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Mandegam Radhakrishna Reddy Vs. Sri Bharathi Velu Bus Service and Presiding Officer, Labour Court, Guntur - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 168/76
Judge
Reported inAIR1986AP102; (1986)ILLJ336AP
ActsIndustrial Disputes Act, 1947 - Sections 10, 25, 25FF, 25FFF, 33C, 33C(1), 33C(2), 36A and 37; Minimum Wages Act, 1948 - Sections 20 and 20(1)
AppellantMandegam Radhakrishna Reddy
RespondentSri Bharathi Velu Bus Service and Presiding Officer, Labour Court, Guntur
Appellant AdvocateV. Narasimha Rao, Adv.
Respondent AdvocateGovt. Pleader and ;G. Suryanarayana, Adv.
Excerpt:
labour and industrial - jurisdiction - sections 10, 25, 25 ff, 25 fff, 33 c, 33 c (1), 33 c (2), 36 a and 37 of industrial disputes act, 1947 and sections 20 and 20 (1) of minimum wages act, 1948 - whether remedy under section 33-c (2) of industrial disputes act is barred by provisions of section 15 of payment of wages act - whereas payment of wages act contemplates filing of petition for recovery of wages in specified instances section 33-c (2) of industrial disputes act does not contain word restricting right of workman to recover wages - remedy under section 33-c (2) is wider in scope and more favorable to workman than remedy under section 15 of payment of wages act - two remedies are independent and alternative and one does not exclude other - on plain and natural meaning section 22.....a. lakshmana rao, j.this case is posted before us on a reference made by a division bench. having been of the view that the question whether the remedy under s. 33-c(2) of the industrial disputes act is barred by the provisions of s. 15 of the payment of wages act, arises quite often and having been further of the opinion that the conflict between the two division bench decisions in a. b. saleem v. the labour court, hyderabad (supra) and m. krishnaswamy v. assam tea depot (supra) should be finally resolved the division bench directed that the writ appeal be posted before a full bench. 2. the appellant was appointed as driver by the management of sri venkateswara bus union in the year 1939. the said undertaking was transferred to m/s. bharati velu bus service, the first respondent in the.....
Judgment:

A. Lakshmana Rao, J.

This case is posted before us on a reference made by a Division Bench. Having been of the view that the question whether the remedy under S. 33-C(2) of the Industrial Disputes Act is barred by the provisions of S. 15 of the Payment of Wages Act, arises quite often and having been further of the opinion that the conflict between the two Division Bench decisions in A. B. Saleem v. The Labour Court, Hyderabad (supra) and M. Krishnaswamy v. Assam Tea Depot (supra) should be finally resolved the Division Bench directed that the writ appeal be posted before a Full Bench.

2. The appellant was appointed as driver by the management of Sri Venkateswara Bus Union in the year 1939. The said undertaking was transferred to M/s. Bharati Velu bus service, the first respondent in the year 1949 along with the personnel working in the undertaking including the appellant. He continued in the service of the first respondent without any change in his service conditions. On December 19, 1970 while he was driving a motor vehicle covered by a stage carriage permit, owned by the first respondent, on the route Tirupathi to Nellore, it met with an accident. Criminal prosecution was launched against him for rash and negligent driving before the First Class Magistrate, Gudur and he was ultimately acquitted on October 10, 1973. Whereas the appellant claimed that on the very nest day after the accident when he reported to duty he was not permitted to attend to the work, the management came forward with the plea that after the accident he went away without even informing them and he never reported for duty thereafter. They further stated that the appellant was arrested on December 19, 1970 and his driving licence was seized by the police on that day. As such it was alleged that the management was not obliged to pay waged for the period for which the workman made the claim. Menawhile Tirupathi to Nellore route was nationalised. Immediately after the acquittal of the appellant in the criminal case, he was absorbed by the Andhra Pradesh State Road Transport Corporation on 12th October, 1973 is the driver. At that time he was drawing a salary of Rs. 191-00 per month. As the first respondent failed to pay the salary from 19th December, 1970 to 11th October, 1973 and gratuity from 1969 to 1974 he filed M.P. No. 57 of 1974 under S. 33-C(2) of the Industrial Disputes Act before the Labour Court, Guntur for a direction to the employer to pay the salary and gratuity for the period mentioned above. The Labour Court having found that there was no serverence of the Employer-Employee relationship between the appellant and the first respondent and that the management refused to entrust him the work, held that the Employer was bound to pay the employee the wages due to him. The claim for payment of gratuity was rejected, but it was held that the management was liable to pay closure compensation amounting to three months wages under S. 25-FFF of the Industrial Disputes Act. So the management was directed to pay in all Rs. 7,070-00 to the workman. That order was passed by the Labour Court as long back as on 8th August, 1975.

3. Aggrieved by that order the first respondent preferred W.P. No. 5116 of 1975. Our learned brother Reghuvir J., allowed the writ petition on 9th December, 1975 holding that the petitioner filed by the appellant under S. 33-C(2) of the Industrial Disputes Act was not maintainable and the employee was to seek relief before the forum under the Payment of Wages Act. Against that judgment the workman filed the present writ appeal.

4. It is contended on behalf of the appellant that the provisions of the Payment of Wages Act, 1936 do not operate as a bar to the maintainability of a petition under S. 33-C(2) of the Industrial Disputes Act, 1947. On the other hand it is strenuously urged by the learned counsel for the first respondent that when the employer has disputed the right of the workman to claim the wages, the Labour Court has no jurisdiction to entertain a claim under S. 33-C(2) which is analogous to an execution proceeding unless there was a prior determination of the right of the workman to wages in a proper proceeding. In any case, according to the learned counsel S. 15 of the Payment of Wages Act is a complete bar to the initiation of proceedings under S. 33-C(2) of the Industrial Disputes Act for the recovery of wages.

5. To appreciate the rival contentions of the learned counsel it wll be necessary to refer to the relevant provisions of the Payment of Wages Act, 1936, the Industrial Disputes Act, 1947 and the Motor Transport Workers Act, 1961. It is an admitted fact that the appellant is a Motor Transport Worker and as such he is governed by the Motor Transport Wrokers Act, 1961. This Act was enacted by Parliament to provide for the welfare of motor transport workers and to regulate their conditions of work. It contains provisions relating to the measures to be taken by the employer for the welfare and health of the workman, the hours of work in a day, daily interval for rest, spread over of working hours, prohibition of young persons in a motor transport undertaking, wages and leave. Ss. 25 and 37 which are relevant for the purpose of this case are extracted.

Section 25 : The Payment of wages Act, 1936, as in force for the time being, shall apply to motor transport workers engaged in a motor transport undertaking as it applies to wages payable in an industrial establishment as if the said Act had been extended to the payment of wages of such motor transport workers by a notification of the State Government under sub-s. (5) of S. 1 thereof, and as if a motor transport undertaking were an industrial establishment within the meaning of the said Act.

Section 37(1) : The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or the in terms of any award; agreement or contract of service, whether made before or after the commencement of this Act :

Provided that where under any such award, agreement, contract of service or otherwise a motor transport worker is entitled in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the motor transport worker shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.

(2) Nothing contained in this Act shall be construed as precluding any motor transport worker form entering into an agreement with an employer for granting him rights or privileges in respect of any matter which are more favourable to him than those to which he would be entitled under this Act.

6. From these provisions it is evident that the Payment of Wages Act 1936 is made applicable to the workmen engaged in a motor transport undertaking. The provisions of the Motor Transport Worker Act shall have over riding effect over the provisions of the other Acts or the terms of any award, agreement or contract of service to the extent they are inconsistent except to the extent that where the workmen are entitled to the benefits under the inconsistent provisions of the other Acts or the terms of any award, agreement or contract of service which are more favourable to them than those provided under the Act, they shall continue to be entitled to those favourable benefits notwithstanding the inconsistency.

7. The Payment of Wages Act, 1936 was enacted by the Central Legislature to regulate the payment of wages to certain classes of persons employed in any factory or by a railway administration and to those employed in the Industrial or other establishments specified in sub-cls. (a) to (g) of Clause (ii) of S. 2. S. 3 lays down that the employer shall be responsible for the payment of wages. S. 4 provides for fixation of wages periods. S. 5 fixes the times limit within which the wages shall be paid. Under S. 7 the deductions that can be made from the wages are specified. S. 8 provides that no fine shall be imposed on an employee except in such case and in such manner as provided thereunder. Ss. 9 to 13 lay down the various kinds of deductions that can be made from wages whereas S. 13-A deals with maintenance of registers and records. S. 14 deals with appointment of Inspectors and their powers, S. 15 provides for the appointment of an Authority under the Act to hear and decide for a specified area all claims arising out of deductions from the wages or delay in payment of wages of the employees including all matters incidental to such claims. S. 16 enables the persons belonging to the same unpaid group of the same establishment to file a single application. Under S. 17 right of appeal is provided against an order passed under S. 15 Under S. 18 the Authority shall have all the powers of a Civil Court for the purposes specified therein. S. 20 provides for punishment of the persons responsible for the payment of wages, for the contravention of certain provisions for the Act mentioned therein. S. 21 specifies the procedure for trial of offences. The Civil Court is prohibited from entertaining any suit for the recovery of wages or of any deduction from wages as mentioned is S. 22 Ss. 15 and 22 of the Act which are relevant for the purpose of this case are as follows.

Section 15(1) : The State Government may be notification in the Official Gazette appoint a presiding officer of any Labour Court or Industrial Tribunal, constituted under the Industrial Disputes Act, 1947 or under any corresponding law relating to the investigation and settlement of industrial disputes in force in the State or any Commissioner for Workmen's Compensation or other officer with experience as a Judges of a Civil Court or as a Stipendiary Magistrate to be the authority to hear and decide for any specified are all claims arising out of deductions from the wages or delay in payment of wages, of persons employed or paid in that are, including all matters incidental to such claims :

Provided that where the State Government considers it necessary so to do, it may appoint more then one authority for any specified area and may, by general or special order, provide for the distribution or allocation or work to be performed by them under this Act.

(2) Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf or any Inspector under this Act, or any other person acting with the permission of the authority appointed under sub-s. (1), may apply to such authorit for a direction under sub-s. (3) :

Provided that every such application shall be presented within twelve months from the date on which the deduction from the wages was made or from date on which the payment of the wages was due to be made, as the case may be : Provided further that any application may be admitted after the said period of twelve months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period............'

Section 22 : No Court shall entertain any suit for the recovery of wages or any deduction from wages in so far as the sum so claimed -

(a) forms the subject of an application under S. 15 which has been presented by the plaintiff and which is pending before the authority appointed under that section or of an appeal under S. 17 : or

(b) has formed the subject of a direction under S. 15, in favour of the plaintiff; or

(c) has been adjudged in any proceeding under S. 15, not to be owned to the plaintiff; or

(d) cold have been recovered by an application under S. 15.

8. The Industrial Disputes Act, 1947 was enacted for the purpose of investigation and settlement of industrial disputes, enforcement of existing rights or workmen and for certain other purpose. It contains provisions relating to strikes, lock outs, lay off and retrenchment. S. 33-C provides a remedy to workmen to recover money due from an employer. The section was inserted in the Act by the Industrial Disputes (Amendment) Act No. 36 of 1956 and was further amended by Act No. 36 of 1964. Some minor amendments were effected in the section subsequently by Amendment Acts 32 of 1976 and 46 of 1982. The section reads as under :

Section 33-C : (1) Where any money is due to a workmen from an employer under a settlement or an award or under the provisions of Chapter V-A or Chapter V-B the workmen himself or any other person authorised by him in writing in this behalf or in the case of the death of the workmen, his assignee or heirs may, without prejudice to any other mode or recovery, make an application to the appropriate Government for the recovery money due to him and if the apropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the manner as an arrear of land revenue :

Provided that every such application shall be made within one year from the date on which the money became due to the workman form the employer :

Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant has sufficient cause for not making the application within the said period. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount from which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf of the appropriate Government, within a period not exceeding three months :

Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.

(3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a Commissioner who shall after taking such evidence as may be necessary submit a report to the Labour Court, and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case.

(4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-s. (1).

(5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of of in respect of any number of such workmen.

9. Under the provisions of the Payment of Wages Act every employee has a right to claim and the employer has a corresponding legal duty to pay to wages. The State Government is empowered to appoint an Authority to hear and decide the claims arising out of the deductions from the wages or the delay in payment of wages. Any employee can file an application before the authority for recovery of wages in case of unauthorised deduction or delay in payment of wages. Such application is required to be filed within the period of twelve months from the date on which the deduction was made or from the date on which the payment of wages was due to be made, as the case may be. Thus the section created a remedy enabling an employee to seek relief in either of those cases within the prescribed period of limitation. Subsequent to this Act, Industrial Disputes Act as enacted in the year 1947 and S. 33-C was inserted in the Act in the year 1956 conferring a right on the workmen to approach the Labour Court where he is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. For filing an application under this section no period of limitation is prescribed. Whereas the remedy under S. 15 of the Payment of Wages Act is limited to the claims arising out of deducting from the wages or delay in payment of wages, the remedy under S. 33-C(2) of the Industrial Disputes Act embraces any claim relating to money or any benefit which is capable of being computed in terms of money. Thus the remedy provided under S. 33-C(2) is far wider than the one provided under S. 15(1) of the payment of Wages Act. Apart from that, whereas a period of twelve months limitation is prescribed for filing of an application under S. 15 of the Payment of Wages Act the remedy under S. 33-C(2) of the Industrial Disputes Act is not circumscibed by any such period of limitation. Both the provisions are intended for the benefits of the workmen and both the enactments are welfare legislations. Whereas the Payment of Wages Act regulates the payment of wages, the Industrial Disputes Act deals with the adjudication of Industrial disputes and the enforcement of the existing rights of the workmen. Thus both the Acts can be characterised as special enactment each in its own way. The Parliament having been well aware of the provisions of S. 15 of the Payment of Wages Act inserted S. 33-C in the Industrial Disputes Act in the year 1956 conferring a right on the workmen to prefer a claim for money or money equivalent of a benefit due to him. It was not as if the Parliament was not aware that the same workmen may be governed by the provisions of both the Acts. In such a case, if a workman is governed by the provisions of both the Acts is not open to him to pursue that remedy which is more effective and efficacious to him The two remedies are independent and alternative. One does not exclude the other. In such a situation the principle 'generalia spcialibus non derogant', will not be applicable as each one of the Acts is special enactment in its own sphere and one cannot be said to be general in nature vis-a-vis the other.

10. We may look into the other provisions of the Payment of Wages Act to find out whether they expressly or by necessary implication exclude recourse to remedices available under some other law. In this context S. 22 is the only provision relevant for the purpose. It only bars the entertainment of a suit by a civil court for the recovery of wages. Thus there is no express provision in the Act prohibiting an employee from seeking a remedy available to him under the Industrial Disputes Act for recovery of wages. Then we have to see whether the provisions of the Act by necessary implication operate as a bar to the filing of an application under S. 33-C(2) of the Industrial Disputes Act. When we are interpreting the provisions of a social welfare legislation we have to bear in mind that we should adopt that interpretation which will promote that object of the Act and further the interests of those for whose benefits the Act was made, in particular when such interpretation does not do violence to the express language in the Act. Whereas Payment of Wages Act contemplates filing of petition for recovery of wages is specified instances, S. 33-C(2) does not contain words restricting the right of a workman to recover wages, thus covering all possible situations in which a workman can make a claim for recovery of wages due from his employer. In a case where a workman makes a claim against his employer for the recovery of wages and some other amounts due from his, if a narrow interpretation is placed on S. 33-C(2), the workman will have to file an application for recovery of wages in respect deduction from wages or delay in payment of wages before the Authority under the Payment of Wages Act and for the recovery of other amounts, before the Labour Court under s. 33-C(2) which will cause hardship to them. On the other hand if the words in S. 22 of the Payment of Wages Act are given their plain and natural meaning, they do not give scope to any implication by which can it be inferred that the provisions of the Payment of Wages act bar the remedy under s. 33-C(2) of the Industrial Disputes Act. By so construing the provisions of S. 22 it not only amounts to ascribing the natural the plain meaning to the words used in the section but also promotes the object and achieves the purpose for which S. 33-C(2) has been inserted in the Industrial Disputes Act viz., the right of a workman to recover all moneys due from his employer through a single forum without reference to the period of limitation.

11. Let us now examine whether the provisions of S. 25 or 37 of the Motor Transport Workers Act 1961 exclude the applicability of S. 33-C(2) to a claim made by a workman for the wages due from the employer. Section 25 no doubt incorporates a provision by which the Payment of Wages Act is made applicable to Motor Transport Workers and Section 37 gives overriding effect to the provisions of the Act over the provisions of any other law or the terms of any award, agreement or contract of service, subject to the exception mentioned in the proviso which reads as follows :

'Provided that where under any such award, agreement, contract of service or otherwise a motor transport worker is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the motor transport worker shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.'

Thus where a workman is entitled to the benefits under any award, agreement, contract of service or otherwise which are more favourable to him than those to which he would be entitled under the Act, he shall be entitled to those more favourable benefits notwithstanding the provisions of the Act to the contrary. Even assuming that the right to a remedy does not fall within the ambit of a benefit comtemplated under the proviso, we are unable to see any reason as to why the principle underlying the proviso should not be applied in respect of a right to remedy given to a workman under s. 33-C(2) of the Industrial Disputes Act if such a remedy is more favourable and efficacious than the one provided under the Payment of Wages Act. As we have stated above the remedy under S. 33-C(2) is wider and more favourable to the workmen than the remedy under S. 15 of the Payment of Wages Act. The proviso to S. 37 of the Motor Transport Workers Act clearly indicates the intention of the legislature that where a workman is entitled to a more favourable right or benefit under some other law he shall not be deprived of the same merely on the ground that the Motor Transport Workers Act contains a contrary provision in respect of such a right or benefit. The Parliament enacted the Motor Transport Workers Act in the year 1961 by which time the Payment of Wages Act and the Industrial Disputes Act were already on the statute book. So the Parliament was well aware of the right of a workman to a remedy for recovery of wages both under the Payment of Wages Act and the Industrial Disputes Act and with full knowledge of those provisions, incorporated S. 37 in the Act. From this it can be gathered that the intention of the Parliament was thus a workman shall not be deprived of a right to remedy which was more favourable to him under either of the enactments.

12. We may now refer to some of the relevant decision of the Supreme Court and the various High Courts wherein the scope of S. 15 of the Payment of Wages Act vis-a-vis S. 33-C(2) of the Industrial Disputes Act has been considered.

13. In Union of India v. Samuel Peters [1975-II L.L.J. 185 at 187] a workman filed an application in the first instance before the Authority under the Payment of Wages Act for wages from 13th December, 1952 to February, 1962. The Authority granted him wages for the months of January and February, 1962 and dismissed the rest of the claim as having been barred by limitation. He then filed an application under S. 33-C(2) of the Industrial Disputes Act for the wages for the period prior to January, 1962. A contention was advanced on behalf of the management that the petition under S. 33-C(2) was not maintainable in view of the provisions of the Payment of Wages Act. While rejecting that contention the Division Bench of the Bombay High Court observed in para 8 as follows at page 187.

'There is no provision in the Payment of Wages Act excluding the jurisdiction of the Industrial Court under S. 33-C(2) and, therefore, the contention is raised that by necessary implication such a jurisdiction is barred. In fact in S. 22 of the Payment of Wages Act a specific provision has been made to exclude the jurisdiction of Civil Court from entertaining a claim which could be made under the Payment of Wages Act. If it was intended to exclude the jurisdiction also of the Industrial Court under S. 33-C(2) a similar provision could have been made in respect of this also. When a specific provision has been made expressly barring the jurisdiction of some Courts there is no scope of any implication in respect of other Courts. We are, therefore, 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 is 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 S. 33-C(2) of the Industrial Disputes Act, the Payment of Wages Act and the provisions of Minimum Wages Act, would apply in the instant case also.'

14. A similar question arose far consideration before a Division Bench of the Gujarat High Court in Ambica Mills v. Second Labour Court [1967-II L.L.J. 800 at 806]. The learned Judges held at page 806 that :

'The argument was that S. 33-C(2) of the Act is a general provision. The Payment of Wages Act makes a specific provision for the recovery of the amount that may be due to the workman, and also provides a limitation for pursuing the remedy. If this right of the worker to follow this procedure to recover the money due is barred by the provisions if limitation, how can argues Sri Vyas, as worker enforce his right to recover the amount under provisions of Sub-s. (2) of S. 33-C of the Act. The answer to this argument is simple. The right of the worker to recover the amount can be enforced either by following a remedy under S. 15 of the Payment of Wages Act or under the provisions of S. 33-C of the Act. These remedies are in the alternative and are independent of each other. It is true that the Payment of Wages Act does provide for a limitation but the period of limitation applies only tot he procedure provided by the Payment of Wages Act. The legislature has not provided any limitation for the remedy under S. 33-C(2) of the Act. The remedy to recover the amount due under S. 33-C is an independent remedy. Therefore the argument of Sri Vyas, that a worker cannot take an advantage of the remedy under S. 33-C(2) of the Act, cannot be accepted.'

15. Again the very same question was posed before a Division Bench of the High Court of Mysore in B. Narsimha Pai v. Damodara Bhat [1971-I L.L.J. 452 at 455]. Rejecting the contention the learned Judges observed in para 3 at page 455 as follows :

'It appears to us that S. 15 of the Payment of Wages Act, 1936 does not take away the powers vested in the Labour Court by virtue of S. 33C(2) of the Industrial Disputes Act, 1947. It was pointed out that under the Payment of Wages Act, 1936, a definite period of limitation is prescribed for making claims under it. The period prescribed is 12 months from the date on which the deduction from the wages was made or from the date on which the payment of wages was due to be made as the case may be. For a claim to be made under the provision of S. 33C(2) of the Industrial Disputes Act, 1947, no period of limitations is prescribed. Therefore, it is contended that the claim which is time barred under the provisions of S. 15 of the Payment of Wages Act, 1936 should not be entertained by the Labour Court on an application filed under S. 33C(2) of the Industrial Disputes Act, 1947. ................'

The aspect came up for consideration before the Gujarat High Court in Ambica Mills Ltd. v. Second Labour Court (supra).

Thus it appears to us that the second respondent has jurisdiction to entertain the petitioner's application and therefore the order rejecting the application is not sustainable in law.'

16. A Full Bench of the Madhya Pradesh High Court expressed same view in Mohd. Ismail v. Central Government Industrial Tribunal-cum-Labour Court, Jabalpur (1980 (57) F.J.R. 164). The question was.

'Whether an application under S. 33-C(2) of the Industrial Disputes Act, 1947 is barred by virtue of S. 22 of the Payment of Wages Act where an application lies also under S. 15 of the Payment of Wages Act for recovery of that amount ?'

Answering the question in the negative the learned Judges observed at page 168 as follows :

'The Labour Court cannot be regarded as a Court of general jurisdiction, it is as much a special tribunal as the authority appointed under the provisions of the Minimum Wages Act or the Payment of Wages Act. Each of these tribunals has jurisdiction in respect of matter specified in the enactment constituting them and in any other enactment.

There may be overlapping of jurisdiction of these special tribunals over some matters. There is nothing strange or unusual in more than one forum having jurisdiction over the same matter. Neither S. 24 of Minimum Wages Act nor S. 22 of the Payment of Wages Act bars the jurisdiction of Labour Court to entertain and adjudicate upon an application under S. 33-C(2) of the Act. The Labour Court is a judicial or atleast a quasi-judicial tribunal but not a civil court and the jurisdiction of the Labour Court not having been barred by the express provision of either S. 22 of the Payment of Wages Act or S. 24 of the Minimum Wages Act, it is against the well settled canons of interpretation of statutes to imply any such bar to the jurisdiction of the Labour Court which is not created by any statute......... It is, therefore, clear that the Labour Court is not a Civil Court and application filed under S. 33-C(2) is not a suit and, as such, Labour Court has got jurisdiction to entertain claims arising out of deductions from wages or delay in payment of wages and the Labour Court is not debarred from entertaining such claims inspite of Ss. 15 and 22 of the Payment of Wages Act. Claims under S. 33-C(2) are not restricted only in respect of claims referable to settlement, award or the relevant provisions of Chapter V-A as mentioned in S. 33-C(1). A claim under S. 33-C(2) can also include a claim which is provided under the statute otherwise.'

17. In Ananda Transport v. Chelliah [1975-II L.L.J. 39] a question arose before a Division Bench of the Madras High Court as to whether the workmen governed by the Motor Transport Workers Act can approach the Labour Court under S. 33-C(2) of the Industrial Disputes Act for quantification of the benefits of supply of uniforms and chappals and washing allowance. A contention was raised on behalf of the Management that the jurisdiction of the Labour Court under S. 33-C(2) was ousted by reason of the provisions in the Payment of Wages Act. The learned Judges repelled this contention. They referred to the judgment of the judgment of the learned single Judges in Southern Roadways Private Limited v. Venkateswarlu 1969 (37) F.J.R., Page 316 wherein the learned Judge observed as follows :

'.......... could it have been the intention of the Parliament in enacting the Act that with reference to all the other rights conferred by that Act on the Workers, the only remedy should be under the Payment of Wages Act, simply because the claim with regard to those rights fall within the definition of 'wages' contained in S. 2(vi) of the Payment of wages Act and could it have been the intention of the Parliament that the workmen with regard to those claims will have to go before the authority under the Payment of Wages Act and with regard to the claims under S. 10 of the Act they will have to go before the Labour Court under S. 33C(2) of the Industrial Disputes Act ?......... After having posed the question, he answered that it could not have been so and said that the Parliament could not have contemplated driving the workmen on whom certain benefits are conferred by the Act to go before one authority in respect of some benefits and to go before another authority in respect of certain other benefits and that if that were the intention of the Parliament, such intention would have been expressed in clear and definite language.'

18. Agreeing with the said view expressed by the learned single Judged the Division Bench held that they were unable to accede to the contention advanced on behalf of the Management that.

'the workmen in the instant case should have taken steps for redressal of their grievance under the Payment of Wages Act and ought not to have resorted to an application under S. 33-C(2) of the Industrial Disputes Act....'

However the High Court of Delhi struck a different note on the subject in its decision in Delhi Transport Corporation v. D. D. Gupta [1984-II L.L.J. 79 at 89-90]. In that case the workman who was a bus conductor filed an application under S. 33-C(2) of the Industrial Disputes Act claiming the difference of wages between the subsistence allowance and the full wages payable to him. The workman was governed by the provisions of the Motor Transport Workers Act. So a jurisdictional object was raised as to the maintainability of the application under S. 33-C(2). The Labour Court over-ruled the objection holding that the existence of an alternative remedy under S. 15 of the Payment of Wages Act was an bar to the maintainability of an application under S. 33-C(2) of the Industrial Disputes Act. In a writ petition filed against that order, the learned Single Judge confirmed the order of the Labour Court holding that the application under S. 33-C(2) was maintainable. However on further appeal to a Division Bench the Judgment of the single Judge was set aside upholding the objection raised on behalf of the Management that the application under S. 33-C(2) was not maintainable. The learned Judges observed at page 89-90.

'The Payment of Wages Act, which was the first in point of time, created special forum and provided a summary remedy if the jurisdiction of that forum was invoked within a specified time. The Industrial Disputes Act, which was enacted next, created a special forum and provided a summary remedy without any limitation as to time within which an application could be moved. The Motor Transport Workers Act, which came last, took out a class of workmen covered by the Industrial Disputes Act and provided for the forum, remedy and the limitation as mentioned in the payment of Wages Act. This is apparent on a reading of S. 25 of the Motor Transport Workers Act. In plain language, S. 25 of the Motor Transport Workers Act incorporates the provisions of the Payment of Wages Act in it. The view expressed by our brother Kapur, J. could be accepted if the legislation had stopped at the stage. In our view, the opinion of Kapur, J. gets faulted on a reading of S. 37 of the Motor Transport Workers Act. In categorical terms, S. 37 of this Act lays down that if there is any inconsistency between the provisions of the Motor Transport Workers Act incorporating the Payment of Wages Act, and any other law then the provisions of the Motor Transport Workers Act would prevail. We find that there is inconsistency between the provisions of the Industrial Dispute Act on the the one hand and the Payment of Wages Act on the other. Therefore, as far as motor transport workers are concerned, the special Act by which they are governed would prevail over the Industrial Disputes Act.

We may mention only two very glaring inconsistencies. One is that whereas under the Industrial Disputes Act there is no limitation to file an application under S. 33-C(2), there is a time bar provided by S. 15 of the Payment of Wages Act. (See proviso to Sub-s. (2) of S. 15). Secondly, a claim under S. 15 of the Payment of Wages Act can be preferred by the person affected or any legal practitioner or any official of a registered trade union authorised in writing to act on behalf of the person affected or any inspector appointed under the Payment of Wages Act or any person acting with the permission of the authority appointed under Sub-s. (1) of S. 15. An application under S. 33-C(2) of the Industrial Disputes Act, however, can only be moved by the person affected himself.

In the view that we have taken, we express our respectful agreement with the decision of our brother, S. Ranganathan, J. and respectuflly disagree with the view expressed by our brother D. K. Kapur, J.

We, therefore, hold that the Labour Court did not have jurisdiction to entertain the applications moved by Puran Singh, Ram Swarup and Chander Bhan under S. 33-C(2) of the Industrial Disputes Act.'

19. Having noticed the views expressed by the various High Courts on the subject, we may now usefully refer to some of the relevant decisions of the Supreme Court. In payment of Wages Inspector v. S. Mehta [1969-I L.L.J. 762 at 769] the question whether the application filed by the workmen before the Authority under the Payment of Wages Act for recovery of notice pay and retrenchemnt compensation under S. 25FF of the Industrial Disputes Act was maintainable, came up for consideration before the Supreme Court. Answering the question Their Lordships of the Supreme Court observed that the jurisdiction of the Authority under the Payment of Wages Act was confined only to two classes of cases, namely, of deductions and fines not Authorised under Ss. 7 to 13 and of delay in payment of wages beyond the wages periods fixed under Ss. 4 and 5 of the Act and that the jurisdiction was of summary nature. In coming to the conclusion that the application filed under S. 15 of the Payment of Wages Act was not maintainable Payment of Wages Act was not maintainable and such an application can be filed under S. 33-C(2) of the Industrial Disputes Act. Their Lordships observed at page 769 :

'The question, therefore, is whether on the footing that compensation payable under S. 25FF of the Industrial Disputes Act being wages within the meaning of S. 2(vi)(d) of the Act, a claim for it on the ground that its payments was delayed by an employer could be entertained under S. 15(2) of the Act. In our view it could not be so entertained. In the first place, the claim made in the instant case is not a simple case of deductions having been unauthorisedly made or payment having been delayed beyond the wage-periods and the time of payment fixed under Ss. 4 and 5 of the Act. In the second place, in view of the defence taken by respondent 1, the authority would inevitably have to enter into questions arising under the proviso to S. 25FF, viz., whether there was any interruption in the employment of the workmen....'

'When the definition of wage was explained to include cases of sums payable under a contract, or a law, it could have been intended that such a claim for compensation which is denied on grounds which inevitably would have to be inquired into and which might entail prolonged inquiry into questions of fact as well as law was one which should be summarily determined by the authority under S. 15 nor could the authority have been intended to try as matters incidental to such a claim questions arising under the proviso S. 25FF. In our view it would be the labour court in such case which would be the proper forum which can determine such questions under S. 33-C(2) of the Industrial Disputes Act.

In the result we agree with the High Court that the authority had no jurisdiction under S. 15(2) of the Act to try these applications.'

20. In another case Bombay Case Co., v. Gopal Bhiva [1964 Supreme Court, page 752], in which the workmen filed an application under S. 33-C(2) of the Industrial Disputes Act for payment of money nearly eight years after the amount was due a contention was raised that

'the Labour Court should not have allowed the claim of the respondents for such a long period when they made the present applications nearly 8 years after the award was pronounced.'

In that context it was strenuously urged that the claim made by the workman under S. 33-C(2) was one for wages within the meaning of the Payment of Wages Act and when they could not have got the relief for more than one year under that Act it would be anomalous that by changing the forum they could make a claim for money after eight years under S. 33-C(2). Dealing with that submission their Lordships of the Supreme Court stated in para 12 that :-

'Prima facie, there is some force in this argument. It does appear to be somewhat anomalous that a claim which would be rejected as barred by time if made under the Payment of Wages Act, should be entertained under S. 33-C(2) of the Act; but does this apparent anomaly justify the introduction of considerations of limitation in proceedings under S. 33-C(2) Mr. Kolah suggests that it would be open to this courts to treat laches on the part of the employees as a relevant factor even in dealing with cases under S. 33-C(2) and he has relied on the fact that this Court has on several occasions discouraged belated claims in the matter of bonus. In appreciating the validity of this argument, we do not propose to consider whether the jurisdiction conferred on the authority under the Payment of Wages Act is exclusive in the sense that a claim for wages cannot be made by an industrial employee in a civil court within 3 years as permitted by Art. 102; that is a question which may have to be decided on the merits when it directly arises.'

So expressing the view the Supreme Court dismissed the appeal thereby confirming the order passed under S. 33-C(2) on an application filed after a lapse of eight years.

21. In this context we like to refer to some of the relevant decisions of the Supreme Court as well as of our High court arising under the Minimum Wages Act wherein a similar question as to the jurisdiction of the Industrial Tribunal under S. 33-C(2) in entertaining a petition for recovery of money due under the Minimum Wages Act came up for consideration.

22. In Athani Municipality v. Labour Court, Hubli : (1969)IILLJ651SC , some workmen filed petitions under S. 33-C(2) of the Industrial Disputes Act in the Labour Court seeking computation of their claim for over time work. The applications were allowed by the Labour Court. Thereafter the management filed writ petitions before the High Court contending that the jurisdiction of the Labour Court was excluded by the provisions of the Minimum Wages Act. That contentions was rejected by the High Court. Then the management approached the Supreme Court raising the very same contention. Repelling the argument of the management the Supreme Court observed in paragraph 6 that. .. We are unable to accept that submission made by Mr. Sen on behalf of the appellant that S. 20(1) of the Minimum Wages Act should be interpreted as intended to cover all claims in respect of minimum wages or over time payment or payment for days of rest even though there may be no dispute as to the rates at which those payments are to be claimed......

In the present appeals therefore, we have to see whether the claims which were made by the workmen in the various applications under S. 33-C(2) of the Act were of such a nature that they could have been brought before the Authority under S. 20(1) of the Minimum Wages Act inasmuch as they raised disputes relating to the rates for payment of overtime and for work done on weekly off-days.................

The only question that arose was whether they were any rates at all fixed under the Minimum Wage Act for over time and for payment for work done on days of rest. Such a questions does not relate to a dispute as to the rates enforceable between the parties, so that the remedy under S. 20(1) of the Minimum Wages Act could not have been sought by the applicants in any case of these applications. No question can, therefore, arise of the jurisdiction of the Labour Court to entertain these applications under S. 33-C(2) of the Act being barred because of the provisions of the Minimum Wages Act.'

23. The learned Judges further laid down that the Industrial Tribunal or the Labour Court dealing with applications or reference under the Industrial Disputes Act was not a court and either of them was in no way governed either by the Code of Civil Procedure or Code of Criminal Procedure or the Limitation Act.

24. A Division Bench of this Court had an occasion to decide the question whether a claim barred by limitation under the Minimum Wages Act can be entertained by the Labour Court under S. 33-C(2) of the Industrial Disputes Act in K. Gopal Rao v. Labour Court, Hyderabad 1976(2) A.P. Law Journal, page 294. Relying on the observations made by the Supreme Court in the two above referred judgments i.e., Bombay Gas Co., v. Gopal Bhiva (supra) and Athani Muncipality v. Labour Court, Hubli (supra) it was observed at page 299 as follows :

'The position is that, while in the said case before the Supreme Court the remedy under the Minimum Wages Act was not available at all from its inception, in the present case the remedy under that Act was not available at the time when the application under S. 33-C(2) of the I.D. Act was filed, because the statutory period of six months had already expired by then. The statutory period having expired, the workman in the present case could not resort to the remedy under S. 20 of the Minimum Wages Act as of right. In our opinion, the principle under lying the decision of the Supreme Court is that if the remedy under the Minimum Wages Act is not available to the workman concerned, he can resort to the remedy under S. 33-(C) of the I.D. Act. Support is to be found for that view also in the earlier decision of the Supreme Court in Bombay Gas Company's case, already been discussed above, which also shows that a claim which was barred by time under the payment of Wages Act can be made under S. 33-C(2) of the I.D. Act. Applying the principle on which the said two decisions of the Supreme Court rest, we hold, that since the workman in the present case could not have resorted to the remedy provided by S. 20 of the Minimum Wages Act at the time when he filed the application under S. 33-C(2) of the Industrial Disputes Act, that application is maintainable.'

25. Later the very same question relating to the jurisdiction of the Labour Court to entertain an application under S. 33-C(2) of the Industrial Disputes Act for the minimum wages due to an employee under the Minimum Wages Act came up for consideration before a Full Bench of this Court in Anand Oil Industries v. Labour Court, Hyderabad : AIR1979AP182 . On a thorough and elaborate discussion of the matter and consideration of the various judgments of the Supreme Court as well as those of the various High Court the Full Bench laid the principles in paragraph 48 at pages 201 as follows :

'The Industrial Disputes Act itself is not a general enactment as is commonly understood. In a sense the Industrial Disputes Act itself is a special enactment applicable to certain class of employers and workmen and certain classes of disputes. Consequently the Industrial Tribunal or the Labour Court created for the adjudication of those disputes cannot be regarded as Courts of general jurisdiction; they are Tribunals conferred with special jurisdiction with regard to matters specified under the said enactment. So also, the Minimum Wages Act deals with specific rights created under that Act. They are special enactments relating to certain class of employees and certain class of employments or establishments. The Minimum Wages Act also creates a special forum for certain matters covered by S. 20 of the Act but it does not bar the jurisdiction of the Labour Court to entertain claims covered by the Minimum Wages Act, S. 33-C(2) may be wide enough to include claims of workmen in respect of rights conferred under various enactments. May be, certain matters entertainable under S. 20 of the Minimum Wages Act may be entertained under S. 33-C(2) of the Industrial Disputes Act also. But on account of that fact the Industrial Disputes Act as a whole or S. 33-C(2) of the Act in particular does not become a general law in relation to the Minimum Wages Act.'

The learned Judges further observed in paragraph 81 -

'The Labour Court has also jurisdiction to entertain a petition under S. 33-C(2) for the minimum wage due to an employee under the Minimum Wages Act. The existence of any other remedy for determination and recovery of minimum wages or minimum bonus does not bar the jurisdiction of the Labour Court to entertain a petition under S. 33-C(2) of the Industrial Disputes Act -----'

26. It is no doubt true that the Supreme Court held in State of Punjab v. Labour Court, Jullundur [1981-I L.L.J. 354] that

'the proceedings for payments of gratuity due under the Payment of Gratuity Act must be taken under that Act and not under any other Act. Therefore, the applications filed by the employee under S. 33-C(2) of the Industrial Disputes Act did not lie, and the Labour Court has no jurisdiction to entertain and dispose of them.'

In that case on consideration of the provisions of the Payment of Gratuity Act the learned Judges held in paragraph 7 that if was a self contained code.

'----- containing detailed provisions covering all the essential features of a scheme for payment of gratuity. It creates the right to payment of gratuity, indicates when the right will accrue, and lays down the principle for quantification of the gratuity. It provides further for recovery of the amount, and contains an especial provision that compound interest at nine per cent. per annum will be payable on delayed payment. For the enforcement of its provisions, the Act provides for the appointment of a controlling authority, who is entrusted with the task of administering the Act. The fulfilment of the rights and obligations of the parties are made his responsibility and he has been invested with an amplitude of power for the full discharge of that responsibility. Any error committed by him can be corrected in appeal by the appropriate Government or an appellate authority particularly constituted under the Act.'

27. Having regard to this decision we have to examine the various provisions of the Payment of Wages Act to see whether it was enacted as a complete code dealing with all the matters relating to the payment of wages. We have given above a list of the relevant provisions of the Act. The various provisions of the Act as pointed out by the Supreme Court in Payment of Wages Inspector v. S. Mehta (supra) clearly indicate, that

'The only applications which the Authority can entertain are those where deductions unauthorised under the Act are made from wages or there has been delay in payment beyond the wage period fixed or prescribed under Ss. 4 and 5 of the Act ------ and that the authority under the Act had no jurisdiction to enter into a question of potential wages i.e., where the workman pleads that he ought to have been upgraded as persons junior to him were upgraded and that he ought to have been paid wages on a scale paid to those so upgraded ---------'

And that

'In determining the scope of these incidental matters care must be taken to see that under the guise of deciding incidental matters the limited jurisdiction was not unreasonably or unduly expanded.'

Their Lordships of the Supreme Court have categorically laid down that a claim such as the one for compensation payable under Ss. 25-FF or 25-FFF of the Industrial Disputes Act being wages within the meaning of S. 2(vi)(d) of the Payment of Wages Act, on the ground that his payment was delayed by the employer could not be entertained under the Act. It was further clarified in considering such a question it was not open to the Authority to decide whether there was any interruption in the employment of the workman. Though certain amount claimed by a workman comes within the definition of 'wages' under the Payment of Wages Act, still a claim relating to that amount cannot be entertained by the Authority under the Payment of Wages Act. It is thus manifest that every claim for wages is not entertainable under S. 15 of the Payment of Wages Act. So it is evident from the various provisions incorporated in the Act that it is not intended to be a self-contained code dealing with all matters relating to payment of wages. If that is so, question of ouster of jurisdiction of the Labour Court under S. 33-C(2) of the Industrial Tribunal by virtue of the provisions of the Payment of Wages Act does not arise.

28. The preponderance of judicial opinion is clearly in favour of the view that the provisions of S. 15 read with S. 22 of the Payment of Wages Act do not bar the jurisdiction of the Labour Court under S. 33-C(2) of the Industrial Disputes Act to entertain an application for recovery of wages due to an employee. With respect we agree with the view expressed by the various High Courts and express our disagreements with the view taken by the Delhi High Court to the contrary.

29. Our learned brother Justice Raghuvir allowed the writ petition out of which the present writ appeal arises, following the decision of a Division Bench of this Court in A. B. Saleem v. The Labour Court, Hyderabad (supra) on the parity of reasoning. The decision relied on by him was rendered under the A. P. Shops and Establishments Act. But subsequently another Division Bench of this Court in M. Krishnaswamy v. Assam Tea Depot (supra) expressed a different view and held in paragraph 21 that :

'The jurisdiction of the Labour Court under S. 33-C(2) of the I.D. Act is not barred, either expressly or by necessary implication, by any of the provisions contained in the Andhra Pradesh Shops and Establishments Act, 1966 -----'

30. In the instant case we are not concerned with the provisions of the A.P. Shops and Establishment Act. The question is whether the provisions of Payment of Wages Act operate as a bar to the maintainability of the petition under S. 33-C(2) of the Industrial Disputes Act. So in this case we need not decide as to which view of the Division Bench in a matter arising under the A.P. Shops and Establishments Act is correct.

31. From what is stated above and the preponderance of judicial opinion on the subject, the following points emerge.

(1) Both the Payment of Wages Act as well as the Industrial Disputes Act as well as the Industrial Disputes Act are special enactments and as such the principle 'generalia specialibus non derogant' is not applicable.

(2) The remedies provided under S. 15 of the Payment of Wages Act as well as S. 33-C(2) of the Industrial Disputes Act are independent and alternative and one does not exclude the other.

(3) The remedy under S. 33-C(2) of the Industrial Disputes Act is wider in scope and more favourable to the workman than the remedy under S. 15 of the Payment of Wages Act.

(4) When a workman is governed by the provisions of both the Payment of Wages Act as well as the Industrial Disputes Act, it is open to him to avail either of the remedies provided under those Acts.

(5) A claim barred by time under S. 15 of the Payment of Wages Act can be entertained under S. 33-C(2) of the Industrial Disputes Act, 1947.

32. The next question that arises for consideration whether the Labour Court has jurisdiction to inquire into and decide the claim preferred by the workmen under S. 33-C(2) of the Act when the Management has denied his right to the wages. It is an admitted fact that on 19th December, 1970 the bus which the workman was driving on the route Tirupati to Nellore was involved in an accident. Whereas the workman pleaded that on the very next day of the occurrence of the accident he reported for duty the management put forward the plea that his driving licence was seized by the police on the date of accident and he went away even without informing the management and thus abstained from duty from then onwards. It was their case that the workman reported for duty only after the disposal of the criminal case on 10th October, 1973 which ended in acquittal and as such they were not liable to pay him wages from 19th December, 1970 to 10th October, 1973. Thus according to the learned counsel for the respondent-management when the right of the workman to claim wages for the said period was denied by the management, the Labour Court was precluded from exercising the jurisdiction under S. 33-C(2) of the Industrial Disputes Act. Here it may be noticed that during the period 19th December, 1970 to 11th October, 1973 neither the workman was suspended from service pending enquiry nor was any order of termination passed against him. To substantiate his contention it is submitted by the learned Counsel for the 1st respondent that the proceeding under S. 33-C(2) is in the nature of an execution proceeding and unless there was a prior determination of the right of the workman to receive wages by the Tribunal or Labour Court under S. 10 of the Industrial Disputes Act, the Labour Court has no jurisdiction to decide that question under the guise of deciding the claim of the workman for recovery of money under S. 33-C(2). In support of this contention the learned Counsel placed strong reliance on four judgments of the Supreme Court

33. We may straight away refer to the decision in C.I.W.T. Corporation v. Workmen (supra) wherein Their Lordships of the Supreme Court have thoroughly and elaborately considered the scope of S. 33-C(2) of the Industrial Disputes Act and laid down the principle as follows : (para 13)

'In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including whether the defendant is, at all, liable or nor, and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads (i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under S. 33-C(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations (i) and (ii) above is, normally, outside its scope. It is true that in a proceeding under S. 33C(2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'incidental'. To call determinations (i) and (ii) 'incidental' to an execution proceeding would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under S. 33-C(2) that Court must clearly understand, the limitations under which it is to function. It cannot arrogate to itself the functions - say of an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit of computation. In such cases determinations (i) and (ii) are not 'incidental' to the computation. The computation itself is consequantial upon the subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R. L. Khandelwal [1968-I L.L.J. 589] that a workman cannot put forward a claim in an application under S. 33-C(2) in respect of a matter which is not based on an existing right and which can be approximately the subject matter of an Industrial Dispute which requires a reference under S. 10 of the Act.'

In this decision the Supreme Court referred to its earlier decision in Central Bank of India v. Rajagopalan : (1963)IILLJ89SC rendered by a Constitution Bench where their Lordships observed in paras 15, 17 and 18 as follows :

'Similarly, having regard to the fact that the policy of the Legislature in enacting S. 33C is to provide a speedy remedy to the individual workman to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this section cases of existing rights which are sought to be implemented by individual workman......

But the scope of S. 36-A is different from the scope of S. 33-C(2), because S. 36-A is not concerned with the implementation or execution of the award at all, whereas that is the sole purpose of S. 33-C(2). Whereas S. 33-C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, S. 36-A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under S. 36-A.

Besides, there can be no doubt that when the Labour Court is given the power to allow an individual workman to execute or implement his existing individual rights, it is virtually exercising execution powers in some cases, and it is well settled that it is open to the Executing Court to interpret the decree for the purpose of execution. It is, of course, true that the executing Court cannot go behind the decree, no can it add to or substract from the provision of the decree. These limitations apply also to the Labour Court; but like the executing Court, the Labour Court would also be competent to interpret the award or settlement on which a workman based his claim under S. 33-C(2). Therefore, we feel no difficulty in holding that for the purpose of making appropriate cases, be open to the Labour Court to interpret the award or settlement on which the workman's right rests.'

34. Again in East India Coal Co. v. Rameswar [1968-I L.L.J. 6 at 9-10] the same question came up for consideration and the Supreme Court in page 9 and 10. held

'........ that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer. Since the scope of sub-s. (2) is wider than that of sub-s. (1) and the sub-section is not confined to cases arising under an award, settlement or under the provisions of Chapter VA, there is no reason to hold that a benefit provided by a statute or a Scheme made thereunder, without there being anything contrary under such statute or S. 33C(2), cannot fall within sub-s. (2). Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 which remains to be computed must fall under sub-s. (2) and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer.'

35. In a subsequent decision in U.P. Electricity Supply Company v. R. K. Shukla : (1969)IILLJ728SC . Their Lordships of the Supreme Court reiterated the very same view in the following terms : (vide para 15) :

'Section 33-C(2) is wider than S. 33-C(1). Matters which do not fall within the terms of S. 33-C(1) may, if the workman is shown to be entitled to receive the benefits, fall within the terms of S. 33-C(2). If the liability arises from an award, settlement or under the provisions of Ch. V-A, or by virtue of a statute or a scheme made thereunder, mere denial by the employer may not be sufficient to negative the claim under S. 33-C(2) before the Labour Court.'

36. In the above referred decisions the Supreme Court laid down the following principles :

1. The proceeding under S. 33-C(2), is analogous to an execution proceeding.

2. Section 33-C(2) is wider than S. 33-C(1).

3. For a claim to be maintainable under S. 33-C(2) the workman should have an existing right in his favour to claim the money or the benefit :

4. If the workman has a right under a settlement, award, a scheme or a statute to claim any money or benefit, mere denial of that right by the employer will not be sufficient to negative claim under S. 33-C(2).

37. On the basis of the above referred decisions of the Supreme Court a Full Bench of this Court in Divisional Engineer : M.R.T. Operation City Circle, A.P.S.E.B. Board Hyderabad v. Ikram Ahmed 1979 () A.L.T. 87, observed :

'The mere denial of such an existing right by the employer does not take away the jurisdiction of the Labour Court to entertain a petition under S. 33-C(2) of the Industrial Disputes Act. While the right itself should be an existing right for enabling a workman to maintain a petition under S. 33-C(2) it is not necessary that this existing right should have been admitted by the employer. The denial of the existing right of the workman to receive money or the benefit does not oust the jurisdiction of the Labour Court to entertain a petition under S. 33-C of the Industrial Disputes Act and require the reference of the Industrial Dispute raised for adjudication under S. 10 of the Act. The denial of this right would only require the Labour Court to enquire into the fact whether the right is existing. The Labour Court, has jurisdiction to decide and determine this jurisdictional fact. The enquiry under S. 33-C(2) in such cases would have to be preceded by an enquiry into the existence of the right and such an inquiry is incidental to the main determination which has been assigned to the Labour Court by sub-s. (2) It cannot, by an order under S. 33-C(2) however, create a new right........'

38. These observations were referred to with approval in a subsequent Full Bench judgment of this Court in Anand Oil Industries v. Labour Court, Hyderabad.

39. On the basis of the legal position emerging from the various decisions of the Supreme Court as well as of this Court we have to decide whether mere denial by the employer of the right of the employee to the wages ousts the jurisdiction of the Labour Court. It is an admitted fact that during the period 19th December, 1970 to 11th October, 1973 there was no order of suspension pending enquiry against the workman nor was any order of termination passed against him. It was casually stated that the employee abandoned the service on the date of accident and did not report for duty thereafter. This plea appears to have been taken for objection sake only. The Labour Court rejected the plea as one without substance. Thus the relationship of employer and employee continued between the appellant and the first respondent during the said period. There was also no denial by the employer of the fact that the appellant was entitled to the wages for the said period if he continued to be an employee of the first respondent. In such a case, if there was denial by the employer of the right of an employee to receive wages which he was entitled to under a statute, by such mere denial the jurisdiction of the Labour Court to enquire into the matter will not be excluded. What all the Labour Court to enquire into the matter will not be excluded. What all the Labour Court had to do in such a situation was to enquire into the question whether the workman had an existing right to wages or not. In the instant case the Labour Court did only that and had rightly enquired into the jurisdictional fact as to the existence of the workman's right to claim wages and thereafter held that the appellant as an employee of the first respondent was entitled to the wages claimed by him from 19th December, 1970 to 11th October, 1973. In such a case we do not find substance in the contention of the learned counsel for the appellant that the Labour Court exceeded its jurisdiction.

40. A further arguments was advanced on behalf of the first respondent placing reliance on a decision of this Court in Divisional Superintendent South Central Railway, Secunderabad v. Labour Court, Hyderabad 1983 (2) An. W.R. page 244, that after seizure of the driving licence of the appellant by the police, the first respondent, under law, could not avail his services as a driver and as such his claim for wages was not maintainable. We are not able to understand as to how the seizure of the driving licence by the police would bring about a cessation of relationship of employer-employee between the first respondent and the appellant. By the mere fact that a workman was unable for a certain period to discharge the duties of particular nature does not made him any the less an employee of his master. The relationship of employer and employee does not depend upon the nature of duties performed by an employee. Thus the plea of denial has nothing to do with the status of the appellant as an employee :

41. For the reasons stated above, we hold that neither the provisions of the Payment of Wages Act nor the mere denial by the management of the right of a workman to receive money ousted the jurisdiction of the Labour Court under S. 33-C(2) of the Industrial Disputes Act. The Labour Court has decided the matter in accordance with law and its order is not vitiated by any error of law. The judgment of the learned single Judge is therefore, set aside and the order of the Labour Court is confirmed.

42. The Writ Appeal is accordingly allowed with costs, Advocate's fee Rs. 250/-.

43. The learned counsel for the first respondent makes an oral application for leave to appeal to the Supreme Court. In our opinion, no substantial question of law of general importance which requires to be considered by the Supreme Court arises in this case. The oral request is, therefore, rejected.


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