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Lawrence (P.T.) and anr. Vs. Kerala State Road Transport Corporation (by Its General Manager) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1968)IILLJ460Ker
AppellantLawrence (P.T.) and anr.
RespondentKerala State Road Transport Corporation (by Its General Manager) and ors.
Cases ReferredA.D. Divekar v. A.K. Shah
Excerpt:
- - , by the employer as well as the employee, no question of unpaid wages would arise in those cases where the workers are entitled only to contractual wages. 578: clearly, the fallacy underlying this argument is that 'wages' only refer to those payments which are made obligatory upon the employer by the terms of the contract......(m.c.) 1960-ii l.l.j. 491. the question which arose in that case was whether the minimum wages payable under a notification issued under the minimum wages act which exceeded the contractual wages stipulated for as between the employee and the employer, could be regarded as wages within the meaning of the expression as defined in the payment of wages act. tarkunde, j., speaking on behalf of the division bench, held as follows as pp. 494-495:in the present case, it is not disputed that the remuneration which is claimed as minimum wages was payable to persons employed, in respect of their employment, or of work done is their employment. it is, however, disputed that the remuneration claimed by way of minimum wages satisfies the other condition, namely, that it should be payable if.....
Judgment:

V. Balakrishna Eradi, J.

1. The petitioner in Original Petition No. 2401 of 1968 is a welfare officer attached to the Central Works of the Kerala State Road Transport Corporation at Pappanamcode, Trivandrum. He had been originally recruited to Government service in the Transport Department of the Kerala State Government in the scale of Rs. 80-150 by appointment order dated 15 July 1957. There is some dispute between the parties as to the actual designation of the post in which the petitioner was so appointed, the petitioner claiming that he was appointed even initially as welfare officer, while according to the respondents the original appointment of the petitioner was in the designation 'labour inspector'. It is, however, admitted on behalf of respondent 1 that the post held by the petitioner was redesigned as welfare officer by virtue of a Government order dated 6 June 1958 and the pay-scale attached to the post was revised as Rs. 100-200 with effect from 1 April 1958.

2. By Notification No. D Dis. 4668/57/L & LAD, dated 18 December 1957, published in the Kerala Gazette, dated 31 December 1957, the Government of Kerala, in exercise of the powers conferred by Sections 49, 50 and 112 of the Factories Act, 1948, promulgated the Kerala Factories (Welfare Officers) Rules, 1957. Rule 6 of the aforesaid rules provides that the scale of pay of a welfare officer attached to a factory shall not be less than Rs. 200-10-240-E.B.-15-300. On the strength of this rule the petitioner made representations to the State Government for appropriate revision of his pay-scale, but the Government seems to have informed him that the question of revision of his pay-scale in conformity with the aforesaid rules would be taken up at the time of the general pay revision proposed to be effected in the concerned department. While so, the Kerala State Road Transport Corporation was formed on 15 March 1965 and the services of the employees functioning in the road transport wing of the Transport Department of the State Government were transferred to the control of the newly formed Corporation severing their nexus with the State Government. The petitioner, thereafter, appears to have made representations to the corporation for revision of his pay-scale in accordance with the provisions of Rule 6 of the Kerala Factories (Welfare Officers) Rules, 1957. Since he was not granted such benefit he put in a petition before the labour court, Quilon, under Section 33C(2) of the Industrial Disputes Act, 1947 praying for the determination of the benefit to which he is entitled under the Kerala Factories (Welfare Officers) Rules. This petition was dismissed by the labour court by the order evidenced by Ex. P.8, dated 4 February 1966, on the ground that the petitioner is not a workman falling within the ambit of Section 33C(2) of the Industrial Disputes Act, and, therefore, the labour court had no jurisdiction to entertain the petition filed by him under the aforesaid section. Original Petition No. 2401 of 1966 has been filed by the petitioner seeking to quash the order Ex. P. 3

3. Subsequent to the dismissal of his petition filed under Section 33C(2) of the Industrial Disputes Act, the petitioner made an application under Section 15 of the Payment of Wages Act, 1936, in the Court of the authority under the Payment of Wages Act (Kerala State), Quilon, for recovery of the difference between the wages actually paid to him and the wages which he claimed to be entitled to under the Kerala Factories (Welfare Officers) Rules, 1957, for the wage-period ending April, 1965. This application was opposed by the General Manager, Kerala State Road Transport Corporation, mainly on the ground that the petitioner's claim was not one arising from out of say deduction from the wages or delay in payment of wages and was, therefore, not maintainable under Section 15. In other words, the contention was that the jurisdiction of the authority was limited to cases where the claim was with respect to deduction from or withholding or delaying of part or whole of the wages stipulated to be paid under the contract of employment. This objection was overruled by the authority which held that the petitioner is entitled to the pay-scale of Rs. 200-300 and that in that scale he is entitled to receive a pay of Rs. 240 per mensem on a proper application of Rule 6 of the Kerala Factories (Welfare Officers) Rules, 1957. Accordingly, by order dated 28 March 1966, it directed the Kerala State Road Transport Corporation to pay to the petitioner the amount of Rs. 47 being the balance pay due to him for the period covered by the petition. It is against this order that the Kerala State Road Transport Corporation has preferred Original Petition No. 3018 of 1966, a copy of the order having been produced by them as Ex. P. 1.

4. It will be convenient to deal first with the contentions raised in Original Petition No. 3018 of 1966. But, in doing so I shall refer to the array of parties with reference to their ranking in Original Petition No. 2401 of 1966 where the petitioner is the employee and respondent 1 is the Kerala State Road Transport Corporation. The contention taken up before me by the learned Counsel appearing on behalf of the corporation is that on a proper construction of the definition section, viz., Section 2(vi) of the Payment of Wages Act defining the expression 'wages,' it is only remuneration payable to an employee by way of salary, allowances of otherwise as per the terms of employment, express or implied, that will constitute wages. In other words, the amount claimed by way of wages must be payable either under an express term of the contract of employment or under an implied term of the said contract and if it does not fall into either of the aforesaid categories it cannot be regarded as 'wages'... within the meaning of the Payment of Wages Act. The relevant portion of Section 2(vi) is in the following terms:

(vi) 'wages' means all remuneration (whether by way of salary, allowance of otherwise) expressed in terms of money or capable of being so expressed in terms of money or capable of being so expressed which would if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and includes-

(a) any remuneration payable under any award or settlement between the parties or order of a court:

(b) any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period;

(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);

(d) any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions, but does not provide for the time within which the payment is to be made;

(e) any sum to which the person employed is entitled under any scheme framed under any law for the time being in force; * * *

5. Although, prima facie, the contention put forward on behalf of the corporation looks very attractive, a close examination of the wording of the section would show that it cannot be sustained. What is mentioned in the definition section is that the remuneration, whether by way of salary, allowances or otherwise, must be payable to the person employed in respect of his employment or of work done in such employment, if the terms of employment, express or implied, were fulfilled. The fulfilment of the terms of employment referred to must obviously be by the person employed. In other words, the expression 'wages' would take in all amounts, whether by way of salary, allowances or otherwise, which would be legally payable to the employee, if the terms of employment, express or implied, are fulfilled by him, While the liability to pay must therefore be dependent on the fulfilment of the terms of employment by the employee, there is nothing in the section to warrant any further limitation that the amount must be payable under the terms of the contract, express or implied. All that the section says is that the amount should be such as would be liable to be paid to the employee only on his fulfilling the employment; but the liability to pay the amount may arise either under the contract of employment or may be imposed by statute or by any other award or decision of Court. In my view, on a proper interpretation of Section 2(vi) it is not possible to restrict the scope of the expression 'wages' merely to amounts stipulated to be paid under the terms of the contract, express or implied.

6. The point is not bereft of authority, become the identical question has come up for consideration before the Bombay High Court more than once, the latest of which is in Balaram Abaji Patil v. Ragojiwalla (M.C.) 1960-II L.L.J. 491. The question which arose in that case was whether the minimum wages payable under a notification issued under the Minimum Wages Act which exceeded the contractual wages stipulated for as between the employee and the employer, could be regarded as wages within the meaning of the expression as defined in the Payment of Wages Act. Tarkunde, J., speaking on behalf of the Division Bench, held as follows as pp. 494-495:

In the present case, it is not disputed that the remuneration which is claimed as minimum wages was payable to persons employed, in respect of their employment, or of work done is their employment. It is, however, disputed that the remuneration claimed by way of minimum wages satisfies the other condition, namely, that it should be payable if the terms of the contract of employment, express or implied, were fulfilled. Now it seems clear that the expression 'if the terms of the contract of employment, express or implied, were fulfilled' refers only to such of the terms of the contract of employment as are required to be fulfilled by the employed person. The expression has no reference to the terms of the contract which are to be fulfilled by the employer. This is obvious from the fact that, if all the terms of the contract of employment were fulfilled by both the parties to the contract, i.e., by the employer as well as the employee, no question of unpaid wages would arise in those cases where the workers are entitled only to contractual wages. IT follows that the definition of 'wages' does not confine that expression to contractual wages. The definition does not define the 'wages' as the remuneration which is payable to the employed person under the terms of the contract of employment, express or implied, but defines it as all remuneration which is payable to the employed person if the latter fulfills the terms of the contract of employment, express or implied. Moreover, the definition uses the words 'all remuneration,' with the result, that, once the worker has fulfilled his part of the contract, whatever he is entitled to receive from the employer in respect of his employment or of work done in his employment amounts to wages, provided the right of the worker to the remuneration in question flows directly from the fulfilment of his part of the contract. The definition makes no reference to the origin of the employer's obligation to pay the remuneration. The obligation may arise from contract, from a binding award, or form a statute. In all such cases, if the amount which the employer is obliged to pay is an amount payable to his employee in respect of his employment or of work done in such employment, and if further the amount becomes payable in consequence of the worker having fulfilled the terms of the contract of employment, the amount is 'wages' within the definition.

A Division Bench of the same High Court consisting of Chagle, C.J., and Bhaghawati, J., had occasion to consider a similar question in the decision in V.B. Godse, Manager, Prabha Mills, Ltd. v. R.H. Naick, Inspector under the Payment of Wages Act 1958-I L.L.J. 577. Chagla, C.J., rejected the argument that only contractual claims can be made under the Payment of Wages Act and observed as follows at p. 578:

Clearly, the fallacy underlying this argument is that 'wages' only refer to those payments which are made obligatory upon the employer by the terms of the contract. If that were the intention of the legislature, the legislature would have defined wags as remuneration capable of being expressed in terms of money payable under the terms of the contract. But that is not the language used by the legislature. The legislature has advisedly used the words.

If the terms of the contract of employment, express or implied, were fulfilled. Therefore, the emphasis laid by the legislature is not upon 'the terms of the contract,' but upon what liability is imposed upon the employer to pay his employee when the contract has been fulfilled.... What the workers were claiming before the Payment of Wages Authority was what was due to them by reason of the fact that they had fulfilled their contract. It was upon the fulfilment of the contract that not only the wages and dearness allowance due to them under the contract was payable to them, but also the additional amount awarded by the industrial court ....

The same view had been previously taken by another Bench of the same High Court in A.D. Divekar v. A.K. Shah 1955-II L.L.J. 501.

7. I am in respectful agreement with the dictum laid down in the aforesaid decisions, and applying is to the facts of the present case, it has to be held that the payment of Wages Authority was right in holding that the amount claimed by the petitioner on the strength of the provision contained in Rule 6 of the Kerala Factories (Welfare Officers) Rules, 1957, constitutes 'wages' as defined in Section 2(vi) of the Act.

8. It is not seriously contended before me that the petitioner is not a welfare officer governed by Rule 6 of the Kerala Factories (Welfare Officers) Rules, 1957, nor is it argued that in the actual application of the rules any mistake has been committed by the Payment of Wages Authority. In the circumstances, the order Ex. P. 1 is not vitiated by any error of law apparent out he face of the record and is not liable to be quashed. Original Petitioner No. 3018 of 1966 is therefore dismissed. I do not, however, make any order as to costs.

9. In the light of the decision rendered by me in Original Petition No. 3018 of 1966 counsel for the petitioner Original Petitioner No. 2401 of 1956. Original Petition No. 2401 of 1966 is, therefore, dismissed. There will be no order as to costs.


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