Delhi High Court
Delhi Transport Corporation vs D.D. Gupta And Another on 16 December, 1983
Equivalent citations: ILR1984DELHI869, (1984)IILLJ79DEL
JUDGMENT Prakash Narain, C.J.
1. These three appeals under Clause 10 of the Letters Patent of the Punjab High Court as applicable to this Court have been heard together as a common question of law arises for determination.
2. Puran Singh respondent No. 2 in L.P.A. No. 124 of 1977, Ram Swarup, respondent No. 2 in L.P.A. No. 125 of 1977 and Chander Pal, respondent No. 2 in L.P.A. No. 127 of 1977 had filed applications under S. 33(C)(2) of the Industrial Disputes Act, 1947 for computation of wages allegedly due to them but not paid by the appellant.
3. Puran Singh in his application under S. 33(C)(2) stated that he joined the appellant as a conductor in 1965 and worked in that capacity till October 22, 1975 when he was removed from service by way of punishment without holding any enquiry. He further stated that he was placed under suspension pending enquiry on January 20, 1974 by an order passed by the Assistant General Manager (T) Vigilance. He remained under suspension up to January 20, 1975 when the suspension order was revoked. For the period of suspension he was paid subsistence allowance though he was entitled to full wages. Accordingly, he asked for the balance due by way of the wages to be computed and ordered to be paid to him. He also claimed bonus for the year 1974-75 which according to him had not been paid to him. Apart from this he claimed various increments to which he would have been entitled but which were not paid.
4. Ram Swarup stated in his application under S. 33(C)(2) of the Industrial Disputes Act that he was a conductor in the establishment of the appellant. He also remained under suspension from December 5, 1973 to October 31, 1974 during which period he was paid subsistence allowance and not full wages. The suspension order was passed by the Assistant General Manager (T) Vigilance. In consequence he claimed the difference between the subsistence allowance paid to him and full wages plus other benefits.
5. Chander Pai joined the appellant as a conductor in 1960. He was placed under suspension for four months in 1967-68, for 8 months on two occasions in 1972 and for one year and 12 days from January 9, 1974 to January 21, 1975. He was paid subsistence allowance and not full wages. He accordingly claimed the difference of the two for the period during which he was under suspension. He also claimed certain further amounts on the basis of alleged miscalculations in salary.
6. All the three workmen had pleaded that the Assistant General Manager under whose orders they were placed under suspension did not have the power to suspend in their applications filed in the Labour Court.
7. The appellant raised a jurisdictional objection to the maintainability of an application under S. 33(C)(2) of the Industrial Disputes Act 1947. It contended that in as much as the workmen concerned were covered by the definition of the term "motor transport worker" as given in S. 2(h) of the Motor Transport Workers Act 1961, the remedy of the applicants, if any, was to move an application under S. 15 of the Payment of Wages Act and consequently the application under S. 33(C)(2) of the Industrial Disputes Act was not maintainable. It was further pleaded that the applicants were rightly placed under suspension and later even removed from service and were entitled to only subsistence allowance during the period of suspension, which was admittedly paid to them. The objection to the power of the Assistant General Manager to place the workmen concerned under suspension was repelled.
8. The Labour Court came to the conclusion that existence of an alternative remedy under S. 15 of the Payment of Wages Act was no bar to the maintainability of an application under S. 33(C)(2) of the Industrial Disputes Act. Regarding suspension the Labour Court observed that the representative of the appellant Shri D. S. Sareen conceded that the Assistant General Manager had no power to suspend and, therefore, the suspension being admittedly illegal the workmen concerned were entitled to full wages and benefits for the period that they were placed under suspension.
9. The appellant moved this Court by three writ petitions and prayed for quashing of the orders of the Labour Court in respect of the three workmen and for a declaration that an application under S. 33(C)(2) of the Industrial Disputes Act was not maintainable. In consequence it was contended that the Labour Court acted wholly without jurisdiction in entertaining and deciding the applications under S. 33(C)(2) of the Industrial Disputes Act filed by the three workmen and in computing moneys due to them by way of wages and other benefits. In Civil Writ No. 292 of 1976 an affidavit sworn by Shri D. S. Sareen was also filed to the effect that he never gave any statement in the Labour Court conceding that the Assistant General Manager did not have the requisite power to suspend the workmen concerned. Indeed, on the contrary he had argued that the Assistant General Manager was fully competent to place the workmen under suspension pending enquiry into the charges leveled against the workmen.
10. The learned Single Judge heard the three writ petitions from which the present three appeals arise and some other writ petitions together, as common questions of law were raised. Relying on the decision of the Supreme Court of India in Central Bank of India v. P. S. Rajagopalan Etc., and after noticing another decision of the Supreme Court in the Central Inland Water Transport Corporation Ltd. v. Their workmen [1975-II L.L.J. 117] as well as several other cases. He came to the conclusion that there was no implied repeal of S. 33(C)(2) of the Industrial Disputes Act qua Motor Transport Workers despite the enactment of the Motor Transport Workers Act. In a very lucid exposition, the learned Single Judge has given, what according to him is the correct meaning of the Latin phrase, often used by learned Judges in our country, "generally specialibus non derogant." In the opinion of the learned Judge there was no repugnancy between S. 33(C)(2) of the Industrial Disputes Act and S. 15 of the Payment of Wages Act and therefore, a workman was free to choose either of the two remedies.
11. In the opinion of the learned Single Judge, deciding the question of whether the suspension was valid or invalid was incidental to computation of the money claimed and the question could be gone into by the Labour Court.
12. With regard to the competency of the Assistant General Manager to pass orders of suspension the learned Single Judge observed that it had not been shown to him how he had the power to order suspension and that the absence of power had also been conceded before the Labour Court. The learned Single Judge did not deal with the affidavit filed by Shri D. S. Sareen denying the alleged concession relied upon by the Labour Court. In consequence the writ petitions were dismissed.
13. In the appeals before us, once again the two points urged on behalf of the appellant are :
a) That in view of the enactment of the Motor Transport Workers Act, 1961 no application under S. 33(C)(2) of the Industrial Disputes Act can be entertained by the Labour Court. An application if at all, had to be moved under S. 15 of the Payment of Wages Act.
b) Whether there was or there was not valid suspension is a question which could not be decided by the Labour Court in an application under S. 33(C)(2) of the Industrial Disputes Act.
14. Before we deal with the contentions raised before us, it would be appropriate to read chronologically the provisions of the three statutes, namely the Payment of Wages Act, the Industrial Disputes Act and the Motor Transport Workers Act.
15. The Payment of Wages Act was enacted by the Central Legislature in 1936 and is an existing law by virtue of Art. 13 of the Constitution. It applied in the first instance to the payment of wages to persons employed in any factory and to persons employed upon any railway by railway administration or, either directly or through a sub-contractor, by a person fulfillling a contract with a railway administration. [See S. 1(5)]. By S. 1(5) of this Act power is given to the State Government to extend the provisions of the Act to the payment of wages of any class of persons employed in any industrial establishments. This provisions came into force by virtue of an amendment in the Act by S. 2 of the Act 68 of 1957.
16. Section 2(ii) has included the term "motor transport service engaged in carrying passengers or goods or both by road for hire or reward" in the term industrial establishment.
17. The term "wages" is defined is S. 2(vi) of this Act. This reads as under.
"Wages" means all remuneration (whether by way of salary, allowance or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfillled, 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 or without deductions but does not provide for the time within which 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) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a Court;
2) the value of any house-accommodation, or of the supply of light, water, medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of the State Government;
3) any contribution paid by the employer to any pension or provident fund, and the interest which may have accrued thereon;
4) any traveling allowance or the value of any traveling concession;
5) any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment; or
6) any gratuity payable on the termination of employment in cases other than those specified in sub-clause (d)."
18. Section 15 of this Act deals with claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims. Sub-s. (1) of S. 15 empowers the State Government to notify the Competent Authority to hear and decide claims arising out of deductions from the wages, or delay in payment including all matters incidental to such claims, Sub-s. (2) of S. 15 provides that the claim could be preferred by the person affected himself or any legal practitioner or any official or 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-s. (1). The proviso to Sub-s. (2) lays down that every such claim has to be presented within 12 months from the dates on which the deduction from wages was made or from the date on which the payment of wages was due to be made. The delay, if any, could however, be condoned and a claim preferred after 12 months could be entertained if the Competent Authority was satisfied that the claimant had sufficient cause for not making the claim earlier. Rest of the section lays down the mode and manner in which claim preferred had to be dealt with. Any claim directed to be paid by the Competent Authority could be recovered in the same manner as of fine imposed by a Magistrate.
19. Section 17 of this Act provides for an appeal against the order or direction made under S. 15(3) or 15(4). The appeal could be preferred to the Court of small causes in Presidency-towns and District Judge in other towns.
20. The Industrial Disputes Act was enacted in 1947 by the Central Legislature. S. 33-C came into force with effect from December 19, 1964 by virtue of Art 36 of 1964. The Industrial Disputes Act was a comprehensive legislation to benefit workmen working in an industry as postulated by the Act. It was, therefore, a special enactment for the benefit of a workman as understood by the Act. Originally it was not possible for an individual workman to raise an industrial dispute unless his cause was espoused either by a trade union or a substantial member body of co-workers. But this lacunae was remedied by the Parliament to a substantial extent by enacting S. 2-A in 1965.
21. Section 33-C(2) of the Industrial Disputes Act which gives a quick and efficacious summary remedy to a workman to recover money or money equivalent of benefits denied to him reads as under :
"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."
Section 33-C of the Industrial Disputes Act as in force now exists on the statute book by virtue of the amendments brought in by Act 36 of 1964 and Act 32 of 1976. The latter amending Act only makes an addition in Sub-s. (1) of S. 33-C with which we are not concerned. S. 19 of Act 36 of 1964 substituted S. 33-C of the Principal Act as in force prior to 1964. S. 33-C(2) prior to the amendment of 1964 read as under :
"Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to any rules that may be made under this Act, be determined by such Labour Court as may be specified in this behalf by the appropriate Government, and the amount so determined may be recovered as provided for in Sub-s. (1)."
Thus the change brought about by the amending Act of 1964 was to include computation of any money due which the workman was entitled to receive from the employer instead of only computing the money value of any benefit to which a workman was entitled. In other words, a summary remedy was provided to the workman not only to get determined the money value of benefits to which he was entitled but also to get computed the money due to him which he was entitled to receive from the employer.
22. It may be noticed that though limitation of time for filing an application is provided under S. 15 of the Payment of Wages Act, there is no limitation provided in this Act for preferring a claim under S. 33-C(2).
23. The Motor Transport Workers Act, was enacted by Parliament in 1961. It extends to the whole of India and applies to every motor transport undertaking employing five or more motor transport workers. The term "motor transport undertaking" is defined by S. 2(g) and means a motor transport undertaking engaged in carrying passengers or goods or both by road for hire or reward and includes a private carrier. The term "motor transport worker" has been defined by S. 2(h) which reads as under :
"Motor, transport worker" means a person who is employed in a motor transport undertaking directly or through an agency, whether for wages or not, to work in a professional capacity on a transport vehicle or to attend to duties in connection with the arrival, departure, loading or unloading of such transport vehicle and includes a driver, conductor, cleaner, station staff, line checking staff, booking clerk, cash clerk, depot clerk, time keeper, watchman or attendant, but except in S. 8 does not include :-
i) any such person which is employed in a factory as defined in the Factories Act, 1948 (63 of 1948) :
ii) any such person to whom the provisions of any law for the time being in force regulating the conditions of service of persons employed in shops or commercial establishments apply :
The term "wages" is defined by S. 2(1) which reads as under :-
"Wages" has the meaning assigned to it in Clause (vi) of S. 2 of the Payment of Wages Act, (4 of 1936)."
Section 25 of this Act reads as under :-
"The payment of Wages Act, 1936 (4 of 1936), as in force for the time being, shall apply to motor transport workers engaged in a motor transport undertaking as it applies to wages payable in the industrial establishment as if the said Act had been extended to the payment of wages of such motor transport workers by a notification of the State Government under Sub-s. (5) of S. 1 thereof, and as if a motor transport undertaking were an industrial establishment within the meaning of the said Act."
Section 37 of this Act, regarding which considerable arguments were addressed before us, reads as under :-
"(1) The provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act :
Provided that where under any such award, agreement, contract of service or otherwise a motor transport worker is entitled to benefits in respect of any matter which are more favorable to him than those to which he would be entitled under this Act the motor transport worker shall continue to be entitled to the more favorable benefits in respect of that matter, notwithstanding that he receives benefits in respect of other matters under this Act.
(2) Nothing contained in this Act shall be construed as precluding any motor transport worker from entering into an agreement with an employer for granting him rights or privileges in respect of any matter which are more favorable to him than those to which he would be entitled under this Act."
24. All the three enactments fall within the ambit of what is commonly called, social legislation. The rights, liabilities and procedures. Courts and Tribunals, envisaged by the enactments bring about a departure in the conventional concept of relationship between master and servant. Not only on account of the Constitutional scheme but also by way of development of a socialist society social legislation requires and receives liberal interpretation. Judicial pronouncement, as far as possible, have tried to reconcile varying provisions of different statutes to construe a remedy or a right of the workmen. The appellant's case is that even while giving a liberal interpretation, there is no option but to put limitation on the enforcement of special rights, facilities or advantages envisaged to benefit the workmen which is clearly postulated and it is with this approach that we should examine the contention that the remedy under S. 33-C(2) for the Industrial Disputes Act could not be availed of by the respondents-workmen and that their only remedy, if at all, was to invoke the provisions of the Payment of Wages Act read with the provisions of the Motor Transport Workers Act.
25. Respondent No. 2 in each of the three appeals is covered by the respective definitions in the three Acts of wage earners or workmen or motor transport worker. A feeble attempt was made at the hearing to urge that though one of the respondent No. 2 in one of the cases was employed as a conductor, he was discharging duties which had nothing to do with the duties in connection with the arrival, departure, loading or unloading of transport vehicles and therefore was not a motor transport worker within the meaning of the term in S. 2(h) of the Motor Transport Workers Act. The contention has to be negatived for the three reasons. Firstly, no evidence in this regard was led before the Labour Court. Secondly, the work that the said respondent No. 2 was allegedly doing in the garage of the transporter can be regarded as work "in connection with the arrival, departure, loading or unloading" of the transport work; and thirdly the party cannot argue against his own pleadings.
26. It is worth noting that all the three enactments have been passed by the Central legislature or the Parliament. Therefore, as and when a successive enactment was passed, it must be assumed that Parliament or the Central legislature was aware of the provisions of the earlier enactment. As we have noticed earlier, the Payment of Wages Act is the earliest of the three legislations having been enacted by the Central legislature in 1936. Therefore, when the Central legislature passed the Industrial Disputes Act in 1947 it was conscious of the provisions of the Payment of Wages Act. Likewise the Parliament must be presumed to be aware of the provisions of the Payment of Wages Act and the Industrial Disputes Act when it enacted the Motor Transport Workers Act in 1961. The legislative scheme, therefore, appears to be this. The Payment of Wages Act covered all persons employed in a factory or Railway Administration etc., with power given to the State Government to extend the provisions of the Act to any class of persons employed in any industrial establishment or in any class or group of industrial establishments. [See S. 1(4)&(5)]. Therefore, even motor transport workers could be covered by the provisions of this Act and likewise workmen in other industrial establishments could also be given the benefits of the provisions of this Act. Nevertheless, the Central Legislature in 1947, in its wisdom, decided to enact the Industrial Disputes Act. No doubt, some of the spheres in which the two Act operate are different but all the same vis-a-vis wages and recovery of wages somewhat similar provisions were made in the Industrial Disputes Act also. One of the important features which we find in the Industrial Disputes Act is a provision like S. 10 thereof which is not there in the Payment of Wages Act. The limitation for filing a claim for wages as contemplated by S. 15 of the Payment of Wages Act was removed and it is indeed conspicuous by its absence in S. 33-C of the Industrial Disputes Act. In the legislative policy on the point, with which we are concerned, therefore, one may say that the Industrial Disputes Act was more liberal than S. 15 of the Payment of Wages Act. Then came the Motor Transport Workers Act in 1961, which carved out a class of workmen from the general category of workmen or wage-earners. The Motor Transport Workers Act is a specific Act meant only for motor transport undertakings and its employees. Therefore, whereas motor transport workers were previously clubbed with either type of workmen or wage-earners, a special enactment for them was passed by the Parliament. The benefits which motor transport workers could obtain under S. 33-C(2) and earlier by S. 15 of the Payment of Wages Act were reiterated in the Motor Transport Workers Act in S. 25 thereof. This has raised a controversy as to whether enactment of S. 25 of the Motor Transport Workers Act, either expressly or impliedly the benefit available to motor transport workers under S. 33-C(2) of the Industrial Disputes Act has been taken away. One view can be that the motor transport workers can no longer avail of the provisions of S. 33-C(2) of the Industrial Disputes Act while the other view is that the motor transport workers can avail of either S. 33C(2) of the Industrial Disputes Act or S. 25 of the Motor Transport Workers Act. In support of the former view, it is urged Parliament was conscious of the existence of S. 33-C(2) of the Industrial Disputes Act and so need not have enacted S. 25 or S. 37 of the Motor Transport Workers Act, if either of the two remedies or forums were to be made available to a motor transport worker, as it was prior to the enactment of the Motor Transport Workers Act. On the other hand, it is urged that no limitation can be read into the provisions of the Motor Transport Workers Act as there is neither express nor implied repeal of S. 33-C(2) of the Industrial Disputes Act qua motor transport workers.
27. In the judgment under appeal our learned brother D. K. Kapur, J, has subscribed to the view that either of the two remedies can be availed of by motor transport workers. The learned Judge, has held that on passing of the Industrial Disputes Act two forums or remedies are now available to a motor transport worker. According to him it would lead to "an extraordinary result" which nobody contemplated if on the enactment of the Motor Transport Workers Act in 1961, the right of motor transport worker to move an application under S. 33-C(2) was held to be barred. He did not find that there was anything "hopelessly inconsistent" between the provisions of the Industrial Disputes Act and the Motor Transport Workers Act to persuade him to hold that the latter has impliedly repealed S. 33-C(2) vis-a-vis motor transport workers. Our learned brother disagreed with the view expressed in Shri Bharti Velu Bus Service v. The Presiding Officer, Labour Court, Guntur and another, 1977 Labour and Industrial Cases 320 (Andhra Pradesh High Court) in applying the maxim "generally specialibus non derogate" to hold that S. 25 of the Motor Transport Workers Act repealed S. 33C(2) of the Industrial Disputes Act, as far as motor transport workers are concerned. The learned Judge took the view that the above maxim must be understood to mean that a general law does not repeal a special law but it could not be read to mean the opposite, namely, that a special law ordinarily repeals a general law. He relied on the observations in BROOM'S LEGAL MAXIMS at page 348 and also quoted Craies on Statute Law at page 377. It is not necessary to dilate or comment upon the view expressed as in the present case the facts are entirely different, as will be apparent by looking at the historical perspective of the three legislations with which we are concerned. The payment of Wages Act, which was the first to be passed covered wage-earners and could cover industrial workers also including motor transport workers. It was a general law for the benefit of wage earners. The second enactment, namely, the Industrial Disputes Act carved out a class from the general class of wage earners for the benefit of the workmen as defined in S. 2(s) of that Act. The third enactment passed in 1961 carved out a further special class of workers covered by S. 2(s) of the Industrial Disputes Act, viz, the motor transport workers. Therefore, though it is a clear case of a special law by which a class is carved out from the bigger class and being latter in point of time could be regarded as the exclusive special enactment for that class of persons, even so, remembering the rule of liberal interpretation qua special welfare legislations, we would not be inclined to repeal by the special law unless it is expressly so provided or it has to be so read by implication to avoid inconsistency. We respectfully agree with our brother Kapur, J, that one cannot read repeal lightly and therefore, the argument about general or special law may be more or less an academic question.
28. Another learned Judge of the Court, our brother S. Ranganathan, J. in Civil Writ No. 1049 of 1970, by his judgment dated 19th April, 1982 has taken a view different from the view expressed by Kapur, J. while dealing with the identical proposition which comes up for consideration in the present appeals the opinion of Kapur, J. not having been brought to his notice. The learned Judge has concurred with the views of the Andhra Pradesh High Court in Shri Bharati Velu Bur Service v. The Presiding Officer, Labour Court, Guntur and another, (supra). Expressing his opinion on the restricted question before him, which is identical to the question before us, he came to the conclusion that after the enactment of the Motor Transport Workers Act the remedy of Motor Transport Workers within the meaning of that Act for computation and recovery of wages or benefits which can be computed in terms of money could only be recovered by moving an application under S. 25 of the Motor Transport Workers Act read with S. 15 of the Payment of Wages Act and not by moving the Labour Court under S. 33-C(2) of the Industrial Disputes Act. He negatived the contention that either of the two remedies or forums were available.
29. In as much as there is a conflict of opinions between the two single Benches, it would be proper that we notice some of the decisions which have been cited before us.
30. In Shri Bharati Velu Bus Service v. The Presiding Officer, Labour Court, Guntur and Another (supra), the learned single Judge of the Andhra Pradesh High Court held that in the case of a driver employed in a Bus Service Company, in view of the provisions of S. 25 of the Act of 1961 the claim for wages could be made only before the forum constituted under the Payment of Wages Act and Labour Court constituted under the Industrial Disputes Act could not go into the claim. With regard to the second point which has been urged before us, with which we will deal later, the same decision lays down that S. 33(C)(2) of the Industrial Disputes Act could not be invoked in the circumstances of that case as the claim was disputed by the employer and S. 33(C)(2) did not comprehend a dispute or adjudication of the "title" or the right to the benefit claimed being decided. The learned Judge took the view that the latter special law which specifically covered motor transport workers would override the general Act or Law as envisaged by S. 33(C)(2) of the Industrial Disputes Act.
31. In Rohtas Industries Limited and Another v. Rohtas Industries Staff Union and Others [1976-I L.L.J. 274] the question before the Supreme Court was whether English common law principle of "tort of conspiracy" was applicable in India and "Illegal Strike" being a creation of statute, whether a remedy for the same can be sought elsewhere than in the Industrial Disputes Act itself. Noticing a long line of decisions the Court observed that since the Act which creates rights and remedies has to be considers as one homogenous whole, it has to be regarded uno flatu, in on breath, as it were, and so the remedy for illegal strike, a concept which is the creature not of the common law but of S. 24 of the Industrial Disputes Act, has to be sought exclusively in S. 26 of the Act. Applying the principle to the case before us, though recovery of wages due is a common law right, if a right is given to wage earners or workmen to have it computed and to cover it not by going to the ordinary civil court but by a summary remedy then this right given to the wage earners or workmen has to be enforced in the manner postulated by the Act creating this right.
32. In State of Punjab v. The Labour Court, Jullundur and Others [1981-I L.L.J. 354], the Supreme Court again upheld the principle that where a right is created by a particular statute it has to be enforced only in accordance with the provisions of the statute. An order cannot be passed by the Labour Court under S. 33(C)(2) of the Industrial Disputes Act computing and directing payment of gratuity claimed by virtue of the provisions of the Payment of Gratuity Act, 1972. The High Court had negatived a challenge to the jurisdiction of the Labour Court to deal such a claim under S. 33(C)(2) of the Industrial Disputes Act. Upholding the challenge the Supreme Court held that the Payment of Gratuity Act, 1972 is a self contained code incorporating all the essential provisions relating to payment of gratuity which can be claimed under the Act and its provisions impliedly exclude recourse to any other statute for that purpose. In view of this, it was held that it is impermissible for employees aggrieved by non-payment of gratuity to take recourse to S. 33(C)(2) of the Industrial Disputes Act, 1947 for payment of gratuity. It would be necessary for them to take appropriate action under the provisions of the Payment of Gratuity Act, 1972 itself.
33. In Mohd. Ismail v. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Jabalpur and Another, 1980 (40) F.L.R. 415, a Full Bench of the Madhya Pradesh High Court took the view that there is nothing strange or unusual in more than one forum having jurisdiction over the same matter. The question which the Full Bench was required to answer was :
"Whether an application under S. 33(C)(2) of the Industrial Disputes Act, 1947, is barred by virtue of S. 22 of the Payment of Wages Act where an application lies also under S. 15 of the Payment of Wages Act for recovery of that amount ?"
34. The Full Bench observed that S. 22 of the Payment of Wages Act bars a civil suit for recovery of wages or of any deduction from wages as recovery for such amounts can be sought by invoking the provisions of S. 15 of that Act. On this we are in respectful agreement with the Full Bench of the Madhya Pradesh High Court. We, however, find ourselves unable to agree with that High Court, if its judgment is cited in support of the proposition that in a case like the one before us, the workmen concerned could move either the Labour Court under S. 15 of the Payment of Wages Act or move the Labour Court constituted under the Industrial Disputes Act by an application under S. 33(C)(2) of the Industrial Disputes Act. Indeed, neither was the Full Bench called upon to decide this question nor it decided it. All it said was that there may be overlapping of jurisdiction of special tribunals in some matters but neither S. 22 of the Payment of wages Act nor S. 24 of the Minimum Wage Act could bar an application under S. 33(C)(2). The Full Bench was really concerned with examining the contrary view that had been expressed by a Division Bench of its own Court on the restricted scope of S. 22 of the Payment of Wages Act.
35. In Ananda Transport, Tirupathur v. M. Chelliah and Others, [1975-II LLJ 39] a Division Bench of the Madras High Court negatived the contention of the employer which had challenged the maintainability of an application under S. 33(C)(2) of the Industrial Disputes Act for computation of monetary value of certain benefits claimed by motor transport workers of a motor transport undertaking. It took the view that it cannot be contended that "wages" as contemplated by the Payment of Wages Act, would include all benefits and the workmen should have approached the authority under the Payment of Wages Act; it could not be the intention of Parliament to drive the workmen to go before the Labour Court to get some benefits by moving under the Payment of Wages Act and for others by making an application under S. 33(C)(2) of the Industrial Disputes Act. Therefore, where workmen asked for money value of certain benefits by moving an application under S. 33(C)(2) of the Industrial Disputes Act, the application was competent. Neither any argument based on S. 37 of the Motor Transport Workers Act nor the definitions appear to have been gone into on any great length. The Division Bench, however, did approve of the Single Bench decision of the same Court given by Ismail, J., (as his Lordship then was) in Southern Roadways (P) Ltd. v. Venkateswarlu (1969) 37 F.J.R. 316
36. We need not notice any more decisions, though many more were cited before us, because none of the decisions cited deal with the proposition in the manner in which we understand it. It is not a question of a special Act or a latter Act repealing a general law or an earlier Act. The question which arises for determination, we feel, was to be examined keeping the aspects in view. First social legislation enacted for the benefit of the proverbial weaker section of society must be so construed as to fulfill the legislative intent by giving the benefit to the section of the society for whose benefit the legislation is enacted rather than to restrict it. Secondly, the above approach be adopted unless the provisions of the statutes clearly spell out a different intention, either by express words or by clear cut implication.
37. We have already said that the respondent workmen are covered by the definition of workman or wage earner in all the three enactments. We also noticed that the moneys regarding which computation was sought can be computed in proceedings under any of the three legislations. The question to be answered is whether the workmen should have moved the Labour Court under the Payment of Wages Act read with the provisions of the Motor Transport Workers Act or whether they should have moved the Labour Court as constituted under the Industrial Disputes Act. In other words whether an application should have been moved as it was under S. 33(C)(2) of the Industrial Disputes Act or whether an application should have been filed under S. 15 of the Payment of Wages Act.
38. We have already noticed the historical perspective. None of the decisions cited before us appears to have noticed it. The Payment of Wages Act which was the first in point of time created a special forum and provided summary remedy if the jurisdiction of that forum was worked within a reasonable time. The Industrial Disputes Act which was enacted next created a special forum and provided a summary remedy without any limitation as to time within which an application would be moved. The Motor Transport Workers Act which came last took out a class of workmen covered by the Industrial Disputes Act and provided for the forum, remedy and the limitation, as mentioned in the Payment of Wages Act. This is apparent on a reading of S. 25 of the Motor Transport Workers Act. In plain language S. 25 of the Motor Transport Workers Act incorporates the provisions of the Payment of Wages Act in it. The view expressed by our brother Kapur, J. could be accepted if the legislation has stopped at that stage. In our view, the opinion the Kapur, J. gets faulted on a reading of S. 37 of the Motor Transport Workers Act. In categorical terms S. 37 of this Act lays down that if there is any inconsistency between the provisions of the Motor Transport Workers' Act incorporating the Payment of Wages Act and the other law then the provisions of the Motor Transport Workers' Act would prevail. We find that there is inconsistency between the provisions of the Industrial Disputes Act on the one hand and the Payment of Wages Act on the other. Therefore, as far as Motor Transport Workers are concerned, the special Act by which they are governed would prevail over the Industrial Disputes Act.
39. We may mention only two very glaring inconsistencies. One is that whereas under the Industrial Disputes Act there is no limitation to file an application under S. 33(C)(2), there is a time bar provided by S. 15 of the Payment of Wages Act (see proviso to sub-s. (2) of S. 15). Secondly, a claim under S. 15 of the Payment of Wages Act can be preferred by the person affected or any legal practitioner or any official of a Registered Trade Union authorised in writing to act on behalf of the person affected or any inspector appointed under the Payment of Wages Act or any person acting with the permission of the authority appointed under sub-s. (1) of S. 15. An application under S. 33(C)(2) of the Industrial Disputes Act, however, can only be moved by the person affected himself.
40. In view that we have taken, we express our respectful agreement with the decision of our brother S. Ranganathan, J. and respectfully disagree with the view expressed by our brother D. K. Kapur, J.
41. We, therefore, hold that the Labour Court did not have jurisdiction to entertain the applications moved by Puran Singh, Ram Swarup and Chander Bhan under S. 33(C)(2) of the Industrial Disputes Act.
42. Coming now to the question as to whether the validity of suspension/termination could or could not be enquired into by the Labour Court in computation proceedings whether under S. 33(C)(2) of the Industrial Disputes Act or under S. 15 of the Payment of Wages Act, in our view, it will all depend upon the circumstances of a case. No doubt, this question can be gone into specifically in a reference under S. 10 of the Industrial Disputes Act. All the same if the suspension/termination is void ab initio, then the claim of the workman for computation on the assumption that he continues to be in service all through, there being no valid order of suspension/termination would become incidental to the main question of computation. We are in respectful agreement with our brothers S. Ranganathan, J. in the view that he has taken on this point. We need not dilate further.
43. The result of the above discussion is that the appeals are accepted. The judgments under appeal are set aside. The RULE in the writ petition is made absolute.
44. Keeping in view the facts and circumstances of these cases and the time that it has taken for the controversy to be resolved, we decide only the question of law but give no direction as to re-payment of the dues allegedly due to respondent No. 2 in the respective appeals which they may have recovered in the meanwhile. Parties are left to bear their own costs.
45. Appeal allowed.