1. The petitioner-company deals in bidis. It supplied raw material to independent contractors and obtained katcha bidis prepared and rolled by workers employed by such independent contractors. Respondents 2 to 48 who are 47 in number, collectively, on the other hand, claim to be employees for bidi-rolling work, employed by the petitioner-company. These several respondents filed an application before respondent 1, which is a labour court at Nagpur, complaining that they had not been paid at the minimum rate of wages fixed by the State Government for workers in bidi industry, under a notification dated 14 June, 1958, which came into force from 1 July, 1958. The respondent-workers claimed the difference between the wages actually paid and the wages payable at the minimum rate of wages fixed under the Minimum Wages Act by the State Government for the period from 1 May, 1959 to 15 December, 1961. The applications were filed on or about 10 April, 1964.
2. The petitioner-company, which was noticed in each application, contested the claim of the respondent-workers on several grounds. It denied that there existed a relationship of employer and employee between the petitioner on the one hand and the worker-respondents on the other. Its case was that the respondents, if at all, were the employees of one Budharam who was an independent contractor, having undertaken to supply katcha bidis to the petitioner under three contracts. The petitioner further disputed the jurisdiction of the labour court at Nagpur as constituted by the Governments to entertain the claim of the respondents under S. 33C(2) of the Industrial Disputes Act, 1947. Hereafter this Act will be referred to as the Act. It was further contended that if the claim was for payment of minimum wages, the authority contemplated under the Minimum Wages Act would be the forum which has exclusive jurisdiction to entertain claims under that Act, and the labour court would not have jurisdiction to entertain such a claim. It also disputed the jurisdiction of the labour court to determine the nature of relationship alleged to be subsisting between the petitioner and the respondents, namely, that of an employer and the employees, and also challenges in this Court now the correctness of the finding recorded by the labour court in that respect.
3. As to the merits of the claim the petitioner contended that what was claimed by the respondent-workers was not a benefit which alone could be claimed under Sub-section (2) of S. 33C of the Act, nor was it a benefit, which is capable of computation in terms of money. What is claimed was wages simpliciter, and in case of such a claim for wages there is no question of computing it in terms of money because it was money that itself is claimed and such a claim was not within contemplation on proper construction of Sub-section (1) of S. 33C of the Act. Lastly, it was claimed now in this Court that the labour court had no jurisdiction to award costs as it has done, namely, at the rate of Rs. 5 per applicant-worker.
4. Yet another contention raised is regarding limitation for this claim, and the effect of previous proceedings taken by the respondent-workers under the Minimum Wages Act itself. The contention regarding limitation is that the claim of the respondents not having been brought within six months of the cause of action, as provided by the proviso to Sub-section (2) of S. 20 of the Minimum Wages Act, the claim, even if otherwise entertainable by the labour court, was barred. It was also alleged that in any case the claim more than three years old next before the date of presentation of the application was clearly barred in view of recent Full Bench decision of this Court that a limitation of three years would apply to all applications before any authority.
5. The petitioner also pointed out that the respondents had in fact made an application under S. 20 of the Minimum Wages Act, but that application was dismissed in default, and what is more, their application for having the application restored was also dismissed, and therefore a fresh application under the Industrial Disputes Act was not tenable on the principle of res judicata which should be called in aid. It is an admitted position that previous dismissal of the application under the Minimum Wages Act was only default and not on merits.
6. We have heard the learned counsel for the petitioner at great length and we have been taken through all the relevant material on record and also the provisions of the various statutes which are relevant and helpful in construing the provisions of S. 33C(2) of the Industrial Disputes Act. Reference has been made to various decisions of the Supreme Court and other High Courts including of course the decisions of this Court. It will be necessary carefully to consider all these submission as, in our opinion, this petition raises an important question under the Industrial Disputes Act, 1947.
7. The petitioner disputes the correctness of the finding recorded by the labour court that the respondent-workers are proved to be the employees of the petitioner and not of any independent contractor. The petitioner averred in Para. 1 of its written statement in reply to the claim made before the labour court that it denied that the applicant in each case was ever employed by the Ambika Tobacco Company, i.e., the petitioner, in the factory or establishment. It also denied that the applicant-worker was ever in employment, much less for the period for which the claim was made, i.e., from 11 May, 1959 to 15 December, 1961. The petitioner reiterated the same contention, namely, that there was no relationship of employer and employee between the petitioner and the respondents, as contemplated by the Industrial Disputes Act, in para. 10 of the written statement. In order to prove that the petitioner had got the work of rolling bidis done through its contractors, it filed specific agreements entered into between the petitioner and the independent contractors, and three of such agreements are to be found as annexures H, H-1 and H-2 between the petitioner and Budharam, who, according to the petitioner, was an independent contractor under whom or for whom the respondent-workers were working. Evidence was led on behalf of both parties on this point. The learned member of the labour court has dealt with this contention from Para. 9 onwards, and he has come to the conclusion that there was no manner of doubt that the said Budharam was merely a handy tool in the hand of the petitioner and that the real person who conducted the factory was the manager of the factory and not Budharam. In other words, the finding is that the petitioner had employed the respondent-workers for the work of rolling bidis and it was the petitioner who was responsible for payment of their wages. Essentially, the question of nature of relationship between two persons and whether it was relationship of an employer and employee is a question of fact. We have been taken through the careful judgment of the labour court on this aspect, and we do not find that the learned Judge has failed to take notice of any contention raised on behalf of the petitioner. Having considered all the material and evidence on record, the labour court came to the conclusion that the respondent-workers were in fact the employees of the petitioners; we do not think that such a finding is liable to challenge in these proceedings under Art. 226 or 227 of the Constitution. There is no error of law, or any error or illegality in the exercise of jurisdiction pointed out as having been committed by the labour court in arriving at this conclusion on a question of fact. He must, therefore, decide this petition on the footing that the petitioner is the employer of the respondent-workers in this case.
8. The next question is about the constitution of the labour court itself. The State Government has constituted a labour court at Nagpur under a notification dated 26 July, 1961. The powers and functions to be exercised by such labour court are also designated by another notification of the same date and both there notification are to be found at p. 99 of the of the Government publication of the Industrial Disputes Act, 1947, and the Industrial Disputes (Bombay) Rules, 1957, published in 1966. These two notifications are as follows :
'Industries and Labour Department, Sachivalaya, Bombay, 26 July, 1961. [Industrial Disputes Act, 1947.]
No. IDA. 1161 (1) - Lab. II. - In exercise of the powers conferred by Sub-section (7) of the Industrial Disputes Act, 1947 (14 of 1947), the Government of Maharashtra hereby :
(1) constitutes a labour court at Nagpur for adjudication of industrial disputes relating to matters specified is Sch. II to the said Act and for performing such other junctions as may be assigned to it under the Act; and
(2) appoint Sri P. D. Kulkarni, Judge, District Industrial Court, Nagpur, as the presiding officer thereof. (By order and in the name of the Governor of Maharashtra) B. V. LAUD, Under Secretary of Government.' Amended by Government notification, I & L.D. No. IDA 1161-Lab.-II. dated 12 April 1962. 'Industries and Labour Department, Sachivalaya, Bombay, 26 July 1961. [Industrial Disputes Act, 1947.]
No. IDA. 1161 (iii) - Lab. II - In exercise of the powers conferred by Sub-section (2) of S. 33C of the Industrial Disputes Act, 1947 (14 of 1947), the Government of Maharashtra hereby specify for the purposes of the said Sub-section (2), the labour court, Nagpur, in the areas within Buldana, Akola, Amravati, Yeotmal; Wardha, Nagpur, Bhandara and Chanda districts.
(By order and in the name of the Government of Maharashtra) B. V. LAUD, Under Secretary to Government.'
9. As far as we are able to understand the argument of the learned counsel for the petitioner regarding this contention, its case appears to be that the State Government could not constitute a labour court investing it with powers and functions under S. 33C of the Industrial Disputes Act. Section 2(a) of the Act defines the expression 'appropriate Government.' According to that definition, the Central Government is the appropriate Government in relation to any industrial disputes referred to in Sub-clause (1) of Clause (a) of S. 2, and under Sub-clause (ii) of the same Clause (a) of S. 2, in relation to any other industrial disputes, the State Government is the appropriate Government. Our attention was invited to the definition of the phrase 'industrial dispute' as defined in S. 2(k) of the same Act, and it is not now disputed that the industrial dispute contemplated in this definition does not cover a dispute regarding an industrial matter between a single individual employee and his employer. There is no difficulty in accepting this position. At any rate this was so till a new S. 2A was added to the Industrial Disputes Act by the Industrial Disputes (Amendment) Act, 1965 (Central Act 35 of 1965), and that came into force on 1 December 1965. Obviously, this new S. 2A is not material or relevant for the purposes of this case. Under S. 7(1) of the Industrial Disputes Act, 1947, the appropriate Government may, by notification in the official gazette, constitute one or more labour courts for the adjudication of industrial disputes relating to any matter specified in Sch. II, and for performing such other functions as may be assigned to them under the Act. What seems to be contended is that the power given for constituting a labour court for the adjudication of industrial disputes must necessarily mean a power to constitute labour courts only for adjudication of disputes of a collective nature. As the dispute in the present case is relating to alleged claim for wages by a single employee against his employer, it is not an industrial dispute within the meaning of the Industrial dispute Act. As such is not an industrial dispute, no labour court could be constituted by the State Government for exercising the powers of the labour court to take cognizance of individual worker's dispute or claim. It is on this footing that the constitution of the labour court at Nagpur under the notifications mentioned above is disputed.
10. In our opinion, there is no substance in this objection. It is true that so far as constitution of a labour court for adjudication of industrial disputes is concerned, the jurisdiction of such a labour court is restricted to adjudication of collective disputes and that is because industrial disputes contemplated under the Industrial Disputes Act, 1947, are disputes of a collective nature, in other words, disputes between a number of employees or union of employees and their employer and not disputes between the individual employee and his employer. But that requirement does not affect either the jurisdiction or the power of the labour court so constituted to perform other functions which may be assigned to it under this Act. Section 7(1) on a plain reading would show that the power given to the appropriate Government is not only to constitute a labour court for adjudication of industrial disputes but also to constitute labour court for performance of other functions as may be assigned to it under the Act. Now, the source of authority for the exercise of such power by the labour court is not the appropriate Government but the provisions of the Act itself. A perusal of S. 33C(2) itself will show that it is the legislature which has granted the power to the labour court constituted by an appropriate Government to entertain the claim of a workman who is entitled to receive from the employer any benefit which is capable to being computed in terms of money. What is left to the appropriate Government to indicate in respect of a particular labour court is to assign the particular work to that lab notification which we have extracted above. We, therefore, fail to see how the labour court constituted by the State Government's this case can at all be said to have lacked to power to entertain the claim of an individual worker merely because it is also a labour court for adjudication of industrial disputes of a collective nature. The two functions are distinct and separate and each function is indicated by provisions of the statute itself. We, therefore, do not find any difficulty in rejecting this contention of the stating. It will be seen that there are several function to be performed by the labour court and those are indicated in different provisions of the Act. If we were to accept the construction of those sections as contended by the learned counsel for the petitioner, we must come to the conclusion that the legislature has omitted to indicate the authority which should constitute the labour court. Before coming to such a conclusion which can only be arrived by accepting the interpretation put upon the various sections by the learned counsel for the petitioner, we would advance the intention of the Act and which is clearly manifest from the provisions of the sections of the Act. We, therefore, hold that the constitution of the labour court by the State Government for exercise of powers and functions under S. 33C of the Act. Has been properly made and any challenge to it is not tenable.
11. The next question is regarding the jurisdiction of such a labour court to entertain the claim for the difference between the wage paid and the minimum wage on behalf of the respondent-workers. The Minimum Wages Act was passed in 1948 by central Legislature. Under this Act a power is given to fix the minimum rate of wages in respect of scheduled industries. A minimum rate of wages can be fixed by the appropriate Government only in respect of scheduled employment, which means employments in industries specified in the schedule. The schedule at present had 21 entries in part I and also provides for fixation of minimum rate of wages for employment under certain circumstances. There is also a definition of 'wages' gives in S. 2(h) of the Act. As to what shall comprise a minimum rate of wages is provided in S. 4 and would include a basic rate of wages and subject to allowances to certain cases; and may also include cost of living allowances or cash value concession in respect of supply of essential commodities. An elaborate procedure is given for fixing and revising minimum rates of wages. Provision was also made for converting the wages in kind to those in money. An employer is under an obligation to pay the minimum rate of wages within the time specified by S. 12 of the Act and for the purpose of effective implementation of the provisions, power is given to fix hours of normal work days and cognate matters. Provisions is also made for payment of overtime wages. The follows S. 20 relating to claims for minimum rate of wages. That section is as follows :
'20 Claims - (1) The appropriate Government may by notification in the official Gazette, appoint any commissioner for workmen's Compensation of any officer of the Central Government exercising function as Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner of any other officer with experience as a judge of a civil Court or as stipendiary judicial Magistrate to be the authority to hear and decide for any specified area all claims arising out of wages or in respect of wages not paid within the time prescribed under Sub-section (1) of S. 12 or in respected of the payment of remuneration for days of rest or for work done on such days under Clause (b) or (c) of Sub-section (1) of S. 13 or of wages at the overtime rate under S. 14, to employees employed or paid in that area.
(2) Where as employee has any claim of the nature referred to in Sub-section (1), the employee himself, or any legal practitioner or any official of a registered trade union authorized in writing to act on his behalf, or any inspector, or any person acting with the permission of the authority appointed under Sub-section (1), may apply to such authority for a direction under Sub-section (3) :
Provided that every such application shall be presented within six months from the date on which the minimum wages or other amounts became payable :
Provided further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period. (3) When any application under Sub-sec.(2) is entertained, the authority shall hear the applicant and the employer, or give them an opportunity of being heard, and after such further inquiry if any, an it may consider necessary, may, without prejudice to any other penalty to which the employer may be liable under this act; direct -
(i) in the case of claim arising out of payment of less than the minimum rate of wages, the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid together with the payment of such compensation as the authority may think fit not exceeding ten times the amount of such excess;
(ii) in any other case the payment of the amount due to the employee, together with the payment of such compensation as the authority may think fit, not exceeding ten rupees, and the authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application.
(4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application.
(5) Any amount directed to he paid under this section may be recovered -
(a) if the authority is magistrate, by the authority as if it were a fine imposed by the authority as a magistrate, or
(b) if the authority is not a magistrate, by any magistrate, to whom the authority makes application in this behalf, is if it were a fine impacted by such magistrate.
(6) Every direction of the authority under this section shall be final.
(7) Every authority appointed under Sub-section (1) shall have all the power of a civil Court under code of Civil Procedure, 1908 (5 of 1908), for the propose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents and every such authority shall be deemed to be a civil Court for all the purposes of S. 195 and Chap. XXXV of the Code of Criminal Procedure, 1898 (5 of 1898).'
12. It will be seen that under Sub-section (2) of S. 20 an employee himself or any legal practitioner or any official or a registered trade union authorize in writing to act on his behalf, or even an inspector or any other person acting under permission of the authority is entitled to apply to such authority for a direction under Sub-section (3) and that direction may be inclusive of a claim arising out of payment of less then minimum wages that the employee shall have because it is the amount actually paid. This application under proviso 1 to Sub-section (2) of S. 20 is required to be presented within six months from the date on which the wages became due or payable, but power is given under the further proviso to entertain the claim beyond the period of six months if sufficient cause is shown to the satisfaction of the authority Now, the authority to which reference is made in Sub-sec (2) of S. 20 is one of the several officers who are indicated in Sub-section (1) of S. 20. Provision is also made for recovery of court-fees under S. 21A. Then certain penalties are provided in respect of offences created under the Act. What is urged after reference to these provisions is that there is a complete scheme made out in the several provisions of minimum Wages Act which not only creates right but also provides remedy for enforcement of right. Therefore, if any claim can to legitimately and properly made by as employee within the meaning of the Act in of wage as defined in the Act, then such a claim can be made and entertained before the authority which is constituted under the Act and nowhere else. This being a special legislation on the right created by the Act, the only made of enforcing those must be by reference to the forum and the remedy prosecuted under that Act and not any other general provision. In this connexion special reference is made to S. 24 the Act which bare suits in respect of claims to be recovered by application under the Act, among other bars.
13. The argument is apparently attractive. In this connexion the learned counsel also relied on certain decisions such as Collected of Bombay v. Kamalavahooji A.I.R. 1934 Bom. 152 C.J. Katikar v. Gandhi Sewa Samaj : AIR1958Bom209 ; State v. Kapurchand : AIR1958Bom311 ; Bhana Makan v. Emperor A.I.R. 1936 Bom. 256 and Baburao Bhikaji v. Sandu A.I.R. 1936 Nag. 180. On the other hand, according to the learned counsel for the respondents, the rights created under the Minimum Wages Act are for the benefit of the workers, and if under any law provision is made for speedy and cheap machinery for enforcement of those rights, the argument of exclusive jurisdiction is not open and will not be available for interpretation of this Act. A somewhat similar question came up for decision before this Court in the case of Balaram Abaji Patil v. M. C. Raghojiwalla : (1960)IILLJ491Bom .
14. In that case a claim for payment of minimum wages was made under the Payment of Wages Act before the authority prescribed under that Act. The claim for wages was covered both by the Minimum Wages Act and the Payment of Wages Act. The contention raised on behalf of the employer before the Division Bench was that the jurisdiction of the authority under the Payment of Wages Act to grant relief to the workers who claimed the statutory wage fixed by the Minimum Wages Act was ousted by the jurisdiction of the authority created under the Minimum Wages Act to grant the same relief. The Division Bench examined the provisions of the two Acts so as to the mode of recovery and the relief that should be granted under each Act. The employers there also relied on the well-known canon of construction, namely, that where a special right is created by a special statute and a specific statutory remedy is also provided by that statute, the special remedy is the only remedy to be resorted to. The Division Bench has observed in Para. 18 of the judgment that the mere fact that the Act provides an inexpensive and expeditious machinery to enable the workers to realize the benefits conferred by the Act did not by itself imply that the benefits granted by the Act were necessary confined to the remedy provided therein. With reference to the bar to the jurisdiction of the civil Court under S. 24 of the Minimum Wages Act, the Division Bench has observed that if the contention regarding exclusiveness of the jurisdiction of the authority under the Minimum Wages Act were to be accepted, S. 24 itself would be unnecessary and jurisdiction of ordinary Courts of law would have been barred to entertain any claim made in the application under the Minimum Wages Act. The Court held that if S. 24 had not provided the bar to the filing of the suit, the jurisdiction of the ordinary Courts of law to entertain suits for recovery of minimum wages would not have been affected by the mere fact that an expeditious and inexpensive remedy is provided by the Minimum Wages Act. It was further pointed out that even though jurisdiction of the civil Court is barred under S. 24, no such bar in respect of authority under the Payment of Wages Act was constituted under the provisions of the Minimum Wages Act. With respect, not only we are bound by this decision so far as the principle is concerned, but we agree that the mere fact that the special statute operates rights and provides a remedy for inexpensive and speedy enforcement of that right will not ordinarily bar the jurisdiction of other authorities to give the same relief. But, what is more important to be noticed in the instant case is that the remedy provided by Ss. 33C(1) and 33C(2) of the Industrial Disputes Act came to be included in the statute book for the first time in 1956. The legislative history of this section has been elaborately considered in the decision of the Supreme Court in Central Bank of India, Ltd. v. P. S. Rajagopalan : (1963)IILLJ89SC . When this section was introduced in the Industrial Disputes Act in 1956, the Parliament was fully aware of the provisions both of the Minimum Wages Act and the Payment of Wages Act. That of these Acts provides remedies to the workers for recovery of amounts due to them or benefits accruing to them was known to the legislature. In spite of the provisions in these Acts, Ss. 33C(1) and 33C(2) have been incorporated in the most general terms. Whereas Sub-section (1) of of S. 33C provides for recovery of money due to a workman under settlement or award, or under the provisions of Chap. V-A, the ambit of jurisdiction of the labour court to give relief to a workman entitled to receive from his employer any benefit is obviously much wider. We may here notice that S. 33C(2), as it was originally incorporated in 1956, did not in terms refer to a claim for money in addition to benefit. This has been added by Act 36 of 1964, i.e., Industrial Disputes (Amendment) Act of 1964. In fact, relying on this amendment the learned counsel for the petitioner contended that but for this amendment, a claim in the nature of a money claim, whether for wages or otherwise, could not be the subject-matter of enquiry or decision under S. 33C(2) by a labour court. We do not think such a contention is tenable. But we will the have occasion to deal with this question a little later. What we are at present concerned is the objection raised on behalf of the petitioner that S. 33C(2) is not available to a workman when his claim is in effect a claim which could be legitimately made to an authority under the Minimum Wages Act. It is undoubtedly true that in the present case what the respondent-workers are claiming is a difference between the wage paid and the minimum rate of wages fixed by the Government per bidi-roller. It is also true that such a claim could be properly enquired into and decided under S. 20(3) of the Minimum Wages Act. But we do not see how merely because a remedy, and certainly a cheap and expeditious remedy, is provided under the provisions of the Minimum Wages Act, that would ipso facto exclude the jurisdiction of other authorities such as the labour court under S. 33C(2) of the Industrial Dispute Act, for entertaining similar claims. It is also true that there is some difference in the procedure and the consequences of the enquiry and finding according as a claim is made to the authority under the Minimum Wages Act or to a labour court under S. 33C(2) of the Industrial Disputes Act. The authority under the Minimum Wages Act is empowered to direct not only payment of the minimum rate of wages but also to grant compensation up to a certain maximum. The mode of recovery of the amount is through a magistrate as if the amount directed to be paid were a fine imposed by a magistrate. There is no appeal provided against the decision of the authority. If the application before the authority succeeds, the person responsible for payment of wages is required to pay a certain amount of court-fee, and the amount of such court-fee is liable to be recovered as arrears of land revenue. On the other hand, if a labour court entertains such claims under S. 33C(2), the mode of recovery is the same as is provided under S. 33C(1), and that mode is by issue of a certificate for the amount to the Collector who can proceed to recover the same in the same manner as if it were an arrear of land revenue. Against the decision of the labour court also there is no right of appeal.
15. In our opinion, when the object of incorporating a provision like Ss. 33C(1) and 33C(2) in the Industrial Disputes Act by the Amendment Act of 1956 was to provide an easy and inexpensive remedy for an individual workman, emphasis being on the rights of an individual workman, we do not see any cogent reasons why recourse to the labour court should be considered excluded by implication from the provisions of the Minimum Wages Act. The principle that the special excludes the general will also not be applicable in this case for the simple reason that when the Minimum Wages Act was put on the statute book there was no such provision like S. 33C(1) or 33C(2) in its present form in any other statute. The history of industrial relations in this country shows that various aspects of giving protection to workers and making provisions for enforcement of the privileges granted to industrial workers are attempted in different legislations both by the Central and the State Governments. But the distinguishing feature of a provision like Ss. 33C(1) and 33C(2) of the Industrial Disputes Act passed by the Parliament is that it covers the case of every workman against his employer irrespective of the provision of law under which the right arises or is claimed. We are not, therefore, impressed with the argument that the remedy provided by S. 33C(2) is impliedly barred because provision has been made for enforcement of the right before the authority under the Minimum Wages Act.
16. At this stage we may also dispose of an ancillary contention regarding the limitation which would govern entertainment of such a claim arising out of the provisions of the Minimum Wages Act when preferred before some other authority. The limitation provided by proviso (1) to S. 20, Sub-section (2) of the Minimum Wages Act will only be attributable to a claim before the authority under that Act. A careful reading of the proviso will show that 'every such application' shall be presented within six months from the date on which the Minimum Wages or other amounts became payable. The words 'such application' in this proviso have necessarily a reference to the application required to be made under Sub-section (2) of S. 20, and that application is to be made to the authority indicated in S. 20(1) of the Minimum Wages Act. On the other hand it is well-settled at any rate until the new Limitation Act (36 of 1963) came in force, that there was no limitation for making an application under S. 33C(2) of the Industrial Disputes Act. This has now been finally ruled by the decision of the Supreme Court in Bombay Gas Company, Ltd. v. Gopal Bhiva and others 1963 II L.L.J. 608. There having been no provision for limitation for making a claim under S. 33C(2) non could be read by implication. There is, therefore, no difficulty in holding that even though limitation of six months is provided for making an application to the authority indicated under the Minimum Wages Act, no such limitation of time prescribed in S. 20 of the Minimum Wages Act can be read in construing the limitation for an application under S. 33C(2) of the Industrial Disputes Act when the applications were made in this case.
17. The present application of the respondents, as we have already indicated, came to be filed on 10 April, 1964, i.e., after the new Limitation Act, i.e., Act 36 of 1963 came into force on 1 January, 1964. It has been held by Full Bench of this Court in Manager, P. K. Porwal v. Labour Court70 Bom. L R. 104that a limitation of three years will apply to any other application for which no limitation is provided elsewhere as per entry 137 in the schedule to the Limitation Act. Applying the principle of that decision, therefore, it will have to be held that the claim for minimum wages made by the respondent-workers for a period beyond three years next before 10 April, 1964 would be barred by lamination. The labour court has granted relief to the respondent-workers from 8 June 1960 to 15 February, 1961, but inasmuch as the claim for the period from 8 June, 1960 to 9 April, 1961, is beyond three years and therefore barred by limitation under Art. 137 of the new Limitation Act, it must be held that the claim to that extent could not prima facie have been granted. However, as we propose to pass order with suitable directions, no final decision may be taken to have been given so far as the limitation governing the claim for this period is concerned.
18. The next contention that is required to be noticed is the plea of res judicata raised by the petitioner. It is an admitted fact that the respondent workers had previously filed an application for restoring the application dismissed in default, and the latter application was also dismissed. Grounding its contention on this fact, the petitioner urges that the general principle of res judicata should be applied even in this case inasmuch as the respondent-workers could not be allowed to harass the petitioner twice over and there must be some finality to the dispute. Reliance is placed on a Division Bench decision of this Court in Iyounny C. K. v. Madhusudan Mills and another 1964 I L.L.J. 197. In that case a claim was made under the Bombay Industrial Relations Act and again an application came to be made under S. 33C(2) of the Industrial Disputes Act. A Division Bench held that provisions under both the Acts existed side by side without affecting each other, but it could not be said that the remedy under S. 33C(2) is a remedy in addition or supplemental to the remedy under the State Act and that it would enable a party if he had lost in one to take resort to another Court. Ultimately it was observed as follows at p. 201 :
'... If, therefore, an application is made under either of the Acts and fails on merits a similar application would be barred ...'
19. We do not think the petitioner can avail of this decision because the crux of the principle is that the previous decision must be on merits. In view of the admitted position that the previous application was dismissed in default, we do not think there is any bar to the entertainment of the respondent's application under S. 33C(2) of the Industrial Disputes Act if it is otherwise tenable.
20. While opening this case, the learned counsel for the petitioner wanted to argue that the labour court is a tribunal of limited jurisdiction and could not adjudicate on complicated questions of fact and law, but he sought permission to reserve this objection and we have permitted him to withdraw the same and accordingly this objection is not pressed.
21. The learned counsel wanted to make some grievance about the jurisdiction of the labour court, but when specific provision of the Act was pointed, that objection has also been withdrawn.
22. This takes us to an important question which has been strenuously argued at length on both sides, and that is whether a claim for minimum wages, i.e. a claim for money, would be covered by S. 33C(2) of the Industrial Disputes Act prior to its amendment by Act 36 of 1964. That sub-section when the application was made stood as follows :
'(2) Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to any rules that may be made under this Act, be determined by such labour court as may be specified in this behalf by the appropriate Government, and the amount so determined may be recovered as provided for in Sub-section (1).'
23. Before dealing with the main contention of the petitioner with respect to this part of the case we may dispose of an ancillary argument in this connexion. The learned counsel wanted to contend that the benefit referred to in S. 33C(2) must be a benefit arising under the Act, i.e. under the Industrial Dispute Act, 1947, and a workman claiming a benefit under any other Act was not entitled to have recourse to the remedy under S. 33C(2). We do not see any merit in this contention. The word 'benefit' is not limited by any such restriction, and even a cursory perusal of the scheme of S. 33C will show that this section has been incorporated in 1956 in this Act to make provision for recovering an amount due from an employer. This does not restrict either in Sub-section (1) or (2) of S. 33C that the claim should be with respect to anything claimable under the Industrial Disputes Act, 1947. The very purpose for which the section was introduced in 1956 would be considerably frustrated if such an interpretation were to be accepted as regards the intention of the legislature in incorporating the section. Even under Sub-section (1) of S. 33C a workman having a claim for money due under settlement or an award, or under the provisions of Chap. V-A of the Industrial Disputes Act, is entitled to make an application to the appropriate Government. Now, the provisions of Chap V-A have by legislative device been engrafted in all other legislative concerned with industrial relations and they are to have effect in respects of the rights claimable under other laws as well. There are the well-known provisions for retrenchment, lay-off compensation and terminal benefits, and they are not intended to be restricted to the right created in other parts of the Industrial Disputes Act, 1947. We have, therefore, no difficulty in holding that it is not necessary for a workman legitimately to claim under S. 33C(2) that the benefit to which he is entitled must necessarily arise under the provisions of the Industrial Disputes Act only.
24. The main contention of the petitioner objecting to the jurisdiction of the labour court, however, is that the subject-matter of the claim is beyond the jurisdiction of the labour court. According to the petitioner, what is being claimed are in fact Wages, the worker claiming the difference between contract wage and the minimum wage, but all the same it is wage or, in other words, a claim for money. 'Benefit' according to the petitioner, is something other than a mere money claim or wage. If the petitioner is right in this contention, there is no doubt that the labour court would have no jurisdiction to entertain a claim of the type made by the respondent-workers in this case. The learned counsel for the petitioner has relied on certain decisions in support of this proposition and we now proceed to consider all the cases relied upon at the Bar.
25. The first case on which considerable reliance was placed is the decision of the Allahabad High Court in the Regional Conciliation Officer v. Kays Construction Company (Private), Ltd. and another : (1962)IILLJ8All . The facts giving rise to that decision may be briefly noted. The respondents before the Division Bench, called the Kays Construction Company, were directed in an award by the Industrial tribunal to reinstate some of the old workmen whose list was given is the annexure to the award, to restore them to their old and equivalent jobs and to give them continuity of service. The award also directed that the workmen should be paid 50 per cent of their back wages for the period they were forcibly kept out of employment. The workmen proceeded to realize the money due to them under this award by an application under S. 6H(1) of the Uttar Pradesh Industrial Disputes Act. Section 6H(1) of the Uttar Pradesh Act is similar to S. 33C(1) of the Industrial Disputes Act, 1947. When the application was made under that section of the local Act before the Labour Commissioner to determine the amount payable under the award and to recover the same all an arrear of lead revenue, the Labour Commissioner determined the amount and also took steps to attach property as preliminary to realization of the amount. This action on the Labour Commissioner was challenged by the employer in a writ petition which came before single Bench of the Allahabad High Court, and the main contention which was put forward on behalf of the company before the learned single Judge was that the computation could only be done under the provisions of S. 6H(2) of the Uttar Pradesh Act and the jurisdiction to do that did not vest in the Labour Commissioner. Sub-section (2) of S. 6H of the Uttar Pradesh Act is analogous to S. 33C(2) of the Industrial Disputes Act. The employer succeeded in the contention and the order of the Labour Commissioner was quashed. Against this order a Letters Patent appeal was filed and the decision in that appeal is the subject-matter of this report. After referring to the dictionary meaning of the word 'benefit', the Division Bench observed that none of the meaning given to the word 'benefit' in the dictionary indicated that it could properly be covered by wages or salary because both in the case of wages and salary it is not something that a person receives as advantage or a gift as a benefaction or even as a gain or profit. Wage is something that a person earns because a person is said to earn a wage or salary. Reference was also made by the Division Bench to the decision of the Supreme Court in S. S. Shetty v. Bharat Nidhi, Ltd. : (1957)IILLJ696SC and with reference to the meaning of the word 'benefit' the Division Bench observed that on a careful reading of this decision it becomes plain that the computation in terms of money of a benefit was something different from merely resorting to arithmetical calculation in order to know the exact sum, and, therefore, the wages which he workman gets could not be 'benefit'. With reference to the decision of the Supreme Court in Punjab National Bank. Ltd. v. Kharbanda : (1962)ILLJ234SC , the Division Bench interpreted that decision as meaning that in order to be a 'benefit' it had to be non-monetary. The actual passage which was relied upon from the decision in shetty case : (1957)IILLJ696SC (vide supra) is as follows in : (1962)ILLJ234SC :
'The word 'benefit' is of wide import, and the dictionary meaning thereof is 'advantage, profit.' This would naturally include monetary advantage or monetary profit. There is no reason, therefore, for excluding 'monetary benefits' from the word 'benefit' used in this sub-section unless it is clear from the words used that monetary benefits were not intended to be included in the wide word 'benefit' used therein ...'
26. It appears, a decision of the Madras High Court in Rajamani Transports, Ltd., Pudukkotai v. Collector of Tiruchirappalli and others 1956 I L.L.J. 37was brought to the notice of the Court and in that case the Madras High Court had held that the word 'benefit' in S. 20(2) of the Industrial Disputes (Appellate Tribunal) Act, was wide enough to include benefit which accrued to a workman when his salary was in a graded scale. The Division Bench then proceeded to observe that they were noticing the decision because it indicated that where the salary of a workman or the wages of a workman were on a sliding scale or were dependent upon the number of hours that he put in or any other circumstances which could vary or alter the amount payable to him as wages or salary, any such contingency could also fall in the category of the word 'benefit' as used in S. 6H(2) of the Uttar Pradesh Industrial Disputes Act. What they further observed in : (1962)IILLJ8All is important :
'... The reason for this is not far to seek, for it appears to us that the reason for this lay in the fact that in order to determine the money due to the workman in the contingencies noticed above more than mere satisfaction of the sum due was necessary, for in such a case the sum due had to be determined not merely on arithmetical calculation but on a quasi-judicial determination of certain facts and circumstances. We have no hesitation in saying, in agreement with the views expressed by most Courts in India, that where it was necessary in order to know the sum due or the money payable to a workman to enter into questions calling for 'determination' apart from mathematical calculations, then such determination had to be done under the Uttar Pradesh Act under S. 6H(2), and that in such cases the Sub-section (1) of S. 6H would not apply.'
27. It would be necessary to appreciate the full import of these observations when we consider exactly what is decided in the Allahabad case relied upon by the petitioner.
28. This matter was taken further in the Supreme Court and the Supreme Court affirmed the decision of the Allahabad Division Bench in Kays Construction Company v. State of Uttar Pradesh : (1965)IILLJ429SC (vide supra). When appreciating the ratio of the decision of the Supreme Court in this case it must be remembered that the application for recovery was made under S. 6H of the Uttar Pradesh Act which is in pari materia with S. 33C(2) of the Industrial Disputes Act, and the question that arose for decision was whether such an application was tenable. The single Bench having held that such an application was not tenable, a contrary decision was given by a Division Bench of the High Court, and that decision has been affirmed by the Supreme Court. After referring to the two sub-sections of S. 6H of the Uttar Pradesh Act, their lordships observed as follows (at P. 432) :
'That there is some difference between the two sub-sections is obvious enough. It arises from the fact that the benefit contemplated in Sub-section (2) is not 'money due' but some advantage or perquisite which can be reckoned in terms of money. The Division Bench has given apt examples of benefits which are computable in terms of money, but till so computed are not 'money due'. For instance, loss of the benefit of free quarters is not loss of 'money due' though such loss can be reckoned in terms of money by inquiry and equation. The contrast between 'money due' on the one hand and a 'benefit' which is not 'money due' but which can become so after the money equivalent is determined on the other, marks out the areas of the operation of the two sub-sections. If the word 'benefit ' were taken to cover a case of mere arithmetical calculation of wages, Sub-section (1) would hardly have any play. Every case of calculation, however simple, would have to go first before a tribunal. In our judgment, a case such as the present, where the money due is back-wages for the period of unemployment is covered by the first sub-section and not the second. No doubt some calculation enters the determination of the amount for which the certificate will eventually issue but this calculation is not of the type mentioned in Sub-section (2) and cannot be made to fit in the elaborate phrase 'benefit which is capable of being computed in terms of money.'
29. The contrast in the two sub-sections between 'money due' under Sub-section (1) and the necessity of reckoning the benefit in terms of money before the benefit becomes 'money due' under Sub-section (2) shows that mere arithmetical calculations of the amount due are not required to be dealt with under the elaborate procedure of Sub-section (2) ... But the anti thesis between 'money due' and a 'benefit which must be computed in terms of money' still remains, for the inquiry being made is not of the kind contemplated by Sub-section (2) but is one for the satisfaction of the State Government under Sub-section (1). It is verification of the claim to money within Sub-section (1) and not determination in terms of money of the value of a benefit ...'
30. In our opinion, the pronouncement of the Supreme Court in this case in the context of the judgment under appeal, i.e. judgment of the Division Bench of the Allahabad High Court, cannot lend assistance to the proposition urged before us, namely, that in the present case the claim of the respondents was not for a benefit. It is undoubtedly true that the respondents claimed difference in wages paid and the minimum rate of wages and some calculation was necessary to determine the amount that may become due to them, but before such a relief should be given to the respondents, the labour Courts is required to enquire into certain other questions. In the first place it was necessary to decide whether the respondents were 'workmen' within the meaning of the Act and were entitled to claim minimum rate of wages. Thus, the status of the claimants and title to the claim were intimately connected with the enquiry before the claim could be determined. Though what was claimed was money, i.e., wages, the real nature of the claim would be the benefit which they would be entitled to under the Minimum Wages Act. If the claim is founded on the benefit claimable under the Act and for giving due relief to the respondents adjudication necessary, we fail to see how such a claim is not within the ambit of the wide powers of the labour court under S. 33C(2) of the Act.
31. Reliance is also strongly placed by the learned counsel for the petitioner on a recent decision of the Division Bench of this Court is Manager, P. K. Porwal Bidi Factory v. Labour Court, Nagpur, and others [Special Civil Application No. 168 of 1965 decided on 29 June, 1966 (unrep.)]. If we are bound to follow the decision in this case, the petitioner would have much stronger ground and may even have succeeded in non-suiting the respondents. The case arose out of demand of minimum wage also as would appear from the order of the labour court by a set of bidi-rollers against their employer. But the only point that seems to have been considered amongst several that were apparently raised was the jurisdiction of the labour court, to entertain the claim if it was not a benefit. The counsel for the petitioner in that case contended that the claim made by the workers was not for any benefit which they were entitled to receive from the employer and which was capable of being computed in terms of money. The argument was, as in this case, that any benefit which is capable of being computed in terms of money which a workman says was due to him can be awarded to him. After referring to certain passages from the decision of the Supreme Court in Kays Construction Company case : (1965)IILLJ429SC it was observed as follows :
'The case also shows that an employer may dispute either the quantum of the amount due or even his liability to pay and still these matters will also fall to be considered as incidental matters under Sub-section (1).'
32. We have found it difficult to appreciate whether it is possible in an application properly made under Sub-section (1) of S. 33C that an employer should be able to dispute the liability to pay. If such an issue does arise the matter will have to be adjudicated under the provisions of Sub-section (2) of S. 33C. Then a reference is made to a decision of the Supreme Court in Central Bank of India v. P. S. Rajagopalan : (1963)IILLJ89SC and the passage where the Court observed that the word 'benefit' used in S. 33C(2) is not confined to non-monetary relief but it includes monetary as well as non-monetary benefits as the worker is entitled to them.
33. But it does not appear that the earlier decision of the Supreme Court in Punjab National Bank, Ltd. v. Kharbanda : (1962)ILLJ234SC (vide supra) was brought to the notice of the Division Bench. The facts of the case relating to this decision are important to be noticed. Kharbanda was a supervisor in the Punjab National Bank and the dispute related to the fixation of his salary in accordance with the All-India Industrial Tribunal's award popularly known as the Sastri award. Kharbanda case : (1962)ILLJ234SC (vide supra) was that he was entitled to certain benefits capable of being computed in terms of money under the Sastri award, and in effect he wanted that his basic salary should be fixed under the Sastri award, and if so fixed, he was entitled to arrears up till the date of his application by way of salary. The first question that the Court had to decide therein was whether such as application was tenable under S. 33C(2) of the Act, and in answering this question in the affirmative their lordships have observed a follows in P. 238 :
'The crucial words which we have to interpret are 'any benefit which is capable of being computed in terms of money.' The 'benefit ' is of wide import, and the dictionary meaning thereof is 'advantage, profit.' This would naturally include monetary advantage or monetary profit. There is no reason, therefore, for excluding 'monetary benefits' from the word 'benefit' used in this sub-section, unless it is clear from he words used that monetary benefits were not intended tone included in the wide word 'benefit' used therein.'
34. Further on their lordships again observed at p. 238 :
'It is urged on behalf of the appellant that we should exclude monetary benefits from the meaning of this word in the context of this sub-section because the word is qualified by the words 'which is capable of being computed in terms of money.' This it is urged, suggests that the meaning of the word 'benefit' here excludes monetary benefits, for, according to the appellant, there would be no sense in computing monetary benefits in terms money. But this contention overlooks the fact that the word used in the qualifying clause is 'computed' and not 'converted.' If the word had been 'converted' and the clause had read 'which is capable of being converted in terms of money,' there would have been a clear indication that the benefit which was to be converted in terms of money was other than monetary benefit. The dictionary meaning of the word 'convert' is' to change by substituting an equivalent'; and if the word 'convert' had been used in the qualifying words, the argument that the word 'benefit' only means non-monetary benefit might be incontrovertible ... But the word in the qualifying clause is 'computed' and the dictionary meaning of the word 'compute' is merely 'to calculate.' Therefore, where the benefit to which a workman may be entitled has not already been calculated, for example, in an award which confers on him the benefit, it stands to reason that Sub-section (2) would apply for computation of such benefit if there is dispute about it. Further, if we compare Sub-section (1) with Sub-section (2) of this section, it will appear that Sub-section (1) applies, to cases where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chap. V-A and that contemplates that the amount is already computed or calculated or at any rate there can be no dispute about the computation or calculation; while Sub-section (2) applies to cases where though the monetary benefit has been conferred on a workman under an award, it has not been calculated or computed in the award itself, and there is dispute as to its calculation or computation. It cannot therefore be said looking to the words used in Sub-section (2) that it only applies to cases of non-monetary benefit which has to be converted in terms of money. It appears to us that it can also apply to monetary benefits to which a workman may be entitled which have not been calculated or computed, say, for example, in an award and about their calculation or computation there is dispute between the workman and the employer ...'
35. The Supreme Court has made a reference in p. 239 to two decisions of the Madras High Court, namely, South Arcot Electricity Distribution Company, Ltd. v. Elumalai : (1959)ILLJ624Mad and M.S.N.S. Transports, Tiruchirappalli v. K. Rajaram : (1960)ILLJ336Mad the latter being a Division Bench decision, and observed as follows at p. 239 :
'Looking therefore to the words of the sub-section and the previous decisions with respect to them, we are of opinion that the word 'benefit' used is Sub-section (2) is not confined merely to non-monetary benefit which could be converted in terms of money but is concerned with all kinds of benefits, whether monetary or non-monetary, to which a workman may be entitled say, for example, under an award and that the sub-section comes into play when the benefits have to be computed or calculated and there is a dispute as to the calculation or computation. After the benefits have been so computed, the workman can apply under Sub-section (1) for recovery of the amount in the same manner as arrears of land revenue. As in this case, the Sastri award had conferred a benefit on the respondent and those like him by providing for fixation of pay in the new scale, even though that benefit may be monetary and there was a dispute between the parties as to the amount of that benefit, it was open to the respondent to apply to the labour court for computation of that benefit in terms of money ...'
36. In our opinion, this decisions of the Supreme Court unequivocally declares that the benefit, though monetary, which requires to be calculated, can legitimately be claimed by an application under S. 33C(2) of the Industrial Disputes Act. There are a couple of more decisions of the Supreme Court also to which we may now make a reference. The case in South Indian Bank, Ltd. v. Chacko : (1964)ILLJ19SC throws much light on the problems now before us. In that case the respondent Chacko was promoted as an accountant by an order of 19 June, 1959 in the petitioner-bank and was transferred to another branch. The respondent claimed that after his promotion to the post of accountant with additional duty he was entitled to a special allowance as provided in Para. 164 of the Sastri award, and he was entitled to this allowance from the date of his joining as an accountant. After calculating the amount due to him he made an application under S. 33C(2) of the Industrial Disputes Act for payment of that amount. The bank resisted the application on several grounds among others, that the application was not tenable under S. 33C(2), that the Sastri award had ceased to be operative from 31 March, 1959, i.e., long before the respondent was appointed as accountant and that the appointment had ceased and the claimant had ceased to be a workman and was, therefore, not entitled to the benefit under the Sastri award. The most substantial objection seems to be based on the effect of the Sastri award and its binding nature. It was held in repelling the contentions of the bank that even if the Sastri award ceased to be operative as such under the provisions of the law, or that the penalties for violating the terms of the award ceased to be effective after a particular date the award had the effect of altering the terms of the contract of employment and the claim of Chacko could be considered as based on a term in the contract of employment. The Supreme Court observed as follows at p. 22 :
'... We can however see nothing in the scheme of the Industrial Disputes Act to justify a conclusion that merely because these special provisions as regards prohibition of strikes and lookouts and of penalties for breach of award ceased to be effective, the new contract as embodied in the award should also cease to be effective. On the contrary, the very purpose for which industrial adjudication has been given to peculiar authority and right of making new contract between employers and workmen makes it reasonable to think that even though the period of operation of the award and the period for which it remains binding on the parties may elapse - in respect of both of which special provisions have been made under Ss. 23 and 29, respectively - may expire, the new contract would continue to govern the relations between the parties till it is displaced by another contract. The objection that no such benefit as claimed could accrue to the respondent after 31 March, 1959 must therefore be rejected.'
37. It will be clear from the facts enumerated above that in that case the claim of Chacko was treated as one on foot of a contract and the claim was for arrears of salary and as such the claim was held well within the ambit of S. 33C(2) of the Industrial Disputes Act.
38. There are other decisions taking similar view in other Courts which we can now briefly notice. In Lenox Photo Mount . v. Elumalai and others : (1959)ILLJ624Mad (vide supra) and M.S.N.S. Transports, Tiruchirappalli v. K. Rajaram : (1980)ILLJ336Bom (vide supra) which have been referred to by the Supreme Court in Punjab National Bank case : (1962)ILLJ234SC (vide supra). In a recent single Beach decision of the Calcutta High Court in which a claim for determining the money value arose and was held to be within the jurisdiction of the labour court under S. 33C(2) of the Industrial Disputes Act. The case is Bengal Bus Syndicate v. M. K. Roy : (1967)IILLJ314Cal . It was the case of an employee who was reinstated by an award, and the award also directed the employer to pay him back wages for the period he was out of employment. In this case at least it can be said that it was benefit which could by paid in terms of money and was well within the scope of S. 33C(2) of the Industrial Disputes Act.
39. Reference has also been made in the course of arguments on either side to the decision of the supreme Court in Savatram Ramprasad Mills Company, Ltd., Akola v. Baliram : (1966)ILLJ41SC . The claim there was for payment of lay-off compensation by certain workers of the Sawatram Ramprasad Mills At p. 45, the Court observed as follows :
'The next contention is that the claim for lay-off is not a claim for money due because calculations have to be made before the money due can be found. This argument has been considered on more than one occasion it was rejected recently by this Court in Kays Construction Company (Private), Ltd. v. State of Uttar Pradesh and others : (1965)IILLJ429SC (vide supra). It is not essential that the claim which can be brought before the Government or its delegate under S. 33C(1) must always be for a predetermined sum. The Government or the labour court may satisfy itself about the exact amount and then take action under that section. It the present case the dates of lay-off are known and each workman will show to the second labour court that he is qualified to receive compensation for lay-off. That will be shown from the muster roll which the employer is required to maintain and it will then be a simple arithmetical calculation which, in our judgment, S. 36C permits to be made. If there is any question whether there was lay-off or not, the labour court will decide it ...'
40. It will be seen that the contention similar to the one raised before us has seen repelled, pointing out that the machinery for adjudication provided in S. 33C(2) of the Act was competent to determine any disputed question as to liability of the employer for the amount claimed. Once the liability is determined, what remains to be done is a matter of simple calculation. This next step may be taken before the labour court itself or before the State Government or its delegate when steps to enforce realization of the amount found due are required to be taken. Though it is true that the ambit of enquiry necessary to be made by the authority under Sub-section (1) of S. 33C is also elastic when the question of liability itself is required to be examined or adjudged, the application can properly be made under S. 33C(2) of the Act.
41. In our opinion, if all these decisions of the Supreme Court and the facts leading to this case were brought to the notice of the Division Bench, a different view might have been taken. We are, therefore, inclined to hold that the claim of the respondent-workers in each of these cases could properly be made in an application under S. 33C(2), and that there was no inherent lack of jurisdiction in the labour court to entertain the claim and adjudicate upon it. That the claim required adjudication is patent on the issues raised. The petitioner denied the very existence of relationship of employer and employee between the petitioner and any of the respondent-workmen. The Court had, therefore, first to determine the status of each of the respondent-workers to claim from the petitioner the minimum wage as its employee.
42. There is one more objection which remains to be considered, though raised belatedly. In this case all the employees of the petitioner, about 47 in number, made separate applications for payment of the minimum wage due to them. The applications were made under S. 33C(2) of the Industrial Disputes Act. What the petitioner says is that inasmuch as almost all the employees of the petitioner have raised a common claim or a common dispute, it could only be brought by a reference by the appropriate authority before an industrial tribunal and that is because according to the learned counsel for the petitioner, the matter within the jurisdiction of the industrial tribunal includes wages including the period and the mode of payment of wages made under the Payment of Wages Act. In other words, the only manner in which relief could be claimed was by reference to the industrial tribunal and not by an application under S. 33C(2) of the Act. We have found it somewhat difficult to appreciate this contention. It cannot be said that because more than one employee of an employer raise a similar question; it becomes a collective dispute. It is only a collective dispute which can answer the description of an industrial dispute and so long as the dispute is not a collective dispute although more than one person claim the same relief individually, we cannot say there may be a case for making a reference to the industrial tribunal. Moreover, the powers of the labour court in this connexion are explicitly laid down. In our view, this point is completely answered in South Indian Bank, Ltd. v. Chacko : (1964)ILLJ19SC (vide supra) in the following observation at p. 21 :
'... In support of the second objection Sri Setalvad drew our attention to Sch. II to the Industrial Disputes Act, which sets out the matters within the jurisdiction of the labour court, but does not include any which could be said to cover an application under S. 33C(2). The contention is clearly misconceived. The schedule refers specifically to S. 7 of the Act. That section lays down that the appropriate Government may, by notification in the official gazette, constitute one or more labour courts for the adjudication of industrial disputes relating to any matter specified in Sch. II and for performing such other functions as may be assigned to them under this Act. Section 33C(2) in terms assigns the determination of the amount of benefit to which the workman is entitled to receive from the employer and which is capable of being computed in terms of money to such labour court as may be specified in this behalf by the appropriate Government. Clearly there-fore, the labour court as specified by the Government and not the industrial tribunal has jurisdiction to deal with this matter.'
43. The contention is devoid of substance.
44. On a consideration of all the circumstances, therefore, we have come to the conclusion that the claim made by each of the respondents was validly entertained and has been properly adjudicated upon except as regards part of the claim which prima facie appears to be barred by limitation. The result is that the petition substantially fails, but in view of the law as to limitation within which the claim has to be made, we must set aside the order of the labour court as regards the quantum which it has directed to be paid to each of the workers. Each case is remanded to the labour court for a fresh computation, having regard to the period of limitation for three years which prima facie governs the claim of each worker. We direct that the amount deposited by the petitioner in the court of the tahsildar, Gondia, should not be withdrawn until appropriate orders in that respect are passed by the labour court on completion of calculations.
45. The petitioner is liable for costs of the respondents.