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The Management of Southern Roadways (P.) Limited Vs. D. Venkateswarlu Etc. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Reported in(1971)1MLJ97
AppellantThe Management of Southern Roadways (P.) Limited
RespondentD. Venkateswarlu Etc.
Cases ReferredAhmedabad v. Second Labour Court
Excerpt:
- - (4) if the authority hearing an application under this section is satisfied- (a) that the application was either malicious or vexatious, the authority may direct that a penalty not exceeding fifty rupees be paid to the employer or other person responsible for the payment of wages by the person presenting the application; (4) if the authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application. 16. section 10(1) states that the state government may, by notification, in the official gazette, make rules requiring an employer of a motor transport undertaking to provide for the drivers, conductors and line checking staff.....orderm.m. ismail, j.1. these writ petitions arise out of a common order passed by the labour court, madurai, in certain interlocutory applications filed by the petitioners herein in claim petitions preferred by the first respondent in w.p. no. 1736 of 1969 and the second respondent in each of the remaining writ petitions. all the petitioners are owners of motor transport undertakings coming within the scope of the motor transport workers act, 1961 (central act xxvii of 1961) hereinafter referred to as 'the act.' the first respondent in w.p. no. 1736 of 1969 has filed c.p. no. 287 of 1967 under section 33(c)(2) of the industrial disputes act, 1947, claiming overtime wages. the second respondent in w.p. no. 1829 of 1969 has filed c.p. no. 399 of 1966 claiming difference in wages between the.....
Judgment:
ORDER

M.M. Ismail, J.

1. These writ petitions arise out of a common order passed by the Labour Court, Madurai, in certain interlocutory applications filed by the petitioners herein in claim petitions preferred by the first respondent in W.P. No. 1736 of 1969 and the second respondent in each of the remaining writ petitions. All the petitioners are owners of motor transport undertakings coming within the scope of the Motor Transport Workers Act, 1961 (Central Act XXVII of 1961) hereinafter referred to as 'the Act.' The first respondent in W.P. No. 1736 of 1969 has filed C.P. No. 287 of 1967 under Section 33(C)(2) of the Industrial Disputes Act, 1947, claiming overtime wages. The second respondent in W.P. No. 1829 of 1969 has filed C.P. No. 399 of 1966 claiming difference in wages between the minimum wages payable to him and the wages actually paid to him. The second respondent in W.P. No. 1895 of 1969 has filed C.P. No. 240 of 1967 claiming washing allowance provided for under Section 10(2) of the Act. The second respondent in W.P. No. 1896 of 1969 has filed C.P. No. 301 of 1966 claiming overtime wages and bonus. The second respondent in W.P. No. 1897 of 1969 has filed C.P. No. 266 of 1967 claiming washing allowance and arrears of wages. The second respondent in W.P. No. 1898 of 1969 has filed C.P. No. 158 of 1967 claiming difference between the minimum wages, payable to him, and the wages actually paid ; overtime wages, arrears of wages and halting batta. The second respondent in W.P. No. 1899 of 1969 has filed C.P. No. 547 of 1966 claiming washing allowance, wages for work done on the weekly rest days, arrears of wages, bonus and wages for suspension period. The second respondent in W.P. No. 1900 of 1969 has filed C.P. No. 160 of 1967 claiming wages for work done on weekly rest days and overtime wages. The second respondent in W.P. No. 1901 of 1969 has filed C.P. No. 261 of 1967 claiming washing allowance and overtime wages. The second respondent in each of the writ petitions, W.P. Nos. 1902 of 1969, 1941 of 1969, 1942 of 1969 and 2024 of 1969 filed C. Ps. Nos. 284 of 1967, 283 of 1967, 285 of 1967 and 120 of 1968 respectively claiming overtime wages. The petitioners herein who were the respondents in the claim petitions before the Labour Court raised various objections and one such objection was that the Labour Court had no jurisdiction to enquire into the matter. The principal ground urged by the petitioners herein in support of their argument that the Labour Court had no jurisdiction was that so far as the claims to arrears of wages or difference in wages between the minimum wages and the actual wages paid to them were concerned, the workers had their remedies under the provisions contained in the Minimum Wages Act, 1948, and so as far as overtime wages and other claims were concerned, they had their remedy under the provisions contained in the Payment of Wages Act, 1936. Further, as the defence as to jurisdiction of the Labour Court was put forward, they filed interlocutory applications for determining the preliminary issue, namely, whether the Labour Court has jurisdiction or not. These interlocutory applications were disposed of by the Labour Court by an order, dated 18th, March, 1969. In the view of the Labour Court, that Court had jurisdiction to go into the various claims of the respective workmen and the availability of a remedy under the Payment of Wages Act or the Minimum Wages Act did not bar the jurisdiction of the Labour Court under Section 33(c)(2) of the Industrial Disputes Act, 1947. It is to quash these orders of the Labour Court, the present writ petitions have been filed under Article 226 of the Constitution of India praying for the issue of writs of certiorari.

2. Elaborate arguments were addressed before me by the counsel on both sides and I shall consider them in the course of this judgment. Before I deal with the arguments themselves, it is necessary to refer to the various statutory provisions against the background of which the arguments were advanced before me and preliminary objection as to jurisdiction of the Labour Court was taken before that Court.

3. In the chronological order, the first statute to which reference should be made is the Payment of Wages Act, 1936. It is necessary to refer to the genesis of this enactment. In 1926, the Government of India addressed local Governments with a view to ascertain the position with regard to the delays which occurred in the payment of wages to persons employed in industry, and the practice of imposing fines on them. The investigations revealed the existence of abuses in both directions and the material collected was placed before the Royal Commission on Labour which was appointed in 1929. The Commission collected further evidence on the subject and as a result of their examination made certain recommendations. The Government of India examined the recommendations of the Commission and ultimately brought forward the Bill which was passed as the enactment in question. This Act has been subsequently amended by the Payment of Wages (Amendment) Act, 1937 (Central Act XXII of 1937), the Payment of Wages (Amendment) Act, 1957 (Central Act LXVIII of 1957), the Payment of Wages (Amendment) Act, 1964 (Central Act LIII of 1964) and by the Madras Legislature by the Payment of Wages (Madras Amendment) Act, 1959 (Madras Act IX of 1959) and the Payment of Wages (Madras Amendment) Act, 1963 (Madras Act XX of 1963). The long title and the preamble of the Act itself shows that it was passed to regulate the payment of wages to certain classes of persons employed in industry. Sub-section (4) of Section 1 states that the Act applies in the first instance to the payment of wages to persons employed in any factory and to persons employed (otherwise than in a factory) upon any railway by a railway administration or, either directly or through a sub-contractor, by a person fulfilling a contract with a railway administration. Sub-section (5) of Section 1 is:

The State Government may, after giving three months' notice of the intention of so doing, by notification in the Official Gazette, extend the provisions of this Act or any of them to the payment of wages to any class of persons employed in any industrial establishment or in any class or group of industrial establishments:

Provided that in relation to any industrial establishment owned by the Central Government, with objects not confined to one State, no such notification shall be issued except in consultation with that Government.

4. Section 2(i) states that 'employed person' includes the legal representative of a deceased employed person. Section 2(ii) defines 'industrial establishment' and as this Act stood originally, the definition was:

'industrial establishment' means any-

(a) tramway or motor omnibus service;

(b) dock, wharf or jetty;

(c) inland vessel, mechanically propelled;

(d) mine, quarry or oil-field;

(e) plantation;

(f) workshop or other establishment in which articles are produced, adapted or manufactured, with a view to their use, transport or sale.

To this Section 2(ii), an item was added as item (g) by the Amendment Act of 1957 and that is:

(g) establishment in which any work relating to the construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water, or relating to the generation, transmission and distribution of electricity or any other form of power is being carried on.

5. Madras Act (IX of 1959) amended this definition by including the words 'or motor or other transport under taking' after the words 'omnibus service' occurring in Section 2(ii)(a) and by introducing item (h) in the following terms:

(h) establishment or undertaking which the State Government may, by notification in the Official Gazette, declare to be an industrial establishment for the purposes of this Act.

However, the Parliament itself by the Amendment Act of 1964 amended Section 2(ii) as follows:

(a) tramway service, or motor transport service engaged in carrying passengers or goods or both by road for hire or reward;

(aa) air transport service other than such service belonging to, or exclusively employed in the military, naval or air forces of the Union or the Civil Aviation Department of the Government of India;

6. Section 2(vi) defines 'wages' as follows:

'wages' means 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, 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;

but does not include-

(1) any bonus (whether under a scheme of profits sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award of settlement between the parties or order of a Court;

(2) the value of any house-accommodation, or of the supply of light, water, medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of the State Government;

(3) any contribution paid by the employer to any pension or provident fund, and the interest which may have accrued thereon;

(4) any travelling allowance or the value of any travelling concession;

(5) any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment; or

(6) any gratuity payable on the termination of employment in cases other than those specified in Sub-clause (d).

7. Section 3 of this Act deals with the responsibility for payment of wages and states that every employer shall be responsible for the payment to persons employed by him of all wages required to be paid under this Act:

Provided that, in the case of persons employed (otherwise than by a contractor)-

(a) in factories, if a person has been named as the manager of the factory under Clause (f) Sub-section (1) of Section 7 of the Factories Act, 1948 (LXIII of 1948).

(b) in industrial establishments, if there is a person responsible to the employer for the supervision and control of the industrial establishment;

(c) upon railways (otherwise than in factories), if the employer is the railway administration and the railway administration has nominated a person in this behalf for the local area concerned, the person so named, the person so responsible to the employer, or the person so nominated, as the case may be, shall also be responsible for such payment.

8. Section 4 deals with fixation of wage-periods and Section 5 prescribes time of payment of wages. Sections 7 to 13 deal with deductions from the wages. Section 14 deals with the appointment of Inspectors and their powers. Section 15 is important and it is as follows:

15. Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims.

(1) The State Government may, by notification in the Official Gazette, appoint a Presiding Officer of any Labour Court or Industrial Tribunal, constituted under the Industrial Disputes Act, 1947 (XIV of 1947) or under any corresponding law relating to the investigation and settlement of industrial disputes in force in the State or any Commissioner for Workmen's Compensation or other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages of persons employed or paid in that area, including all matters incidental to such claims.

Provided that where the State Government considers it necessary so to do, may appoint more than one authority for any specified area and may, by general or special order, provide for the distribution or allocation of work to be performed by them under this Act.

(2) 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 action his behalf, or any Inspector under this Act, or any other person acting with the 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 months 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 be 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.

(3) When any application under Sub-section (2) is entertained, the authority shall hear the applicant and the employer or other person responsible for the payment of wages under Section 3, or give them an opportunity of being heard, and, after such further inquiry (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act direct the refund to the employed person of the amount deducted or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding twenty-five rupees in the latter, and even if the amount deducted or the delayed wages are paid before the disposal of the application, direct the payment of such compensation, as the authority may think fit, not exceeding twenty-five rupees:

Provided that no direction for payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to-

(a) a bona fide error or bona fide dispute as to the amount payable to the employed person, or

(b) the occurrence of an emergency, or the existence of exceptional circumstances, such that the person responsible for the payment of the wages was unable, though exercising reasonable diligence, to make prompt payment, or

(c) the failure of the employed person to apply for or accept payment.

(4) If the authority hearing an application under this section is satisfied-

(a) that the application was either malicious or vexatious, the authority may direct that a penalty not exceeding fifty rupees be paid to the employer or other person responsible for the payment of wages by the person presenting the application; or

(b) that in any case in which compensation is directed to be paid under Sub-section (3), the applicant ought not to have been compelled to seek redress under this section, the authority may direct that a penalty not exceeding fifty rupees be paid to the State Government by the employer or other person responsible for the payment of wages.

(4-A) Where there is any dispute as to the person or persons being the legal representative or representatives of the employer or of the employed person, the decision of the authority on such dispute shall be final.

(4-B) Any inquiry under this section shall be deemed to be a judicial proceeding within the meaning of Sections 193, 219 and 228 of the Indian Penal Code (XLV of 1860).

(5) Any amount directed to be paid under this section may be recovered-

(a) if the authority is a Magistrate, by the authority as if it were a fine imposed by him as Magistrate, and

(b) if the authority is not a Magistrate, by any Magistrate to whom the authority makes application in this behalf, as if it were a fine imposed by such Magistrate.

9. Section 16 deals with single application in respect of claims from unpaid group. Section 17 deals with appeals against orders made under Section 15 and that section is as follows:

17. Appeal. - An Appeal against an order dismissing either wholly or in part an application made under Sub-section (2) of Section 15 or against a direction made under Sub-section (3) or Sub-section (4) of that section may be preferred, within thirty days of the date on which the order or direction was made, in a Presidency town before the Court of Small Causes and elsewhere before the District Court-

(a) by the employer or other person responsible for the payment of wages under Section 3, if the total sum directed to be paid by way of wages and compensation exceeds three hundred rupees or such direction has the effect of imposing on the employer or the other person a financial liability exceeding one thousand rupees; or

(b) by an employed person 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 permitted by the authority to make an application under Sub-section (2) of Section 15, if the total amount of wages claimed to have been withheld from the employed person exceeds twenty rupees or from the unpaid group to which the employed person belongs or belonged exceeds fifty rupees, or

(c) by any person directed to pay a., penalty under Sub-section (4) of Section 15.

(1-A) No appeal under Clause (a) of Sub-section (1) shall lie unless the memorandum of appeal is accompanied by a certificate by the authority to the effect that the appellant has deposited the amount payable under the direction appealed against.

(2) Save as provided in Sub-section (1), any order dismissing either wholly or in part an application made under Sub-section (2) of Section 15, or a direction made under Sub-section (3) or Sub-section (4) of that section shall be final.

(3) Where an employer prefers an appeal under this section, the authority against whose decision the appeal has been preferred may, and if so directed by the Court referred to in Sub-section (1) shall, pending the decision of the appeal, withhold payment of any sum in deposit with it.

(4) The Court referred to in Sub-section (1) may, if it thinks fit, submit any question of law for the decision of the High Court and, if it so does, shall decide the question in conformity with such decision.

10. Section 20 provides for penalty for offences constituted by contravention of the provisions of the Act and Section 22 deals with bar of suits and is as follows:

22. Bar of suits. - No Court shall entertain any suit for the recovery of wages or of any deduction from wages in so far as the sum so claimed-

(a) forms the subject of an application. under Section 15 which has been presented by the plaintiff and which is pending before the authority appointed under that section or of an appeal under Section 17; or

(b) has formed the subject of a direction under Section 15 in favour of the plaintiff; or

(c) has been adjudged, in any proceeding under Section 15, not to be owed to the plaintiff; or

(d) could have been recovered by an application under Section 15.

11. Section 23 states that any contract or agreement, whether made before or after the commencement of this Act whereby an employed person relinquishes any right conferred by this Act shall be null and void in so far as it purports to deprive him of such right.

12. The Minimum Wages Act, 1948 (Central Act XI of 1948) was passed to provide for fixing minimum rates of wages in certain employments. The employments to which this Act applies are called 'schedule employments' and they are included in the schedule to the said Act. Section 2(g) defines the expression 'schedule employment' as an employment specified in the Schedule or any process or branch of work forming part of such employment. Section 27 gives power to the appropriate Government to add to the schedule. Sections 3 and 4 deal with fixing of minimum rates of Wages and Section 5 deals with the procedure for fixing and revising minimum Wages. Sections 7, 8 and 9 are of procedural nature dealing with Advisory Board, Central Advisory Board and composition of Committees. Section 11 states how the minimum wages payable under this Act should be paid. Section 12 imposes an obligation on employer to pay the minimum wage whenever a minimum rate of wage has been fixed for the employment in question. Section 13 deals with fixing of hours for a normal working day and Section 14 deals with overtime work and overtime wages. Section 19 deals with appointment of Inspectors and Section 20 deals with claims and it is as follows:

20. Claims. - (1) The appropriate Government may, by notification in the Official Gazette, appoint any Commissioner for Workmen's Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any other officer with experience as a judge of a Civil Court or as a stipendiary Magistrate to be the Authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under Clause (b) or Clause (c) of Sub-section (1) of Section 13 or of wages at the overtime rate under Section 14, to employees, employed or paid in that area.

(2) Where an employee has any claim of the nature referred to in Sub-section (1), the employee himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, or any person acting with the 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 six months from the date on which the minimum wages or other amount 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.

(3) When any application under Sub-section (2) is entertained, the Authority shall hear the applicant and the employer, or give them an opportunity of being heard, and after such further inquiry, if any, as it may consider necessary, may, without prejudice to any other penalty to which the employer may be liable under this Act, direct-

(i) in the case of a claim arising out of payment of less than the minimum rates of wages, the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid, together with the payment of such compensation as the Authority may think fit, not exceeding ten times the amount of such excess;

(ii) in any other case, the payment of the amount due to the employee, together with the payment of such compensation as the Authority may think fit, not exceeding ten rupees, and the Authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application.

(4) If the Authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application.

(5) Any amount directed to be paid under this section may be recovered-

(a) if the Authority is a Magistrate, by the Authority as if it were a fine imposed by the Authority as a Magistrate, or

(b) if the Authority is not a Magistrate, by any Magistrate to whom the authority makes application in this behalf, as if it were a fine imposed by such Magistrate.

(6) Every direction of the Authority under this section shall be final.

(7) Every Authority appointed under Sub-section (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (V of 1908) for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such Authority shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (V of 1898).

13. Section 22-F states that notwithstanding anything contained in the Payment of Wages Act, 1936 (IV of 1936), the appropriate Government may, by notification in the Official Gazette, direct that, subject to the provisions of Sub-section (2), all or any of the provisions of the said Act shall, with such modifications, if any, as may be specified in the notification, apply to wages payable to employees in such scheduled employments as may be specified in the notification. Section 24 deals with bar of suits and it is as follows:

24. Bar of suits. - No Court shall entertain any suit for the recovery of wages in so far as the sum so claimed-

(a) forms the subject of an application under Section 20 which has been presented by or on behalf of the plaintiff, or

(b) has formed the subject of a direction under that section in favour of the plaintiff, or

(c) has been adjudged in any proceeding under that section not due to the plaintiff, or

(d) could have been recovered by an application under that section.

14. One thing that has to be noticed in this context is that the employment in public motor transport services is a scheduled employment, since it is Item 11 in Part I of the Schedule.

15. The next enactment to be noticed is The Motor Transport Workers Act, 1961. This Act more or less is a consolidating enactment and it groups in one statute the benefits available to motor transport workers and the preamble and the long title of the Act states that it is an Act to provide for the welfare of the motor transport workers and to regulate their conditions of work. Chapter II of this Act deals with the registration of motor transport undertakings and Chapter III deals with inspecting staff. Chapter IV deals with welfare and health of the employees. In this Chapter, Section 8 deals with the provision of canteen and Section 9 deals with the provision of rest-rooms.

16. Section 10(1) states that the State Government may, by notification, in the Official Gazette, make rules requiring an employer of a motor transport undertaking to provide for the drivers, conductors and line checking staff employed in that under-taking such number and type of uniforms, raincoats or other like amenities for their protection from rain or cold as may be specified in the rules. Sub-section (2) of this section states that there shall be paid to the drivers, conductors and line checking staff by the employer an allowance for washing of uniforms provided under Sub-section (1) at such rates as may be prescribed:

Provided that no such allowance shall be payable by an employer who has made at his own cost adequate arrangements for the washing of uniforms. The Madras Motor Transport Workers' Rules, 1965, in Rule 23(1) deals with details of uniforms and raincoats to be provided by the employer and Sub-Rule (2) thereof deals with the payment of washing allowance, in case the employer himself has not made adequate arrangements for the washings of the uniforms.

17. Section 11 deals with medical facilities and Section 12 deals with first aid facilities.

18. Chapter V deals with hours and limitations of employment. Section 13 deals with the normal hours of work of an adult motor transport worker, while Section 14 deals with the normal hours of work of an adolescent motor transport worker. Section 15 deals with daily intervals for rest and Section 16 deals with spread-over. Section 17 deals with split duty. Section 18 requires every employer to display a notice of hours of work. Section 19(1) states that the State Government may, by notification in the Official Gazette, make rules providing for a day of rest in every period of seven days, which shall be allowed to all motor transport workers. Sub-section (2) of this section states that notwithstanding anything contained in Sub-section (1), an employer may, in order to prevent any dislocation of a motor transport service, require a motor transport worker to work on day of rest which is not a holiday so, however, that the motor transport worker does not work for more than ten days consecutively without a holiday for a whole day intervening. Section 20 deals with compensatory day of rest and it is as follows:

20. Compensatory day of rest. - Where, as a result of any exemption granted to an employer under the provisions of this Act from the operation of Section 19, a motor transport worker is deprived of any of the days of rest to which he is entitled under that section, the motor transport worker shall be allowed within the month in which the days of rest are due to him or within two months immediately following that month, compensatory days of rest of equal number to the days of rest so lost.

19. Chapter VI deals with employment of young persons and Chapter VII deals with wages and leave. Section 25 occurring in this Chapter is important it is as follows:

25. Act IV of 1936 to apply to payment of wages to motor transport workers. -The Payment of Wages Act, 1936, as in force for the time being, shall apply to motor transport workers engaged in a motor transport undertaking as it applies to wages payable in an industrial establishment as if the said Act had been extended to the payment of wages of such motor transport workers by a notification of the State Government under Sub-section (5) of Section 1 thereof, and as if a motor transport undertaking were an industrial establishment within the meaning of the said Act.

20. Section 26 deals with extra wages for overtime. Sub-section (1) of this section is:

Where an adult motor transport worker works for more than eight hours in any day in any case referred to in the first proviso to Section 13 or where he is required to work on any day of rest under Sub-section (2) of Section 19, he shall be entitled to wages at the rate of twice his ordinary rate of Wages in respect of the overtime work or the work done on the day of rest, as the case may be.

21. Rule 31 of the Madras Motor Transport Workers' Rules, 1965, states that when any motor transport worker works for more than eight hours in any day or more than forty-eight hours in any week in any of the cases referred to in the second proviso to Section 13, he shall be entitled to wages in respect of overtime work at one and half times the ordinary rate of wages.

22. Section 27 deals with annual leave with wages and Section 28 deals with wages during the leave period.

23. Chapter VIII consisting of Sections 29 to 36 deals with penalties and procedure and Chapter IX deals with miscellaneous matters and contains Sections 37 to 40. Section 37 is as follows:

37. Effect of laws and agreements inconsistent with this Act. - (1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act:

Provided that where any such award agreement, contract of service or otherwise a motor transport worker is entitled to benefits in respect of any matter which are more favourable to him than those to which he would be entitled under this Act, the motor transport worker shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.

(2) Nothing contained in this Act shall be construed as precluding any motor transport worker from entering into an agreement with an employer for granting him rights or privileges in respect of any matter which are more favourable to him than these to which he would be entitled under this Act.

24. With reference to these statutory provisions the argument that was advanced on behalf of the petitioners in these various writ petitions was that in respect of the claim in question, the authority under the Payment of Wages Act alone is competent to determine the controversy between the parties and Section 33-C(2) of the Industrial Disputes Act, 1947, has no application. Before I deal with the details of this argument, I may straightaway mention one or two matters on which there is no controversy. Mr. M.R. Narayanaswami, learned Counsel for the petitioners in these writ petitions, stated that with regard to the claim for bonus, he is not contending that the Labour Court has no jurisdiction, under Section 33-C(2) of the Industrial Disputes Act. With reference to one other claim also, namely, washing allowance claimed by the workers under Section 10(2) of the Act, the learned Counsel conceded that the authority under the Payment of Wages Act will have no jurisdiction. Therefore, with regard to these two items of claims, learned Counsel for the petitioners admitted that the Labour Court will have jurisdiction under Section 33-C(2) of the Industrial Disputes Act, 1947. At one stage, the learned Counsel relied on the decision of the Madhya Pradesh High Court in Laxman v. Dayalal Meghji & Co. Radashahi Bidi Works Raipur and Anr. to the effect that the claims which would be competent under Section 33-C(2) before a Labour Court, besides the claims under a settlement or an award or under Chapter V-A, are those which fall under the Act of 1947 itself. However, in view of the decisions of the Supreme Court and of this Court, the learned Counsel did not persist in this negative argument. Consequently, the only other attempt that was sought to be made by the learned Counsel was to contend that the other claims would fall under Section 15 of the Payment of Wages Act, 1936, and therfore the labour Court, under Section 33-C(2) of the Industrial Disputes Act will have no jurisdiction to entertain those claims. Before I go further into the question, I shall refer to one other item of the claim which also can be disposed of immediately. That is the claim by certain workmen for wages for work done during the rest period. Mr. Narayanaswami, learned Counsel, contended that the definition of the term 'wages' in the Payment the Wages Act includes any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period and therefore the claim for wages for work done on weekly rest day will fall within the definition of the wage in the Payment of Wages Act and therefore will be within the competency of the authority under Section 15 of that Act alone and not within the competency of the Labour Court under Section 33-(C)(2) of the Industrial Disputes Act. I am unable to accept this argument also. The expression, 'holidays' used in that section does not refer to the weekly rest period. Section 19 of the Act uses the expression 'day of rest' as different from a holiday. Therefore, the claim for wages in respect of rest day cannot be a claim in respect of wages for a holiday. However, Mr. Narayanaswami pointed out to me that Section 19(2) of the Act itself is not clear as to whether the use of the expression 'rest day' is different from 'holiday' and both the expressions have been indiscriminately used. Here again, I am unable to accept this contention. One thing that can be immediately noticed is that at the time when the Payment of Wages Act was passed in 1936, the concept of rest day with reference to any statutory provision was not in existence and therefore I am unable to equate the 'holiday' occurring in the definition of 'Wages' in the Payment of Wages Act, with the expression 'rest day' occurring in Section 19(1) of the Act. From this, it will follow that with regard to these three items of claims, the authority under Section 15 of the Payment of Wage Act will have no jurisdiction and therefore the Labour Court under Section 33-C(2) of the Indu trial Disputes Act will have jurisdiction.

25. There remain the claim in respect of the other three matters only, namely, (1, overtime wages, (2, arrears of wages, and (3, difference between the minimum wage and the wage1? actually paid. With regard to these items, there can be no doubt whatever that they fall within the definition of wages occurring in Section 2(vi, of the Payment of Wages Act, 1936. Mr. N.G.R. Prasad, learned Counsel for the respondents in these writ petitions at one stage tried to argue that the difference between the minimum wages and the wages actually paid will not come within the definition of wages occurring in Section 2(vi) of the Payment of Wages Act. I am unable to accept this argument. As a matter of fact, this question has come up for consideration before a Bench of the Bombay High Court in Balaram Abaji Patil and Ragojiwalla (1960) 2 I.L.J. 491. Since I entirely agree with the reasoning and conclusion of the learned Judges in that case, if I may say so with respect, it is not necessary to give any reasons of my own and it is enough, if I extract the following head note to that decision which accurately represents the reasoning and the conclusion of the learned Judges:

It is clear from the definition of 'wages' in Section 2(vi) of the Payment of Wages Act (as it stood prior to the amendment introduced by the Act LXVII of 1957) that all remuneration would be 'wages' if the remuneration satisfied two conditions:

(1) that it should 'payable to a person, employed in respect of his employment or of work done in such employment; and

(2) it should be payable, if the terms of the contract of employment, express or implied, were fulfilled.

The expression 'if the terms of the contract of employment, express or implied, were fulfilled' has no reference to the terms of 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 '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 fulfils the terms of the contract of employment, expressed 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 from a statute. In all such cases, if the amount which the 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.

The above conclusion is reinforced by the fact that the definition of 'wages' given in Section 2(h) of the Minimum Wages Act is identical with that part of the definition of 'wages' in Section 2(vi) of the Payment of Wages Act which is under consideration in the instant case. Under the Minimum Wages Act minimum wages are undoubtedly 'wages' and in view of the identity of the definition of the term 'wages' in both the Acts, it must follow that minimum wages are also wages under the Payment of Wages Act.

Hence the amounts claimed by petitioner's workmen in their application under Section 15 of the Payment of Wages Act being the difference between the wages payable to them under the provisions of the Minimum Wages Act and the wages actually paid to them by the employer would fall within the definition of 'wages' in Section 2(vi) of the Payment of Wages Act.

26. Therefore, I proceed on the basis that these three items of claims fall within the scope of the authority under Section 15 of the Payment of Wages Act. If so, the next question for consideration is, whether, by virtue of this fact, the jurisdiction of the Labour Court is barred or taken away.

27. Mr. Narayanaswami, learned Counsel for the petitioners contended that the jurisdiction of the Labour Court under Section 33-C(2) of the Industrial Disputes Act, 1947 is barred or excluded on the following two grounds, namely, (1) that the provisions contained in the Payment of Wages Act have been incorporated in the Act by reference, by virtue of Section 25 of the Act and therefore with regard to the rights created under the Act, the Act itself has indicated the forum and the party who has derived benefits under the Act will have to move that forum only for the enforcement of his claims or realisation of the benefits; and (2) that the procedure prescribed in the Payment of Wages Act will constitute a special provision, as contracted with Section 33-C(2) of the Industrial Disputes Act, 1947, which will constitute the general provision and therefore the special excludes the general and consequently it is the authority under the Payment of Wages Act who will have jurisdiction and no other authority will have jurisdiction. Now let me examine the validity of these two submissions.

28. I have already extracted the language of Section 25 of the Act. That section does not lend support whatever to the theory of incorporation by reference. However, Mr. Narayanaswami relied on a Full Bench decision of this Court in A.M.S. Mohammed Kasim v. The Assistant Collector of Central Excise Madurai Division (1961) 2 M.L.J. 382. In that case the Full Bench had to consider the scope of Section 23-A of the Foreign Exchange Regulation Act, 1947 which was to the following effect.

Without prejudice to the provisions of Section 23 or to any other provision contained in this Act, the restrictions imposed by Sub-sections (1) and (2) of Section 8, Sub-section (1) of Section 12 and Clause (a) of Sub-section (1) of Section 13 shall be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly, except that Section 183 thereof shall have effect as if for the word 'shall' therein the word 'may' were substituted.

29. The question that came up for consideration was whether by virtue of this provision it could be contended that the provisions of the Sea Customs Act, 1878 were incorporated into Foreign Exchange Regulation Act, 1947, by reference.

30. The Full Bench after elaborately considering the question came to the conclusion:

But it seems to me to be, more accurately, an instance of the application of the provisions of another law by means of a legal fiction, not amounting to incorporation proper, as the language employed falls short of their justification for such an inference.

31. In that context, the learned Judges also observed:

We shall now turn to the precedents, and the law and practice in the United Kingdom. For it is here we see, most clearly, the evolution of those rules of construction upon which statutory incorporation has been demarcated and defined within the wider ambit of the Referential Legislation. Two forces may be here seen at work. Firstly, the incorporation proceeds by an almost rigid formula, with the exception of the single decision in Queen v. Smith L.R. (1873) 8 Q.B. 146 which we shall notice later. Either the ipsissima verba are preserved in the interpreting statute, or a Form of reference is used which admits of no ambiguity whatever. Secondly, there is a more and more marked disinclination to confuse mere reference, citation or application of the legal principle of an earlier statute, with statutory incorporation proper. As early as Ilbort's 'Legislative Methods and Forms' (1901) Edition, pages 254, 259 and 260) the learned author has pointed out the imperative necessity for distinguishing these different forms legislative reference. Incorporation proper was defined by Lord Esher, M.R., in Re Woods Estate L.R. (1886) 21 Ch. D. 607-615.

If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been said, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed, in it, and the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all.

It is thereafter the learned Judges referred to the exceptional case of Queen v. Smith L.R. (1873) 8 Q.B. 146 and stated:

That related to Section 8 of the Wine and Beer Houses Act, which provided that all the provisions of Act 9, Geo. IV, Chapter 61...'shall have the effect with regard to the grant of certificates under this Act.' The Court held that 'the form used does constructively, though not expressly, say that the appeal sections shall be incorporated'. This is the nearest case to our present facts, but, even here, the language' appears to me to be far more specific and indicative of the intention to incorporate than with regard to Section 23-A. I think that, on the contrary, an analysis of Section 23-A will definitely show that it is not a case of statutory incorporation at all. Queen v. Smith L.R. (1873) 8 Q.B. only comes into the picture to this extent; though, in every other case, we have an almost unvarying or rigid formula of incorporation, this case doe suggest that the orders of referenc6 might be more oblique but still that the same effect of incorporation might be achieved.

32. The contention of Mr. Narayanaswami is that as has been held in Queen v. Smith L.R. (1873) 8 Q.B. 146, it must be held in this case also that the form used does constructively, though not expressly, say that the provisions of the Payment of Wages Act, 1936, shall be incorporated in the Act. I am unable to accept this argument. The language of Section 25 of the Act is clear and that section is merely intended to be a substitute for the notification of the State Government under Section 1(5) of the Payment of Wages Act, 1936, and for the inclusion in the definition of the term 'industrial establishment' occurring in Section 2(ii) of the Payment of Wages Act, the Motor Transport Undertaking also. Beyond this, Section 25 of the Act cannot be construed as a statutory provision incorporating in the Act the provisions contained in the Payment of Wages Act by reference. The effect of Section 25 is that the motor transport undertaking will be an industrial establishment within the definition of that term occurring in the Payment of Wages Act, 1936, and a notification under Section 1(5) must be deemed to have been issued with reference to such an undertaking. Apart from this, Section 25 of the Act does not have any effect. Therefore, the first argument of the learned Counsel in support of his contention that the Labour Court has no jurisdiction fails.

33. As far as the second argument is concerned, it is necessary to realise one situation to which I have already drawn attention. Prior to the enactment of the Act, I have already pointed out, that the Madras Act IX of 1959 has amended the Payment of Wages Act by including 'public transport undertaking' in the definition of the industrial establishment occurring in Section 2(ii)(a) of that Act. That having been done, the State Government issued a notification under Section 1(5) of the Act in G.O.Ms. No. 4211, Industries, Labour and Co-operation (Labour), dated 1st September 1960, extending the provisions of the Payment of Wages Act to the payment of wages to all classes of persons employed in motor and other transport undertakings. Consequently, on the date when the Act was enacted which admittedly came into force in the Madras State on the 31st March, 1962, there were already provisions in the Payment of Wages Act, as in force in this State, enabling the motor transport workers to take steps under the said Act to have their grievances redressed. Therefore, from one point of view, even if Section 25 had not been in the Act, as far as the Madras State is concerned, the position would not at all have been different. With regard to the various rights conferred on the workers by the Act, the transport workers would be entitled to take proceedings under Section 15 of the Payment of Wages Act, 1936, once the provisions of that Act are attracted to the particular claim. The fact that Section 25 has been enacted in the Act does not alter the situation. The object of introducing Section 25 in the Act is that instead of making an amendment to the Payment of Wages Act itself directly, as has subsequently been done by Central Act LIII of 1964, and instead of each State Government issuing a notification under Section 1(5) of the Payment of Wages Act with reference to the respective States, this Act itself must contain the provision achieving both the results. Therefore I am of the view that as far as Madras State is concerned, the existence of Section 25 in the Act has not made any difference and from this point of view, it is not possible to contend that the Act having conferred certain rights on the workers has also indicated the forum for enforcement of those rights.

34. Apart from this, let us now examine the position, whether by enacting Section 25 in the Act, the Parliament has evinced any intention that the rights conferred on the workmen should be enforced only by the machinery provided in the Payment of Wages Act. For more than one reason, I am unable to hold that by enacting Section 25 of the Act, the Parliament has evinced an intention that the rights conferred by this Act should be enforced, by the machinery contemplated in the Payment of Wages Act. In the first place, the machinery contemplated in the Payment of Wages Act is a peculiar and a very special machinery and cannot be considered to be a normal machinery at all. Section 15 of the Payment of Wages Act enables not only the concerned worker to file an application under that Act, but also enables even the Inspector appointed under that Act or any other person acting with the permission of the authority to file an application under Section 15(2) of the Payment of Wages Act, 1936. In the second place, the obligation to pay the wages-under the Payment of Wages Act has been imposed not only on the employer but even on a manager in charge of the factory or the premises in question and that is apparent from Section 3 of the said Act. In the third place, Section 15 of the Payment of Wages Act contemplates awarding the compensation to workmen for unauthorised deductions made by the employer or the illegal delay caused by him in payment of the wages. Fourthly, Sub-section (2) of Section 15 of the Payment of Wages Act opens up by saying, '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.' Thus, the scope of Section 15 of the Payment of Wages Act is very very limited in the sense that a complaint under that section can only be on the ground that there was a deduction, not authorised by the said Act, and there had been no payment of wages in time, as contemplated by Sections 4 and 5 of the said Act. It is admitted that Sections 4 and 5 of the Payment of Wages Act prescribe fixation of wage periods and the time within which wages should be paid and delayed payment of wages contemplated by Section 15(2) of the said Act is 'delayed payment' with reference to Sections 4 and 5 of the said Act. Fifthly, no doubt there is provision for appeal under Section 17 of the aids Act. But the scope of the appeal is a very limited one. An employer can file an appeal only if the total sum directed to be paid by way of wages and compensation exceeds Rs. 300 or such direction has the effect of imposing on the employer or the other person a financial liability exceeding Rs. one thousand. In the sixth place the exclusive jurisdiction of the authority under Section 15 of the Payment of Wages Act is a very limited one, as is shown by Section 22 of the said Act which I have already extracted. It only prevents an employee, who could recover the wages under Section 15 of the Payment of Wages Act from filing a suit. But it does not prevent an employer aggrieved against an order of the authority under Section 15 of the said Act, against which no appeal is available, from filing a suit for getting rid of that order. As a matter of fact, the Supreme Court in Pabbojan Tea Co. Ltd. and Ors. v. Deputy Commissioner Lakhimpur and Ors. : (1967)IILLJ872SC , with reference to Section 24 of the Minimum Wages Act which is in pari materia with Section 22 of the Payment of Wages Act, pointed out:

It is pertinent to note that Section 24 of the Act creates an express bar in respect of a particular kind of suits, namely, suits for recovery of wages in certain eventualities. The obvious intention was that a poor employee was not to be driven to file-a suit for the payment of the deficit of his wages but he could avail himself of the machinery provided by the Act to get quick relief. It does not in terms bar the employer from instituting a suit when his claim is that he has been called upon to pay wages and compensation to persons who are not governed by the notification under the Minimum Wages Act.

35. In view of the peculiar features with reference to the provisions contained in the Payment of Wages Act, I am unable to hold that that is normal remedy open to an employee who comes within the scope of the Act. No doubt, an employee is entitled to approach the authority under Section 15 of the Payment of Wages Act and Section 22 of the said Act bars a suit in a civil Court. Consequently, if the Motor Transport Workers Act had not been passed and the workers' rights flowed only from the Minimum Wages Act, 1948, or the Payment of Wages Act, 1936, the transport workers would certainly be entitled to approach the authority under Section 15 of the Payment of Wages Act and it will not be open to them to have recourse to a civil Court for recovery of the said amount. Therefore, the question for consideration is whether the position is the same even when Section 33-C(2) of the Industrial Disputes Act is available to the employees in question.

36. I have already indicated that the arguments of Mr. M.R. Narayanaswami, except to the extent he relied on the decision of the Madhya Pradesh High Court referred to already, proceeded on the basis that the three items of claims referred to already fall within the ambit of Section 33-C(2) of the Industrial Disputes Act. His only contention is that they also fall within the ambit of Section 15 of the Payment of Wages Act, 1936, and therefore that remedy alone should be pursued and no application under Section 33-C(2) of the Industrial Disputes Act should be filed. Equally the argument of Mr. N.G.R. Prasad, the learned Counsel for the respondents is that these three items do fall within the ambit of Section 15 of the Payment of Wages Act, but the existence of Section 15 of the said Act is no bar to an application under Section 33-C(2) of the Industrial Disputes Act.

37. The next aspect to be considered is, as I have pointed out already, whether the Parliament has evinced an intention that the rights conferred by the Act should be pursued only before the authority appointed under Section 15 of the Payment of Wages Act, because of Section 25 of Act. I have already indicated one reason for coming to the conclusion that no such intention has been evinced that is, the remedy provided by Section 15 of the Payment of Wages Act is not an ordinary or normal, remedy. In this context, it is useful to refer to the decision of the Supreme Court in Payment of Wages Inspector, Ujjain v. Surajmal Metha Director Barnagar Electric Supply and Industrial Co. Ltd. and Anr (1969) 2 S.C.J. 108 : (1969) 1 L.L.J. 762. In that case the claim of the workmen was for compensation under Section 25-F of the Industrial Disputes Act and the Supreme Court had to consider the scope of the jurisdiction of the authority under the Payment of Wages Act and it held that such compensation fell within the definition of the term 'wages' in Section 2(vi)(d) of the Payment of Wages Act. Further the Supreme Court pointed out:

It must, however, be remembered that though such compensation falls within the definition of wages, cases may arise where it would not be a simple question of recovery of wages.

After referring to an earlier decision of that Court, the Supreme Court further observed:

Section 15(2) postulates that the wages payable by the person responsible for payment under Section 3 are certain and such that they cannot be disputed.

39. In that case, the Supreme Court came to the conclusion that the claim for compensation under Section 25-F of the Industrial Disputes Act, in the circumstances of that case, did not fall within the scope of Section 15(2) of the Payment of Wages Act and therefore the Labour Court had jurisdiction under Section 33-C(2) of the Industrial Disputes Act. However, the Supreme Court did not decide the question whether if the claim fell to be decided under Section 15(2) of the Payment of Wages Act, 1936, the jurisdiction of the Labour Court under Section 33-C(2) of the Industrial Disputes Act was barred or not. One other thing to be noticed in this judgment is that the Supreme Court, when it referred to 'delayed payment of wages under Section 15(2) of the Payment of Wages Act', it did refer to the fact of the payments having been delayed beyond the wage periods and the time of payment fixed under Sections 4 and 5 of the Payment of Wages Act, thereby showing that the delayed payment of wages referred to in Section 15(2) of the Payment of Wages Act is linked with Sections 4 and 5 of that enactment. Mr. Narayanswami, however, drew my attention to the decision of the Supreme Court in Town Municipal Council, Athani v. The Presiding Officer, Labour Court, Hubli and Ors. etc. (1970) S.C.J. 1. That was a case where the employees of a Town Municipal Council applied under Section 33-C(2) of the Industrial Disputes Act claiming overtime wages and wages for work done on weekly off days. The contention of the Municipal Council was that the claims had to be preferred under Section 20 of the Minimum Wages Act, 1948 and the Labour Court had no jurisdiction to go into that question.

The Supreme Court observed:

As we shall indicate hereafter, the claims made by the workmen in the applications under Section 33-C(2) of the Act could not have been made before the Labour Court under Section 20(1) of the Minimum Wages Act, so that it is not necessary for us to decide the general question of law whether an application under Section 33-C(2) of the Act can or cannot be competently entertained by a Labour Court if an application for the same relief is entertainable by the Labour Court under Section 20(1) of the Minimum Wages Act.

40. Giving reasons of the Court for holding as to why the particular claim in that case did not fall within the scope of Section 20(1) of the Minimum Wages Act, Supreme Court observed as follows:

We have mentioned these provisions of the Minimum Wages Act, because the language used at all stages in that Act leads to the clear inference that that Act is primarily concerned with fixing of rates - rates of minimum wages overtime rates, rate for payment for work on a day of rest-and is not really intended to be an Act for enforcement of payment of wages for which provision is made in other laws, such as the Payment of Wages Act IV of 1936, and the Industrial Disputes Act XIV of 1947. In Section 20(1) of the Minimum Wages Act also, provision is made for seeking remedy in respect of claims arising out of payment of less than the minimum rates of wages or in respect of payment of remuneration for days of rest or for work done on such days under Clause (b) or Clause (c) of Sub-section (1) of Section 13 or of wages at the overtime rate under Section 14. This language used in Section 20(1) shows that the Authority appointed under that provision of law is to exercise jurisdiction for deciding claims which relates to rates of wages, rates for payment of work done on days of rest and overtime rates. If there be no dispute as to rates between the employer and the employees, Section 20(1) would not be attracted. The purpose of Section 20(1) seems to be to ensure that the rates prescribed under the Minimum Wages Act are complied with by the employer in making payments, and, if any attempt is made to make payments at lower rates, the workmen are given the rights to invoke the aid of the Authority appointed under Section 20(1). In cases where there is no dispute as to rates of wages, and the only question is whether a particular payment at the agreed rate in respect of minimum wages, overtime or work on off-days is due to a workman or not, the appropriate remedy is provided in the Payment of Wages Act. If the payment is withheld beyond the time permitted by the Payment of Wages Act even on the ground that the amount, claimed by the workman is not due, or if the amount claimed by the workman is not paid on the ground that deductions are to be made by the employer, the employee can seek his remedy by an application under Section 15(1) of the Payment of Wages Act. In cases where Section 15 of the Payment of Wages Act may not provide adequate remedy, the remedy can be sought either under Section 33-C of the Act or by raising an industrial dispute under the Act and having it decided under the various provisions of the Act. In these circumstances, we are unable to accept the submission made by Mr. Sen on behalf of the appellant that Section 20(1) of the Minimum Wages Act should be interpreted as intended to cover all claims in respect of Minimum Wages or overtime payment or payment for days of rest even though there may be no dispute as to the rates at which those payments are to be claimed. It is true that, under Section 20(3), power is given to the Authority dealing with an application under Section 20(1) to direct payment of the actual amount found due but this, it appears to us, is only an incidental power granted to that Authority, so that the directions made by the Authority under Section 20(1) may be effectively carried out and there may not be unnecessary multiplicity of proceedings. The power to make orders for payment of actual amount due to an employee under Section 20(3) cannot, therefore, be interpreted as indicating that the jurisdiction to the Authority under Section 20(1) has been given for the purpose of enforcement of payment of amounts and not for the purpose of ensuring compliance by the employer with the various rates fixed under that Act. This interpretation, in our opinion, also harmonises the provisions of the Minimum Wages Act with the provisions of the Payment of Wages Act which was already in existence when the Minimum Wages Act was passed.

41. It is in view of this judgment of the Supreme Court Mr. M.R. Narayanaswami, learned Counsel for the petitioners, did not put forward the contention that any of the claims of the present workers fell within Section 20(1) of the Minimum Wages Act. However, the learned Counsel laid stress on the words italicised by me in the above extract and contended that Section 15 of the Payment of Wages Act applied not only to cases of delay in payment of wages contrary to Sections 4 and 5 but also to the denial of payment of wages by the employer on the ground that the amount claimed by the workman is not due. However, for the purpose of this case, it is not necessary to decide, whether this makes any difference or not, because I have already indicated that Mr. N.G.R. Prasad proceeded on the basis that the three items of claims referred to already will fall within the scope of Section 15 of the Payment of Wages Act, 1936 and the only question argued was whether by virtue of this fact, the jurisdiction of the Labour Court under Section 33-C(2) of the Industrial Disputes Act is excluded or not.

42. The general rule in this behalf has been stated in Craies on Statute Law, 6th Edition, at page 230 as follows:

Where, in a statute creating a duty, no special remedy is prescribed for compelling performance of the duty or punishing its neglect, the Courts will, as a general rule, presume that the appropriate common law remedy by indictment, mandamus, or action was intended to apply. 'The general rule of law' (or rather of construction) 'is that where a general obligation is created by statute and a specific statutory remedy is provided, that statutory remedy is the only remedy'. The scope and language of the statute and considerations of policy and convenience may, however, create an exception showing that the Legislature did not intend the remedy (e.g. a penalty) to be exclusive. Even where the statute creating the duty also provides a special remedy for its enforcement, the common law remedies (of indictment, information by the Attorney-General, mandamus or action according to the subject-matter) are in many cases available cumulatively or alternatively to the special remedy contained in the statute. Whether they are so or not is upon each statute a question of construction.

43. To similar effect are the following passages in Maxwell on the Interpretation of Statutes, Tenth Edition:

If the statute which creates the obligation, whether private or public, provides in the same section or passage a specific means or procedure for enforcing it, no other method than that thus provided can normally be resorted to for that purpose. (Page 395).

It is, however, a general rule that where an Act of Parliament creates an obligation to pay money the money may be recovered by action, unless some other specific provision is contained in the Act, that is, unless an exclusive remedy be given, and the question may arise whether the particular remedy given by the Act is cumulative or substantial for this right of action. (Page 396).

44. The above two passages make it clear that the Court is primarily guided by the provision of the statute itself in deciding whether the particular remedy indicated by the statute is the exclusive remedy available to an aggrieved party or it is only an alternative or an additional remedy. I have already explained, as far as this State is concerned, the situation that was prevailing at the time when the Act was enacted and was brought into force on 31st March, 1962. I have also referred to the provisions contained in Section 10 of the Act. Section 10(1) of the Act deals with the provision of uniforms to workers. Section 10(2) of the Act deals with the provision of washing allowance. Admittedly these two items of claims cannot possibly come under Section 15 of the Payment of Wages Act, If so, could it have been the intention of the Parliament in enacting the Act that with reference to all the other rights conferred by that Act on the workers, the only remedy should be under the Payment of Wages Act, simply because the claims with regard to those rights fall within the definition of 'wages' contained in Section 2(vi) of the Payment of Wages Act and could it have been the intention of the Parliament that the workmen with regard to those claims will have to go before the authority under the Payment of Wages Act and with regard to the claims under Section 10 of the Act they will have to go before the Labour Court under Section 33-C(2) of the Industrial Disputes Act? In my opinion, it could not have been so, and the Parliament could not have contemplated driving the workmen on whom certain benefits are conferred by the Act to go before one authority in respect of some benefits and to go before another authority in respect of certain other benefits. If that were the intention of the Parliament, such intention would have been expressed in clear and definite language. On the admitted fact that there are at least certain rights created by the Act which are outside the jurisdiction of the authority under Section 15 of the Payment of Wages Act, I am unable to accept the contention of the learned Counsel for the petitioners that with regard to the other rights that authority will have exclusive jurisdiction, so as to bar the jurisdiction of the Labour Court under Section 33-C(2) of the Industrial Disputes Act.

45. Mr. M.R. Narayanaswami, learned Counsel for the petitioner, strongly relied on the decision of the Supreme Court in Ambica Mills Co. Ltd. v. S.B. Bhatt and Anr (1951) 1 I.L.J. 1. In that judgment, the Supreme Court, dealing with the Payment of Wages Act, observed:

The scheme of the Act is clear. The Act was intended to regulate the payment of wages to certain classes of persons employed in industry, and its object is to provide for a speedy and effective remedy to the employees in respect of their claims arising out of illegal deductions or unjustified delay made in paying wages to them. With that object, in Section 2(vi) of the Act was denned wages. Section 4 fixes the wage period. Section 5 prescribes the time of payment of wages; and Section 7 allows certain specified deductions to be made. Section 15 confers jurisdiction on the authority appointed under the said section to hear and decide for any specific area claims arising out of deductions from wages or delay in payment of wages, of persons employed or paid in that area. It is thus clear that the only claims which can be entertained by the authority are claims arising out of deductions or delay made in payment of wages. The jurisdiction thus conferred on the authority to deal with these two categories of claims is exclusive; for Section 22 of the Act provides that matters which lie within the jurisdiction of the authority are excluded from the jurisdiction of Courts; thus the jurisdiction conferred on the authority is limited by Section 15, and in another sense it is exclusive as prescribed by Section 22.

46. In that case, the Supreme Court was really considering the scope of the authority acting under Section 15 of the Payment of Wages Act and it had no occasion or opportunity to consider that in respect of cases falling both under Section 15 of the Payment of Wages Act and Section 33-C(2) of the Industrial Disputes Act, whether the jurisdiction of the authority under the Payment of Wages Act was exclusive or not. Simply because the word 'exclusive' occurs in the extracted portion of the judgment, with reference to a suit barred under Section 22 of the Payment of Wages Act, I am unable to hold that in this case also, the jurisdiction of the authority under the Payment of Wages Act is exclusive and the Labour Court under Section 33-C(2) of the Industrial Disputes Act has no jurisdiction whatever.

47. Another argument of Mr. M.R. Narayanaswami, learned Counsel for the petitioners, in support of the exclusive jurisdiction of the authority under the Payment of Wages Act was based upon Section 37 of the Act which I have already extracted. Mr. Narayanaswami contended that since that section states that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law, it must be held that notwithstanding the provisions contained in Section 33-C(2) of the Industrial Disputes Act, the Payment of Wages Act will prevail, and therefore the authority under Section 15 of the Payment of Wages Act alone will have jurisdiction to determine the claims. For more than one reason I am unable to accept this argument. In the first place, Section 37(1) of the Act merely states that 'the provisions of this Act' shall have effect and from this expression, we cannot draw an inference that Section 15(1) or (2) of the Payment of Wages Act will have effect notwithstanding anything contained in any other law. In the second place, I am unable to hold that this section has anything to do with the procedural aspect. On the other hand, the language of Sub-section (1) as well as of the proviso of Sub-section (2) of Section 37 makes it clear that the said section deals with the rights and benefits conferred by the Act on a motor transport worker and does not deal with the procedural part of it, as to whether it is Section 15 of the Payment of Wages Act that will apply or it is Section 33-C(2) of the Industrial Disputes Act that will apply. In support of his contention, Mr. M.R. Narayanaswami relied on the decision of the Supreme Court in The Cooperative Central Bank Ltd. and Ors. v. The Additional Industrial Tribunal, Andhra Pradesh and Ors (1970) 1 S.C.J. 295 : (1970) 1 M.L.J. (S.C.) 68 : (1970) 1 A.W.R. . In that case, in respect of claims of certain employees of the Co-operative Banks, an industrial dispute was referred by the Government to the Tribunal under Section 10(1)(d) of the Industrial Disputes Act. A question arose whether the machinery provided under the Co-operative Societies Act itself, enabling the Registrar to decide the dispute touching the business of the society, will exclude the jurisdiction of the Industrial tribunal under the provisions of the Industrial Disputes Act. With reference to this question, the Supreme Court pointed out:

Learned Counsel appearing on behalf of the Banks took us through the provisions of the Act (Andhra Pradesh Cooperative Societies Act) to indicate that, besides being a local and special Act, it is a self-contained Act enacted for the purpose of successful working of the Co-operative Societies, including Co-operative Banks, and there are provisions in the Act which clearly exclude the applicability of other laws if they happen to be in conflict with the provisions of the Act. It is no doubt true that the Act is an enactment passed by State Legislature which received the assent of the President, so that, if any provision of a Central Act, including the Industrial Disputes Act, is repugnant to any provision of the Act, the provision of the Act will prevail and not the provision of the Central Industrial Disputes Act. The general proposition urged that the jurisdiction of the Industrial Tribunal under the Industrial Disputes Act will be barred if the disputes in question can be competently decided by the Registrar under Section 61 of the Act is, therefore, correct and has to be accepted.

48. For coming to this conclusion, the Supreme Court examined the provisions of the Andhra Pradesh Co-operative Societies Act and noted that Section 61 of the said Act opened by stating, 'Notwithstanding anything in any law for the time being in force, if any dispute touching the Constitution, management or the business of a society, other than a dispute regarding disciplinary action taken by the society or its committee against a paid employee of the society, arises...' The Supreme Court also took note of Section 133 of the Andhra Pradesh Co-operative Societies Act which stated:

133. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law.

49. Such provisions clearly evincing an intention to exclude the applicability of and the jurisdiction of the authorities under any other Act are absent in the Act and therefore that decision of the Supreme Court has no application to the facts of the present case. I may also point out hat in that decision, though the Supreme Court accepted the general principles of law, after analysing the Andhra Pradesh Co-operative Societies Act and the actual dispute, came to the conclusion that the dispute between the parties was one which could not be decided by the Registrar under Section 61 of the Andhra Pradesh Co-operative Societies Act.

50. Apart from these decision, it is admitted before me that there is no direct decision of the Supreme Court or of this Court holding that the jurisdiction of the Labour Court under Section 33-C(2) of the Industrial Dispute Act is barred. However, the Supreme Court in Bombay Gas Co. Ltd. v. Gopal Bhiva and Ors. : (1963)IILLJ608SC made the following observations:

Prima facie, there is some force in this argument. It does appear to be somewhat anomalous that a claim which would be rejected as barred by time if made under the Payment of Wages Act should be entertained under Section 33-C(2) of the Act; but does this apparent anomaly justify the introduction of considerations of limitation in proceedings under Section 33-C(2)? Sri Kolah suggests that it would be open to this Court to treat laches on the part of the employees as a relevant factor even in dealing with cases under Section 33-C(2) and he has relied on the fact that this Court has on several occasions discouraged belated claims in the matter of bonus. In appreciating the validity of this argument, we do not propose to consider whether the jurisdiction conferred on the authority under the Payment of Wages Act is exclusive in the sense that a claim for wages cannot be made by an industrial employee in a civil Court within three years as permitted by Article 102; that is, a question which may have to be decided on the merits when it directly arises. For the purpose of the present appeal, the only point which we have to consider is does the fact that for recovery of wages limitation has been prescribed by the Payment of Wages Act, justify the introduction of considerations of limitation in regard to proceedings taken under Section 33-C(2) of the Act.

In dealing with this question, it is necessary to bear in mind that though the Legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf it has omitted to make any provision for limitation in enacting Section 33-C(2). The failure of the Legislature to make any provision for limitation cannot, in our opinion, be deemed to be an accidental omission. In the circumstances, it would be legitimate to infer that the Legislature deliberately did not provide for any limitation under Section 33-C(2). It may have been thought that the employees who are entitled to take the benefit of Section 33-C(2) may not always be conscious of their rights and it would not be right to put the restriction of limitation in respect of claims which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is treated as relevant, it is well known that a decree passed under the Code of Civil Procedure is capable of execution within twelve years, provided, of course, it is kept alive by taking steps in aid of execution from time to time as required by Article 182 of the Limitation Act, so that the test of one year or six months' limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims. It seems to us that where the Legislature has made no provision for limitation, it would not be open to the Courts to introduce any such limitation on ground of fairness or justice. The words of Section 33-C(2) are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any considerations of limitation. Sri Kolah no doubt emphasized the fact that such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may take into account, and if the Legislature feels that fair play and justice require that some limitation should be prescribed, it may proceed to do so. In the absence of any provision, however, the Labour Court cannot import any such consideration in dealing with applications made under Section 33-C(2).

51. A Bench of the Punjab High Court in Municipal Committee, Tarn Taren v. State of Punjab and Ors. (1967) 1 I.L.J. 568, after quoting the above observations of the Supreme Court stated:

From the above observations, it would be apparent that a claim which could have been determined by the authority under the Payment of Wages Act could also be decided under the provisions of the Industrial Disputes Act. Further, even though a limitation was prescribed under the Payment of Wages Act the authorities under the Industrial Disputes Act were not bound by the same because no such limitation was prescribed in the latter Act, In other words, it means that if the authorities under the Industrial Disputes Act had no jurisdiction to deal with the matter, the Supreme Court would have held so and thrown out the claim of the employees on this ground alone that their remedy lay under the Payment of Wages Act. The Supreme Court authority, therefore, supports the view that the Industrial Tribunal had jurisdiction to adjudicate upon the present dispute, despite the fact that it could also be decided under the Minimum Wages Act. It is wrong to say that this precise matter had been left undecided by the Supreme Court, as contended by the learned Counsel for the petitioner.

52. However, in view of the observations of the Supreme Court extracted by me already in C.A. Nos. 170 to 173 of 1968, the last portion of the statement of the learned Judges of the Punjab High Court may not be correct, though the decision of the Supreme Court has reference to Section 20 of the Minimum Wages Act.

53. Iypunny v. Madhusudan Mills and Anr. (1964) 1 I.L.J. 197, is a case which dealt with the scope of Section 33-C(2) of the Industrial Disputes Act, with reference to an award made under the Bombay Industrial Relations Act, 1946. In that case also it was contended that the Bombay Industrial Relations Act contained provisions for enforcement of the award made under its provisions and therefore the remedy under Section 33-C(2) of the Industrial Disputes Act was not available. A Bench of the Bombay High Court rejected this contention and pointed out:

It is possible that in a given case a benefit given by an award or settlement under this Act is capable of being realised under the Payment of Wages Act and yet an application could be made under Sub-section (2). It could not in such a case be argued that such an application cannot lie.

54. In Ambica Mills Ltd. No. 2, Ahmedabad v. Second Labour Court (1967) 2 I.L.J. 800, the Gujarat High Court had occasion to consider the relative scope of the provisions contained in the Payment of Wages Act and Section 33-C(2) of the Industrial Disputes Act and it pointed out:

Sri Vyas then contended that the respondents in this case are not entitled to follow the remedy provided by Sub-section (2) of Section 33-C of the Act. The argument was that Section 33-C(2) of 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 the provisions of Sub-section (2) of Section 33-C 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 Section 15 of the Payment of Wages Act or under the provisions of Section 33-C 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 Section 33-C(2) of the Act. The remedy to recover the amount due under Section 33-C is an independent remedy.

55. Sadasivam, J., had occasion to consider a similar question in Writ Petition No. 2914 of 1968. In that case, there was already an award for reinstatement and the workers concerned filed petitions under Section 33-C(2) of the Industrial Disputes Act for computation of the benefits under the award. The jurisdiction of the Labour Court to decide the same was contested and the Labour Court dismissed the claim petitions holding that any claim with reference to difference in wages or for other items connected with wages should be made under the Minimum Wages Act and not under Section 33-C(2) of the Industrial Disputes Act. It is to quash that order of the Labour Court, the writ petitions referred to above were filed on the file of this Court and Sadasivam, J., quashed the order of the Labour Court holding that the Labour Court had jurisdiction to decide the matter. The learned Judge pointed out:

The mere fact that the Minimum Wages Act creates a right and provides for a remedy does not take away the right of a Labour Court to adjudicate on the same in a petition under Section 33-C(2) of the Industrial Disputes Act when the same has been, in a way considered in an award made by the Labour Court in respect of an. industrial dispute.

56. In one sense, the observation of the learned Judge with reference to the Minimum Wages Act may not be correct in view of the judgment of the Supreme Court holding that Section 20 of that Act concerned only with the minimum rates of wages and not claims for payment of minimum wages as such. However, on analogous principle it can be held that the mere fact that Payment of j Wages Act provides for a remedy does not take away the right of the Labour Court to adjudicate on the same in a petition under Section 33-C(2) of the Industrial Disputes Act, particularly when there is nothing in either of the Acts I express or implied excluding the jurisdiction of the Labour Court.

57. Under these circumstances, I am of the opinion that the conclusion of the Labour Court holding that it has jurisdiction to decide the claims preferred by the respective workmen is correct and does not call for interference. Hence all the writ petitions are dismissed. There will be no order as to costs.

58. I may also point out here that W.P. No. 1895 of 1969 is liable to be dismissed even on the basis of the concession made by Mr. M.R. Narayanaswami, learned Counsel for the petitioners, because the claim in that writ petition was exclusively in respect of washing allowance provided for in Section 10(2) of the Act.


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