1. This application in revision under section 115 of the CPC is directed against an order passed by the Assistant Labour Commissioner, an authority appointed under section 28(1) of the Bihar Shops and Establishments Act, 1953 (Act VIII of 1954), entertaining an application under Section 28(2) of the same Act by some of the employees of the Imperial Tobacco Co., of India Ltd. for wages due from their employer on account of over-time work, after condoning the delay in making that application. Sub-section (1) of section 28 of the Bihar Shops and Establishments Act (hereafter to be referred to as the Act) provides that an application for claim of wages can be made in the manner within such time and to such authority as may be proscribed for a direction under Sub-section (2) of section 28 of the Act. Section 40 of the Act provides for the powers of the State Government to make rules to carry out the purpose of this Act and particularly, under clause (2)(d) to make rule providing for the authority before whom, the time within which and the manner in which the employee or any legal practitioner or authorised agent or an officer of a registered trade union or an Inspecting Officer shall make an application under sub-section (1) of section 28.

2. The rule made in that respect prescribes that such an application shall be made within six months from the date of which the payment of wages is due. There is a proviso to the relevant rule 22 in the following terms:

“Provided that an application may be admitted after the period of six months if the applicant satisfied the authority that he had sufficient cause for not making the application within such period”.

3. Admittedly, the application in the present case was made after the prescribed period of six months and so the question arose whether the delay made by the applicants should be condoned by the prescribed authority. Under the proviso to rule 22(1) of the Bihar Shops and Establishments Rules, 1955 (hereafter to be referred as the rules), the authority concerned look up that matter and by his order passed on the 14th February, 1962, and after hearing both the sides and considering the mate rials that were brought on the record at the instance of both the sides, decided to rule out the objection raised by the employer, the opposite party there and to admit the application for hearing. The Branch Manager of the Imperial Tobacco Company of India Ltd. has challenged that order in the present application in revision. There was a preliminary objection raised by the workmen i.e, the opposite party here who filed the application before the Assistant Labour Commissioner under section 28(1) of the Act, against the maintainability of the application under section 115 of the CPC on the ground that the impugned order was passed not by a Court, much less a civil Court and not by a Court subordinate to High Court. Learned counsel appearing on behalf of the workmen urged that the authority prescribed under the Bihar Shops and Establishments Act is not a Court and is not subordinate to this High Court, in which case section 115 of the CPC cannot be invoked to challenge the order passed by him. This objection has no merit for two reasons. It is now well settled that any person or authority entrusted with the responsibility of judicial functions to be exercised in a judicial manner, i.e, in accordance with the principles of law and following the procedures laid down by any law will be taken as a Court. In that sense, although an authority acting under a particular statute may not be termed as a Court and some other authority or some other Court may be referred to in some other context in the same statute, yet such authority entrusted with judicial functions will be deemed to be a Court. See the cases of A. Hasan v. M. Shamsuddin*, AIR 1951 Pat 140 and Mossamat Dirji v. Srimati Goalin, ILR 20 Pat. 373 : (AIR 1941 Pat 65 (FB)).

4. The next question is whether the Assistant Labour Commissioner though deemed as a Court in that sense, can be held to be subordinate to this Court Learned counsel appearing for the petitioner referred to several decisions to resist the objection of the workmen on the ground. But, all these cases dealt with the statutes in which provisions were made for taking an appeal against the order of a particular authority to the District Court, i.e to the District Judge. Under section 3 of the CPC, the District Court is subordinate to the High Court and an appellate order passed by such a District Court under such statutes was, therefore, amenable to the revisional jurisdiction of the High Court. The latter part of section 3 of the Code provides that every civil Court of a grade inferior to that of a district Court and every Court of small cause is subordinate to the High Court and District Court. Since the appellate District Court under a special statute can be subordinate to the High Court, the authorities against whose judicial orders the District Court entertains an appeal are also deemed to be subordinate to the High Court.

5. That analogy, however, will not be strictly, applicable to the present case because an order passed under section 28 of the Act by the Assistant Labour Commissioner is not appealable before a District Court, but before an Industrial Tribunal. That, however, presents no obstacle for the petitioner who has also invoked the powers of superintendence of this Court under Article 227 of the Constitution by a petition filed in this case. The authority acting under section 28 of the Act is no doubt, also a Tribunal by the very nature of its functions and duties, like the authority appointed under section 15 of the Payment of Wages Act see Rajkumar Mills Ltd. Indore v. Inspector Payment of Wages. Madhya Bharat, AIR 1955 Madh B 60. The word “superintendence” in that article is wide enough to include the power of judicial revision or superintendence. Waryam Singh v. Amarnath, 1954 SCA 334 : (AIR 1954 SC 215). In that view, if not under section 115 of the CPC, this Court can entertain the present application under Article 227 of the Constitution. The preliminary objection raised by the opposite parties cannot, there fore, succeed.

6. The first attack against the impugned order is that as there was no ‘sufficient cause’ for the workmen for not making their application within the prescribed period of six months the Assistant Labour Commissioner had no jurisdiction to condone the delay. In other words, the argument is that the power given to the authority under the proviso to rule 22(1) of the Act can be split into two parts, one by which he ??? the jurisdiction to condone the delay and the other, and according to him the very important part, is that he can only assume such jurisdiction if the cause shown by the applicants is sufficient. Sufficiency of cause is not which is so deemed in the personal opinion of the authority, but it will be sufficient in law and the sufficiency of the cause shall have to be decided in a proper manner, according to the legal principles. In support of this contention, learned counsel relied upon the cases of Sitaram Ramcharan v. M.N Nagrashna, AIR 1954 Bom 537 and Sitaram Ramcharan v. M.N Nagrashna, AIR 1960 SC 260. The question is whether that principle can be invoked in the present case no one can contend that an authority like the one under rule 22(1) will arbitrarily or whimsically admit an application filed beyond the prescribed period of six months or arbitrary hold, without any ??? in a judicial manner, that there is sufficient cause for condoning the delay suffered by the applicant. In the impugned order the authority has referred to certain materials and has come to the conclusion that since the controversy between the parties in regard to overtime wages was under mutual discussion for the purpose of amicable settlement which appeared from the letters issued by the Management, on the 1st February and 22nd April, 1961, he was of the view that there was sufficient cause for the delay made by the applicant in making the application before the authority to invoke the redress learned counsel, however, urged that this finding about sufficiency of the cause an be gone into and we should now scrutinize the materials upon which this conclusion about the sufficiency of the cause was armed at by the Assistant Labour Commissioner. This, he frankly conceded can only be possible if the sufficiency of cause is taken as a jurisdictional fact on the finding on which, in one way or other, would depend the jurisdiction of the Assistant Lab our Commissioner to exercise the powers of condonation of the delay.

7. A case decided lately by the Supreme Court, namely, Manindra Land and Building Corporation Ltd. v. Bhulnath Banerjee, AIR 1964 SC 1336 : (1965) 1 SCJ 109 is to the point in that case, the trial Court had set aside the abatement of the suit on an application made under rule 9 of order 22 of the CPC after holding that the petitioner was prevented by sufficient cause from confining the suit. In other words the trial Court held that the application for substitution of the legal representatives of the deceased defendant could not be made within the prescribed time for sufficient cause. That order was challenged in revision and the Calcutta High Court held that there was no sufficient cause for setting aside the abatement in that case and accordingly the order of the trial Court was negatived. Against that order, an appeal by special leave, was brought to the Supreme Court, where it was contended that the trial Court had neither exercised its Jurisdiction not vested in it nor had it failed to exercise its jurisdiction so vested, and therefore, the High Court had no power to Interfere with the decision of the trial Court on the question of setting aside the abatement, in their revisional jurisdiction. This contention prevailed in the Supreme Court and the order of the trial Court was restored. To counter-act that argument, it was submitted before the Supreme Court that the High Court was competent to look into the matter of sufficiency of the cause for setting aside the abatement because that was a jurisdictional fact and had been decided erroneously by the trial Court. But for that erroneous finding on that jurisdictional fact, the trial Court would not have been possessed of the powers of setting aside the abatement under Order 22, Rule 9 of the CPC. In support of that argument the well-known case of Joy Chand Lal Babu v. Kamalaksha Choudhury, 76 Ind App 131 : (AIR 1949 PC 239) and Kesha rdeo Chamaria v. Radha Kissen Chamaria, (1953) SCR 136 : (AIR 1963 SC 23) were cited, where it was held that a decision on a question of limitation involved the question of jurisdiction. Their Lordships of the Supreme Court repelled the argument and observed:

“These remarks (referring to the observation made in those cases) are not applicable to the facts of the present case. They apply to cases in which the law definitely ousts the jurisdiction of the Court to try a certain dispute between the parties and not to cases in which there is no such ouster of jurisdiction under the provisions of any law, but where it is left to the Court itself to determine certain matters as a result of which determination the Court has to pass a certain order and may, if necessary, proceed to decide the dispute between the parties. The distinction between the two classes of cases is this. In one the Court decides a question of law pertaining to jurisdiction. By a wrong decision it clutches at jurisdiction or refuses to exercise jurisdiction in the other, it decides on question within its jurisdiction. In the present case, the question whether there was a sufficient cause was exclusively within the jurisdiction of the Court and the Court could decide it rightly or wrongly”

8. Referring to Sections 3 and 5 of the Indian Limitation Act their Lordships pointed out that section 3 enjoins a Court to dismiss any application made after the period of limitation prescribed therefor by the schedule I, ??? of the fact. Whether the opponent had set up the plea of limitation or not. It is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court had no choice and if in construing the necessary provision of the Limitation Act or in determining which provision of the Limitation Act applies the Subordinate Court comes to an erroneous decision, it is open to the Court in revision to interfere with that conclusion as that conclusion led the Court to assume or not to assume jurisdiction to proceed with determination of that matter. But S. 5, on the other hand, empowers the Court to admit an application to which its provisions are made applicable, even when presented after the expiry of the specified period of limitation if it is satisfied that the applicant had sufficient cause for not presenting it within time. The Court therefore, had jurisdiction to determine whether there was sufficient cause for the appellants for not making the application for the setting aside of the abatement of the suit in time and, if so satisfied, to admit it. The distinction between a finding about the sufficiency of cause in a case where it related to the jurisdictional fact, and, a finding in a case which is covered by section 5 of the Limitation Act or similar other provisions of some other Act has thus been clearly set out.

9. The position appears to us to be this:

If there is an erroneous decision by the trial Court in regard to the application of a particular provision in the schedules of the Limitation Act or things like that so as to hold that a suit or appeal or application is not beyond time within the meaning of section 8 of the Limitation Act, that will be revisable under section 115 of the CPC because that will be a matter pertaining to the jurisdiction of the subordinate Court. Section 3 is really by way of ousting the jurisdiction of a Court for the purpose of entertaining a suit, appeal or an application beyond the period of limitation. But, the powers given under section 5 of the Limitation Act to a Court to condone the delay after it has been filed beyond a period of limitation is a matter completely within the jurisdiction of that Court and in that respect both the finding of the sufficiency of the cause as well as condoning the delay on that basis are included in the jurisdiction of the Court.

10. The proviso to rule 22(1) of the Rules is almost in the same terms as section 5 of the Limitation Act. There is nothing like section 3 of the Limitation Act in the Bihar Shops and Establishments Act except what is provided in clause (1) of rule 22 of the Rules where it is prescribed that the application shall be made within six months from the date on which the payment of wages became due. That is like a provision of a prescribed period in the schedule of the Limitation Act. In that context, we do not see how the case reported in AIR 1964 SC 1336 will not completely apply to the present case.

11. Learned counsel for the petitioner next urged that the Assistant Labour Commissioner has acted with material irregularity in exercise of his jurisdiction inasmuch as he did not have any evidence before him about the sufficiency of causes for not coming before him with the application under section 28(1) of the Act for the whole period preceding the date on which such application was made. In other words, he contended that the applicants claimed over-time wages for the period from February, 1955 to September, 1957, They claimed their over-time wages month by month. The period of six months for lodging a claim in that respect would apply to each unit of the claim. The applicants did not show why and how they were prevented from coming before the Assistant Labour Commissioner in respect of their dues, which had accrued to them, according to their case, in each of the months beginning from February, 1955. The reference to the letters of the Management in the judgment only covers a much later period i.e, 1961. All the correspondence between the parties that were placed before the Assistant Labour Commissioner were during the period of February, 1957 to April 1961, though there were gaps of more than a year in between.

12. Learned counsel urged that if all these correspondence are taken in support of the conclusion of the Assistant Labour Commissioner that the matter was under mutual discussion and under consideration of the management, then that even will not explain the delay prior to 16th February, 1957, on which date the applicants addressed a letter to the management namely, the Branch Manager of the Imperial Tobacco Co. Ltd. (Annexure A). This statement of facts made by learned counsel is correct to some extent. But, will such an omission in regard to materials for a certain part of the period, the delay over which was condoned, be an exercise of jurisdiction by the Subordinate Court with material irregularity? We think not. If the matter was before us in appeal, probably we would have taken a different view of the alleged sufficiency of the cause shown by the applicants-opposite parties. But, sitting in our revisional superintending jurisdiction, we find it difficult to probe into such mailers in great details. It may be useful here again to refer to the facts of the case of Manindra Land and Building Corporation Ltd., AIR 1964 SC 1336 referred to above, where the applicant under order 9, rule 22 of the CPC, for selling aside the abatement, had shown to the satisfaction of the trial Court that when he came to know about the death of the defendant prior to the passing of the decree in the suit, it was necessary to implead the legal representative of the deceased in the suit and that the delay in knowing of that fact and in his applying for setting aside the abatement to the suit was not due to the laches of the defendant.

13. Their Lordships of the Supreme Court, while on that point, observed that it was not necessary to go into the reasons which were urged as a justifiable excuse for the inability of the appellant to take the necessary steps earlier. It was equally not open to the High Court to question the findings of fact recorded by the subordinate Court in the exercise of its revisional jurisdiction. Applying the same principle, we think that neither we can hold that absence of some materials before the Assistant Labour Commissioner in regard to some portion of the period covered by the delay was a material irregularity in the exercise of his jurisdiction or that it was insufficient or that the Court was wrong in holding that there was sufficient cause for the delay.

14. At another passage in the judgment, their Lordships referred to the case of Basantilata v. Amar Nath, AIR 1950 Cal 411 where the High Court interfered as the trial Court had misconstrued and misapplied the provisions of sections 10 and 11 of the Indian Soldiers (Litigation) Act, 1925 (Act IV of 1925). There, the suit was dismissed on the 14th December, 1942. An application was made on 15th July, 1957. The plaintiff, who was a soldier, served under war conditions from 23rd May, 1942 to 25th November, 1946, when he was discharged. The total period that the plaintiff served under war conditions was 4 years 6 months and 3 days. The question was whether this entire period had to be excluded in computing the period of limitation for making the application for setting aside the dismissal of the suit. The trial Court excluded that period and the High Court considered it unjustifiable to exclude the period prior to 14th December, 1042, the date of the decrees that period could not have in any way prevented the plaintiffs in making the application for the setting aside of the dismissal order, there Lordships observed:—

“Here again, the error committed by the trial Court was not in coming to a finding of fact in connection with the provisions of section 5 of the Limitation Act which applied to such applications, but on the Court's deciding the question of limitation in connection with which sub-section (2) of Sec. 10 followed practically the language of section 3 of the Limitation Act as it said that no such application would be entertained unless it was made within a certain time”.

15. Interference in revisional jurisdiction in that case was justified on the ground that there was an error by the subordinate Court in applying the provisions about the limitation in the sense that which period of the soldier's occupation in war conditions could be taken to his benefit under section 10 of that Act. That was not the same as the Assistant Labour Commissioner considered the whole period, between six months after the accrual of the wages to the applicants and the date on which they came with their application under section 28(1) of the Act to have been occupied under mutual discussion of the management and the employees. We are thus unable to accept the contention of the learned counsel that a case under clause (c) of section 115 of the CPC has been made out to warrant an interference with the impugned order.

16. Learned counsel appearing for the opposite party pressed another aspect of the case. He urged that under rule 22(1) an applicant was only to satisfy the authority that he had sufficient cause in not making the application within the prescribed period of six months and it was not necessary for him to explain the delay thereafter right up to the date on which he came before the authority for a direction for payment of overtime wages. In this connection he referred to a decision of the Calcutta High Court in the case of Salamat v. The Agent, East Indian Rly., 42 Cal WN 841 : (AIR 1938 Cal 348) to support this line of argument. In that case, an application for compensation was filed by a workman 10 years after the accident had taken place. During that period of 10 years he continued in the same job under the same employer and in the same pay as before the accident. That was considered to be sufficient cause for not applying within the period of six months (which was the prescribed period of limitation for compensation under the Workmens Compensation Act). The delay of 10 years thereafter was considered by the learned Judges to be of no material consequence as it was not necessary to be explained under the provisions of the Act.

17. With great respect, this view appears to run counter with what was laid down in the case of AIR 1960 SC 260 which arose out of on application under section 10. Clause (2) of the Payment of Wages Act. Proviso 2 of that section was similar to section 5 of the Limitation Act.

18. There it was held that the explanation of delay was to cover the whole of the period of delay till the date on which the application was made. If sufficient cases could be shown for not making the application within the period of six months prescribed in section 15(2) and not for the period thereafter, then that would lead to a position where the application could be made at any time. This was considered not to be a correct approach and we respectfully agree with the same.

19. For the reasons given above, we find ourselves unable to accept the present application, which is devoid of merit. The application is accordingly dismissed, but in the circumstances of the case, without costs.

AJ/IGC/D.V.C

20. Application dismissed.