Anand Oil Industries Vs Labour Court, Hyderabad and Ors. On 28 December, 1978

Anand Oil Industries vs Labour Court, Hyderabad And Ors.
on 28 December, 1978
Andhra High Court Andhra High Court Anand Oil Industries vs Labour Court, Hyderabad And Ors. on 28 December, 1978 Equivalent citations: AIR 1979 AP 182 Author: M Reddy Bench: M Reddy, Amareswari, N Rao JUDGMENT Madhava Reddy, J. 1. This writ petition comes up before us on reference by our learned Brothers, Kondaiah, J. and Lakshmaiah J. principally for the consideration of the question "Whether the Labour Court has jurisdiction and is competent to entertain an application under S. 33-C (2) of the Industrial Disputes Act by a single or a group of workmen in his or their individual capacity claiming minimum bonus under S. 10 of the Payment of Bonus Act against his or their employer and decide the questions relating to the claim of minimum bonus in view of S. 22 of the Payment of Bonus Act?". Our learned brothers also observed that incidentally the nature, scope and ambit of S. 33-C (2) of the Industrial Disputes Act falls for decision. 2. M/s. Anand Oil Industries, a Partnership firm, hereinafter referred to as the employer, has filed this petition for the issuance of a writ of prohibition against the Labour Court Hyderabad (1st respondent herein) prohibiting it from deciding or proceeding with M. P. No. 300/75 on its file. To that petition are impleaded 12 of its workmen as respondents 2 to 13. 3. Respondents 2 to 13 filed application M. P.No. 300/75 before the Labour Court, Hyderabad under S, 33C (2) of the industrial Disputes Act against their employer, the petitioner herein for payment of minimum bonus of 4% for the accounting years 1964-65 to 1970-71 and a minimum bonus of 8-1/3% for the accounting years 1971-72 to 1974-75 in terms of Payment of Bonus Act, 1965. In that petition they also claimed the difference between the actual pay received by them and the minimum wages which they were entitled to receive every month from 5-7-1975 onwards under the Minimum Wages Act, 1948 (Act XI of 1948). They claimed that they were entitled to receive extra wages for having worked on eight national and festival paid holidays as per the Holidays Act, overtime wages for working daily four hours over the normal eight hours of work and also wages for the suspension period, 4. Even without filing a counter to the said petition, the employer has rushed to this Court invoking the jurisdiction under Art. 226 of the Constitution of India for a writ of prohibition inter alia contending that the Labour Court has no jurisdiction to entertain the claim of the workmen under S. 33C (2) of the Industrial Disputes Act, 5. At the hearing of the Writ Petition Mr. V. Jagannadha Rao, learned counsel for the Employer conceded that the claim of the workmen for holiday wages overtime wages and suspension wages was entertainable by the Labour Court under S. 33-C (2) of the Industrial Disputes Act. He confined his contentions with reference to the claim of the workmen for minimum bonus payable under Section 10 (2) of the Payment of Bonus Ad, 1965 (Act 21 of 1965) and to their claim for the minimum wage payable under Ss. 3 and 12 of the Minimum Wages Act, 1848 read with G.O.Ms. No. 559 Employment and Social Welfare (T) Department dated 30th June, 1915. Having regard to the above, we must hold that the Labour Court cannot be prohibited from entertaining and enquiring into the present petition under S. 33-C (2) of the Industrial Disputes Act in so far as it relates to the claim of the workmen for wages for working on holidays, for over-time wages and wages for suspension period. The present petition for a writ of prohibition in so far as the said claim is concerned must be held to be not maintainable. We therefore Limit our discussion to the question whether a petition under S, 33-C (2) is not maintainable with respect to a claim for minimum bonus and minimum wages payable under the respective statutes,
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Anand Oil Industries vs Labour Court, Hyderabad And Ors. on 28 December, 1978
6. The first contention of Mr. V, Jagannadha Rao, learned counsel for the petitioner is that though minimum bonus is payable to every employee as fixed u/s. 10 (2) of the Payment of Bonus Act in view of S. 22 thereof any dispute with respect to bonus payable under the Act. having been "deemed to be an industrial dispute' within the meaning of the Industrial Disputes Act, the provisions of the Industrial Disputes Act, apply to such a dispute and therefore that dispute can be adjudicated only if it is referred under S. 10 (1) of the Industrial Disputes Act and not upon a petition under S, 33-C (2). 7. The other contention of the petitioner's counsel is that the Minimum Wages Act not only fixes under S. 5 the minimum wage payable to the workmen but also prescribes under S. 20 the authority before whom a claim for minimum wages may be made, hence a petition under S. 33-C (2) of the Industrial Disputes Act does not lie for the payment of the difference between the actual wage paid and the statutory mini. mum wage payable to the workmen 8. Thus the principal contention of Mr. Jagannadha Rao, learned counsel for the petitioner is that a petition under S-33-C(2)of the Industrial Disputes Act does not lie either in respect of the respondent's claim for the payment of Minimum Bonus or minimum wage payable respectively under the Payment of Bonus Ad of 1965 or the Minimum Wages Act, 1948 inasmuch as his right to receive the same is disputed by the petitioner-employer, 9. Before we consider whether the petition of respondents 2 to 13 claiming minimum bonus and minimum wages is maintainable, it is necessary to consider as to when a petition under S. 33-C (2) of the Industrial Disputes Act lies. 10. In Central Bank of India v. Rajagopalan, AIR 1964 SC 143 the Supreme Court held (at p 748) : "When sub-sec. (2) of S. 33C refers to any workman entitled to receive from the employer any benefit there specified it does not mean that he must be workman whose right to receive the said benefit is not disputed by the employer...........S. 33-C (2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. The claim under S. 33-C (2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be proceeded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-s.(2)." In East India Coal Co. v. Rameshwar. the, Supreme Court held (at p. 220): "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-sec. (2) is wider than that of sub-sec. (1) and the subsection is not confined to cases arising under an award, settlement or under the provisions of Chap. VA. 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 S. 33-C (2), cannot fall within sub-sec. (2). The Supreme Court in C.I.W.T. Corporation v. Workmen , observed (at p. 1608): "It is now well settled that proceeding under S. 33-C (2) is a proceeding in which the Labour court calculates the money due to a workman from his employer or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or the benefit in view of its being previously adjudged or otherwise duly provided for."
11. A Full Bench of this Court in Divisional Engineer M. R. T. Operation City Circle, A.P.S.B, Board Hyderabad v. Ikram Ahmed unreported Full Bench decision in W. P. No. 2503 of 1975, D/-17-11-1978. (to which all of us are parties) considered as to when petition under S. 33C (2) lies and held: "A petition under S. 33-C (21 is maintainable where an individual workman or workmen claim amount of money due or amount at which the benefit should be computed. But Such a claim must be based on an existing right. The existing right itself should have vested in them either under a settlement or an award or under the provisions of Chap. V-A or Chap. V-B or conferred under the provisions of any statute. Once the right is shown to be existing under any of the above, the Labour Court would have jurisdiction to entertain the petition and ascertain the money due or the amount at which the benefit may be computed. The mere denial of such an existing right by the employer does not take away the jurisdiction of the Labour Court to entertain a petition under Section 33-C (2) of the Industrial Disputes Act. While the right itself should be an existing right for enabling a workman to maintain a petition under S. 33-C (2) it is not necessary that this existing right Should have been admitted by the employer. The denial of the existing right of the workmen to receive money or the benefit does not oust the jurisdiction of the Labour Court to entertain a petition under S. 33-C of the Industrial Disputes Act and require the reference of the industrial dispute raised for adjudication under S. 10 of the Act. The denial of this right would only require the Labour Court to ensure into the fact whether the rightis existing. The Labour Court, has jurisdiction to decide and determine this jurisdictional fact. The enquiry under S. 33-C (2] in such cases would have to be preceded by an enquiry into the existence of the right and such an enquiry is incidental to the main determination which has been assigned to the Labour Court by sub-s. (2). It cannot, by an order under S. 33-C (2) however, create a new right ....Sub-s, (2) of S. 33 applies both to the non-monetary as well as monetary benefits. In the case of monetary benefit it applies where such benefit, though due is not calculated and there is dispute about its calculation. S. 33-C (2) takes within its purview cases of workmen who claim that the benefit to which they are entitled should be computed in terms of money even though the right to the benefit on which their claim is based is disputed by their employers. Just as any existing Court is competent to interpret the decree so also the Labour Court is competent to construe the settlement, award or a statute under which the right is claimed Such an interpretation of an award, whether the workman falls within a particular class of workmen entitled to the benefits under the section, award or the statute, the total amount due or the amount at which the benefit should be computed, are all matters falling within the jurisdiction of the Labour Court under S. 33-C (2). This enumeration of matters incidental to an enquiry under Sec, 33-C (2) is by no means exhaustive nor is it meant to be so. They are only illustrative." 12. That being the true scope of Section 33-C (2) of the industrial Disputes Act, if a right to the payment of Minimum Bonus and the right to the payment of a minimum wage is created under a statute then a petition under S. 33-C (2) for the calculation and payment of the amount of minimum bonus and minimum wage due to each of the respondents is certainty entertainable under S. 33C (2). 13. We may, therefore, now proceed to consider whether the Respondents employees have been assured the minimum bonus and minimum wage under a statute. 14. Section 10 of the Payment of Bonus Act fixes the amount of payable by an employer to ever employee from VI allocable surplus in respect of the accounting year, in the lowing words: "10. Amount of Bonus:-- (1) Subject to the other provisions of this Act. where an employer has any allocable surplus in any accounting year, then he shall be bound to pay to every employee in respect of that accounting year a minimum bonus which shall not be less than four per cent of the salary or wage earned by the employee during the accounting year or one hundred rupees whichever is higher, or. in a case where the allocable surplus exceeds the said amount of minimum bonus payable to the employees, an amount in proportion to the salary or wage earned by the employee during the accounting year subject to a maximum of twenty per cent of such salary or wage:
Provided that where an employee has not completed fifteen years of age at the beginning of that accounting year, the provisions of this sub-section shall have effect in relation to such employee as ii for the words "one hundred rupees", the words "sixty rupees" were substituted. (2) Notwithstanding anything contained in sub-section (1), every employer shall be bound to pay to every employee in respect of the accounting year commencing on any day in the year 1974, a minimum bonus which shall be four pee cent of the salary or wage earned by the employee during that accounting year or one hundred rupees whichever is higher, whether, or not the employee has any allocable surplus in the accounting year: Provided that where an employee has not completed fifteen years of age at the beginning of that accounting year, the provisions of this sub-section shall have effect in relation to such employee as if for the words "one hundred rupees", the words "sixty rupees" were substituted. (3) For the purpose of this section, the allocable surplus shall be computed taking into account the amount set on or set off in the three immediately preceding accounting years and the accounting year in respect of which the bonus is payable, in the manner illustrated in the Third Schedule, The Statute thus creates a right in every employee to receive a minimum bonus of 4% of the salary or wage earned by him during that accounting pear of Rs. 100/- in case the employee has completed 15 years of age and in cage he has not completed 15 years of age, Rs. 60/- whichever is higher. This minimum bonus was raised to 8-1/3% of the salary or wage earned by the employee. 15. It may be noticed at the outset that the provisions of the Payment of Bonus Act in so far as they prescribe the payment of bonus to the employees have been upheld by the Supreme Court as valid in Jalan Trading Co. Pvt Ltd v. Mill Mazdoor Sabha, . In that case the Supreme Court inter alia held "that the Scheme of the Act broadly stated is four dimensional (1) to impose statutory liability upon an employer of every establishment covered by the Act to pay bonus to employees in the establishment; (2) to define the principle of payment of bonus according to the prescribed formula: (3) to provide for payment of minimum and maximum bonus and linking the payment of bonus with the scheme of "set off and 'set on': and (I) to provide the machinery for enforcement of the liability for Payment of bonus", In particular, the attack on Sec. 10 which enjoins payment of minimum bonus irrespective of whether there are profits in the relevant accounting year or not, was held to be not violative of Arts. 14 and 31 (1) of the Constitution. Some of the provisions in Sees, 33,34 and 37 though found to be invalid, were held to be severable and not affecting the validity of the other provisions of the Act. The Court dealing with the development of the Industrial Law regarding the payment of bonus held '"that bonus which was originally a voluntary payment out of profits to workmen to keep them contented, acquire the character under the Bonus Formula of right to share in the surplus profits and enforceable through the machinery of the Industrial Disputes Act, Under the Payment of Bonus Act. liability to pay bonus has become a statutory obligation imposed upon the Employers covered by the Act." In a later case Sanghavi Jeevaraj v. M.C.G. & K.M.W, Union, . Shelat J, dealing with the claim of the workers represented by the Madras Chillies, Grain and Kirana Merchants Workers' Union held that under the Payment of Bonus Ad. the liability to pay bonus has now become a statutory obligation imposed an the Employers and "considering the history of the legislation the background and circumstance in which the Act was enacted the object of the Act and its scheme, it is not possible, to accept the construction that the Payment of Bonus Act is not an exhaustive Act dealing comprehensively with the subject-matter of Bonus in all its aspects or that Parliament still left it open to those to whom the Act does not apply by reason of its provisions either as to exclusion or exemption, to raise a dispute with regard to bonus through industrial adjudication under the Industrial Disputes Act or other corresponding law". It accordingly held that inasmuch as the Payment of Bonus Act does not apply to certain establishments, they cannot claim bonus.
16. The Supreme Court, however, in a recent case, Mumbai Kamgar Sabha v. Abdul Bhai AIR 1978 SC 1455, declared that "the Bonus Act speaks. and speak. as a whole Code. on the sole subject of profit based bonus but is silent, on, and cannot therefore annihilate by implication, other distinct and different kinds of bonus such as the one oriented on custom 17. It would thus be seen that as the law now stands enunciated by the Supreme Court, the Payment of Bonus Act is confined to the 'profit-based bonus' and not to other categories of bonus which the employees may be entitled to claim from an employer. The Payment of Bonus Act, 1965, thus creates a statutory right in the employees and imposed la statutory liability upon the employers covered by the Act to pay minimum. 18. The Minimum Wages Act 11 of 1948 is an Act to provide for fixing the minimum rates of wages in certain employments. Section 3 of the Act enables the appropriate Government to fix the minimum rates of wages to employees in an employment specified in Part I or Part II of the Schedule. There is provision for amending the said schedule. Section 4 makes provision for revising the minimum rates of wages fixed under S. 3 so as to accord as nearly as practicable with the variance in cost of index number or basic rate of wage. The procedure for fixing! and revising the minimum wages is laid down in Sec. 5. The minimum wages bred under the Act are directed to be paid in cash by S. 11 unless the Government notifies otherwise having regard to the custom. Section 12 of the Act enjoins every employer to Day wages to the employees engaged in scheduled employment, at a rate not less than the minimum rate of wages red by such notification for that class of employees in that employment without any deduction Section 20 of the Act authorises the appropriate Government to appoint an authority to hear and decide all claims arising out of payment of less than the minimum rates of wages, the minimum rates of wages as envisaged by the Ad have been fixed by the State of Andhra Pradesh in G, O. Ms, No. 559 Employment and Social Welfare (T) Department dated 30-6-1975 for employees in Oil Mills in the State of Andhra Pradesh. 19. The right to minimum wage is a statutory right and non-payment of the minimum rate of wage for a particular class of employees or the payment of a lesser amount than the minimum wage payable to the employee is made punishable and penalties are prescribed under S. 22 of the Minimum Wages Act. There is also a general provision made in Section 22-A for imposition of punishments for contravention of any of the provisions of the Act or Rules made thereunder, Section 25 of the Act expressly prohibits employees from contracting out of the benefits conferred under the Act. The right to receive the minimum wage is thus constituted as a statutory right and is vested in the employee. In filing a petition under Sec. 33C (2) claiming the amount due to him by way of a minimum wage, the employee is merely seeking the computation of the amount due to him under the statute. He is only seeking to enforce a statutory right and not setting up a new right calling for adjudication as to whether that right exists or not. A petition for payment of the difference in the actual wage paid and the minimum wage payable under the statute is therefore one which is clearly entertainable under S. 33-C (2) of the Industrial Disputes Act. 20. From the above discussion it is clear that irrespective of the fact whether an industry makes a profit or not, the employees are assured a minimum bonus as also the minimum wage. The employers are enjoined by the statute to pay the minimum bonus and minimum wage to its employees. These statutory rights vested in every employee, The mere denial of this right cannot oust the jurisdiction of the Labour Court to entertain a petition under S. 33-C (2) of the Act, 21. It was however contended that with respect to minimum bonus a specific provision is contained in S. 22 of the Payment of Bonus Act that it is an industrial dispute and therefore unless the matter is adjudicated upon a reference, a petition under S. 33-C (2) does not lie. With respect to payment of Minimum Bonus it is contended that as an authority is constituted under the Minimum Wages Act itself to adjudicate upon all claims under the Said Act, a petition under S. 33-C (2) does not lie. We may. therefore, rat address ourselves to the contention raised with regard to the claim for minimum bonus.
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22. It is this statutory minimum bonus that respondents 2 to 13 are now claiming by way of a petition under Section 33-C (2) of the Industrial Disputes Act. 23. It is common ground that the minimum bonus has not been paid to respondents 2 to 13 herein, But the contention is that in view of S. 22 of the Payment of Bonus Act the claim for the payment of minimum bonus which is denied by the employer constitutes ''a dispute between the employer and his employees" with respect to the bonus payable under this Act. In view of Section 22 of the -'Payment of Bonus Act" such dispute shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act...... and the provisions of that Act shall, save. as otherwise expressly provided apply accordingly''. Section 22 of the Payment of Bonus Act reads as follows. "Section 22. Reference of disputes under the Act -- Where any dispute arises between any dispute arises between the employer and his employees with respect to the bonus payable under this Act or with respect to the application of this Act to an establishment in public Sector, then, such dispute shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act, 1947 (14 of 1947) or Of any corresponding law relating to investigation and Settlement of the industrial dispute in force in a State and the Provisions of that Act or ,as the case may be, such law, shall save as otherwise expressly provided apply accordingly. 24. The employer is opposing the Petition on the ground that it constitutes an industrial dispute in view of Sec. 22 of the Payment of Bonus Act and as such a petition under S. 33C (2) is not maintainable. It may be clarified even at this state that the petitioner employer did not assert that it is not an "establishment" to which the Payment of Bonus Act does not apply: nor did it assert that the respondents were not employees of the petitioner-firm, nor that they had not put in the requisite length of service. Even in this Writ Petition these contentions were not raised. Hence if the petition filed by the respondents-employees under S. 33-C (2) is held entertainable by the Labour Court, we must find that the respondents employees would be entitled to receive the minimum bonus declared under Section 10 (2) of the Act. 25. In order to determine whether a claim far payment of minimum bonus statutorily fixed under the Payment of Bonus Act could be entertained by the Labour Court by way of a petition under Sec. 33-C (2) or only upon a reference under S, 10 of the Industrial Dispute Act, it is necessary to examine the true scope of S. 22 of the Payment of Bonus Act. In other words what are the disputes which fall within the ambit of S.22 of the payment of Bonus Act. So that those disputes may be deemed to be industrial disputes and referred for adjudication under S. 10 of the Industrial Disputes Act. If we analyze S. 22 it would be seen that the first essential requisite for the application of Sec 22 and before any dispute could be deemed to be an industrial dispute, such a dispute should have arisen between the employer and his "employees" and not a dispute between an employer and ''Individual employee". It should be remembered that in the context of the Industrial Disputes Act a clear distinction is drawn between an individual dispute and a dispute of a group of employees A dispute of an individual workman would not constitute an industrial dispute unless a body of workmen either acting through their union or otherwise has espoused the individual workman's cause. Vide Workmen V. M/s. Dharampal Premchand, . It is immaterial whether an individual workman was a member of the union or not when the dispute arose; the only condition that must be satisfied for an individual dispute turning into an industrial dispute is the existence of a community of interest as laid down by the Supreme Court in Workman of Dimakuchi Tea Estate v. Dimakuchi Tea State, . In Workmen of Indian Express Newspaper (P.) Ltd. v. The Management of Indian Express Newspaper (p.) Ltd., , where an individual dispute was espoused by an outside union having 25 per cent of the workmen concerned as its members, the Supreme Court held that the union could be said to have a representative character and that the dispute raised by the individual workman was transformed into an industrial Dispute. Thus only a dispute between plurality of workmen on the one hand and the employer on the other, or the dispute of an individual workman espoused by a body of workmen through their union or otherwise constitutes an industrial dispute under the Industrial Disputes Act. Otherwise
under the Industrial Disputes Act, no individual dispute of workman with his employer constituted an industrial dispute until S. 2-A was introduced in the Industrial Disputes Act. That provision reads as follows: "2-A. Dismissal. etc. individual workman to be deemed to be in industrial dispute- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute difference between that workman and his employer connected with, or arising out of such discharge, dismissal retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is party to the dispute." It would be seen that even after the introduction of S. 2-A, it is not every dispute of an individual workman, not sponsored by a body of workmen or union of workmen, that is deemed to be an industrial dispute. Under Sec. 2-A only a dispute or difference between the workman and his employer "arising out of discharge, dismissal, retrenchment or termination of the workman by the employer which is deemed to be an industrial dispute even though such dispute is not sponsored by other workmen or union of workmen. An individual dispute of a workman and his employer unconnected with workman's discharge. dismissal retrenchment ., termination from service is not declared under any provision of the Industrial Disputes Act to be an industrial dispute, When that is the position under the Industrial Disputes Act, 1947 and the Legislature in enacting S. 22 of the Payment of Bonus Act in the year 1965 declared certain disputes between an "Employer and his Employees'' to be deemed to be Industrial Disputes" within the meaning of the Industrial Disputes Act and deliberately employed the plural word, "Employees'' and not the singular, it must be assumed that the legislature intended to bring within the ambit of Section 22 of the Payment of Bonus Act only such disputes as were raised by more than one employee and not an individual employee. It could not have been the intention of the Parliament to make an individual dispute with respect to a claim arising under the Payment of Bonus Act, an industrial dispute al, though such a dispute was not between the employer and more than one employee and could not be an industrial dispute under the industrial Disputes Act itself. under the provisions of the Industrial Disputes Act until Sec. 2-A which was inserted by S. 3 of the Amendment Act 35 of 1965 with effect from 1-12-1965, . dispute of an individual workman and his employer could not be treated as an individual dispute and it could not be referred for adjudication under S. 10 (1) of the Industrial Disputes Act Only by virtue of Sec, 2-A of the Industrial Disputes Act, a limited category Of disputes raised by an individual workman though not sponsored by other workmen or union of workmen were "deemed to be an industrial dispute" although they were not in fact, industrial disputes as envisaged by the Industrial Disputes Act. These individual disputes or differences were those connected with or arising out of discharge, dismissal retrenchment or termination. Any other dispute of an individual workman and his employer is not deemed even after the introduction of S. 2-A to be an industrial dispute. So also S. 22 of the Payment of Bonus Act declares only certain disputes arising "between an employer and his employees are deemed to be industrial Disputes" within the meaning of the Industrial Disputes Act. 1947. Since what are not "Industrial Disputes" under the Industrial Disputes Act are deemed to be industrial disputes only by virtue of Sec. 22 of the Payment of Bonus Act, it is not open to the Court to enlarge the scope of the expression "Industrial Disputes" itself. When the Industrial Disputes Act declares that an industrial dispute means any dispute or difference between employers and employers, or between employers and workmen or between workmen and workmen, which is connected with the employment non-employment or the terms of employment or with the conditions, of any person and that is construed as meaning a 'collective dispute's a dispute of an individual workman or espoused by the other workmen sponsored or espoused by the Union of Workmen". obviously an individual dispute of any other kind is not included within the ambit of the expression "industrial Dispute" as envisaged by the Industrial Disputes Act, only by a legal fiction under S. 2-A of the Industrial Disputes Act, certain categories of individual disputes are declared to be 'Industrial Disputes'. Likewise certain categories of disputes which are not industrial disputes otherwise are deemed to be industrial disputes under S.22 of the Payment of Bonus Act. In so creating a legal fiction, S. 22 of the Payment of! Bonus Act does not enlarge the definition of the industrial; Dispute as Such so as to include a dispute raised by an individual workman with regard to payment of Bonus also Industrial Dispute". It is that that is made abundantly clear by use of the term
"Employees" instead the term 'EMPLOYEE". Only certain disputes which were not the industrial disputes having regard to the nature of the claim were declared by Sec, 22 of Payment of Bonus Act to be industrial disputes, If it were the intention of the Parliament to make the claim of an individual employee for bonus also an industrial dispute, it would certainly have used the word "Employee" having regard to the distinction made under the Industrial Disputes Act itself with regard to Individual disputes and disputes of group of employees or disputes sponsored by the union of employees, Though under the provisions of the General Clauses Act a singular would include the plural and plural would include singular, having regard to the distinction clearly drawn In the Industrial Disputes Act with respect to disputes of individual workman and body of workmen the use of the word "employee" in S. 22 of the Payment of Bonus Act must be held to be deliberate so as to exclude individual disputes with regard to payment of minimum bonus from out of the purview of disputes which are deemed to be Industrial Disputes under Sec. 22 of that Act. Viewed in the context of the definition of "industrial Dispute" contained in S.2(k) of the Act, where the expression "Employers and Employers, Employers and Workmen and Workmen and Workmen" are used, the intention of the Legislature appears to be very clear that individual disputes raised with respect to a claim for statutory minimum bonus payable by the Employer to the Employee under the Payment of Bonus Act was not to be made an 'Industrial Dispute' even fictionally A similar view was taken by the High Court of Bombay in Allahabad Labour Supply Agency v. First Labour Court, Nagpur, AIR 1970 Bom 490, Chandurkar, J, speaking for the Court said: "....If the sole object of enacting S. 33-C (2) was to provide a speedy remedy to an individual employee to enforce his right, then unless it can positively be established that the employee Is prohibited from invoking the jurisdiction under S. 33C (2) it will not be possible to hold that an application for recover of statutory minimum bonus under Sec. 10 of the Payment of Bonus Act cannot be made by an individual employees. It is true that a dispute between tin employer and employees with respect to the Bonus payable under the Payment of Bonus Act is fictionally made an industrial dispute by S. 22 of the Act. If an Industrial dispute within the meaning of the Industrial Disputes Act, 1947 would be a collective dispute. then ii the fiction is to be given its full effect Sec, 22 mill have to be so construed as to refer only to a collective dispute between an employer and his employees This construction is also supported by the use of the words "employer and employees" in S. 22. The use of the word "employees" is not without significance and is clearly intended that a reference of a dispute raised by an individual employee is not contemplated by Sec. 22 of the Act, There is also no machinery under the Bombay Industrial Relations Act whereby an individual employee could also seek a direction from the Labour Court regarding the payment of Bonus or for resolving the dispute which arises between him and the employer as a result of non-payment of the bonus by the employer... ... ... Thus if the Provisions of industrial Disputes Act. 1947, contemplate machinery for settlement of a collective dispute as pointed out above and there is no provision in the Bombay Industrial Relations Act 1946, which the employee would avail of for the recovery of the bonus amount and only a collective dispute only be referred to the Labour Court then the proper construction of Sec. 22 of the Act would be to restrict its operation only to cases of collective disputes between the employer and employees. Sec. 22 of the Payment of Bonus Act 1965, must therefore, be held to be not applicable in the case of an Individual dispute" 26. Before the Punjab and Haryana High Court in Bawa Singh v. State of Punjab, 1974 Lab IC 425, Placing reliance upon the decision in Allahabad Labour Supply Agency v. First Labour Court Nagpur, AIR (1970) Bom 490 it was contended that an individual dispute as to the payment of minimum bonus under the Payment of Bonus Act cannot be termed as an "Industrial Dispute" and that in respect of such a claim a petition under S. 33-C (2) lies. Though that aspect, was not specifically discussed at length, the Court proceeded to hold that a petition under S. 33-C (2) was not barred and accordingly upheld the order of the Labour Court allowing the claim of the workman for the payment of minimum bonus. 27. However, the Madras High Court took a contrary view in Aranha v. Universal Radiators, 1975 Lab IC 1180. Veeraswamy, C J. speaking for the Court expressed (dissent?) from the view taken in the aforesaid two cases in the following words (at p. 1181):-Indian Kanoon - http://indiankanoon.org/doc/177058/ 8
"With respect we are not inclined to share this view, for apart from the fact that a plural includes a singular after the Amendment of the Industrial Disputes Act so as to attract individual disputes too within the scope of an industrial dispute it does not appear to us to be reasonable that Section 22 of the Payment of Bonus Act will be inapplicable to individual disputes." We are unable to concur with the view expressed by the Madras High Court in Aranha v Universal Radiators, 1975 Lab IC 1180 for although, ordinarily a singular includes plural and plural is necessarily an agglomeration, that principle of interpretation cannot be mechanically applied to every situation. It must give way to the subject and context in which the particular term is employed. That apart, when under the Industrial disputes Act, as already discussed above, an Individual dispute of a workman do, not constitute an industrial dispute, except in regard to discharge, dismissal retrenchment or termination of service, it must necessarily follow that other individual disputes cannot constitute industrial dispute. Only a limited class of individual disputes referred to in Sec 2-A of the Industrial Disputes Act are deemed to be industrial disputes by Legislative fiction, Thereby the scope of the definition of Industrial dispute as contained " S. 2 (b) of the Industrial Disputes itself is not enlarged What Sec. 22 declares is merely that the disputes referred to in S. 22 of the Payment of Bonus Act shall be deemed to be industrial disputes". So merely because certain disputes specified in S. 22 of the Pay of Bonus Act are deemed to be industrial disputes, an individual dispute by an employee against the employer with respect to Payment of minimum bonus under Payment of Bonus Act also does not become an industrial dispute, for, in respect of such an industrial dispute no fiction is created under S. 22 that it shall be deemed to be an industrial dispute. In the absence of a provision in the Payment of Bonus Act similar to S. 2-A of the Industrial Disputes Act, making a dispute raised by an individual employee with regard to Payment of bonus also an industrial dispute, it cannot be deemed to be an industrial dispute by virtue of S. 22 of the Payment of Bonus Act only. 28. We are therefore clearly of the view that a dispute raised by an dual employee with regard to the Payment of minimum bonus under the Payment of Bonus Act cannot be deemed to be an industrial dispute within the meaning of S. 22 of the Payment Bonus Act. 29. Further under Section 22 it is not every dispute between an employer and employee as to bonus that is deemed to be an industrial dispute within the meaning of the Industrial Disputes Act. It is only a dispute" with respect to the bonus payable under this Act or with respect to the application of this Act to an establishment in a Public Sector" which is deemed to be an 'Industrial Dispute'. In order that S. 22 may be attracted the dispute should not only have been "between an employer and his employees" but the dispute should have arisen "with respect to the Bonus payable under this Act". No doubt, the expression" with respect to the bonus payable" is of wide amplitude. But S. 8 of the Payment of Bonus Act declared that "every employee shall be entitled to be paid by the employer in an accounting year bonus in accordance with the provisions of this Act, provided had he worried in the establishment for not less than 30 working days in that year." S, 9 declares that "notwithstanding anything contained in this Act, an employee shall be disqualified from receiving bonus under this Act, if he is dismissed from service for-- (a) fraud: or (b) riotous or violent behavior while on the premises of the establishment: or (c) theft, misappropriation or sabotage of any property of the establishment."' Section 20 specifies the amount of bonus to which an employee is entitled. Sub-section (2) of Sec, 10 of the Payment of Bonus Act declares the amount of minimum bonus to which an employee is entitled The maximum bonus payable under the Act is stated to be 20% of the salary or wage earned by the employee during the accounting rear. Thus every employee who has worked in the establishment for not less than 30 working days in an accounting year and is not subject to any of the disqualification's indicated in S. 9 of the Act. is declared statutorily entitled to receive the minimum bonus, The rate at which the employee is entitled to claim bonus over and above the minimum bonus declared under S. 10 (2) of the Payment of Bonus Act would depend upon a number of other factors like gross profits as computed under S. 4 of the Act, the available sources as determined under Sec. 6, the sums deductible from gross profits as laid done under S. 6 and the amount of direct taxes payable by the employer as envisaged by S. 7. The amount of bonus payable would be in proportion to the salary or wage earned by the employee during the accounting year subject to a maximum of 20% of such salary or wage. whatever may be the position with respect to the claim for bonus
over and above the minimum bonus so far as the rate at which the minimum bonus is payable with respect to a particular accounting year, does not fluctuate with reference to any of the factors mentioned above, the right cannot be denied and is not subject to adjudication by any authority. The minimum bonus is statutorily fixed and the right to receive the same is a statutory right vested in the employee. Hence no dispute could arise or be raised with respect to the minimum bonus payable under the Act. if the employer fails to pay the amount or refuses to pay the amount of minimum bonus, it does not constitute "a dispute with respect to the bonus payable under this Act" requiring adjudication by way of a reference under S. 10 of the Act. It would only be a refusal to pay the amount statutorily due to the employee. If therefore in regard to claim for the payment of minimum bonus the employer contends that he has paid the amount wholly or in part or that the employee is not eligible to receive the amount or is disqualified from receiving the amount or that certain amounts are deductible, those would be matters relating to the computation of the amount of minimum bonus which the employee is entitled to receive and not a dispute with respect to the bonus payable under the Act. The dispute in other words would not be with respect to bonus payable under the Act but only with respect to quantum of bonus to which a particular employee is entitled to receive under the Ad. It is not the right of the employee to the minimum bonus or the rate at which the minimum bonus payable under the Act that is in dispute. but the actual amount Payable to the employee. Such a dispute not being a dispute which has arisen between the employer and the employees "with respect to the bonus payable under the Act", Section 22 is not applicable. It cannot, therefore, be deemed to be an industrial dispute to which the provisions of the Industrial Disputes Act, 1947 apply. 30. In Bawa Singh v. State of Punjab, 1974 Lab IC 425 a Bench of Punjab and Haryana High Court observed (at p. 427) :"We are unable to construe Sec. 22 of the Payment of Bonus Act, 1965, in the manner that every minor dispute regarding the payment of bonus, even then there is no dispute regarding the exact it is to be paid and the only dispute is regarding the exact amount to be Paid should be termed as industrial dispute." No doubt. as contended by Mr.Jaganadha Rao, learned counsel, for the petitioner in Aranha v. Universal Radiators, 1975 Lab IC 1180 a Division Bench of the Madras High Court considering the words "any dispute with respect to bonus payable under the Act" occurring in S. 22 of the Payment of Bonus Act observed . "they are wide enough to cover not merely the question relating to entitlement but also the quantum and a plea of discharge." We are unable to agree with this view, in so far as it relates to the claim far payment of minimum bonus which la statutorily filed. Under the Act, every employee is declared entitled to a minimum bonus of 4% up to 1-4-1974 and 8.33% thereafter. In respect of this minimum bonus, as the dispute could only be with respect to the actual amount payable to the employee, any claim made for the ascertainment of that amount, cannot be deemed to be a "dispute" with respect to bonus payable under the Act. 31. We are therefore, of the view that when a claim for the payment minimum bonus is made by an employee of an establishment to which the Act applies, such a claim does not fall within S. 22 of the Payment of Bonus Act so as to be deemed to be an "Industrial dispute", requiring reference under S. 10 of the industrial Disputes Act, Such a claim can be investigated and the necessary relief awarded by the Labour Court upon a petition filed by the employee under S. 33-C(2) of the industrial Disputes Act. 32. Mr. Jaganadha Rao, learned Counsel for the petitioner relying upon the decision in State of Bombay v. Pandurang, , wherein it as held that "when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done. the Court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it
should be carried to its Logical conclusion" contended that all claims with respect to payment of minimum bonus should be deemed to be "industrial Disputes" in view of S. 22 of the Payment 'of Bonus Act. It must, however, be noticed that in that decision the Supreme Court while holding that full effect must be given to the statutory fiction declared that the Court is bound to ascertain as to "between what persons statutory fiction is to be resorted to." Thus in resorting to the statutory fiction that the dispute referred to under S. 22 of the Payment of Bonus Act, shall be deemed to be an "Industrial Dispute" within the meaning of the Industrial Disputes Act. the court is not entitled to enlarge the scope of S. 22 itself so as to bring within its ambit the disputes not overhead by S. 22 and deem such disputes also to be industrial disputes Hence on the wording of S. 22 of the Payment or Bonus Act itself we hold that the claim of an individual employee for the payment of minimum bonus in respect of which statutory right is vested in an employee under S. 10 of the Act could not be deemed to be an "industrial Dispute''. 33. This conclusion , further fortified by S. 39 of the Payment of Bonus Act which reads as follows:"S. 39. Application of certain laws not barred-- Save as otherwise expressly provided, the provision of this Act shall be in addition to and not in derogation of the Industrial Disputes Act, 1947 (14 of 1947). or any corresponding law relating to investigation and settlement of industrial disputes in force in a State." This provision is evidently intended to meet any contention such as is one raised before the Court that the Payment of Bonus Act being a special provision and certain disputes being deemed to be industrial disputes by virtue of Sec. 22 of the Payment of Bonus Act, the rest of the provisions of the Industrial Disputes " would not apply for any claim made under the provisions of the Payment of Bonus Act. There is no express provision in the Payment of Bonus Act which excludes the application of the provisions of the Industrial Disputes Act. If a workman is entitled to receive from the employer Any money or any benefit which is capable of being confuted in terms of money and if any question is raised as to the amount of money due or as to the amount at which such benefit should be computed those questions may properly be adjudicated under S. 33-C (2) of the Industrial Disputes Act. The minimum bonus payable under the Payment of Bonus Act is certainly an amount which a workman is entitled to receive from his employer and when such a claim is made it is undoubtedly entertainable under S. 33-C(2). Since there is no express provision excluding the operation of the Provision of S. 33-C (2), the fact that under S. 22 ,the Payment of Bonus Act certain disputes with respect to a claim for bonus are deemed to be Industrial Disputes the other provisions of the Industrial Disputes Act cannot be excluded. 34. Further S. 39 of the Payment of. Bonus Act expressly saves the application of the provisions of the Disputes Act to such claims by declaring that the provisions of the Payment of Bonus Act shall be in addition to and not in derogation of the Industrial Disputes Act. Section 33-C (2) of the Industrial Disputes Act must therefore be held applicable to such claims in as much as no provision of the Industrial Disputes Act expressly provides otherwise. In other words, the Provision contained "S. 33-C (2) cannot be deemed to be excluded by necessary implication or by any fiction of law. 35. When a Statutory right to a minimum bonus is created and a petition under S. 33-C. (2) is maintainable for computing the amount as per the statute, it could not have been the intention of the legislature in enacting S 22 to make such dispute an 'Industrial Dispute". No question of an adjudication or ,, award " respect of such a right could arise. In making provision under S. 22 of the Payment of Bonus Act. that any claim "with respect to the Payment of Bonus under this Act" would be deemed t, be an "Industrial Dispute" the legislature could never have intended that even where a right created under a statute merely upon the employer denying such right should necessarily be referred for adjudication under S. 10 of the Industrial Disputes Act as an Industrial Dispute. By enacting S 39 of the Payment of Bonus Act, the legislature made its intention very clear that it never intended to take away the right of the workman to apply under S. 33-C (2) of the Industrial Disputes Act seeking determination of the money due to him by virtue of the statutory right vested in him. 36. In Allahabad Labour Supply Agency v. First Labour Court, Nagpur AIR (1970) Bom 490), the Bombay High Court held:
"That a remedy under S. 33-C (2) is not barred is also clear from the provisions of Sec. 39 of the Payment of Bonus Act ...... Section 39 expressly provides that the provisions of the payment of Bonus Act. 1965, are not in derogation of the provisions of the Industrial Disputes Act, 1947. or the corresponding State Ad. Thus the right of an employee to approach the Labour Court under S. 33-C (2) for recovery of the amount of minimum bonus is unaffected by S. 22 of the Payment of Bonus Act 1965". The Punjab and Haryana High Court in Bawa Singh v. State of Punjab (1974 Lab IC 425) referring to S. 39 of the Payment of Bonus Act held (at p. 427): "It is also clear that according to the provisions of Section 39 of the Payment of Bonus Act, until and unless specifically provided in this Ad overriding the provisions of Industrial Disputes Act, the provisions of the Industrial Disputes Act have been made applicable. Section 22 of the Payment of Bonus Act, in our opinion does not exclude filing of an application under 5. 33-C (2) of the Industrial Disputes Act, for the payment of Bonus." No doubt in E.E. C. of India v. Labour Court Madras (1975 Lab IC: 1181), (Aranha v. Universal Radiators, 1973 Lab IC 1180?) the Madras High Court has held that S. 22 of the Payment of Bonus Act excludes a petition u/s. 33-C (a) of the Industrial Disputes Act. But in so holding the Madras High Court did not take into account the provisions of S. 39 of the Payment of Bonus Act, or the observations of the Supreme Court in Sanghvi Jeevraj v. M.C.G. & K.M.W. Union which are as follows (at p 539 of AIR):-".....It is thus clear that by providing in Sec. 38 that the provisions of this Ad shall be in addition to and net in derogation of those Acts. Parliament wanted to avail of those Acts for investigation and settlement of disputes which may arise under this Act. The distention between S. 22 and S. 39, therefore. is that whereas S, 22 by fiction makes the disputes referred to therein industrial disputes and applies the provisions of the industrial Disputes Act and other corresponding laws for the investigation and settlement thereof, Sec. 39 makes available for the rest of the disputes, the machinery provided in that Act and other corresponding laws for adjudication of disputes arising under this Act......" We are, therefore, unable to persuade ourselves to accept the said view. 37. It is next contended on behalf of the petitioner that the definition of "Workman" under S. 2 (s) of the Industrial Disputes Ad is somewhat restricted as compared to the definition of an "employee" under S. 2 (13) of the Payment of Bonus Act and as such S. 33-C (2) cannot in terms apply to a claim for Payment of Bonus under the said Act. S. 2 (s) Of the industrial Disputes Ace defines "Workman" as follows:"2(s). 'Workman' means any person (including an apprentice) employed in any industry to do any skilled or, unskilled manual, supervisory, technical or clerical work for hire or reward whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute." Section 13 (2) of the Payment of Bonus Act defines an "employee" as under:-" 'employee' means any person (other than an apprentice) employed on a salary or wage not exceeding one thousand and six hundred rupees per mensem in any industry to do any skilled or unskilled manual, supervisory, managerial, administrative, technical or clerical work for hire or reward, whether the terms of employment be express or implied" It cannot be gainsaid that the ambit of these two definitions is not identical All employees under the Payment of Bonus Act are not "workmen" within the meaning of the Industrial Disputes Act. It is, therefore, argued that a petition under S. 33-C (2) could not lie. No doubt, S. 33-C (2) refers to a 'Workman' who is entitled to receive on the employer any money or any benefit which in capable of being computed in terms Of money and by its terms applies only to 'workman' as defines under the
Industrial Disputes Act. But what S. 39 declares is that the provisions shah be in addition to and not in derogation of the industrial Disputes Act. Certainly there cannot be any objection to an employee" as defined under the Payment of Bonus Act who also satisfied the definition of 'Workman' under the Industrial Disputes Act enforcing his claim to minimum bonus under S. 33-C (2) of the Industrial Disputes Act, However, it is not the case of the petitioner employer herein that the respondents do not also satisfy the definition of 'Workman' as contained in the Industrial Disputes Act. Such a contention was not raised either before the Labour Court or in this Writ Petition. We cannot allow it to be raised now for the first time in this writ petition. 38. Further it was held by the Supreme Court in Sanghvi Jeevraj V.M.C.G, & K.M.W. Union (1989 Lab IC 854) (A41 1989 SC 530) as follows (at pp. 538 539 of AIR):-'It will be noticed that S. 22 provides that where a dispute arises between an employer and his employee (1) with respect to the bonus payable under the Act, or (2) with respect to the application of the Ad such a dispute shall be deemed to be an industrial dispute within the meaning of the Industrial Disputes Act 1947 or any corresponding law relating to investigation and settlement of industrial dispute in force in a State and the provisions of that Act and such law, as the case may be. shall save as otherwise expressly provided, apply accordingly. An industrial dispute under the Industrial Disputes Act would be between a workman as defined in that Act and his employer and the dispute can be an industrial dispute if it is one as defined therein But the definition of an 'employee' under S, 2 (13) of the Act is wider than that of a 'workman' under the Industrial Disputes Act. A dispute between an employer and an employee, therefore, may not fell under the Industrial Disputes Act and in such a case the Act would not apply and its machinery for investigation and settlement would not be available That being so, and in order that such machinery for investigation and settlement may be available, Section 22 has been enacted to create a legal fiction where under such disputes are deemed to be industrial disputes under the Industrial Disputes Act or any other corresponding law, For the purpose of such disputes the provisions of the Industrial Disputes Act or such other law are made applicable. The effect of S. 22 thus is (i) to make the disputes referred to therein industrial disputes within the meaning of the Industrial Disputes Act or other corresponding law and (2) having so done to apply the provisions of that Act or other corresponding law for investigation and settlement of such disputes. But the application of S. 22 is limited only to the two types of disputes referred to therein and not to others, Section 39, on the other hand, provides that gave as otherwise express iv provided' the provisions of the Ad shall be in addition to and not in derogation of the industrial Disputes Act or any corresponding law relating to investigation and settlement of industrial disputes in force in a State. Except for providing for recovery of bonus due under a settlement, award or agreement as an arrear of land revenue as laid down in S. 21, the Act does not provide any machinery for the investigation and settlement of dispute between an employer and an employee. If a dispute, for instance, were to arise as regards the quantum of available surplus, such a dispute not being one falling under Sec. 22, Parliament had to make a provision for Investigation and settlement thereof. Though such a dispute would not be an industrial dispute as defined by the Industrial Disputes Act or other corresponding Act in force in a State, S. 39 by providing that the Provisions of this Act Shall be in addition to and not in derogation of the Industrial Disputes Act or such corresponding law makes available the machinery in that Act or the corresponding Act available for investigation and settlement of industrial disputes thereunder for deciding the disputes arising! under this Act As already seen Section 22 artificially makes two kinds of disputes therein referred to industrial disputes and having done so applies the provisions of the Industrial Disputes Act and other corresponding law in force for their investigation and settlement. But what about the remaining disputes?. As the Act does not provide any machinery for their investigation and settlement, Parliament by enacting S. 39 has sought to apply the provisions of those Acts for investigation and settlement of the remaining disputes though such disputes are not industrial disputes as defined in those Acts Though the words 'in force in a State' after the words 'or any corresponding law relating to investigation and settlement of industrial disputes' appear to qualify the words "any corresponding law" and not the Industrial Disputes Act, the Industrial Disputes Act is primarily a law relating to investigation and settlement of industrial disputes and provides machinery therefor. Therefore the distinction there made between that Act and the laws does "Of seem to be of much point, It is thus clear that by providing in S. 34 that the Parisians of this Act shall be in addition to and not in derogation of those Acts, Parliament wanted to avail of those Acts for investigation and
settlement of disputes which may arise under this Act. The distinction between S. 22 and S. 39 therefore, is that whereas S. 22 by fiction makes the disputes referred to therein industrial disputes and applies the Provisions of the Industrial Disputes Act and other corresponding laws for the investigation and settlement thereof, S. 38 makes available for the rest of the disputes the machinery provided in that Act and other corresponding laws for adjudication of disputes arising under this Act. Therefore, there is no question of a right to bonus under the Industrial Disputes Act or other corresponding Acts having been retained or saved by S. 39. Neither the Industrial Disputes Ad nor any or the other corresponding laws Provides for a right to bonus. Item 5 in Such. 3 to the Industrial Disputes Act deals with jurisdiction of tribunals set up under Ss. 7, 7-A and 7-B of that Act but does provide for any right to bonus. Such a right is statutory provided for the first time by this Act. 39. There observations though made by the Supreme Court while dealing with the question whether any right to bonus exists de hers the Payment of Bonus Act either under the Industrial Disputes Act or under any other law, make tire legal position with regard to Sec. 39 of the Payment of Bonus Act clear. It therefore follows that with reaped to matters not covered by S. 22 of the Payment of Bonus Act, S. 39 of the Payment of Bonus Ad makes applicable the other provisions of the Industrial Disputes Act including. S. 33-C (2) of the Industrial Disputes Act with respect to rights secured to an 'employee' under the Payment of Bonus Act. 40. The claim of the respondents the payment of minimum bonus not being one falling under S. 22 of the payment of Bonus Act and the right to the minimum bonus having been created a by a statute, the decision on all other objections the payment of minimum bonus would only be incidental to the computation of the actual amount due to the employees and can be adjudicated under S. 33-C (2) of the Industrial disputes Act. 41. We, have, therefore, no hesitation in holding that the claim for payment of minimum bonus by an individual workman is not covered by S. 22 of the Payment of Bonus Act. It cannot be deemed to be an 'industrial Dispute' within the meaning of the Industrial Disputes Act by virtue of anything contained S. 22 of the Payment of Bonus Act. The right to minimum bonus is a statutory right which vests in the employee and no further adjudication of the right the payment of minimum bonus (is) called for. It constitutes an existing statutory right, The denial of this right by the employer does not render it an Industrial dispute calling for any adjudication by way of reference under S. 10 of the Industrial Disputes Act read with S.22 of the Payment of Bonus Act. A petition under S. 33-C (a) of the Industrial Disputes Act for ascertaining and awarding the amount of minimum bonus due to the workman is, therefore, maintainable 42. The objection to the jurisdiction of the Labour Court to entertain a petition by an employee for the ascertainment and payment of minimum bonus denied to him by the employer therefore fails and is accordingly rejected. No writ of prohibition could therefore be issued against the Labour Court from proceeding with M-P. 300 of 1975, 43. Another claim made by the respondents in their petition under S. 33C (2)before the Labour Court is for the payment of the difference in the contracted wage which was paid to them and the minimum wage payable to them under the Minimum Wages Act. It is common ground that exercise of the power vested in it under Sec. 12 of the Minimum Wages Act, the Government has in G.O.Ms. No. 559 Employment and Special Welfare (T) Department dated 30-5-1975 prescribed the minimum rate of wages for employees in oil mills in the State of Andhra Pradesh. The validity Of the said Notification fixing the minimum wage under S. 5 of the Minimum Wages Act is not questioned It is also not in dispute that employment in oil mills is a "scheduled employment', as defined under S; 2 (g) and as envisaged by S. 27 of the Minimum Wages Act, and that the petitioner is an "Employer:' as defined under S. 2 (e) of the minimum Wages Act of the respondent employees. The contention of the petitioner in this behalf is that the Minimum Wages Act not only creates the right to a minimum wage notified by the Government but also constitutes a forum before which a claim for minimum wage "arising out of the payment of less than the minimum rates of wages ....to the employees employed or paid in that area", may be made. The Act also empowers the State Government to notify the appointment of an Authority an before whom the claim referred to above could be made. The Act while
prescribing a period of six months within which an application may be made empowers the Authority an being satisfied that there was sufficient cause for not making an application within the prescribed period to admit the application beyond the said period of six months. The Act thus having created a "statutory right to a minimum wage under S. 20 lays down the procedure for enquiring into and disposing of an application for payment of the minimum wage under S. 20 of the Act The Minimum Wages Act is thus a complete Code in itself which creates both the right as well as the forum for the enforcement of that right and lays down the procedure to be followed by the forum for adjudication of that claim. As such no petition under S. 33C (2) of the Industrial Disputes Act is maintainable. 44. According to the learned counsel for the petitioner Sri V. Jegannadha Rao, the Minimum Wages Act is a special enactment which overrides the provisions of the Industrial Disputes Act which is said to be a general enactment. In this regard he places reliance mainly on the judgment of the Supreme Court in Premier Automobiles v. K. S. Wadke, AIR 1875 SC 2238. That matter arose out of a suit instituted by the Union of Workmen of the Motor Production Department of the Premier Automobiles. In that suit the Plaintiffs prayed for a declaration that the settlement dated 9-1-1971 was not binding on the plaintiffs and the other concerned daily rated and monthly rated workmen of the Motor Production Department who were not members or the Association Union. Another relief claimed therein was for a Permanent injunction restraining the premier' Automobiles from enforcing or implementing the terms of the said settlement. The appellant-company and other respondents inter alia pleaded that the Civil Court had no jurisdiction to entertain the suit. The trial Court negative that plea and held that the Civil Court had jurisdiction to try the suit as it was of a "Civil Nature for enforcement of common and general law rights" and accordingly granted a sort of conditional decree of injunction restraining the appellant from enforcing or implementing the terms of the settlement dated 9-1-1971 against such of those workmen of its Motor Production Department who were not the members of the Association Union The Company preferred an appeal to the High Court of Bombay which upheld the Jurisdiction of the Civil Court to entertain the suit and refused to interfere with the trial Court's decree an merits. Dealing with the appeal against the said Judgment. The Supreme Court enunciated the principles determining the jurisdiction of Civil Court with respect to an industrial dispute thus:-"(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the Civil Court. (2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the Jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a Particular remedy. (3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. (4) If the right which is sought to be enforced is B right created under the Act such as Chap. VA then the remedy for its enforcement is either S. 33-C or the raising of an industrial dispute a. the case may be." 45. On the strength Of this judgment Mr. Jagannadharao, learned counsel for the petitioner-employer contends that upon a parity of reasoning since the right to the payment of a minimum wage as also the forum for the enforcement of that right are both created under the Minimum Wages Act a special enactment the general provision contained in Section 33-C (2) of the Industrial Disputes Act cannot be invoked. According to the learned counsel for the petitioner, it is a case which falls under the third category of cases referred to by the Supreme Court in the Premier Automobiles v. K. S. Wadke, . 46. It would be seen that so far as the decision of the Supreme Court in Premier Automobiles v. K.S.Wadke, is concerned it deals with the jurisdiction of the Civil Court to adjudicate a claim entertainable under the Industrial Disputes Act and enunciates the principles applicable in this behalf. It does not deal with the question as to whether the Industrial Disputes Act itself is a general law or special enactment in relation to
either the Payment of Bonus Act or the Minimum Wages Act The Supreme Court also did not lay down in that case that if a forum is created for the enforcement of any right conferred on an employee under any of the above referred two special enactments, the jurisdiction of the Industrial Tribunal under S. 33C. (2) to entertain a Claim for the enforcement of that right is barred. The above decision of the Supreme Court cannot therefore be taken as an authority for the proposition that since the right to minimum wage is created under the Minimum Wages Act which is a special enactment and an authority is also constituted under the said enactment, a petition under S. 33-C (2) of the industrial Disputes Act is barred. On the other hand principle No. 4 enunciated by the Supreme Court is that if the right which is sought to be enforced is a right created under the Act such as Chap. V-A then the remedy for its enforcement is either S. 33-C or the raisins of an industrial dispute as the case may be. The decision clearly recognised that if right is created under an enactment for the enforcement of that right and for computation of the benefit, a petition under S. 33-C may lie. That is what a Full Bench of this Court also held in W. P. No. 2503 of 1977 Judgment, D/17-11-1978 to which detailed reference has been made earlier. 47. It was also not contented before us that there is anything in S. 33-C (2) which by itself debars an employee from filing petition claiming minimum wage. There is no provision either the Industrial Disputes Act or in the Minimum Wages Act which specifically prohibits a Labour Court from entertaining a petition under S.33-C (2) in respect of a claim for minimum wage. already noticed the contention was merely that the Industrial Disputes Act was a general law and that S. 33C (2) being a provision of a general Law is excluded by the Minimum Wages Act which creates the right as well as the forum for the enforcement of that right. We may therefore examine how far this basic assumption of the learned counsel for the petitioner that the Industrial Disputes Act is a general enactment is correct and then proceed to consider how far the Minimum Wages Act while creating a right to minimum wage also prescribes a forum for the enforcement of that right and as such excludes the jurisdiction of the Labour Court under S. 33-C (2) to entertain a petition for minimum wage. 48. The Industrial Disputes Act does not deal with all disputes It deals only with disputes of workmen and employers as defined therein They must be industrial disputes. Even in this limited sphere it is not only dispute of every individual workman that is entertainable under the said Act. By virtue of Section 2 A of the Industrial Disputes Act, disputes raised by individual workman relating to dismissal, removal or retrenchment from service only are deemed to be industrial disputes. Any other dispute raised by an individual workman is not deemed to be an industrial dispute. Unless claims of individual workman other than those referred to under S. 2-A are sponsored by union of workmen or substantial members of workman it cannot be deemed to be an industrial dispute. Further under S. 33-C (2) of the industrial Disputes Act claims made by workmen that are entertainable against their employers are claims with respect to existing rights based on a settlement, award, or Chap. V-A or Chap. V-B are conferred by statute. Any other right to which a workman or class of workmen may be entitled but which does not constitute an industrial dispute can be adjudicated only by a Civil Court. It is only industrial disputes that can be adjudicated under the Industrial Disputes Act and the existing rights referred to above that are entertainable under S. 33-C of the said Act, Thus the Industrial Disputes Act itself is not a general enactment as is commonly understood. In a sense the industrial Disputes Act itself is a special enactment applicable to certain class of employers and workmen and certain classes of disputes. Consequently the Industrial Tribunal or the Labour Court created for the adjudication of those disputes cannot be regarded as Courts of general jurisdiction they are Tribunals conferred with special jurisdiction with regard to matters specified under the said enactment. So also, the Minimum Wages deals with specific rights created under that Act , They are special enactments relating to certain class of employees and certain class of employments or establishments. The Minimum Wage, Act also creates a special forum for certain matters covered by S. 20 of the Act but it does not bar the jurisdiction of the Labour Court to entertain claims covered by the Minimum Wages Act.S. 33-C (2) may be wide enough to include claims of workmen in respect of rights conferred under various enactments. May be, certain matters entertainable under S. 20 of the Minimum Wages Act may be entertained under 33-C (2) of the Industrial Disputes Act also. But on account of that fact the Industrial Disputes Act as a whole or S. 33-C (2) of the Act in particular does not become a general law in relation to the Minimum Wages Act. Though the Industrial Disputes Act is in certain respects wider in its scope and ambit than the Minimum Wages Act both the enactments nonetheless are Special
enactments. As the industrial Disputes Act is thus not general enactment the Principle generalia Specialibus non derogant cannot apply. 49. Considering the question whether in relation to the Andhra Pradesh Shops and Establishments Act, the Industrial Disputes Act is a general or a special enactment, the Andhra Pradesh High Court in Krishnaswamy v. Assam Tea Depot. 1977 Lab IC 432, held (at pp. 436, 437): "...the procedure provided by the State Act (Andhra Pradesh Shops and Establishments Act) is as much a special procedure prescribed by a special Act as the one provided by the L D. Act Ordinarily, these remedies will have to be worked out in a Civil Court but having regard to the circumstances in which the workmen are placed, and their difficulties and helplessness the legislature thought it fit to create special forums like the one under S. 33-C (2) of the L D. Act as well as those under Section 43 and S. 41 of the State Act..." The Mysore High Court especially with reference to the Minimum Wages Act had to consider a similar question in Athani Municipality v. Presiding Officer, 1968 Lab IC 797 : (AIR 1968 Mysore 150] and expressed the view that (at p. 152 of AIR) "...the Labour Court cannot be regarded as a Court of general jurisdiction. It is as much a special Tribunal as the Authority appointed under S. 20 of the Minimum Wages Act. Each of these Special Tribunals has jurisdiction in respect of matters specified in the enactments constituting them and in any other enactment......" In Ambika Tobacco Company v Labour Court, (1988] 2 Lab W 353, the Bombay High Court was directly concerned with the question with which we are now dealing. The Bombay High Court held: "......The Principle that the special excludes the general will also nor be applicable in this case for the simple reason that when the Minimum Wages Act was put on the statute book there was no such provision like S. 33 (1) or Sec .33-C (2) in its present form in any other statute. The history of industrial relations in this country shows that various aspects of giving protection to workers and making provisions for enforcement on the privileges granted to industrial workers are attempted in different legislation's both by the Central and the State Governments. But the distinguishing feature of a provision like Sees. 33-C (1) and 33-C (2) of the Industrial Disputes Act passed by the Parliament is that it Covers the case of every workman against his employer irrespective of the Provision of law under which the right arises or is claimed.'' 50. These decisions, in our view, rightly declared that the Labour Court constituted under the Industrial Disputes Act is not Court of general jurisdiction. The Industrial Disputes which provides for the constitution the Labour Court for deciding the claims of workmen against their employer is therefore, not a general Act and consequently the principle generalia speciliabus non derogant cannot be applied to determine if the jurisdiction conferred upon a Labour Court under S. 33-C (2) taken away with respect to the enforcement of the right to a minimum wage conferred under the Minimum Wages Act. 51. Mr. Jagannadharao, learned counsel for the petitioner also alternatively contends that a petition claiming minimum wage is not entertainable by Labour Court under S. 33-C (2) also on the ground that the Authority constituted under S. 20 of the Minimum Wages Act has exclusive jurisdiction in this behalf. 52. In this behalf, Mr. Jagannadha Rao, learned counsel for the petitioner apart from referring to the judgment of the Supreme Court in Premier Auto mobiles v. R. S. Wadke, placed very strong reliance upon a decision of the Division Bench of this Court in W. P. No.1686 of 1976 and batch (Executive Engineer, Panchayat Raj v. Syed Zarruddin) D/-31-7-1978 Which held with particular reference to the Minimum Wages Act that. "...claims arising under the Minimum Wages Act particularly those contemplated under S. 20 are entirely outside the purview of and are not intended to be entertainable under S. 33-C (2) of the Industrial Disputes
Act, A claimant under S. 20 of the Minimum Wages Act has no right to file an application under S. 33-C (2) of the Industrial Disputes Act, 1947, nor the Labour Court under S. 33-C (2) has jurisdiction to entertain and adjudicate upon such a claim petition as the jurisdiction of the Authority is exclusive" Unfortunately. the earlier decision of this Court in Kilaru Gopala Rao v. Labour Court, Hyderabad. 50 FJR 201 (1977 Lab IC 410) which dealt with a claim for minimum wages payable under the Minimum Wages Act made beyond a period of six months from the date on which the wages became payable was not brought to the notice of this latter Division Bench which heard and disposed of W. P. No. 1686 of 1976 and batch (The Executive Engineer, Panchayat Raj v. Syed Zarruddin) referred to above. In Kilaru Gopala Rao v. Labour Court, 50 FJR 20: (1977 Lab IC 410) the Division Bench of this Court held (at p. 111 of Lab IC): '....that since the workman in the present case could not hew resorted to the remedy provided by Sec. 20 of the Minimum Wages Act at the time when he filed the application under S.33-C(2) of the Industrial Disputes Act that application is maintainable." The Bench, however, observed (at p. 411 of Lab IC): ''Following the course adopted by the Supreme Court in Athani Municipality's case we also find it unnecessary to decide the wider question as to whether an application under S.33-C (2) of the Industrial Disputes Act could be entertained by the Labour Court, if the remedy under S. 20 (1) of the Minimum Wages Act is still available to the workman concerned." It, therefore, becomes necessary to consider whether the present claim of the respondents for the payment of the difference in the actual wage paid and the minimum wages payable under the Act for a period beyond six months of the petition which is not entertainable under S. 20 of the Act may be entertained by a Labour Court under S. 33-C(2) of the Industrial Disputes Act 53. The Supreme Court in Athani Municipality v. Labour Court. Hubli , considered the question "Whether the jurisdiction of the Labour Court to deal with the claims of the workmen under S. 33-C (2) of the Industrial Disputes Act was barred by the fart that the same relief could have been claimed by the workmen under S. 20 (1) of the Minimum Wages Act." Before dealing with that question the Supreme Court clearly pointed out in para 4 of the judgment that "it was not contended either before the Labour Court or in the writ petition before the High Court that the applications were not covered by the provisions of S. 33-C (2) of the Industrial Disputes Act. The plea taken was that even if the applications could be made under S.33-C (2) of the Industrial Disputes Act, the jurisdiction of the Labour Court to proceed under that provision of law was barred by the provisions of the Minimum Wages Act. Mr. B. Sen appearing on behalf of the appellant wanted permission to raise a question whether these applications be fore the Labour Court were at all included within the scope of S. 33C (2) of the Act. But on the objection of the learned counsel for the respondents the permission sought was refused. As we have mentioned earlier. the jurisdiction of the Labour Court on this ground was not challenged either before the Labour Court itself or before the High Court. No such ground was raised even in the special leave petition nor was it raised at any earlier stage by any application. It was sought to be raised by Mr. Sen for the first time in the course of the arguments in the appeal at the time of final hearing. We do not consider it correct to allow such a new point raised at this late stage, Proceeding to deal with that contention the Supreme Court held (at pp 1340, 1341 of AIR): "..the language used at all stages in that Act leads to the 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 molly 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 S.20 (1) of the Minimum Wages Act also, provision is made for seeking remedy in reaped of claims arising out of payment of less than minimum rates of wages or in respect of payment of remuneration for days of rest or for work done on such days under C1. (b) or Cl (c) of sub-sec. (1) of Sec 13 or of wages at the overtime rate under S.14. This language used in Sec. 20(1) shows that the Authority appointed under that provision of law is to exercise jurisdiction for deciding claims which relate to 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 employee, .S. 20 (1) would not be attracted. The purpose of S. 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 pre given the right to invoke the aid of the Authority appointed under S. 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 S. 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 S. 33-C 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 S. 20 (1) of the Minimum Wages Act should be interpreted a, intended to cover all claims in respect of minimum wages or overtime payment for days of rest though there may be no dispute as to the rates at which those payments are to be claimed. It is true that, under S. 20 (3), power is given, to the Authority dealing with an application under S. 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 S. 20 (1) may be effectively carried out end there may not be unnecessary multiplicity of Proceedings, The power to make orders far payment of actual amount due to an employee under S. 20 (3) cannot, therefore, be interpreted as indicating that the jurisdiction to the Authority under S, 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 workmen in the various applications under S. 33-C (2) of the Act were of such a nature that they could have been brought before the Authority under S. 20 (1) of the Minimum Wages Act in as much as they raised disputes relating to the rates for payment of overtime and for work done on weekly off-days." 54. The Supreme Court then examined whether the applications presented before the Labour Court under S, 33C (2) of the Industrial Disputes Act were of such a nature as could have been brought before the Authority constituted under S. 20 (1) of the Minimum Wages Act inasmuch as they raise a dispute regarding the right to payment for overtime work and for the work done on weekly off-days In that case, it was found that the employer did not dispute that the wages were payable at a rate different from the ones claimed by the workmen The plea was that no rates at all had been fixed by the Mysore Government. That was considered by the Supreme Court as not a dispute as to the rates at which the payments were to be made but a dispute as to whether any rate at all was fixed under the Minimum Wages Act, It accordingly held that a remedy under S. 20 (1) of the Minimum Wages Act could not have been sought by the applicants in any of those applications and consequently observed that "no question can therefore arise of the jurisdiction of the Labour Court to entertain these applications under S. 33-C (2) of the Act being barred because of the provisions of the Mini mum Wages Act" 55. This decision of the Supreme Court makes one thing clear that where there is a dispute as to the rate at which the minimum wage is payable under the Act, the matter would fall under S. 20 (1) of the Minimum Wages Act It also declares that S.20 (1) of the Minimum Wages Act does not cover all claims in respect of Minimum Wages: it covers only cases where there is a dispute as to the rate at which the minimum wages are
payable. That decision also lays down that the power given to the authority under S. 20 (3) to direct payment of actual amount found due while dealing with an application under S. 20 (1) is only incidental power granted to that authority, Of course, in the said decision having regard to the finding it reached, the Supreme Court did not directly decide the question whether a petition under S, 33C (2)would be bared if there was a dispute as to the rate and a petition under S, 20 of the Minimum Wages Act was entertainable by the Authority constituted under Minimum Wages Act. However the observations of the Supreme Court in this context clearly indicate that the jurisdiction of the authority constituted under S. 20 (1) of the Minimum Wages Ad is not exclusive and a petition tinder another enactment was not barred. 'that observation is as follows (at R 1341 of AIR):-"The power to make orders for payment of actual amount due to employee under 5. 20 (5) cannot, therefore, be interpreted as indicating that the jurisdiction to the authority under S. 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 hormonises 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". 56. We may add that the same would apply with reference to Sec. 33-C (2] of the Industrial Disputes Act which Act was already in existence when Minimum Wages Act was passed When there is no dispute as to the rate of wages, but the dispute is as to the quantum of wages to which a workman is entitled. it would not be a matter falling under S. 20 (1) of the Minimum Wages Act and consequently a petition under S. 33-C (a) of the industrial Disputes Act could not be held barred. 57. Earlier to the two decisions of this Court referred to above Kilaru Gopala Rao v. Labour Court, Hyderabad, 50 FJR 20 : (1977 Lab IC 410) and the 'judgment of the Division Bench of this Court in the Executive Engineer, Panchayat Raj v, Syed Zairuddin (W. P, 1886 of 1976 and batch D/- 31-7-1978), another Division Bench of this Court in A. B. Saleem v. Labour Court, Hyderabad, (1973) 2 APLJ (SN) 40 : W. P. No. 5494 of 1971. D/- 25-7-1973, dealing with a claim set up by the employees in the shops held: ".........since the claims come under the Shops and Establishments Act, the claims ought to be heard by the judicial authority and not by the Labour Court, Claim in regard to wages or gratuity arising under the Act can be got decided only before the judicial authority constituted by the Government under S. 43 of the Act (Shops and Establishments Act). The judicial authority so constituted has exclusive jurisdiction to decide the claims arising under the Act and since the Act is a self contained Act and provides he own machinery for disposal of the claims, it must follow that the judicial authority is an exclusive authority is and all claims arising under the Act must have to be filed only before the said authority and no other. By necessary implication it excludes the jurisdiction of a Labour Court to hear an application under Sec. 33-C (2) arising under the provisions of the Shops and Establishments Act." This case though not one arising under the Minimum Wages Act. reliance is placed on it as laying down a general principle that where a special enactment is a self contained Act providing its own machinery for disposal of claims arising out of rights conferred by that Act, by necessary implication, it bars the jurisdiction of the Labour Court under Section 33-C (2) and only the Authority constituted under that special enactment would have exclusive jurisdiction to try such a claim. We are not persuaded to accept this view. It would be seen that lust as the Minimum Wages Act under Shops and Establishments Act, there is no specific provision barring the jurisdiction of the Labour Court. Further, just as the Minimum Wages Act the Shops and Establishments Act also prescribes a period of limitation within which the claims arising under the Act may be made before the respective Authority constituted under those enactments. It could not be the intention of the legislature that the remedy provided under Sec. 33-C (2) of the Industrial Disputes Act to all workmen should not be available to workmen who also happen to be "employees" within the meaning of the Minimum Wages Act or the Shops and Establishments Act. In the absence of any express prohibition in the Minimum Wages Act or the Shops and Establishments Act, as the case may be: there is no reason why the remedy available to all workmen under S. 33- C (2) of the Industrial Disputes Act, without any restriction as to any
period of limitation as laid down by the Supreme Court in Athani Municipality v. Labour Court Hubli , should be denied to the workmen who have been conferred rights under the said statute. In that decision the Supreme Court clearly declared (at pp. 1343, 1344 of AIR): "We are unable to find any provision in the new Limitation Act which would justify holding that these changes in definition were intended to make the Limitation Act applicable to proceedings before bodies other then courts............ Article 13'1 of the Schedule to the Limitation Ad, 1863 does not apply to applications under S. 33C (2) of the Act, so that the previous decision of this Court that no limitation is prescribed for such applications remains unaffected." 58. We may notice at this Juncture that the Supreme Court in East India Coal Ca. v. Rameshwar, , dealing with the question whether the Labour Court had jurisdiction under S. 33-C (2) of the Industrial Disputes Act to interpret an award or a settlement on which the workmen's right rests and try a claim under the Coal Mines Provident Fund and Bonus Scheme Act and make an award and allow the claim after reviewing the case law on the subject and enunciating the eight principles allowed the claim held (at p 221): "......,.,there is no justification in inducting a period of limitation provided in the Limitation Ad into provisions of S. 33-C (2) which do not lay down any limitation and that such a provision can only be made by legislation if it thought fit and not by a Court or on an analogy or on any Other such consideration" It accordingly declared that a petition under S. 33-C (21 was maintainable for realisation of the bonus payable under the said Act without any restriction as to period of limitation and even for the period beyond three years of the date of the petition. 59. That decision would indicate that a claim based on a right created under a special enactment could be entertained under S. 33-C (2) of the Industrial Disputes Act. A fortiori right created under the Minimum Wages Act to receive the minimum wage should be entertainable under Sec. 33-C (2) of the Industrial Disputes Act. 60. Mr., Jagannadha Rao, learned counsel for the petitioner-employer sought to contend that in East India Coal Co. v. Rameshwar, , the Supreme Court allowed the claim for bonus under the Coal Mines provident Fund and Bonus Schemes Act (1948) upon a petition under S. 33-C (2) of the Industrial Disputes Act because no special forum was created under the Coal Mines Provident Fund and Bonus Schemes Act and therefore it cannot be assumed that the Supreme Court laid down that even in a case where a special enactment created the right and also constituted the forum for enforcing the right, the Labour Court had jurisdiction under S. 33-C (2) of the Act to entertain the claim. No doubt, the Coal Mines Provident Fund and Bonus Schemes Act did not create a special forum but the Supreme Court in considering the scope of S. 33-C (2) in that judgment laid down (at pp, 220, 221) : ".......there is no reason to hold that a benefit provided by a Statute or Scheme made thereunder, without there being anything contrary under such statute or Sec, 93-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 be computed must fall under sub-sec. (2) and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being in respect of an existing right arising from the relationship of an industrial workman and his Employer." Thus the scope of S. 33C (2) is much wider and untrammeled by any consideration of period of limitation There is nothing in the said special enactments or the Industrial Disputes Act which gives an indication that the rights conferred by these enactments can be enforced only through forums created under those Acts or cannot be agitated before any other forums not expressly barred after the period of six months prescribed
under those enactments, 61. No conflict arises between the provisions of Shops and Establishments Act or the Minimum Wages Act on the one hand and S. 33-C (2) of the Industrial Disputes Act on the other so as to hold that by a necessary implication the jurisdiction of the Labour Court under Section 33-C (2) is barred. One of us (Madhava Reddy J.) in Escorts Ltd. v. P. Pandu (Writ Petn No. 1825 of 1871 Judgment dated 20-9-1974) (Andh Pra) dealing with the question whether the claim of an employee under the Andhra Pradesh Shops end Establishments Act was entertainable under Sec 33-C (2) of the Industrial Disputes Act held:-"There is no express provision declaring that notwithstanding anything contained in the Industrial Disputes Act, the provisions of the Shops and Establishments Act would prevail. The provision in Sec. 40 of the Shops and Establishments Act merely entitles an employee to receive arrears of wages and gratuity if his services are terminated without proper notice and without reasonable cause. The claim of the employee here may not come within the strict terms of S, 40, S 33-C (2) of the industrial Disputes Act is more comprehensive in this behalf. When that is the position the mere fact that the employee may also Lay a claim in certain circumstances under S. 40 of the Shops and Establishments Act and an elaborate procedure is statutorily laid down for inquiring into such claim, does not debar the workman from invoking the jurisdiction of the Labour Court under Section 33-C (2) of the Industrial Disputes Act" Our learned brother Chinnappa Reddy, J,(as he then was) also took the same view in Writ Petn. No. 4752 of 1968, D/31-3-1968. Both these views came up for consideration before . Division Bench of this Court in M. Krishna Swamy v. Assam Tea Depot., 1877 Lab IC 432. The Bench took the view that (at p. 436), "......Section 33-C (2) is a beneficial provision, providing for a prompt and cheap remedy to a workman to receive and realise, the money or other benefits due to him, either under a settlement or award or any other provision of law, and without being affected by the provisions Of the Limitation Act. It is not necessary that the money or the benefit should be due to the workman only under the provisions of the I. D. Act, the money or benefit due to a workman. under any other law, can also be worked out and recovered under the said provision" The Bench further held (at pp. 436, 437): ".......that the procedure provided by the State Act (A. P. Shops and Establishments Act) is as much a special procedure prescribed by a special Act as the one provided by the I. D. Act. ordinarily, these remedies will have to be worked out in a Civil Court: but having regard to the circumstances in which the workmen are placed, and their difficulties and helplessness, the legislature thought it fit to create special forums Like the one under S. 33-C (2) of the I, D. Act, as well as those under S. 43 and S. 41 of the State Act. Hence, the theory of a special procedure or forum excluding the general procedure or forum La misplaced In any event, in the face of the express saving provision contained in S. 63 of the State Act, there is no room for contending that the procedure and forums created by the State Act are of an exclusive nature barring jurisdiction of the Labour Court to entertain applications under S. 33-C (2) of the Industrial Disputes Act. The obvious intention of the Legislature in enacting S. 63 was to clearly save the remedies available to workmen under other enactments. The State Ad was enacted in 1966, by which date S. 33-C (2) of the I. D Act was already on the statute book. As noticed by us above. Section 33-C (2) provides a cheap, summary and prompt remedy. (It is sometimes loosely referred to as a petition in the nature of execution petition though such a description has very often led to a good amount of avoidable controversy), and there is no valid reason to close this avenue hitherto available to an employee workman. Whether the procedure prescribed by the State Act is more favourable, or whether the procedure prescribed by any other Act is more favourable to an employee, should be left for him to decide. In other words if he chooses to adopt the remedy under Section 33-C (2) of the I. D. Act, an authority cannot say that the remedies provided by the State Act are more favourable to him, and thereby compel him to adopt the remedy under the State Act. As pointed out by the Gujarat High Court, the remedy provided by S. 33-C (2) is in the alternative and independent of other remedies provided by other
enactments" In that view the Court held (at a 438 of Lab IC): "......the jurisdiction of the Labour Court under S. 33-C (2) of the I. D. Act is not barred, either expressly or by necessary implication, by any of the provisions contained in the Andhra Pradesh Shops and Establishments Act, 1966 and that It is open to an employee, governed by the provisions of the State Act, to recover the money or other benefit due to him under the provisions of the State Act, by filing a petition under S. 33-C (2) of the Industrial Disputes Act, so long he is a 'workman' within the meaning of the Central Act." 62. The view taken by one of us Madhava Reddy, J.) in Writ Petn, No. 1825 of 1971 D/- 20-9-1974 (Andh Pra.) which has been overruled by the Division Bench in Writ Appeal No. 899 of 1974 D/-16-7-1975 was thus affirmed in M. Krishna Swamy v, Assam Tea Depot 1977 Lab IC 432 (Andh Pra). Though this decision relates to a case arising under the Shops and Establishments Act. in our view that reasoning equally applies to the claim of an employee under the Minimum Wages Act Even though there is no provision in the Minimum Wages Act analogous to S. 63 of the Shops and Establishments Act the Industrial Disputes Act itself being a special enactment, the principle generalia specialibus non derogant in our view does not apply and vest exclusive jurisdiction in the authority constituted under S. 20 (1) of the Minimum Wages Act so as to deprive the Labour Court of the jurisdiction to entertain a claim for minimum wages. 63. The unreported judgment of the Bench in Writ Petn. No. 1686 of 1976 and batch D/- 31-7-I978 which specifically deals with a claim for the difference in the minimum wage and actual wage made under S. 33-C (2) and holds that it is not maintainable, proceeds upon the footing that S. 20 of the Minimum Wages Act being a provision in a special enactment creating both the right as well as the forum for the enforcement of that right, excludes the jurisdiction of the Labour Court under S. 33-C (2) of the Industrial Disputes Act. It may be noticed that the dispute therein was not as to the rate of the minimum wage and as such S. 20 of the Minimum Wages Act itself, as discussed above, has no application. Even otherwise, the claim of the employees who were also "workmen" within the meaning of the Industrial Disputes Act was for the money due to them as per the right conferred on them under a statute and as held by the Full Bench in Writ Petn. No. 2503 of 1977, Judgment D/-17-11-1978: is one clearly entertainable under S. 33-C (2) of the Industrial Disputes Act. We are, therefore, not persuaded to accept the views expressed therein. 64. It is next contended that although the jurisdiction of the Labour Court under S. 33-C (2) to entertain petition with respect to a claim for Minimum Wages is not specifically barred, it must be deemed to be barred by necessary implication. Section 20 of the Act. no doubt, provides for the constitution of an authority to hear and decide all claims arising out of payment of less than the minimum rates of wages. S 20 of the Act reads as follows : "S.20.Claims-- (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 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 Cl. (b) or Cl (c) of sub-sec. (1) of S. 13 of wages at the overtime rate under S. 14, to employees employed or paid in that area. (2) Where an employee has any claim of the nature referred to in sub-sec. (1) the employee himself or any legal practitioner or any official of a registered trade union authorised in writing to ad on his behalf, or any inspector or any person acting with the permission of the Authority appointed under sub sec. (1), may apply to such Authority fm a direction under sub-sec, (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 subsec (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 rate 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 'en 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 a the Authority may think fit not exceeding ten rupees; and the authority may direct payment of such compensation in cases where the excess of 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 (7) Every Authority appointed under sub-sec (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (V of 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 S.165 and Chap. XXXV of the Code of Criminal Procedure, 1898 (V of 1898)." 65. The Minimum Wages Act while making provision for the constitution of an Authority to decide all claims arising out of the payment of less than the minimum rates of wages has merely barred the filing of the suits under S, 24 of the Act which reads as follows: "24. Bar of suits: No court shall entertain any suit for the recovery of wages in so far as the sum so claimed(a) forms the subject of an application under S. 20 which has been presented by or on behalf of the plaintiff; or (b) has formed the subject of a direction under that action in favour of the plaintiff, or
(c) has been adjudged in any proceeding under that section not to be due to the plaintiff: or (d) could have been recovered by an application under that Section That Act, however, does not bar jurisdiction of any other Tribunal or Authority which may have jurisdiction to entertain such a claim If it was the intention of the Parliament to bar the jurisdiction of Authorities or Tribunals other than the Civil Court, it would have said so. The fact that the Parliament, while making provision for the constitution of an Authority under S. 20 of the Act chose only to bar institution of suits in a Civil Court for the recovery of wages, far from indicating that the Jurisdiction of either the Tribunals or the Authorities is barred discloses an intention not to impinge upon their jurisdiction. 66. We do not find anything in any of the provisions of the Minimum Wages Ad which points out to the jurisdiction of the Labour Court being barred by necessary implication, in regard to a claim arising out of payment of less than the minimum rates of wages. 67. Mr. Jagannadha Rao, learned counsel for the petitioner placed strong reliance upon a decision of the Madhya Pradesh High Court in Laxman Tulsiram v. Dayalal Meghji & Co., , in which a Division Bench of that Court held that the claim for difference in wages actually paid and that payable under the Madhya Pradesh Minimum Wages Compensation Act is not maintainable under Sec. 33-C (2) of the Act and that only a petition under S. 15 of the Payment of Wages Act could be filed. This decision proceeds Upon the footing that the claim made by the employees was not under any settlement, award or under the provisions of Chap. VI of the Industrial Disputes Act. The Bench did not take into ac count the fad that the claim was based upon an existing statutory right and in respect of such claim a petition under S. 33-C (2) lies. The view of the Madhya Pradesh High Court that a claim for calculation of the benefit to which workman is entitled under the provisions of any statute other than the industrial Disputes Act was not maintainable under S. 33-C (2) cannot be upheld having regard to the view in Ambica Mills v. Second Labour Court, (19671 2 Lab LJ 800 (Guj) referred to above wherein it a clearly laid down that the remedy under S. 33-C (2) is not restricted to claim based on a settlement, award or a right created under Chap. V-A or V-B If the Act. but embraces even a claim based on a right created under any law, the further decision of the Supreme Court in East India Coal Co. v. Ramesh war, and the view taken by a Full Bench of this Court in the Divisional Engineer M. R. T. Operation City Circle A.P.S,E. Board, Hyderabad V. Ikram Ahmed, (Writ Petn No, 2503 of 1877 Judgment D/. 17-11-1978) 68, Mr, Jagannadha Rao, learned counsel for the petitioner placed reliance also on another decision of Madhya Pradesh High Court in Gurusharansingh v. Rewa Transport Services, where the court was concerned with the question whether a claim for minimum wages payable under the Minimum Wages Act, 1948 could be made under S. 20 of the Act or under S. 15 of the Payment of Wages Act. That Court held that the claim is entertainable under S. 20 of the Minimum Wages Act and not under Sec. 15 of the Payment of 'Wages Act It must, how ever, be Pointed out that the court was not there concerned with the question whether a petition under S. 33-C (2) of the Industrial Disputes Act was barred in view of S. 20 or any other Provision of the Minimum Wages Act. 69. In Municipal Committee, Tarntarn v. State of Punjab, the contention raised was that the Minimum Wage denied by the Municipal Committee to its employees should be adjudicated only by the Authorities under the Minimum Wages Act and that it cannot be referred to an Industrial Tribunal by the Government under S. 10 (1) (d) of the Industrial Disputes Act was repelled and It was held (at p. 371 of AIR): "It is no doubt true that the work men could claim the difference between the minimum wages fixed by the Government and the amount Paid by the Committee for the period in dispute viz., 12 May 1960 to 1 June 1961 by filing an application under S. 20. The contention that the present dispute could only be decided by the authorities under the Minimum Wages Act has no force......" It further held that the decision of the Supreme
Court in Bombay Gas Co. Ltd. v. Gopal Bhiva, . supports the view t that the Industrial Tribunal has jurisdiction to adjudicate upon the present dispute despite the fact that it could also be decided under the Minimum Wages Act. In that decision, the Court was not concerned with the question whether a petition under S. 33-C 12) was entertainable in respect of a claim for minimum wage, That decision, however. indicates that even if the matter was entertainable under the Minimum Wages Act, the jurisdiction of the other Authorities to entertain such a claim is not barred. Though this decision supports the petitioner's contention that there could he a reference under S. 10 (1) with respect to a claim for minimum wage the question whether a petitioner under S. 33-C (2) lies or not in respect of statutory minimum wage was neither raised nor considered in that decision. It cannot, therefore, he treated as an Authority for the proposition: such a petition is not entertainable under S. 33-C (21 of the Industrial Disputes Act. On the contrary it supports the contention that the Authorities other than those constituted under the Minimum Wages Act could entertain a claim in respect of a matter covered by the Minimum Wages Act. The Bombay Gas Co. Ltd. v. Gopal Bhiva case which arose out of a petition under S. 33-C (2). though the question whether a petition under S. 33-C(2) lies in the face of S. 20 of the minimum Wages Act did not come up for consideration, did lay down that not withstanding the provision contained in Sec. 20 of the minimum Wages Act.. the remedy and the procedure under the Industrial Disputes Act is not barred. 70. The other decision upon which reliance was placed by Mr. Jagannadha Rao, learned counsel for the petitioner was Associated Cement Co, v, Labour Inspector, . In that case the proceedings originated upon an application under S. 20 (21 of the Minimum Wages. Act filed by the Labour Inspector of the Central Government at Coimbatore before the Authority constituted under S. 20 (1) of the minimum Wages Act. In that petition a direction was sought for payment of remuneration for the work done on a day of rest at a rate not less than the overtime rate. The question whether a petition under S. 33-C 121 of the Industrial Disputes Act lies before a Labour Court in respect of such a claim or not was neither raised nor considered. The reasoning in these several cases upon which reliance is placed by Sri V. Jagannadha Rao, learned counsel for the petitioner does not therefore impel us to hold that a petition under S. 33-C (2) does not lie far the recovery of the difference in the actual wage paid and the minimum wage payable under the Minimum Wages Act. None of these decisions in our view supports the contention that the Labour Court has no jurisdiction to entertain a claim for payment of the statutory minimum wage under S. 33-C (2] of the Industrial Disputes Act. On the contrary Several High Courts have taken the view that the jurisdiction of the Authority under the minimum Wages Act and the jurisdiction of a Labour Court under S. 33-C (2) of the industrial disputes Act to entertain a claim for the minimum wage assured to workman Under the Minimum Wages Act is accordingly available to the workman and there is nothing in the Minimum wages Act which takes away the jurisdiction of the Labour Court to entertain a petition in this behalf. It is for the employee to choose one or the other forum. 71. In Ambika Tobacco Co. v. Labour Court (1968) 2 Lab LJ 353 (Bom) a contention was raised that by virtue of the provisions of the Minimum wages Act, the remedy under S. 33-C (2) of the Industrial Disputes Act is impliedly barred. Dealing with that contention the Bombay High Court held: "In our opinion when the object of incorporating a provision like Ss. 33-C(1) and 33-C (2) in the Industrial Disputes Act by the Amendment Act of 1956 was to provide an easy and inexpensive remedy far an individual workman. emphasis being on the rights of an individual workman. we do not see any cogent reasons why recourse to the Labour Court should be considered excluded by implication from the provision of the Minimum Wages Act.' 72. A Division Bench of the Mysore High Court in Athani Municipality v. Presiding Officer. 1968 Lab IC 797:(AIR 1968 Mys 150) dissenting from the view expressed by the Madhya Pradesh High Court in Laksman Tulsiram c. Davalal Meghji and Co. with reference to the
contention that the Labour Court being a court of general jurisdiction, a petition under S. 33-C (2) does not lie with respect to a claim under the minimum Wages Act while holding that the Labour Court cannot be regarded as a court of general jurisdiction and that it was as much a special tribunal as the authority appointed under S 20 of the minimum Wages Act held (at pp. 153 of AIR): 'Each of these special Tribunals has jurisdiction in respect of matters special fled in the enactments constituting them and in any other enactment. There may be overlapping of jurisdiction of these Special Tribunals, over some matters, There is nothing strange or unusual in more than one forum to adjudicate upon a certain matter a party can approach any of those forums unless the jurisdiction of either of them is barred expressly or by necessary implication." That Bench also observed that the decision of the Supreme Court in Bombay Gas Co. Ltd. v. Gopal Bhiva (19631 2 Lab W 608: AIR 1961 SC 752, supports the view that the Tribunal under the Industrial Disputes Act have jurisdiction to adjudicate upon the disputes coming within the scope of that Act despite the fact that such disputes could also be decided under the Minimum Wages Act. 73. In Inder Singh v. Labour Court, Jullundur, the Punjab High Court held (at p. 323 of AIR): "...neither Sec, 22 of the 1938 Ad nor S. 24 of the Wages Act bars the jurisdiction of the Labour Court under S. 33-C (2) to try a claim of this type in so many words. The Punjab High Court further observed: "The Labour Court appears to have gone entirely in holding that though there was no statutory bar to the jurisdiction vested in the Labour Court by S. 33-C (2) of the Act, some kind of implied bar, on general principles could be created in the way of the petitioners 74. In Shamanugger J. F. Co. Ltd. v, S. Modak, AIR 1949 FC 1 50 were the workmen had raised a dispute regarding wages due to them during the period of a lack-out and the Government had referred the said dispute under Section 10 of the Industrial Disputes Act to the industrial Tribunal. the employer contended that as this claim could be determined under S. 15 of the Payment Of Wages Act, 1936, the jurisdiction of the Industrial Tribunal to go into the question of such wages was barred. Rejecting the contention Of the employer the Federal Court held: "The only additional argument urged before us was that claim to such payment should be determined under the Payment of Wages Act, because Sec. IS of that Act creates the Tribunal and under 5. 22 (d) of the Act. the jurisdiction of Civil Courts to hear suit for wages is excluded. In our opinion this argument is unsound. Sec, 22 (d) only prevents a suit for wages. It does not exclude other proceeding permitted by law to enforce payment......" 75. In Anthani Municipality v. Presiding Officer, 1968 Lab IC 797 : (AIR 1968 Mys 150 with specific reference to Section 24 of the Minimum Wages Act it was held (at p. 152 of AIR): "As the claims of the employees for wages for overtime work and for work on weekly off-days. amount to claims for money which they are entitled receive from the employer, there is no reason why such claims should not fall within the ambit of S. 33-C (2) of the Industrial Disputes Act, There is nothing in S. 33-C (21 to exclude claims that can or could have been enforced under S. 20 of the Minimum Wages Act. Section 24 of the Minimum Wages Act bars only the jurisdiction of Civil Courts to entertain suits in respect of such claims, and does not purport to bar the jurisdiction of the Labour Court under Section 33-C (2) of the Industrial Disputes Act." 76. In view of the above discussion the contention based on the decision of the Supreme Court in Premier Automobiles v. K. S- Wadke. that the claim for Minimum Wages order the Minimum
Wages Act falls under the third category of cases viz.. "Where a statute creates a liability not existing at common law- and gives also a particular remedy for enforcing it....with respect to that clause it has always been held that the party must adopt the forum or remedy given by the statute". cannot be upheld, That statement made with reference to the jurisdiction of Civil Court with respect to a right cannot be applied in determining whether a petition under S 33-C (2) lies with respect to the claim for computation of the amount due to workmen in accordance with a special statute like the Minimum Wages Act, The right. having been vested under statute, no question of fresh adjudication of that right arises. Section 33- C (2) is comprehensive enough to include a claim for payment of statutory minimum wage assured to the workman. There being nothing in the Minimum Wages Act taking away the jurisdiction of the Labour Court to entertain such a claim the bar of jurisdiction cannot necessarily be implied. In our view the Supreme Court in Premier Automobiles v. K. S. Wadke, did not lay down that a right created by a special enactment which also creates a forum takes away the jurisdiction of an Authority constituted by another enactment to entertain claim for enforcement of such right by necessary implication. 77. Thus we find ourselves unable to agree with the basic contention of the learned counsel for the petitioner that the Industrial Disputes Act being a general law the provisions of the Minimum wages Act being provisions of special law would override the provisions of the Industrial Disputes Act, 78. Another contention raised by Mr, Jagannadha Rao, learned counsel for the petitioner at the time of hearing was that inasmuch as the definition of an "Employee" under S. 2 (i) of the Minimum Wages Act is different from the definition of "workman" under S. 2 (k) of the Industrial Disputes Act and in as much as the minimum Wages Act applies only to "Schedule Employment" and not to every "Industry" contemplated by Industrial Disputes Act, the present petition under S. 33-C (2] of the Industrial Disputes Act is not maintainable. But it is seen that the employees had not raised any such objection before the Labour Court- nor has he raised any objection before this Court that the petitioner did not answer the description of "Workman" within the meaning of the industrial Disputes Act, The claim of such of the employees who also fulfill the definition of "Workman under the Industrial Disputes Act for minimum wage is certainly entertainable under S 33-C (2) of the Industrial Dispute, Act. Whether claim of an employee within the meaning of the Minimum Wages Act who is not a workman is entertainable or not under Section 33-C (2) is a matter with which we are not directly concerned and were train from expression any opinion in this behalf. 79. We may, however, add that all such employees are defined under the Minimum Wages Ad and who also answer the description of the "workmen" .,defined under the Industrial Disputes Act are undoubtedly entitled to invoke S.33-C (2) of the Industrial Disputes Act to enforce their claim for minimum wages as also the minimum bonus. Further, we make it clear that it was not contended before the Labour Court or now before us that any of the respondents herein are not "Workmen" within the meaning of the industrial Disputes Act or that the Establishment in which they were working is not an "industry" within the meaning of the Act. The petition claiming wage is, therefore maintainable S. 33-C (2] of the industrial disputes Act, Nothing contained in the Minimum Wages Act bars the jurisdiction of the Labour Court to entertain such a petition. 80. To sum up: The minimum bonus under the Payment of Bonus Act and the minimum wage under the Minimum Wages Act are respectively rights vested in an employee under a statute. The right to receive the minimum bonus and the minimum wage constituted an existing statutory right. For the enforcement of these rights, an employee can certainly file an application under Section 33-C (2) of the industrial Disputes Act before a Labour Court, and the Labour Court is competent to compute the amount due to the employee in this behalf. A claim for the payment minimum bonus cannot constitute an industrial dispute within the meaning S. 22 of the Payment of Bonus When such a claim is made by an employee, it is not necessary that Should be referred for adjudication by an industrial Tribunal. The Labour Court has jurisdiction to entertain . a petition under S. 33-C (2) of the Disputes Act in this behalf and determine the amount due. 81. The Labour Court has also jurisdiction to entertain a petition under Section 33-C (2) for the minimum wage to an employee under the Minimum Wages Act. The existence of any other remedy for determination
and recovery of minimum wage or minimum bonus does not bar the jurisdiction of the Labour Court to entertain a petition under S. 33-C (2) of the Industrial Disputes Act. In the course of such determination, the Labour Court has jurisdiction to decide all questions incidental thereto and award such amount as the employee is found entitled to, The mere denial of the statutory fight or any objection on the part of the employer to the jurisdiction of the Labour Court to entertain such a petition is, untenable, No writ of prohibition or any other direction restraining the Labour Court from proceeding with the petition under S.33-c (2) can therefore be issued. 82. In our view of the following discussion, this writ petition falls and is accordingly dismissed with costs. Advocates fee Rs. 250/83. Petition dismissed.
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Anand Oil Industries Vs Labour Court, Hyderabad and Ors. On 28 December, 1978

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Anand Oil Industries Vs Labour Court, Hyderabad and Ors. On 28 December, 1978

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Anand Oil Industries vs Labour Court, Hyderabad And Ors.

Indian Kanoon - http://indiankanoon.org/doc/177058/

Indian Kanoon - http://indiankanoon.org/doc/177058/

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