1. These two petitions have been filed by the Secretary of the Ahmedabad Mill Majdoor Mandal on behalf of three workers, Punamchand, Vishnuprasad and Samaldas, who are employees of opponent 2. The employees are doing the work of cut-lookers. By an award given on 21 April 1948 by the industrial court in Reference No. 18 of 1947, it was provided that 'if there are persons (in Ahmedabad) who are doing cut-looking as well as folding, they should be paid the rate earned by the Cut-lookers in Bombay.' Subsequent to the publication of this award, there was a registered agreement, dated 22 June 1949, between Ahmedabad Millowners' Association on behalf of its local member mills and the Textile Labour Association, the representative union, relating to the salary, grades, promotions and other matters of clerks employed in the textile mills in Ahmedabad. The petitioner claims that the employees represented by him in these proceedings are covered by Clause (5) of that agreement and are entitled to wages according to the scale mentioned in that clause. As the wages actually received by the employees were lower than the wages due to them under Clause (5) of the agreement, the petitioner applied to the Payment of Wages Authority that the balance of the wages due to the employees during the period from 1 June 1954 to 1 June 1955 should be directed to paid by the employer. From this application Special Civil Application No. 874 of 1958 arises. The petitioners claimed that according to Clause (8) of the agreement between the Ahmedabad Millowners' Association and the Textile Labour Association mentioned above, these three employees are entitled to a seven hours working day, and that they are entitled to overtime wages for the period during which they worked for more than seven hours on any day. On that basis, the petitioner applied to the Payment of Wages Authority for a direction that the employer should be ordered to pay to the three employees overtime wages due to them for overtime work done during the period from 1 June 1954 to 30 November 1954. Special Civil Application No. 875 of 1958 arises from this application.
2. The main contention of the employer was that the three employees concerned in these proceedings were not doing any clerical work, and were, therefore, not covered by the agreement between the Ahmedabad Millowners' Association and the Textile Labour Association. The employer also took the plea that with regard to two of the three employees, namely, Punamchand and Vishnuprasad, the present applications were barred by the principle of res judicata. This plea was raised because Punamchand and Vishnuprasad had applied in 1954 to the Payment of Wages Authority for a direction that the employer should pay them wages at the rate of Rs. 42-4-0 per month, which was the rate at which cut-lookers were to be paid under the award of the industrial court in Reference No. 18 of 1947, that being the monthly wage of cut-lookers in Bombay. Punamchand and Vishnuprasad succeeded in these applications and got a direction for payment of wages at the scale applicable to cut-lookers under the award. The plea of the employer in the present proceedings was that these two employees could have claimed wages at the rate mentioned in Clause (5) of the agreement between the Ahmedabad Millowners' Association and the Textile Labour Association in the previous proceedings, and having failed to do so they are not entitled to make that claim in these proceedings.
3. At the trial, the parties filed a joint pursis in which the work of the employees has been described. The pursis says that the employees were at the relevant time working as utarnars. It says that the utarnars measure the width of cloth, assess the damage of cloth, and fold the cloth. Utarnars do not write anything on paper, book or record, but they are given pencils with which they write daily on the cloth examined by them. They are given two pencils per month, and when they examine saris and dhotis, they have to write daily on about 750 pieces. On the folded cloth they write the sort number, yardage and the code numbers of the utarnars and chadhavnar. They also make entries with regard to the damage in weaving, finishing, printing, etc. The total damage found by them is about 10 per cent.
4. The Payment of Wages Authority held that the three employees were not semi-clerks and as such were not covered by the agreement between the Ahmedabad Millowners' Association and the textile Labour Association on which the petitioner relied. The authority also held that the present applications were barred of res judicata in respect of the two employees Punamchand and Vishnuprasad. He, therefore, rejected the applications.
5. The petitioner went in appeal to the District Judge at Ahmedabad. The learned District Judge confirmed the findings of the Authority under the Payment of Wages Act and dismissed the appeals. On behalf of the employer an argument was advanced before him that the Authority under the Payment of Wages Act had no jurisdiction to entertain these applications, but this argument was rejected by the learned District Judge.
6. On the question whether the three employees are covered by the agreement between the Ahmedabad Millowners' Association and the Textile Labour Association, we are satisfied that they are covered by Clause (5) of the agreement, and that in coming to the contrary conclusion the Authority under the Payment of Wages Act and the learned District Judge have misconstrued the terms of the agreement. The learned District Judge has observed that the claim of the employees is based on Clause (5) of the agreement, but no reference to the terms of that clause has been made in his judgment. The learned Judge has considered Clause (2) of the agreement and has come to the conclusion that as the employees are not covered by Clause (2), they cannot be covered by the agreement at all Clause (2) is in these terms :
'That this agreement shall apply to all the clerks employed in the local mills, i.e. persons doing clerical work, that is, those who do routine work of writing, copying or making calculations and shall also include compounders and assistant compounders who are qualified and who are employed in the local mills.'
7. Clause (3) deals with the promotions of clerks, and Clause (4) with their pay scales. Clause (4) divides the clerks into three grades-junior grade clerks, senior grade clerks and chief clerks. The lowest pay scale, which applies to junior grade clerks, starts at Rs. 60 This is followed by Clause (5) which is in the following terms :-
'A separate scale for those of the employees who occupy the position lower than that of a full-fledged clerk but higher than that of an operative will be provided a as under Rs. 40-3-70-EB-4-90-5-105. This scale will be applicable in the case of ticket boys, ticket-checker, coupons seller, tally boy, scale boy, production checker thread counter, cloth measurer or yard counter, fine reporter, cloth yarn examiner, department store-men, cut-looker and those others who have not been included above but who can properly fall under the above category.'
8. It is obvious from the terms of Clause (5) that the three employees whom the petitioner represents are covered by that clause. The joint pursis of the parties shows that they do the work of cut-lookers. Moreover two of them were held to be cut-lookers by the authority under the Payment of Wages Act in previous proceedings against the employer, and it is not denied that the work of the third employee is of the same nature as that of the two who have been held to be cut-lookers. Clause (5) of the agreement says in terms that the scale mentioned therein will be applicable, amongst others, to cut-lookers. There can, therefore, be no doubt that if we consider the terms of Clause (5), the petitioners would be entitled to the scale of wages which they have claimed in the present proceedings.
9. Mr. Khambatta on behalf of the employer, says that Clause (2) of the agreement is wholly determinative of its scope and unless an employee falls within the terms of Clause (2) he cannot claim to be covered by any part of the agreement including Clause (5) thereof Mr. Khambatta argues that Clause (2) says that the agreement applied to all clerks and it further defines a clerk as an employee who does routine work of writing, copying or making calculations. Although the learned District Judge has not referred to the terms of Clause (3) of the agreement, it appears that he was also of the view that unless an employee is covered by Clause (2), no part of the agreement can apply to him. It appears to us that this view is erroneous. Clause (5) covers some categories of workers to whom Clause (2) does not apply. It provides a separate scale of wages to those employees who do not fall within the category of clerks as defined by Clause (2). This is obvious from the facts that Clause (4) of the agreement divides all the clerks into three categories and provides for them different pay scales, the lowest scale starting with the pay of Rs. 60 per month. Clause (5) provides a separate scale, starting at Rs. 40 per month for those employees who occupy the position higher than that of operatives but lower than that of full-fledged clerks. When Clause (5) applies in terms to cut-lookers, and when it is established that the three employees in this case are cut-lookers, it would be wrong to hold that the pay scale provided in Clause (5) does not apply to them simply because they do not fall within the definition of clerks in Clause (2). We must, therefore, hold that the employees in this case are entitled to the pay scale which they claim under the agreement.
10. The finding that the present applications are barred by the principle of res judicata affects only two or three employees with whom we are concerned. We do not think that in their case the finding is correct. In the former proceedings the question whether the employees are covered by the agreement was never raised. The question was not in issue in those proceedings, and was not in fact decided. Moreover, those proceedings related to the wages of employees between October 1953 and March 1954, whereas the present applications are in respect of a period subsequent to June 1954. Mr. Khambatta says that the principle of constructive res judicata is properly applicable in such cases, and that if the principle were applied the present applications should be barred in so far as the two employees are concerned. This argument implies that if an employee, through ignorance or oversight, fails to make lawful claim before the Payment of Wages Authority with respect to a particular wage period, he would be permanently debarred from making that claim even in respect of subsequent wage period. We do not think that it would be right to extend the principle of constructive res judicata in the manner urged by Mr. Khambatta. Most of the labour laws seek to protect employees from their ignorance, and to ensure that the benefits sought to be conferred on them are available to them in actual practice. Moreover, under the Payment of Wages Act. S. 15 enables an application to be filed before the Authority by either the employee himself or any official of a registered union or any Inspector under the Payment of Wages Act. If the Inspector files an application under S. 15 and fails to make a claim to which an employee is lawfully entitled, it would be difficult to hold that a subsequent application by the employee himself making that claim in respect of a subsequent wage period will be barred by the principle of constructive res judicata. It therefore appears to us that the principle cannot be applied in the present case, and that the present applications are not barred.
11. In this connexion Mr. Khambatta referred us to the decision of the Supreme Court in Burn & Co., Calcutta v. Their employees : (1957)ILLJ226SC . In that case their lordships held that an award of an industrial tribunal under the Industrial disputes Act cannot be reopened under S. 19(6) of the Act except when there has been a material change in the circumstances on which the award was based. Their lordships pointed out that the rule of res judicata enacted under S. 11 of the Civil Procedure Code, which does not apply directly to such cases, is based on the well-recognized principle.
'that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted to be re-agitated.'
'This principle,' their lordships observed, 'is founded on sound public policy and is of universal application.'
12. Obviously, their lordships were dealing with the principle of direct res judicata and not constructive res judicata. The case is also clearly distinguishable on facts. It is, therefore, no authority in support of Mr. Khambatta's argument that the present applications are barred by the principle of constructive res judicata.
13. Mr. Khambatta then says that the Authority under the Payment of Wages Act had no jurisdiction to entertain the application filed by the petitioner on behalf of the three employees. Mr. Khambatta relies on the decision of this Court in Anthony Almeda v. Taylor : (1957)ILLJ452Bom , which was later explained in the Full Bench decision in Vishwanath Tukaram v. General Manager, Central Railway : (1957)IILLJ250Bom . It was held in Almeda case that where the employee and the employer rely on two different contracts in respect of the same wage period, the Authority under the Payment of Wages Act has no jurisdiction to decide which of the contracts regulates the rights of the parties. According to Mr. Khambatta, whereas the employees in this case rely upon the agreement between the Ahmedabad Millowners' Association and the Textile Labour Association, the employer contends that the agreement does not apply to these employees and that this implies that, according to the employer, the employees are covered by the award of the industrial court. Mr. Khambatta says that the said agreement and the said award are two rival contracts relied upon by the employees and the employer respectively, and that according to Almeda case, the Authority under the Payment of Wages Act has no jurisdiction to decide which of the two contracts determines the rights of the employees. Now, it is well settled that the authority has jurisdiction to decide what are the terms of the contract between the employer and the employee vide Sarin v. Patil 53 Bom. L.R. 674. As stated in the aforesaid Full Bench case of Vishwanath Tukaram, whereas the authority cannot determine which was the contract between the parties, it can decide what was the contract between the parties. In the present case, the authority had to decide whether the employees come under the categories mentioned in the agreement between the Ahmedabad Millowners' Association. And the Textile Labour Association. The existence and binding nature of that agreement have not been denied by the employer. The only contention of the employer in this connexion has been with regard to the interpretation of that agreement. It cannot, therefore, be said that the employees and the employer are relying in this case on two rival contracts, the existence of which was to be determined by the authority in deciding the applications filed before it. It, therefore, follows that this case is not covered by Almeda case, because the dispute between the parties does not relate to the existence of the agreement but to its interpretation.
14. Out of those two applications, Special Civil Application No. 875 of 1958, relates to the claim of the employees for an overtime wage. In advancing this claim the employees rely on Clause (8) of the agreement, which says :
'It is agreed between the parties that overtime payment should be made to the clerks asked to work after working hours, i.e. seven hours excluding half an hour's recess at the rate as laid down in the Factories Act. 1948.'
15. This clause refers to clerks only and not to those categories of workers which are mentioned in Clause (5) of the agreement. Since the employees are not full-fledged clerks, they are not entitled to a sever hours day, and they cannot claim overtime wages on that basis. Therefore, as far as Special Civil Application No. 875 of 1958 is concerned, the decision of the learned District Judge must be confirmed, though on a ground different from the grounds which appealed to the learned District Judge.
16. In Special Civil Application No. 874 of 1958, we find that the Authority under the Payment of Wages Act has not given a finding on issue 3 framed by it, namely, what were the wages payable to the three employees during the period from 1 June 1954 to 1 June 1956. Therefore, the case will have to be remanded to him for giving a direction to the employer after deciding that issue.
17. Accordingly we set aside the orders of the Authority and the District Judge in Special Civil Application No. 874 of 1958, and remand the case to the authority, for giving a finding on issue 3, and deciding the case accordingly. Respondent 2 will pay the costs of the petitioner of this application and bear his own costs. Special Civil Application No. 875 of 1958 is dismissed, and the rule discharged. No order as to costs of that application.