Bombay Gas Co. Ltd v. Gopal Bhiva & Ors.

B,..u_, Gu Co. f.,U• •• ~·· GAJENDRAGADKARJ.-These 16 appeals arise ~· 1. out of petitions filed by the 16 respondents who arc the employees of the appellant, the Bombay Gas Co. Ltd., under section 330 (2) of the Industrial Disputes Act (No. 14 of 1947) (hereinafter called the Act). These respondents are the District Syphon Pumpers and Heat Appliances Repairers Inspectors, and in their applications made before the Second Labour Court, Bombay, they alleged that as a result of the award made by the Industrial Tribunal in reference {I. T.) No. 54 of 1949 published in the Bombay Government Gazette on May 11, 1960, they were fntitled to a certain benefit 712 SUPRE~IE COURT REPORTS [1964] VOL. and they moved the Labour Court to. compute that 1963. . benefit in terms of money and to direct the appellant ,,,...bo;1 ·G., c •. Lt,,· to pay the same to them. The direction iu the Go;.:I'Bm•• · earlier award on which this c1aim was based was made in these terms :- Gqj1llllro1adkor 1. "The demand in respect of the workers of the Mains, Services and District Fittings Departments and Lamp Repairers and otherli who were till 1948 required to work on Sundays and in respect of whom' a weekly day off was enforced thereafter without any . corresponding increase in wages is granted. In respect of the' rest, the demand is rejected." This demand was resisted by the appellant on several preliminary grounds which formed the subject-matter of several preliminery issues framed by the Labour Court. The principal contentions raised by the appellant by way of preliminary objections were that the applicatiom made by the respondents were not maintainable under s. 33C (2) of the Act and that the said applications were barred by res judicata by reason of awards made in other proceedings between the same parties. It was also urged by the appellant that if the claim made by the respondents was held to be justified by the direction of the a ward on which the respondent~ relied, then the said direction was given by the · earlier Tribunal without jurisdiction and as such, was incapable of enforcement. On the construction, . the appellant urged that the said direction did not cover the cases of the respondents, and it was argued that even if the said direction was held to be valid and it was also held that it gave the respondents the right to make the present claim, the conditions precedent prescribed by the said direction had not · been satisfied by any of the respondents, and so, on the merits, their claim could not be sustained. 3 S.C.R. SUPREME COURT REPORTS 713 The Labour Court took up for trial 10 preli­ minary issues in the first instance and by its judgment delivered on June 3, 1961, it rejected all the preliminary pleas raised by the appellant. In other words, the preliminary issues framed by the Labour Court were found in favour of the respondents. Thereafter, the applications were set down for hearing on the merits and evidence was led by both the parties in support of their res pee ti ve claim1. On considering the evidence, the Labour Court came to the conclusion that the respondents had established their claims, and so. it has directed the appellant to pay to the respondents the respective amounts specified against their names in the award. The plea raised by the appellant that the whole of the claim made by the respondents should not be allowed on the ground of belatedness and !aches, was, according to the Labour Court, not sustainable under section 33C (2). That is why the Labour Court computed the benefits claimed by the respondents in terms of money from the date when the earlier award became enforceable until the date of the present applications filed before it. The appellant has come to this Court by special leave against the preliminary decision and the final order passed by the Labour Court in favour of the respondents. Before dealing with the points raised in the present appeals by the appellant, it is necessary to set out briefly the terms of the earlier award on which the respondents' claims are based. [n the previous industrial dispute, the employees of the appellant had made several demands. In the present case, we arc concerned with demand No. 11. This demand was made in these terms :- "(a) Workers should get a paid weekly off. (b) Workers of Mains, Services and District Fittinga Departmenta.and Lamp Repairers, J!/C lftmi•J Gos C1. Lli. •• G.p.I IJAi•• 1969 B ... bay Gu Co. LI,. •• Gop.I Bbiv« Gojlrlliroiodkor J. who have been adversely affected in the matter of their earnings on account of closing down of the overtime and Sunday Work, should be compensated for the loss suffered by them; compensation being the amount lost by them since the scheme was· introduced." The Tribunal which dealt with this demand ob,erved that demand No. 11 (a) had been badly worded. There was, however, no doubt that what the employ­ ees claimed against the appellant was, in substance, a demand for paid weekly off only for those worken who were actually getting a weekly off, though with­ out pay. In dealing with this demand, the Tribunal noticed the fact that all the monthly paid staff emp­ loyed by the appellant got a paid weekly off, and so, it thought that there was no reason to dicriminate between the said staff and the daily rated workers .. In regard to the daily rated workers usually, their monthly income would be determined on the basis of a month consisting of 26 working days. From the statement of claim filed by the Union before the Tribunal, it appeared that prior to 1946, most of the workers used to work for all the seven days of the week. By about August, 1946, however, weekly offs were enforced upon the major section of the workmen. InJune 1946, the appellant and the Union had ente­ red into an agreement as regards wage scales of various categories of workers, and the Tribunal as. sumed that in respect of most of the daily rated wor­ kers, the wages must have been fixed on the basis or what their monthly income would be for 26 working days. It is in the light of this background that the Tnbunal proceeded to examine demand No.11 (a). The Tribunal noticed that in the case of the four categories of workers specified in demand No. 11 (b), difference had to be made because it could not be 11aid in their C&llC thaC ~their daily ratca of 3 .S.C.R.. SUPREME COURT REPORTS '715 wages were fixed with reference to a month of 26 working days. The result was that with the intro­ duction of the weekly off, the wages of those workers were reduced. Naturally, the Tribunal observed that in auch a case, the concession of a weekly off would be a very doubtful benefit if as a result, the monthly income of the workers was to go down. That is why the Tribuhal gave the direction on which the respondents' present claim is based. This direction we have already quoted at the beginning of the judgment. Having thus dealt with demand No. 11 (a}, the Tribunal proceeded to examine demand No, 11 (b), and it ordered that the workers of Mains, ::iervices and District Fittings Departments and Lamp Repai­ rers who had been adversely affected in the matter of their earnings on account of closing down of Sunday work, should be compensated for the loss suffered by them, by payment of their wages and dearness allow­ wance for the weekly offs given to them from June I, 1941J onwards till the date of the publication of the award. The question about the scope and effect of the provisions of s. 330 (2) of the Act and the extent of the jurisdiction conferred on the Labour Court by it have been recently considered by us in the case of The Oenlral Bank of India Ltd. v. P. S. Rajagopa­ lan (1 ). That decision shows that the applications made. by the respondents were competent and the Labour Court hadjurisdiction to deal wilh the ques­ tion as to the computation of the benefit conferred on the respondents in terms of money. Mr. Kolah for the appellant contends that though the applications made by the respondents may be competent and the claim made by them may be examined under s. 330 (2), it would, nevertheless, be open to the appellant to contend that the award on which the said claim is based i1 without jurisdiction and if he succeeds in (I) UNtJ I 1.C.R. HO. 196$ Bomb1J "°'Co Ltd. •• Gop.J Bhi., G!JJ'""'""'°"'' J. 1961 1Jomh7 G., c •. Ltd. Y• Gopat Bhi•• Gaj1ndta1"'1k.r I. 716 SUPREI\-IE COURT REPORTS[I964] VOL. establishing his plea, the Labour Court would be justified in refusing to give effect to the said Award. In our opinion, this contention is well-f.~unded. The proceedings contemplated by s. 330 (2) are, in many . cases, analogous to execution proceedings, and the labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an execu· ting court; like the executing . court in execution proceedings governed by the Code of Civil Procedure the Labour Court under s. 330 (2) would be compe· tent to interpret the award on which the claim is based, and it would also be open to it to consider the plea that the award sought to be enforced is a nullity. There is no doubt that if a "decree put in execution is shown to be a nullity, the executing court can refuse to execute it. The same principle would apply to . proceedings taken under s. 330 ( 2) and the j urisdi· ction of the labour court before which the said pro­ ceedings are commenced. Industrial Tribunals which deal with industrial disputes referred to them under s. 10 (1) (d) of the Act are, in a sense, Tribunals with limited jurisdiction. They are entitled to deal with the disputes referred to them, but they cannot travel outside the terms of reference and deal with matters not included in the reference, subject, of course, to incidental matters which fall within their jurisdiction. Therefore, on principle, Mr. Kolah is right when he contends that the Labour Court would have been justified in refusing to implement the award, if it was satisfied that the direction in the award on which the respondents' claim is based is without jurisdiction. That takes us to the question about the merits . of the plea raised by Mr. Kolah. Mr. Kolah contends that the direction iri question on which the . respondent's claim is based, is invalid for the reason , that the Tribunal travelled outside the terms of refe• . rencc wllen it added the words "and othel'li" in tho ' 3 .s.c.R.. SUPREME COURT REPORTS 717 /91ij said direction. Hi9 argument is that the said direc­ tion has really been issued under demand No. 11 (b} Born•~' c .. C• Ltd. and since the said demand was confined to the four categories of workmen specified in it, the Tribunal had no jurisdiction to extend the relief to any workers Gaj,.d.agodlar J. outside the said four categories by adding the word11 "and others". Thus presented, the argument is no doubt attractive, but on a careful examination of the scheme of the award in so far as it relates to demand No. 11, it would be clear that the impugned direction has relation not to demand No. 11 (b), but to demand No. J l(a), and it is obvious that that demand referred to all workers and was not confine i to any specified categories of workers. It is true that in dealinj!' with the said demand, the Tribunal promniently referred to the four categories of employees specified in demand No. 11 (b), but that is not to say that it was confining the said demand to the said four categories. The said four categories were mentioned specifically because they clearly brought out the cases of work- men to whom relief was due under demand No. 11 (a). Having thus dealt with the said four categories by name, the Tribunal thought it necessary, and we think, rightly, to add the words "and others", because if there were other workmen who were till 1948 required to work on Sundays and in respect of whom a weekly day off was introduced thereafter without any corresponding increase in their wa11:e~, there was no reason why they should not have been given the benefit which was given to the workmen of the four categories specifically discussed. It is significant that having thus comprehensively described the workmen who were entitled to the said benefit the Tribunal has added that in respect of the remain'. ing workmen, demand No. 11 (a) was rejected. Therefore, we are satisfied that the relief granted by the Tribunal in paragraph 115 of its award has reference to demand No. 11 (a) and the use of the words "and others" is not only not outside the terms of reference, but is quite appropriate and justified. 196! That being so, it is difficult to sustain the plea that Bomb.,, Gas Co. Lid. the impugned direction was without jurisdiction. v. G01ol Bhiv• Gqjendragtulkar J. Mr. Kolah no doubt relied on the fact that the present respondents never thought that they were entiteld to the benefit conferred by the impugned direction and in support of this plea, he referred us to the fact that in 1952, a demand was made on their behalf for a similar benefit. If the respondents had felt that the benefit conferred by the impugned direction was available to them, it is very unlikely says Mr. Kolah, that they would have made the same demand in 1952 on the basis that it had not been granted to them by the earlier award. It does appear that this demand was made on behalf of the respon· dents and the Government of Bombay took the view that the said demand had already been considered by the Tribunal and that it was too late to reopen it in regard to other categories of employees; that is why the Government refused to make a reference. In our opinion, this fact cannot materially assist Mr. Kolah, because on a fair and reasonable construction of the material direction in the award, we are satisfied that the said clause applies to a U workers of the appellant who satisfy the test prescribed by it. If the respon­ dents did not understand the true scope and effect of. the said clause, that cannot affect the construction of the clause. Therefore, we do not think that tbe failure of the respondents to take advantage of the said clause soon after the earlier award was pro• nounced can have any bearing on the construction of the clause. Then, Mr. Kolah has suggested that on the merits the respondents are not entitled to make the claim, because it is not shown by them that they were required to work on all Sundays in the relevant years. He argues that the test prescribed by the direction is that the benefit should be available to 3 S.C.R.. SUPREME COURT REPORTS 719 workmen who were, till 1948, required to work on Sundays and that, it is suggested, must mean "who were required to work on all Sundays in the year". This argument has been examined by the Labour Court and it has found that the respondents were req•1ired ro work on Sundays before 1948, though they might not have attended on all Sundays. In support of this finding, the Labour Court has referred to Ext. 32 and has drawn the inference from the said document that the workers in the Syphon Depart­ ment were required to work on all Sundays before September, 1948, and it has added that the fact that they did not work on some Sundays may be attribu­ ted to some casual circumstances, such as the workers having voluntarily remained absent, or there not being sufficient work for all, some might have been sent home. Mr. Kolah has invited our attention to the chart (Ext. 32) and has shown that in some cases, the employees were not required to work even half the number of Sundays during that year. In our opinion, this argument proceeds on a misconstruction of the relevant clause in the award. The said clause does not provide that bewre getting the benefit in question, the workers must show that they actually worked on all Sundays in the year. The test which has to be satisfied by the workers is that they could have been required to work on Sundays in that year. In other words, what the Tribunal decided was that if there were workers employed by the appellant whom the appellant could require to work on Sun· days during the relevant year, they would be entitled to the benefit. In other words, the test is : did the terms and conditions of service impose an obligation on the workers to attend duties on Sundays if called upon to do so? That is very different from saying that the benefit would be available only if the workers in question worked on all Sundays. There· fore, we do not think there is any substance in the argument that since the respondents had not been . actually required to work on all Sundays in the 1963 Bam6ay G«s Co. Lti. "· G#'JI Bhioc 720 SUPREME COURT REPORTS(l964JVOL. 1969 relevant year, they were not entitled to the benefit of s ... &i, Gu Co. Lid. the relevant clause in the award • •• Gopal Bhioa That leaves one more question to be considered. Mr. Krilah has strenuously argued that the Labour Court should not have allowed the claim of the res- . pondents for such a long period when they made the present applications nearly 8 years after the award was pronounced. It is true that the earlier award was pronounced on May 11, 1950 and the pre­ sent applications were made in 1958. In support of his argument that the delay made by the respondents should be taken into account, Mr. Kol ah has referred to the fact that under the Payment of Wages Act (No. 4 of 1936) a claim for wages has to be made within six months from the date on which the cause of action accrues to the employees. In the State of Maharashtra, by local modification, this period is prescribed as one year. The argument is that the present claim made by the respondents under s. 33 C(2) is a claim for wal!"el within the. meaning of the Payment of Wal!"es Act. If the respondents had made such a claim before the authority under the said Act, they could not have got r~lief for more than a year. It would be anomalous, says Mr. Kolah, that by merely changing the forum, the respondents should be permitted to make a claim for as many as 8 years under s. 33C (2). In this connection, Mr. Kolah also contenrls that by virtue of s. 22 of the Payment oC wages Act, a claim for wages cannot be made by an industrial employee in a civil court after a lapse of one year, because though the period for such a suit may be 3 years under Art. 102, a .civil suit is barred by s. 22. The jurisdiction conferred on the payment authority is exclusive and so far as the said Act goes, all claims must be made within one year. Prima facie, there is some force in this argu· ment. It does appear to be somewhat anomalous that a claim which would be rejected .as barred by ,) a S.C.R.. SlJPlU:ME COURT REPORTS 721 time if made under the Payment of Wages Act, should be entertained under s. 33C ( 2) of the Act; but does this apparent anomaly justify the introduction of considerations of limitation in proceedings under s. 33C (2)? Mr. Kolah suggests that it would be open to this Court to treat !aches on the part of the emp­ loyees as a relevant factor even in dealing with cases · under s. 33C (2) and he has relied on the fact that this Court has on several occasions discouraged belated claims in the matter of bonus. In appreciat­ ing the validity of this argument, we do not prop0se to consider whether the jurisdiction conferred on the authority under the Payment of Wages Act is exclu­ sive in the sense that a claim for wages cannot be made by an industrial employee in a civil court within 3 years as permitted by art. 102; that is a question which may have to be decided on the merits when it directly arises. For the purpose of the pre­ sent appeal, the only point which we have to consi­ der 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 s. 33C (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 s. 33C (2). The failure of the lagislature 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 legislature deliberately did not provide for any limi· tation under s. 33C (2). It may have been thought that the employees who are entitled to take the bene· fit of s. 33C (2) may not always be conscious of their rights and it would not be right to put the restriction •.. a.p•1 Blriu Gaj.,.J~ J; /HJ l""h!f Gas ,C.. Lti1 y., G.µ/ BltiN G4}111i••1a4lcar J. 722 SUPR.EMB COURT REPORT~ [19M] VOL • . 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 12 years, provided, of course, it is kept alive by taking steps in aid of execution from time to time as required by art. 182 of the Limitation Act, so that the test of one year or six moo ths' 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 limi­ tation, it would not be open to the courts to intro­ duce any such limitation on grounds of fairness or justice. The words of s. 33C (2) are plain and un­ ambiguous and it would be the duty of the Labour Court to give effect to the said provision without any considerations of limitation. Mr. Kolah no doubt emphasised 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 the applications made under s. 33C ( 2). Mr. Kolah then attemp~ed to suggest that art. 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years' limitation should, therefore, be held to govern them. Article 181 provides 3 years' limitation for applications for which no period of limitation is provided elsewhere in Schedule I, or bys. 48 of the Code o( Civil Procedure, and the said period starts when the right to apply accrues. In our opion, this ar~ument is one of desperation. It is well settlec! 3 S.C.R. SUPREME COURT REPORTS 723 that art, 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under s. 33C (2) of the Act would not be justified. As early as 1880, the Bombay High Court had held in Rai Manekbai v. Manekji Kavasji (1), that art. 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescri­ bed for the application, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta v. Official Liquidators, D'hra Dun Mussoorie Electric Tramway Company Ltd. ('). An attempt was no doubt made in the case of Sha Mulchand & Oo. Ltd. v. Jawahar Mills Ltd. (1), to suggest that the amendment of arti­ cles 158 and 178 ipso facto altered the meaning which had been attached to the words in art. 181 by judi­ cial decisions, but this attempt failed, because this Court held "that the long catena of decisions under art. 181 may well be said to have, as it were, added the words "under the Code" in the first column of that Article.'" Therefore it is not possible to acceed to the argument that the limitation prescribed by art. 181 can be invoked in dealing with applications under s. 33C (2) of the Act . . It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged !aches and delay, but claims like bonus must be distinguished . from claims made under s. 33C (2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provi~ion. In such a case, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made a'ter long lapse of time, industrial adjudication may refuse to entertain the claim, or Government may refuse to make refe­ rence in that behalf. But these considerations would ~ 1) p880) I.LR. 7 Bom. 213. (2J 11932] L.R. 60 I.A, 13, 20. (31 (1953) S.O.R, 3511 371 B""l.J 0.. CO. Lti, v. Gtl•IBAIH Gaj~J. IHI 124 St:JPREN:IE COURT REPORTS [19tl4] VOt. be irrelevant when claims are made under s. 33C ( 2), where these claims are, as in the present case, based on an award and are intended merely to execute the award. In such a case, limitation cannot be intro­ duced by industrial adjudication on academic ground of social justice. It can be introduced, if at all, by the legislature. Therefore, we think that the Labour Court was right in rejecting the appellant's conten­ tion that since the present claim was belated, it should not be awarded. In the result, the appeals fail and are dismissed with costs. Appeals diamiuei. J. K. COTTON SPINNING & WEAVING MILLS Co., Ltd. v. BADRI MALI AND OTHERS (P. B. GAJENDBAGADKAR, K.. N. WANOJIOO, and K. C. DAS GUPTA JJ.) lruiurial DiBpute-Definition of 'worker'.-MaliB u.WAer tMWkera-JlaliB whether induatrial employee&-" Employed in any '1iduatr1/'-Meaning-Principle of incide11tal relati0111Jhip--: Gninl of 'leave' on ground of fair play and social juatice­ Valldity-(]oncept of •OcUd justice-Uttar Praie&h Industrial l>NpvleB Acl, 1947 (U.P. 28 of 19il7), s. 2-Induatrial !Mpulsa ..tel, lfl''I (1' of 1947), •· 2 (s). An Industrial diaputc was referred by the Government of U«ar Pradesh for adjudication to the Adjudicator, Kaupur. The Adjudicator held that the Malis were worlimen under . the U.l'.' Industrial Disputes Act but they were not Industrial employees arid hence were not entitled to claim dear food allowance under the Government order dated December 6, 1948. ThO claiioa of the Malis with regard to weekly holidays and leave with wages were also rejected by the Adjudicator. -