Allahabad High Court
M/S Sahakari Sangh Ltd. vs Presiding Officer, Labour Court & ... on 29 January, 2013
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 26 Case :- WRIT - C No. - 28261 of 2000 Petitioner :- M/S Sahakari Sangh Ltd. Respondent :- Presiding Officer, Labour Court & Others Petitioner Counsel :- Hemant Kumar Respondent Counsel :- C.S.C. Hon'ble B. Amit Sthalekar,J.
By this writ petition, the petitioner is challenging the orders dated 29.4.1997 and 18.2.2000 passed by the Prescribed Authority under the Payment of Wages Act/ Assistant Labour Commissioner, Basti.
Sri Hemant Kumar learned counsel for the petitioner has submitted that the Prescribed Authority under the Payment of Wages Act, 1936 has no jurisdiction to entertain a claim for award of wages in respect of a Cooperative Society, inasmuch as a Cooperative Society is not an "establishment" within the meaning of the term as defined in Section 2(ii) (ag) of the Payment of Wages Act, 1936. He has cited before me a decision of the Learned Single Judge of this Court reported in 1997 (2) UPLBEC 159 (Assistant Registrar Cooperative Societies U.P. Allahabad Vs. State of U.P. and others), wherein, this court has passed the following orders:
"Heard counsel for the petitioner.
This writ petition has been filed against the impugned order dated 17.5.1995 annexure-1 to the writ petition. The respondent no.3 was employed as Secretary of a Cooperative Society and he made an application under Section 15 of the Payment of Wages Act. In my opinion, the payment of Wages Act does not at all apply in this case. Section 1(4) of the said Act states that the Act will apply to persons employed in a factory or in railway administration or to establishments covered by Section 2 (ii) (ag).
The petitioner is not covered by any of the aforesaid clauses of Section 2 of the Act. Hence the Payment of Wages Act has no application at all. The remedy if any, of the petitioner was to apply under Section 33-C (2) of the Industrial Dispute Act or Section 6-H (2) of the U.P. Industrial Dispute Act.
The writ petition is allowed. The impugned order dated 17.5.1995 is hereby set aside."
However, while the learned Single Judge in the above referred case had held that the petitioner may apply under Section 33-C (2) of the Industrial Disputes Act, 1947 or Section 6-H (2) of the U.P. Industrial Disputes Act, 1947, the legal position in this regard has also now been settled by the Supreme Court in the case of Ghaziabad Zila Sahkari Bank Ltd. Vs. Additional Labour Commissioner.
The Supreme Court in the case reported in (2007) 11 SCC 756 (Ghaziabad Zila Sahkari Bank Ltd. Vs. Addl. Labour Commissioner and others), has held that matter relating to conditions of service of employees of Cooperative Societies shall be governed by the provisions of U.P. Cooperative Societies Act, 1965 and the rules framed thereunder and the Labour Courts have no jurisdiction to entertain disputes relating to such employees.
Para 45 of the Supreme Court judgment reads as follows:
"45. The general legal principle in interpretation of statutes is that 'the general Act should lead to the special Act'. Upon this general principle of law, the intention of the U.P legislature is clear, that the special enactment UP Co- operative Societies Act, 1965 alone should apply in the matter of employment of Co-operative Societies to the exclusion of all other Labour Laws. It is a complete code in itself as regards employment in co-operative societies and its machinery and provisions. The general Act the UPID Act, 1947 as a whole has and can have no applicability and stands excluded after the enforcement of the UPCS Act. This is also clear from necessary implication that the legislature could not have intended 'head-on-conflict and collision' between authorities under different Acts. In this regard reference can be made to Co-operative Central Bank Ltd. and Ors. v. The Additional Industrial Tribunal, Andhra Pradesh and Ors. (1969) 2 SCC 43 where this Court observed that:
"Applying these tests, we have no doubt at all that the dispute covered by the first issue referred to the Industrial Tribunal in the present cases could not possibly be referred for decision to the Registrar under Section 61 of the Act. The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute. The Registrar, it is clear from the provisions of the Act, could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself. It is true that Section 61 by itself does not contain any clear indication that the Registrar cannot entertain a dispute relating to alteration of conditions of service of the employees of a registered society; but the meaning given to the expression "touching the business of the society", in our opinion, makes it very doubtful whether a dispute in respect of alteration of conditions of service can be held to be covered by this expression. Since the word "business" is equated with the actual trading or commercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, can be said to be a part of its business, it would appear that a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society. Further, the position is clarified by the provisions of Subsection (4) of Section 62 \of the Act which limit the power to be exercised by the Registrar, when dealing with a dispute referred to him under Section 61, by a mandate that he shall decide the dispute in accordance with the provisions of the Act and the Rules and bye-laws. On the face of it, the provisions of the Act, the rules and the byelaws could not possibly permit the Registrar to change conditions of service of the workmen employed by the society. For the purpose of bringing facts to our notice in the present appeals, the Rules framed by the Andhra Pradesh Government under the Act, and the bye-laws of one of the appellant Banks have been placed on the Paper-books of the appeals before us. It appears from them that the conditions of service of the employees of the Bank have all been laid down by framing special byelaws. Most of the conditions of service, which the workmen want to be altered to their benefit, have thus been laid down by the bye-laws, so that any alteration in those conditions of service will necessarily require a change in the bye-laws. Such a change could not possibly be directed by the Registrar when, under Section 62(4) of the Act, he is specifically required to decide the dispute referred to him in accordance with the provisions of the bye- laws. It may also be noticed that a dispute referred to the Registrar under Section 61 of the Act can even be transferred for disposal to a person who may have been invested by the Government with powers in that behalf, or may be referred for disposal to an arbitrator by the Registrar. Such person or arbitrator, when deciding the dispute, will also be governed by the mandate in Section 62(4) of the Act, so that he will also be bound to reject the claim of the workmen which is nothing else than are quest for alteration of conditions service contained in the bye-laws. It is thus clear that, in respect of the dispute relating to alteration of various conditions of service, the Registrar or other person dealing with it under Section 62 of the Act is not competent to grant the relief claimed by the workmen at all. On the principle laid down by this Court in Deccan Merchants Co- operative Bank Ltd. Vs. Dalichand Jugraj Jain AIR 1969 SC 1320, therefore, it must be held that this dispute is not a dispute covered by the provisions of Section 61 of the Act. Such a dispute is not contemplated to be dealt with under Section 62 of the Act and must, therefore, be held to be outside the scope of Section 61.
Further this Court observed in R.C. Tiwari v. M.P. State Co-operative Marketing Federation Ltd. (1997) 5 SCC 125 that:
"....He also places reliance on Section 93 of the Societies Act which states that nothing contained in the Madhya Pradesh Shops and Establishments Act 1958, the M.P. Industrial Workmen (Standing Orders) Act, 1959 and the M.P. Industrial Relations Act, 1960 shall apply to a Society registered under this Act. By necessary implication, application of the Act has not been excluded and that, therefore, the Labour Court has jurisdiction to decide the matter. We find no force in the contention. Section 55 of the Societies Act gives power to the Registrar to deal with disciplinary matters relating to the employees in the Society or a class of Societies including the terms and conditions of employment of the employees. Where a dispute relates to the terms of employment, working conditions, disciplinary action taken by a Society, or arises between a Society and its employees, the Registrar or any officer appointed by him, not below the rank of Assistant Registrar, shall decide the dispute and his decision shall be binding on the society and its employees. As regards power under Section 64, the language is very wide, viz., "Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitution, management or business of a Society or the liquidation of a Society shall be referred to the Registry by any of the parties to the dispute." Therefore, the dispute relating to the management or business of the Society is very comprehensive as repeatedly held by this Court. As a consequence, special procedure has been provided under this Act. Necessarily, reference under Section 10 of the Societies Act stands excluded. The judgment of this Court arising under Andhra Pradesh Act has no application to the facts for the reason that under that Act the dispute did not cover the dismissal of the servants of the society for which the Act therein was amended."
Similar view was taken by this Court in Belsund Sugar Co. Ltd. v. State of Bihar (1999) 9 SCC 620, Allahabad Bank v. Canara Bank (2000) 4 SCC 406, State of Punjab v. Labour Court (1980) 1 SCC 4 and U.P.SEB Vs. Shiv Mohan Singh (2004) 8 SCC 402."
46. .........
47. ........
48. We are therefore of the view that the Asst. Labour Commissioner (ALC)'s jurisdiction was wrongly invoked and his order dated 15.03.2003 under Section 6H, U.P. Industrial Disputes Act, 1947 is without jurisdiction and hence null and void and it can be observed that, in view of the said general legal principle, it is immaterial whether or not the government has enforced Section 135 (U.P. Cooperative Societies Act) because, in any case the said provision (Section 135) had been included in the Act only by way of clarification and abundant caution."
A Division Bench of this Court in Special Appeal No.1906 of 2008 Brij Bhushan Singh and another vs. State of U.P. and others has held as under:-
"It is said that Section 135 has not been enforced so far but the question as to whether despite of non enforcement of Section 135 of 1965 Act, the Central Act, 1947 or U.P. Act, 1947 would apply to the employees of a cooperative society governed by the provisions of 1965 Act and the rules and regulations framed thereunder came to be considered in Ghaziabad Zila Sahkari Bank Ltd. Vs. Addl. Labour Commissioner and others, JT 2007(2) SC 566 and it was held that Section 135 has been added only by way of clarification and abundant caution and, therefore, where the provisions are contained in 1965 Act, the labour laws and in particular the U.P. Act, 1947 would not be applicable. It is also said that 1965 Act alone would apply in the matter of employment of cooperative societies to the exclusion of all other laws since it is a complete code in itself as regards employment in cooperative societies and its machinery etc. In para 78 of the judgement the Apex Court held:
"It is relevant to mention here that the services of the employees of the Bank are governed by service regulations 1975 framed under the Act of 1965, which provides complete machinery and adjudication. Moreover, the provisions under Section 70 of the U.P. Cooperative Societies Act, 1965 is elaborate in this regard, which provides complete machinery that if there is any dispute between the employers and the employees of the Cooperative Society, the matter shall be referred to the Arbitrator as provided under Section 70 of the U.P. Cooperative Societies Act, 1965. Section 70 of the U.P. Cooperative Societies Act and Section 64 of the M.P. Cooperative Societies Act are pari materia and this Court in the matter of R.C. Tewari vs. M.P. State Cooperative Marketing Federation Ltd. 1997 (5) SCC 125 held that Labour Court and Industrial Laws are not applicable where complete machinery has been provided under the provisions of the Cooperative Societies Act and in such view of the matter the Ld. Additional Labour Commissioner U.P. has no jurisdiction to pass orders in the nature it has been Passed."
The same controversy has already been settled by this Court in Writ Petition-C No.44864 of 2005, M/S Pradhan Prabandhak, Kisan Sahkari Chini Mill vs.State of U.P. and others and Writ Petition-C No.17412 of 1999, M/S Dugdh Utpadan Sahkari Sangh vs. Presiding Officer, Labour Court, Kanpur and others wherein also it was held that the provisions of the U.P. Industrial Disputes Act, 1947 would not apply in the case of persons, who are appointed in the Cooperative Society registered under the U.P. Cooperative Societies Act, 1965."
However, in (1996) 1 SCC 69 Krishan Prasad Gupta V. Controller, Printing & Stationery, the Supreme Court has held that the Industrial Disputes Act, 1947 and the Payment of Wages Act, 1936 are corresponding law qua each other particularly as both are part of the same social canopy made by Parliament. The analytical discussion for arriving at the above conclusion begins at para 24 and concludes at para 36 of the said judgment. The relevant paras are quoted below:
"24. Payment of Wages Act, 1936 is an Act to regulate the payment of wages to certain classes of persons employed in an industry. The Act was amended from time to time and was ultimately amended in 1982 by Act 38 of 1982 with the following objects and reasons:
"The Payment of Wages Act, 1936 regulates the payment of wages to certain classes of persons employed in industry. It was enacted to ensure that the wages payable to employees covered by the Act are disbursed by the employer within the prescribed time-limit and that no deductions other than those authorised by law are made by the employers. The Act applies proprio vigore to the payment of wages to persons employed in any factory or to persons employed in a railway by a railway administration either directly or through a sub-contractor. Further, the State Governments are empowered to extend the provisions of the Act to cover persons employed in any industrial establishment or any class or group of industrial establishments as defined in the Act. The wage limit for the applicability of the Act is Rs. 1000 per mensem. It is proposed to amend the Act with a view to extending its protection to a larger number of persons and making the provisions of the Act more effective and beneficial.
25. While the act, to begin with, was applicable to industrial establishments so as to ensure payment of wages to workmen or persons employed in an industry at regular intervals without any unauthorised deduction, the amendments introduced by Act 38 of 1982 widened the scope of the original Act as many "other establishments" could be brought within its purview on a Gazette Notification issued either by the Central Government or the State Government.
26. Section 2 contains definitions of various terms, namely, "Employed persons", 'Employer', 'Factory', "Industrial or other establishments", "Railway Administration" and 'Wages' etc. Almost all these terms are also defined in the Industrial Disputes Act. In order to understand whether Payment of Wages Act is part of the legislative scheme governing Industrial Law, we would, by way of illustration concentrate on 'Wages' and its recovery from the employer through judicial process. The definition of 'Wages' in Section 2 (vi) is an exhaustive definition which is in very wide terms. Its relevant portion is quoted below:
"2(vi). "Wages" means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes-
(a) any remuneration payable under any award or settlement between the parties or order of a Court;
(b) any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period;
(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);
(d) any sum which by reason of termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with of without deductions but does not provide for the time within the payment is to be made;
(e) any sum to which the person employed is entitled under any scheme framed under any law for the time being in force; but does not include -
(1).........................
(2).........................
(3).........................
(4).........................
(5).........................
(6).........................
27. Under the Industrial Disputes Act, 1947, the term "Wages" has been defined in Section 2(rr) as under:-
"2(rr). "Wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes-
(i) such allowances (including dearness allowance [20] as the workman is for the time being entitled to;
(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles;
(iii) any traveling concession;
(iv) any commission payable on the promotion of sales or business or both; but does not include-
(a).....................................
(b).....................................
(c).....................................
28. If the "Wages" are not paid within the prescribed time limit or deductions, other than those authorised by law, are made by the employers, the employee can recover it under the Payment of Wages Act for which an elaborate machinery has been provided in Section 15 relevant portion of which is quoted below:-
"15. Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims:- (1)The State Government may, by notification in the official Gazette, appoint [a presiding officer of any Labour Court of Industrial Tribunal, constituted under the Industrial Disputes Act, 1947 (14 of 1947), or under any corresponding law relating to the investigation and settlement of industrial disputes in force in the state or] any Commissioner for Workmen's compensation or other officer with experience as a Judge of a Civil Court of as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages of persons employed or paid in that area, including all matters incidental to such claims:
Provided that where the State Government considers it necessary so to authority for any specified area and may, by general or special order, provide for the distribution or allocation of work to be performed by them under this Act.
(2) Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any; legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any inspector under this Act, or any other person acting with the permission of the authority appointed under sub-section (1), may apply to such authority for a direction under sub-section (3):
Provided that every such application shall be presented within twelve months from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be:
Provided further that any application may be admitted after the said period of twelve 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 sub-section (2) is entertained, the authority shall hear the applicant and the employer of other persons responsible for the payment of wages under Section 3, or give them an opportunity of being heard, and, after such further inquiry (if any) as may be necessary, may, without prejudice to any other penalty to which such employer or other person is liable under this Act, direct the refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding twenty-five rupees in the latter, and even if the amount deducted or the delayed wages are paid before the disposal of the application, direct the payment of such compensation, as the authority may think fit, not exceeding twenty-five rupees:
Provided that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to-
(a) a bona fide error or bona fide dispute as to the amount payable to the employed person, or
(b) the occurrence of an emergency, or the existence of exceptional circumstances, such that the person responsible for the payment of the wages was unable, though exercising reasonable diligence, to make prompt payment, or
(c) the failure of the employed person to apply for or accept payment.
(4) .................................
(4-A) ...............................
(4-B) ...............................
(5) ................................."
29.........................
30. A perusal of Section 15(1) would indicate that the State Government has to constitute an "authority" by appointing either the Presiding Officer of a Labour court of Industrial Tribunal or any commissioner for Workmen's Compensation or a Judge of a Civil Court or Stipendiary Magistrate to hear and decide all claims arising out of deductions from the wages or delay in payment of wages including all matters incidental thereto. If an employee does not get his wages in time and its payment is delayed or deductions are made from the wages unauthorisedly, he may either personally or through a legal practitioner or any official of a registered Trade Union or any Inspector appointed under the Act, may, apply to the "Authority" constituted under the Act and the latter namely, the "Authority", after hearing the employer or any other person responsible for payment of wages, may direct the refund of the amount deducted or payment of delayed wages, as the case may be, together with compensation as indicated in Sub-section(3) of Section 15 without prejudice to the penalty to which the employer or the other person may be liable under the Act. The amount so awarded is recoverable as fine imposed by a Magistrate as indicated in Sub-section (5) of Section 15.
31. Under section 33-C of the Industrial Disputes Act, there is an altogether different machinery provided for recovery of wages etc. It provides as under:-
"33-C. Recovery of money due from an employer- (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V A or Chapter V B, the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate government 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:
Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:
Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.
(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:
Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do he may, for reasons to be recorded in writing extend such period by such further period as he may think fit.
(3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case.
(4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1).
(5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen."
32. Under Sub-section (i) of Section 33-C the amount for the recovery of which proceedings may be initiated by a workman, may also consist of the amount due under a settlement or an award. This may be compared with the definition of "wages" as contained in Section 2(vi) of the Payment of Wages Act, which also includes "remuneration payable under any Award or Settlement". It is obvious that if any part of this amount is withheld or its payment is unreasonably delayed, the employee can recover it under the Payment of Wages Act.
33. In Town Municipal Council V. Presiding Officer Labour Court, this Court while affirming the decision of the Mysore High Court, since reported in Town Municipal Council V. Labour Court, laid down that questions relating to payment of minimum wages to the employee at the agreed rate or any amount for overtime work or for work on off-days can be considered and decided not only under the Payment of wages Act but also under Section 33 C(2) of the Industrial disputes Act 1947, and that jurisdiction of the Labour court under Section 33-C (2) is not barred on account of the provisions contained in the Payment of Wages Act .
34. This decision has been cited only as an effort to indicate that claim for wages can be entertained not only under the payment of Wages Act but also under section 33-C (2) of the Industrial Disputes Act.
35. Thus, the character and function of the Labour Court under the Industrial Disputes Act as also the Authority under the Payment of Wages Act are similar in purpose and both are designed to produce the same result particularly as some of the provisions under both the Act prescribe the same thing to be done.
36. The Industrial Disputes Act, 1947 and the Payment of Wages Act, 1936 are, therefore, "Corresponding Law" qua each other particularly as both are part of the same social legislative canopy made by the Parliament for immediate amelioration of workmen's plight resulting from non-payment, or delayed payment or, for that matter, short payment of their wages."
Thus, on a comparative reading of the judgment of the learned Single Judge in the case of Assistant Registrar, Cooperative Societies (supra), and the judgment of the Supreme Court reported in Ghaziabad Zila Sahkari Bank (supra) and in Krishan Prasad Gupta (supra), neither the Payment of Wages Act, 1936 has any application nor the provisions of the Industrial Disputes Act have any application and the only remedy available to the Respondent no..2 in the given facts of the case is in under the U.P. Cooperative Societies Act, 1965 and the Rules framed there under.
Learned Standing Counsel very fairly admitted the legal position as settled by this Court and the Supreme Court. In view of the above the present writ petition is allowed. The impugned orders dated 29.4.1997 and 18.2.2000 are quashed.
There shall be no order as to cost.
Order Date :- 29.1.2013 N Tiwari