Kilaru Gopala Rao Petitioner v. Labour Court, Hyderabad & Another

Jayachandra Reddy, J.:— The legal question raised in this writ petition, is whether an alternative remedy under Section 20 of the Minimum Wages Act is a bar to an application under Section 33-C (-2) of the Industrial Disputes Act.

2. The essential facts that gave rise to this question may briefly be stated. The 2nd respondent was employed as an electrician in the company of the petitioner from 18-6-1970 to 7-8-1974 and was paid a consolidated salary of Rs. 140/- per month. The workman filed an application on 14-11-1974 under section 33-C (2) of the Industrial Disputes Act claiming Rs. 230/- per month on the basis of G.O Ms. No. 1507 dt 29-9-1970 which prescribed the minimum wage payable to an electrician. The management filed a counter raising a preliminary objection that the application under section 33-C(2) of the Industrial Disputes Act was not maintainable, and that the workman should seek his remedy under Section 20 of the Minimum Wages Act as the, claim was one under the said Act. The Labour Court took the view that a claim under the Minimum Wages Act can be made under section 33-C (2) of the Industrial Disputes Act, and overruled the objection. It is this order of the Labour Court that is impugned in this writ petition.

3. It is necessary to extract the material portion of Section 20 of the Minimum Wages Act, which reads as follows:

“20. Claims: (1) The appropriate Government may, by notification in the official Gazette, appoint any Commissioner for Workman's Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any other officer with experience as a Judge of a Civil Court or as stipendiary Magistrate to be the Authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for-, work done on such days under clause (b) or clause (c) of sub-section (1) of Section 13 or of wages at the overtime rate under Section 14, to employees employed or paid in that area.

(2) Where an employee has an claim of the nature referred to in sub-section (11 the employee himself or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector or any person acting with the permission of the Authority appointed under sub-seciion (1) may apply to such authority for a direction under sub-Section (3).

Provided that every such application shall be presented within six months from the date on which the minimum wages or other amount became payable.

Provided further that any application may be admitted after the said period of six months when the applicant satisfies the Authority that he had sufficient cause for not making the application within such period.

(3) When any application under sub-section (2) is entertained, the Authority shall here the applicant and the employer, or give them an opportunity of being heard, and after such further inquiry, if any, as it may consider necessary, may, without prejudice to any other penalty to which the employer may be liable under this Act, direct—

(i) In the case of a claim arising out of payment of less than the minimum rates of wages, the payment to, the employee of the amount by which, the minimum wages payable to him exceed amount actually paid together, with the payment of such compensation as the authority may think fit, not exceeding ten times the amount of such exccss:

(ii) in any other case, the payment of the amount due to the employee, together with the payment of such compensation as the Authority may think fit, not exceeding ten rupees;

and the authority may direct payment of such compensation in cases where the excess, of the amount due is paid by the employe to the employee before the disposal of the application.

4. It can be seen that under sub-sec. (1) of Sec. 20 an employee can apply to the concerned Authority for a direction under sub-section (3) claiming the reliefs enumerated in sub-section (1). Such an application should, however, be presented within six months from the date on which the minimum wages or other amounts become payable. If such an application is made beyond the period of six months it may be admitted if the applicant satisfies the authority that he had sufficient cause for not making the application within six months. A plain reading of this section would no doubt indicate that a claim for minimum wage can be made, by a workman under this section within a period, of six months as a matter of right, and after the expiry of the period of six months the Authority has the discretion to admit such an application if the applicant shows sufficient cause for the delay. The Minimum Wage Act was enacted in the year 1948, but section 33-C (2) was inserted in the year 1956 and came into force from 10-3-1957 onwards. Several High Courts have held that the Labour Court acting under section 33-C (2) of the Industrial Disputes Act has jurisdiction to entertain an application to enforce a claim based on a right under the Minimum Wages Act and that: the language of section 33-C (2) of the Industrial Disputes. Act is wide enough to include claims based on rights arising under the Minimum Wages Act.

5. In a number of decisions of various High Courts it has been held that a workman can resort to the remedy under section 33-C (2) of the I.D Act, to recover the amount due to him, even though he had a liable to him a remedy under the, Payment of Wages Act, or the Minimum Wages Act, or the Andhra Pradesh Shops and Establishments Act. As illustrations of such decisions may be cited the cases of Tarn Taran Municipality v. State (1) A.I.R 1967 Punjab & Haryana 369); Inder Singh v. Labour Court, Jalundur (2) A.I.R 1969 Punjab & Haryana 310; M/S. Ambica Tobacco Company, Gondia v. The Labour Court, Nagpur* Court, Nagpur (3) 1968-11 L.L.J 353; Lal & Co. v. Kulkarni (4) 1968-11 L.L.J 5181; Union of India v. Samuel Peters (5) 1975-11 L.L.J 185; and Ambika Mills Ltd. v. II Labour Court Ahemdabad (6) 1967-11 L.L.J 800. Apart from the fact that decisions of other High Courts were not binding upon us, but have only a pervasive efficacy, the precise question as to whether resort can be had to section 33-C (2) of the I.D Act in cases in which the remedy under another Act, is not available to the workmen; does not appear to have been considered or decided in any of the eases just cited.

6. We must now proceed to consider the decisions of our own High Court which were referred to in the course of the arguments before us. The first of them is an unreported decision of Chinnappa Reddy J., dated 31st March 1969 in Writ Petition No. 4752/1968 in which the workmen had made an application under section 33-C (2) of the I.D Act, claiming wages for the weekly days of rest. Contrary to the view taken by the Supreme Court in the case of Athani Municipality v. Labour Court, Hubli (7) (1969) 1 SCC 873 : AIR 1969 S.C 1335 to be presently discussed, in detail which was decided just a few days earlier than the judgment of Chinnappa Reddi, J., but apparently not cited before him the learned Judge took the view that such a claim could have been made under Sec. 20 of the Minimum Wages Act. The argument that was urged before him and was decided by him was, however, slightly different from the question which arises before us in the present case. The argument advanced by the learned advocate for the employers was that the jurisdiction of the Labour Court did not extend to the enforcement of claims based on rights conferred by other statutes which themselves prescribe the machinery for the enforcement of those rights, and it was that argument that was negatived by the learned Judge. He held that, notwithstanding the jurisdiction of the Authority constituted under the Minimum Wages Act, to grant the relief prayed for in the case before him, the jurisdiction of the Labour Court to grant that very relief under section 33—C(2) of the Industrial Disputes Act was not excluded. Indeed, that is how, the decision of Chinnappa Reddy, J., in the said case, has been construed by a Division Bench of this Court in the case of M. Krishnaswamy v. Assam Tea Depot (8) 1976 (1) A.P L.J 291 para 9., to which we will presently refer. The precise question for our decision on the other hand is not whether a claim based on rights conferred by others statutes can be enforced under section 33C (2) of the LD. Act, but is whether the fact that another Act also provides a remedy for the enforcement of that right would bar the jurisdiction of the Labour Court under section 33-C(2) even in a case in which the remedy under the other Act is or longer available. That is a question the answer to which is not dependant on the question as to whether the claim of the workmen in question is one which is conferred by a staute other than the LD. Act. The next decision of this Court is that of another single Judge in the case of Bharati Velu Bus Service v. Labour Court, Guntur (9) 1976 (33) F.L.R 91. In that case, the court was concerned with the question whether an application under section 33-C(2) of the I.D Act was maintainable for a claim for wages, and the learned Judge held that it was not maintainable on the principle ‘Generalia Specialibus Non-derogant’ and the employee had to seek relief before the forum under the Payment of Wages Act. In so holding, the learned single Judge merely followed the decision of a Division Bench of this Court in the case of A.B Saleem v. Labour Court (10) 1973 (2) A.P.L.J 40 (Short Nbtes) in which the relevant passage is not very accurately reproduced, It has been correctly quoted in Krishnaswamy's Case (para 12), which can no longer be considered as good law in view of the later decision of another Division Bench of this Court in Krishnaswamy's Case already referred to above, in which same has explained and commented upon. In Krishnaswamy's case, the facts were that a workman, whose services were terminated, filed a petition under section 33-C (2) of the I.D Act, claiming that he was entitled to salary and other emoluments on five counts. The question which the Division Bench had to consider was as to whether he was debarred from moving the Labour Court under Section 33- C(2) of the I.D Act 1947 for the recovery of money which was due to him under the Andhra Pradesh, shops and Establishments Act 1966 Section 63 of the latter Act expressly saved existing rights. It was held (para 15) that in the face of that express saving provision, there was no room for contending that the procedure and forum created by the A.P Shops and Establishments Act barred the entertainment of application under section 33-C (2) of the I.D Act. which was an earlier Act. It was further observed in the judgment of the Division Bench as follows:—

7. “section 33-C (2) is a beneficial provision providing for a prompt and cheap remedy to a workman to receive and realise the money or other benefits due to him, either under a settlement, or award or any other provision of law, and without being affected by the provisions of the Limitation Act (para 9)…………Whether the procedure prescribed by the State Act is more favourable, or whether the procedure prescribed by any other Act is more favourable to an employee, should be left to him to decide. In other words, if he chooses to adopt the remedy under Sec. 33-C (2), an authority, cannot say that the remedies provided by the State Act are more favourable to him, and thereby compel him to adopt the remedy under the State Act (para 15).”

8. Ordinarily a Division Bench is bound to follow the decision of another Division Bench as a Court of coordinate Jurisdiction but, in our opinion the decision of the Division Bench of this Court in Krishnaswamy's case is clearly distinguishable, in so far as it was given in a case in which the alternative remedy which was considered was not one under the Minimum Wages Act, but was a remedy provided under Sections 40-43 of the Andhra Pradesh Shops and Establishments Act, 1966, and the actual decision turned mainly on the provisions of Section 63 of the latter Act. This is clear from the fact that not only has Section 63 been relied upon in the judgment of the Division Bench (paras 6 and 15), but also decisions of earlier Division Benches of this Court to the contrary including that in Saleem's case referred to above, have not been followed (vide paras 12, 13 & 21) on the ground that “it is unfortunate that section 63 of the State Act was not brought to the notice of the learned Judges” (para 13). Moreover, it must be noted that in none of the three decisions of this Court which we just discussed was the question which we have to decide viz., whether the fact another Act provides a remedy for the enforcement of the same right would bar an application under section 33C (2) of the I.D Act, even in a case where the remedy under the other Act is no longer available to the workman concerned, considered or decided by the Court.

9. We will now turn to two decisions of the Supreme Court which in our opinion, afford guidance and assistance for the purpose of deciding that question. The first of them is the decision in the case of Bombay Gas Co. v. Gopal Bhiva (11) AIR 1964 S.C 752. In that case, the workmen had made an application under section 33-C (2) of the I.D Act, for computing certain benefits which they claimed under an award made nearly eight years earlier. It was contended on behalf of the management (para 11) that the claim being a claim for wages within the meaning of the Payment of Wages Act, could not have been made before the Authority constituted under that Act after the lapse of oneyear and that by merely changing the forum the workman could not be permitted to apply under section 33-C (2) of the I.D, Act after the lapse of eight years, by which time even ft suit to recover the same would be barred. It was in that connection, also sought to be contended that jurisdiction conferred on the authority under the Payment of Wages Act was exclusive and, so far as the said Act goes, all claims had to be made within one year. The Supreme Court, however, made it clear (para 12) that it would not decide that question, but would leave it “to be decided on the merits when it directly arises”. It was held by the Supreme Court (para 13) that no period of limitation could be imported in dealing with applications made under section 33-C (2), which did not provide for any such period. Notwithstanding the fact that the claim for wages in the case before it could not have been made before the Payment of Wages Authority after the lapse of one year, the the Supreme Court took the view that the same claim could be made before the Labour Court under section 33-C (2) of the 1 D. Act without any bar of limitation. This decision would, in our opinion, show by necessary implication that a claim which is barred under another Act, can be made under section 33-C (2) of the LD. Act the next decision of the Supreme Court is one in the case of Athani Municipality v. Labour Court, Hubli, already cited above. The facts of the case before the Supreme. Court were that the workmen concerned had made claims for over time work as well as for work done on weekly half days and they filed applications under section. 33-C (2) of the Industrial Disputes Act, 1947 in respect of those demands. It was contended before the Supreme Court that an application under section 33-C (2) could not be entertained by a Labour Court, if an application for the same relief is interminable by an authority under section 20 of the Payment of Wages Act. The Supreme Court took the view (para 7) that demands relating to over-time and for work done on days of rest did not raise disputes in regard to rates and that the remedy, under Section 20(1) of the Minimum Wages Act, could not have been sought by the workmen. Rejecting the contention that the applications made by the workmen be fore them under section 33-C (2) were not maintainable before the Labour Court, the Supreme Court observed as follows (para 5);—

“………………………the claims made by the workmen in the application under section 33-C (2) of the Act could not have been made before the Labour Court under Section 20(1) of the Minimum Wages Act, so that it is not necessary for us to decide the general question on of law whether an application under section 33- C (2) of the Act cannot be competently entertained by a Labour Court if an application for the same relief is interminable by the Labour Court under Section 20(1) of the Minimum Wages Act”.

10. It was held by the Supreme Court (para 7) that there was, therefore, no question of the jurisdiction of the Labour Court to entertain applications under section 33-C (2) of the Industrial Disputes Act, 1947, being barred because of the provisions of the Minimum Wages Act. and the judgment of the High Court was affirmed and the appeal before them dismissed. Incidentally it may be pointed out, that the Supreme Court, after careful consideration of earlier decisions held (para 12) that no period of limitation is prescribed for application under section 33-C (2) of the LD. Act. Though the Supreme Court has left open the wider question as to whether an application under section 33-C (2) can or cannot be entertained by a Labour Court if an application for the same relief is interminable by the Authority under sec. 20(1) of the Minimum Wages Act, it has held in clear terms that such of the claims as could not have been made before the Authority under Section 20 of the Minimum Wages Act, can be agitated in an application under section 33-C (2) of the I.D Act.

11. It is true that the claims in Athani Municipality's case were held by the Supreme Court not to have been within the scope of Section 20(1) of the Minimum Wages Act because of the nature of the claims made by the workmen in that case. Though the claim of the workman in the case before us was, it is not disputed, of a nature which would clearly fall within the scope of Section 20(1) of the Minimum Wages Act, the right to resort to the remedyunder that Act had admittedly become barred by the time the application under section 33-C (2) came to be filed by the workman. A person; seeking relief under Section 20 of the Minimum Wages Act has a right to file on application within six months, but after the period of six months has expired, it is within the discretion of the Authority under that Act, whether or not the workman's application should be entertained. On the other hand as has now been laid down by the Supreme Court in Athani Municipality's case (para 12), no period of limitation is applicable to applications under section 33-C(2) of the I.D Act. The position is that, while in the said case before the Supreme Court the remedy under the Minimum Wages Act was not available at all from its inception, in the present case the remedy under that Act was not available at the time when the application under section 33-C (2) of the I.D Act was filed, because the statutory period of six months had already expired by then. The statutory period having expired the workman in the present case could not resort to the remedy under Section 20 of the Minimum Wages Act as of right. In our opinion, the principle underlying the decision of the Supreme Court is that if the remedy under the Minimum Wages Act is not available to the workman concerned, he can resort to the remedy under section 33-C(2) of the I.D Act. Support is to be found for that view also in the earlier decision of the Supreme Court in Bombay Gas Company's case, already been discussed above, which also shows that a claim which was barred by time under the Payment of Wages Act can be made under section 33-C (2) of the I.D Act. Applying the principle on which the said two decisions of the Supreme Court rest, we hold, that since the workman in the present case could not have resorted to the remedy provided by Section 20 of the Minimum Wages Act at the time when he filed the application under section 33-C(2) of the Industrial Disputes Act, that application is maintainable. Following the course adopted by the Supreme Court in Athani Municipality's Case, we also find it unnecessary to decide the wider question as to whether an application under section 33-C(2) of the I.D Act could be entertained by the Labour Court, if the remedy under Section 20(1) of the Minimum Wages Act is still available to the workman concerned. We therefore see no reason to interfere with the order of the Labour Court and dismiss this writ petition with costs. Advocate's fee Rs. 100/-.