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Lal and Co. Vs. Kulkarni (R.N.) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 389 of 1967
Judge
Reported in[1968(17)FLR438]; (1968)IILLJ518Bom
ActsIndustrial Disputes Act, 1947 - Sections 2, 14, 33C, 33C(1) and 33C(2)
AppellantLal and Co.
RespondentKulkarni (R.N.) and ors.
Excerpt:
labour and industrial - weekly wages - sections 2, 14 and 33c of industrial disputes act, 1947 and payment of wages act, 1936 - dispute arises regarding claim for wages for weekly holidays - dispute may be submitted to authority under act of 1936 - labour court under act of 1947 also competent to adjudicate upon dispute. - - 3. in its interim order the labour court has observed that wages for weakly holidays allowed by s. this view of the labour court appears to us to be clearly wrong. ' 9. in further support of his contention that the authority under the payment of wages act had exclusive jurisdiction to adjudicate upon the claim of the present respondents 2 to 17 for wages in respect of weekly holidays, sri pandit relied on the well-recognized principle that where a right or..........1963 to 31 december, 1985. respondents 2 to 17 stated in their application that provisions of the bombay shops and establishments act, 1968, were made applicable to them with effect from 1 february, 1963 by a notification issued by the state government under s. 5(1) of the said act and that they were entitled under s. 18(3) of the said act to receive wages for weekly holidays. preliminary objections to the maintainability of this application were raised by the petitioner before the labour court. the petitioner contended, in the first place, that wages for weekly holidays payable under s. 18(3) of the bombay shops and establishments act were recoverable as wages under the payment of wages act of 1936, that under s. 22(d) of the payment of wages act, the authority under that act was the.....
Judgment:

Per Tarkunde, J.

1. This petition has been filed under Art, 227 of the Constitution of India to challenge the correctness of an interim order passed by the first labour court at Bombay in an application under S. 33C(2) of the Industrial Disputes Act, 1947. The petitioner is a partnership firm which carries on business in cloth and tailoring in Bombay. Respondents 2 to 17 are garment-stitches working with the petitioner. On 15 March, 1966, respondents 2 to 17 applied to the first labour court at Bombay (respondent 1) under S. 33C(2) of the Industrial Disputes Act, 1947, for the computation and recovery of wages for weekly holidays during the period from 1 February, 1963 to 31 December, 1985. Respondents 2 to 17 stated in their application that provisions of the Bombay Shops and Establishments Act, 1968, were made applicable to them with effect from 1 February, 1963 by a notification issued by the State Government under S. 5(1) of the said Act and that they were entitled under S. 18(3) of the said Act to receive wages for weekly holidays. Preliminary objections to the maintainability of this application were raised by the petitioner before the labour court. The petitioner contended, in the first place, that wages for weekly holidays payable under S. 18(3) of the Bombay Shops and Establishments Act were recoverable as wages under the Payment of Wages Act of 1936, that under S. 22(d) of the Payment of Wages Act, the authority under that Act was the tribunal of exclusive jurisdiction for the recovery of wages, and that an application for the same purpose to the labour court under S. 33C(2) of the Industrial Disputes Act was not maintainable. The petitioner further contended that wages for weekly holidays were not a 'benefit' computable in terms of money, and that an application under S. 33C(2) of the Industrial Disputes Act was not, therefore, a proper remedy for the recovery of such wages. It was lastly urged by the petitioner that the claim in respect of wages for weekly holidays fell within the scope of S. 33C(2) of the Industrial Disputes Act and the claim was therefore subject to the period of limitation of one year laid down in S. 33C(2).

2. These contentions were negatived by the labour court by an interim order, and this order has been challenged in the present petition.

3. In its interim order the labour court has observed that wages for weakly holidays allowed by S. 18(3) of the Bombay Shops and Establishments Act were not 'wages' within the definition of that in the Payment of Wages Act. This view of the labour court appears to us to be clearly wrong. The main part of the definition of 'wages' in S. 2(vi) of the Payment of Wages Act defines the term to mean

'all remuneration whether by way of salary, allowances or otherwise expressed in terms of money capable of being so expressed which would, if the terms 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.'

4. It has been held in several cases that the definition includes all the remuneration which is payable by the employer to his employee in respect of his employment or of work done in such employment, if the amount becomes payable in consequence of the worker having fulfilled the terms of the contract of employment, irrespective whether the amount becomes payable under the terms of the contract or an award of a statute. [Vide Balaram Abaji Patil v. M. C. Ragojiwalla : (1960)IILLJ491Bom . The fact that wages for weekly holidays have been granted by S. 18(3) of the Bombay Shops and Establishments Act does not prevent them from being 'wages' under the Payment of Wages Act.

5. In support of its view to the contrary, the labour court placed reliance on the decision of this Court in Anusuyabai Vital v. J. H. Mehta : (1959)IILLJ742Bom . In that case compensation payable to a workman for lay-off under the provision of the Industrial Disputes Act was held not to be wages within the meaning of the Payment of Wages Act. The compensation payable for lay-off was held in that case not to be wages because such composition was not remuneration and was not payable to a worker is respect of his employment or work done in such employment and not, as assumed by the learned labour court because the compensation was payable under the provisions of a statute.

6. We accordingly agree with the contention advanced on behalf of the petitioner that the claim for wages for weekly holidays made by respondents 2 to 17 in the present case could have been submitted by them to the authority under the Payment of Wages Act. We cannot, however accept the further contention of the petitioner that because the claim could be adjudicated upon by the authority under the Payment of Wages Act, it could not be advanced before the labour court under S. 33C(2) of the Industrial Disputes Act.

7. Sri Pandit for the petitioner argued in this connexion that by virtue of S. 22(d) of the Payment of Wages Act an authority under the said Act has exclusive jurisdiction in respect of all claims which can be adjudged by an application before the authority. Section 22(d) of the Payment of Wages Act lays down that no Court shall entertain any 'suit' for the recovery of wages or of any deduction from wages in so far as the sum so claimed 'could have been recovered by an application under S. 15.' It will be noticed that the bar created by S. 22(d) is to the entertainment of suits and not other proceedings. A suit is generally understood to be a proceeding which is instituted by the filing of a plaint. An application under S. 33C(2) of the Industrial Disputes Act is not a suit and is therefore, not barred by S. 22(d) of the Payment of Wages Act. This view is supported by the decision of a Full Bench of this Court is Farkhundali Nannhay v. V. B. Potdar : (1962)ILLJ51Bom . It was held in that case that it was open to an employee of a co-operative society to proceed against the society for the recovery of his wages either under the Payment of Wages Act or by a reference under S. 54 of the Bombay Co-operative Societies Act of 1925. Referring to the bar created by S. 22(d) of the Payment of Wages Act, Chainani, C.J., delivering judgment of the Full Bench, observed at p. 54 :

'... The word 'suit' is a term of art and ordinarily means a proceeding instituted in a civil Court by the presentation of a plaint. A proceeding under S. 54 of the Co-operative Societies Act is not a suit and consequently S. 22 of the Payment of Wages Act cannot operate as a bar to such a proceeding being taken.'

8. Observations to the same effect were earlier made by the Federal Court in Shampugger Jute Factory Company, Ltd. v. S. M. Mody 52 Bom. L.R. 178. In that case a claim of certain workmen to payment of wages during the period of an alleged lockout had been referred by the Government of West Bengal acting under the Industrial Disputes Act, 1947, for adjudication to an industrial tribunal, and the employers had raised a plea that the claim was capable of being adjudicated under the Payment of Wages Act and that the industrial tribunal had, therefore, no jurisdiction to determine the claim because of the provision contained in S. 22(d) of the said Act. In rejecting this plea the Federal Court said :

'In our opinion, this argument is unsound. Section 22(d) only prevents a suit for wages. It does not exclude any other proceeding permitted by law to enforce payment.'

9. In further support of his contention that the authority under the Payment of Wages Act had exclusive jurisdiction to adjudicate upon the claim of the present respondents 2 to 17 for wages in respect of weekly holidays, Sri Pandit relied on the well-recognized principle that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by the statute is the only remedy which can be availed of for the enforcement of the right or liability. This principle was approved by the Supreme Court in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency, and others : [1952]1SCR218 . Sri Pandit pointed out that S. 38(1) of the Bombay Shops and Establishment Act has empowered the State Government to direct by notification published in the official gazette that the Payment of Wages Act shall, in such local areas as may be specified in the notification, apply to all or any class of establishments or to all or any class of employees to which or whom the Bombay Shops and Establishments Act for the time being applies. In exercise of its powers under S. 38(1) the State Government issued a notification on 3 March, 1965 directing that the Payment of Wages Act shall, with effect from 1 April, 1955, apply to all the establishments in the local areas specified in the schedule appended to the notification and the schedule included the area of Greater Bombay in which the petitioner-firm carries on its business. Sri Pandit argued that the Bombay Shops and Establishments Act has thus provided the authority under the Payment of Wages Act as a tribunal by which all claims arising under the former Act (the Bombay Shops and Establishments Act) should be adjudicated, and that the respondents were, therefore, not entitled to apply for the recovery of wages for weekly holidays under S. 33C(2) of the Industrial Disputes Act to the labour court.

10. The reply to this argument is that the right which is claimed by respondents 2 to 17 in the present case was not a right created by the Payment of Wages Act. The principle, therefore, that where a right is created by a statute which gives a special remedy for enforcing it, that remedy alone is available for the enforcement of the right, does not apply to the claim of respondents 2 to 17. The right claimed by respondents 2 to 17 arises under S. 18(3) of the Bombay Shops and Establishments Act and there is nothing in S. 38(1) of that Act to suggest that the authority under the Payment of Wages Act is to have exclusive jurisdiction for the adjudication of claims arising under the Bombay Shops and Establishments Act. The State Government is under no statutory obligation to issue a notification under S. 38(1) of the Act, and when the State Government issues a notification under that provision, it is open to the Government to limit the operation of the Payment of Wages Act to certain classes of establishments or to certain classes of employees and to certain areas in the State. There is, therefore, no warrant for the inference which Sri Pandit wants us to draw that the legislature intended that the rights and liabilities created by the Bombay Shops and Establishments Act shall be enforced only by recourse to authorities under the Payment of Wages Act.

11. A reference in this connexion may be made to the decision of a Division Bench of the Gujarat High Court, in Ambica Mills, Ltd. v. Second Labour Court, Ahmedabad : (1967)IILLJ800Guj . In that case certain employees had applied to the labour court under S. 33C(2) of the Industrial Disputes Act, 1947, for the recovery of wages due to them and the employer had challenged the jurisdiction of the labour court inter alia on the ground that the remedy under S. 15 of the Payment of Wages Act was the executive remedy available to the employees for the recovery of wages. The High Court rejected this contention and held that the right of the workers to recover the amount can be enforced either by following the remedy under S. 15 of the Payment of Wages Act or the remedy under S. 33C(2) of the Industrial Disputes Act. These remedies, according to the High Court, are in the alternative and are independent of each other.

12. To the same effect is a recent decision of a Division Bench of this Court in Ambica Tobacco Company v. Labour Court, Nagpur, and others : (1968)IILLJ353Bom . There a workman had claimed the difference between his contractual wage and the minimum wage fixed under the Minimum Wages Act by applying to the labour court under S. 33C(2) of the Industrial Disputes Act and the claim was opposed by the employer on the ground that the only remedy available to the workman for the said claim was to apply to the authority under the Minimum Wages Act. The Court rejected the objection and held that the workmen's claim was within the ambit of the powers of the labour court under S. 33C(2) of the Industrial Disputes Act.

13. It was further argued by Sri Pandit that the wages claimed by respondents 2 to 17 for weekly holidays were not a 'benefit' computable in terms of money and that an applicable under S. 33C(2) of the Industrial Disputes Act was not a proper remedy for the adjudication of the claim. There is little substance in this contention, all the more so because S. 33C(2) of the Industrial Disputes Act has now been amended so as to include claims for money as well as claims for any benefit which is capable of being computed in terms of money. Sri Pandit did not dispute that S. 33C(2) as amended applied to the present case.

14. Finally Sri Pandit sought leave to advance a plea which was not taken by the petitioner before the labour court. Section 5(1) of the Bombay Shops and Establishments Act empowers the State Government to declare by notification in the official gazette that any establishment or class of establishments to which, or any person or class of persons to whom, this Act (the Bombay Shops and Establishments Act) or any provision thereof does not apply for the time being shall be an establishment or class of establishments, or shall be a person or a class of person, to which or to whom this Act (the Bombay Shops and Establishments Act) or any provision thereof shall apply from such date as may be specified in the notification. In exercise of its powers under S. 5(1), the Government of Maharashtra issued a notification on 9 January, 1963 declaring

'a person working as tailor on piece-rate wages in the premises of an establishment to be a person to whom the provisions of the said Act (the Bombay Shops and Establishments Act), applicable in relation to persons employed in shops [except the provisions of S. 14 and Sub-section (1) of S. 63 thereof], shall apply with effect from the first day of February 1963.'

15. A question arose in Miscellaneous Petition No. 399 of 1963 filed on the Original Side of this Court whether this notification covers those persons who worked in tailoring firms on piece-rate basis but who were in the position of independent contractors and not employees of the firms with whom they worked. Justice Sri Kantawala, who decided that petition, held that the notification did cover such persons and that that was the very purpose of the notification. Justice Sri Kantawala held that by virtue of the notification such independent contractors got the right of 'employees' under the Bombay Shops and Establishments Act. This decision was confirmed in appeal by a Division Bench. Now, in the application which respondents 2 to 17 in the present case filed before the labour court under S. 33C(2) of the Industrial Disputes Act they claimed that the provisions of the Bombay Shops and Establishments Act had been made applicable to them with effect from 1 February, 1963 by virtue of the notification referred to above.

16. The fresh plea which Sri Pandit wanted to advance was that, although respondents 2 to 17 might have become 'employees' under the Bombay Shops and Establishments Act by virtue of the said notification and might therefore be entitled to the right conferred by S. 18(3) thereof, they could not by virtue of that notification be deemed to be 'workmen' under S. 2(s) of the Industrial Disputes Act, 1947, and were therefore not entitled to apply to the labour court under S. 33C(2) of the said Act.

17. The present petition had first come up for hearing before a Division Bench consisting of Justice Sri Modi and Justice Sri Vimadalal and Sri Pandit had advanced the above plea before that Bench. It appears from an interim order passed by that Bench on 5 December, 1967 that the Bench felt that Sri Pandit may be allowed to take up this plea, although it was not advanced before the labour court. However, Sri Shetye on behalf of respondents 2 to 17 urged before the Bench that his clients were workmen under the Industrial Disputes Act and that they did not depend on the said notification for the purpose of showing that they were employees of the petitioner-firm. The Division Bench allowed time to Sri Shetye to file an affidavit to show that respondents 2 to 17, were workmen under the Industrial Disputes Act. Such an affidavit has now been filed on behalf of respondents 2 to 17.

18. In view of the affidavit filed on behalf of respondents 2 to 17, the question whether they are workmen under the Industrial Disputes Act is a disputed question of fact and we do not find it possible to decide this question in the present petition. We would, therefore, direct that the question should be tried and decided by the labour court, and that the labour court should, for that purpose, allow a supplementary written statement to be filed by the petitioner.

19. In the result, the petition fails and is dismissed, but a direction is given to the labour court (respondent 1) to allow the petitioner to file a supplementary written statement for the purpose mentioned above and to decide the question whether respondents 2 to 17 are workmen under the Industrial Disputes Act, along with the other issues which arise in the application before the Court.

20. The petitioner will pay the costs of respondents 2 to 17. In assessing costs, advocate's fees will be Rs. 250.


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