Skip to content


Modern Paper Converters Vs. S.V. Kotnis and Others - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberW.P. No. 3272 of 1980
Judge
Reported in(1982)ILLJ394Bom
ActsIndustrial Disputes Act, 1947 - Sections 33C(2); Minimum Wages Act - Sections 20(1); Code of Civil Procedure (CPC) - Sections 11
AppellantModern Paper Converters
RespondentS.V. Kotnis and Others
Excerpt:
labour and industrial - minimum wages - section 33c (2) of industrial disputes act, 1947, section 20 (1) of minimum wages act and section 11 of code of civil procedure, 1908 - respondents filed application under section 33c of industrial disputes act claiming minimum wages under notification issued under minimum wages act - labour court held petitioner not covered by notification so it had no jurisdiction to entertain said application - writ petition filed - apex court precedent that claim made by workmen in applications under section 33c (2) of industrial disputes act cannot be entertained by labour court under section 20 (1) of minimum wages act - petition dismissed. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and..........of 1973, in the labour court at bombay under s. 33c(2) of the industrial disputes act claiming minimum wages under a notification issued under the minimum wages act made applicable to the printing presses. the labour court took the view that there was a dispute relating to the coverage of the notification and this dispute was beyond the scope of the jurisdiction of the labour court under s. 33c(2) of the industrial disputes act. the labour court also took the view that since the respondents had failed to lead evidence to prove that the notification applied to the petitioner concern, the respondents were not entitled to succeed in their application.2. this order of the labour court was challenged by the respondents in a petition under arts. 226 and 227 of the constitution filed in.....
Judgment:

1. This petition raises a dispute about the extent of the jurisdiction of the Labour Court under S. 33C(2) of the Industrial Disputes Act, 1947. Only few facts need be mentioned to understand the controversy between the parties. Respondents Nos. 2 to 6, hereinafter referred to as 'the respondents', had along with some others filed an application, being application No. 1345 of 1973, in the Labour Court at Bombay under S. 33C(2) of the Industrial Disputes Act claiming minimum wages under a notification issued under the Minimum Wages Act made applicable to the printing presses. The Labour Court took the view that there was a dispute relating to the coverage of the notification and this dispute was beyond the scope of the jurisdiction of the Labour Court under S. 33C(2) of the Industrial Disputes Act. The Labour Court also took the view that since the respondents had failed to lead evidence to prove that the notification applied to the petitioner concern, the respondents were not entitled to succeed in their application.

2. This order of the Labour Court was challenged by the respondents in a petition under Arts. 226 and 227 of the Constitution filed in this Court. That petition was Special Civil Application No. 1014 of 1974 which was heard and disposed of by a Division Bench of this Court by its judgment and order dated 8th March, 1979. By this judgment the Division Bench specifically overruled the view taken by the Minimum Wages Act cannot be subject-matter of an inquiry under S. 33C(2) of the Industrial Disputes Act. However, on the other question, namely, on evidence to show that they were covered by the notification, the Division Bench said that it was not necessary to remand the matter to the Court below because it was open to the respondents 'to approach the Court once again and to lead evidence to show that their concern is governed by the notification in question.'

3. Thereafter the respondents filed another application, being Application (IDA) No. 818 of 1979, in the Labour Court at Bombay again under Section 33C(2) of the Industrial Disputes Act. To this application the petitioner took several objections two of which need be mentioned at this stage. One was that the claim was barred by 'resjudicata' in view of dismissal of the claim of the respondents earlier by the Labour Court and confirmation of the said dismissal by the High Court in Special Civil Application No. 1014 of 1974. Secondly, it was also contended that the dispute relating to the applicability of the Minimum Wages Act or the notification issued under the said Act on the contention raised by the petitioner in its written statement, could not be adjudicated upon by the Labour Court under 33C(2) of the Industrial Disputes Act.

4. The Labour Court by its judgment and order dated 30th July, 1980 overruled both these objections. The Labour Court rightly took the view that the claim or the application preferred by the respondents was not barred by resjudicata because the liberty to make such application was specifically reserved in the judgment of the Division Bench given in Special Civil Application No. 1014 of 1974. On the second question regarding the maintainability of the application under S. 33C(2) of the Industrial Disputes Act where the very applicability of the notification issued under the Minimum Wages Act is challenged a judgment of another Division Bench of this Court in Sumati v. Andrekar v. Tolbro International, (Special Civil Application No. 2124 of 1976, decided on 27th March, 1980) was cited before the Labour Court. The Labour Court noticed that the ruling given in the aforesaid Division Bench Judgment undoubtedly supported the contention of the petitioner. However, proceeding to hold that the earlier Division Bench had specifically directed that the respondents shall be allowed to lead evidence to show that the petitioner concern in which they were working was covered by the notification in question, the Court negatived also the second objection of the petitioner. It, therefore, directed that the application should be heard on merits. It is against this order that the petitioner which was the original opponent in the Labour Court has preferred this petition under Arts. 226 and 227 of the Constitution.

5. Mr. John, the learned advocate in support of the petition, has taken strong objection to the view of the Labour Court on both the points. Mr. John says that the claim of the respondents made in the present application must be held to be barred by resjudicata because similar claim based upon similar notification had been dismissed earlier. I am reluctant to accept this contention of Mr. John. In the first place, Section 11 of the Code of Civil Procedure does not apply in all its rigour to the proceedings before such Courts as the Labour Court. Secondly, the claim of the respondents was not dismissed on merits. Thirdly, this Court while disposing of the writ petition against the order of the Labour Court in the earlier proceedings, has specifically allowed the respondents to make a fresh application to the Labour Court and then to lead evidence in support of their claim by showing that the notification under which they have made their claim is applicable to them. I agree with the Labour Court that the present application of the respondents is not barred by resjudicata or any principle analogous to resjudicata.

6. Mr. John thereafter referred to the judgment of the Division Bench of this Court in Sumati Andrekar's case wherein the Division Bench has held that :

'the Labour Court had no jurisdiction at all to go into the question whether the provisions of the Minimum Wages Act were applicable to the respondents.'

While so holding the Division Bench purportedly relied upon certain observations of the Supreme Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli, : (1969)IILLJ651SC , hereinafter referred to as 'Athani Municipality's case.' The Division Bench thought that an observation made by the Supreme Court suggested that the dispute relating to the applicability of the Act could not be gone into in proceedings under S. 33C(2) of the Industrial Disputes Act because such a dispute has to be adjudicated upon under S. 20(1)INIMUM WAGES ACT, 1948^ of the Minimum Wages Act. In other word, the Division Bench thought that the Supreme Court has taken a view that if a dispute is to be adjudicated upon under S. 20 of the Minimum Wages Act the same cannot be adjudicated upon by the Labour Court under S. 33C(2). Sitting singly it would have been my bounden duty to follow this decision of the Division Bench but if I find, as I necessarily find, that the attention of the Division Bench was not drawn to the more important paragraph in the judgment of the Supreme Court in Athani Municipality's case, its authority is necessarily impairs. If the attention of the Division Bench had been drawn to the paragraph to which I will make a reference shortly, I am sure that the Division Bench would not have taken the view which it has taken. As I have already mentioned above, the Division Bench thought that the Supreme Court had held that if an application is entertainable under S. 20 of the Minimum Wages Act it cannot be entertained under S. 33C(2) of the Industrial Disputes Act. This, in my opinion, is not correct.

7. At this stage one may straightway go to the judgment of the Supreme Court in Athani Municipality's case wherein it has been urged that the claims preferred before the Labour Court were entertainable under Section 20 of the Minimum Wages Act and, therefore, would not be entertained under Section 33C(2) of the Industrial Disputes Act. In paragraph 5 of the judgment this question has been dealt with and it is necessary for me to reproduce the entire paragraph :

'On the first question, both the Labour Court and the High Court held that the contention raised on behalf of the appellant that the jurisdiction of the Labour Court was excluded because of S. 20(1)INIMUM WAGES ACT, 1948^ of the Minimum Wages Act has no force, on the assumption that the claims made in these applications under S. 33C(2) of the Act could have been presented before the Labour Court under S. 20(1)INIMUM WAGES ACT, 1948^ of the Minimum Wages Act. In our view, this assumption was not justified. As we shall indicate hereinafter, the claim made by the workmen in the applications under S. 33C(2) of the Act could not have been made before the Labour Court under S. 20(1)INIMUM WAGES ACT, 1948^ of the Minimum Wages Act, so that it is not necessary for us to decide the general question of law whether an application under S. 33C(2) of the Act can or cannot be competently entertained by a Labour Court if an application for the same relief is entertainable by the Labour Court under S. 20(1)INIMUM WAGES ACT, 1948^ of the Minimum Wages Act.'

8. One must, therefore, proceed on the basis that the Supreme Court did not decide the question about the mutual exclusiveness of the jurisdictions of the authority under the Minimum Wages Act under S. 20 and of the Labour Court under S. 33C(2) of the Industrial Disputes Act. However, in a part of the judgment the Supreme Court examined the provisions of the Minimum Wages Act and also considered the pleadings made before the Labour Court unmistakably suggested that the claim made before the Labour Court could not have been entertained under S. 20 of the Minimum Wages Act. From this it was inferred by the Division Bench that if a claim could be entertained under S. 33C(2) of the Industrial Disputes Act. For the reasons which I have already mentioned above, this was not the ratio of the decision in Athani Municipality's case. The decision of the Division Bench must, therefore, be held to be per incuriam.

9. This is especially so when a judgment of another Division Bench which lays down clearly a view contrary to the view taken in Sumati v. Andrekar's case was not cited before the Division Bench and was not considered by the same. I refer to the judgment in M/s. Ambica Tobacco Company v. The Labour Court, Nagpur, 70 B.L.R. 159. After exhaustively dealing with a similar question arising there, namely as to whether the claim entertainable under S. 20 of the Minimum Wages Act could not be entertained under S. 33C(2) of the Industrial Disputes Act, the Division Bench held as follows :

'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.'

I have no doubt that if this decision had been brought to the notice of the Division Bench in Sumati v. Andrekar's case the decision would have been totally different.

10. A single Judge of this Court has taken the same view and naturally by following the judgment in Ambica Tobacco Company's case and that judgment is of Lentin J., in Municipal Corporation of Bombay v. D. B. Prathan (1981) 2 L N370. In this case a contention had been raised that the availability of remedy under S. 20 of the Minimum Wages Act necessarily excluded the jurisdiction of the Labour Court under S. 33C(2) and that contention was in an unmistakable terms rejected. While so doing, the learned single Judge has referred to the judgment of the Supreme Court in Athani Municipality's case and found that contention was not supportable by anything that has been said in the Athani Municipality's case.

11. In the result, this petition must fail. In view of the uncertainty created by the judgment of Division Bench of this Court the petitioner cannot be said to be unjustified in approaching this Court. Therefore, there will be no order as to costs in this petition. Rule is discharged with no order as to costs.


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