Skip to content


Bennet Coleman and Co. Ltd. Vs. Fernandez and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Judge
Reported in(1953)IILLJ17Bom
AppellantBennet Coleman and Co. Ltd.
RespondentFernandez and anr.
Excerpt:
.....of any excess of jurisdiction, and the petitioners have failed to make out any case for interference by the court with the order made by the payment of wages authority......of the amount. the only question that has been argued on this petition is whether the payment of wages authority had jurisdiction to determine what he had actually sought to determine.2. what is urged on behalf of the petitioners is that, under the payment of wages act, the authority concerned has only the right to make an order for payment of wages where the wages are admitted and a deduction has been made or there is delay in payment; but if the wages are not admitted or there is any dispute as to the terms of employment, the payment of wages authority has no jurisdiction to determine it. the scheme of the payment of wages act was examined by a division bench of this court (to which i was a party) in sarin v. patil 53 bom. l.r. 674, and reliance has been placed by the petitioners on.....
Judgment:

Tendolkar, J.

1. This is a petition for an appropriate writ, order or direction against the authority under Payment of Wages Act, 1936, who is the first respondent, in respect of an order passed by the first respondent, and also Rs. 10 for advocate's fees, and As. 8 for court-fee. The matter arises in this way. The petitioners, Messrs. Bennet Coleman & Co. Ltd. are the proprietors of the Times of India Press. The second respondent was at all material times one of their employees. On 6 March, 1948, an agreement was entered into between the petitioners and the Times of India Indian Employees' Union, and certain terms and conditions of employment and service were agreed upon between the parties. One of such terms related to the dearness allowance payable to the employees. in the month of February, 1951, the said union, on behalf of the second respondent and other employees, made certain demands, one of which related to dearness allowance. Conciliation proceedings thereafter took place but, as they did not result in any agreement being arrived at between the contesting parties, the demands made were referred for adjudication under the Industrial Disputes Act. It appears that under the agreement of March, 1948, in the case of employees whose basic salary was between Rs. 100 and Rs. 150, Schedule B, which relates to dearness allowance, provided that if the cost of living index for Bombay was between 301 to 325, dearness allowances would be 52 per cent, of the basic salary, whilst if the cost of living index went up to between 326 to 360 the dearness allowance would be at the rate of 58 per cent, For the months of June to September, 1961, admittedly the cost of living index was between 326 to 350, but the petitioners chose to pay dearness allowance to their employees not at 58 per cent, as they would have been entitled to under schedule B of the agreement of March, 1948, but only at 52 per cent, their plea being that the employees, by having put forward a demand for a larger dearness allowance than that granted to them under the agreement of March, 1948, the said agreement had been terminated and was no longer binding on them. Thereupon, the second respondent presented a petition to the first respondent claiming Rs. 39-12-0 being the difference between the dearness allowance calculated at 58 per cent., as it should have been and at 52 per cent, as it actually was for the months of June to November, 1951. The plea put forward by the general manager of the Times of India Press, who was the opposing party before the authority appointed under the Payment of Wages Act, was that there was no binding agreement to pay dearness allowance by reason of the fresh demands put forward by the employees which was the subject-matter of adjudication. The first respondent negatived this plea and made an order for the payment of the amount. The only question that has been argued on this petition is whether the payment of wages authority had jurisdiction to determine what he had actually sought to determine.

2. What is urged on behalf of the petitioners is that, under the Payment of Wages Act, the authority concerned has only the right to make an order for payment of wages where the wages are admitted and a deduction has been made or there is delay in payment; but if the wages are not admitted or there is any dispute as to the terms of employment, the payment of wages authority has no jurisdiction to determine it. The scheme of the Payment of Wages Act was examined by a division bench of this Court (to which I was a party) in Sarin v. Patil 53 Bom. L.R. 674, and reliance has been placed by the petitioners on certain observations made by the learned Chief Justice in his judgment in that case. We were there dealing with the case of an employee who, it was alleged, had bean dismissed from service; and what we did hold was that the payment of wages authority had no right to determine whether the dismissal was rightful or wrongful and whether the service had in fact been terminated At page 677 of the report, the learned Chief Justice observed as follows:

Now what is contended by Mr. Seervai on behalf of the authority, and supported by Mr. Vakharia on behalf of respondent No. 2. is that it is competent to the authority to decide whether a contract of service was terminated or not, because if he comes to the conclusion that the contract of service was not validly terminated, then the employee continues in service and what the authority directs the employer to pay is wages within the meaning of the definition in the Act. It is further pointed out that in this particular case the employee is a Government servant and in the light of decisions of the Privy Council if the proper procedure is not followed for terminating the services of a Government employee, the Government employee continues in service and he is entitled to the payment of his salary, Therefore, what is urged is that all that the authority has decided in this case is that the employee being a Government servant, and proper procedure not having been followed in terminating his services, he continues to be a Government servant still employed by the B.B. & C.I.Railway, and as such servant, he is entitled to the payment of wages, and as there has been delay in payment of wages, the employer is bound to pay those wages.

3. The learned Chief Justice then proceeds to point out that such could not be the true construction of Section 15 of the Act. Therefore, when this judgment refers to the termination of the contract of service, it is dealing with a case of termination of service and not termination of any particular or terms of service; what actually was held being that if it 13 alleged that service itself was terminated, the payment of wages authority could not determine whether it was so or not. In the same judgment on the next page the learned Chief Justice proceeds to point out that it is competent to' the authority to construe the terms of employment in order to determine what wages are to be paid and it would also be open to the authority to determine whether a person has been employed or not, because the question of contract of employment and the terms of employment. can only arise provided the person seeking relief was employed. The learned Chief Justice emphasizes the fact that the mere denial of the fact of employment cannot oust the jurisdiction of the authority, because, if it could, then the entire object of the Payment of Wages Act could be defeated by the employer alleging in each and every case before the authority that no contract of employment ever existed.

4. I do not wish to undertake the somewhat hazardous task of defining the precise scope of the jurisdiction of the authority under the Payment of Wages Act, because, general words used in relation to the jurisdiction of the authority are apt to be found to be too wide or too narrow when applied to the facts of any particular case. I will, therefore, restrict myself to determining whether the payment of wages authority has jurisdiction to determine what it did -determine in this particular case and no more,

5. Now, in the first instance, apparently the legal advisers of the petitioners were conversant with our decision in Sarin V. Patil, and they reproduced the language of that decision when they alleged before the payment of wages authority in their petition that the agreement of March, 1948, had been terminated, wishing to plead thereby that the question whether the agreement had been terminated or not was not a matter within the jurisdiction of the authority to determine. As I have pointed out before, our observations related to the termination of service While, even assuming that by putting forward certain demands the employee made it possible for the employer to say that they were no longer bound by the .terms of employment of the agreement of March 1948, we do not have here any case of termination of service at all. The sole plea of the petitioners (whether it was a valid plea or not) could be that terms of employment as embodied in the agreement - of 6 March 1948 had ceased to be binding on them by reason of the fact that the employees thought fit to demand something more. The question is whether when the agreement of service is admitted and when the terms of employment are to be found in writing, a mere frivolous plea that the agreement has ceased to be binding on one of the parties precludes the authority under the Payment of Wages Act from determining that the agreement continues to be binding and wages are payable under it. In the Payment of Wages Act 'wages' are defined under Section 2(6) and include all remuneration which would 'if the terms of employment.. .were fulfilled, be paid' and Section 7 provides that wages shall be paid without any deductions except those authorised by the Act. and Section 15 confers upon the authority' appointed under the Act the power to decide all claims 'arising out of deductions from wages. It is apparent that in order to determine ' wages ' the authority has to determine what amount would be payable if all the terms' of employment were fulfilled and in my opinion the authority cannot be prevented or its jurisdiction to determine cannot be ousted by a mere plea--particularly aprima facie, frivolous plea--on the part of the employer that certain terms of employment has ceased to be binding on them although the service continues,

6. Now, in this case, there can be little doubt that the plea put forward by the petitioners was a completely frivolous plea. Any one acquainted with the scope and object of labour legislation either in this country or elsewhere ought to know that it is intended to enable the employees to ask for better terms than may have been given to them under their contracts of employment, without thereby endangering the existence or continuance of the contracts of employment pending the determinate of their fresh demands. All that had happened in this case was that the employees had thought fit to demand more than had been given to them under the agreement of March, 1948. They had every right to do so, and they do not thereby put an end to the agreement of March, 1948, or release the petitioner from his obligations under that agreement until such time, as a result of the judgment, in the proceedings, the agreement was modified. In my opinion, therefore, the payment of wages authority had jurisdiction to deside that the agreement of March, 1948, which was an admitted agreement covered the case before him and admittedly under that agreement dearness allowances were payable at 58 per cent, of the basic salary and not at 52 per cent, as the petitioners have chosen to pay. There is, therefore, no question of any excess of jurisdiction, and the petitioners have failed to make out any case for interference by the Court with the order made by the payment of wages authority.

7. On this petition both the authority and the employee affected have appeared by counsel. Having regard to my judgment in Misc. Petition No. 359 of 1951 (Ahmedalli Abdulhusein Kaka v. M.D. Lalkaka) delivered on 19 June, 1952, ordinarily the payment of wages authority should have done nothing', more than place such facts as it thought right before me by an affidavit, but, curiously enough, in this case there is an averment in the petition that the second respondent, the employee', who is the person affected, is a formal party, which can only mean that no relief was sought against him. If upon that averment the first respondent considered himself to be the real party against whom relief was sought and appeared by counsel, as he has done, on this petition I think he is also entitled to his costs. I, therefore, dismiss the petition and discharge the Rule with costs and direct the petitioners to pay two sets of costs, one to the first respondent and another to the second respondent.


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