The manager terminated the services of the appellants before the Supreme Court. While considering this question, the Court decided that the right to claim reinstatement was inherent in industrial employment and was not created by S. 16 of the Act. It further held that the section merely provided for the remedy and during the time that the section was not operative, the remedy could not be enforced. But when its application became restored, the employee could apply to the Labour Commissioner for relief in accordance with the section, provided his application is in time. The decision indicates that there is no automatic restoration of the employment of the employee without an order under S. 16.

11. It seems to us that the Payment of Wages Authority can grant relief in respect of wages for the period during which the employee is employed by the employer. As in Namdeo v. Chocks, etc., Ltd. [1962 - II L.L.J. 323] (vide supra) different view is taken, we refer the following questions to a Full Bench :

(1) Whether a person, who is illegally dismissed, is entitled to make a claim for wages for a period after his dismissal under the Payment of Wages Act

(2) Whether a declaration that the change is illegal under S. 41 of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947, makes and difference

(3) Whether the Payment of Wages Authority will have the power to entertain such an application when the above Act, by S. 16, makes a special provision for the same


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //