National Buildings Construction
Corporation Vs. Pritam Singh Gill & Ors [1972] INSC 97 (29 March 1972)
DUA, I.D.
DUA, I.D.
VAIDYIALINGAM, C.A.
MITTER, G.K.
CITATION: 1972 AIR 1579 1973 SCR (1) 40 1972
SCC (2) 1
CITATOR INFO:
RF 1991 SC1289 (16)
ACT:
Industrial Disputes Act (14 of 1947), s.
33C(2)-Scope of'Workman', if includes one whose services have been terminated.
HEADNOTE:
The respondent, an employee of the appellant
was suspended and 'the suspension remained in force till the date of his
dismissal. He applied to the Labour Court under s. 33C(2) of the Industrial
Disputes Act, 1947, for computation of the benefits and amounts he was entitled
to receive during the period of suspension, and the Labour Court decided in his
favour.
On the question whether the section can be
invoked by a dismissed workman in respect of, benefits and salary due to him
for the period prior to the date of dismissal,
HELD: The sub-section provides that where any
workman is entitled to receive from the employer any money or any benefit which
is capable of beingcomputed in terms of money and if any question arises as to
the amount due, then the question may be decided by the appropriate 'Labour
Court. The definition of 'workman' in s. 2(s) of the Act includes within its
fold, only for the purpose of a proceeding under the Act in relation to an
industrial dispute, persons who have been dismissed, ,discharged or retrenched
in connection with or as consequence of that dispute or whose dismissal,
discharge or retrenchment has led to that dispute. The definition specifically
excludes from its purview four categories of persons employed in an industry,
who would have otherwise been within the periphery of the definition. But,
because the definition includes only specified types of dismissed, discharged
or retrenched workmen for limited purposes and expressly excludes certain
categories of persons, it cannot, on that account, be contended that the
definition is precise and exact and cannot be extended to other dismissed,
discharged or retrenched workmen, whose claim requiring computation is in
respect of an existing right arising out of his relationship as an industrial
workman of his employer. [50B-E, 51A-C] The definition section begins with the
clause, 'unless there is anything repugnant in the subject or context.' The
context and the subject matter are accordingly important factors; because, all
parts of the Act have to be in harmony with the statutory intent. The object of
enacting the section was to enable individual workmen to implement, enforce or
execute their existing individual rights against their employers without being
compelled to have recourse to s. 10 by raising disputes and securing a
reference which is obviously a lengthy process. It clothes the Labour Court
with powers similar to those of an executing court so that the concerned
workman gets speedy relief. It therefore calls for a broad and beneficial
construction, consistent with the other provisions of the Act, which should
serve to advance the remedy and to suppress the mischief. The mischief which
the section was designed to suppress was the difficulty faced by individual
workmen in getting relief in respect of their existing 41 rights without, having,
resort to s. 10 of the Act.
Therefore, the term workman' as used in the
sub-section must include all persons whose claim, requiring compuation under
the sub-section, is in respect of an existing right arising from his
relationship as an industrial workman with his employer. Otherwise, it would
always be open to an unfair, unsympathetic and unscrupulous employer to
terminate the services of his employee in order to deprive him of the benefit
conferred by the section and compel him to have resort to the lengthy procedure
by way of reference under s. 10, thereby defeating the very purpose and object
of enacting the provision. [5lE-A, 52-A-E] Chief Mining Engineer, East India
Coal Co. Ltd. v.Rameshwar & Ors. [1968] 1 S.C.R. 140, U.P. Electric Supply
Co. v. R. K. Shukla, A.I.R. 1970 S.C. 237, R. B. Bansilal Abhirchand Mills Co.
(P) Ltd. v. The Labour Court, Nagpur, A.I.R. 1972 S.C. 451 and Bennet Coleman
& Co. (P) Ltd. v. Punya Priya Das Gupta, [1970] 1 S.C.R. 131, referred to.
Central Bank of Indict v. P. S. Rajagopalan,
[1964] 3 S.C.R.
140 and Kesoram Cotton Mills v. Gangadhar,
[1964] 2 S.C.R.
809, disting Tiruchi-Srirangam Transport Co.,
(P) Ltd. v. Labour Court, Madurai, [1961] 1 L. L. J. 729, Manicka Mudaliar (M)
v. Labour Court, Madras, [1961] I L. L. J. 592, Bachittar Singh v. Central
Labour Court, Jullunder, A.I.R. 1969 Punjab 187, Management of Government Soap
Factory, Bangalore v. The Presiding Officer, Labour Court, Bangalore, A.I.R.
1970 Mys. 225 and U.P. Electric Supply Co. Lod. v. Assistant Labour
commissioner, Allahabad, approved.
This judgment should not be considered as an
expression of opinion on the interpretation of ss. 20 read with s. 2(1) of the Minimum
Wages Act. 1948.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1171 of 1970.
Appeal by special leave from the judgment and
order dated February 18, 1970 of the Labour Court, Delhi in L.C.A. No.709 of
1968.
O. P. Malhotra, N. S. Das Bahl, P. S.
Mahindru and Sat Pal, for the appellant.
L. D. A dlakha, Promod Swarup and S. S.
Khanduja, for respondent No. 1.
The Judgment of the Court was delivered by
Dua, J. Facts necessary for understanding the short but important point arising
for decision in this appeal by special leave are these :
The appellant is a company incorporated under
the Companies Act, 1956 with its registered office in New Delhi. Its entire
share capital has been subscribed by the Central Government. Pritam Singh Gill,
respondent no. 1, in this appeal was employed by the 1208Sup CI/72 42 appellant
as Junior Engineer at its Bhopal office with effect from the 9th November, 1962
at Rs. 280/p.m. as basic salary with other allowances. On October 5, 1964 he
was suspended and this order, of suspension remained in force till September
18, 1967. He was dismissed from service on September 19, 1967. During the
period of suspension, on October 7, 1965, the respondent was transferred to
Delhi. On June 15, 1968 the respondent applied to the Labour Court at Delhi
under s. 33C(2) of the Industrial Disputes Act, 1947 (hereinafter called the
Act) for computing the benefits and amount he was entitled to receive alleging
that the appellant had not paid to him such amounts and benefits. The appellant
contested the respondent's claim on various grounds. The, Labour Court framed
the following four issues :
1. Whether the application is not legally maintainable
?
2. Whether this court has no jurisdiction to
entertain this petition ?
3. Whether the petitioner has been dismissed
with effect from 19-9-1967, if so its effect ?
4. Whether the applicant is entitled to. any
of the benefits claimed ?" and decided all of them in favour of the
respondent who was held entitled to Rs. 5,195/as balance of salary at the rate
of Rs. 1501p.m. for the period of suspension and also other allowances, the
total amount computed being Rs.
10,259.98.
Before us the appellant only questioned the
jurisdiction of the Labour Court to entertain the respondent's application
under s. 33C(2) of the Act because, according to the submission, the
respondent, having already been dismissed, had ceased to be a workman on the
date of the application.
After his dismissal, argued Shri Malhotra
learned counsel for the appellant, the respondent ceased to be a workman and
had, therefore, no locus standi to approach the Labour Court under s. 33C(2)
and the Labour Court had no jurisdiction to entertain the respondent's
application. The date of the application under s. 33C(2) of the Act, contended
the counsel, is the crucial point of time, when-it is to be seen whether or not
the applicant is a workman.
The respondent on the other hand emphasised
that if the period, in respect of which the benefits and amount are claimed
under S. 33C(2) of the Act, was during the course of his employment prior to
his dismissal, then, the mere fact, that he was dismissed by his employer
before he could apply to the Labour Court under s. 33C(2), would not deprive
him of his right to claim relief under that section. The sole question we are
thus called upon to decide is, whether s.
33C(2) can be invoked by a dismissed workman
in respect of benefits and salary due, to 43 him for the period prior to the
date of his dismissal. It may be stated that the appellant did not contend that
a workman under suspension is disentitled to seek relief under s. 33C(2) and
indeed, it was specifically conceded that a suspended workman could invoke this
section for relief because by suspension he does not cease to be a workman as
defined in the Act. The question posed is a pure question of law depending on
the construction of the relevant statutory provisions.
The Act was brought on the statute book for
making provision for the investigation and settlement of industrial disputes
and for certain other purposes. Section 2(s) defines "workman' to mean
,,any person (including in apprentice) employed in any industry to do any
skilled or unskilled manual, supervisory, technical or clerical work for hire
or reward, whether the terms of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to an industrial dispute,
include-; any such person who has been dismissed, discharged or retrenched in
connection with, or as a consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute, but does not include any
such person(i) who is subject to the Army Act, 1950, or the Air Force Act, 1950
or the Navy (Discipline) Act, 1934; or (ii) who is employed in the police,
service or as an officer or other employee of a prison; or (iii) who is
employed mainly in a managerial or administrative capacity; or (iv) who, being
employed in a supervisory capacity, draws wages exceeding five hundred rupees
per mensem or exercises, either by the nature of the duties attached to the
office or by reason of the powers vested in him, functions mainly of a
managerial nature." It is noteworthy that s. 2 by its opening words
expressly includes the operation of this section in case of repugnancy in the
subject or context Section 33C provides for recovery of money due from ail
employer and sub-s. (2) of this section reads as under:--"(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 and if any question arises as to
the amount of money due or as to the amount at which such benefit should be
computed, then the question may, subject to any rules that may be made under
this Act, be decided by such Labour Court as may be specified in this behalf by
the appropriate Government." 44 According to the appellants submission,
under S. 33C(2) the applicant cannot claim that his dismissal is unlawful and
that he should, therefore, be deemed to be in service and on that basis
entitled to receive salary or wages under the pre-existing contract. Now, if
challenge to his dismissal is not open under this provision of law then the
respondent must be considered to be a dismissed workman, and..
therefore, outside the purview of
"workman" as defined in s.2(s). A dismissed workman, the argument
proceeded, is to be considered as a workman under this provision only for the
purposes of that proceeding under the Act in relation to an industrial dispute,
which has either arisen out of, or resulted in or is connected with, his
dismissal. In support of this submission he relied on the Central Bank of India
v.P. S. Rajagopalan(1). At p. 156 of the report it was observed there that
"If an employee is dismissed or demoted and it is his case that the
dismissal or demotion is wrongful, it would not be open to him to make a claim
for the recovery of his salary or wages under s. 33C(2). His demotion or
dismissal may give rise to an industrial dispute which may be appropriately
tried, but once it is shown that the employer has dismissed or demoted him, a
claim that the dismissal or demotion is unlawful and, therefore, the employee
continues to be the workman of the employer and is entitled to the benefits due
to him under a pre-existing contract, cannot be made under s. 33C(2)"
Reference was also made on behalf of the appellants to Messrs Kesoram Cotton
Mills Ltd. v. Gangadhar & ors. (2) where it is observed at p. 823 :
"Ordinarily, the law is that a workman
may be suspended pending enquiry and disciplinary action. If after the enquiry
the misconduct is proved the workman is dismissed and is not entitled to any
wages for the suspension period; but if the inquiry results in the
reinstatement of the workman he is entitled to full wages for the suspension
period also along with reinstatement unless the employer instead of dismissing
the employee can give him a lesser punishment by way of withholding of part of
the wages for the suspension period." These observations were made in an
entirely different context and have nothing to do with the narrow point on
which alone the appellant based his challenge to the judgment impugned in this
appeal. The case cited has not the remotest connection with s. 33C of the Act. The
decision in the Central Bank of India v. Rajagopalan (1) [1964] 3 S.C.R. 140.
(2) [1694] 2 S.C.R. 809.
45 (supra) also in our opinion, does not
assist us in deciding the question requiring determination because the
respondent before us claims relief with respect to the period of suspension
prior to his dismissal and the jurisdiction of the Labour Court is not
questioned by the appellant on the ground that the only relief available to the
respondent is to raise an industrial dispute with regard to his dismissal.
The respondent in the present case is not
seeking relief against his dismissal as indeed consistently with the order of
dismissal his claim is confined to the benefits and amount which. he was
entitled to receive for the period prior to his dismissal. However, the
decision in Central Bank of India v. Rajagopalan (supra) does trace the
legislative history of Chapter VA and s. 33C of the Act and after doing, so.
the Court observed "In our opinion, on a fair and reasonable construction
of sub-s. (2) it is clear that if a workman's right to receive the benefit is
dispute, that may have to be determined by the Labour Court. Before proceeding
to compute the benefit in terms of money the Labour Court inevitably has to
deal with the question as to whether the workman has a, right to receive that
benefit. If the said right is not disputed, nothing more needs to be done and
the Labour Court can proceed to compute the value of the benefit in terms of
money; but if the said right is disputed, the Labour Court must deal with that
question and decide whether the workman has the right to receive the benefit as
alleged by him and it is only if the Labour Court answers this point in favour
of the workman that the next question of making necessary computation can arise."
And again, "Besides, it seems to us that if the appellant's construction
is accepted, it would necessarily mean that it would be at the option of the
employer to allow the work-man to avail himself of the remedy provided by
sub-s.(2) because he has merely to raise an objection on the ground that the
right claimed by the workman is not admitted to oust the jurisdiction of the
Labour Court to entertain the workman's application. The claim
unders.33C(2)clearly postulates that the determination of the question about
computing the benefit in terms of money may, in some cases, have to be preceded
by an enquiry into the existence of the right and such an enquiry must be held
to be incidental to the main determination which has been assigned to the
Labour Court by sub-s. (2)." Section 33C of the Act has been the subject
matter of several judicial pronouncements. This Court has also dealt with this
section in several decisions. In Chief Mining Engineer, East India 46 Coal Co.
Ltd. v. Rameswar & ors. (1) this Court deduced from three of its earlier
decisions the following propositions:-"(1) The legislative history
indicates that the legislature, after providing broadly for the investigation
and settlement of disputes on the basis of collective bargaining, recognised
the need of individual workmen of a speedy remedy to enforce their existing
individual rights and therefore inserted s.33A in 1950 and s. 33C in 1956.
These two sections illustrate cases in which individual workmen can enforce
their rights without having to take recourse to s. 10(1) and without having to
depend on their union to espouse their case.
(2) In view of this history two
considerations are relevant while construing the scope of s. 33C. Where
industrial disputes arise between workmen acting collectively and their
employers such disputes must be adjudicated upon in the manner prescribed by
the Act, as for instance under s. 10(1).
But having regard to the legislative policy
to provide a speedy remedy to individual workmen for enforcing their existing
rights, it would not be reasonable to exclude their existing rights sought to
be implemented by individual workmen. Therefore though in determining the scope
of s. 33C care should be taken not to exclude cases which legitimately fall
within its purview, cases which fall, for instance, under s. 10(1), cannot be
brought under s. 33C;
(3) Section 33C which is in terms similar to
those in s. 20 of the Industrial Disputes (Appellate Tribunal) ,Act, 1950 is a
provision in the nature of an executing provision;
(4) Section 33C(1) applies to cases where
money is due to a workman under an award or settlement or under Chapter VA of
the Act already calculated and ascertained and therefore there is no dispute
about its computation. But sub-section 2 applies both to non-monetary as well
as monetary benefits.
In the case of monetary benefit it applies
where such benefit though due is not calculated and there is a dispute about
its calculation;
(5) Section 33C(2) takes within its purview
cases of workmen who claim that the benefit to which they ire entitled should
be computed in terms of money even though the right to the benefit on which
their claim is (1) [1968] 1 S.C.R. 140.
47 based is disputed by their employers. It
is, open to the Labour Court to interpret the award or settlement on which the
workmen's rights rests.
(6) The fact that the words of limitation
used in s. 20(2) of the Industrial Disputes (Appellate Tribunal) Act, 1950 are
omitted in s. 33C(2) shows that the scope of s. 33C(2) is wider than that of s.
33C(1). Therefore, whereas sub-section I is confined to claims arising under an
award or settlement or Chapter VA, claims which can be entertained under
subsection 2 are not so confined to those under an award, settlement or Chapter
VA.
(7) Though the court did not indicate which
cases other than those under sub-section 1 would fall under sub-section 2 it
pointed out illustrative cases which would not fall under sub-section 2 viz.
cases which would appropriately be adjudicated under S. 10(1) or claims which have
already been the subjectmatter of settlement to which ss. 18 and 19 would
apply.
(8) Since proceedings under s. 33C(2) are
analogous to execution proceedings and the Labour Court called upon to compute
in terms of money the benefit claimed by a workman is in such cases in the
position of an executing court, the Labour Court like, the executing court in
execution proceedings _governed by the Code of Civil Procedure, is competent
under s. 33C(2) to interpret the award or settlement where the benefit is claimed
under such award or settlement and it would be open to it to consider the plea
of nullity where the award is made without jurisdiction.
In U.P. Electric Supply Co. v. R. K.
Shukla(1) this Court approvingly referred to a passage from the judgment in Chief
Mining Engineer, East India Coal Co. Ltd. (supra), already reproduced by us, in
which, inter alia, it was emphasised that Labour Court had jurisdiction to
entertain a claim in respect of an existing right arising from the relationship
of an industrial workman and his employer. Again in R. B. Bansilal Abhirchand
Mills Co. (P) Ltd. v. The Labour Court, Nagpur(2) this Court, after a review of
its previous decisions, upheld the jurisdiction of the Labour Court to
entertain application for lay-off compensation wider s. 33C observing that such
jurisdiction could not be ousted by a mere plea denying the workman's claim to
computation of the benefit in terms of money, adding that the Labour Court had
to go into the question and determine whether on the facts it had jurisdiction
to make the computation.
(1) A.I.R. 1970 S.C. 237. (2) A.I.R. 1972
S.C. 451.
48 We now turn to some decisions of the High Court’s
which directly deal with this point. In Tiruchi-Srirangam Transport Co., (P)
Ltd. v. Labour Court, Madurai(1) Ramachandra Ayyar J., repelled a similar
contention as was raised before us by Shri Malhotra on behalf of the appellant.
In the case. cited one Iswaran was employed as a traffic supervisor in
Tiruchi-Srirangam Transport Co., (P) Ltd. His services were terminated in
December, 1956 under a scheme of retrenchment. Later, disputes were raised
between the management and other workers regarding bonus for the years 1955-56
and 1956-57 and a settlement was reached in April, 1958 pursuant to which the
management declared additional bonus and one month's wage for each of the two
years. Iswaran having not been paid anything by way of bonus though he had
worked during those two years applied to the Labour Court for necessary relief
under s. 33C(2) of the Act. The Labour Court having granted the relief claimed.
the management approached the High Court
under Art. 226 of the Constitution questioning the jurisdiction of the Labour
Court to entertain Iswaran's claim. The High Court repelled this challenge
though on another point relating to the claimant's right to benefit under the
settlement, the case was remitted back to the Labour Court for a fresh
decision.
It was observed in that decision that while
enacting s.33C(2), the Legislature did not intend merely to provide a remedy
for the limited class of persons who are in actual employment on the date of
the application under that section. The words "any workman" in s.
33C(2), according to that decision, would mean a workman who would be entitled
to benefits conferred under the Act and would necessarily include a discharged
workman as well. In Manicka Mudaliar (M) v. Labour Court, Madras(1) a Division
Bench of the Madras High Court, while hearing a writ appeal, from the decision
of a learned single Judge of that Court also upheld the competency of a
petition under s. 33C(2) of the Act for arrears of salary and one month's
salary in lieu of notice, although at the time of the application the applicant
was no longer in service of the employer. Following these Madras decisions a
learned single Judge of the Punjab & Haryana High Court in Bachittar Singh
v. Central Labour Court, Jullundur(3), a Division Bench of the Mysore High
Court in The Management of Government Soap Factory, Bangalore v. The Presiding
Officer, Labour Court Bangalore(4) and the Allahabad High Court in U.P.
Electric Supply Co. Ltd., v. Assistant Labour Commissioner, Allahabad(5) took
the same view. In the Allahabad case, however, the provision which directly
came up for construction was s. 6H of the U.P.
Industrial (1) [1961] 1 L.L.J. 729.
(3) A.I.R. 1969 Punjab 187.
(5) [1966] It I.L.J. 715.
(2) [1961] 1 L.L.J. 592.
(4) A.I.R. 1970 Mys. 225.
49 Disputes Act, the language of which was
considered to be identical with that of s. 33C of the Act. Incidentally it may
be pointed out that s. 6H of the U.P. Industrial Disputes Act has been held to
be identical with s. 33C of the Act even by this Court.
Shri Malhotra, learned counsel for the
appellant, contended that all these decisions require reconsideration because
they ignore a vital point in construing s. 2(s) which defines
"workman". This definition has already been reproduced. According to
the appellant's submission these decisions have ignored the vital point that
the definition of "workman" specifically includes within its fold,
only for the purpose of a proceeding under the Act in relation to an industrial
dispute, persons who have, been dismissed, discharged or retrenched in
connection with or as a consequence of that, dispute or, whose dismissal,
discharge or retrenchment has led to that dispute. Since certain categories of
persons are also expressly stated not to be included in this definition the
Legislature must, according to the argument, be considered to have intended to
define this word with exactitude and precision and its scope, therefore, cannot
be extended to the dismissed, discharged or retrenched persons except strictly
for the purposes of the proceedings expressly mentioned in the inclusive
clause.
The fact that the definition also
specifically excludes from its purview four categories of persons employed in
an industry who would have otherwise been within the periphery of the
definition shows that the legislature intended to be meticulously precise
leaving no scope for any intendment extending the literal meaning of the
language used to dismissed employees for purposes of other proceedings not
specified in s. 33C(2) of the Act. The definition. said Shri Malhotra, is
exhaustive renderings, its extension impermissible. The council also commented
on the recent decision of this Court in R. B. Bansilal Abhirchand Mills Co.
Ltd. v. The Labour Court, Nagpur (supra). According to Shri Malhotra this
decision does not touch the question whether a dismissed employee can be
considered as a workman for the purpose of approaching the Labour Court under
s. 33C(2) of the Act and he emphasised that this case should be considered to
be confined to its own facts. The further contention pressed by Shri Malhotra
was that the respondent's claim raises an industrial dispute and, therefore, it
would be more appropriate for him to claim a reference under s. to, of the Act.
This contention being based only on the appellant's denial of the claim cannot
exclude the applicability of S. 33C(2). He also made a reference to the
decision of this Court in Bennet Coleman & Co., (P) Ltd. v. Punya Priya Das
Gupta(1) which was concerned with the Working Journalists (Conditions of Service)
and Miscellaneous Provisions Act, 45 of 1955 and contended that in that
decision the definitions in s. 2(c) and (f) of that (1) [1970] 1 S.C.R. 181.
50 Act took within their fold persons who
were no longer in the employment of their erstwhile employer against whom their
claim was made, provided the claim related to a period when they were in his
employment. Shri Malhotra pointed out that in the reported case there was no
clause in the statutory definition including therein for limited purposes
certain persons otherwise not within the definition and excluding there from
certain other categories of persons who would otherwise fall within the
definition. This is how that case was sought to be distinguished from the
present. The crucial point which requires consideration on the appellant's
argument is thus confined to the precise scope and meaning of the word
"workman" used in s. 33C(2) in the background of the definition of
this word as contained in s. 2(s).
Now, it is noteworthy that s. 2 of the Act,
which is the definition section begins, as is usual with most of the definition
sections, with the clause, "unless there is anything repugnant in the
subject or context". This clearly indicates that it is always a matter for
argument whether or not this statutory definition is to apply to, the word
"workman" as used in the particular clause of the Act which is under
consideration, for this word may both be restricted or expanded by its subject
matter. The. context and the subject matter in connection with which the word
"workman" is used are accordingly important factors having a bearing
on the question. The propriety or necessity of thus construing the word
"workman" is obvious because all parts of the Act have to be in
harmony with the statutory intent.
Keeping this in mind we may turn to the
purpose and object of s. 33C of the Act. This section was enacted for the
purpose of enabling individual workmen to implement, enforce or execute their
existing individual rights against their employers without being compelled to
have recourse to s. 10 by raising disputes and securing a reference which is
obviously a lengthy process. Section 33C of the Act has accordingly been
described as a provision which clothes the Labour Court with the powers similar
to those of an executing court so that the workman concerned receives speedy
relief in respect of his existing individual rights.
The primary purpose of the section being to
provide the aggrieved workman with a form similar to the executing courts, it
calls for a broad and beneficial construction consistently with other
provisions of the Act, which should serve to advance the remedy and to suppress
the mischief.
It may appropriately be pointed out that the
mischief which s. 33C was designed to suppress was the difficulties faced by
individual workmen in getting relief in respect of their existing rights
without having resort to s. 10 of the Act.
To accept the argument of the appellant, it
would always be open to an unfair, unsympathetic and unscrupulous employer to
terminate the services of his employee in order to deprive him of the benefit
conferred by s. 33C and compel 51 him to have resort to the lengthy procedure
by way of reference under s. 10 of the Act thereby defeating the very purpose and
object of enacting this provision This, in our view, quite clearly brings out
the repugnancy visualised in the opening part of s. 2 of the Act and such a
position could hardly have been contemplated by the legislature. In order to
remove this repugnancy s. 33C(2) must be so construed as to take within its
fold a workman, who was employed during the period in respect of which he
claims relief, even though he is no longer employed at the time of the
application. In other words the term "workman" as used in s. 33C(2)
includes all persons whose claim, requiring computation under this sub-section,
is in respect of an existing right arising from his relationship as an
industrial workman with his employer. By adopting this construction alone can
we advance the remedy and suppress the mischief in accordance with the purpose
and object of inserting s. 33C in the Act. We are, therefore, inclined to agree
with the view taken by the Madras decisions and we approve of their approach.
According to Shri Malhotra, in cases where there is no dispute about the
employee's right which is not denied, he will be entitled to file a suit.
Whether or not the right of suit can be
claimed by the employee, we are not persuaded on the basis of this argument, to
accept the construction canvassed on behalf of the appellant and deny to a
dismissed employee the benefit of speedy remedy under s. 33C(2) of the Act.
We are aware of a conflict of decisions in
some High Courts, on the interpretation of s. 20 read with s. 2(i) of the
Minimum Wage,-, Act, .12 of 1948. This aspect was not canvassed before us and,
therefore, we should not be deemed to express any opinion on the correctness or
otherwise of either view. We are referring to this aspect only to make it clear
that our decision must be) confined to the construction of the provisions of
the Act and we must not be understood to have expressed any opinion on the
construction of the Minimum Wages Act. In the Madras High Court two single
Judges have taken divergent views and tile Kerala High Court agreed with the
view that the employees under the Minimum Wages Act need not be, in the
employment at the time of their applications under s. 20 of the Minimum Wages
Act whereas the Punjab High Court on the other hand agreed with the contrary
view of the Madras High Court. The language of s. 20 of the Minimum Wages 52
Act is not completely identical with that of s. 33C(2)of the Act and the
relevant clauses of the definition sections in the two statutes are also
somewhat differently worded.
Without any further discussion on this aspect
we are content to observe that this judgment should not be considered as an
expression of opinion on the interpretation of the relevant provisions of the
Minimum Wages Act.
As a result of the foregoing discussion, this
appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.
Back
