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The M.L.J. Press Private Ltd. Vs. the Additional Commissioner for Workmen's Compensation and Anr. (25.03.1970 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Reported in(1970)1MLJ467
AppellantThe M.L.J. Press Private Ltd.
RespondentThe Additional Commissioner for Workmen's Compensation and Anr.
Cases ReferredUjjain v. Surajmal Mehta
Excerpt:
.....to the allegation of the second respondent as well as on the finding of the first respondent, the first respondent had no jurisdiction to issue the impugned direction in exercise of his powers under section 15 (3) of the payment of wages act, 1936. 10. under these circumstances, the writ petition is allowed and the impugned order of the first respondent is quashed......central act iv of 1936. section 7 of the act deals with the deductions that can be made from the wages payable to an employee. sub-section (1) of that section states:notwithstanding the provisions of sub-section (2) of section 47 of the indian railways act, 1890 (ix of 1890) the wages of an employed person shall be paid to him without deduction of any kind except those authorised by or under this act.6. sub-section (2) of that section enumerates the kinds of decoctions that may be made from the wages of an employed person and clause (f) of that sub-section states:deductions for recovery of advances of whatever nature (including advances for travelling allowance or conveyance allowance), and the interest due in respect thereof, or for adjustment of overpayments of wages.section 15 (2).....
Judgment:
ORDER

M.M. Ismail, J.

1. The second respondent herein was an employee of the petitioner and he was superannuated with effect from 31st May, 1968. Between the petitioner and its workmen an agreement under Section 18 (1) of the Industrial Disputes Act and Rule 98 of the Industrial Disputes Rules was effected on 3rd August, 1965. The preamble to this agreement states that the workers of the petitioner and the management had entered into an agreement regarding their earlier disputes under a Memorandum of Settlement, dated 23rd April, 1962, which was in force till the end of 1965, but even during the currency of the agreement the workers through the Union had been making demands for increased dearness allowance, revision of grades for certain workmen, or ad hoc payments and though the said demand was contrary to the terms of the agreement and the workers were not legally justified or entitled to press any such claim, the management had been giving certain concessions now and then to maintain industrial peace and good relationship. The agreement further points out that the Union thereafter made a fresh demand for some ad hoc payment to the workers as they were in need of some immediate relief, that the Union desired that a sum of Rs. 10 per month be paid to all the permanent workers as advance commencing from 1st April, 1965 till the end of December, 1965, that the Union agreed to treat this as a purely temporary advance for the workers and not related to any claim, benefit, wages or allowance to which they were or might become entitled and that the said amount was to be recovered from April, 1966 in seven equal instalments out of the wages of workers payable during that period. The further recital in the said agreement is that the management considered the request and it was finally agreed between both parties to the settlement to pay a sum of Rs. 7-50 per month to all the permanent workers in the Press purely as advance subject to the following conditions : (1) Each of the permanent employee of the petitioner would be paid a sum of Rs. 7-50 per month with effect from 1st June, 1965 till the end of 31st December, 1965. (2) The above payment was paid only as an advance which was recoverable from the workers as such. It had no relation whatsoever to any benefit or allowance to which the workers were or might be entitled then or at any future date. (3) The aforesaid payment would be recovered from the wages of the workers from the month of February, 1966 (payable in March, 1966) in equal instalments for a period of seven months from the said date i.e., from the wages due till the end of August, 1966. If during the aforesaid period the service of any employee should cease either due to resignation, death, retirement, dismissal or otherwise, the management would be entitled to recover the amount already paid to him from the amount that might be payable to him by the management.

2. Subsequently, a dispute arose between the management and the workers as to the applicability of the recommendations of the Central Wage Board for non-journalist employees, the management contending that its establishment was not a newspaper establishment and therefore the recommendations of the Central Wage Board would not apply and the workers contending to the contrary. In view of this, a settlement, dated 7th March, 1966 was entered into between the parties under Section 12 (3) of the Industrial Disputes Act, 1947. After setting out the above controversy, the settlement recorded:

Without prejudice to these contentions it is hereby agreed that the management will continue to pay the workmen Rs. 7-50 per month from January, 1966 onwards on the same terms as those contained in the settlement, dated 3rd August, 1965 between the parties until an authoritative decision is reached in regard to the applicability or otherwise of the Wage Board recommendations to this establishment.

One thing that can be immediately noticed is that while the settlement, dated 3rd August, 1965 provided for the payment of this monthly advance of Rs. 7-50 only for the specified period from 1st June, 1965 till the end of 31st December, 1965, the second agreement did not provide for any specific period during which the advance of Rs. 7-50 per month was payable. However, it stated that the payment would commence from 1st January, 1966, thereby making the payment of advance as a continuation of the payments made under the agreement, dated 3rd August, 1965. Yet another agreement was entered into on 10th May, 1968 under Section 12 (3) of the Industrial Disputes Act. This agreement refers to the workers going on a strike on and from 23rd April, 1968, and conciliation being taken up by the Special Deputy Commissioner of Labour and there being no settlement reached between the parties. However, it refers to the fact that as a result of further conciliatory talks held by the said Special Deputy Commissioner of Labour at the request of the parties, a settlement was reached in the following terms:

(i) The workers' contention is that the recommendations of the Central Wage Board for Non-Journalists Employees are applicable to this establishment. The management's contention is that the establishment is not a newspaper establishment and that Wage Board Recommendations do not apply to it. Without prejudice to the contention of either parties an ad hoc payment of Rs. 12-50 per mensem in addition to Rs. 7-50 already paid as per the settlements, dated 3rd August, 1965 and 7th March, 1966 will be paid to the permanent workmen but no deductions of the ad hoc payment will be made on settlements of employees accounts or from wages till the decision of the Industrial Tribunal is made known.

(ii) This payment will not form part of wages.

(iii) The payment will be made effective from 1st January, 1968; the dues for April, 1968 will be paid on 13th May, 1968, the balance of dues from January to March, 1968 before 21st May, 1968.

(iv) In regard to the issue in dispute referred to in Clause (i) as well as the question as to how the ad hoc payment now made should be dealt with, parties will await Government orders on the conciliation report.

(v) An advance of 8 days wages to daily rated and temporary workers of the Press will be paid and deducted in easy instalments against their wages.

There are a few other conditions but it is not necessary to refer to them.

3. When the second respondent herein was superannuated with effect from 31st May, 1968, the petitioner herein while settling his accounts deducted from the amount payable to him a sum of Rs. 232-50. That sum represented the payment of monthly advances from 1st June, 1965 to 31st December, 1967. Once this deduction was made, the second respondent herein filed an application before the first respondent herein purporting to be under Section 15 (2) of the Payment of Wages Act, 1936. The case of the second respondent was that the said amount was not to be recovered from the amounts payable to him in view of the settlement, dated 10th May, 1968 according to which the ad hoc payments could not be deducted on settlements of employees accounts, or from wages, till the decision of the Industrial Tribunal was made known. In reply to this case of the second respondent, the petitioner contended before the first respondent 'that the application itself was not competent as the amount deducted was not wages. The second contention put forward by the petitioner before the first respondent was that the agreement, dated 10th May, 1968 providing for the non-recovery of the ad hoc payment till the decision of the Industrial Tribunal was made known was confined only to the ad hoc payment of Rs. 12-50 payable under that agreement, but had nothing to do with the advance of Rs. 7-50 payable under the two earlier agreements and therefore the petitioner was justified in deducting the said sum of Rs. 232-50 from the amounts payable to the second respondent herein, since they represented the monthly advances of Rs. 7-50 paid to the second respondent under the first two agreements and not the ad hoc payment of Rs. 12-50 paid under the third agreement, dated 10th May, 1968. The first respondent overruled both these contentions of the petitioner and by an order, dated 16th June, 1969, directed the petitioner to pay a sum of Rs. 232-50 together with a sum of Rs. 25 as compensation to the second respondent herein. It is to quash this order of the first respondent the present writ petition under Article 226 of the Constitution of India has been filed.

4. In the affidavit filed in support of the writ petition, though a point has been taken that the application preferred by the second respondent to the first respondent was not competent, the grounds on which this objection was taken are not expressly set forth. However, during the course of the hearing, with reference to the facts of the case, a question arose, on the language of Section 15 (2) of the Payment of Wages Act, 1936 and on the basis of the very claim put forward by the second respondent to the first respondent, whether that application was competent. Since the question went to the root of the jurisdiction of the first respondent, I allowed the learned Counsel for the petitioner to raise this question, and at the request of the learned Counsel for the second respondent, I gave him time to meet this point. It is only thereafter the point was presented before me and the jurisdiction of the first respondent to pass the order in question was challenged.

5. For the purpose of understanding this argument it is necessary to refer to certain provisions contained in the Payment of Wages Act, Central Act IV of 1936. Section 7 of the Act deals with the deductions that can be made from the wages payable to an employee. Sub-section (1) of that section states:

Notwithstanding the provisions of Sub-section (2) of Section 47 of the Indian Railways Act, 1890 (IX of 1890) the wages of an employed person shall be paid to him without deduction of any kind except those authorised by or under this Act.

6. Sub-section (2) of that section enumerates the kinds of decoctions that may be made from the wages of an employed person and Clause (f) of that sub-section states:

Deductions for recovery of advances of whatever nature (including advances for travelling allowance or conveyance allowance), and the interest due in respect thereof, or for adjustment of overpayments of wages.

Section 15 (2) of this Act states:

Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered Trade Union authorised in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under Sub-section (1) may apply to such authority for a direction under Sub-section (3).

There are two provisos to this sub-section, which it is not necessary to refer for the purpose of this case.

7. Thus it will be seen that the jurisdiction of the authority appointed under the Payment of Wages Act to entertain an application under Section 15 (2) of that Act and to grant the direction contemplated by Section 15 (3) of that Act is dependent upon the allegation of the employed person and the finding of the authority itself that any deduction has been made from the wages of the employed person contrary to the provisions of this Act. Therefore, so long as the deduction that has been made is not contrary to the provisions of this Act, even though it may be contrary to any agreement entered into between the parties, still, the jurisdiction of the authority under Section 15 (2) of the Payment of Wages Act cannot be invoked. It should not be forgotten that the authority appointed under the Payment of Wages Act is a special authority for the purpose of that Act and is not a general Court of the land having jurisdiction to decide all disputes of a civil nature arising between the parties. In view of the limited and restricted jurisdiction of the authority appointed under the Act, for the purpose of enabling him to exercise the jurisdiction under Section 15 (2), the condition precedent for the invocation thereof, namely, that a deduction has been made contrary to the provisions of that Act should be established. As I already pointed out, the two agreements entered into on 3rd August, 1965 and 7th March, 1966 expressly refer to the payment of Rs. 7-50 as being only an advance and having nothing to do with the claim or any allowance payable to the employed person. Consequently, under Section 7 (2) (f) of the Payment of Wages Act, 1936, the petitioner is entitled to recover the advance and if the petitioner actually recovers the advance, there cannot be a case for the exercise of jurisdiction on the part of the first respondent under Section 15 (2) of that Act, because there has been no deduction contrary to the provisions of that Act. In this context it is necessary to refer to the very application preferred by the second respondent before the first respondent. The second respondent in his application filed before the first respondent did not put forward a case that any deduction contrary to the provisions of the Payment of Wages Act had been made by the petitioner herein. But the only contention that was put forward was that the petitioner was not entitled to make the deduction as per the memorandum of settlement entered into between the parties. Hence the second respondent invoked the jurisdiction of the first respondent under Section 15 (2) of the Payment of Wages Act, not on the allegation that the petitioner made any deduction contrary to the provisions of the Payment of Wages Act, but on the allegation that it made a deduction contrary to the memorandum of settlement entered into between the parties. Even the first respondent in the order impugned in this writ petition does not record any finding that the petitioner made any deduction contrary to the provisions of the Payment of Wages Act, which finding alone will give jurisdiction to the first respondent to give the direction contemplated by Section 15 (3) of that Act. All that the first respondent points out in his order is that in the third settlement dated 10th May, 1968 it is not clearly stated whether the sum of Rs. 7-50 per month being paid according to the first two settlements forms part of the ad hoc payment or whether the amount could be recovered on the settlement of accounts of a worker and that as the petitioner has not recovered the advance paid for the period 1st June, 1965 to 31st December, 1965 in seven equal instalments as provided in the first settlement, the petitioner is not authorised to recover the payment of Rs. 7-50 per mensem for the period 1st June, 1965 to 31st December, 1967. Consequently, it is clear that with reference to the language of Section 15 (2) of the Payment of Wages Act, 1936, the first respondent was not entitled to entertain the application preferred by the second respondent and pass the impugned order. This conclusion of mine derives support from the following observations of the Supreme Court in its judgment in Payment of Wages Inspector, Ujjain v. Surajmal Mehta, Director, Barnagar Electric Supply and Industrial Company Ltd. and Anr. : (1969)ILLJ762SC .

It is explicit from the terms of Section 15 (2) that the authority appointed under Sub-section (1) has jurisdiction to entertain applications only in two classes of cases, namely, of deductions and fines not authorised under Sections 7 to 13 and of delay in payment of wages beyond the wage periods fixed under Section 4 and the time of payment laid down in Section 5. This is clear from the opening words of Sub-section (2) of Section 15, namely, ' where contrary to the provisions of this Act' any deduction has been made or any payment of wages has been delayed. These being the governing words in the sub-section, the only applications which the authority can entertain are those where deductions unauthorised under the Act are made from wages or there has been delay in payment beyond the wage period and the time of payment of wages fixed or prescribed under Sections 4 and 5 of the Act.

8. Mr. S. Ramaswami, the learned Counsel for the second respondent attempted to escape from this conclusion by putting forward the contention that the amount of Rs. 7-50 paid to the second respondent herein and recovered by the petitioner herein itself constituted wages and did not constitute advances as contemplated by Section 7 (2) (f) of the Payment of Wages Act. I am unable to accept this argument and as a matter of fact this contention fails at the face of the agreements entered into between the parties. Mr. Ramaswami invited my attention to the definition of the term ' wages ' as contained in Clause (vi) of Section 2 of the Payment of Wages Act, with particular reference to Sub-clause (a). The definition of the terms wages is 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.

9. According to Mr. Ramaswami, the sum of Rs. 7-50 paid to the second respondent herein comes within the scope of Sub-clause (a) of Clause (vi) of Section 2, being the remuneration payable under any award or settlement, between the parties. I am unable to accept this argument. The agreement dated 3rd August, 1965 clearly and categorically stated that the sum of Rs. 7-50 to be paid by the petitioner to the workmen was only an advance and was recoverable from the wages of the workmen and it had nothing whatever to do with any benefit or allowance to which the workmen were entitled or would become entitled. The second agreement dated 7th March, 1966 stated that the management would continue to pay the workmen Rs. 7-50 per mensem from January, 1966 onwards on the same terms as those contained in the settlement dated 3rd August, 1965 between the parties, thus making it clear that the second settlement dated 7th March, 1966 also maintained the character of the payment only as an advance and did not either expressly or by implication change or alter the character of that payment from being an advance to anything else. The learned Counsel relied on the third settlement dated 10th May, 1968 and contended that under that agreement not only an ad hoc payment of Rs. 12-50 per mensem was payable but also the payment of Rs. 7-50 per month, with the result an ad hoc payment of Rs. 20 became payable under the third settlement dated 10th May, 1968, In view of the fact that an industrial dispute is stated to be pending in regard to the same, I do not propose to express any final opinion on this part of the argument of the learned Counsel for the second respondent, nor is it necessary for the purpose of deciding this writ petition. However, with regard to the limited contention put forward by the learned Counsel for the second respondent that the sum of Rs. 7-50 comes within the scope of Sub-clause (a) of Clause (vi) of Section 2 of the Payment of Wages Act, I am of opinion that this contention is utterly untenable. I have already referred to the fact that the first two agreements maintained the character of the payment of Rs. 7-50 per month only as advance and in my opinion, the third agreement dated 10th May, 1968, did not in any way change this character. As a matter of fact, one of the conditions contained in the third agreement, which I have already extracted, clearly and categorically mentioned that this payment would not form part of wages. In the light of this clear and categorical term contained in the agreement, I am unable to accept the argument of Mr. Ramaswami that the sum of Rs. 7-50 paid by the petitioner to the second respondent would fall within the scope of Sub-clause (a) of Clause (of) of Section 2 of the Payment of Wages Act. As a matter of fact for the purpose of applying Sub-clause (a) of Clause (vi) of Section 2 of the Payment of Wages Act, it is necessary to establish that what was paid was remuneration and the concept of remuneration necessarily involves that the payment is wages for the work done or the service rendered. But if it is not wages paid for work done or the service rendered, but it was intended to be an advance recoverable or an ad hoc payment adjustable, that cannot come within the scope of Sub-clause (a) of Clause (vi) of Section 2 of the Payment of Wages Act. In view of this and particularly in view of the express provision contained in the third agreement itself that the payment would not form part of wages, I am unable to agree with Mr. Ramaswami that the amount of Rs. 7-50 paid by the petitioner to the second respondent formed part of the wages as defined in Clause (vi) of Section 2 of the Payment of Wages Act and therefore the deduction of that amount in the settlement of accounts of the second respondent would bring the case within the scope of Section 15 (2) of the Payment of Wages Act. Under these circumstances, I am of the opinion that the application preferred by the second respondent to the first respondent under Section 15 (2) of the Payment of Wages Act, was incompetent. With reference to the allegation of the second respondent as well as on the finding of the first respondent, the first respondent had no jurisdiction to issue the impugned direction in exercise of his powers under Section 15 (3) of the Payment of Wages Act, 1936.

10. Under these circumstances, the writ petition is allowed and the impugned order of the first respondent is quashed. There will be no order as to costs.


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