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K. Ramaswamy Doss Vs. A. Rama Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 333 of 1954
Judge
Reported inAIR1955Mad569; (1955)IILLJ487Mad; (1955)1MLJ534
ActsMinimum Wages Act, 1948 - Sections 20(2) and 20(3); Constitution of India - Article 226
AppellantK. Ramaswamy Doss
RespondentA. Rama Pillai and anr.
Appellant AdvocateS.K.L. Ratan, Adv.
Respondent AdvocateS. Mohan Kumaramangalam, Adv. for ;K.V. Sankaran, Adv. and ;Special Govt. Pleader
DispositionPetition dismissed
Cases ReferredDinabandhu Sahu v. Jadumoni Mangaraj
Excerpt:
.....the second proviso to section 20 clause (2) permitted the tribunal in this case to investigate the claim for a period anterior to 30-12-1952, if the applicant satisfied the authority, that is, the tribunal, that the applicant had sufficient cause for not making the application within such period, that is, the period referred to in the first proviso to section 20(2) of the act. learned counsel for the first respondent urged that the tribunal must be deemed to have condoned the delay on presentation, though it explained the reasons for its satisfaction only in the order dated 11-11-1953. 11. the enquiry into the claim was on28-10-1953. though the petitioner filed two countei statements before that date, this question that the requirements of second proviso were not satisfied with reference..........issued by the government of madras, the appropriate government, on 28-3-1952, fixing the minimum wages payable under the act to a bus conductor at rs. 30 plus dcarness allowance of rs. 10 a month.3. on 30-6-1953, the first respondent applied to the industrial tribunal as the authority appointed under section 20, clause (1) of the act claiming in all a sum of rs. 3168/-, claimed rs. 288 as the balance of wages due to him under the act and he claimed ten times that amount, rs. 2880 as compensation for the non-payment of the wages. the tribunal dismissed his claim for compensation.it held that the first respondent was entitled to a sum of rs. 306-4-0 which, the tribunal held, constituted the difference between the minimum wages payable to the first respondent between. 1-4-1952 and.....
Judgment:
ORDER

Rajagopalan, J.

1. This is an application under Article 226 of the Constitution for the issue of a writ of certiorari to set aside the order of the Industrial Tribunal, Madurai, dated 11-11-1953 passed under Section 20, Minimum Wages Act, (Act XI of 1948), hereinafter referred to as the Act.

2. The petitioner carries on a public motor transport service. Employment in public motor transport is item 11 of Part 1 of the schedule to the Act. The tribunal found that the first respondent was in the employ of the petitioner as a bus conductor between 7-11-1951 and 4-3-1953. The notification prescribed by Section 3(l)(a)(i) and Section 5 of the Act was issued by the Government of Madras, the appropriate Government, on 28-3-1952, fixing the minimum wages payable under the Act to a bus conductor at Rs. 30 plus dcarness allowance of Rs. 10 a month.

3. On 30-6-1953, the first respondent applied to the Industrial Tribunal as the authority appointed under Section 20, Clause (1) of the Act claiming in all a sum of Rs. 3168/-, claimed Rs. 288 as the balance of wages due to him under the Act and he claimed ten times that amount, Rs. 2880 as compensation for the non-payment of the wages. The Tribunal dismissed his claim for compensation.

It held that the first respondent was entitled to a sum of Rs. 306-4-0 which, the Tribunal held, constituted the difference between the minimum wages payable to the first respondent between. 1-4-1952 and 4-3-1953 at Rs. 49 a month, and the amount actually paid to him during that period by the petitioner as wages.

4. The petitioner contended that the Tribunal had no jurisdiction to award the first respondent anything more than what had accrued to him as minimum wages during the six months that preceded the presentation of the claim on 30-6-1953. Since the first respondent admittedly left the services of the petitioner on 4-3-1953 the claim, it was contended, should have been limited to the period between 30-12-1952 and 4-3-1953.

5. Section 20(2) of the Act runs;

'Where an employee is paid less than the minimum rates of wages fixed for his class of work under this Act the employee himself......... may apply to such authority for a direction under subsection (3), provided that every such application shall be presented within six months from the date on which the minimum wages became payable, provided further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.'

Sub-clause (3) of Section 20 provided for the directions to be issued by the authority in this case, the Tribunal.

6. Learned counsel for the petitioner urged that all that the first respondent himself claimed in this application dated 30-6-1953 was what was due to him under the Act for the period of six months that preceded 30-6-1953. The Tribunal treated it as a claim for the period between 1-4-1952, when the minimum wages fixed under the provisions of the Act first became payable, and 4-3-1953, when the first respondent left the services of the petitioner.

The question now is not how I should construe the application of the first respondent, but whether it furnished no basis at all for the Tribunal to hold it was a claim for the period between 1-4-1952 and 4-3-195-3. It was no doubt not easy to explain how the first respondent arrived at the figure of Rs. 288 which he obviously claimed as arrears of wages.

There was nothing in the order of the Tribunal to show that the first respondent did offer to explain. The interpretation placed by the learned counsel for the petitioner was that Rs. 288 was arrived at by multiplying 54 the minimum wages payable for the period for which the claim was made, six times and deducting its 36 which the first respondent admitted was all that had been paid to him during the six months that preceded 30-6-1953.

Learned counsel for the first respondent contended that if it was really a case of a claim for 16months at Rs. 18 a month if the period was fromApril 1952 and June 1953, a claim based on thatcalculation, breaks down. It is not a question ofarithmetical calculation now. Rs. 28S was, aspointed out before, not explained. It is true that inthe application that the first respondent filed he didnot allege that his services under the petitioner hadbeen terminated on 4-3-1953.

The application implied that he was still in the service of the petitioner. There was nothing specific in the application that the claim was limited for period of six months preceding 30-6-1953, though the first respondent averred in his petition

'the applicant estimates the value of the relief sought by him at Rs. 3168 (since he estimates that in the last preceding six months he has received not more than Rs. 36 as wages and has added ten times the excess due as compensation).'

That the first respondent claimed only Rs. 288 as balance of wages did not, of course, affect by itself the jurisdiction of the Tribunal to find out what exactly was the amount due and direct its payment under Section 20(3) of the Act.

Learned counsel for the first respondent pointed out that even the petitioner treated the claim of the first respondent as one for the period from 1-4-1952, when he contended in a supplementary affidavit filed on 29-10-1953, that the first respondent's claim was barred. That the claim was ultimately found to be erroneous and that more than what he claimed was found due to him did not conclude the question at issue, for what period did the first respondent claim minimum wages as due to him.

I am unable to hold that there was no material on record on which the Tribunal could treat the application as a claim for wages due to the first respondent for the period of his services from 1-4-1952 to 4-3-1953.

7. The first proviso to Clause (2) of Section 20 of the Act limits the period for which the claim could be made to six months computed from the date on which the minimum wages became payable. One of the contentions urged before me was that, that date should be taken as 1-4-1952, from which date the minimum wages fixed by the notification dated 28-3-1952 became payable, and that the period prescribed by the first proviso expired on 1-10-1932, and that any application presented after 1-10-1952 could come only within scope of the second proviso.

Of course, that was not the contention put forward by the learned counsel for the petitioner, I am unable to accept such a limited interpretation of the scope of the first proviso to Clause (2) of Section 20 of the. Act. Even for the employments specified in Section 3(1)(a)(i) the notification fixing the minimum wages is under Section 5 of the Act, and Section 12 provides for payment of wages at those rates after the notified date. 1 am unable to accept that the only date on which the wages became payable was 1-4-1952.

The date on which wages became payable to a given employee would obviously depend on the contract of service between that employee and his employer, and in this case, it was found that the first respondent was entitled to a monthly wage. While dates on which wages became payable from time to time were determined by the contract between the parties, the rates at which such wages were payable were regulated by the Act and the notifications issued thereunder.

That I think is the true scope of the expression, date from which minimum wages became payable' in the first proviso to Section 20 Clause (2) of the Act. Wages that became payable to the first respondent, say, on 1-5-1952, at the minimum prescribed by the Act should have been claimed under the first proviso within six months of that date. Were the first respondent's claim governed only by the first proviso, he could have claimed on 80-6 1953 only the wages that became payable to him subsequent to 30-12-1952 and not any amount that became payable to him earlier than that dale.

8. But the second proviso to Section 20 Clause (2) permitted the Tribunal in this case to investigate the claim for a period anterior to 30-12-1952, if the applicant satisfied the authority, that is, the Tribunal, that the applicant had sufficient cause for not making the application within such period, that is, the period referred to in the first proviso to Section 20(2) of the Act. The Tribunal recorded in its order.

'The petitioner has however deposed that the delay in filing the petition must be excused because he was informed that he could file the petition within six months from removal from service, I consider that in the circumstances mentioned by the petitioner delay in filing the petition should be excused.'

9. Learned counsel for the petitioner urged that the first respondent did not apply to the Tribunal to condone the delay and to extend to the first respondent the benefit of the second proviso. Neither the Act nor the rules framed thereunder prescribed that there should be any written application, to get the benefit of the second proviso. Rule 27 to which the learned counsel for the petitioner drew my attention only refers to the application contemplated by Sub-clause (2) of Section 20.

As pointed out by the Supreme Court in -- 'Dinabandhu Sahu v. Jadumoni Mangaraj', AIR 1954 S. C. 411 (A), with reference to an analogous provision, there is not even a requirement in the Act itself or in the rules framed thereunder that notice should be issued to the opposite side. The authority can act suo motu. As the Supreme Court pointed out, it is a matter between the tribunal and the applicant whether delay should be excused. They pointed out the difference between a statutory requirement of the kind in the proviso their Lordships had to consider and Section 5 of the Limitation Act.

If the authority can act suo motu in excusing the delay, there can be no Question of any written application being required to satisfy the requirements of the second proviso to Section 20(2) of the Act. I am unable, therefore, to see any substance in the contention of the learned counsel for the petitioner, that the Tribunal had no jurisdiction to excuse the delay in the absence of any written application from the first respondent.

10. The next contention of the learned counsel for the petitioner was that the Tribunal had no jurisdiction to condone the delay after admitting the application dated 30-6-1953 and the learned counsel pointed out that the tribunal purported to condone the delay only on 11-11-1953, when it issued directions under Section 20(3) of the Act. Learned counsel for the first respondent urged that the Tribunal must be deemed to have condoned the delay on presentation, though it explained the reasons for its satisfaction only in the order dated 11-11-1953.

11. The enquiry into the claim was on28-10-1953. Though the petitioner filed two countei statements before that date, this question that the requirements of second proviso were not satisfied with reference to the claim for the period anterior to 30-12-1952, was not raised by the petitioner. In the proceedings before the Tribunal, there was no issue about this, though a number of other issues were raised. It was only on 29-10-1953 that the petitioner filed yet another counter statement, wherein he pleaded.

'The present claim after a period of a year and a halt is an ill-thought of one, belated and time barred.'

No doubt it is a little difficult to hold that at any time prior to 28-10-1953 the Tribunal had occasion to apply its mind to the question whether the requirements of the second proviso had been satisfied. The explanation for delay was offered by the first respondent only on 28-10-1933, and at best the Tribunal must be deemed to have been satisfied with the explanation only on 28-10-1953, though that satisfaction was recorded by the Tribunal only in its order dated 11-11-1953.

12. The main contention on this point by the learned counsel for the petitioner was that satisfaction required by the second proviso to Section 20(2) of the Act must have been before the application was admitted. What precisely constitutes admission of an application neither the Act nor the rules framed thereunder specified. While proviso 2 to Section 20(2) of the Act refers to an application admitted the language in Clause (3) of Section 20 is ''when an application under Sub-section (2) is entertained'. Whether entertaining an application is a stage subsequent to the admission I am not called upon to decide in these proceedings. But taking the scope of both Clauses (2) and (3) of Section 20 together, it seems to me clear that the admission of an application is a stage antecedent to the issue of notices proscribed by Sub-clause (3) of Section 20. There was certainly no satisfaction of the Tribunal on the basis on which it could excuse the delay before the stage of the enquiry, which would really mean that at the time of admitting the application the Tribunal was not called upon to satisfy itself. Nor did it satisfy itself then that there were sufficient causes to condone the delay.

13. Nonetheless the question now is whether the apparent defect in determining the question of fact, on which depended the jurisdiction of the tribunal to investigate the claim for the period anterior to the six months referred to by the first proviso in Section 20(2) of the Act is such that the petitioner should be given ex debito justitiac the writ of certiorari, that he asks for in this case. As I have already pointed out, the petitioner himself did not raise the question of limitation till after the enquiry was over, and even at that stage, he did not seek to make it the subject matter of an issue.

Nor apparently was any adjudication of that question sought for by the Tribunal. On the merits of the first respondent's claim it cannot be said that anything other than substantial justice was done as between the parties. Even if I am to look upon this feature of the case as one of mistaken or erroneous decision on an issue of 'jurisdictional fact' I do not think I should exercise my discretion in the circumstances of this case in favour of the issue of a writ of certiorari.

14. The petition is dismissed, but withoutcosts.


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