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The Upper India Coupar Paper Mills Co. Ltd. Vs. J.C. Mathur - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 3 of 1955
Judge
Reported inAIR1959All664
ActsIndustrial Disputes Act, 1947 - Sections 2(S); Payment of Wages Act, 1936 - Sections 15, 17 and 22
AppellantThe Upper India Coupar Paper Mills Co. Ltd.
RespondentJ.C. Mathur
Appellant AdvocateNaimatullah, ;M.M. Gaur and ;Inayatullah, Advs.
Respondent AdvocateSuraj Sahai, Adv. (field memo)
DispositionAppeal dismissed
Excerpt:
(i) labour and industrial - workmen - section 2(s) of industrial disputes act, 1947 - person employed to do any skilled or unskilled manual work or some clerical work - person doing supervisory work including written work is not a workman under section 2(s). (ii) payment of wages - salary - deductions - section 15 of payment of wages act, 1936 - deficiency caused in payment of wages partially or wholly - withhold of entire salary is case of delayed wages and not deduction - application is not maintainable. - - 9. the case of the defendant on the above point finds strong support from the plaintiff's own witness. he also admitted that like him the defendant also was not required to take any token. 1, must be held to be inapplicable to the defendant, as the award itself clearly indicates.....nasirullah beg, j. 1. this is a plaintiffs first appeal. the suit out of which this appeal has arisen was filed by the upper india couper paper mills co. ltd., which is a company carrying on the business of manufacturing paper. the defendant in the suit was sri j. g. mathur, an employee of the company. the prayer in the plaint was that a decree for perpetual injunction be passed against the defendant restraining him from claiming or recovering any salary, wages etc., from the plaintiff company for the period commencing from the 19th day of october, 1948, by getting any coercive process issued against the plaintiff company for toe realisation of any amount on account of such salary or wages as aforesaid, or otherwise. the plaintiff also prayed that costs of the suit or any other relief.....
Judgment:

Nasirullah Beg, J.

1. This is a plaintiffs first appeal. The suit out of which this appeal has arisen was filed by the Upper India Couper Paper Mills Co. Ltd., which is a company carrying on the business of manufacturing paper. The defendant in the suit was Sri J. G. Mathur, an employee of the company. The prayer in the plaint was that a decree for perpetual injunction be passed against the defendant restraining him from claiming or recovering any salary, wages etc., from the plaintiff company for the period commencing from the 19th day of October, 1948, by getting any coercive process issued against the plaintiff company for toe realisation of any amount on account of such salary or wages as aforesaid, or otherwise. The plaintiff also prayed that costs of the suit or any other relief that the. Court might consider just and proper might be awarded to the plaintiff company.

2. The background of facts which are not disputed by the parties and which have given rise to the present suit may be briefly stated at the outset. In the year 1948 the defendant was an employee of the 'plaintiff. At the relevant time the defendant was working as a shift foreman in the Soda Recovery Plant of the plaintiff company. On the 17th October, 1948, consequent on the breakdown of the turbine of the mill the plaintiff company declared what is termed as 'play off'.

This 'play off was to take effect from the 19th October, 1948. It may be mentioned that the term ''play off' is erroneous, and the correct term is 'lay off'. In the subsequent portion of the judgment, therefore, the term 'lay off will be used in place of the expression 'play off'. The plaintiffs case was that as a legal consequence of She said 'lay off' declared by the company, the defendant should be deemed in law to be unemployed and hence not entitled to any salary or wages.

The 'lay off' declared by the plaintiff company led to an industrial dispute between the employers on the one hand and the employees on the other hand about the right of the latter to claim wages after the date of the order of 'lay off'.

This dispute was referred by the Government authorities concerned for adjudication under the provisions of the Industrial Disputes Act. The adjudicator appointed by the Government gave his award, which was enforced by the Government of Uttar Pradesh by their notification dated the 25th May, 1949.

This award is Ex. 1. According to this award the employees of the company were not entitled to payment of any salary or wages from the date when the 'lay off' order came into effect. The defendant, according to the plaintiffs case, was bound by the said award. In spite of the said award, however, the defendant gave an application dated 3rd January, 1950, to the City Magistrate, Lucknow, who was the authority appointed under the Payment of Wages Act (Act IV of 1936) for the recovery of his wages from the plaintiff company for the period after the 19th October, 1948, and succeeded in obtaining a direction from the said authority under section 15 of the said Act ordering the plaintiff company to pay to the defendant a total sum of Es. 7,849/4/- on account of wages and compensation etc., calculated up to the 28th December, 1950 the date of the order of the afore-mentioned authority.

On an appeal being preferred by the plaintiff company to the District Judge under section 17 of the Payment of Wages Act the District Judge modified the said order by directing that the defendant was entitled only to wages accruing after the 1st May, 1949, as his claim prior to that date was time-barred. The District Judge accordingly reduced it to Rs. 4,273/4/- only. The plaintiff's case was that the aforesaid proceedings taken under the Payment of Wages Act were not maintainable in law, as the jurisdiction of the said authority was limited the said authority could entertain claims in respect of deducted or delayed wages only.

It could not entertain or decide cases in which the very right of the claimant to receive wages was denied by the other party. The aforesaid orders passed under the Payment of Wages Act were, therefore, ultra vires and without jurisdiction.

3. The defendant contested the suit on the ground that he was not a workman but a supervisor, that the award was not binding on him, that the 'lay off' itself was illegal and void in the eye of law, that the 'lay off' order itself was withdrawn by the company in December 1948 when the mills started working again, that subsequently with the plaintiff's permission, the defendant went to the Forest Research Institute, Dehra Dun in January 1949, that the defendant was always ready to resume his work but in spite of his requests the plaintiff did not take any work from him, and that his application under the Payment of Wages Act was maintainable and the orders passed under the said Act were not ultra vires or void. He accordingly, prayed for the dismissal of the suit with costs.

4. The trial court framed a number of issues in the case. It came to the conclusion that the order of 'lay off' passed by the plaintiff company was totally void and inoperative so far as the defendant was concerned, that the defendant was not a workman nor an operative, that the award was not binding on the defendant as it decided only the case of workmen and not of the supervisory staff to which the defendant belonged that the proceedings under the Payment of Wages Act were maintainable and intra vires and that the present suit was barred by sections 17 and 22 of the Payment of Wages Act. As a result of the aforesaid findings, it dismissed the plaintiff's suit with costs.

5. Dissatisfied with the judgment and decree of the trial Count, the plaintiff has filed this appeal in the High Court.

6. Having heard learned Counsel for the parties at length, I am of opinion that this appeal should be dismissed.

7. The learned Counsel appearing for the appellant has advanced two arguments before me. The first argument advanced by him was that the award was binding on the defendant. The second argument advanced by him was that the proceedings under the Payment of Wages Act were without jurisdiction.

8. On the first point his argument was that the award was binding on the defendant, as the defendant was a workman. If the defendant is held to be a workman, then, the award would no doubt be binding on him. I am, however, quite clear in my mind that the evidence on record establishes beyond doubt that the defendant is not a workman. 'Workman' is defined in section 2(s) of 'the Industrial Disputes Act, 1947, (Act' XIV of 1947);--

'Workman' means any person employed (including an apprentice) in any industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purpose of any proceedings under this Act in relation to an industrial dispute a workman discharged during that dispute, but does not include any person employed in the naval, military or air service of the Government.'

The above definition shows that in order to be a workman it is necessary that a person should be employed to do any skilled or unskilled manual work, or some clerical work. The evidence in the present case indicates that the defendant was not employed to do any manual work, whether of skilled or unskilled character, nor was he employed to do any clerical work. In his evidence, the defendant J. C. Marthur has stated as D.W. 2 that he was occupying the post of a shift foreman of the Soda Recovery Plant on the date of the order of 'lay off'.

In that capacity his duty was to supervise the work of a number of workmen. No manual or clerical work was entrusted to him. He used to work under the direction of Sri M. L. Bhargava, process engineer. aS a supervisor he was given 30 days privilege leave in a year and was also as such, entitled to the membership of the provident fund. On the other hand, workmen used to get only ten days' leave in a year, and were not entitled to the benefit of the provident fund prior to 1948. As belonging to the supervisory staff, he was not required to take a token. Only workmen were given tokens.

The attendance register of the supervisory staff was separate from that of workmen. His attendance was noted in the register of supervisors, He had given an application to the Regional Conciliation Officer. In that application the plaintiff company itself had objected that the defendant was not a workman and therefore the Regional Conciliation Officer had no jurisdiction. The Regional Conciliation Officer allowed the objection of the plaintiff that the defendant was not a workman and hence his case was not decided by the Regional Conciliation Officer.

In this connection the learned Counsel for the appellant invited my attention to certain statements made by the defendant in cross-examination in which he had stated that he used to prepare a written report also of the change of shifts and to make notes of the breakdown of the machinery.

He, therefore, argued that his post involved clerical work. It appears to me to be quite clear 'that this writing work referred to by the defendant in his cross-examination was merely incidental to his work as a supervisor. The main Work of the defendant was that of a supervisor. If, in that connection, he had to do some writing work, that would not, in my opinion, have the effect of converting him into a clerk.

9. The case of the defendant on the above point finds strong support from the plaintiff's own witness. Sri Batuk Nath Shukla (P.W. 3), who is the factory manager of the plaintiff company and who admitted in cross-examination that the defendant was a shift foreman, that as such he used to supervise the work of labourers, that there was a separate attendance register of the supervisors maintained in the mill, that the defendant's name was noted in that register, that the defendant was recorded in that register as incharge Soda Recovery Plant', that the defendant did not use to do any manual labour, -that the foremen were classified in the same list in which mechanical engineers, electrical engineers and process engineers etc. were placed and that this list was separate from the list of fitters, mechanics and other persons who belonged to the labour' class.

10. The evidence of Sri Manmohan Bhargava (P.W. 2), who is the Chief Chemist of the plaintiff company, is to the same effect. This witness stated that ordinary labourers, as the word was commonly understood, had to take a token for entering the mill. He stated that he was not required 'to take a token, as he was the Chief Chemist of She mill. He also admitted that like him the defendant also was not required to take any token.

11. In view of the above evidence, I am of opinion that it must be held that the defendant was not a workman. Further, for the same reasons it must be held that he was not an 'operative.'

12. The necessary result of the above finding is that the award of the adjudicator, namely Ex. 1, must be held to be inapplicable to the defendant, as the award itself clearly indicates that it decided only the case of workmen and not of supervisors. This would be clearly borne out by a perusal of the award (Ex. 1) in the light of Ex. A-14, a note of the Regional Conciliation Officer dated the 20th March, 1949. Ex. A-14 gave the particulars of the wages of the workers as well as of the supervisory staff. It also gave the total of the wages of both these classes of persons. A reference to the award would indicate that the adjudicator had dealt in that award with the wages of workers only and not of supervisory staff.

13. The above fact is further proved beyond doubt by the evidence of Sri P. Tewari (D.W. 1), Regional Conciliation Officer who was appointed by the Government to adjudicate' on the above mentioned dispute and who was the author of the award (Ex. I). In his statement he stated as follows:--

'This award related to a dispute between the employers and the employees of the Paper Mills. By 'employees' I mean workmen as defined in the Industrial Disputes Act, 1947. Supervisors are not covered by the definition of workmen as given in that Act. My award does not relate to supervisors.'

14. The learned Counsel for the appellant relied on the fact that Karamchari Sangh of which the defendant was a member had taken up the agitation against the 'lay off' order and the proceedings of the award are, therefore, binding on the defendant. It is no doubt correct that the evidence does indicate that the Karamchari Sangh had taken up the cause of the employees and were agitating against the 'lay off' order. They might have done so because the 'lay off' order was, according to the Karmchari Sangh, wrongly passed against the supervisors also.

Form that, however, it cannot follow that every member of the Karmchari Sangh would be bound by the proceedings of the award7 even though such a member happened to be a supervisor and even though the cases of supervisors were not adjudicated upon by the adjudicator. Further, the award itself indicates that the Karmchari Sangh was not represented in the proceedings relating to the award. This conclusion also finds support from the proceedings relaling to the award itself which do not record the presence of the Karmchari Sangh or any of its representative in the array of parties represented before the adjudicator Sri P. Tewari. It finds further support from the following statement made by Sri P. Tewari with reference to supervisors:--

'As far as I remember I did not hear them at the time of adjudication as they were supervisors. If I had heard them the names of the representatives of the Karmchari Sangh would have been mentioned in the award.'

The above evidence, to my mind, clearly establishes that the defendant was a supervisor, that he was not a workman, that the award dealt with the cases of workmen only, and that therefore it cannot be held to be binding on him.

15. The above finding would necessarily lead to 'the conclusion that the 'lay off' order could not be legally directed against the supervisors, as they were neither workmen nor operatives. Standing Orders Nos. 15 to 17 indicate 'that a 'lay off' order can be passed only against an operative. As the defendant was not an operative the. 'lay off order would be absolutely void and ineffective in law, so far as he was concerned, and would not have the effect of modifying or altering his position.

If the 'lay off' order was null and void so far as the defendant was concerned, then the necessary consequence is that it should be treated nonexistent in so far as the position of the defendant was concerned and he must be deemed in law to be continuing in service. Neither the award of adjudicator, nor the passing of the 'lay off' order by the plaintiff would, therefore, have any effect on his claim for wages.

16. For the above reasons, I am of the opinion that the first contention of the learned Counsel for the appellant based on the plea that the defendant was a workman and 'that the award and the 'lay off' order were, therefore, binding on him must be overruled.

17. Coming to the second contention, namely that the application under the Payment of Wages Act, 1936, was without jurisdiction, the learned Counsel for the appellant argued that the authority concerned had no jurisdiction to entertain the application of the defendant under Section 15 of the Payment of Wages Act. In this connection he argued that an application under Section 15 can be maintainable only if it relates to the deduction from the wages or delay in payment of wages of the persons employed. The defendant's application under the Payment of Wages Act did not relate either to deducted wages or to the delayed wages, hence the said application could not be maintained. I find it difficult to accept this argument.

18. The learned Counsel for the appellant argued that deductions and the nature of deductions that can be made are specified in Sections 7 to 13 of the Payment of Wages Act, and, as the present claim did not relate to any of the aforesaid deductions, it cannot he termed a deduction within the meaning of the term as, used in Section 15 of the Payment of Wages Act. The word 'deduction' is not defined in the definition Clause of the Payment of Wages Act, and, it would, therefore, not be quite correct to confine the meaning of the word 'deduction' to cases of deductions referred to in the particular provisions of the Act,

Deductions may relate to the specific heads mentioned in the particular sections of the Act or they may be deductions resulting from other causes. They may be the result of withholding of part of the wages or of the entire amount of wages. The word 'Deductions' in Section 15 appears to be used in a wide sense so as to include the entire deficiency which the employee alleges to have been caused in the payment of wages, as a result of the withholding of the same by the employer whether partially or wholly.

It seems to me to be unreasonable to hold that the Legislature intended that where the employer withheld payment of one pie from the salary due, the application would be maintainable it being a case of deduction, but where the employer withheld the entire salary the application would not be maintainable, as it was not a case of deduction. I may mention that in a Full Bench case in Vishwanath Tukaram v. General Manager, Central Railway : (1957)IILLJ250Bom the Bombay High Court was of opinion that such a claim would be maintainable.

In this case no doubt, this specific point was not raised. The Court presumed that such a claim would be maintainable. Further, I may mention that if the present case would not fall within the category of 'deducted wages', I see no sufficient reason for not bringing it within the category of 'delayed wages'.

19. The next argument of the learned Counsel for the appellant was that the Payment of Wages Act applies only to earned income and not to potential income. In this connection he cited a large number of cases. I do not think it necessary to deal with them, as, in my opinion in the present case the income claimed by the defendant cannot be described to be potential income. The defendant's case is that the 'lay off' order did not affect him at all with the result that the relationship of the employer and 'the employee continued between him and the plaintiff and that he was ready to do the work all the time. If he remained in the employment of the plaintiff, as alleged by him, then the income must be considered to be his earned income.

20. The learned Counsel for the appellant argued that the Payment of Wages Act does not apply, unless the employee does actual work for the period for which he claims the wages. This contention, in my opinion, does not appear to be supported by the definition of the term 'wages' in the Payment of Wages Act. Section 2(vi) of the Payment of Wages Act gives the following definition of the term wages.

' 'Wages' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance good work or conduct or other behaviour of the person employed', or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include..........'

21. It is significant to note that according to the above definition, the term 'wages' includes all remuneration to which a person would be entitled if the 'terms of the contract were fulfilled. This definition does not indicate that the man must be actually working during the period. It is enough if under the terms of the contract an employee is entitled to claim the said remuneration as wages. This interpretation appears io me to be reasonable also. It may be that an employed might go on leave to which he is legitimately entitled.

Can it be then said that he cannot claim wages because he did not actually work during the period? In the present case the defendant remained in the employ of the plaintiff. He was always ready to do work and he could not be deprived of his claim for recovery of wages merely because the plaintiff did not choose to take any work from him.

21a. The next argument of the learned Counsel for the appellant was that the authority prescribed under the Payment of Wages Act had no jurisdiction to decide the defendant's application, as the case of the company before the said authority was that it had exercised its general right to terminate the services of the defendant. In this connection he argued that if the defendant was not a workman, the plaintiff who was the employer of the defendant had in the absence of any contract to the contrary a right in general law to terminate his services at any moment he liked and that the plaintiff's case before the prescribed authority was that it had, in view of the terms of the contract between the parties, duly exercised its right to terminate the defendant's services and to dismiss him.

In this connection he relied on a judgment of the Bombay High Court in A. R. Sarin v. B.C. Patil : AIR1951Bom423 in which it was held that the jurisdiction of an authority constituted under the Payment of Wages Act did not extend to determining the question whether the contract of service had been terminated by the employer.

22. A perusal, however, of the written statement filed by the company before the City Magistrate does not support the contention that the case of the company before the prescribed authority was that it had dismissed the defendant in exercise of its general right as an employer to dismiss a servant under the terms of the contract. The written statement filed by the company in that case is Ex. A-21. In paragraph 2 of the written statement it is stated as follows :

'It is denied that on 19-10-1948, the opposite-party asked the applicant to play off as alleged.'

According to the above case of the company the) company did not even order the 'lay off' of the defendant by its order of 17-10-1948. In paragraph 16 of the written statement the company stated as follows :

'That owing to a sudden and serious breakdown of the turbine, the mills of the opposite party had to close down on 30-9-1948 and it was duly notified by the opposite party that the workers and supervisors had to be played off as it was no longer possible' to work the mills. The applicant who was working as a shift foreman in the mills had also to be played off accordingly.'

All that the company alleged in [his paragraph was that it had passed an order of lay off and that the said order applied to the defendant also. It did not allege that it had dismissed the defendant or that it had discharged or removed him from service. In fact it is nowhere stated in this written statement at all that the company had discharged the defendant or dismissed or removed him from service or exercised its general right to remove the employee or that it had done so under any term of any contract. No particulars of any such order are given.

Nowhere it is stated that any such order was made by it to the knowledge of the defendant. All that it stated is that it had passed a general order of 'lay off'. In para (2) of the written statement even the application of this general order to the specific and particular case of the defendant is denied.

23. Paragraph 17 of the Standing Orders (Ex. 8 in the present case) states that the term 'played off' shall not be considered to be tantamount to dismissal from service. It further states that 'play off' only means that the employee is temporarily unemployed and would not be entitled to wages. The learned Counsel for the appellant argued that the terms 'play off' and 'dismissal' are substantially synonymous. I find it difficult to accept this contention. This contention would be negatived by the subsequent provisions of paragraph 17 of the Standing Orders mentioned above.

It would further be negatived by the provisions in the same paragraph to the effect that a per-son 'laid off' would be entitled to preference when the working of the factory is resumed. It is, therefore, quite evident that a 'lay off' order is not the same thing as the order of dismissal. It is more akin to an order of suspension.

24. The evidence adduced by the company in the proceedings under the Payment of Wages Act also was not to the effect that the defendant was dismissed. On the contrary, it was to the effect that the defendant was not dismissed but was merely under an order of 'lay off'. This would be borne out from the following passage in the judgment of the City Magistrate :

'Actually D. W. 3 Ehtisham Ali the Establishment Officer of Mills has himself stated that in the register of the Mills the applicant is still shown as an employee though under play off. This witness further admitted that the applicant had not been dismissed from his service in mills nor had his services been terminated so far.'

Thus, neither the pleadings in the case nor theevidence of the said case bear out the contention of the learned Counsel for the appellant that the company's case before the City Magistrate in the proceedings under the Payment of Wages Act was that the defendant has been dismissed or discharged bv the company in the exercise of its general or ordinary right as an employer.

An issue was no doubt framed on the question as to whether the plaintiff in that case, i.e. the defendant in the present case, was an employee of the mills since 19-10-1948, and in determining that issue the City Magistrate as well as the District judge gave their finding to the effect that the plaintiff continued to be an employee of the mill. This finding was given not because it was the company's case that it had dismissed the present defendant 'but because its case was that it had passed a 'lay off' order which applied to the defendant and as a result of which the defendants services were as it were, in a state of suspension, so that he was not entitled to wastes. The case of 'lay off' or 'play off' is obviously different from the case of dismissal.

25. The company very rightly did not take the plea of dismissal, because in fact they could not have done so. Both the conduct of the company as well as of the defendant subsequent to 19-10-1948, indicated that the defendant was not treated as a dismissed servant. On the other hand, it indicated that both the parties regarded that the relationship of employer and employee had continued! to subsist between the parties,

26. Thus, for example, when subsequently the defendant wanted to join the Research Institute, Dehra Dun, for training, he considered it necessary to apply to the plaintiff company for permission. In reply the Company did not state that no permission by it was needed, as the defendant was no longer their servant. On the other hand, their reply indicates that they accorded the permission to him thereby still treating him as their employee and servant. Ex. A-11 is the reply from the general manager, of the Upper India Couper Paper Mills Co. Ltd., to the defendant. It is dated 8-1-1949. This reply is as follows :

'With reference to your application dated the 8th instant, we have to inform you, that the undersigned has been pleased to allow you to join the Research Institute, Dehra Dun for training which please note.Yours faithfully, (Sd.) R. H. Bell. General Manage:.'

27. After joining the Research Institute for training, it appears that the defendant was sending regular reports of his work from there to the Managing Director of the plaintiff company. One of these reports is Ex. A-35. In this report the defendant has explained how his training in Dehra Dun had a bearing on the problems of the mills, and in what way it would enable him to solve the said problems and thereby be of service to the company.

28. Ex. A-34 is a letter dated 25-7-1949, sent by the defendant to the mills demanding the arrears of his salary. If the defendant was a dismissed servant, it was very easy for the company to reply to the defendant stating that he was a dismissed servant of theirs, so no question of the company giving him permission to join the Research Institute or the company paying the arrears of his salary arose. The company never gave any such reply.

29. The attendance register of the company, which is Ex. A-22 in the present case, also shows that even in the month of March 1950, the name of the defendant was recorded in the list of the employees of the mills with a note 'played off' against his name.

30. Ex. 11 dated 16-1-1941, is the contract of service entered into between the company and the defendant. This would indicate that the defendant's appointment was made by Sri R. K. Bhargava managing director of the company, acting on behalf of the mills.

31. Ex. A-3 is a letter dated 8-5-1939. to the defendant informing him 'that the managing director of the company had been pleased to appoint him as shift foreman in Soda Recovery Plant with effect from 1-11-1938, on a salary of Rs. 70-10-100 per mensem.

32. Thus both the above documents indicate that the appointing authority of the defendant was managing director. Ex. A-4, a letter dated 18-2-1947, further indicates that the defendant was granted an increment of Rs. 10/- by the managing director in lieu of the company's appreciation of the zeal and devotion with which he had served the company and performed his duties.

33. The 'lay off' order dated 17-10-1948, was passed not by the managing director Sri R. K. Bhargava, who was as pointed out above, his appointing authority, but by the general manager Sri R. H. Bell who was admittedly not his appointing authority (Vide Ex. 5). The general manager, who had passed the 'lay off' order could not, therefore, dismiss him. That may he the reason why the company did not in the proceedings under the Payment of Wages Act set up the case' that it had dismissed the defendant in exercise of its right as an employer.

34. Finally, reference may be made to Ex. 17 dated 29-3-1952, which is the formal notice given, by the plaintiff company to the defendant terminating his services with immediate effect. It is significant that this notice is given by the managing director who was the appointing authority of the defendant, and as such was also, therefore the proper authority to dismiss the defendant. Even in this notice the company did not allege that any previous order of dismissal was passed by the managing director.

The notice has referred to the previous order as the order of 'lay off' dated 19-10-1948. It is, therefore, quite clear that up to the date of the institution of proceedings under the Payment of Wages Act the company had never exercised its ordinary right as an employer or master to dismiss the employee or the servant. It could not have taken this plea in the Court of the City Magistrate and, as already observed by me above, a proper interpretation of the written statement shows that it did not actually take that plea before that authority.

For the above reasons, in my opinion it would not be correct to argue that the company's case before the authority prescribed under, the Payment of Wages Act was that the company had already dismissed the defendant by virtue o the general power of dismissal vested in it as a master or employer of the defendant, who was its employee or servant.

35. As already mentioned by me above, the learned Counsel for the appellant strongly relied on : AIR1951Bom423 in support of his contention that where the employer's case is that the employee had been dismissed by him or his services had been terminated, the authority prescribed under the Payment of Wages Act has no jurisdiction to proceed with the case. In my opinion the application of this principle of law would depend upon the pleadings of the parties in each particular case.

In the present case, the written statement filed by the company as well as the evidence adduced by it in support of the case set up by it in the written statement before the prescribed authority does not indicate that the stand taken by it was that it had dismissed the defendant. I have already pointed out that the case of dismissal of service is different from the case of lay off' or play off. At any rate, the two cases cannot be considered to be identical.

36. On the other hand, the learned counsel for the respondent relied on a subsequent case of the same High Court. This is a Full Bench case and therefore, entitled to greater weight. This case is that of : (1957)IILLJ250Bom . In this case the Full Bench of the Bombay High Court considered an examination of the pleadings of the parties necessary for the purpose of seeing how far the principle of law enunciated in : AIR1951Bom423 could be applied to that particular case.

It observed that in paragraph 5 of the written statement of the case before it the Railway authority which was the employer in that case, had merely stated that the employee was only temporarily engaged, that subsequently his name was struck off from the attendance register, and, as a result of his name being struck off from the attendance register, he could not be regarded as an employee for any length of time, and, as he was neither an employee nor could he be said to be in service for that reason he was not legally entitled to any wages. Hence the said wages could not be claimed under the Payment of Wages Act.

The written statement of the company in the present case is very analogous to the pleadings in that case. In the present case the company's case was that they had passed a 'lay off' order which applied to the defendant and as a legal consequence thereof the defendant could not be treated to be an employee and was, therefore, not entitled to any wages. In other words, the defendant had ceased to be entitled to wages not because he was dismissed or that his services were terminated by the employer but as an automatic result of a 'lay off' order issued by the employer.

The plea in both the cases was not of dismissal. The plea set up a version according to which a situation was created which did not legally amount to a dismissal of the employee but merely disentitled him to be treated in service with the result that he could not claim wages. After examining the aforesaid pleadings the Full Bench of the Bombay High Court made the following significant observations :

'In our opinion, on these pleadings the issue directly and substantially arises as to whether the employee was in the employment of the Railway authorities during the relevant period and there can be no doubt that that is in issue which the authority under the Payment of Wages Act can try and determine. It is not the case of the Railway Authorities that the services of the employee were terminated, nor have the Railway Authorities contended that he was dismissed. They have relied on the fact that automatically his name was struck off from the attendance register for the purpose of contending that he must be regarded as not being an employee during the relevant period.'

A subsequent portion of the judgment contains the following observation :

'Whether the employee was reinstated or re-employed depends upon the fact as to whether the employee continued to be employed during the relevant period. If the employee continued to be employed during the relevant period, then he was reinstated as contended by the employee. If on the other hand, he did not continue to be employed, then the employment having come to an end there was a case of re-employment as alleged by the Railway Authorities.'

The above observations clearly indicate that the Full Bench of the Bombay High Court held that authority under the Payment of Wages Act has power to determine whether the employee did or did not continue to be employed during the relevant period or in other words, whether his employment had come to an end or not by virtue of certain acts set up by the company which do not amount to acts of dismissal, discharge or termination.

37. The two issues framed by the Full Bench' and remanded to the District Judge in the last portion of the judgment also go to indicate that according to the Full Bench view such a jurisdiction is possessed by the authority under the Payment of Wages Act. The relevant portion of the judgment in this regard is as follows :

'Therefore, in our view, the learned District Judge was in error in holding that the Authority under the Payment of Wages Act had no jurisdiction to entertain the application filed by the employee. We will, therefore, set aside the order of the learned District Judge, send the matter back to him, and direct him to try the following issues :

(1) Whether the employee continued to be in the employment of the Railway authorities during the relevant period, viz., 25-10-1949 to 19-10-1953?

(2) If he continued to be in employment, what are the wages, if any to which, the employee is entitled under the terms of the contract subsisting between the employee and the Railway Authorities?'

in the present case also the situation was very similar. As already observed., the company had not taken up the plea of discharge or dismissal of the defendant and the issue framed by the Authority under the Payment of Wages Act was as follows 'Is the plaintiff an employee of the mills since 19-10-1948? (Fact on Plaintiff).'

The above is merely another form of the issue whether the employee continued to be in the service of the mills since 19-10-1948, up to the date up to which he claimed his wages. Stripped of the apparent difference in phraseology the sum and substance of both the issues is the same. In my opinion, therefore, the above Full Bench case of the Bombay High Court does lend support to the contention of the learned counsel for the respondent.

38. Lastly, on behalf of the appellant it was argued that the defendant had submitted to the lay off order and had acquiesced in it and so the lav off order itself was tantamount to dismissal. I, however, find it difficult to accept this contention. It is not borne out by the evidence on the record Ex. P.W. 1/25 dated 19-10-1948, shows that the supervisors as a body had strongly protested against the 'lay off' order passed by the company. In that representation they had alleged that they were not operatives and the 'lay off' order could not apply to them.

They had further alleged that in all the previous cases whenever 'lay off' order was passed the supervisors were not affected by it, as the company had continued to pay them their wages and salary. They had, therefore, pleaded that the action of the authorities in withholding their wages was unjustified illegal and uncalled for. In this situation it cannot be contended that the defendant had submitted to the order or had acquiesced in it.

In any case no plea of dismissal by acquiescence or estoppel is to be found within the four corners of the written statement (Ex. A-21) sub-united by the company before the prescribed authority. Under the circumstances it appears to me that, in any case this argument cannot be entertained for the purposes of deciding this issue at this stage.

39. If the proceedings before the authority prescribed under the Payment of Wages Act are held to be within the jurisdiction of the said authority, then the only remedy provided under the said Act is one of appeal under Section 17 of the Payment of Wages Act. An appeal under Section 17(1) from a direction made by the prescribed authority lay to the District Court. The company did file an appeal as provided therein. Section 17(2) provides thatthe order passed in appeal would be final,

If the authorities acting under the Payment of Wages Act had jurisdiction to determine the matter, the finality of their decision cannot be challenged by a suit even though: their findings might! be wrong; The Court having jurisdiction to decide a matter may decide it rightly or wrongly whether on questions of fact or on questions of law. Where there is no inherent lack of jurisdiction in an authority and the decision of such authority is made final, the conclusions arrived at by it whether on questions of law or of fact cannot be challenged in a Court merely because they are erroneous.

Reference in this connection may be made to Brij Raj Krishna v. S. K. Shaw and Bros. : [1951]2SCR145 , Deoria Sugar Mills Ltd. v. Govt. of U. P. : (1954)IILLJ269All and Mohesh Chandra Shaha v. Abdul Ghafur AIR 1946 Cal 435. In the present case, the plaintiff has failed to make out that the prescribed authority had no jurisdiction to act in the matter. Section 22 of the Payment of Wages Act provides that no Court shall entertain arry suit in respect of a matter which formed the subject of an application under the Payment of Wages Act as provided in that section.

The decision of the prescribed authority must, therefore, be treated to be final under Section 17, and this suit is not maintainable under Section 22 of the Payment of Wages Act. The present suit would, therefore, be barred and will have to be dismissed on that ground.

40. For the above reasons. I am of opinion that there is no substance in this appeal. I accordingly, dismiss it with costs.


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