Valajibhai Avcharbhai And Others v. Chimanlal Hemraj Joshi And Another,

Shah, J.:— The petitioners are employees of an establishment belonging to the first respondent known as ‘Chandra-Vilas Hindu Hotel’ at Ahmedabad. The first respondent is the person responsible for payment of wages to the petitioners. The petitioners applied by Application No. 849 of 1955 to the Payment of Wages Authority, Ahmedabad, for an order for payment of overtime wages. It was the case of the petitioners that the establishment of the first respondent was ‘a factory’ within the meaning of the Indian Factories Act, 1948, and that the petitioners worked every day for periods longer than the maximum periods prescribed under the Factories Act and by virtue of S. 59 of that Act the petitioners were entitled to overtime wages. The petitioners accordingly claimed overtime wages for the period from 1st December, 1954 to 1st November 1955. This application was resisted by the first respondent. He contended inter alia that the Payment of Wages Authority had no jurisdiction to hear the application, that it was barred by the law of limitation, that Chandra Vilas Hindu Hotel was not a factory but it was a restaurant as defined in the Bombay Shops and Establishments Act, 1948, and that it was registered and licenced as such by the Government of Bombay and the Municipal authorities, and that the Authority had no jurisdiction to decide the question whether the establishment of the first respondent was a factory or was a restaurant. The Authority held that the question raised in the application did not relate to the determination of the terms of the contract between the parties, but the application raised a complicated question of law whether the establishment was governed by the Factories Act or by the Bombay Shops and Establishments Act. The Authority observed that since the Payment of Wages Act provided a summary remedy to workmen for an order for recovery of wages due to them, the Authority under that Act “was not supposed to determine complicated questions of law or decide question about the status of the workmen”. The Authority accordingly directed that the petitioners may get a declaration of their status from a competent Court or Authority and thereafter make a claim before him. On the view taken by him the Authority dismissed the application. This application under Art. 227 of the Constitution has been filed against the order passed by the Payment of Wages Authority.

2. Sub-section (1) of S. 15 of Payment of Wages Act authorises the State Government to appoint an 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. By sub-s. (2) an employee is entitled to apply to the Authority for a direction for payment of wages unlawfully deducted or delayed. ‘Wages’ are defined in S. 2(vi) of the Act as meaning

“all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed, or otherwise, to a person employed in respect of his employment or of work done in such employment,……….”

3. It has been held by this Court in A.D Divekar v. A.K Shah, 57 Bom LR 1074 (A), that the word “payable” in the definition of “wages” in S. 2(vi) of the Payment of Wages Act, 1936, includes all sums payable, whether under a contract or under an award of the Industrial Court, or under the terms of a statute, or in any other manner. The claim made by the petitioners in this case is for payment of amounts alleged to be due to them, by virtue of S. 59 of the Factories Act. It is clear on the authority of A.D Divekar's case (A), that the claim made by the petitioners is for payment of wages unlawfully deducted and prima facie the Authority had jurisdiction to entertain that claim. But the Authority held that because a complicated question was raised he had no jurisdiction to decide the claim made by the petitioners. In so holding in our view the Authority was in error. The Legislature has conferred jurisdiction upon the Authority to entertain applications by employees for an order for payment of wages alleged to be unlawfully deducted or delayed; and in a claim of that character, all questions which are incidental to the determination of delayed wages or wages unlawfully deducted will, in our judgment, be within the competence of the Authority. Even if in the determination of the claim complicated questions arise, we do not think that the Authority is entitled to refuse to exercise jurisdiction. There is also no warrant for Holding that the jurisdiction of the Authority is of a summary character. In A.D Divekar's case (A), it was held that the jurisdiction of the Authority under S. 15 of the Payment of Wages Act was not limited to entertaining admitted claims arising out of deductions from wages or delay in payment of wages. Therefore, the fact that the employer denies liability and sets up some ground in support of the denial does not deprive the Authority of his jurisdiction to decide the claim if it is one relating to unlawful deductions or delay in payment of wages. If jurisdiction be granted to decide disputed questions, it is difficult to appreciate why the authority cannot decide what are called complicated questions. In our view, the Payment of Wages Authority is bound to decide an application for an order for payment of delayed wages or unlawfully deducted wages and cannot refuse to decide any question merely on the ground that it is a complicated question. It is true that the petitioners alleged that the establishment of the first respondent was a factory and the first respondent alleged that his establishment was governed by the Bombay Shops and Establishments Act, 1948, but in our opinion, the Authority was competent to decide whether the establishment was a factory within the meaning of the Indian Factories Act, 1948, or was a restaurant governed by the Bombay Shops and Establishments Act, 1948. Mr. V.B Patel at one stage rather faintly suggested that the question whether a particular establishment was a factory could only be decided by an Inspector appointed under the Indian Factories Act and by no other Tribunal. But that argument was not pressed and our attention was not invited to any provision of the factories act or of any other statute in support of that contention.

4. Mr. Patel also urged that the petitioners were not claiming wages due to them but were claiming potential wages and that the Authority had no jurisdiction to entertain an application for potential wages, and reliance in support of that contention was placed on the judgment of their Lordships of the Supreme Court in D'Costa v. Patel, 57 Bom LR 738 : ((S) AIR 1955 SC 412) (B). In our view, the petitioners have not claimed potential wages; they have claimed wages to which they are entitled as employees of the first respondent. D'Costa's case (B), has therefore no application to the facts of the present case.

5. It was then submitted that the petitioners were setting up one contract and the first respondent had set up another contract which governed the relations between the parties, and relying upon the judgment in Anthony Almeda v. Taylor, 58 Bom LR 899 : (AIR 1956 Bom 737) (C), it was contended that the Authority had no jurisdiction to decide which of the two competing “contracts set up by the parties holds the field”. On a perusal of the written statement filed by the first respondent it is amply clear that the first respondent had not set up any contract different from the one pleaded by the petitioners as governing their relations. Anthony Almeda's has therefore no application to the facts of the present case.

6. It was then urged that there was a repugnancy between the Factories Act and the Bombay Shops and Establishments Act. But even assuming that there is a repugnancy between the provisions of the Factories Act and of the Bombay Shops and Establishments Act, that can conceivably have no bearing on the jurisdiction of the Authority to entertain the application for relief to the petitioners. We are of the view that the Authority was in error in refusing to entertain the application on the view that he had no jurisdiction to decide complicated questions in an application by an employee for an order for payment of delayed wages.

7. The rule is therefore made absolute and the order passed by the Payment of Wages Authority is set aside and it is directed that the Authority do proceed to hear and dispose of the application filed by the petitioners according to law and on the merits of the dispute between the parties. Costs will be costs in the trial Court.

V.B.B

Rule made absolute.