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Factory Manager, Udaipur Mineral Development Syndicate Pvt. Ltd. Vs. M.P. Dave and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Writ Petition No. 285 of 1978
Judge
Reported in1980WLN(UC)226
AppellantFactory Manager, Udaipur Mineral Development Syndicate Pvt. Ltd.
RespondentM.P. Dave and anr.
DispositionPetition dismissed
Cases ReferredPayment of Wages Inspector v. Surajmal Mehta (supra). Applying
Excerpt:
.....payable under award of labour court--limitation commences fun date of publication of award--award made on 27-12-76- held, application filed within 12 months is not time barred.;the application which was moved by the respondent workman, was for the recovery of the wages as defined in clause (a) of sub-section (vi) of section 2 of the act, i.e., remuneration payable under the award of the labour court. the period of limitation for moving the application commenced from the date of the publication of the award. in the present case the award was made by the labour court on 27th february, 1976 and the application under section 15(2) of the act was filed on 4th october, 1976, i.e. before the expiry of the period of twelve months. the said application cannot be held to be barred by..........the employer to pay a sum of rs. 3,000/- by way of compensation to the respondent workman. the aforesaid award was challenged by the respondent-workman before this court in civil writ petition no. 1768 of 1970 and a learned single judge of this court, by his judgment dated 9th july, 1971, set aside that part of the award, whereby the labour court had refused to order reinstatement of the respondent-workman in service, and the learned single judge held that the respondent-workman is entitled to be reinstated in service and he directed the labour court to amend his award accordingly. the employer filed an appeal against the aforesaid judgment of the learned single judge and the said special appeal was dismissed by a division bench of this court, by its judgment dated 14th march, 1975,.....
Judgment:

S.C. Agarwal, J.

1. This writ petition filed under Article 226 of the Constitution of India is directed against the order dated 30th September, 1977, passed by the Authority under the Payment of Wages Act, 1956 (hereinafter referred to as 'the Authority'), in case No. 219 of 1976, arising out of an application filed by Shri M.P. Dave, respondent No. 1 (hereinafter referred to as 'the respondent workman'), under Section 15(2) of the Payment of Wages Act, 1936 (hereinafter referred to as 'the Act').

2. The respondent-workman was employed as a Mechanic with M/s Udaipur Mineral Development Syndicate Private Limited, Bhilwara (hereinafter referred to as 'the employer'). By order dated 26th July, 1966 the employer terminated the services of the respondent-workmen. The aforesaid order of termination of the services of the respondent-workman gave rise to an industrial dispute which was referred for adjudication to the Labour Court and the Labour Court in its Award dated 7th February, 1970 held that the services of the respondent-workman had been terminated in contravention of the provisions of Section 25F of the Industrial Disputes Act, 1947, but refused to order reinstatement of the reap indent workman in service and directed the employer to pay a sum of Rs. 3,000/- by way of compensation to the respondent workman. The aforesaid Award was challenged by the respondent-workman before this Court In Civil Writ Petition No. 1768 of 1970 and a learned Single Judge of this Court, by his judgment dated 9th July, 1971, set aside that part of the award, whereby the Labour Court had refused to order reinstatement of the respondent-workman in service, and the learned Single Judge held that the respondent-workman is entitled to be reinstated in service and he directed the Labour Court to amend his award accordingly. The employer filed an appeal against the aforesaid judgment of the learned Single Judge and the said special appeal was dismissed by a Division Bench of this Court, by its judgment dated 14th March, 1975, which is reported in 1975 RLW 131. Thereafter the Labour Court passed the order dated 27th February, 1976, whereby it amended its award and directed that the respondent-workman was entitled to reinstatement with continuity of service and to recover his full wages for the period between the date of retrenchment from July 26, 1966 & the date of his reinstatement. It appears that the employer did not pay the wages to the respondent-workman in accordance with the amended Award dated 27th February, 1976 and on 4th October, 1976, the respondent-workman filed on application before the Authority under Section 16(2) of the Act for the recovery of Rs. 90,635.40 on account of wages for the period from 27th July, 1966 to 30th May, 1976, and also for leave pay, bonus, house-rent allowance etc. The aforesaid application of the respondent workman was contested by the employer, who filed a reply on 27th July 1976, wherein it raised certain pleas with regard to the jurisdiction of the Authority to entertain the said application as well as the plea that the Bald application was barred by limitation. The Authority, by its order dated 30th September, 1977 rejected the aforesaid pleas raised by the petitioner with regard to the jurisdiction of the Authority to entertain the application of the respondent-workman and also with regard to the said application being barred by limitation. The Authority held that the respondent workman is entitled to payment of rupees 66,000/- on account of wages due to him. The Authority rejected the claim of the respondent workman with regard to bonus, leave-pay etc. The Authority, by its order dated 30th September, 1977 directed the employer to pay a sum of Rs. 66,000/- to the respondent workman. Being aggrieved by the aforesaid order passed by the Authority, the petitioner has filed this writ petition wherein It has prayed that a writ in the nature of certiorari be issued to quash the order dated 30th September, 1977 passed by the Authority.

3. Before dealing with the contention urged by Shri H.N. Parekh the learned Counsel for the petitioner, it is necessary to deal with the preliminary objection raised by Shri M. Mridul, the learned Counsel for the respondent-workman, with regard to the maintainability of the writ petition. The submission of Shri Mridul is that an alternative remedy of an appeal has been provided under Section 17 of the Act, and that it is not open to the petitioner to move this Court without having recourse to the laid alternative remedy of appeal available to him under Section 17 of the Act. Shri Parekh, the learned Counsel for the petitioner has however, submitted that Section 17 of the Act is no bar to the maintainability of the writ petition in the present cafe in as much as in the writ petition the petitioner is raising question into the jurisdiction of the Authority to entertain the application submitted by the respondent-workman under Section 15(2) of the Act. In my view the aforesaid contention of Shri Parekh must be accepted. As the petitioner is raising the question at to the jurisdiction of the Authority to entertain the application filed the respondent workman under Section 15(2) of the Act, the alterative remedy of appeal provided under Section 17 of the Act cannot be a bar to the maintainability of the writ petition, and, therefore the preliminary objection rained by Shri Mridul is rejected.

4. As regards the merits of the case, the first contention urged by Shri Parekh the learned Counsel for the petitioner, is his application under Section 15(2) of the Act, the respondent workman was seeking to enforce the order of the Labour Court and that the remedy, which was available to the respondent-workman, was to move the Labour Court under Section 33C(1) of the Industrial Disputes Act, and that the application filed by the Petitioner under Section 15(2) of the Act before the Authority, was no maintainable. In support of his aforesaid submission, Shri Parekh has placed reliance on the decision of the Supreme Court in Payment of Wages Inspector v. Suraj Mal Mehta: : (1969)ILLJ762SC

5. In my opinion there is no merit in the aforesaid urged by Shri Parekh Section 15(2) of the Act reads as under:

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 he permission of the authority appointed under Sub-section (1), may apply to such authority for a direction under Sub-section (3):

Provided that every such application shall be presented within twelve month, from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to 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.

The expression 'wages' has been defined in Sub-section, (vi) of the Act to mean all remuneration (whether by way of salary, allowances or otherwise) 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. The aforesaid definition of wages is an inclusive definition and Clause (a) of the said subsection includes any remuneration payable under an Award, or settlement between the parties or order of a Court. Taking Into consideration Clause (a) of the definition of wages, contained in Sub-section (vi) of Section 2 of the Act, it cannot be disputed that any remuneration payable to an employee under an Award or settlement would be recoverable under Section 15(2) of the Act, in cases where the employer has failed to make the payment in pursuance of the said award or settlement. Thus Section 15(2) of the Act provides a remedy to the employee to enforce the payment of remuneration payable to him under an Award or settlement.

6. Shri Parekh has however submitted that the words' Award' and 'Settlement' contained in Clause (a) of Sub-section (vi) of Section 2 of the Act refer to arbitral award and private settlement and the award of an industrial Court under the provisions of the Industrial Disputes Act, 1917 is not included in the said expression. In my view the said contention is without any substance The Act falls in the category of industrial legislation because it has been enacted for the purple of regulating the payment of wages to certain classes of persons employed in the industry. In using the expressions 'Award' and 'Settlement' in Clause (a) of Sub-section (vi) of Section 2 of the Act the legislature must have intended to use the said expression in the sense in which they are understood in the Industrial, law i.e. awards and settlement as contemplated under the Industrial Disputes Act, 1947, In this context it may be noticed that the definition of 'wages' contained in Sub-section (vi) of Section 2 of the Act was substituted by Act No. 61 of 1957, which was enacted after the enactment of the Industrial Disputes Act, 1947. This shows that while using the expressions 'Award' and 'settlement' in Clause (a) of Sub-section (vi) of Section 2 of the Act, the Parliament was aware of the provisions with regard to awards and settlement contained in the Industrial Disputes Act, 1947 It can, therefore be reasonably inferred that the expressions 'Award' and 'settlement' used in Clause (a) of Sub-section (vi) of Section 2 of the Act are intended to include awards and settlements under the Industrial Disputes Act.

7. The definition of 'awards' as it stood prior to the enactment of the Central Act No. 68 of 1957 did not make a specific reference to remuneration payable under any award or settlement. In Md. Guastm Larry v. Mohammed Samsuddin and Anr. : (1964)IILLJ430SC , the Supreme Court was required to deal with the question whether wages fixed by the award in an industrial dispute between the employer and employees would fall within the term 'wages' as defined under Sub-section (vi) of Section 2 of the Act as it stood prior to the enactment of Act No. 68 of 1967. The Supreme Court after considering the unamended as well as the amended definition of 'wages' contained in Sub-section (vi) of Section 2 of the Act has laid down that even under the unamended definition of vages the remuneration prescribed by an award was included and that the amendment has merely clarified that was included in the unamended definition itself.

8. In Bijai Cotton Mills Ltd. V. Sub- Divisional Magistrate, Beowar and Anr.: , a Division Bench of this Court has rejected the contention that money payable under the award of the Labour Tribunal is not part of wages as defined in Section 2(vi) of the Act and that proceedings under Section 15(2) of the Act could not be taken for the recovery of the same. In that context, this Court has laid down as under:

We need not, however, pursue this matter further as, in our opinion, the matter Is placed beyond any pale of doubt by the new definition of wages by which Clause 2 (vi) has been inserted which Includes any remuneration under an award. In the Instant case, it is clear that the amount that is being claimed by the Labour Inspector on behalf of the workmen was for the remuneration payable to the workmen under an award of an Industrial Tribunal. The award of the Labour Appellate Tribunal clearly directed that the workmen of the petitioner were to receive monthly wages at a particular rate and also Allowance at a particular rate. In a sense the Labour Appellate Tribunal fixed the remuneration which it was compulsory for the petitioner to pay to its workmen on the fulfilment of the term, employment in respect of their employment. We have no doubt, in our mind that the amount which is being recovered from the petitioner falls within the definition of wages, as given in Section 2(vi) of the Payment of Wages Act after the amendment.

In view of the aforesaid decision there can be no doubt that remuneration payable under an award falls within the definition of wages as defined in Section 2(vi) of the Act and it was open to the petitioner to move an application for recovery of the same before the Authority under Section 15(2) of the Act.

9. The Question which next arises for consideration is whether the remedy provided by Section 15(2) of the Act has been taken away by Section 33C(1) of the Industrial Dispute Act, 1947. A perusal of Section 33C(1) of the Industrial Disputes Act, 1947 shows that it enables a workman to make an application to the appropriate Government for the recovery of money due to him, form an employee under a settlement or an award. But in Sub-section (1) of Section 33C it is clearly mentioned that remedy has been provided in the said Sub-section is without prejudice to any other mode of recovery. This show that the intention of the Parliament in enacting Section 33C(1) of the Industrial Disputes Act was to provide only an additional remedy to the workman, and the intention was not to take away the remedy that was available to him under Section 15(2) of the Act. Shri Parekh is not, therefore, right in his submission that after the enactment of Section 33C of the Industrial Disputes Act, the provision of Section 15(2) of the Act cannot be invoked for the purpose of enforcing the payment of any remuneration to a workman under any award or settlement between the parties.

10. In Payment of Wages Inspector V.S Surjmal Mehta (supra) on which reliance has been placed by Shri Parekh, the Supreme Court was dealing with question whether an application for recovery of compensation payable to the workman under Section 25FF of the Industrial Disputes Act, was maintainable under Section 15(2) of the Act. The Supreme Court hag laid down that such an application could not be entertained under Section 15(2) of the Act for the reasons that in order to decide such an application, the Authority under the Act would inevitably have to enter into questions arising under the proviso to Section 25FF, viz. whether there was and interruption in the employment of the workman, whether the conditions of service under the Board were any the less favourable than those under the company and whether the Board, as the new employer, had become liable to pay compensation to the workman if there was retrenchment in the future and that such an enquiry would necessarily be prolonged inquiry involving questions of fact and of law. While holding that the application for recovery of compensation under Section 25FF could not be entertained under Section 15(2) of the Act, the Supreme Court has taken care to observe that 'it may be that there may conceivably be cases of claims of compensation which are either admitted or which cannot be disputed which by reason of its falling under the definition of wages the Authority may have jurisdiction to try and determine.' The aforesaid observations show that a claim for wages may be entertained by the Authority under Section 15(2) of the Act in cases where the said claim is either admitted or the same cancel be disputed. In the present case the claim which has been made by the respondent workman in his application under Section 15(2) of the Act; and which has been allowed by the Authority by its order dated September 30, 1977 is a claim for wages which arc payable to the respondent-workman under the award dated 27th February, 1976 passed by the Labour Court. The said award had become final between the parties and the said claim of the respondent-workman could not be disputed by the petitioner, and, therefore, the application filed by the respondent-workman for the payment of wages for the period in between the date of retrenchment i.e. 26th July, 1966 till 30th September, 1976 could be entertained by the Authority.

11. In my view, therefore, the application submitted by the respondent-workman for the recovery of the amount payable to him under the award of the Labour Court was maintainable under Section 15(2) of the Act.

12. The second contention urged by Shri Parekh was that application which was filed by the respondent workman was barred by limitation in as-much as the respondent workman was seeking to recover the wages which fell due on 26th July, 1966 and that under Section 15(2) of the Act an application is to be presented within a period of twelve 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. The submission of Shri Parekh is that in this case, the wages fell due at the end of each month and the application in so far as it related to wages, which fell due prior to 4th October, 1975, was barred by limitation. In support of his aforesaid contention, Shri Parekh has placed reliance on the decision of the Supreme Court in Jai Chand Suwhnay v. Union of India: : [1970]3SCR222 , wherein the Supreme Court while dealing with the provisions contained in Article 102 of the Limitation Act, 1908, has laid down that when the order of dismissal or removal is set aside by the Court on the ground of failure to afford the constitutional protection, the order is declared invalid and ab initio void and in such a case the salary due to the public servant concerned must be deemed to have accrued month after because he had been wrongfully prevented from rendering service. Shri Parekh has submitted that in the present case, the order for retrenchment of the respondent-workman has been held to have been passed in contravention of the provisions of Section 25F of the Industrial Disputes Act, and it should be treated as void ab initio and, therefore, the salary due to the respondent-workman should be deemed to have accrued at the end of each month and the application filed by the respondent-workman with regard to the payment of wages for the period prior to 4th October, 1975, was barred by limitation. In my opinion, the aforesaid contention of Shri Parekh is without any substance In the present case the application which was moved by the respondent-workman, was for the recovery of the wages as defined in Clause (a) of Sub-section (vi) of Section 2 of the Act. i.e., remuneration payable under the award of the Labour Court. The period of limitation for moving the application commenced from the date of the publication of the award. In the present case the award was made by the Labour Court on 27th February, 1976 and the application under Section 15(2) of the Act was filed on 4th October, 1976, i.e. before the expiry of the period of twelve months. The said application cannot be held to be barred by limitation.

13. The next contention urged by the Shri Parekh was that the petitioner, in his reply to the application submitted by the respondent workman, has raised the objection that the respondent-workman was employed else where during the period for which he is claiming the wages and that he is not entitled to the full wages and that the aforesaid contention involved a disputed question of fact which could not be decided by the Authority under the Act, and, therefore, the application filed by the respondent-workman could not be entertained by the Authority. In my opinion the aforesaid contention of Shri Parekh cannot be accepted. In the first place, it was not open to the petitioner to raise the plea that the respondent-workman is not entitled to payment of full wages for the period from 26th July, 1966 till 30th October, 1976 in view of the award dated 27th February, 19(sic)76, made by the Labour Court, wherein it is declared that the respondent workmen is entitled to reinstatement with continuity of service and to recover his full wages for the period from the date of retrenchment from 26th July, 1966 till the date of his reinstatement. The aforesaid award made by the Labour Court has become final between the parties, and it is not open to the petitioner to reopen the question with regard to the quantum of wages payable to the respondent-workman before the Authority in the proceedings under Section 15(2) of the Act. Shri Parekh has placed reliance on the observations of the learned Single Judge of this Court in his judgment dated 9th July, 1971 in S.B. Civil Writ Petition No 1768 of 1979, wherein the submission of the petitioner that the respondent-workman had been serving some other employer during the the course of the irrigation, and, therefore, be was not entitled to any salary for that period, was not considered by the learned Single Judge on the view that the same should be raised by the employer at the time of payment to the employee of the salary. In view of the aforesaid observations of the Single Judge it was open to the petitioner to raise the question with regard to the liability for back wages before the Labour Court at the time of making of the award dated 27th February, 1976, but the petitioner failed to raise the said matter before the Labour Court and the Labour Court passed the order declaring that the respondent workman is entitled to reinstatement with continuity of service and to recover his full wages for the period between the date of retrenchment i.e. 26th July 1966 and the date of his reinstatement. The said award of the Labour Court having not been challenged by the petitioner, has become final between the parties and it was not open to the petitioner to agitate the said matter before the Authority under the proceedings under Section 15(2) of the Act.

14. Even if it be assumed that it is open to the petitioner to raise the plea that the respondent workman is not entitled to payment of full back wages for the reason that he was employed else where the said question, in any view, could be considered by the Authority in the exercise of the jurisdiction vested in it under Section 15(2) of the Act. In A v. D' Costa, Divisional Engineer, GIP, Railway v. BC Patel and Anr.: AIR 1956 SC 412 the Supreme Court has laid down that in the exercise of its powers under Section 15 of the Act the Authority has the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages. In Shri Ambica Mills Ltd v. Shri S.B. Bhatt and Anr. AIR 1961 SC 910, the Supreme Court has observed:

In dealing with claims arising out of deductions or delay made in payment of wages the authority inevitably would have to consider question incidental to the said matters. In determining the scope of these incidental questions care must be taken to see that under the guise of deciding incidental matters the limited jurisdiction is not unreasonably or unduly extended. Care must also be taken to see that the scope of these incidental questions is not unduly limited so as co affect or impair the limited jurisdiction conferred on the authority.

15. In the said case the Supreme Court has held that the dispute whether or not a particular employer fails within one category or another would be incidental to the decision of the main question as to what the terms of the contract are? The aforesaid principles were reiterated by the Supreme Court in its decision in Payment of Wages Inspector v. Surajmal Mehta (supra). Applying the aforesaid principles to the facts of the present case the dispute whether the employee was employed elsewhere during the period in respect of which he is claiming wages is incidental to the decision of the main question whether the employer has illegally deducted the wages of the employee.

16. More over in the present case from the order dated 30th September, 1977 passed by the Authority it appears that even though sufficient opportunity was given to him the petitioner did not adduce any evidence to prove that the respondent-workman was employed elsewhere during the period for which he was claiming the wages. In these circumstances the contention urged by Shri Parekh, that the application of the respondent-workman was not maintainable as there was dispute with regard to the quantum of wages payable, cannot be accepted.

17. Shri Parekh has also raised the contention that the application filed by the respondent-workman was not maintainable for the reason that Section 1(6) of the Act, as it stood prior to the enactment of Act No. 29 of 1976, excluded the applicability of the Act to cases where the wages payable in respect of a wage period which, over such wage period, average Rs. 4,00/- or more. The submission of Shri Parekh is that the claim of the respondent-workman related to the period from 1966 to 1976 and at the relevant time of wages payable to the respondent workman was more than Rs. 4,00/- per month and, therefore, the application filed by the respondent-workman could not be entertained. Although, the petitioner bad raised the said objection in his reply filed before the Authority, he did get an issue framed on this question and the said question has not been considered by the Authority. The petitioner, by his conduct, must, therefore, be deemed to have abandoned the said objection, and he cannot be permitted to raise the Fame In this writ petition. Even otherwise there is no merit in the said contention because prior to the filing of the petition under Section 15(2) of the Act, the provisions contained in Section 1(6) of the Act had been amended by the Central Act No. 29 of 1976, with effect from 12th November, 1975 and as a result of the aforesaid amendment the limit of Rs. 400/- contained in Section 1(6) of the Act was enhanced to Rs. 1,000/-. There is no dispute that the wages payable in the respondent-workman were less than Rs. 1,000/- per month. The jurisdiction of the Authority to entertain the application filed by the respondent-workman would be governed by the provisions of Section 1(6) of the Act as they stood on the date of filing of the application and on that date the amendment in Section 1(6) of the Act had come into force. The application of the respondent-workman could, therefore be entertained by the Authority.

18. Shri Parekh has lastly argued that the petitioner was not the employer of the respondent-workman and no order regarding the payment could be passed by the Authority against the petitioner. I find that the aforesaid objection has not been raised in the Writ Petition, & in the absence of such a pleading, the learned Counsel for the petitioner cannot be permitted to raise the same.

19. Thus none of the contentions urged by the learned Counsel for the petitioner merits acceptance. The writ petition is accordingly dismissed. But, in the facts and circumstances of the case, there will be no order as to costs.


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