Mohd. Ismail Mohd. H... v. The Presiding Office...

C.P Sen, J.:— This order will govern the disposal of Misc. Petition No. 570 of 1977 (Divisional Superintendent, South Eastern Railway, Bilaspur v. Central Government, Industrial Trihunal-cum Labour Court) as the question involved in both the cases is the same.

2. The Division Bench has referred the following question to the Full Bench for opinion:—

“Whether an application under section 33-C(2) of the Industrial Disputes Act, 1947, is barred by virtue of section 22 of the Payment of Wages Act where an application lies also under section 15 of the Payment of Wages Act for recovery of that amount?

The question arose because of the decision of a Division Bench of this Court in Laxman Tulsiram v. Dayalal Meghji and Co. 1967 MPLJ 63 , AIR 1957 MP 155 that claim is maintainable only under Payment of Wages Act and not under section 33-C(2) of the Industrial Disputes Act. Scope of section 33-C(2) is not wide enough to include claims under sections 2(vi) and 15 of Payment of Wages Act. The Labour Court has no jurisdiction to entertain such claim. This has been followed by another decision of the Division Bench of this Court in Managing Director National Coal Development Corporation Ltd. v. Shri G.C Agrawal M.P No. 133/69 decided on 8-1-1971.

3. The petitioner in M.P No. 676/76 after his retirement from the service of the Government of M.P was appointed as Surveyor in National Mineral Development Corporation in the pay scale of Rs. 230-500. Since his pension case was not finalised by the State Government, the Corporation fixed his pay on ad-hoc basis as Assistant Surveyor in the pay scale of Rs. 180-380. As soon as the pension case of the petitioner was finalised, he informed the Corporation about it and requested that his pay be fixed in accordance with the terms of appointment. Since nothing was done, the petitioner moved an application under section 33-C(2) of the Industrial Disputes Act for payment of differences in wages. The application was opposed by the Corporation and a preliminary objection was raised that the application is not maintainable under section 33-C(2) of the Industrial Disputes Act as the petitioner has got a remedy under section 15 of the Payment of Wages Act. The objection was sustained by the Central Government Industrial Tribunal-cum-Labour Court by its order dated 27-5-1976 by relying on the decision of this Court in Laxman Tulsiram v. Dayalal Meghji and Co. (supra). The Tribunal held that the claim under section 33-C(2) of the Industrial Disputes Act is barred by the provisions of section 22 of the Payment of Wages Act. Aggrieved by this order, the petitioner has moved this Court under Articles 226 and 227 of the Constitution. The Division Bench has referred the question regarding the correctness of the decision of the Division Bench of this Court in Laxman Tulsiram v. Dayalal Meghji and Co. (supra) because the other High Courts have taken a contrary view and have held that application under section 33-C(2) can also be entertained and adjudicated upon and the same is not barred by section 22 of the Payment of Wages Act. Several decisions of the Supreme Court also support the contrary view.

4. The respondent No. 2 in M.P 570/77 was working as Station Master in South Eastern Railway. While working so at Jathari Railway Station, a departmental enquiry was started against him for selling railway tickets fraudulently without depositing the sale proceeds in the daily cash account and also for issuing card tickets without punching the dates and misappropriating the amount by reselling the card tickets. During pendency of the enquiry, he attained the age of 55 and hence he was compulsorily retired under paragraph 2046 clause (h)(2) of the Railway Establishment Code, Volume II. He was also put under suspension during the enquiry. The respondent No. 2 filed an application under section 33-C(2) of the Industrial Disputes Act, 1947, before Central Government Industrial Tribunal-cum-Labour Court, Jabalpur, claiming difference in wages from 7-9-1970 to 22-7-1971 i.e the period covered by his suspension. An objection was raised by the Railway Administration that the application was not maintainable as the remedy of the respondent No. 2 was to file an application under section 15 of the Payment of Wages Act and the present proceeding was barred under section 22 of that Act. The same Tribunal took a contrary view and held that the application was maintainable by relying on the decision of the Andhra Pradesh High Court in Kilaru Gopal G. Rao v. Labour Court Hyderabad 1977 FLR 75 AP. Aggrieved by this order, the Railway Administration has filed this petition under Article 226 of the Constitution.

5. Section 15 of the Payment of Wages Act provides that claims arising out of deductions from wages or delay in payment of wages including all matters incidental to such claims can be filed by the aggrieved employee. Section 22 of the Act bars a Court from entertaining any suit for the recovery of wages or of any deduction from wages which could be adjudged in a proceeding under section 15 of the Act. The Federal Court in Shamnuggor J.F Co. v. S.N Modak AIR 1949 PC 15 has held the only additional argument urged before us was that the claim to such payment should be determined under the Payment of Wages Act, because section 15 of the Act creates the Tribunal and under section 22(d) of the Act the jurisdiction of civil Courts to hear a suit for wages is excluded. In our opinion, this argument is unsound. Section 22(d) only prevents a suit for wages. It does not exclude any other proceeding permitted by law to enforce payment. Sub-section (1) of section 33-C of the Industrial Disputes Act provides that where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A, the workman without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him. Under sub-section (2) where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money can be decided by such Labour Court as may be specified in this behalf by the appropriate Government. It may be mentioned here that section 22 of the Payment of Wages Act refers to suit and a suit has been defined by the Privy Council in Hansraj v. Dehradun M.E.T Co. AIR 1933 PC 63 in which it has been held that the word ‘suit’ ordinarily means, and apart from some context must mean, a civil proceeding instituted by the presentation of a plaint.

6. The Supreme Court while considering the jurisdiction of the authority under section 15 of the Payment of Wages Act in Shri Ambika Mills Co. v. S.B bhatt AIR 1961 SC 970 has held that it is thus clear that the only claims which can be entertained by the authority are claims arising out of deductions or delay made in payment of wages. The jurisdiction thus conferred on the authority to deal with these two categories of claims is exclusive for section 22 of the Act provides that matters which lie within the jurisdiction of the authority are excluded from the jurisdiction of ordinary civil Courts. Thus, in one sense the jurisdiction conferred on the authority is limited by section 15 and in another sense it is exclusive as prescribed by section 22. While considering a case under section 33-C(2) of the industrial Disputes Act the Supreme Court in Central Bank of India v. Rajgopalan AIR 1964 SC 743 has held as under:—

“Claims made under section 33-C(1) by itself can be only claims referable to the settlement, award or the relevant provisions of Chapter V-A. These words of limitations are not to be found in section 33-C(2) and to that extent, the scope of section 33-C(2) is undoubtedly wider than that of section 33-C(1). The three categories of claims mentioned in section 33-C(1) fall under section 33-C(2) and in that sense, section 33-C(2) can itself be deemed to be a kind of execution proceeding; but it is possible that claims not based on settlements, awards or made under the provisions of Chapter V-A may also be competent under section 33-C(2) and that may illustrate its wider scope.”

The Supreme Court in Bombay Gas Co. v. Gopal Bhiva AIR 1964 SC 752 has further held that the proceedings contemplated by section 33-C(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 executing Court; like the executing Court in execution proceedings governed by the Code of Civil Procedure. A claim under section 33-C(2) is a claim for wages within the meaning of the Payment of Wages Act. It is no doubt somewhat anomalous that a claim which would be rejected as barred by time if made under the Payment of Wages Act should be entertained under section 33-C(2) of the Act, but this apparent anomaly does not justify the introduction of considerations of limitations in proceedings under section 33-C(2). The Supreme Court, in Athani Municipality v. Labour Court, Hubli (1969) 1 SCC 873 , AIR 1969 SC 1335 while considering similar provisions under Minimum Wages Act, 1948, held that the jurisdiction of the Labour Court to entertain an application under section 33-C(2) is not barred by section 20(1) of the Minimum Wages Act because Labour Courts are not Courts within the meaning of Code of Civil Procedure or the Limitation Act. In cases where there is no dispute as to rates of wages, and the only question is whether a particular payment at the agreed rate in respect of minimum wages, overtime or work on off days is due to a workman or not, the appropriate remedy is provided in section 15 of the Payment of Wages Act. In cases where section 15 of the Payment of Wages Act may not provide adequate remedy, the remedy can be sought either under section 33-C of the Industrial Disputes Act or by raising an-industrial dispute under the Act and having it decided under the various provision of the Act.

7. If appears that there is a consensus of judicial opinion of the various High Courts that it cannot be said that the jurisdiction of the Tribunal under the Industrial Disputes Act is determinable under the Payment of Wages Act or the Minimum Wages Act is excluded. The Labour Court cannot be regarded as a Court of general jurisdiction, it is as much a special tribunal as the authority appointed under the provisions of the Minimum Wages Act or Payment of Wages Act. Each of these tribunal has jurisdiction in respect of matters specified in the enactment constituting them and in any other enactment. There may be overlapping of jurisdiction of these special tribunals over some matters. There is nothing strange or unusual in more than one forum having jurisdiction over the same matter. Neither section 24 of the Minimum Wages Act nor section 22 of the Payment of Wages Act bars the jurisdiction of a Labour Court to entertain and adjudicate upon an application under section 33-C(2) of the Act. The Labour Court is a judicial or at least a quasi-judicial Tribunal but not a civil Court and the jurisdiction of the Labour Court not having been barred by the express provision of either section 22 of the Payment of Wages Act or section 24 of the Minimum Wages Act, it is against the well-settled canons of interpretation of statutes to imply any such bar to the jurisdiction of the Labour Court which is not created by any statute. The majority view also seems to be in accord with the observations of the Supreme Court cases mentioned above Municipal Committee, Tarn Taran v. State of Punjab AIR 1967 Punj 369 (D.B), Ambika Mills Ltd. v. Second Labour Court, Ahmedabad 1967 (2) ILJ 800 (Guj D.B) and Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli AIR 1968 Mysore 150. Approved by the Supreme Court in Athani Municipality v. Labour Court, Hubli (Supra) Ambika Tobacco Co., Gondia v. Labour Court, Nagpur 1968 (2) ILJ 333 (Bom. D.B), Lal & Co. v. Kulkarni 1968 (2) LLJ 518 (Bom. D.B), Inder Singh v. Labour Court, Jullundar AIR 1969 P & H. 311 (D.B), B. Narsingoal v. Damodara Bhatt 1971 Lab. & Indus. Cases 378 (Mys. D.B), Rly. Employees' Co-op. Soc. v. Authority, P.W Act 1971 LLJ 185 (Rajasthan S.B), Union of India v. Samuel Peters 1975 (2) LLJ 185 (Bom. D.B) and Anand Oil Industries v. Labour Court, Hyderabad AIR 1979 AP 182 (F.B). It is, therefore, clear that Labour Court is not a civil Court and the application filed under section 33-C(2) is not a suit and, as such, Labour Court has got jurisdiction to entertain claims arising out of deductions from wages or delay in Payment of Wages and the Labour Court is not debarred from entertaining such claims in spite of sections 15 and 22 of the Payment of Wages Act. Claims under section 33-C(2) are not restricted only in respect of claims referable to settlement award or the relevant provisions of Chapter V-A as mentioned in section 33-C(1). A claim under section 33-C(2) can also include a claim which is provided under the statute or otherwise.

. However, the Division Bench decision of this Court in Laxman Tulsiram v. Dayalal Meghji & Co. (Supra) is the solitary decision which has taken a contrary view and has held that in view of section 22 of the Payment of Wages Act a claim could be entertained under sections 2(vi) and 15 of the Payment of Wages Act and not under section 33-C(2) of the Industrial Disputes Act. This has been followed by another Division Bench decision in Managing Director, N.C.D.C Ltd. v. Shri G.C Agarwal (Supra) — With great respect we express our doubt about the correctness of the decision in Laxman Tulsiram v. Dayalal Meghji & Co. (Supra). The Supreme Court in Shri Ambika Mills & Co. v. S.B Bhatt (Supra) has only said that the matters which lie within the jurisdiction of the authority under the Payment of Wages Act are excluded from the jurisdiction of the ordinary civil Courts i.e claims arising out of deduction or delay in payment of wages. The jurisdiction conferred on the authority is limited by section 15 and it is excluded as prescribed by section 22 i.e there is bar of civil suit only, and the provision cannot be read as to debar Labour Court under section 33-C(2) from entertaining such claim. The Supreme Court in Central Bank of India v. Rajgopalan (Supra) also clearly mentioned that an application under section 33-C (2) may also include a claim which is not based on settlement, award or made under the provisions of Chapter V-A as mentioned in section 33-C(1). The Supreme Court in Bombay Gas Co. v. Gopal Bhiva (Supra) has upheld that order of the Labour Court allowing a similar claim under section 33-C(2) although such a claim was barred under section 15 of the Payment of Wages Act, there being a limitation of one year under that Act but the claim was preferred after 8 years. Therefore, it is clear that the decision of the Division Bench of this Court in Laxman Tulsiram v. Dayalal Meghji & Co. (Supra) is not only contrary to the trend of judicial decisions on the point in question but it also goes contrary to the decisions of the Supreme Court in cases mentioned above. Accordingly, we overrule the decisions of this Court in Laxman Tulsiram v. Dayalal Meghji & Co. and Managing Director, National Coal Development Corporation Ltd. v. Shri G.C Agarwal.

9. We, therefore, answer the question in the negative by saying that an application under section 33-C(2) of the Industrial Disputes Act, 1947, is not barred by virtue of section 22 of Payment of Wages Act, 1936, in respect of claims that could be preferred under section 15 of the Payment of Wages Act and that the two Division Bench decisions of this Court referred to above did not lay down the correct law.

Reference answered.