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Ambica Mills Ltd., No. 2, Ahmedabad Vs. Second Labour Court [Master (D.L.), Presiding Officer], Ahmedabad and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application Nos. 458 and 459 of 1966
Judge
Reported in[1968(16)FLR46]; (1967)IILLJ800Guj
ActsIndustrial Disputes Act, 1947 - Sections 33C, 33C(1) and 33C(2)
AppellantAmbica Mills Ltd., No. 2, Ahmedabad
RespondentSecond Labour Court [Master (D.L.), Presiding Officer], Ahmedabad and ors.
Cases ReferredLtd. v. Rajagopalan
Excerpt:
.....such application shall be made within one year from the date on which the money became due to the workman from 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 had sufficient cause for not making the application within the said period. 33c(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, is some cases, have to be preceded by an enquiry into the existence of that right and such an enquiry must be help to be incidental to the main determination which has been assigned to the labour court by sub-section (2) .claims made under s. a case in which both these ingredients are satisfied or either..........receive from the employer any money or any benefit which is capable of being computed in terms of money, the labour court can also decide a question, as to the amount of money due or as to the amount at which such benefit should be computed. the words 'the question' occurring in the above sub-section refers to both, viz., the dispute as to the right of the workman to receive from the employer any money or any benefit which is capable of being computed in terms of money and to the dispute as to the amount of money due or the amount at which such benefit should be computed. in our opinion, the aforesaid construction placed by sri vyas on the sub-section does not give effect to the opening words of the sub-section, viz., 'where any workman is entitled to receive from the employer any money.....
Judgment:

Desai, J.

1. These petitions are filed under Art. 227 of the constitution of India. The petitioner in both the petitions is a registered company under the Companies Act and carrying on business of manufacturing cotton cloth and yarn in the City of Ahmedabad. Respondent 1 in both the petitions is presiding officer, second labour court at Ahmedabad. The other respondents to the petitions are the employees of the petitioner. Respondents 2 to 6 in Special Civil Application No. 458 of 1966 filed an Application No. 88 of 1965 under S. 33C(2) of the Industrial Disputes Act (hereinafter called the Act) alleging that there was an agreement between the Millowners' Association and the Textile Labour Association, Ahmedabad, dated June 22, 1949, in respect of the wages and scale of pay for the clerks in textile mills at Ahmedabad. The said agreement was also registered under the provisions of the Bombay Industrial Relations Act and is binding on the petitioner. The said agreement provided for a pay-scale for those employees who occupy a position higher than that of operatives and lower than that of clerks and that the scale of pay prescribed for such employees under the agreement was Rs. 40 - 3 - 70 - E.B. - 4 - 90 - 5 - 105 prior to 1 January 1960 and Rs. 50 - 3 - 80 - E.B. - 5 - 125 thereafter. The respondents were doing the work of cut-looking in the folding department and their duties consisted of cut-looking and clerical work and thus they were entitled to the adjusted wages as per the above scales of pay. The respondents contended that they had not been paid according to the adjusted basic pay from July 1, 1917 to January 31, 1964. They have been paid basic wages at the rate of Rs. 30.06 up to November 30, 1957 and at the rate of Rs. 36.56 up to December 31, 1959 and at the rate of Rs. 36.56 plus Rs. 8 from January 1, 1960 to December 31, 1961 and Rs. 36.56 plus Rs. 10 from January 1, 1962. The claim of the respondents was that they were entitled to difference in the salary from July 1, 1957 to January 31, 1964. Respondents 2 to 6 claimed in the petition that the arrears of pay be calculated and necessary certificate be issued for the recovery of the same from the petitioner as arrears of land revenue. In Special civil Application No. 459 of 1966, respondents 2 to 10 claimed the difference in the salary from April 1959 to January 31, 1964. They also claimed that the arrears of pay be calculated and necessary certificate be issued for the same as arrears of land revenue.

2. The petitioner objected to the said claim and denied the abovementioned contentions. They also contended that the claim of the applicants was barred by the provisions of the Limitation Act, by the provisions of the Payment of Wages Act and by the provisions of the Industrial Disputes Act. The petitioner also contended that such an application was not maintainable under S. 33C(2) of the Act and the labour court had no jurisdiction to hear and decide such applications. The legal objections about the maintainability under S. 33C(2) of the Act were tried as preliminary issues. Respondent 1 came to the conclusion that the application was maintainable under S. 33C(2) of the Act and the claim of the applicants for recovery of the moneys which were due to them was not barred by limitation. It is against this judgment and order of respondent 1 that these special civil applications have been filed in this court. Respondent 1 had consolidated Recovery Applications Nos. 88 and 89 of 1965 and had delivered a common judgment. In this court Special Civil Applications Nos. 458 and 459 of 1966 were heard together and common arguments were advanced and, therefore, we will dispose of both these petitions by this judgment.

3. Sri Vyas appearing for the petitioner has raised the following points for determination :

(1) That Sub-section (2) of S. 33C of the Act is not an independent section but is subordinate to Sub-section (1) of S. 33C of the Act. The applications, therefore, are to be made to appropriate Government, within a period of one year as provided for in the first proviso to sub-section (1) of S. 33C and if in the course of the hearing of that application a question as to the amount due or the money value of the benefit due is raised, the appropriate Government has to specify the labour court and that court will determine the amount due or the money value of the benefit. No independent application lay to the labour court for recovery of the amount due under Sub-section (2) of S. 33C of the Act.

(2) That while exercising the powers under Sub-section (2) of S. 33C(2) of the Act, the labour court has no jurisdiction to determine the question whether the workman is entitled to any amount, The jurisdiction of the labour court is confined only to determine the question as to the quantum of money due or the money value of the benefit. In the present case the question raised was whether the contesting employees were entitled to the amounts claimed and, therefore, respondent 1 had no jurisdiction to hear these applications.

(3) That the applications were filed for recovering the wages and the remedy was to proceed under the provisions of S. 15 of the Payment of Wages Act. The provisions of Sub-section (2) of S. 33C of the Act being of a general nature and the provisions of S. 15 of the Payment of Wages Act being the provision contained in the special Act override the provisions of Sub-section (2) of S. 30C of the Act and, therefore, the only remedy for the aggrieved workman was to make an application under S. 15 of the Payment of Wages Act and the applications under Sub-section (2) of S. 33C were not maintainable.

4. We will consider these points in the order in which they are argued. With regard to the first two points the argument of Sri Vyas is that legislature had amended S. 33C by Act 36 of 1964 called the Industrial Disputes Amendment Act, 1964. The Act was amended, submits Sri Vyas, because of the various decisions given by the Supreme Court on the interpretation of S. 33C as was worded prior to its amendment. In the case of Central Bank of India, Ltd. v. Rajagopalan [1963 - II L.L.J. 89] it was held by the Supreme Court that for the remedy under Sub-section (2) of S. 33C of the Act no limitation was provided in the Act. It was further held that provisions of S. 33C(2) of the Act were wider and covered cases which did not fall under Sub-section (1) of S. 33C of the Act and that under the provisions of Sub-section (2) of S. 33C the labour court has jurisdiction to decide not only the amount in dispute between the employer and employee but the right of the employee to recover the amount from the employer in a case where that right was challenged by the employer. The contention of Sri Vyas is that by the amendment of Act 36 of 1964, the legislature has amended the provisions of S. 33C so as to provide for the limitation for obtaining a relief under Sub-section (2) of S. 33C. According to Sri Vyas, S. 33C is in the nature of a provision for execution of a decree for the money due (sic) or the money due under Chap. V of the Act. The workman who wants to claim any money due to him under the provisions of S. 33C has to make an application within one year as provided for in first proviso to sub-section (1) and if in the course of hearing that application a question as to the amount of money due or the money value of the benefit due is raised, the appropriate Government has to specify a labour court to decide the issue and that labour court has to decide the issue regarding the money due or the money value of the benefit.

5. In order to appreciate this contention of Sri Vyas, it is necessary to refer to the provisions of S. 33C which reads after amendment as under :

'33C. Recovery of money due from an employer. - (1) where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chap. V-A, the workman himself or any other person authorized by him in writing in this behalf, or in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of money due to him, and if the appropriate 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 same 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 from 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 had 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 at 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 by the appropriate Government.

(3) For the purpose 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 appropriate Government and any amount found due by the labour court may be recovered in the manner provided for in Sub-section (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 or in respect of any number of such workman.

Explanation. - In this section 'labour court' includes any court constituted under any law relating to investigation and settlement of industrial disputes in force in any State.'

6. As far as Sub-section (1) of S. 33C is concerned by the amendment of the section the legislature has added the words

'or any other person authorized by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs.'

7. The legislature also added two provisos to the sub-section providing the limitation of one year within an application under Sub-section (1) is to be made by the worker to the appropriate Government to recover the dues from the employer. Sub-section (1) of S. 33C refers to a case where any money is due to the workman from the employer under a settlement or an award or under the provisions of Chap. V-A of the Act. The application under the sub-section therefore, can be made in a case where the amount of money due is specified and in a case when there is no dispute regarding the right to receive the same or in respect of the amount that may be due. Sub-section (2) of S. 33C covers cases in which any workman, entitled to receive any money or any benefit which is capable of being computed in terms of money, can move the labour court for determination of the question with regard to his right to receive the amount, and also for determination of the amount if any such dispute is raised by the employer. This sub-section empowers a labour court which may be specified by the appropriate Government to determine the question with regard to the right of the worker to receive the amount from the employer and also the question, if it arises, as to the amount of money due or as to the amount at which such benefit should be computed. Sub-section (1) and (2) of S. 33C of the Act as it stood before its amendment were considered and interpreted by the Supreme Court in the case of Central Bank of India, Ltd. v. Rajagopalan [1963 - II L.L.J. 89] (vide supra), wherein the following observations have been made at pp. 95-96 :

'... When Sub-section (2) of S. 33C refers to any workman entitled to receive from the employer any benefit there specified, does it not mean that he must be workmen whose right to receive the said benefit is not disputed by the employer ... Section 33C(2) takes within its purview cases of workman who claim that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers ... The claim under S. 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, is some cases, have to be preceded by an enquiry into the existence of that right and such an enquiry must be help to be incidental to the main determination which has been assigned to the labour court by Sub-section (2) ... claims made under S. 33C(1), by itself, can be only claims referable to the settlement, award or the relevant provisions of Chap. V-A. These words of limitations are not to be found in S. 33C(2) and to that extent, the scope of S. 33C(2) is undoubtedly wider than that of S. 33C(1) ... The three categories of claim mentioned in S. 33C(1) fall under S. 33C(2) and in that sense, S. 33C(2) can itself be deemed to be a kind of execution proceeding; but it is possible that claims not based on settlements, awards or made under the provisions of Chap. V-A, may also be competent under S. 33C(2).'

8. The contention of Sri Vyas, now, is that by virtue of the amended S. 33C the powers of the labour court under Sub-section (2) of S. 33C are limited to the determination of the question of the amount of money due or as to the amount at which such benefit is to be computed. According to Sri Vyas this can be done only if a reference is made to the labour court by the appropriate Government before whom the application is filed by the worker under the provisions of Sub-section (1) of S. 33C of the Act. The argument is that Sub-section (1) and (2) of S. 33C must be read together. For this interpretation Sri Vyas relies upon words.

'and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed.'

9. These words have been added in Sub-section (2) of S. 33C by the amending Act 36 of 1964. It is true that legislature has added the aforesaid words in the sub-section but the question is whether by virtue of this addition the interpretation which was put upon by the Supreme court in the case of Central Bank of India [1963 - II L.L.J. 89] (vide supra) on S. 33C(2) has been in any way affected. To invoke the provision of Sub-section (2) of S. 33C of the Act either of the two ingredients must be present. The first ingredient is that a workman must be entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money. The second ingredient is that a question must have arisen as to the amount of money due, or as to the amount at which such benefit should be computed. A case in which both these ingredients are satisfied or either of these ingredients is satisfied the labour court will have jurisdiction to determine the question. The plain reading of the sub-section connotes that the labour court has jurisdiction to decide both these ingredients. The words 'and if any' are suggestive and mean that if apart from or in addition to the question of the right to receive the amount a question also arises in respect of what is the amount due or the amount at which any benefit should be computed than such a question can be decided by the labour court By the amendment of the sub-section the jurisdiction of the labour court to decide the question in respect of the employees' right to receive the amount of money due or as to the amount at which such benefit should be computed is not taken away. Sri Vyas strongly relies upon the words 'the question may, subject to any rules that may be made under this Act, be decided by such labour court.' and argues that the only question that the labour court can decide under the provisions of this sub-section is in respect of the amount due or the amount at which such benefit should be computed. The dispute as to the right of the worker to receive the amount from the employer any money or any benefit which is capable of being computed in terms of money cannot be decided by the labour courts, submits Sri Vyas. It is not possible for us to accept this interpretation of the sub-section. In addition to the jurisdiction to decide the question as to whether the workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, the labour court can also decide a question, as to the amount of money due or as to the amount at which such benefit should be computed. The words 'the question' occurring in the above sub-section refers to both, viz., the dispute as to the right of the workman to receive from the employer any money or any benefit which is capable of being computed in terms of money and to the dispute as to the amount of money due or the amount at which such benefit should be computed. In our opinion, the aforesaid construction placed by Sri Vyas on the sub-section does not give effect to the opening words of the sub-section, viz.,

'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 such a construction cannot be accepted. The legislature has empowered the labour court to decide a dispute as to the right of the workman to receive from the employer any money or any benefit which is capable of being computed in terms of money and also has authorized the labour court to decide the question as to the amount of money due or as to the amount at which such benefit should be computed. There is nothing in the amended sub-section which restricts the jurisdiction of the labour court to decide these questions.

10. Sri Vyas next relied on the words 'be decided by such labour court as may be specified in this behalf by the appropriate Government' and argued that these words indicate that the labour court can have jurisdiction to decide the question only when an application is made by a worker under Sub-section (1) of S. 33C to the appropriate Government and the appropriate Government refers the question to the labour court. The argument, in short, was that Sub-section (2) of S. 33C is not independent of sub-section (1) of the section.

11. There is nothing in the wording of sub-section (1) or (2) of S. 33C to support such an interpretation. In Sub-section (2) of S. 33C there is no reference to Sub-section (1). The provisions of Sub-section (2) are quite independent of the provisions of sub-section (1). The provisions of Sub-section (1) can only be invoked when the right to recover and the claim to the amount is not disputed. It in any case there is a dispute, then it would be governed by the provisions of sub-section (2) of S. 33C of the Act. Sub-section (1) refers to cases where the right to receive and the amount to be received is not in dispute. There is nothing in the provisions of sub-section (1) of S. 33C which authorizes the appropriate Government to refer the dispute to the labour court for decision. For the aforesaid reasons it is not possible to accept the contention advanced by Sri Vyas that Sub-section (2) is subordinate to Sub-section (1) of S. 33C.

12. Sri Vyas then contended that the respondents in this case are not entitled to follow the remedy provided by sub-section (2) of S. 33C of the Act. The argument was that S. 33C(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 of limitation, how can, argues Sri Vyas a worker enforce his right to recover the amount under provisions of Sub-section (2) of S. 33C 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. 33C 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 to the procedure provided by the Payment of Wages Act. The legislature has not provided any limitation for the remedy under S. 33C(2) of the Act. The remedy to recover the amount due under S. 33C is an independent remedy. Therefore, the argument of Sri Vyas, that a worker cannot take an advantage of the remedy under S. 33C(2) of the Act, cannot be accepted.

13. The result is that the rule in both these civil applications is discharged with costs.


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