Kerala High Court
Kerala State Coop. Coir Marketing ... vs Labour Court And Ors. on 4 February, 1993
Equivalent citations: (1993)IILLJ193KER
JUDGMENT P.A. Mohammed, J.
1. The Kerala State Co-operative Coir Marketing Federation Limited (hereinafter referred to as "the society") is the writ petitioner. The dispute in this petition relates to the award of subsistence allowance to one of its employees by the Labour Court under Section 33-C(2) of the Industrial Disputes Act, 1947.
2. The facts involved in the case are briefly stated hereunder:
The second respondent (hereinafter called "the employee") was the manager of the society's depot at Ludhiana. There was an allegation against him that he had misappropriated a sum of Rs. 1,69,022.97, while he was working at Ludhiana. While so, the employee had applied for leave from November 12, 1984, to January 12, 1985, which was sanctioned. He again applied for leave from January 12, 1985, to November 13, 1985, which was refused by the society. Thereafter, he did not report for duty and thus abstained himself from employment. In the meantime investigation was conducted as regards the alleged misappropriation and the employee was accordingly placed under suspension with effect from July 12, 1985. A domestic enquiry was conducted and a charge of misconduct against the employee was found proved. The board of directors of the society thereafter adopted a resolution on June 12, 1987, dismissing the employee with effect from July 12, 1985 i.e., the date on which he was placed under suspension. The said order of dismissal was communicated to him on July 15, 1987. Thereafter, an arbitration case was filed against him under Sections 69 and 70 of the Kerala Co-operative Societies Act, 1969, in realisation of the above amount which was proved to be misappropriated by him.
3. On June 23, 1987, the employee filed a petition before the Labour Court, Quilon, under Section 33-C (2) of the Industrial Disputes Act, 1947 (hereinafter called "the I.D. Act"), seeking to determine the amount due to him from the society. A sum of Rs. 8,400 was claimed towards the arrears of salary for the period from January 15, 1985 to July 11, 1985 and Rs. 29, 650 towards the subsistence allowance for the period from July 12, 1985, to June 23, 1987. Controverting the aforesaid claim, the society filed Exhibit P-2 written objection contending that he was not eligible for any subsistence allowance as he was dismissed on the very day of his suspension, viz., July 12, 1985, as per the resolution of the board. It was also contended that the application was not filed within the period of one year as specified in Section 4 of the Kerala Payment of Subsistence Allowance Act and that, at any rate, there was no explanation for the inordinate delay in moving the petition under Section 33-C(2) of the Industrial Disputes Act. Finally, the Labour Court passed Exhibit P-3 order allowing the claim as far as subsistence allowance was concerned. However, the claim for arrears of salary was disallowed. As against the grant of subsistence allowance, the society has challenged Exhibit P-3 order in this writ petition.
4. Counsel for the petitioner argues that the second respondent is not a "workman" corning within the purview of the Industrial Disputes Act and hence his claim under Section 33-C(2) of the Act is not maintainable. Admittedly, such a contention has not been raised before the Labour Court. However, since it is a question pertaining to the jurisdiction of the Labour Court to entertain the application, it would be proper for this Court if it considers whether such question can be entertained at this stage. Sub-section (2) of Section 33-C of the Act reads thus;
"(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 within a period not exceeding three months."
5. The above provision can be invoked only by a workman whose status is not disputed. The Court will get jurisdiction to try an application under it when it is clearly stated that he is a "workman". Then only an application under Sub-section (2) can be entertained. If the employer disputes the status of an applicant, he must raise it at the earliest point of time and get it decided as a preliminary point. The employer cannot raise such question at a later stage because entertainment of the application itself is dependent on deciding such question as and when the employer appears before the Court on receipt of the notice. In the absence of such question being raised at that stage, it is presumed that the employer has admitted the status of the applicant.
6. It is, no doubt, true that the employee has claimed the benefit under the Kerala Payment of Subsistence Allowance Act, 1972. This is an Act intended to provide for the payment of subsistence allowance to the employees in certain establishments during the period of suspension. Before introducing the above Act, there was no such law in the State of Kerala making it obligatory on the part of the employers in industrial or commercial establishments to pay subsistence allowance to employees kept under suspension pending enquiry. Sub-rule (6) of Rule 198 of the Kerala Co-operative Societies Rules, 1969, inter alia, provides that an employee under suspension shall be entitled to subsistence allowance payable under the Payment of Subsistence Allowance Act, 1972. The suspension has not completely absolved the contracting parties from enforcing the terms of the contract. It is kept in suspension till the enquiry is completed. But, the right to sustain life during the period of suspension shall not be denied to an employee. "Employee", in the present case, has claimed subsistence allowance at the rate prescribed in Section 3 of the Subsistence Allowance Act. Section 4 of the said Act prescribes the summary procedure for recovery of money due to an employee from the employer.
Section 4 of the Kerala Payment of Subsistence Allowance Act reads thus:
"4. Recovery of money due from an employer.- Where any money is due to an employee from an employer under this Act, the employee himself or any other person authorised by him in this behalf, or, in the case of the death of the employee, his legal representative, may, without prejudice to any other mode of recovery, make an application to the Government in such manner as may be prescribed for the recovery of money due to him, and if the Government after giving the employer an opportunity of being heard, in such manner as may be prescribed, is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue."
7. Under this provision, an employee can make an application to the Government seeking to recover the subsistence allowance from the employer if he is under suspension pending enquiry. If the Government, after giving an opportunity of being heard to the employer, is satisfied that the subsistence allowance is so due to him, it shall issue a certificate for that amount to the Collector. Such amount shall be recovered by the Collector in the same manner as an arrear of land revenue. This provision contemplates an enquiry where both the employer and the employee can participate.
8. The question that is raised by the petitioner is that since the employee has claimed the benefit as available under Section 3 of the Payment of Subsistence Allowance Act, he should have filed an application for recovery of the subsistance allowance under Section 4 of the said Act instead of filing an application under Section 33-C (2) of the Industrial Disputes Act. In other words, the point urged is whether an employee who claims subsistence allowance under Section 3 of the Payment of Subsistence Allowance Act is entitled to file an application under Section 33-C (2) of the Industrial Disputes Act seeking to recover it from the employer. This question is no longer res integra. Before the Supreme Court in Bombay Gas Co. v. Gopal Bihva 1963-II-LLJ-608 a question arose whether the wages under the Payment of Wages Act can be recovered in a proceeding under Section 33-c(2) of the Industrial Disputes Act. While dealing with the question, the Supreme Court held that wages due under the Payment of Wages Act can be "tackled" under the provisions of Section 33-C(2) of the Industrial Disputes Act. Applying the principle laid down by the Supreme Court in the above decision, M.P. Menon, J., held in Vimal Printers v. V.B. Omana, 1983-I-LLJ-342 thus (at page 346):
"Section 20 of the Minimum Wages Act is similar to Section 15 of the Payment of Wages Act and it should, therefore, follow that claims arising under the former Act could also be tackled under Section 33-C(2) of the Industrial Disputes Act,"
Dr. Kochu Thommen. J. (as he then was), of this Court in Karunakaran Nair v. Dhanalakshmi Bank Ltd., (1.988) 73 FJR 78, also took the same view and held thus (at page 79):
"A claimant under this section (Section 4 of the Subsistence Allowance Act) can, therefore, directly make an application to the Government. Thereupon, after hearing both sides a certificate can be issued by the Government to the Collector for recovery by recourse to the provisions of the Kerala Revenue Recovery Act, 1968. That is a summary mode of recovery. But that is not the only mode of recovery. An equally efficacious method is provided under Section 33-C (4) of the Industrial Disputes Act pursuant to a decision of the Labour Court under Sub-section (2) of Section 33-C".
Shamsuddin, J., in Chennamangalam Nair Samajam v. Sarada 1993-II-LLJ held thus (at page:
"It is clear from Section 4 itself that this remedy is without prejudice to any other mode of recovery. It is argued by learned counsel on the basis of general principle of interpretation that normally, when a special statute is enacted for the purpose of enforcing some rights and a machinery is provided thereunder, recourse will be had to that machinery and to none else. However, that principle can hardly have an application in the instant case, inasmuch as Section 4 expressly states that the machinery provided under Section 4 is only without prejudice to any other mode of recovery."
9. It is pointed out that the provisions contained in the Payment of Subsistance Allowance Act are a self-contained code similar to that of the provisions in the Payment of Gratuity Act, 1972. The Supreme Court in State of Punjab v. Labour Court, 1981-I-LLJ-354 while interpreting the provisions contained in the Payment of Gratuity Act, held thus (at page 357):
"Upon all these considerations, the conclusion is inescapable that Parliament intended that proceedings for payment of gratuity due under the Payment of Gratuity Act must be taken under that Act and not under any other. That being so, it must be held that the applications filed by the employee respondents under Section 33-C (2) of the Industrial Disputes Act did not lie; and the Labour Court had no jurisdiction to entertain and dispose of them."
Can it be said a similar situation as laid down in the case of the Payment of Gratuity Act, is envisaged in so far as the Payment of Subsistence Allowance Act? The answer can never be in the affirmative as long as Section 4 of the said Act contains a stipulation that the proceedings thereunder are "without prejudice to any other mode of recovery". A similar contention advanced before this Court in Chennamangalam Nayar Samajam's case, (supra) was repelled by the Court after analysing the provisions.
10. The next contention to be considered is with regard to the period of limitation applicable to the claims available under Section 3 of the Payment of Subsistence Allowance Act which is sought to be enforced invoking the powers under Section 33-C( 2) of the Industrial Disputes Act. The first proviso to Section 4 of the Payment of Subsistence Allowance Act provides that the application shall be made within one year from the date on which the money became due to the employee from the employer. In the present case, had the application been filed before the Government, such an application would have been definitely barred under Section 4 of the Subsistence Allowance Act. The subsistence allowance was claimed from July 12, 1985, the date on which the employee was placed under suspension. In the normal course, the employee should have taken steps to recover the allowance during the period of suspension itself or under any circumstances, within a period of one year. Otherwise the claim would get itself time barred under Section 4 of the Act. In the written objection filed by the employer, the objection based on limitation was urged as below:
"The Kerala Payment of Subsistence Allowance Act, 1972, Section 4 deals with recovery of money due from an employer. It is directed therein that the employee or his authorised representative may make an application to the Government and the Government after giving the employer an opportunity of being heard, if satisfied that any money is so due, it shall issue a certificate for the amount to the Collector who shall proceed to recover the same by revenue recovery proceedings. But, there is a mandatory proviso under Section 4 itself that every such application shall be filed within one year from the date on which the money became due to the employee from the employer. In the instant case, the employee was suspended on July 12, 1985, and so he should nave filed the petition on or before July 12, 1986, whereas he has filed the petition only on June 23, 1987, and he has not assigned any reason for the inordinate delay in filing the petition."
The above contention was considered by the Labour Court not as a ground of delay, but as one relating to the maintainability of the petition. The first respondent had disposed of the above objection as per Exhibit P-3 in the following manner:
"According to the opposite party an application for getting subsistence allowance is to be made to the Government within one year of the due date. A petition under Section 33-C is not maintainable. The position is settled by the decision in Karunakarna Nair v. Dhanalakshmi Bank Ltd., (1988) 73 FJR 78 (Ker) (supra) where it was held that the money due under the Payment of Subsistence Allowance Act can be claimed under Section 33-C(2). It may be noted that no period of limitation is prescribed for making a claim under Section 33-C(2).
11. From the above, it is apparent that the first respondent has proceeded on the basis that an application under Section 33-C(2) is maintainable and that, therefore, the question of delay does not arise. It is, no doubt, true that claims available under the Payment of Subsistence Allowance Act can be recovered by filing an application under Section 33-C(2). That does not mean that explanation is unnecessary as regards the delay in filing the application. No employee can put forth a contention that he has filed the application under Section 33-C(2) to recover the subsistence allowance which is otherwise barred under Section 4 of the Payment of Subsistence Allowance Act. He cannot also contend that he need not give any explanation for the delay in filing the application under Section 33-C (2) on the ground that no period of limitation is prescribed thereunder. It is not in dispute that there was delay in claiming the subsistence allowance in the present case and no attempt had been made to explain the delay. The petition under Section 33-C(2) is, of course, maintainable but that does not mean the employee is under no obligation to answer the allegation as regards delay, particularly in view of the fact that the claim would be barred if filed under Section 4 of the Subsistence Allowance Act. In that situation, the contention of the employer that the claim under Section 33-C(2) was made in order to save from the clutches of limitation provided in Section 4 of the Payment of Subsistence Allowance Act cannot be totally ruled out. It is, therefore, possible to contend that the application itself is not bona fide. The employee cannot be arrogant and refuse to give any explanation for his laches. As far as this case is concerned, there are circumstances which warrant an explanation from the employee. Though the petitioner was placed under suspension on July 12, 1985, he filed the application under Section 33-C(2) only on June 23, 1987. The employee was dismissed from service as per the order dated June 12, 1987, after conducting domestic enquiry and the society had filed arbitration case against the employee for realisation of the amount, which was found to be misappropriated by him. The application claiming subsistence allowance shall be filed at the earliest point of time since it is awarded for sustaining the life of the employee during the period of suspension. He cannot, therefore, wait till the passing of the order of dismissal. That the refusal to furnish explanation for the delay in filing the application under Section 33-C(2) for claiming a benefit which is otherwise barred under Section 4 of the Payment of Subsistence Allowance Act shows the conduct of the employee, which will not find favour with the authorities adjudicating the industrial claims.
12. The next question is whether there is any bar on the Labour Court in the present case in considering the contention of delay in filing an application under Section 33-C(2). Vigilantibus non dormientibus jura subveniunt. "The law assists the vigilant, not those who sleep over their rights." This is the general rule. The employee did not invoke the remedy under Section 4 of the Subsistence Allowance Act within the time prescribed. Therefore, the claim under the said Act is barred. In that situation, the adjudicating authority can very well examine whether the employee has approached the different fora to escape from limitation, when such question is raised by the employer. The fact that the Labour Court can entertain an application under Section 33-C(2) at any time does not debar the Labour Court from examining such contention. Every adjudicating authority had inherent jurisdiction to go into such questions when raised by the parties.
13. The Legislature did not provide a period of limitation for filing an application under Section 33-C(2) of the Industrial Disputes Act. However, it cannot be said to be a guarantee that the said provision can be used in any manner as one likes. Every provision of law has to be applied properly, reasonably and bona fide. It is repeatedly said by the Supreme Court: "Industrial adjudication should not encourage unduly belated claims". The employees who prefer to invoke the provisions under Section 33-C(2) shall make the application within a reasonable period. What is reasonable period will depend on the circumstances of each case.
14. In view of my above conclusion, the first respondent Labour Court shall decide the question whether the employee has filed the Exhibit P-1 application for recovery of subsistence allowance under Section 33-C (2) within a "reasonable period" and whether there is any proper explanation for the delay, if any, in preferring the claim. Both parties shall be given an opportunity of being heard in the matter while deciding those questions. In that situation, the case is remanded to the Labour Court for deciding these questions alone. The Court shall finally dispose of the matter within a period of three months from today in view of the findings to be entered on the questions aforesaid. The writ petition is disposed of as above. No order as to costs.