Jiwaji Rao Sugar Factory vs J.M. Benerji

H.R. Krishnan, J.—This is an application in revision by the defendant employer from the judgment of the appellate Court setting aside the judgment of dismissal by the trial Court, and awarding a decree for part of the claim, in favour of the plaintiff-employer. The only point of law at that stage was that the trial Court had held that claim had been, time barred while the appellate Court held that the suit being governed by Article 115 and not 102 of the Limitation Act, was not time barred. For reasons that will presently appear, it is unnecessary to go in this issue now. A new point of law has been raised in revision; u/s 22 of the Payment of Wages Act, 1936, the claim of the employee in the present case was cognizable solely by the authority for the payment of wages, and therefore the Civil Court had no jurisdiction. It is urged on be half of the appellant-employer that it is a case of absolute ban and basis want of jurisdiction, which cannot in any event be cured by acquiescece.

The facts which are relevant for our consideration are that in 1950 the plaintiff non-applicant was in the employment of the applicant on a pay of 69/- per month. There was a strike in the factory of the applicant in that year. It was illegal and, as the plaintiff had taken part the applicant dismissed him by an order passed on the 7-9-1950. The plaintiff contended that he was entitled to his pay for more than four months that is from May to that date, and besides certain allowances most of which, however, have been refused by the first appellate Court. The employer''s contention now is that, firstly, the employer was drawing a pay less that the limit prescribed under the Payment of Wages Act and, secondly, that the claim is for "delayed wages" as defined in that Act. Accordingly, Section 22 of that Act is attaracted and the jurisdiction of the Civil Court is "barred" absolutely. The plaintiff non-applicant opposes this, firstly, by pointing out that this new ground is raised at a very belated stage, the employer having acquiesced in all the earlier; stages secondly, Section 15 of the Payment of Wages Act speaks of "delayed" wages and not of "refused" wages; accordingly, Section 22 has no application in this case and the Civil Court had jurisdiction.

Ground No. 1-

There is no doubt or controversy about the employer being an industrial establishment (Sugar mill), the wages of the plaintiff falling well below an average of 400/- per month, and the claim being for wages as defined in Section 2 (vi):-

''Wages'' means all remuneration......... expressed in terms of money... ... ... which would, if the terms of employment express or implied were fulfilled be payable to a person employed in respect of his employment. .... ... ...

It is also common ground that for the period concerned, the employee made his demand and was categorically refused by the employer. Strictly speaking, the word ''delay'' means failure on the part of the person that is liable to pay, to make the actual payment at appointed time, whether he accepts his liability to pay, but is unable or unwilling to do so for some other reason, or whether he denies his liability. In the popular sense, the first would be "delay", and the second "refusal".

Section 22 (d) bars suits for the recovery of wage or deduction in So far as the claim could have been recovered by an application of Section 15. For our purpose, the following part of the latter Section is relevant:-

15 (2) ... ... where contrary to the provisions of this Act ...... any payment of wages has been delayed, such person himself ... ... ... may apply to such authority for a direction under sub-section (3).

(3) When any application under sub-section (2) is entertained, the authority shall hear the applicant and the employer ... ... ... and ... ... ... may, without prejudice to any other penalty, to which such employer is liable under the Act, direct the refund to the employed person ... ...... the payment of the delayed wages together with payment of such compensation as the authority may think fit.. ... ...

One of the proviso is in regard to the "compensation" Thus, in the present case, the Civil Courts jurisdiction is excluded only if the Words "delayed wages" also included "refused wages". While there has been some difference of opinion between the High Courts in this regard the High Court of Nagpur, is definitely of the view that ''''delayed wages'''' included "refused wages". The earliest ruling on this point cited at the Bar is AIR 1945 195 (Lahore) which holds:-

Delayed wages can only mean wages which are admittedly due, but the payment of which has been postponed on some excuse of another. Hence any bonafide disputes as to the amount payable are to be tried by the Civil Courts, for otherwise there would be no authority capable of making an order for payment when the amount is in fact due.

Apart from the fact that view is based on what I would call the popular or loese usage of the word "delay", it also involves a fallacy that u/s 15, a bonafide dispute as to the laiblity of the employer for the claim cannot be tried by the authority. Actually, the authority has been directed to hear both parties and held an inquiry and there is no reason to assume that the Legislature intended that the authority should in no event decide such a dispute. This aspect of the matter has been discussed in A.R. Sarin Vs. B.C. Patil and Another, which holds that in regard to the decision of the liability of the employer, to pay wages under the terms of the contract is concerned, the authority has jurisdiction. Generally speaking, the distinction made by the Lahore High Court is not accepted by other High Courts and at all events, not by this High Court. The question came up in AIR 1953 136 (Nagpur) , and it was held:-

Proviso (a) to Section 15 (3) does not suggest that any bona fide disputes as to the amounts payable are to be tried by the Civil Courts. On the other hand, it wants the authority to satisfy itself if the delay was due to a bona fide error or bona fide dispute as to the amount payable to the employed persons. The proviso prohibits only the making of a direction for the payment of "Compensation" in the case of delayed wages and does not prohibit the making of a direction regarding the refund of the amount deducted or the payment of the delayed wages.

The Lahore view has been expressly dissented from and the Bombay view followed. This is a Divisional Bench case and there is nothing in the argument or the case-law placed by the employee that would justify this Court in making a reference to a fuller Bench for reconsideration of this view. Thus, I would hold that whatever the cause for the delay in the payment of the claim, the jurisdiction of the authority u/s 15 of the Act becomes absolute, and exclusive udder Section 22.

Ground No. 2

The employer has taken this new point of law in revision having up to that stage acquiesced in the jurisdiction of the Civil Courts. But as this is a case of intrinsic or basic want of jurisdiction the defect is not curable by acquiescence. In all such cases we have to decide whether the want of jurisdiction is absolute and intrinsic or is one which is dependent upon the protest or nonacquiescence of the party. This distinction is so generally accepted that it is unnecessary to set out the case-law. Every-thing would depend upon the nature and the form of exclusion; but if it is absolute, then any amount of acquiescence cannot give jurisdiction. The wording of Section 22 which has already been noted makes it an absolute want of jurisdiction. The word used is "shall" and the heading is "bar of suits". Any doubt, in this regard is clearly by what has been said in AIR 1953 Nagpur 136 (supra):-

The exclusion of the jurisdiction of the Civil Court u/s 22 (d) is absolute. When the Court has no inherent jurisdiction over the subject-matter of the suit, the parties cannot by either mutual consent or waiver, convert it into a proper judicial process.

The result is that it is held that the Civil Courts had no jurisdiction from the very beginning. The plaint-should be returned by the trial Court to the employee non-applicant for being presented, if he cares to, before the appropriate tribunal. It is unnecessary in this proceeding to say anything about the applicability of Section 14 of the Limitation Act to future proceedings.

The employer non-applicant has raised this point of law at a delated stage while it was open to him to raise it in the trial Court. He shall, therefore, pay the employee non-applicant his costs, and pleader''s fee in all the Courts including the present one.