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2009 DIGILAW 535 (GUJ)

GEMARBHAI KARAMSHI v. JACOB GAS AGENCY

2009-08-04

S.R.BRAHMBHATT

body2009
COMMON ORAL JUDGMENT 1. In this group of petitions the respondent is the same and the orders made on recovery applications are all passed on 9/4/2009 rejecting the same, which are impugned in these petitions. This Court issued notice for final disposal on 23/6/2009 making it returnable on 24/7/2009. The respondent employer appeared in response to the notice through learned advocate Shri Japee, and with the consent of the advocates of the parties these matters are taken up for final disposal, as the question involved is common, they are heard together and are being decided by this common judgment. 2. RULE. Shri Japee, learned advocate for the respondent waives service of notice of rule in all the petitions. Rule is fixed forthwith. 3. The petitioners, applicants in Recovery Application Nos. 929 of 2008 to 938 of 2008 have filed these petitions challenging the order dated 9/4/2009 passed by the Labour Court, Ahmedabad, rejecting their recovery applications on the ground of non-existence of any right to be enforced under Section 33-C (2) of Industrial Disputes Act [hereinafter referred to as 'I.D. Act' for brevity]. The petitioners are hereinafter referred to as the Workmen and the respondent is referred to as the Employer for the sake of convenience. 4. Facts in brief, leading to filing of these petitions, deserve to be set out as under. The petitioners' services were terminated without following due process of law in the month of April 1991 and hence they had to raise industrial disputes which were referred to the competent Court wherein they were marked as mentioned herein below : 5. The Labour Court vide its award and order dated 04.04.2008 partly allowed the reference and directed the respondent employer to reinstate the workmen on their original posts with 25 % of back wages, payment of Rs.1000 toward cost, within thirty days from the publication of the award. 6. The respondent, employer, challenged these awards by filing Special Civil Application No. 13207 of 2008 to 13216 of 2008 in this court, which came to be heard & dismissed on 27/11/2008. The workmen as they did not receive benefits of the award and as the petitions filed against said awards were rejected, filed recovery applications for their legitimate dues, as the respondent did not reinstate them nor were they paid wages from the date, the award became enforcible. The workmen as they did not receive benefits of the award and as the petitions filed against said awards were rejected, filed recovery applications for their legitimate dues, as the respondent did not reinstate them nor were they paid wages from the date, the award became enforcible. The workmen produced their respective computation of amount admissible to them on the basis of the Award dated 4.04.2008 on the record of the recovery applications. In the said recovery applications the respondent employer appeared and resisted the claim of the applicants on the ground of non existence of any right in the applicants to receive the wages as awarded by the Labour Court and rested its' defense only on that ground alone. The Labour Court accepted the same and rejected the recovery applications vide orders dated 9/4/2009, which are impugned in the present petitions, and which are being disposed of by this common judgment & order. 7. Learned advocate Shri TR Mishra with Shri PC Choudhari appearing for the petitioner in all the petitions have contended that the award passed rejecting recovery applications, to say the least, is passed without considering the relevant facts and law applicable to the facts and circumstances of the present case. The Court while rejecting the award did not consider award dated 4.04.2008 based whereon the recovery applications were filed. 8. The Learned Advocate for the petitioners submitted that the Court has not taken into consideration the obvious facts which were very basis of making claim in the recovery application. The entire award dated 4.04.2008 is completely overlooked by the court while rejecting the recovery applications. The Court was under duty to examine the Award for its total implementation and the recovery application could not have been rejected on so called plea of on pre-existence of any rights. 9. The plea of so called lack of pre-existing rights for claiming the relief ought to have been considered in light of the Award dated 4.04.2008 based whereon the workmen claimed relief in the recovery applications. The Court has not applied its mind to the basic facts going into the roots of the matter. Hence the order and award dated 9.04.2009 made in those recovery applications and impugned in these set of petitions deserved to be quashed and set aside. 10. The Court has not applied its mind to the basic facts going into the roots of the matter. Hence the order and award dated 9.04.2009 made in those recovery applications and impugned in these set of petitions deserved to be quashed and set aside. 10. The learned advocate for the petitioner contended that even man of ordinary prudence would also not completely ignore the award based whereon the petitioner filed recovery applications. The lower court has shown non applicability of mind and utter disregard to the award. The lower court without appreciating the fact that the award in original, passed in the reference and the petitions there against had been rejected by this Court, has attained finality as no further order contrary thereto could be produced by the respondent employer before the Court taking up recovery applications, rejected the recovery applications. The Court below ought to have taken into consideration that the right as acknowledged and accepted by the Court in the reference were pressed into service for filing recovery applications. The Court, while allowing the references has awarded 25% of back-wages and reinstatement. The award in this case became applicable and enforcible after the period of one month from date of its publication. Therefore the workmen were entitled to receive the existing wages prevalent on the date the award become enforcible, and hence the right cannot be said to be non existing, as it is held by the Court below. Shri Mishra further submitted that the approach of the Court below calls for serious deprecation. The approach of the Court below in dealing with recovery applications is not in accordance with law and it therefore, renders the impugned order, perverse and erroneous. The lower court has completely ignored the operative part of the award whereon the recovery applications were based. The rights of the workmen were crystallized in reference itself and therefore it was not open to the Labour Court to dismiss recovery applications on the so called ground of lack of any pre-existing rights. 11. The lower court has completely ignored the operative part of the award whereon the recovery applications were based. The rights of the workmen were crystallized in reference itself and therefore it was not open to the Labour Court to dismiss recovery applications on the so called ground of lack of any pre-existing rights. 11. Shri Mishra submitted that the workmen are constrained to move this Court by these petitions as the untenable submissions which would not command any consideration by judicious mind have not been only advanced but have also been accepted by the Court below and therefore, the impugned order and award deserved to be quashed and exemplary cost is required to be awarded to the petitioners, as they were compelled to move the Court on account of weired stand taken by the employer. 12. Shri Mishra has further submitted that the employees are prepared to give up the quantum of compensation and claim only minimum wages as prevalent in the industry at the relevant time. The claim is restricted to the wages as admissible under law from time to time and incidental benefits available thereunder. 13. The Learned Counsel for the petitioners relied upon the decision of the this Court in case of Union of India and Kishor Lakha reported in 2004 (102) FLR 624 and contended that when the reinstatement with back wages is ordered the back wages will include all the monetary benefits including bonus accrued. The Counsel for the petitioner relied upon a decision rendered by the Madras High Court in case of Sambandamurthy & ors Vs. The II Additional Labour Court Madras and anr reported in 1997 I LLJ 485, and contended that labour court is under duty to calculate and ascertain the minimum wages payable to workmen when there was none production of documents indicating as to how for many days wages the workmen were entitled to receive. The learned Counsel relying upon the decision of the Delhi High Court in case of Piara Lal Vs. Lt. Governor and others reported in 2001-I-LLJ 24 submitted that the scope of Section 33 C (1) would include computation of back wages not on the basis of last drawn wages but on the would include DA revision in pay-scale, from time to time when the reinstatement and back wages with continuity of services are awarded. 14. Lt. Governor and others reported in 2001-I-LLJ 24 submitted that the scope of Section 33 C (1) would include computation of back wages not on the basis of last drawn wages but on the would include DA revision in pay-scale, from time to time when the reinstatement and back wages with continuity of services are awarded. 14. Shri Japee, learned advocate appearing for the respondent employer contended that the stand of the workmen, in the original reference and award whereon were sought to be implemented by recovery applications was that they were not receiving any other benefits and they were paid wages as mentioned there under. Therefore recovery applications were not maintainable as the Court while hearing recovery applications had a very limited jurisdiction and the moment the claim made by the workmen is disputed, hearing of recovery application would ceased to have any jurisdiction to adjudicate the same. Shri Japee said that preexisting right only can be enforced and the award is silent with regard to the wages to be paid, the said was not being capable of enforceable under recovery proceedings and therefore the award passed by the Court rejecting recovery applications is absolutely just & proper and does not call for any interference under Article 227 of the Constitution of India. 15. Shri Japee in support of his submissions has relied upon following decisions: 1. STATE OF UTTAR PRADESH & ANR. Vs. BRIJPAL SINGH, reported in AIR 2006 S.C. 3592 , and submitted that Labour Court under section 33C (2) cannot arrogate to itself functions of an Industrial Tribunal and entertain claim made by workman which is not based on an existing right. However Shri Japee has candidly admitted that in the facts of that case the workman did sought enforcement of any award in their favour. 2. The second decision relied upon by Shri Japee is in case of DIRECTOR vs. PARMAR MAHESBHAI DEVJIBHAI SON, reported in 2007 (2) G.L.H. 488 , and submitted that the benefit must be accruing from a preexisting right. In an event of a dispute to such a right the Labour Court cannot exercise its jurisdiction under Sec. 33-C (2) of I.D. Act. 3. The third decision relied upon by Shri Japee is in case of REGIONAL MANAGER, BANK OF BARODA Vs. GITABEN HARIBHAI DARJI (D) BY L.Rs. AND OTHERS, reported in 2006-I-LLJ, 404. In an event of a dispute to such a right the Labour Court cannot exercise its jurisdiction under Sec. 33-C (2) of I.D. Act. 3. The third decision relied upon by Shri Japee is in case of REGIONAL MANAGER, BANK OF BARODA Vs. GITABEN HARIBHAI DARJI (D) BY L.Rs. AND OTHERS, reported in 2006-I-LLJ, 404. Shri Japee however candidly admitted that in none of those matters the award in favour of the workmen was sought to be enforced by way of recovery proceedings. However he submitted that as the award in original which is sought to be enforced did not adjudicate claim of the workmen for wages. And as the same is silent on it, there cannot be any doubt that there was any pre-existing right. Hence the dispute cannot be said to have been adjudicated upon so as to enable the workmen to have the award enforced, despite the fact that this Court has rejected the petitions challenging the same. Shri Japee has further submitted that the petitioners-employees were not entitled to bonus and other benefits as they were not granted by Labour Court. However Shri Japee could not show from the record & proceedings, despite his strenuous submissions, as to by which document the claim put up by the workmen before the recovery proceedings was resisted. This Court repeatedly put this query to Shri Japee as to what was the stand of the employer before the Court adjudicating upon recovery proceedings qua the claim put up by the workmen. Shri Japee could not point out any other document except the document entitled as lekhit nivedan, i.e. written submission signed by the employer which do not indicate anywhere that how the workmen were not entitled to receive the amount claimed, but it contains general plea that on account of lack of pre existing rights the workmen would not be entitled to receive any amount and hence Recovery Court did not have any jurisdiction to go into claim made by the workmen. The defense of the employer rested there only as the employer did not want to submit to jurisdiction of the Labour Court. At the same time it is required to be noted that no application or proceedings were there indicating that the jurisdiction was challenged more articulately by way of any proceedings or application. The defense of the employer rested there only as the employer did not want to submit to jurisdiction of the Labour Court. At the same time it is required to be noted that no application or proceedings were there indicating that the jurisdiction was challenged more articulately by way of any proceedings or application. Shri Japee submitted that as the very jurisdiction of the Labour Court was not accepted by the employer, the employer was not under a duty to make any further attempt to controvert and or lead any evidence controverting and or refuting the claim made by the individual workman. The Labour Court has accepted the version and stand of the employer and therefore the same being legal and proper this Court may not interfere with the impugned award and order, under Article 227 of the Constitution. 16. This Court inquired of Shri Japee as to whether the respondent-employer would like to lead any appropriate evidence, even now, qua the individual claim of each of workman and his entitlement, at this stage Shri Mishra, learned advocate for the employer objected that no such opportunity be given to the employer as the employer has chosen not to avail the same when available and today the workmen, though the Award in original proceedings is in their faviour and employer's challenge to it also having been rejected by this court , have not received a single farthing after such long-drawn litigation. The Court inquired of Shri Japee as to whether the employer is ready and willing to have the matter remanded back on condition of making payment of at least the amount of 25 % of the back wages on the basis of last drawn wages, which employer might think admissible to workmen, and which possibly could not be disputed under any circumstances, to which Shri Japee after taking sense of his client responded that it would not be possible for making payment of any amount to the workmen as it would amount to submitting to the jurisdiction of labour court in the recovery applications. 17. This Court has heard learned counsels for the parties and perused the record. 17. This Court has heard learned counsels for the parties and perused the record. The position of law by now has been very clear so far as the provision of section 33 (C)( 2) of I.D.Act is concerned, hence before adverting to the rival contentions of the learned advocates for the parties it would be expedient to discuss the same here under. 18. The five judges bench of apex court has in case of Central Bank of India Vs. P.S. Rajgopalan reported in AIR 1964 SC 748 has observed as under: 19. We have already noticed that in enacting S. 33C the legislature has deliberately omitted some words which occurred in S. 20 (2) of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is remarkable that similar words of limitation have been used in S. 33C(1) because S. 33C(1) deals with cases where any money is due under a settlement or an award or under the provisions of Chapter VA. It is thus clear that claims made under S. 33C(1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter VA. These words of limitations are not to be found in S. 33C(2) and to that extent, the scope of S. 33C(2) is undoubtedly wider than that of S. 33C(1). It is true that even in respect of the larger class of cases which fall under S. 33C(2) after the determination is made by the Labour Court the execution goes back again to S. 33C(1). That is why S. 33C(2) expressly provides that the amount so determined may be recovered as provided for in sub-sec. (1). It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under S 33C(2). There is no doubt that the three categories of claims mentioned in S. 33C(1) fall under S. 33C(2) and in that sense, S. 33C(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 VA, may also be competent under S. 33C(2) and that may illustrate its wider scope. We would, however, like to indicate some of the claims which would not fall under S. 33C(2), because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present. 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). If a settlement has been duly reached between the employer and his employees and it falls under S. 18(2) or (3) of the Act and is governed by S. 19(2), it would not be open to an employee, notwithstanding the said settlement, to claim the benefit as though the said settlement had come to an end. If the settlement exists and continues to be operative, no claim can be made under S. 33C(2) inconsistent with the said settlement. If the settlement is intended to terminated; proper steps may have to be taken in that behalf and a dispute that may arise thereafter may be dealt with according to the other procedure prescribed by the Act. Thus, our conclusion is that the scope of S. 33C(2) is wider than S. 33C(1) and cannot be wholly assimilated with it, though for obvious reasons, we do not propose to decide or indicate what additional cases would fall under S. 33C(2) which may not fall under S. 33C(1). In the connection we may incidentally state that the observations made by this Court in the case of Punjab National Bank Ltd., (1962) 1 Lab LJ 234 ( AIR 1963 SC 487 ) that S. 33C is a provision in the nature of execution should not be interpreted to mean that the scope of S. 33C(2) is exactly the same as S. 33C(1) (at p. 238) (of Lab LJ) : (at pp.489-490 of AIR). 19. 19. The apex court in case of the "Chief Mining Engineer, M/s. East India Coal Co., Ltd., Bararee Colliery Dhanbad v. Rameshwar"reported in AIR 1968 SC 218 has observed that 3. The contention as-to jurisdiction of the Labour Court depends on the true construction of Section 33-C (2) as it stood in 1962 when these applications were filed and before its amendment by Act 36 of 1964. Section 33-C (2) has so far been the subject matter of decision by this Court in three cases, viz., Punjab National Bank Ltd. v. Kharbanda, 1962 Supp (2) SCR 977 = ( AIR 1963 SC 487 ), Central Bank of India v. Rajagopalan, 1964-3 SCR 140 = (AIR l964 SC 743) and Bombay Gas Co. Ltd. v. Gopal Bhiva, 1964-3 SCR 709 = ( AIR 1964 SC 752 ). The following propositions on the question as to the scope of Section 33-C (2) are deducible from these three decisions : -(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 Section 33A in 1950 and Section 33-C in 1956. These two Sections illustrate cases in which individual workmen can enforce their rights without having to take recourse to Sec. 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 Section 33-C. 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 Section 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 workman. Therefore though in determining the scope of Section 33-C care should be taken not to exclude cases which legitimately fall within its purview, cases which fall, for instance under Section 10 (1), cannot be brought under Section 33C. Therefore though in determining the scope of Section 33-C care should be taken not to exclude cases which legitimately fall within its purview, cases which fall, for instance under Section 10 (1), cannot be brought under Section 33C. (3) Section 33-C which is in terms similar to those in Section 20 of the Industrial Disputes (Appellate Tribunal) Act l950 is a provision in the nature of an executing provision; (4) Section 33-C (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 nonmonetary 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 33-C (2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should he computed in terms of money even though the right to the benefit on which their claim is based is disputed by their employers. It is open to the Labour Court to interpret the award or settlement on which the workmen's right rests. (6) The fact that the words of limitation used in Section 20 (2) of the Industrial Disputes (Appellate Tribunal) Act 1950 are omitted in Section 33-C (2) shows that the scope of Section 33C (2) is wider than that of Section 33-C (1) Therefore, whereas subsection (1) is confined to claims arising under an award or settlement or Chapter V-A, claims which can be entertained under sub-section (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 Section 10 (1) or claims which have already been the subject-matter of settlement to which Sections 18 and 19 would apply. (8) Since proceedings under Sec. 33-C(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 Section 33-C (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. 5. It is clear that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer. Since the scope of sub-section (2) is wider than that of sub-s. (1) and the subsection is not confined to cases arising under an award, settlement or under the provisions of Chapter V-A, there is no reason to hold that a benefit provided by a statute or a Scheme made thereunder, without there being anything contrary under such statute or Section 33-C (2), cannot fall within sub-section (2). Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provident Fund and Bonus Schemes Act, 1948 which remains to the be computed must fall under sub-section (2) and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer. The contention that the Labour Court had no jurisdiction because the claim arose under the said scheme or because the benefit was monetary or because it involved any substantial question between the Company and the workmen must, in view of the said decisions, fail. 6. These applications were made in 1962 though they related to claims for the years commencing from 1948 and onwards. The contention therefore was that part of these claims, at any rate, must be held to be barred either by limitation or by reason of laches on the part of the workmen. 6. These applications were made in 1962 though they related to claims for the years commencing from 1948 and onwards. The contention therefore was that part of these claims, at any rate, must be held to be barred either by limitation or by reason of laches on the part of the workmen. The answer to this contention is clearly provided in the case of Bombay Gas Co., 1964-3 SCR 709 = ( AIR 1964 SC 752 ) (supra) where a distinction was drawn between considerations which would prevail in an industrial adjudication and those which must prevail in a case filed under a statutory provision such as Section 33-C (2). This Court pointed out there that whereas an industrial dispute is entertained on grounds of social justice and therefore a Tribunal would in such a case take into consideration factors such. As delay or laches, such considerations are irrelevant to claims made under a statutory provision unless such provision lays down any period of limitation. The Court held that there is no justification in inducting a period of limitation provided in the Limitation Act into the provisions of Section 33-C (2) which do not lay down any limitation and that such a provision can only be made by legislature ii it thought fit and not by the Court on an analogy or any other such consideration. It is a matter of some significance that though the legislature amended Section 33-C by Act 36 of 1964 and introduced limitation in the Section, it did so by means of a proviso only in respect of claims made under sub-section 1 but did not provide any limitation for claims under sub-s. (2). In view of this fact and the decision in Bombay Gas Company's case, 1964-3 SCR 709 -( AIR 1964 SC 752 ) (supra) Mr. Gokhale conceded that he could not press the contention that the present claims were barred by limitation or laches. 20. The apex court has in case of Town Municipal Council, Athani Appellant v. Presiding Officer, Labour Court, Hubli and others reported in AIR 1969 SC 1335 has observed as under : ? 6. The long title and the preamble to the Minimum Wages Act show that this Act was passed with the object of making provision for fixing minimum rates of Wages in certain employments. 6. The long title and the preamble to the Minimum Wages Act show that this Act was passed with the object of making provision for fixing minimum rates of Wages in certain employments. The word "wages" has been given a wide meaning in its definition in Section 2 (h) of that Act and, quite clearly, includes payment in respect of overtime and for work done on weekly of-days which are required to be given by any employer to the workmen under the provisions of that Act itself. Section 13 (1), which deals with weekly of-days, and Section 14 (1), which deals with overtime, are as follows:- "13. (1) In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act, the appropriate Government may-(a) fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals; (b) provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest; (c) provide for payment for work on a day of rest at a rate not less than the overtime rate.'' "14. (1) Where an employee, whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage-period as may be prescribed, works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate Government for the time being in force, whichever is higher." & In order to provide a remedy against breach of orders made under Sections 13. (1) and 14 (1), that Act provides a forum and the manner of seeking the remedy in section 20 which is as follows:- "20. (1) and 14 (1), that Act provides a forum and the manner of seeking the remedy in section 20 which is as follows:- "20. (1) The appropriate , Government may, by notification in the Official Gazette, appoint any Commissioner for Workmen'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 a 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 Sec. 13 or of wages at the overtime rate under Section 14, to employees employed or paid in that area. (2) Where an employee has any claim of the nature referred to in sub-section (1), 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-section (l), 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 subsection (2) is entertained, the Authority shall hear 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 the amount actually paid, together with the payment of such compensation as the Authority may think fit, not exceeding ten times the amount of such excess; (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 or the amount due is paid by the employer to the employee before the disposal of the application. (4) If the Authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application.(5) Any amount directed to be paid under this section may be recovered - (a) if the Authority is a Magistrate, by the Authority as if it were a fine imposed by the Authority as a Magistrate, or (b) if the Authority is not a Magistrate, by any Magistrate to whom the Authority makes application in this behalf, as if it were a fine imposed by such Magistrate. (6) Every direction of the Authority under this section shall be final. (6) Every direction of the Authority under this section shall be final. (7) Every Authority appointed under sub-section (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such Authority, shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898." &...We have mentioned these provisions of the Minimum Wages Act, because the language used at all stages in that Act leads to that clear inference that that Act is primarily concerned with fixing of rates rates of minimum wages, overtime rates, rate for payment for work on a day, of rest - and is not really intended to be an Act for enforcement of payment of wages for which provision is made in other laws, such as the Payment of Wages Act No. 4 of 1936, and the Industrial Disputes Act No. 14 of 1947. In Section 20 (1) of the Minimum Wages Act also, provision is made for seeking remedy in respect of claims arising out of payment of less than the minimum rates of wages or in respect of 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. This language used in Section 20 (1) shows that the Authority appointed under that provision of law is to exercise jurisdiction for deciding claims which relate to rates of wages, rates for payment of work done on days of rest and overtime rates. If there be no dispute as to rates between the employer and the employees, Section 20 (1) would not be attracted. The purpose of Section 20 (1) seems to be to ensure that the rates prescribed under the Minimum Wages Act are complied with by the employer in making payments and, if any attempt is made to make payments at lower rates, the workmen are given the right to invoke the aid of the Authority appointed under Section 20 (1). The purpose of Section 20 (1) seems to be to ensure that the rates prescribed under the Minimum Wages Act are complied with by the employer in making payments and, if any attempt is made to make payments at lower rates, the workmen are given the right to invoke the aid of the Authority appointed under Section 20 (1). 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 the Payment of Wages Act. If the payment is withheld beyond the time permitted by the Payment of Wages Act even on the ground that the amount claimed by the workman is not due, or if the amount claimed by the workman is not paid on the ground that deductions are to be made by the employer, the employee can seek his remedy by an application under Section 15 (1) of the Payment of Wages Act. In cases where S. 15 of the Payment of Wages Act may not provide adequate remedy, the remedy can be sought either under Section 33C of the Act or by raising an industrial dispute under the Act and having it decided under the various provisions of that Act. In these circumstances, we are unable to accept the submission made by Mr. Sen on behalf of the appellant that Section 20 (1) of the Minimum Wages Act should be interpreted as intended to cover all claims in respect of minimum wages or overtime payment or payment for days of rest even though there may be no dispute as to the rates at which those payments are to be claimed. It is true that, under Section 20 (3), power is given to the Authority dealing with an application under Section 20 (1) to direct payment of the actual amount found due; but this, it appears to us, is only an incidental power granted to that Authority, so that the directions made by the Authority under Section 20 (1) may be effectively carried out and there may not be unnecessary multiplicity of proceedings. The power to make orders for payment of actual amount due to an employee under Section 20 (3) cannot, therefore, be interpreted as indicating that the jurisdiction to the Authority under Section 20 (1) has been given for the purpose of enforcement of payment of amounts and not for the purpose of ensuring compliance by the employer with the various rates fixed under that Act. This interpretation, in our opinion, also harmonises the provisions of the Minimum Wages Act with the provisions of the Payment of Wages Act which was already in existence when the Minimum Wages Act was passed. In the present appeals therefore, we have to see whether the claims which were made by the workman in the various applications under Section 33C (2) of the Act were of such a nature that they could have been brought before the Authority under Section 20 (1) of the Minimum Wages Act inasmuch as they raised disputes relating to the rates for payment of overtime and for work done on weekly off-days. 7. We have examined the applications which were presented before the Labour Court under Section 33C (2) of the Act in these appeals and have also taken into account the pleadings which were put forward on behalf of the appellant in contesting those applications and we are unable to find that there was any dispute relating to the rates. It is true that, in their applications, the workmen did plead the rates at which their claims had to be computed; but it was nowhere stated that those rates were being disputed by the appellant. Even in the pleadings put forward on behalf of the appellant as incorporated in the order of the Labour Court, there was no pleading that the claims of the workmen were payable at a rate different from the rates claimed by them. It does appear that, in one case, there was a pleading on behalf of the appellant that no rates at all had been prescribed by the Mysore Government. That pleading did not mean that it became a dispute as to the rates at which the payments were to be made by the appellant. The only question that arose was whether there were any rates at all fixed under the Minimum Wages Act for overtime and for payment for work done on days of rest. That pleading did not mean that it became a dispute as to the rates at which the payments were to be made by the appellant. The only question that arose was whether there were any rates at all fixed under the Minimum Wages Act for overtime and for payment for work done on days of rest. Such a question does not relate to a dispute as to the rates enforceable between the parties, so that the remedy under Section 20 (1) of the Minimum Wages Act could not have been sought by the applicants in any of these applications. No question can, therefore, arise of the jurisdiction of the Labour Court to entertain these applications under Section 33C (2) of the Act being barred because of the provisions of the Minimum Wages Act. The first point raised on behalf of the appellant thus fails. 20. It may not be out of place here to make mention that while rendering aforesaid judgment the bench of the apex court also held in paragraph eight of the judgment that that Article 137 of schedule to the Limitation Act 1963 had applicability only to the proceedings under the Civil procedure code and like ones and it did not have any applicability to the proceedings taken out in and before the authorities of quasi judicial nature as they would partake characteristics of Court of law, This view of the bench was overruled in subsequent decisions in case of AIR 1977 SC 282 and AIR 1992 SC 1918 But it may be recorded here that the bench's views on the provisions of the minimum wages act vis a vis section 33 C 2 have not been overruled rather they have been relied upon in subsequent decision of the apex court in case of case Managanese Ore (India) Ltd. v. Chandi Lal Saha" AIR 1991 SC 520 as could be seen from the discussion herein after in this judgment. 21. In case of R.B. Bansilal Arbi Mills Vs. Labour Court AIR 1972 SC 451 the Court has observed as under : The claim to compensation of every workman who is laid-off is one which arises under the statue itself and S. 25-C provides for a benefit to the workman which is capable of being computed in terms of money under S. 33-C (2) of the Act. Labour Court AIR 1972 SC 451 the Court has observed as under : The claim to compensation of every workman who is laid-off is one which arises under the statue itself and S. 25-C provides for a benefit to the workman which is capable of being computed in terms of money under S. 33-C (2) of the Act. The scheme of the Act being to enable a workman to approach a Labour Court for computation of the compensation claimed by him in terms of S. 25-C of the Act he is not concerned to see whether other co-workers will or will not adopt the same course. The fact that a number of workers make claims of identical nature i.e. to compensation for lay-off, arising out of the same set of facts and circumstances cannot make any difference to the individual workman who prefers the claim. The mere fact that a large number of persons makes a claim of the same nature against the employer, does not change the nature of the dispute so as to take it out of the pale of S. 7 of the Act and render the dispute one which can only be dealt with by an Industrial Tribunal to which reference can be made by the appropriate Government. 23. In substance the point urged by the appellants was that if a claim is made on the basis of a layoff and the employer contends that there was no lay-off but closure, it is not open to a labour court to entertain an application under S. 33-C (2). The more so it was stated, when the dispute was not between a solitary workman on the one hand and the employer on the other but a whole body of workmen ranged against their employer who was faced with numerous applications before the Labour Court for computation of benefit in terms of money. As has been said already the Labour Court must go into the matter and come to a decision as to whether there was really a closure or a lay-off. If it took the view that there was a lay-off without any closure of the business it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter V-A. In our opinion the High Court's conclusion that "In fact the business of this Company was continuing. If it took the view that there was a lay-off without any closure of the business it would be acting within its jurisdiction if it awarded compensation in terms of the provisions of Chapter V-A. In our opinion the High Court's conclusion that "In fact the business of this Company was continuing. They in fact continued to employ several employees. Their notices say that some portions of the mills would continue to work" was unexceptionable. The notices which we have referred to can only lead to the above conclusion. The Labour Court's jurisdiction could not be ousted by a mere plea denying the workman's claim to the computation of the benefit in terms of money; the Labour Court had to go into the question and determine whether, on the facts, it had jurisdiction to make the computation. It could not however give itself jurisdiction by a wrong decision on the jurisdictional plea. 22. In case of Workmen Vs. Firestone Tyre & Rubber co. reported in AIR 1976 SC 1775 = (1976) 3 SCC 819 the apex court has observed as under : In a reference under Section 10 (1) of the Act it is open to the Tribunal of the Court to award compensation which may not be equal to the full amount of basic wages and dearness allowance. But no such power exists in the Labour Court under Section 33C (2) of the Act. Only the money due has got to be quantified. If the lay-off could be held to be in accordance with the terms of the contract of service, no compensation at all could be allowed under Sec. 33-C (2) of the Act, while, in the reference some compensation could be allowed. Similarly on the view expressed above that the respondent company had no power to lay-off any workmen. There is no escape from the position that the entire sum payable to the laid-off workmen except the workmen who have settled or compromised, has got to be computed and quantified under S. 33C (2) of the Act for the period of lay-off. 23. There is no escape from the position that the entire sum payable to the laid-off workmen except the workmen who have settled or compromised, has got to be computed and quantified under S. 33C (2) of the Act for the period of lay-off. 23. The three judges bench of the apex court in case of "Goverdhan Prasad v. Management of M/s. Indian Oxygen Ltd."AIR 1984 SUPREME COURT 27 where The workmen who applied for monetary computation of existing benefit, namely, that the dearness allowance formula applicable to them was the one awarded by the Industrial Tribunal, Delhi in Reference I. D. No. 88 of 1973 in respect of workmen employed in the factory including general staff (employed in Delhi Branch) were stationed at Ghaziabad which can appropriately be described as part of Delhi agglomeration or a suburb of Delhi though technically it forms part of State of Uttar Pradesh. It was admitted that the Delhi based workmen of the Company were governed by the dearness allowance formula as per that award. Held that that a mere commonsense view would dictate that the claim made was unassailable and unquestionable. It was not a case of a fresh demand made by the workmen. The question raised was one of interpretation of award to determine its coverage when computing monetary benefit admissible to workmen. It was not disputed that for all administrative and managerial control, workmen stationed at Ghaziabad were part and parcel of the staff employed in Delhi Branch. And this ought to be so because Ghaziabad was hardly at a distance of 20km from Delhi. Secondly, the price structure prevalent in Delhi and Ghaziabad would not be materially different. And when the expression used in the award was general staff employed at Delhi Branch. Obviously those workmen who were under the administrative and managerial control of Delhi Branch would be included in the expression. Obviously, therefore, the dearness allowance admissible to those workmen would be according to the award by which dearness allowance was being paid to those working in Delhi Branch. Dearness allowance having not been paid in accordance with the award, it was quite legitimate for the workmen stationed at Ghaziabad to move the Labour Court under Section 33 C (2) and there was no question of making any fresh demand and seeking an adjudication thereof. 24. Dearness allowance having not been paid in accordance with the award, it was quite legitimate for the workmen stationed at Ghaziabad to move the Labour Court under Section 33 C (2) and there was no question of making any fresh demand and seeking an adjudication thereof. 24. The apex court in case "Managanese Ore (India) Ltd. v. Chandi Lal Saha" AIR 1991 SC 520 in respect of claim for minimum wages under section 33 (C) (2) observed as under 16. The third argument of Mr. Sangi based on the interpretation of S. 20 of the Act is again devoid of any force. This precise argument was considered by this Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli (1970) 1 SCR 51 : ( AIR 1969 SC 1335 ) and decided in the following terms: "The Minimum Wages Act is concerned with the fixing of rates - rates of minimum wages, overtime rates, rate for payment of work on a day of rest and is not intended for enforcement of payment of wages. U/ S. 20(1) of the Minimum Wages Act, in which provision is made for seeking remedy in respect of claims arising out of payment of less than minimum rates, or in respect of remuneration for days of rest, or for work on such days, or of wages at the overtime rates, the authority is to exercise jurisdiction for deciding claims which relates to rates of wages, rates for payment for work done on days of rest and overtime rates. The power u/ S. 20(3) of the Minimum Wages Act given to the Authority dealing with an application under S. 20(1) to direct payment of the actual amount found due, is only an incidental power for working out effectively the directions u/ S. 20(1) fixing various rates under the Act. That is, if there is no dispute as to rates between the employer and the employee and the only question is whether a particular payment at the agreed rate is due or not, then S. 20(1) of the Minimum Wages Act would not be attracted at all, and the appropriate remedy would only be either u/ S. 15(1) of the Payment of Wages Act, 1936, or u/ S. 33-C(2) of the Industrial Disputes Act." 17. In the present case there was no dispute regarding the rates of wages and it is admitted by the parties that the minimum rates of wages were fixed by the Government of India under the Act. The workmen demanded the minimum wages so fixed and the appellant denied the same to the workmen on extraneous considerations. Under the circumstances the remedy u/ S. 20 of the Act was not available to the workmen and the Labour Court rightly exercised its jurisdiction under S. 33-C(2) of the Industrial Disputes Act, 1947. 25. The apex court in case of UOI Vs. Kankuben reported in AIR 2006 SC 1784 has observed as under ? In the case of State Bank of India v. Ram Chandra Dubey and Ors., (2001) 1 SCC 73 , this Court held as under: 2000 AIR SCW 4176 "7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen. .. The principles enunciated in the decisions referred by either side can be summed up as follows: ...Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages" The position was recently reiterated by three-judge Bench of this Court in State of U.P. and Another v. Brijpal Singh ( 2005 (8) SCC 58 ). (Also see A.P. SRTC v. B.S. David Paul, 2006 (2) SCC 282 ). 2006 AIR SCW 66 2006 AIR SCW 661 Director General (Works), C.P.W.D. (supra) is clearly distinguishable on facts, as in that case the employer had accepted its liability and that is why this Court did not interfere. The factual scenario is entirely different in the cases at hand. 2006 AIR SCW 66 2006 AIR SCW 661 Director General (Works), C.P.W.D. (supra) is clearly distinguishable on facts, as in that case the employer had accepted its liability and that is why this Court did not interfere. The factual scenario is entirely different in the cases at hand. Right from the beginning the appellants have been questioning the maintainability of the petitions under Section 33-C (2) of the Act. In view of the settled position in law as delineated above, the appeals deserve to be allowed which we direct. In the peculiar circumstances of the case, if any amount has been paid to any of the respondents in compliance of the order of the Labour Court and/or the High Court the same shall not be recovered. Costs made easy. 26. In case of U.P. State Road Transport Corporation Vs. Shri Birendra Bhandari AIR 2006 SC 3220 the Court has observed that the benefit which can be enforced under Section 33-C(2) has to be a preexisting benefit or one flowing from a pre-existing right. The Court further held that under S.33C(2) of the Industrial Disputes Act 1947 no recovery application for wages and allowances as recommended by the 5 th Pay Commissions were maintainable. 27. Thus from the aforesaid discussions the following proposition of law which have been time and again laid down by the Courts in their various judgments emerge: As decided by the Apex Court in case of Central Bank of India Vs. P.S. Rajagopalan (supra) the scope of section 33 C(2) is greater than the scope of section 33 C(1) of ID Act. There is no doubt that 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 proceedings but it is possible that claims not based upon settlements, awards, or made under the provisions of Chapter-V A may also be competent under section 33 C(2) and that would indicate its wider scope. The Court has further indicated that if an employee is dismissed or demoted and it is his case that the dismissal or demotion was wrongful, it would not be open for him to make a claim for recovery of his salary or wages under section 33 C(2). The Court has further indicated that if an employee is dismissed or demoted and it is his case that the dismissal or demotion was wrongful, it would not be open for him to make a claim for recovery of his salary or wages under section 33 C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately adjudicated upon. But once it is shown that the employer has dismissed or demoted the employee then straightway employee cannot maintain proceedings under section 33 C (2) of I.D. Act even if the action complaint of is wrongful. The action of demotion and or dismissal is essentially required to be illegal by the competent court in reference and not in recovery proceedings. 2. The legislature has recognised the need of individual workman seeking speedy remedy to enforce his existing rights and therefore inserted section 33-A in 1950 and section 33-A in 1956. The aforesaid two sections envelops cases in which individual workman can enforce his right without having recourse to section 10(1) and therefore without being dependent upon union to espouse his cause, as the Apex Court has held time & again the collective bargaining shall not be pleaded for excluding the existing right which are required to be enforced expeditiously. 3. The question arises as to whether the impugned orders could be said to be justified in light of proposition of law discussed herein above, the answer would be emphatic NO. 4. It is required to be noted that the Labour Court has not applied its mind to the operative part of the award which in unequivocal terms declares workmen's entitled to back wages and reinstatement. The direction of back wages and reinstatement would in term cast a duty upon the employer to enforce the award within one month from its publication and reinstate the employee workmen and pay them wages admissible to them under the law and further cast duty upon the employer to pay the workman the back wages for the period workmen worked for the period from the date of termination till the date of reinstatement. This is the basic minimum which required to be given to the workmen straightway without going into any further inquiry. This is the basic minimum which required to be given to the workmen straightway without going into any further inquiry. This being absolutely established under the declaration the Labour Court was under bounden duty to direct the employer to comply with the direction and pay the back wages as well as the current wages after the date of publication of award and its enforceability till the actual reinstatement of the workmen. It is required to be noted at this stage that when the workmen were before the Labour Court in the inquiry proceedings they were not reinstated and this Court has not been informed by Learned advocate for the employer respondent as to whether today the workmen have been reinstated or not. The Labour Court has straightway rejected the recovery applications and therefore to that extent this Court is of the view that the Labour Court has abdicated its functioning and without applying its mind rejected the recovery application, the judgment & order of the Labour Court to the say the least are perverse and not standing scrutiny of law. 5. The question arises as to whether after recording finding with regard to Labour Court's orders perversity and untenability, this Court may proceed to examine that claims raised by the workmen in the recovery application for passing appropriate order or relegate parties to Labour Court for deciding the same in light of what is stated herein above. The facts remain to be noted that the employer has for the reasons best known to it chosen to take up a stand of not putting any other defence before the Court of resisting claim of the workmen and that is why the Court could have straightway allowed the claims of the workmen. But as it is stated herein above the proposition of law laid down herein above would show that workmen's all claim cannot be straightway allowed and it requires appropriate inquiry permission under section 33-C(2) of I.D. Act. Therefore this Court is of the view that the matter is required to be remanded to the Labour Court for adjudicating upon the other claims. 6. Therefore this Court is of the view that the matter is required to be remanded to the Labour Court for adjudicating upon the other claims. 6. Having decided to remand the matter back to the Labour Court question arise as to whether the workmen who have been agitating for their legitimate right since the day of their illegal termination in one Court or the other and before one authority or the other be merely asked to undergo same plight over & again without giving them any succor in form of some relief which in no case could be disputed by any party and to which the workmen are legitimately entitled under the award. Therefore the Court is of the view that appropriate direction of payment of back wages and order of reinstatement and direction to employer to pay the workmen their current wages as per requirement of law is absolutely essential for meeting the end of justice. 28. In view of this the Court is of the view that the orders impugned in this proceedings are untenable in eye of law and therefore they are quashed and set aside. The employer is directed to pay the workmen back wages at the rate of last drawn wages till the date of their reinstatement and reinstate the workmen on their original post within a period of 30 days from the date of receipt of writ of this Court and thereafter continue paying them current wages admissible to them under the provision of law. The workmen's claim for receiving back wages at the rate of admissible minimum wages is not negatived by the aforesaid direction however, it is left open to the workmen to make their case good for claiming back wages at the rate of minimum wages admissible from time to time for the period from their illegal termination till their reinstatement. 29. The recovery applications are remanded back to the Labour Court for adjudication afresh in accordance with law and on merits after affording due opportunities to both the parties for leading both the parties in support of their claim. This Court is constrained to observe that in fitness of things and in the interest of justice the matters be heard by any other Labour Judge than the one who had passed the impugned orders which have been quashed and set aside in this proceedings. This Court is constrained to observe that in fitness of things and in the interest of justice the matters be heard by any other Labour Judge than the one who had passed the impugned orders which have been quashed and set aside in this proceedings. It goes without saying that the amount paid to the workmen under this order would be adjusted against the final amount that may be determined by the Labour Court on final adjudication of the claim of the workmen. 30. Accordingly the petitions are allowed in part. Rule in each petition is made absolute to the aforesaid extent. However there shall be no order as to costs. 31. Registry is directed to maintain copy of this judgment & order in each petition.