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C.S. Parameswaran Vs. the Authority Under the Minimum Wages Act, 1948 for Nandgaon and Manmad - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case Number Special Civil Application Nos. 454 and 455 to 457 of 1968
Judge
Reported in(1969)71BOMLR292; 1969MhLJ500
AppellantC.S. Parameswaran
RespondentThe Authority Under the Minimum Wages Act, 1948 for Nandgaon and Manmad
Excerpt:
minimum wages act (xi of 1948), section 20 - whether authority under act can decide question of classification of employee's job--compensation under section 20(3)(i) when to be granted.;the authority under the minimum wages act, 1948, is entitled to decide all questions as are necessary to be decided and which arise under the act but not such matters such as wronger erroneous classification of the employee's job.;the question as to whether a person should be categorised and placed in a particular category having regard to the nature of the work that he performs in an establishment, is necessarily a matter of industrial relations and many oases where large number of workmen are involved require a technical approach to the problem. it would also be necessary to consider whether in the .....patel, j.1. these four petitions arise out of the orders made by the learned civil judge, junior division, acting as the authority under the payment of wages act and the minimum wages act at nandgaon, district nasik, special civil application no. 454 of 1968 arises out of original application no. 2 of 1964; no. 455 of 1968 arises out of original application no. 3 of 1964; no. 456 of 1968 arises out of the original application no. 1 of 1965 and no. 457 of 1968t arises out of original application no. 2 of 1965. these applications were filed by the workers of the 'central railway administration, bhusaval division. applications nos. 2 and 3 of 1964 were filed by 382 workers, the claim in application no. 2 being for the period from april 1, 1952 to february 29, 1964, while the claim in.....
Judgment:

Patel, J.

1. These four petitions arise out of the orders made by the learned Civil Judge, Junior Division, acting as the Authority under the Payment of Wages Act and the Minimum Wages Act at Nandgaon, District Nasik, Special Civil Application No. 454 of 1968 arises out of original Application No. 2 of 1964; No. 455 of 1968 arises out of original Application No. 3 of 1964; No. 456 of 1968 arises out of the original Application No. 1 of 1965 and No. 457 of 1968t arises out of original Application No. 2 of 1965. These applications were filed by the workers of the 'Central Railway administration, Bhusaval Division. Applications Nos. 2 and 3 of 1964 were filed by 382 workers, the claim in Application No. 2 being for the period from April 1, 1952 to February 29, 1964, while the claim in Application No. 3 for the period from May 1, 3964 to October 31, 1964. Application No. 1 of 1965 was filed by 319 other workers, the claim being for the period from April 1, 1952 to July 31, 1964 and Application No. 2 of 1965 was filed by 2.43 other workers, the claim being for the period from April 1, 1952 to January 31, 1965.

2. These claims arise out of a Notification under the Minimum Wages Act, 1948 (hereinafter referred to as the Act) made by the Central Government, by virtue of its powers under Section 5 of the said Act. The said Notification was published on March 31, 1952. In respect of the area in which these workers were working, the Notification fixed the minimum rates of wages for skilled, semiskilled and unskilled workers at Rs. 2-8-0, Re. 1-8-0 and Re. 1-4-0 per day. Prior to this, in pursuance to the provisions of the Act under Section 13 the Central Government had made rules on October 14, 1950, called the Minimum Wages (Central) Rules, 1950. The combined effect of Rules 24 and 25 of the said Rules is that if any worker worked more than 48 hours a week, he would be entitled to be paid overtime wages at twice the original rate of wages. The petitioners claimed that they were not paid according- to this Notification for the entire periods their due minimum wages nor were they paid the overtime wages though they were required to work eight and half hours per day and not eight hours per day as required by the Notification.

3. It may be stated that the applicants in their applications did not clearly indicate in what category they fell and whether they were claiming as skilled, semi-skilled and un-skilled workers. Even the statement regarding the payment that they got and the amount they should have been paid does not appear to be correct for they allege that each worker was paid Re. 1.25 per day but he ought to have been paid Re. 1.75 per day. They claimed 50 P. as the difference in wages alleging that they had worked half an hour more every day and were entitled to overtime wages at double the normal rate, as if every one of the workers was present every day throughout the period. In Application No. 2 of 1964, for instance, they claimed Rs. 13,4,9,470 and compensation of Rs. 25 for each worker. Later on, a clarification of their claim was also filed, but even there things remained as they were.

4. The Central Railway Administration in its objections to the applications inter alia contended that the Minimum Wages Act and the Notification did not apply to them and that none of the applicants was required to work overtime after December 5, 1956. Some other technical objections were also raised. The Authority east as many as 14 issues. The Authority, after hearing both the parties and taking such evidence as it thought proper and was offered before it, granted the applications of 854 workers and dismissed the claims of the rest of them.

5. The Authority granted the claim of 854 employees, the total being Rs. 5,73,759.93 in Applications Nos. 2 and 3 of 1964; Rs. 2,62,848.81 in Application No. 1 of 1965 and Rs. 3,05,522.11 in Application No. 2 of 1965 under the Minimum Wages Act, compensation at five times the amounts of the claims and Rs. 100 as costs per applicant.

6. On behalf of the petitioners, the contentions raised are: (1) that the Authority had no jurisdiction to decide the question of classification as it purported to have done; (2) that the amount of compensation is beyond the scope of Sections 20 and 21 of the Act and even beyond the prayer in the application and in any case irrational; (3) that the composite order such as is made by the Authority could not be made but an order in favour of each, of the workers must be made individually after considering his claim; and (4) that the costs awarded are excessive.

7. The Authority in para. 7 of its judgment considered the contentions of the applicants that the petitioners had not, excepting in the case of a few workers, treated the workers as skilled, semi-skilled and unskilled according to the nature of work that they did and the type of labour involved, but classified all of them as unskilled workers. Inspite of the objection of the petitioners to entertaining of this contention, the Authority considered the question. The objection of the petitioners was that these contentions were not raised in. the applications at all and no issue was framed on that question. In this Court, a more fundamental objection is raised and that is, that the Authority under the Act has got a very limited jurisdiction and it is not entitled to enter into the right or wrong of the classification made by the administration, It is to this question, therefore, that we will address ourselves.

8. Section 2 of the Act is interpretation section, which defines amongst other things the terms 'cost of living index number', 'employer', 'wages', 'employee' etc. Section 8 enables the appropriate Government to fix the minimum rates of wages in respect of employments specified in Parts I or II of the Schedule and those which may be added later on under Section 27 of the Act. Section 4 refers to matters which may be included while fixing the minimum rates of wages. Section 5 relates to the procedure to be followed by the appropriate Government in fixing minimum wages. Section 13 enables the Government to fix the number of hours of work for a normal working day and matters connected with the same. Sections 12 and 14 are the charging sections which impose upon the employer the duty of making payment of not less than the minimum wages fixed under the Act. Sections 15 to 19 are procedural and are intended to ensure the correct application and observance of the provisions of the Act. Section 20 relates to the making of claims and appointment of appropriate officers for deciding such claims. Section 21 again provides for a procedural matter enabling several employees to join in an application and also enabling the authority to consolidate the applications filed by different workers in the scheduled employment.

9. We will now refer to Section 20 in greater detail. Section 20(1) of the Act relates to appointment of the authorities for the purpose of the Act and such authority has to be appointed.to hear and decide for any specified area all claims arising out of payment of less than minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under Clause (b) or Clause (c) of Sub-section (1) of Section 13 or of wages at the overtime rate under Section 14, to employees employed...

Sub-section (5) requires the Authority, when an application is made to it under Sub-section (2), to entertain the same and to hear the applicant and the employer or give them an opportunity of being heard and after such further inquiry, as it may consider necessary, direct the employer to make payment of the difference between the wages actually paid and wages payable and/or allowance payable as also compensation not exceeding ten times of the excess. Clause (ii) of Sub-section (3) enables the Authority in any other case to direct payment of compensation not exceeding ten rupees to the employee. Sub-.section (4) correspondingly enables the Authority to direct the employee, if it comes to the conclusion that the application was either malicious or vexatious, to pay penalty not exceeding fifty rupees to the employer. Subsection (5) relates to recovery and need not detain us. Sub-section (6) makes the decision of the Authority final. Sub-section (1) gives to the Authority powers of a Civil Court for the limited purpose of taking evidence, of enforcing the attendance of witnesses and compelling the production of documents, and is deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Code of Criminal Procedure. Section 24 of the Act. bars the jurisdiction of any Court to entertain any suit for the recovery of wages which could be recovered under Section 20 thereof.

10. The scheme of the Act shows that it is intended to create an exclusive and a special jurisdiction and provides an effective and cheap remedy to the workmen to recover their dues under the Act if entitled to the same. The procedure is moreover summary. The section does not specifically say to what matters the jurisdiction of the special Court would extend. It is an Authority constituted for deciding certain matters and in the absence of anything in the Act, it must be held that; it has got implied powers to decide all such matters as may reasonably be necessary to decide in order to effectually fulfil its purpose under the Act. For example it may have to decide whether a worker is an employee, or, the person be alleges to he. his employer to be his employer. It may have to decide whether the claim of the worker amounts to wages, whether a particular claim made by him is included in the wages fixed or not; whether he has worked overtime as claimed by him or not; whether he has been given a holiday as required to be given by the Rules; whether he is entitled to claim any allowance under the Rules and Notification in respect of the work he has done on a holiday. 11 is not possible to enumerate all such matters as may fall within the jurisdiction of the Authority. Suffice it to say that it has jurisdiction to decide all. such questions as may incidentally arise under the Act in order to give relief to the workman.

11. Section 20 shows, however, that the procedure is .summary in nature. The Authority is to hear the parties and hold such inquiry as it deems proper and give its direction and the direction it issues is final for all purposes, the order not being appealable. The implied powers, therefore, that can be presumed to have been vested in the Authority must have their limitations. Under the guise of exercising implied powers the Authority cannot be permitted to assume jurisdiction not vested in it by law and encroach upon the. jurisdiction of other tribunals. In B., B. L. & T. 'Merchant' Assocn. v. Bombay State : (1961)IILLJ663SC 64 Bom. L.R. 375 a similar question came up for discussion before the Supreme Court where the limits of the doctrine of implied powers have been discussed by it. Gajendragadkar J. (as he then was) after referring to the decision in Fenton v. Hampton (1858) 117 R. R. 32 :.In other words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or A power conferred on an authority by a statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist. In such a case, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead-letter and cannot be enforced unless a subsidiary power is implied.

In cases arising under the Payment of Wages Act where also the provisions are somewhat similar, the question has come up before the Courts frequently. The first illustration of the application of the principle of implied powers is the decision in A.V. D'Costa v. B. C. Patel [1955] A.I.R. S.C. 412 57 Bom. L.R. 738. In this case, the workman was employed by the Central Railway. He was employed as a carpenter oil daily wages and was treated as a daily rated casual labourer and was paid at the rate of Rs. 3-4-0 per day. An officer of (he Trade Union made an application on his behalf to the Payment of Wages Authority contending that the wages due to the workman from May to (october 1941) amounting to Rs. 245 had not been paid or had been subjected to illegal deductions as shown in the schedule. The Railway administration contended that the workman was a daily rated casual labourer on specified daily wages and that he was not entitled to claim wages according to the service rules being: a casual labourer. On that footing it was contended that there had been no deduction from his wages. The Authority decided that the workman was not a casual labourer but a temporary employee and, therefore, he was entitled to be in the scale of Rs. 55-150 plus the allowance admissible. In doing so, the Authority observed that the work done by the said workman was of the same nature as that of a member of the permanent staff and, therefore, he could not be called a casual labourer. It also relied on Article 39(d) of the Constitution which contains the direction that there should be equal pay for equal work. In this context, Sinha J., as he then was, speaking for the majority, said (p. 416) : .it may be open to the authority to decide the controversy and. find out what the terms of the contract with reference to those letters were. But if an employee wore to say that his wages were Rs. 100 per month which ho actually received as and when they fell due, but that he would be entitled to higher wages if his claims to be placed on the higher wages scheme bad been recognized and given effect to, that would not in our opinion, be a matter within the ambit of his jurisdiction.

The authority has the jurisdiction to decide what actually the terms of the contract... wore,...but the authority has no jurisdiction to determine the question of potential wages.

As we have said, it is within the jurisdiction of the Authority to decide all such questions as necessarily arise in relation to the contract of employment. However, the note of warning sounded by Gajendragadkar J. (as he then was) in Shri Ambica Mills Co. v. S.B. Bhatt : (1961)ILLJ1SC 63 Bom. L.R. 497 again in reference to the Payment of Wage Act, cannot be disregarded. The learned Judge says (p. 974) :.In determining the scope of these incidental questions care must be taken to see that under the guise of deciding incidental matters the limited jurisdiction is not unreasonably or unduly extended. Care must also be taken to see that the scope of these incidental questions is not unduly limited so as to affect or impair the limited jurisdiction conferred on the authority.

12. Recently we have examined the question of the jurisdiction of the Payment of Wages Authority, which is being perennially raised, in The Asbestos Cement Co, Ltd. v. Shri P.D. Sawarkar (1968) Special Civil Application No. 824 of 1965, decided by Patel and Nain JJ., on April 10, 1968 (Unrep.). What we have stated there equally applies in the present case. We accordingly hold, therefore, that the Authority under the Act is entitled to decide all questions as are necessary to be decided and which arise under the Act but not matters such as wrong- or erroneous classification, which is for the industrial Court.

13. The question as to whether a person should be categorised and placed in a particular category having regard to the nature of the work that he performs in an establishment, is necessarily a matter of industrial relations and many cases where large number of workmen are involved require a technical approach to the problem. Again, it would also be necessary to consider whether in the establishment in question so many more technical people of the higher grade are at all required for doing- the work. It is impossible in a summary jurisdiction like the present, where the order is not even capable of review, to decide such important matters which may have very far-reaching consequences to the employer and the employees alike.

14. Mr. Munsiff, for the respondents, invited our attention to the decision of this Court in Bahadursing Birsingh v. C. P. Fernandes : (1956)ILLJ553Bom in support of the contention that the Authority has jurisdiction to go into even the question of classification. The question arose under the Minimum Wages Act in respect of watchmen, who were paid their daily wages. The employees were paid Rs. 2-8-0 per day. They contended that they had worked overtime but they were not paid overtime allowance. The Authority held that as its jurisdiction was summary in nature, it could not go into the question whether the employees worked overtime or not and Which fact was not admitted by the employer. Bavdekar J. held that the Authority had jurisdiction to determine that question. Shah J. observed that the Authority had jurisdiction to decide to which class of the scheduled employment the applicants belong, what are the minimum rates prescribed for that employment, which minimum rate applies to them, whether payment has been made of less than the minimum rates, and whether the employer was justified in not making payment at the rate demanded by the employees. In exercise of that jurisdiction the Authority has also to decide whether the applicants had worked overtime and whether they were paid at the overtime rate then in force. The observations, however, could not have been intended to be as wide in their scope as has been sought to be made out. As we have said, all those matters which legitimately fall within the ambit of the Minimum Wages Act must necessarily be decided by the Authority. The question MS to whether an employee belonged to one employment or the other, will depend upon the terms of his contract which the Authority would have jurisdiction to decide and it is on the footing of the contract that the question of the application of the Schedule could possibly arise. The matter may be illustrated thus: A workman may admit that he has been employed as a labourer and that his agreed wages have been paid. But he may contend, as was contended before the Supreme Court in D'Costa's case, that he was really entitled to be employed in a particular capacity and that he should be paid according to the rate of wages for that work. Then that is a matter which is outside the jurisdiction of the Authority, because, that relates to potential wages or wages that had not been earned on the basis of the contract but on the basis of something else viz. classification of his job.

15. We have been referred to two decisions of the Assam High Court, the first of them being in P. C. Chakravarty v. Manager, D.T. Estate A.I.R. [1958] Gua 12. The three employees were employed in the Tea Estate. The first was employed as a driver of motor lorry and he was working as such. The other employee was working as a motor mechanic, working in the Water Supply Plant of the Estate and the third employee was appointed as a moulder in the Estate and was working as such. The Government had issued a Notification fixing the rates of wages of artisans and their claim was that as artisans they were entitled to get Re. 50 as basic wages and Rs. 30 as clearness allowance per month which they were not being paid. The application was contested by the employer on the ground that the employees were not artisans and they were not entitled to the wages at the minimum rates fixed for artisans under the Notification dated March 11, 1962, till they, passed the trade tests held by the Committee appointed by the Government. The Court held that the Authority had jurisdiction to decide whether they fell within the definition of 'artisans' or not. It is noteworthy to notice that the employees were employed in particular capacities which was admitted. The judgment does not at least indicate whether there was any classification in that particular establishment which was governed by any award or otherwise between the employer and the employees. It is under these circumstances that the Authority was called upon to decide the question as to whether the actual terms of the contract- fell within the definition relating to artisans, and the Court held that the Authority would have jurisdiction to determine the question. The case is clearly distinguishable and has no application to the present case. We are really not concerned here with any Notification issued by the State Government laying down the condition of passing any trade tests for being classified as artisans. That particular Notification was held to be ineffective to control the powers of the Authority, because the Notification was not justified under any of the provisions of the Minimum Wages Act nor could it be justified by any other law. The second case is C. C. Sramik Union v. Manager, M. T. E. A. I. R. [1960] Gua 123. In that case, the petitioner was working as a Pharmacist in the Tea Estate though he was designated as dresser and was getting a salary of Rs. 54 p.m. The Government of Assam issued a Notification on March 11, 1952, fixing the minimum rates of wages and dearness allowances for the employees in the tea plantation in Assam, The petitioner at one stage claimed the minimum wages payable to artisans, but later amended his petition saying that he belonged, if not to the artisan class, to the clerical and medical staff. Under the said Notification the minimum wages fixed for an artisan was Rs. 90 and for the staff Rs. 60. The petition was contested on the ground that the petitioner was not an artisan. Here again, it is obvious that it was really in substance the terms of the contract that had to be determined in order to know whether or not the employee was entitled to a particular remuneration under the Minimum Wages Act, In fact, the question as to jurisdiction did not arise before the Additional Deputy 'Commissioner, who had rejected the petitioner's claim. He merely held that the petitioner did not fall within the category of artisans. As to the amended claim, the High Court held that the Additional Deputy Commissioner, who had dealt with the matter did not appear to have applied his mind at all to the question. This case also, in our view, is besides the point and does not touch the question under consideration.

16. The Notification in the present case, as we have stated, prescribes the rates of wages for skilled, semi-skilled and unskilled employees. The Authority has not even attempted to define these terms. If the terms are to be construed in the abstract, there are bound to be variations in the meanings assigned to them according to the person who is called upon to define them. It is sufficient to give as an illustration the, disparity of the measure that can exist in the minds of different persons. The Central Government in exercise of its powers under Section 5 of the Minimum Wages Act had issued a Notification dated March 29, 1952, with regard to the employees in the Port of Bombay prescribing the minimum rates of wages for different classes of employees. The said Notification is to be found in the Gazette of India, Extraordinary, Part II, Section 3, page 467, dated March 31, 1962. In the Labour Department, at serial No. 27, we find that the minimum wages of Mali are fixed at Rs. 30 per month and at serial No. 50, the same are the wages for a Sweeper. The Maharashtra Government in one of its Notifications has classed Mali as a semiskilled worker and the Sweeper as the lowest unskilled worker. Similarly, the wages for Assistant Cook and Tea Maker (Serial Nos. 31 and 32) are fixed at the same rate as for Bhisty (Serial No. 71).

17. The terms skilled, semi-skilled and unskilled cannot be defined without consideration of other relevant matters. Tinder the Minimum Wages Act there is a special procedure prescribed under Section 5 for fixing the minimum wages. The Government has to appoint committee or committees to hold inquiries and advise it in respect of the fixation of or revision of the minimum wages. Section 9 of the Act relates to composition of committees and it says that each of the committees shall consist of persons to be nominated by the Government representing employers and employees in the particular employment in respect of which the Notification is intended to be issued. Representation for both employers and employees has to be equal in number and independent persons not exceeding' one-third of the total number of members have also to be appointed to the said committees. Presumably, the committee appointed has to consider all matters which are made available to it in connection with the employments with which it is supposed to deal and all other surrounding circumstances. It is on a consideration of the matters which are available to it that it has to make its recommendation on which the appropriate Government acts.

18. In the case of Railway administration, the appropriate Government is the Central Government. In the committee, in terms of Sections 5 and 9 of the Act, there must have been representatives of the Railway administration and of the employees' Union and some, independent persons. All the rules both with regard to payment and classification which governed the, railway employees -permanent and casual-prior to that date were naturally bound to have been brought before the said committee for consideration, and the terms skilled, semi-skilled and unskilled could only have been used in reference to the classification then prevailing in the Railway administration.

19. The petitioners relied upon the Standard Trade Tests of Government of India, Ministry of Railways (Railway Board), 1956 before the Authority and also before us. The Authority seems to hold that this was irrelevant for the purpose at issue. It, however, overlooked the previous history. The Railway Board had made classification of certain categories, of workers into skilled and semi-skilled classes. The Notification in respect, of this classification is No. E47 CPC/45/P III, dated November 1, 1947. Thereafter, a special tribunal came to be appointed by, the administration called the Railway Workers Classification Tribunal, one of the, Members being Mr. IT. A. Khedgikar, the representative of the All-India Railwaymen 's Federation. His dissenting note refers to the Notification of 1947. According to the Notification the administration had classified different workers in different departments as skilled, semi-skilled and unskilled, Supervisory staff of unskilled workers was placed slightly higher than unskilled workers. The Tribunal made its award in May 1948. The Tribunal made detailed classifications of various kinds of employments in various departments and said:

The Tribunal has, therefore, decided that the fairest and best means of defining the Skilled and Semi-skilled categories of each trade should be through the Trade Test method as a means whereby each grade of skill may be correctly assigned in any particular trade in which the classification of Skilled and Semi-skilled categories has not been defined in the general list of classified ' skilled and semi-skilled ' artisans.

This Test, as the reasoning shows, was devised in order not to cause undue hardship to some workmen because the workmen were generally found interchangeable in various occupations. One further suggestion of the Tribunal was that the percentage of such 'Basic Tradesmen' in the Semi-skilled caste-gory should lie fixed in accordance with the minimum requirements of each trade, (The italics are ours). It is in pursuance to these recommendations that various classifications have been made by the Railway administration and the workers are engaged on that basis. In the contest, therefore, the terms skilled, semi-skilled and unskilled must be construed in the manner decided by the Tribunal and not differently. The contention of the workers was that they have been wrongly classified as unskilled. For example, it was said before the Authority that Khalasis, who had been long in service, were still classified as unskilled. Similarly, Helpers were classified as unskilled and Mukadams were also classified as unskilled. This it is said was wrong. This indeed would be an industrial dispute and not a matter to be decided by the Authority under the Act. Any time that such a dispute is raised, it would be decided by the appropriate authority with the assistance of experts or assessors connected with the work which the employees do.

20. At this stage, it is necessary to mention that in the absence of a regular skilled or semi-skilled worker in a particular branch of work, someone of the Khalasi who could do the work was deputed to do that work. The record shows that whenever he did that category of work-may be efficiently or not-he was paid accordingly. In industrial concerns this is known as acting allowance. In the Railways, however, full wages for such category of work have been paid. Merely because for some days a labourer has done the work of semi-skilled or skilled category of workman in the absence of the regular worker it cannot entitle him to payment on that basis throughout the period of his employment, though the administration does not need that work and he does ordinary labour work. It was not, therefore, within the jurisdiction of the Authority to deal with this subject.

21. There is another matter which the Authority has disregarded. In Union of India v. B.D. Rathhi : AIR1963Bom54 and Yeshwant v. Authority, Minimum Wages Act (1966) 69 Bom. L.R. 296 this Court has decided that, if a workman is paid his wages which are more than the minimum wages and the overtime allowance prescribed under the Act, then he is not entitled to claim anything more from his employer. For instance, where the actual rate of wages works out more than the total of the wages and the overtime allowance at the prescribed rate, he cannot claim overtime allowance at the contract rate. While considering the claims of the workmen, therefore, this principle will also have to be considered.

22. We are not satisfied that these principles have been followed in determining the actual claim of each of the applicants in the various applications. It is not necessary to go into the details of the instances, which we have examined. Mr. Munsiff and Mr. Baptista are agreed that the respondents' claim should be decided according to the days and hours of attendance shown by the records of the petitioners as disclosed in the tables filed by them. Nothing more, therefore, need be said about that controversy,

23. Ordinarily, for determining such a matter the applications would have been remanded to the Authority. But then, as we have observed, these are matters which should be decided as early as possible, and, the parties should not be made to incur unnecessary costs. As both the parties have agreed to sit together and work out, the dues of each of the workers if any, we do not think that it is necessary to remand the matters to the Authority below. With the consent of the parties we propose to pass the final orders in this Court after they work out the figures.

24. Then comes the question of compensation, which Mr. Baptista, for the petitioners, says, ought not to have been granted at all. The Authority while dealing with this question simply says:.I am of the opinion that the costs of Rs. 100/- per applicant and the compensation at five times the amount as is found to have been deducted is required to be awarded in these applications.

Saying this, he accordingly made the order and wrote off compensation amounting to Rs. 57,10,654.15. The question is whether this order could possibly be justified. Section 20(3)(i) of the Act enables the Authority in the case of payment of wages less than the minimum rates of wages to direct compensation to be paid as the Authority may think fit not exceeding ten times the amount of such excess, and in any other case, a sum not exceeding ten rupees. A reading of this clause shows that there is a discretion in the Authority to award the compensation or not and if it decides to award compensation it is within its discretion to decide what amount it should award. This discretion has to be judicially exercised and all the circumstances connected with the matter i.e. non-payment or delayed payment, must be taken into account. It must be realised that it is not bound to grant compensation. Bach case must depend upon the equities of the case. The purpose of making this provision was to see that an employer did not contumaciously refuse to implement the provisions of the Act. There may be, however, cases where the employer may not be at fault, there may be some difficulties in his way or there may be some cause which prevented him from implementing the provisions of the Act, All these matters are to be taken into account before any order is made granting compensation in a particular amount.

25. In these cases, the Notification of the Central Government was published in 1952. Quite a large number of these workers were attached to the permanent way, repairs and construction branch, and may be, some of them were concerned with other branches. The organization of the Railway administration is a very large one and there were some doubts about the applicability of the Notification to the employees concerned in these applications. The record shows that there is a negotiating machinery for settling disputes between the workers and the administration. Even this negotiating machinery failed to achieve the object of putting an end to the -dispute between the parties and a long time elapsed in correspondence between the various departments sometimes at lower levels and sometimes at higher levels. It is in these circumstances that the wages accumulated, if at all any, for a period of about eleven to twelve years and the amount has become unduly large. Moreover, there was a dispute as to whether the permanent way employees and the other employees were entitled to the benefit of this Act, and it is only a month back that we have decided that even the permanent way employees are entitled to the benefit of the Act (Union of India v. Authority, M. W. Act) : AIR1969Bom310 . Even apart from this, having regard to the fact that very often subordinate officers are concerned with implementing these provisions, the question is how far would the Court be justified in making the public, exchequer pay for their defaults. If the employees had, instead of waiting for such a long time, come to Court within a few months of the issuing- of the Notification, the matter would have been settled long back and the difficulties- encountered even in the trial of old matters like these would have been obviated. Again, it should not be made to appear that delay and laches pay dividends. In our view, therefore, having regard to all the circumstances of the case, we think that the order of compensation was not justified. That part of the order, therefore, we set aside.

26. Coming to the question of costs, Mr. Baptista argued that the order of costs at Rs. 100 per applicant is not justified. The total costs awarded come to Rs. 85,400. He invited our attention to Rule 30 of the Rules of 1950 framed by the Central Government. It reads as follows:

(1) The Authority, for reasons to be recorded in writing, may direct that the cost of any proceeding pending before it shall not follow the event.

(2) The costs which may be awarded shall include-

(i) expenses incurred on account of court-fees;

(ii) expenses incurred on subsistence money to witnesses ; and

(iii) pleader's fees to the extent of ten rupees provided that the Authority in any proceeding may reduce the fees to a sum not less than live rupees or for reasons to be recorded in writing increase it to a sum not exceeding twenty-five rupees.

(3) Where there are more than one pleader or more than one applicant or opponent the Authority may, subject as aforesaid, award to the successful party or parties such costs as it may deem proper.

The order for costs is also a matter of discretion and the discretion has to be exercised in a judicial manner. It would be reasonable to say that where a single application is to be heard in respect of one workman, the costs would normally be more than where a single application of several workmen has to be heard. It would also be so where instead of a single application being heard several applications are heard together, the obvious reason being that common questions of fact and law which may arise require only one argument. This would be particularly so where the same lawyer appears in all the matters which are heard' together. The usual rule, as seen by Clause (iii) to Sub-rule (2) of Rule 30, seems to be that ten rupees per application or per applicant would be the pleader's fees. That amount may be reduced depending upon the circumstances of the case, and one of the circumstances that can readily come to the mind is that several applicants have joined together in filing the application; actual amount to be ordered depending upon the number who joined together. It may be that whore a single applicant filed an application, looking to the nature of the work involved, the pleader's fees may be increased. But then, the outside limit is Rs. 25. Where several workmen join together or where several applications are heard together, it could not be that each workman would be required to pay Rs. 25 for each. Sub-rule (2)(iii) of Rule 30 gives some latitude to the Authority in the matter where more than one pleader appears, but that however is subject to the minimum and maximum provided in Sub-rule (2). The authority has made an order granting costs of Rs. 100 per applicant. Mr. Munsiff says that two lawyers appeared in these cases and one of the lawyers had to go from Bombay to Nandgaon for attending the cases. It is not contended and could not be contended that there was no lawyer at Nandgaon nor in the headquarters of Nasik district and it was necessary to take a lawyer from Bombay. The applicants may as well have got a lawyer from any other part of the world. That, however, cannot entitle them to get exhorbitant costs not intended to be given tinder the Act. The amount of costs totals Rs. 85,400. This amount is indeed exhorbitant and the Authority has not given any reasons in justification of its order. Final order regarding costs will be passed after the details are worked out by the counsel. The matters are adjourned to June 25, 1968, to enable the parties to work out the details.


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