Bombay Gas Co. Ltd Vs. Gopal Bhiva
& Ors  INSC 145 (9 May 1963)
09/05/1963 GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1964 AIR 752 1964 SCR (3) 709
CITATOR INFO :
F 1967 SC 990 (4) F 1968 SC 218 (3,6) R 1969
SC 474 (2) RF 1969 SC 590 (6) R 1969 SC1335 (9) RF 1970 SC 209 (2) RF 1970 SC
237 (12,13) RF 1971 SC1902 (13) R 1975 SC1898 (6)
Industrial Dispute-Applications under s.
33C(2) to claim certain benefits under an Award-Scope of 8. 33C(2)Categories of
workers entitled to benefits-Limitation for applications under a. 33C
(2)-Whether Payment of Wages Act or art. 181 of Limitation Act
applicable-Industrial Disputes Act, 1947 (14 of 1947), a. 33C (2).
Petitions were filed by sixteen respondents
under s. 33C(2) of the Industrial Disputes Act, 1947, claiming certain benefits
under an award made by an Industrial Tribunal. The prayer was to compute the
benefits in terms of money and direct the appellant to pay the same to them.
Many objections were raised by the appellant but these were rejected by the
Labour Court which accepted the claim of the respondents and directed the
appellant to pay to the respondents the respective amounts specified against
their names in the award. The appellant came to this Court by special leave.
The contentions raised by the appellant
before this Court were that the award, on which the claim was based, was
without jurisdiction and hence the Labour Court should have refused to
implement it; that in order to get benefit, the workers must show that they
actually worked on all Sundays in the year before September, 1948; and that as
the claims of the respondents were belated, those should not have been awarded.
Held that the Labour Court would have been
justified In refusing to implement the award if it was satisfied that the 710
direction in the award on which the respondents' claim was based, was without
jurisdiction, but as that was not actually so, the impugned direction was
according to law.
The applications made by respondents were
competent and the Labour Court had jurisdiction to deal with the question as to
the computation of the benefit conferred on the respondents in terms of money.
The proceedings contemplated by s. 330 (2) were, in many cases, analogous to
execution proceedings and the Labour Court which was called upon to compute in
terms of money the benefit claimed by an industrial employee, was in the
position of an executing court and was competent to interpret the award on
which the claim was based and also consider the plea that the award, sought to
be enforced, was a nullity.
Held also, that there was no substance in the
argument that since the respondents had not been actually required to work on
all Sundays in the relevant year, they were not entitled to the benefit given
in the award. The test which had to be satisfied by the workers was that they
could have been required to work on Sundays in that year and not that they
actually so worked.
Held also, that the legislature has not made
any provision for limitation for applications under s. 33C (2) and it was not
open to the Courts to introduce any such limitation on grounds of fairness or
justice, The words of s. 33 C (2) were plain and unambiguous and it was the
duty of the Labour Court to give effect to the said provisions without any
considerations of limitation. The employees who are entitled to take the
benefit of s. 33C (2) may not always be conscious of their right and it would
not be right to put the restriction of limitation in respect of claims which
they may have to make under the said provision. There was no justification for
applying the provisions of the Payment of Wages Act and art. 181 of the
Limitation Act to the proceeding under s. 33C (2).
Claims like bonus arc distinguishable from
claims made under s. 33C (2). A claim for bonus is entertained on grounds of
social justice and is not based on any statutory provision and in such a case,
it is open to industrial adjudication to have regard to all the relevant
considerations before awarding the claim and in doing so if it appears that a
claim for bonus was made after long lapse of time, industrial adjudication may
refuse to entertain the claim or Government may refuse to make the reference in
that , behalf.
711 However, those considerations are
irrelevant when claims we made under s. 330 (2). In such cases limitation
cannot be introduced by industrial adjudication on academic grounds of social
Central Bank of India Ltd. v. P. S.
Rajagopalan,  Vol.
3 S.C.R. 140; Rai Manekbai v. Manekji
Kavasji, (1883) 7 Bom.
213; Hansral Gupta v. Official Liquidators,
Dehra Dun Musoorie Electric Tramway Co. Ltd., (1932) L.R.. 60 I.A. 13 and Sha
Mulchand & Co. Ltd. v. Jawahar Millar Ltd.  S.C.R. 351, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 333-334 of 1962.
Appeals by special leave from the preliminary
order dated June 3, 1961 and Order dated September 29,'1961 of the Second
Labour Court, Bombay in Applications (I.D.A.) Nos.
447 to 462 of 1958.
R.J. Kolah, J. B. Dadachanji, O. C. Mathur
and Ravinder Narain, for the appellant.
S. V. Gupte, Additional Solicitor-General of
India, K. T. Sule, M. C. Bhandare, M. Rajagopalas and K. B. Chaudhuri, for the
1963. May 9. The judgment of the Court was
delivered by GAJENDRAGADKAR.J.-These 16 appeals arise out of petitions filed by
the 16 respondents who arc the employees of the appellant, the Bombay Gas Co.
Ltd., under section 33C (2) of the Industrial Disputes Act (No. 14 of 1947)
(hereinafter called the Act). These respondents are the District Siphon Pumpers
and Heat Appliances Repairers Inspectors, and in their applications made before
the Second Labour Court, Bombay, they alleged that as a result of the award
made by the Industrial Tribunal in reference (I. T.) No. 54 of 1949 published
in the Bombay Government Gazette on May 11, 1950, they were entitled to a
certain benefit 712 and they moved the Labour Court to compute that benefit in
terms of money and to direct the appellant to pay the same to them. The
direction in the earlier award on which this claim was based was made in these
terms "The demand in respect of the workers of the Mains, Services and
District Fittings Departments and Lamp Repairers and others who were till 1948
required to work on Sundays and in respect of whom a weekly day off was
enforced thereafter without any corresponding increase in wages is granted. In
respect of the rest, the demand is rejected.
This demand was resisted by the appellant on
several preliminary grounds which formed the subject-matter of several preliminary
issues framed by the Labour Court. The principal contentions raised by the
appellant by way of preliminary objections were. that the applications made by
the respondents were not maintainable under s. 33C (2) of the Act and that the
said applications were barred by res judicata by reason of awards made in other
proceedings between the same parties. It was also urged by the appellant that
if the claim made by the respondents was held to be justified by the direction
of the award on which the respondents relied, then the said direction was given
by the earlier Tribunal without jurisdiction and as such, was incapable of
enforcement. On the construction, the appellant urged that the said direction
did not cover the cases of the respondents, and it was argued that even if the
said direction was held to be valid and it was also held that it gave the
respondents the right to make the present claim, the conditions precedent
prescribed by the said direction had not been satisfied by any of the
respondents, and so, on the merits, their claim could not be sustained.
713 The Labour Court took up for trial 10 preliminary
issues in the first instance and by its judgment delivered on June 3, 1961, it
rejected all the preliminary pleas raised by the appellant. In other words, the
preliminary issues framed by the Labour Court were found in favour of the
Thereafter, the applications were set down
for hearing on the merits and evidence was led by both the parties in support
of their respective claims. On considering the evidence, the Labour Court came
to the conclusion that the respondents had established their claims, and so, it
has directed the appellant to pay to the respondents the respective amounts
specified against their names in the award. The plea raised by the appellant
that the whole of the: claim made by the respondents should not be allowed on
the ground of belatedness and laches, was, according to, the Labour Court, not
sustainable under section 33C (2). That is why the Labour Court computed the
benefits claimed by the respondents in terms of money from the date when the
earlier award became enforceable until the date of the present applications
filed before it. The appellant has come to this Court by special leave against
the preliminary decision and the final order passed by the Labour Court in
favour of the respondents.
Before dealing with the points raised in the
present appeals by the appellant, it is necessary to set out briefly the terms
of the earlier award on which the respondents' claims are based. In the
previous industrial dispute, the employees of the appellant had made several
demands. In the present case, we are concerned with demand No. 11. This demand
was made in these terms "(a) Workers should get a paid weekly off.
(b) Weorkers of Mains, Services and District
Fitting Departments and Lamp Repairers, 714 who have been adversely affected in
the matter of their earnings on account of closing down of the overtime and
Sunday Work, should be compensated for the loss suffered by them;
compensation being the amount lost by them
since the scheme was introduced." The Tribunal which dealt with this
demand observed that demand No. 11 (a) had been badly worded. There was,
however, no doubt that what the employees claimed against the appellant was, in
substance, a demand for paid weekly off only for those workers who were
actually getting a weekly off, though without pay. In dealing with this demand,
the Tribunal noticed the fact that all the monthly paid staff employed by the
appellant got a paid weekly offhand so,it thought that there was no reason to discriminate
between the said staff and the daily rated workers. In regard to the daily rated
workers usually, their monthly income would be determined on the basis of a
month consisting of 26 working days. From the Statement of claim 'filed by the
Union before the Tribunal, it appeared that prior to 1946, most of the workers
used to work for all the seven days of the week. By about August, 1946,
however, weekly offs were enforced upon the major section of the workmen. In
June 1946, the appellant and the Union had entered into an agreement as regards
wage scales of various categories of workers, and the Tribunal assumed that in
respect of most of the daily rated workers, the wages must have been fixed on
the basis of what their monthly income would be for 26 working days. It is in
the light of this.
background that the Tribunal proceeded to examine
demand No. 11 (a).
The Tribunal noticed that in the case of the
four categories of workers specified in demand No. 11 (b), difference had to be
made because it could not be said in their case that their daily rates of 715
wages were fixed with reference to a month of 26 working days. The result was
that with the introduction of the weekly off, the wages of those workers were
Naturally, the Tribunal observed that in such
a case, the concession of a weekly off would be a very doubtful benefit if as a
result, the monthly income of the workers was to go down. That is why the
Tribunal gave the direction on which the respondents' present claim is based.
This direction we have already quoted at the beginning of the judgment.
Having thus dealt with demand No. 11 (a), the
Tribunal proceeded to examine, demand No, 11 (b), and it ordered that the
workers of Mains, Services and District Fittings Departments and Lamp Repairers
who had been adversely affected in the matter of their earnings on account of closing
down of Sunday work, should be compensated for the loss suffered by them, by
payment of their wages and dearness allowance for the weekly off given to them
from June 1, 1949 onwards till the date of the publication of the award.
The question about the scope and effect of
the provisions of s. 33C (2) of the Act and the extent of the jurisdiction
conferred on the Labour Court by it have been recently considered by us in the
case of The Central Bank of India Ltd. v. P. S. RajagopaIan (1). That decision
shows that the applications made by' the respondents were competent and the
Labour Court had jurisdiction to deal with the question as to the computation
of the benefit conferred on the respondents in terms of money. Mr. Kolah for
the appellant contends that though the applications made by the respondents may
be competent and the claim made by them may be examined under s. 33C (2), it
would, nevertheless, be open to the appellant to contend that the award on
which the said claim is based is without jurisdiction and if he succeeds in (1)
 S. C.R. 140, 716 establishing his plea, the Labour Court would be
justified in refusing to give effect to the said Award. In our opinion, this
contention is well-founded. The proceedings contemplated by s. 330 (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 the Labour Court under s. 33C (2) would be competent to interpret the
award on which the claim is based, and it would also be open to it to consider
the plea that the award sought to be enforced is a nullity. There is no doubt
that if a decree put in execution is shown to be a nullity the executing court
can refuse to execute it. The same principle would apply to proceedings taken
under s 33C (2) and the jurisdiction of the labour court before which the said
proceedings are commenced. Industrial Tribunals which deal with industrial
disputes referred to them under s. 10 (1) (d) of the Act are, in a sense,
Tribunals with limited jurisdiction. They are entitled to deal the disputes
referred to them, but they cannot I outside the terms of reference and deal
with matters not included in the reference, subject, of course, to incidental
matters which fall within their jurisdiction. Therefore, on principle, Mr.
Kolah is right when he contends that the Labour Court would have been justified
in refusing to implement the award, if it was satisfied that the direction in
the award on which the respondents' claim is based is without jurisdiction.
That takes us to the question about the
merits of the plea raised. by Mr. Kolah. Mr. Kolah contends that the direction
in question on which the respondent's claim is based, is invalid for the reason
that the Tribunal travelled outside the terms of reference when it added the
words "'and others" in the 717 said direction. His argument is that
the said direction has really been issued under demand No. 11 (b) and since the
said demand was confined to the four categories of workmen specified in it, the
Tribunal had no jurisdiction to extend the relief to any workers outside the
said four categories by adding the words " and others". Thus
presented, the argument is no doubt attractive, but on a careful examination of
the scheme of the award in so far as it relates to demand No. 11, it would be
clear that the impugned direction has relation not to demand No. 11 (6), but to
demand No. 11(a), and it is obvious that demand referred to all workers and was
not confine to any specified categories of workers. It is true that in dealing
with the said demand, the Tribunal prominently referred to the four categories
of employees specified in demand No. 11 (b), but that is not to say that it was
confining the said demand to the said four categories. The said four categories
were mentioned specifically because they clearly brought out the cases of
workmen to whom relief was due under demand No. 11 (a). Having thus dealt with
the said four categories by name, the Tribunal thought it necessary, and we
think, rightly, to add the words "and others", because if there were
other workmen who were till 1948 required to work on Sundays and in respect of
whom a weekly day off was introduced thereafter without any corresponding
increase in their wages, there was no reason why they should not have been
given the benefit which was given to the workmen of the four categories
specifically discussed. it is significant that having thus comprehensively
described the workmen who were entitled to the said benefit, the Tribunal has
added that in respect of the remaining workmen, demand No. 11 (a) was rejected.
Therefore, we are satisfied that the relief granted by the Tribunal in
paragraph 115 of its award has reference to demand No. 11 (a) and the use of
the words "and others" is not only not outside the terms of
reference, but is quite appropriate and justified.
718 That being so, it is difficult to sustain
the plea that the impugned direction was without jurisdiction.
Mr. Kolah no doubt relied on the fact that
the present respondents never thought that they were entiteld to the benefit
conferred by the impugned direction and in support of this plea, he referred us
to the fact that in' 1952, a demand was made on their behalf for a similar
benefit. If the respondents had felt that the benefit conferred by the impugned
direction was available to them, it is very unlikely says Mr. Kolah, that they
would have made the same demand in 1952 on the basis that it had not been
granted to them by the earlier award. It does appear that this demand was made
on behalf of the respondents and the Government of Bombay took the view that
the said demand had already been considered by the Tribunal and that it was too
late to reopen it in regard to other categories of employees; that is why the
Government refused to make a reference. In our opinion, this fact cannot
materially assist Mr. Kolah, because on a fair and reasonable construction of
the material direction in the award, we are satisfied that the said clause
applies to all workers of the appellant who satisfy the test prescribed by it.
If the respondents did not understand the true scope and effect of the said
clause, that cannot affect the construction of the clause.
Therefore, we do not think that the failure
of the respondents to take advantage of the said clause soon after the earlier
award was pronounced can have any bearing on the construction of the clause.
Then, Mr. Kolah has suggested that on the
merits the respondents are not entitled to make the claim, because, it is not
shown by them that they were required to work on all Sundays in the relevant
years. He argues that the test prescribed by the direction is that the benefit
should be available to 719 workmen who were, till 1948, required to work on
Sundays and that, it is suggested, must mean "who were required to work on
all Sundays in the year". This argument has been examined by the Labour
Court and it has found that the respondents were required to work on Sundays
before 1948, though they might not have attended on all Sundays. In support of
this finding, the Labour Court has referred to Ext. 32 and has drawn the inference
from the said document that the workers in the Syphon Department were required
to work on all Sundays before September, 1948, and it has added that the fact
that they did not work on some Sundays may be attributed to some casual
circumstances, such as the workers having voluntarily remained absent, or there
not being sufficient work for all, some might have been sent home.
Mr. Kolah has invited our attention to the
chart (Ext. 32) and has shown that in some cases, the employees were not
required to work even half the number of Sundays during that year. In our
opinion, this argument proceeds on a misconstruction of the relevant clause in
the award. The said clause does not provide that before getting the benefit in
question, the workers must show that they actually worked on all Sundays in the
year. The test which has to be satisfied by the workers is that they could have
been required to work on Sundays in that year. In other words, what the
Tribunal decided was that if there were workers employed by the appellant whom
the appellant could require to work on Sundays during the relevant year, they
would be entitled to the benefit. In other words, the test is : did the terms
and conditions of service impose an obligation on the workers to attend duties on
Sundays if called upon to do so? That is very different from saying that the
benefit would be available only if the workers in question worked on all
Sundays. Therefore, we do not think there is any substance in the argument that
since the respondents had not been actually required to work on all Sundays in
the 720 relevant year, they were not entitled to the benefit of the relevant
clause in the award.
That leaves one more question to be
considered. Mr. Kolah has strenuously argued that the Labour Court should not
have allowed the claim of the respondents for such a long period when they made
the present applications nearly 8 years after the award was pronounced. It is
true that the earlier award was pronounced on May 11, 1950 and the present
applications were made in 1958. In support of his argument that the delay made
by the respondents should be taken into account, Mr. Kolah has referred to the
fact that under the Payment of Wages Act (No. 4 of 1936) a claim for wages has
to be made within six months from the date on which the cause of action accrues
to the employees. In the State of Maharashtra, by local modification, this
period is prescribed as one year.
The argument is that the present claim made
by the respondents under s. 33 C(2) is a claim for wages within the meaning of
the Payment of Wages Act. If the respondents had made such a claim before the
authority under the said Act, they could not have got relief for more than a
year. It would be anomalous, says Mr. Kolah. that by merely changing the forum,
the respondents should be permitted to make a claim for as many as 8. years
under s. 33C (2). In this connection, Mr. Kolah also contends that by virtue of
s. 22 of the Payment of wages Act, a claim for wages cannot be made by an
industrial employee in a civil court after a lapse of one year, because though
the period for such a., suit may be 3 years under Art. 102, a civil suit is
barred by s. 22. The jurisdiction conferred on the payment authority is
exclusive and so far as the said Act goes, all claims must be made within one
Prima facie, there is some force in this
argument. It does appear to be somewhat anomalous that a claim which would be
rejected as barred by 721 time if made under the Payment of Wages Act., should
be entertained under s. 33C (2) of the Act; but does this apparent anomaly
justify the introduction of considerations of limitation in proceedings under
s. 33C (2)? Mr. Kolah suggests that it would be open to this Court to treat
leaches on the part of the employees as a relevant factor even in dealing with
case under s. 33C (2) and he has relied one fact that this Court has on several
occasions discouraged belated claims in the matter of bonus. in appreciating
the validity of this I argument, we do not propose to consider whether the
jurisdiction conferred on the authority under the Payment of Wages Act is
exclusive in the sense that a claim for wages cannot be made by an industrial
employee in a civil court within 3 years as permitted by art. 102; that is a
question which may have to be decided on the merits when it directly arises.
For the purpose of the present appeal, the only point which we have to consider
is : does the fact that for recovery of wages limitation has been prescribed by
the payment of Wages Act.
Justify the introduction of considerations of
limitation in regard to proceedings taken under s. 33C (2) of the Act ? In
dealing with this question, it is necessary to bear in mind that though the
legislature knew how the problem of recovery of wages had been tackled by the
Payment of Wages Act and how limitation had been prescribed in that behalf, it
has omitted to make any provision for limitation in enacting s. 33C (2). The
failure of the legislature to make any provision for limitation cannot, in our
opinion, be deemed to be an accidental omission. In the circumstances, it would
be legitimate to infer that legislature deliberately did not provide for any
limitation under s. 33C (2). It may have been thought that the employees who
are entitled to take the benefit of s. 330 (2) may not always be conscious of
their rights and it would not be right to put the restriction 722 of limitation
in respect of claims which they may have to make under the said provision.
Besides, even if the analogy of execution proceedings is treated as relevant,
it is well known that a decree passed under the Code of Civil Procedure is
capable of execution within 12 years, provided, of course, it is kept alive by
taking steps in aid of execution from time to time as required by art. 182 of
the Limitation Act, so that the test of one year or six months' limitation
prescribed by the Payment of Wages Act cannot be treated as a uniform and
universal test in respect of all kinds of execution claims. It seems to us that
where the legislature has made no provision for limitation, it would not be
open to the courts to introduce any such limitation on grounds of fairness or
justice. The words of s. 33C (2) are plain and unambiguous and it would be the
duty of the Labour Court to give effect to the said provision without any
considerations of limitation. Mr. Kolah no doubt emphasised the fact that such
belated claims made on a large scale may cause considerable inconvenience to
the employer, but that is a consideration which the legislature may take into account,
and if the legislature feels thatch play and justice require that some
limitations be prescribed, it 'may proceed to do so. In the absence of any
provision,however, the Labour Court cannot import any such consideration in
dealing with the applications made under s. 33C (2).
Mr. Kolah then attempted to suggest that art.
181 in the First Schedule of the Limitation Act may apply to the present
applications, and a period of 3 years' limitation should, therefore, be held to
govern them. Article 181 provides 3 years' limitation for applications for
which no period of limitation is provided elsewhere in Schedule 1, or by s. 48
of the Code of Civil Procedure, and the said period starts when the right to
apply accrues. In our opinion, this argument is one of desperation. It is well
settled 723 that art. 181 applies only to applications which are made under the
Code of Civil Procedure, and so, its extension to applications made under s.
33C (2) of the Act would not be justified. As early as 1880, the Bombay High Court
had held in Rai Manekbai v. Manekji Kavasji (1), that art. 181 only relates to
applications under the Code of Civil Procedure in which case no period of
limitation has been prescribed for the application, and the consensus of
judicial opinion on this point had been noticed by the Privy Council in Hansraj
Gupta v. Official Liquidator8, Dehra Dun Mussoorie Electric Tramway Company
Ltd. (2) An attempt was no doubt made in the case of Sha Vulchand & Co.
Ltd. v. Jawahar Mills Ltd. (3), to suggest that the amendment of articles 158
and 178 ipso facto altered the meaning which had been attached to the words in
art. 181 by judicial decisions, but this attempt failed, because this Court
held "'that the long catenate of decisions under art. 181 may well be said
to have, as it were, added the words "under the Code" in the first
column of that Article." Therefore it is not possible to accede to the
argument that the limitation prescribed by art. 181 can be invoked in dealing
with applications under s. 33C (2) of the Act.
It is true that in dealing with claims like
bonus, industrial adjudication has generally discouraged laches and delay, but
claims like bonus must be distinguished from claims made under s. 33C (2). A
claim for bonus, for instance, is entertained on grounds of social justice and
is not based on any statutory provision. In such a case,, it would, no doubt,
be open to industrial adjudication to have regard to all the relevant
considerations before awarding the claim and in doing so, if it appears that a
claim for bonus was made after long lapse of time, industrial adjudication may
refuse to entertain the claim, or Government -nay refuse to make reference in
But these considerations would (1) I.L
R. 7 Bom. 213.
(2)  L.R. 60 I.A. 13, 20.
(3) (1953) S.C.R, 351, 371 , 724 be
irrelevant when claims are made under s. 33C (2), where these claims are, as in
the present case, based on an award and are intended 'merely to execute the
award. In such a case, limitation cannot be introduced by industrial
adjudication on academic ground of social justice. It can be introduced, if at
all, by the legislature. Therefore, we think, that the Labour Court was right
in rejecting the appellant's contention that since the present claim was
belated, it should not be awarded.
In the result, the appeals fail and are
dismissed with costs.