Skip to content


Sarana Tukaram Dendo Vs. Shetkari Sahakari Sakhar Karkhana Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1752 of 1981
Judge
Reported in1982(1)BomCR28; [1981(43)FLR223]
ActsIndustrial Disputes Act, 1947 - Sections 33C(2); Industrial Disputes (Amendment) Act, 1956; Minimum Wages Act, 1948 - Sections 8; Payment of Wages Act, 1936
AppellantSarana Tukaram Dendo
RespondentShetkari Sahakari Sakhar Karkhana Ltd. and anr.
Appellant AdvocateP.D. Kamerkar, Adv.
Respondent AdvocateR.R. Salvi, Adv. for respondent No. 1
DispositionPetition succeeded
Excerpt:
labour and industrial - jurisdiction - section 33c (2) of industrial disputes act, 1947, industrial disputes (amendment) act, 1956, section 8 of minimum wages act, 1948, payment of wages act, 1936 - certain settlements made between respondent and appellant - separate application made before to labour court for implementation of settlements - respondent contended that application not maintainable under section 33 c (2) and labour court have no jurisdiction over it - claim maintainable under payment of wages act - remedy under section 33 c (2) cannot be barred on ground that it is provided under payment of wages act - applications dismissed not on merits but on preliminary ground - held, order passed by labour court wrong in law. - - as the respondent-society failed to correctly..........to 1530 of 1977 and nos. 1561 to 1652 of 1977, being applications under section 33-c(2) of the industrial disputes act.2. the applicants in the aforesaid applications were all industrial workers employed under respondent no. 1, shetkari sahakari sakhar karkhana ltd., a co-operative society at killari, taluka ausa, district usmanabad. it is a society engaged inter alia, in the manufacture and sale of sugar. the government of india appointed a wage board in order to examine the conditions of employment in the sugar industry all over the country and to make recommendations in respect thereof. the said board was referred to as the second central wage board for sugar industry. this board made its report recommending improved wage rates and dearness allowance, classifications, retention.....
Judgment:

S.C. Pratap, J.

1. This petition under Article 227 of the Constitution, questions the legality and validity of the order dated 30th October, 1980 passed by the learned Presiding Officer, Labour Court, Sholapur, in Applications I.D.A. (ICS.) Nos. 1327 to 1530 of 1977 and Nos. 1561 to 1652 of 1977, being applications under section 33-C(2) of the Industrial Disputes Act.

2. The applicants in the aforesaid applications were all industrial workers employed under respondent No. 1, Shetkari Sahakari Sakhar Karkhana Ltd., a co-operative society at Killari, taluka Ausa, district Usmanabad. It is a society engaged inter alia, in the manufacture and sale of sugar. The Government of India appointed a Wage Board in order to examine the conditions of employment in the Sugar Industry all over the Country and to make recommendations in respect thereof. The said Board was referred to as the Second Central Wage Board for Sugar Industry. This Board made its report recommending improved wage rates and dearness allowance, classifications, retention allowance for seasonal workmen, rates of rent to be paid by the workmen who were provided with accommodation and house rent allowance to others. After expiry of the period of operation of the said recommendations on 31st October, 1974, the Government of Maharashtra appointed a tripartite committee to determine the conditions of employment of the Sugar Industry in the State. This said committee made its award on or about 31st March, 1975. Under the said award, all sugar manufacturers were directed to implement the aforesaid recommendations of the Second Central Wage Board for Sugar Industry with effect from 1st October, 1974, with such improvements therein as were ordered. On 4th January, 1977, a settlement was arrived at between the respondent-society agreed and the Usmanabad Zilla Sakhar Kamghar Sanghatana. Under term No. 1 of the said settlement the respondent-society undertook not to take any action against any employee on account of his participating in the agitation for workers demands. Under term No. 5 of the said settlement, the respondent-society agreed to confirm all employees who completed six months in service and treat them as permanent operatives. Under terms Nos. 2, 3, 4 and 5 of the said settlement, the respondent-society agreed to implement the aforesaid award dated 31st March, 1975 of the tripartite committee also known as Patil Committee and confirmed by the resolution dated 6th May, 1975 of the State Government. It was also agreed to pay retention allowance according to the recommendations of the Second Central Wage Board. Payment was also undertaken to be made before 4th January, 1977 of the arrears resulting from retrospective wage increases. As the respondent-society failed to correctly implement the aforesaid settlement, the applicants in the above referred to several applications approached the Labour Court for implementation of the said settlement in so far as the same related to basic wages and dearness allowance. All these applications were consolidated. The respondent-society filed one written statement to these applications. In the said written statement, one does not find any specific denial qua the settlement in question. To the extent relevant for this petition at this stage, was the contention of the respondent-society that the very applications made were not maintainable under section 33-C(2) of the Industrial Disputes Act and, therefore, the instant Labour Court had no jurisdiction to decide the said applications on their own merits.

3. The learned Presiding Officer, Labour Court, Sholapur, hearing these applications framed a preliminary issue whether the said applications were maintainable and whether the said Court had jurisdiction to try the same and coming to a finding thereon in the negative holding that the applications were not maintainable and the Court had no jurisdiction to try the same, the learned Presiding Officer, by the impugned order dated 30th October, 1980, dismissed the said applications. It is against this order that the present petition has been filed.

4. Hearing Mr. P.D. Kamerkar, learned Counsel for the petitioner and Mr. R.R. Salvi, learned Counsel for respondent No. 1-society and going through the impugned order and the reasoning therein, I find myself unable to sustain the said order. Indeed, it is surprising that the Labour Court here should have come to the conclusion to which it has reached on the preliminary issue framed for determination. It is also rather unfortunate that rulings of this Court cited before the instant Labour Court have no been correctly read, interpreted and applied to the instant case. On the undisputed facts of the instant case and bearing in mind the ratio of the decided cases of this Court, conclusion is irresistible that the applications of the various workmen in this case under section 33-C(2) of the Industrial Disputes Act were perfectly maintainable and were consequently required to be decided on merits and in accordance with law. Mr. Salvi, the learned Counsel for respondent No. 1-society, also found the impugned order extremely difficult to support. The Division Bench rulings of this Court were as much binding upon him as Counsel for the respondent-society, as upon this Court. Well-settled legal position on the preliminary issue framed by the Labour Court here has been misconstrued, as a consequence whereof grave miscarriage of justice has resulted to the various workmen whose applications stood dismissed on the ground that the same were not maintainable. In my view, if only reasonable care had been taken in carefully going through the cited authorities, the conclusion of the instant Labour Court would have been altogether different than the one presently reached and would have been just the opposite thereof.

5. In my view, it was too late in the day to contend as also too late in the day to accept the contention that merely because a claim for wages and dearness allowance as in the instant case could also have been made under the Payment of Wages Act, it was not upon to the workmen, therefore, to make the said claim under the benevolent provisions of section 33-C(2) of the Industrial Disputes Act. It is unnecessary to refer to a number of authorities relied upon by Mr. Kamerkar, the learned Counsel for the petitioner, in support of his contention that notwithstanding that a claim for wages and dearness allowance was maintainable under the Payment of Wages Act, the said claim was also tenable and maintainable under section 33-C(2) of the Industrial Disputes Act. Suffice, however, to refer to only a few of these authorities. The first is the one in Ambica Tobacco Co., Gondia v. Labour Court, Nagpur and others, : (1968)IILLJ353Bom . It is a Division Bench authority of this Court. Contention there raised was that because a claim was maintainable under the Minimum Wages Act, the same claim was not maintainable under section 33-C(2) of the Industrial Disputes Act. In other words, because there was a remedy provided in respect of wages and dearness allowance under the special Act, remedy under the general law viz., the Industrial Disputes Act, cannot be said to be also available. Specific remedy provided for under the special Act barred a remedy under the general enactment such as in the Industrial Disputes Act. This contention was rejected by the Division Bench which, while doing so, itself relied upon a number of cases referred to in the judgment. Tracing the history of section 33-C of the Industrial Disputes Act in the light of the aforesaid contention raised therein regarding maintainability of a claim under the said section, the Division Bench observed thus at page 361.

'What we are at present concerned is the objection raised on behalf of the petitioner that section 33-C(2) is not available to a workman when his claim is in effect a claim which could be legitimately made to an authority under the Minimum Wages Act. It is undoubtedly true that in the present case what the respondent workers are claiming is a difference between the wage paid and the minimum rate of wages fixed by the Government per bidi roller. It is also true that such a claim could be properly enquired into and decided under section 20(3) of the Minimum Wages Act. But we do not see how merely because a remedy, and certainly a cheap and expeditious remedy, is provided under the provisions of the Minimum Wages Act, that would ipso facto exclude the jurisdiction of other authorities such as the Labour Court under section 33-C(2) of the Industrial Disputes Act, for entertaining similar claims.'

And further at page 362 :

'In our opinion, when the object of incorporating a provision like sections 33-C(1) and 33-C(2) in the Industrial Disputes Act by the Amendment Act of 1956 was to provide an easy and inexpensive remedy for an individual workman, emphasis being on the rights of an individual workman, we do not see any cogent reasons why recourse to the Labour Court should be considered excluded by implication from the provisions of the Minimum Wages Act. The principle that the special excludes the general will also not be applicable in this case for the simple reason that when the Minimum Wages Act was put on the statute book (or, in this case, the Payment of Wages Act, 1936) there was no such provision like section 33-C(1) or 33-C(2) in its present form in any other statute. The history of industrial relations in this Country shows that various aspects of giving protection to workers and making provisions for enforcement of the privileges granted to industrial workers are attempted in different legislations both by the Central and the State Governments. But the distinguishing feature of a provision like sections 33-C(1) and 33-C(2) of the Industrial Disputes Act passed by the Parliament is that it covers the case of every workman against his employer irrespective of the Provision of law under which the right arises or is claimed. We are not, therefore, impressed with the argument that the remedy provided by section 33-C(2) is impliedly barred because provision has been made for enforcement of the right before the authority under the Minimum Wages Act.'

This, thus, is clear authority expounding the correct legal position and laying down in no uncertain terms a ratio that merely because remedy is available to a workman under a special enactment such as the Minimum Wages Act in the aforesaid case or the Payment of Wages Act in the instant case, the workman is thereby deprived of availing himself of the cheap and expeditious remedy provided to him by subsequent legislation such as section 33-C of the Industrial Disputes Act.

6. Mr. Kamerkar, the learned Counsel for the petitioner, also invited my attention to another Division Bench ruling of this Court viz. Union of India representing the Central Railway Administration v. Samel Petere and another, : (1975)IILLJ185Bom . This authority was, indeed, cited before the Labour Court below and yet the finding reached by the Labour Court on the preliminary issue in question runs contrary to the ratio of this Division Bench ruling. Contention raised before the Division Bench was that the claim made by the workman there under section 33-C(2) of the Industrial Disputes Act could be properly made before the Payment of Wages Authority under the Payment of Wages Act and in view of this latter special Act, the general provisions of section 33-C(2) of the Industrial Disputes Act would not be applicable and consequently, the jurisdiction of the Industrial Court under section 33-C(2) of the Act would be barred. Dealing with the said contention, the Division Bench observed thus at page 187 :---

'We are,..................not in a position to accept the contention of Mr. Palshikar that the jurisdiction of the Industrial Court is barred by necessary implication since there is a provision for determination of such claims under the Payment of Wages Act. This question in fact is also no longer open and has been decided by the several decisions of High Courts including this High Court. There is also a decision of the Supreme Court so far as the Minimum Wages Act is concerned. The Minimum Wages Act contains similar provisions to those of the Payment of Wages Act and the principles laid down in the decisions which considered the provisions of section 33-C(2) of the Industrial Disputes Act, the Payment of Wages Act and the provisions of the Minimum Wages Act would apply in the instant case also: See: Balram Abaji v. M.C. Raghejiwalla, : (1960)IILLJ491Bom . M/s. Ambika Tobacco, Gondia v. Labour Court, Nagpur, 1968 Mh.L.J. 10, Ambika Mills Ltd., Ahmedabad v. 2nd Labour Court, : (1967)IILLJ800Guj Lal and Company v. R.N. Kulkarni, : (1968)IILLJ518Bom and Indersingh v. Labour Court, .'

It is rather surprising that in the fact of this decision, to which the attention of the Labour Court below was specifically invited, the Labour Court should have even so held that the present applications under section 33-C(2) of the Industrial Disputes Act were not maintainable because there was remedy available to the workmen under Payment of Wages Act. To an extent, it passes one's comprehension as to by what logic or process of reasoning a negative finding could ever have been given by the Labour Court below in the face of the aforesaid authority.

7. Yet another Division Bench authority of this Court viz., Pasceal D'Souza v. Bombay Municipality, 1981 Labour and Industrial Cases 34, was also referred to before the Labour Court and as in the matter of the earlier authority, qua this authority also the Labour Court has misread and misconstrued the same and come to a finding on the preliminary issue totally contrary to the ratio thereof which to the extent here relevant is as follows :---

'...................the jurisdiction under the Payment of Wages Act can overlap sometimes with the provisions of the Industrial Disputes Act. The mere fact that the application under the Payment of Wages Act could have been made is no bar to the application being entertained under section 33-C(2) of the Industrial Disputes Act..............It is also not being seriously doubted that some claims would be agitated under more than one Act.'

It was only on the very peculiar facts that case that the Division Bench in that case concluded that the application therein was not maintainable under section 33-C(2) of the Industrial Disputes Act. In that case, there was no dispute about the entitlement of the workman nor any dispute about the amount actually due and payable to him. So in and only dispute was the dispute raised by the workman that though his emolument was Rs. 317/- (a fact not disputed by the employer), he (the workman) had actually received Rs. 100/- loss viz., Rs. 217/- in the pay packet in question. The workman's entitlement to Rs. 317/- was an admitted position. It was, in these peculiar circumstances, held that the application under section 33-C(2) of the Industrial Disputes Act was, in that case, not maintainable.

8. Clear position thus emerging is that the question involved herein was no longer a question res integra. It was a question decided more than once by Division Bench rulings of this Court. Other High Courts have also taken similar view. It is, however, not necessary to refer thereto in view of the clear decisions of this Court in that behalf. Conclusion must, therefore, follow that the order passed by the Labour Court here was altogether wrong in law. The order suffers from a clear error of law and an error which is also apparent on the face of the record. Jurisdiction under Article 227 of the Constitution has been consequently rightly invoked and this Court will be more than justified in granting relief thereunder. As the original applications were all consolidated and treated as one proceeding with the respondent-society filing one written statement and with the Labour Court hearing the proceedings as one consolidated proceeding with one order there below, this judgement will govern all the consolidated applications.

9. Mr. Kamerkar, the learned Counsel for the petitioner, submits that there are also several other applications similarly dismissed by the same Labour Court as herein on the same ground as herein. He, therefore, requested this Court to act suo motu in respect of the said applications and set aside the orders passed dismissing the said applications on the same ground as herein. It is difficult to take action suo motu. But in the light of the well-settled legal position referred to hereinabove and in the light of this present judgment, it would be open to the workmen in the several other applications which have stood dismissed on ground similar as in the present case to file fresh applications for the same relief as in the earlier dismissed applications. Since the earlier applications were dismissed not on merits but on preliminary ground that the same were maintainable and since the legal position, on the basis, whereof the said applications were dismissed, has been found by this judgment to be clearly erroneous, there can be no bar in the said workman making fresh applications and in the Labour Court deciding the fresh applications, if filed, on their own merits and in accordance with law.

10. In the result, this petition succeeded and is allowed. The order dated 30th October, 1980 passed by the learned Presiding Officer, Labour Court, Sholapur, in Applications I.D.A. (ICS.) Nos. 1327 to 1530 of 1977 and Nos. 1561 to 1652 of 1977 is set aside and quashed. The said applications are all held to be maintainable. It is also declared that the Labour Court has jurisdiction to try these applications. The said applications are restored. The proceedings are now remanded to the Labour Court for hearing these applications on their own merits and in accordance with law. Rule earlier issued on this petition is made absolute but, in the circumstances, with no order as to costs.


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