1. This revision petition under Section 115 of the Code of Civil Procedure has been directed against the order passed by the District Judge, Durg, at Rajnandgaon, in Miscellaneous Civil Appeal No. 11 of 1961 which arose out of the order passed by the Authority under the Payment of Wages Act, Rajandgaon, on 28-10-1061 in case No. 7 (c-142) of 1960-61.
2. Briefly stated, the facts of the case are that Shyam Rao, Balram Puri, Udayaram and 1126 other workers of the Bengal Nagpur Cotton Mills., Ltd., Rajnandgaon, made an application against Badrinarayan, Superintendent and Manager of the said Mills under Section 15 (3) of the Payment of Wages Act. From about 1944, the workers of the Bengal Nagpur Cotton Mills, Ltd., Rajandgaon (hereinafter referred to as the Mills) were paid good muster wages along with wages of every month. This wage allegedly was paid in order to encourga the workers to put in better attendance and the monthly rate was fixed by the management of the said Mills on the basis of attendance. The payment of good muster wages was made up to the end of October 1955 but it was thereafter stopped by the Management It was alleged that good muster wage was 'wage' as defined under the Payment of Wages Act and the three applicants and 1126 other workers on whose behalf the application was made were entitled to receive it for the month of November 1955. A total amount of Rs. 4255/- was claimed as due to them as good muster wages. In addition, compensation was also claimed. The Authority under the Payment of Wages Act, Rajandgaon directed payment of the said amount and compensation at the rate of Rs. 10/- per worker to all the applicants.
3. The application was contested on various grounds. It was contended that good muster was only a 'concession' amounting to ex gratia payment and not wages as defined in the Act; that there was no express or implied contract to pay good muster; that the recognised union had entered into an agreement with the management on 14-10-1955 which was registered on 4-1-1956 and later on when some defect was found in the registration, a fresh notice of change was given on 26-5-1956 under Section 31 of the C. P. and Berar Industrial Disputes Settlement Act, 1947, and thereafter an agreement was made on 31-5-1956 with the recognised union, and the agreement made was finally registered on 28-6-1956 after the observance of due formalities by the Registrar under Section 36 of the Industrial Disputes Settlement Act aforesaid; that according to the terms of the said agreement, it was operative from 1-11-1955 and under its terms, good muster wage was abolished and the workers were granted additional facilities in the shape of increased monthly wages and extra dearness-allowance; that the applicants had accepted the extra payment of dearness-allowance and the benefit of the increase in monthly wages from a period going back to the year 1954 and, therefore, their act amounted to ratification and in any event they were estopped from challenging the agreement of 28-6-1956. It was also urged that the applicants were bound by the said agreement even though they may not be members of the recognised union because they had availed of the benefits under the agreement. It was also urged that the agreement was binding because it has not been set aside in appropriate proceedings subsequently at the instance of the applicants or anybody else. Lastly, it was contended that some of the applicants were members of the recognised union and, therefore, they were not competent to make the application. it was further urged that the application was very vague and the necessary details to work out as to what could be due as good muster to the applicants was not mentioned in the petition.
4. On behalf of the applicants, it was contended that the agreement made by the recognised union was hit by Section 23 of the Payment of Wages Act which prohibited 'contracting out'.
5. The learned District Judge accepted the! appeal and set aside the order of the Authority under the Payment of Wages Act. He held in favour of the workers that the amount of good, muster was 'wages' as defined in the Act and there was implied contract to pay the amount which was clear from the long period in which the good muster wages were paid to the workers by the Mills from 1944 upto the month of October 1955. He also held that the application, as laid, was maintainable.
He came to the conclusion that Shri Madanlal Tiwari claimed to be the General Secretary of the Mill Mazdoor Sangh and as, with the petition, there was a schedule giving the addresses of 1129 petitioner, there was substantial compliance with the Payment of Wages Procedure Rules, 1937, and there was an authorisation as re quired by Rule 4 in Form 'D' by the applicants in favour of Shri Madanlal Tiwari but on all other points, he agreed with the contentions raised by the management of the Mills. He also came to the conclusion that the claims made by the individual applicants for good muster for the month of November 1955 were very vaguely made and it was not possible to find from the evidence on record as to what was actually due to each one of the applicants in case his claim was found to be good. In that view, the appeal of the Mills was allowed and the application was dis missed.
6. Before me, the learned counsel for the non-applicant, Shri A.P. Sen, raised two preliminary objections. It was urged that the revision petition under Section 115 of the Code of Civil Procecedure was not the proper remedy because the proceedings had been initiated before a tribunal which was not a civil court and the appeal before the District Judge, was in his capacity of being a persona designata. Shri Sen relied on the view taken in the case of Sawatram Ramprasad Mills v. Vishnu Pandurang, AIR 1950 Nag 14, where it has been held that the authority appointed under the Payment of Wages Act, Section 15, is not a 'civil Court' in the narrow sense contemplated in the Code of Civil Procedure but an administrative tribunal and' as such not subject to the revisional jurisdiction of the High Court, exercisable under Section 115 of the Code of Civil Procedure. But, in, a very recent case reported in Manager, Hindusthan Journals Private Ltd., v. Govind Ramsawal Ram 1962 MP LJ 437 : (AIR 1963 Madh Pra 25) a Division Bench of this Court has held that revision under Section 115 is the appropriate remedy. For the purposes of this case, I shall assume that the revision is competent, without entering into the controversy as to which of the conflicting views in the aforesaid decisions is correct.
7. The second objection raised on behalf of the non-applicant is that Shri Madanlal Tiwari who has filed this revision has no locus standi to file it. It is urged that his position at best is that of an agent because he has described himself as 'authorised representative' of the employees under the Payment of Wages Act, Rajnandgaon, in the heading of this revision petition. It has been pleaded that even if it be assumed that he is an agent, he could not file the revision in his own name. It was necessary for the valid constitution of the revision petition that it should have been filed by the workers themselves who were aggrieved parties and who were the applicants before the Authority under the Payment of Wages Act and who were the respondents in the Court below. In my opiniom, this objection is well founded. The revision petition should have been filed by Shyam Rao, Balram, Udayaram and the other workers of the Mills who were aggrieved by the non-payment of good muster wages for the month of November 1955. Even if they could not sign the revision petition, they should have been shown as the petitioners and Shri Madanlal Tiwari should have signed the revision petition in his capacity of representing the employees. He could not arrogate to himself the right of becoming a party by filing the revision petition in his own name. He has no right to ignore the real aggrieved persons so completely.
The learned counsel for the applicant explained that the petitioner had described himself as am authorised representative of the real parties and that was sufficient to give him the right to file the present petition. It has also been stressed that in the lower Court, no specific objection was raised with regard to his right to represent the aggrieved employees and, therefore, this objection should not be allowed to be raised at this stage. I am unable to agree with the submission made oa behalf of the applicant. An agent of a disclosed principal or class of principals cannot initiate proceedings when the parties are not before the Court. Before the District Judge and the Authority under the Payment of Wages Act, Shyamrao, Balram and Udayaram actually figured as parties. The proceedings were in their name and on their behalf along with the other workers but this cannot be said with regard to the revision which was instituted in this Court. In Vasistha Narain Singh v. Kandhai Lal, 177 Ind Cas 138 (Pat), it has been held that person who is not aggrieved by an order cannot apply for revision against the order. In my opinion, on this short ground alone, the revision petition fails and is liable to be dismissed.
8. However, I may briefly consider the ether points also which have been raised before me.
The first question for consideration is whether the definition of 'wages' includes good muster wages under the Payment of Wages Act, 1936. The definition of 'wages' before the amendment of 1957 reads as under:
" 'Wages' means all remuneration, capable of being expressed in terms of money, which would, if terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditional upon the regular attendance, good work or conduct or other behaviour of other person employed in respect of his employment or all work done in such employment and includes etc......"
The additional payment to which the workers became entitled was conditional upon their regular attendance and this is what we understand by the expression 'good muster wages'. In Bala Subrahmanya v. B.C. Patil, AIR 1958 SC 518 their Lordships in paragraph 20 of the judgment observed that 'wages' meant all remuneration and
"remuneration is only a more formal version of 'payment' and payment is a recompense for service rendered."
9. On behalf of the non-applicant, it has been emphasized that the word 'remuneration' ordinarily means 'consideration', which a person receives in lieu of his services. It was urged that 'wages' therefore represent 'payment' made for services rendered. The observations of their Lordships in Anusuya v. J.H. Mehta, AIR 1960 Bom 201 to the following effect were emphasized:
"The word 'remuneration' ordinarily means any consideration which a person receives for giving his services (See Stroud's Judicial Distionary). It is, therefore, a payment made for services rendered. When no services are rendered and when in fact there is no obligation to render services and when the amount becomes, payable owing to the failure of the employer to provide work, it would be difficult to hold that it is remuneration."
It was further urged that good muster wages merely constituted ex gratia payment and they resembled the payment of bonus. The observations of their; Lordships of the Supreme Court in the case of B.N. Elias and Co. Ltd., Employees' Union v. B.N. Elias and Co., Ltd., AIR 1960 SC 886 to the following effect were relied upon and the case reported in Grahams Trading Company (India) Ltd. v. Workmen, AIR 1959 SC 1151 was also referred to:
"Where payment of bonus was made ex gratia uninterruptedly from 1942 to 1952 three times a year to the clerical staff and four times a year to the subordinate staff and the employees also accepted it as ex gratia bonus, the payment of bonus cannot be held to be a term of service on the basis of an implied agreement except in cases of particular employees where it was made an express term of service."
In my opinion, the principle enunciated by their Lordships in AIR 1960 SC 886 (supra) does not help the non-applicant. In that case, the clerical staff and other employees had received bonus ex gratia for the entire period beginning from, 1942 to 1952. In the present case, however there is no such indication. The employees became entittled to receive good muster wages without any option being left to the employers as soon as they put in work for the requisite number of days in a particular month to earn good muster. I, therefore, hold that in the instant case, good muster wages which were received by the employees from the year 1944 up to October 1955 fell within the definition of 'wages'. I agree with the view taken by the learned District Judge on this point.
10. It was then contended for the applicants that Section 23 of the Payment of Wages Act barred any 'contracting out' from the right to receive wages and reliance was placed on the observations contained in the case of Heilgers and Co., v. Nagesh Chandra, AIR 1949 FC 142 to the effect that Section 23 prevented an employee from contracting away his rights which were given by the Payment of Wages Act. It was argued that every employee had the right to receive wages without deduction in terms of the existing contract which would include an express or an implied contract. It was further sa.id that though the employee could enter into another agreement advantageous or beneficial to him, yet no such contract could be recognised by law as cut down the right to receive the wages to which he was entitled. On the other hand, it was submitted that there was no bar to the parties modifying the contract of service itself. Section 23 of the Payment of Wages Act only prohibited an employee from entering into a contract by which the employed person relinquished his right under the Act. The amount of wages is fixed by a contract and, thus, the claim to get the wages arose out of the contract and not under the Act. It was stressed that the question as to what actual wages are and what was the contract between the parties is not a right which was conferred under the Act to an employee. Therefore, the contract, validly entered into between an employer and employee whereby the contract of service has been modified as regards the amount of wages, will not be hit by Section 23. Reliance has been placed on the decision in Dinaram v. Kakajan Tea Estate, AIR 1958 Assam 77 and Maharaja Shri Umaid Mills v. Collector of Pali, (1960) 2 Lab LJ 364 (Raj).
The cases relied on on behalf of the non-applicants are directly in point. In my opinion, if I may very respectfully say so, in the case of AIR 1949 FC 142 (supra) their Lordships have not laid, down that the existing contract could not be substituted by any other contract duly made. The Payment of Wages Act confers three rights: (i) to receive wages, (ii), to receive them at the proper time specified in the Act and (iii) to receive them without deduction. The scheme of the Act in no sense appears to be to destroy the freedom of the parties to substitute one contract by another by following the machinery prescribed by the Act. In fact, if that latitude were not available to the parties that in view of the changing circumstances, they would be able to revise the contract, very awkward and dangerous results stagnating the whole course of business may follow. I, therefore, hold that 'the agreement relied upon by the parties, referred to above, does not amount to 'contracting out' within the purview of Section 23 of the Act and the parties could change the scale of wages by mutual agreement.
11. The next contention raised on behalf of the applicant is that the recognised union had no locus standi under the unamended Act before 25th November 1955 on which date the amended Act came into operation, to enter into any agreement which will be binding on those employees who were not its members and, therefore, any subsequent agreement after the recognised union became the representative of all employees could not cover the prior period for which good muster wage has been claimed. I am unable to agree with this contention. It is true that before the 25th of November 1955, only those workers were bound by the agreement made by the recognised union who were members of that union. The other members could be bound by their consent and the consent could be expressed by their actually receiving the benefits which flowed from the agreement made by the recognised union. Further, it may be seen that on receipt of memorandum referred to in Section 34 the Registrar shall cause it to be entered in a register to be maintained for the purpose, unless on enquiry he is satisfied that the agreement was the result of mistake, misrepresentation, fraud, undue influence, coercion or threat and the agreement so recorded by the Registrar shall be called a registered agreement. (See Section 36(1) of the C. P. and Berar Industrial Disputes Settlement Act, 1947).
In the second plause of this very Section, it has been provided that the agreement recorded under Sub-section (1) shall come into force from the date stated in the agreement or if no date is stated therein, from the date on which it is recorded by the Registrar. The words used in Sub-section (2) are very wide and there is nothing in the language thereof to limit the operation of this Section only from 25th November 1955. If the parties in agreement have specified a date anterior to that period, I see no reason why the agreement would not hold good. In fact, under the agreement, addi tional dearness allowance and other monetary bene fits became available to the workers from about a year before the date of the making of the agreement. The recognised union had full authority to secure any advantage for the workers from as early a period as possible. It is not necessary, in my opinion, that tie recognised union had authority only to secure the benefits from 25th November 1955, or some other date subsequent thereto.
This point does not appear to me to have any substance.
12. It was urged with great force that the agreement actually made was not beneficial to the employees because the rise in the wages and dear-
ness allowance was obtained under the general agreement between the Mill Owners Association on the one hand and the Employees' Federation/on the other. The argument is that the workers in other textile mills gained those advantages without losing additional gain of good muster wages and so the agreement to lose good muster wages in the instant case was without consideration. The point is a new one and in my view cannot be allow ed to be urged in revision for the first time. If it were urged before the Authority, the respondents could be able to place various reasons on record as to why the recognised union agreed to forego the benefit of good muster wages for the employees.
In the absence of examination of those reasons, it is obviously unfair to consider this point at this stage. I, therefore, do not permit this question to be raised in this revision.
13. It was urged by Shri A.P. Sen, learned counsel for the non-applicants, that the Payment of Wages Authority had no jurisdiction to decide as to which of the two contracts set up by the rival parties were subsisting or in existence. The learned counsel for the applicants relied on the decision in the case of Shri Ambica Mills Co. v. S.B. Bhatt, AIR 1961 SC 970 where it has been observed after illustrating many situations that the Authority may be required incidentally to decide upon the existence of one of the two contracts set up by the rival parties. On the first reading of the judgment of their Lordships, it does appear that the contention advanced by the applicants has force but when the observations are more closely studied, in my view that case cannot betaken as an authority for the proposition that their Lordships have decided that the jurisdiction to decide the subsistence of rival contracts set up, vests in the Authority. All that their Lordships have said is that incidentally the question may be considered. In the instant case, there is no question of the point being considered incidentally. The whole or at any rate, the main dispute between the parties is as to whether that contract subsists under which the workers were entitled to good muster wages or the other contract holds the field which was registered on 28-6-1956.
In A.R. Sarin v. B.C. Patil, AIR 1951 Bom 423, it was held by a Division Bench of the Bombay High Court that the jurisdiction of the Authority really is to determine the terms of the contract in so far as they relate to the payment of wages and in so far as he has to decide the liability of the employer to pay wages under the terms of the contract but that jurisdiction does not extend to determining the question as to whether the contract has terminated as alleged by the employer or the contract is still subsisting as alleged by the servant. In Viswanath Tukaram v. General Manager, Central Rly., (1957) 2 Lab LJ 250 : (AIR 1958 Bom 111 FB), it has been held by a Full Bench of the Bombay High Court that when there is a dispute as to which is the contract that governs the relationship of the parties and if two rival contracts are in the field, then the Authority under the Payment of Wages Act has no jurisdiction to decide which of the contracts should regulate the rights of the parties, and though the Authority could determine what was the contract, it could not determine which was the contract. It was stressed that there should be no dispute about the contract itself. It was clearly laid down that when, the employer and the employee come before the authority and rely on different contracts, it is not within its jurisdiction to decide which of the two contracts is subsisting and under which of them the employer is liable to pay wages. I am in respectful agreement with the view expressed in these cases and I hold that the payment of wages Authority had no jurisdiction to adjudicate upon the subsistence of the rival contracts set up by the parties.
14. The last question which may now be considered is the effect of these workers having accepted the benefits under the registered agreement of 28-6-1956. Shyam Rao (A. W. 1) in paras 3, 5 and 7 of his statement, Balaram (A.W. 2) in para 2 of his statement; Gayaprasad (A. W. 3) in paras 1 and 2 of his statement and non-applicants' witness No. 2 Sabir Ali in paras 2, 3 and 6 of his statement, have all stated that they had received dearness allowance which was increased from Rs. 40/- to Rs. 64/- per month. They accepted the position that the pay scale was revised with an increase of about 12 1/2% and there were two additional increments given to employees in their basic wage. They also admitted that these benefits were received retrospectively from the year 1954. It is clear that a large body of workers is not expected to settle the terms of the contract of service individually. The principle of collective bargaining is an important corner stone of the trade union and, therefore, an agreement reached by the management and a union or unions containing the majority of the workers or a large number of them should be held to be binding on all the workers irrespective of the fact that they do not approve and ratify the same but in the instant case, there is nothing on the basis of which it could be said that they did not ratify the subsequent contract. The employees who had moved the Payment of Wages Authority cannot be allowed to approbate or reprobate as they have done in the present case. They took advantage from the year 1954 of additional payments which must have meant a considerable liability on the employers. They now additionally want to get good muster wage for the month of November 1955 by urging that the recognised union, though it could enter into any contract beneficial to them, yet had no right to cause slight loss to them by foregoing the good muster wage payment. This plea, in my opinion, cannot be allowed to succeed. The agreement has not been attacked on the ground of fraud or mistake under Section 36 of the Act (C. P. and Berar Disputes Act, 1937). It was not challenged under Section 41 of the Act or in any other manner also.
15. The result is that the revision petition fails and is hereby dismissed. But, in the circumstances of the case, I make no order as to caste.