Vidarbha Sahitya Sangh vs Hiraman Nathuji Dhange and Others

P.B. Varale, J.—The present petition filed by the petitioner-Vidarbha Sahitya Sangh through its Secretary challenges the order/award dated 17.01.2004 passed by the learned 1st Labour Court, Nagpur in IDA No. 27/1997.

The brief facts, which give rise to filing of the present petition, can be summarized as under :--

"The applicants before the learned Labour Court, Nagpur and the respondents before this Court, filed an application under Section 33C(2) of the Industrial Disputes Act, 1947 seeking the difference of unpaid minimum wages to the applicants. It was submitted in the application that the applicants were working as Sewaks/Peons. The application was filed along with the chart showing the details of the applicants receiving the wages from the respective period of each of the applicant and the unpaid wages as well the difference of the unpaid wages to these applicants. The applicant No. 1-Hiraman Dhande claimed unpaid minimum wages to the tune of Rs. 41,626.15 for the period from January, 1972 to December, 1996. The applicant No. 2-Anandrao Mustbaile claimed the difference at the rate of Rs. 46,266.05 and applicant No. 3-Metha Rangari claimed the difference of wages to the tune of Rs. 40,618.38, in total the claim in respect of all these three applicants was Rs. 1,28,510.58. The claim of these applicants was resisted by the petitioner by filing written statement on the grounds that the applicants are not workmen. The petitioner is not an industry within the meaning of provisions of the Industrial Disputes Act and the claim lodged by these applicants is stale claim and hopelessly barred by limitation."

The learned Judge, Labour Court, Nagpur, on appreciation of the material namely the documents filed on record on behalf of the applicants and the oral evidence of applicant-Hiraman for himself and on behalf of the other applicants as well the oral evidence of Shri Manohar Mhaisalkar, the then Secretary of the petitioner, by framing the issues in respect of the entitlement of the applicants'' claim, arrived at a conclusion that the petitioner failed to satisfy the claims of these applicants in respect of unpaid wages and allowed the application with direction to the petitioner to pay the dues of the applicants towards the difference of wages along with the interest at the rate of rupees six per annum from the date of application till its realisation. Perusal of the record shows that during the pendency of the petition, the respondent Nos. 1 and 2 expired and the petition is prosecuted at the instance of their legal representatives.

Shri Nilawar, the learned Counsel appearing on behalf of the petitioner though raised the grounds in challenge to the impugned order and award, namely the learned Labour Court ought not to have entertained the application as it was beyond the scope of Section 33C(2) and the enquiry as contemplated under Section 33C(2) is only for computation of money where the entitlement is not disputed; whereas the petitioner raised dispute over the entitlement of the application, his thrust was on the ground that the claim submitted by the applicant i.e. respondents in the present petition was wholly time barred and was a stale claim. Shri Nilawar, the learned Counsel submitted that the applicant No. 1-Hiraman before the learned Labour Court claimed the unpaid difference of wages from January, 1972 to December, 1996. The application was filed on 06.02.1997. He submitted that there was no material brought by these applicants in support of their claim. He also submitted that as the other applicants i.e. applicant Nos. 2 and 3 were not subjected to any examination for their oral testimony, there was no material in support of their claim. The learned Counsel for the petitioner further submitted that as the petitioner-Trust is not carrying out any commercial activities, the petitioner is not in a position to satisfy the order passed by the learned Labour Court directing the petitioner to pay the amount of difference of wages to the tune of Rs. 1,28,510.58 along with the interest. Shri Nilawar, the learned Counsel for the petitioner, in support of his submission, placed reliance on the judgments of this Court in the cases of Deputy Engineer, Zilla Parishad, Umred and Others Vs. Shantaram Ramaji and Others, (1996) 5 BomCR 504 : (1997) 2 LLJ 262 : (1996) 2 MhLj 116 ; S.A. Shaikh Vs. Union of India (UOI) and Others, (2002) 4 ALLMR 482 : (2002) 5 BomCR 464 : (2002) 95 FLR 749 : (2002) 3 MhLj 544 ; Medley Laboratories (P) Ltd., Mumbai and Another Vs. Alkem Laboratories Limited, (2002) 3 ALLMR 18 : (2002) 4 BomCR 70 : (2002) 3 MhLj 546 ; the judgments of Kerala High Court in the cases of Pakkiyam Vs. Executive Engineer and Others ; Madhava Rao M. Vs. Appellate Authority (Executive Committee), State Bank of Travancore and Others, (2002) 94 FLR 1210 : (2002) 3 LLJ 975 ; and the judgment of Pnujab and Haryana High Court in the case of Municipal committee, Mansa v. Presiding Officer, Labour Court, Bathinda and another (reported in 1997 LAB I.C., 1342).

Per contra, Shri Nighot, the learned Counsel appearing on behalf of the respondents supported the order and award passed by learned Labour Court. The submission of the learned Counsel for the respondents is that the issue in respect of the petitioner being a commercial establishment under the provisions of Bombay Shops and Establishments Act, 1948 and the liability of the petitioner on the backdrop of the claim of these applicants for unpaid wages is properly considered by the learned Labour Court and the learned Labour Court gave a finding in favour of the respondents i.e. the applicants before the learned Labour Court. Shri Nighot, the learned Counsel for the respondents further submitted that there is a fallacy in the submission of the petitioner that the claim of the respondents was time barred and ought not to have been entertained by the learned Labour Court. He submitted that there is no prescription of any time limit for entertaining the claim under Section 33C(2) of the Industrial Disputes Act and as such the learned Labour Court was justified in entertaining the applications and resultantly allowing the applications. He further submitted that the respondents/applicants with support of the oral evidence and the documents placed on record were successful in establishing their claims for unpaid wages to the respondents by the petitioner.

With the assistance of the learned Counsel appearing on behalf of the respective parties, I have gone through the material placed on record as well as the judgments relied upon by the learned Counsel for both the parties.

It will be useful to refer to the oral evidence in the form of testimony of DW-1 i.e. then Secretary of the petitioner Shri Mhaisalkar. In his testimony, Shri Mhaisalkar stated that the applicants were paid as per Minimum Wages Act though the provisions of Minimum Wages Act are not applicable to the non-applicant. In his cross-examination, Shri Mhaisalkar, the then Secretary admitted that the applicants are full time and permanent employees of the non-applicant. He further admitted that a demand was claimed by the applicants for minimum wages before the Government Labour Officer, Nagpur. He then admitted in his cross-examination that the applicants were not paid the wages as per the provisions of the Minimum Wages Act and he started to pay the minimum wages to the employees afterward on humanity ground for five to seven years. He also admitted that no police complaint was lodged for theft of payment register of the employees. It will be interesting to note that this witness submitted that the petitioner is receiving an amount of rupees one lakh per year towards the establishment grants from the State of Maharashtra. From the perusal of the record, it reveals that there is no serious objection raised by the petitioner on the point that the trust is duly registered under the Bombay Public Trust Act and Societies Registration Act and a commercial establishment in view of the provisions of Bombay Shops and Establishments Act, 1948.

As stated above, the thrust of the learned Counsel for the petitioner was on the point that the learned Labour Court ought not to have entertained a stale claim and the claim of the applicants was time barred. Shri Nilawar, the learned Counsel for the petitioner placed heavy reliance on the judgment of this court in the case of Deputy Engineer, Zilla Parishad (Works) Sub-Division, Umred and others v. Shantaram Ramaji and others (cited supra) and this Court in the said matter found that no fault in entertaining the application by the learned Labour Court on the footing that the law of limitation is not applicable to the applications under Section 33C(2). This Court further held that whether the claim is stale or not and whether the claimant has furnished satisfactory explanation in making delayed claim is always a question depending on the facts of each case and no hard and fast rule can be laid down nor any absolute proposition framed as to when an application or claim made under Section 33C(2) would be treated stale or belated or in what circumstances the Labour Court would entertain such claim or hold the explanation reasonable. In clear and unambiguous terms, this Court further held that each case would turn on its own facts and has to be examined on the basis of the facts obtaining therein and the Labour Court or the Industrial court in the facts and circumstances of the case before it has to reach the conclusion whether the facts warrant entertainment of delayed or belated claim or not. It will not be out of place to mention that this Court in the matter of Deputy Engineer, Zilla Parishad (Works) Sub-Division, Umred and others v. Shantaram Ramaji and others (cited supra), with the consent of the Counsel appearing for the employer, remitted the matter back to the Labour Court for fresh decision.

Shri Nilawar, the learned Counsel for the petitioner then placed heavy reliance on the judgment of this Court in the matter of S.A. Shaikh v. Union of India and others (cited supra). In the said judgment, the claim for overtime allowance, night duty allowance, increments and revision of pay fixation for the period from 27th May, 1957 to 24th July, 1964 was filed after lapse of 26 years. On the backdrop of these facts, this court observed that allowing such an application, merely because there is no limitation prescribed under Section 33C(2) was an abuse of the said provisions, there cannot be any dispute on the proposition as reflected in the matter of S.A. Shaikh v. Union of India and others (cited supra). The learned Counsel for the petitioner also placed reliance on the judgment in the matter of Municipal committee, Mansa v. Presiding Officer, Labour Court, Bathinda and another (cited supra). Even in this judgment, the Bench of Punjab and Haryana High Court held that even if no limitation period has been provided for filing of petition under Section 33C(2) of the Act, a workman cannot be permitted to raise any claim for any period whatsoever. Thus, what emerges from this judgment is that the applicant is not restricted to put forth his claim by specifying a period under Section 33C(2) of the Act. On this backdrop, it will be useful to refer to the judgment of the Full Bench of this Court relied upon by the learned Counsel for the respondents. The Full Bench of this Court in the matter of Maharashtra State Road Transport Corporation Vs. Premlal Gajbhiye, (2003) 3 ALLMR 1022 : (2004) 2 BomCR 338 : (2003) 2 LLJ 1108 : (2003) 3 MhLj 1025 , in clear words, observed that as long as the default in performance of obligation continues, the wrong is deemed to have continued and therefore, it is to be taken as a continuing wrong. If the duty continues from day to day, the non-performance of that duty from day to day is a continuing wrong. On the backdrop of the facts in the matter of Maharashtra State Road Transport Corporation, Nagpur v. Premlal Khatri Gajbhiye (cited supra), this Court observed the unfair labour practice by the appellants in continuing the denial of the benefits under Clause 49 of 1956 settlement of the respondents is of recurring nature and till and until such benefits are given, it will continue to recur and, therefore, the complaints filed by the respondents could not be barred by limitation. In the case at hand, it was the obligation of the petitioner to pay the minimum wages to the respondents and depriving them of their minimum wages or the difference of the minimum wages to which they are entitled for successive period is certainly a continuing and recurring wrong. As such, the claim put forth by the respondents (the applicants before the Labour Court) could not have been rejected on the ground of limitation by the learned Labour Court and the learned Labour Court rightly entertained the application and allowed the same.

Shri Nighot, the learned Counsel for the respondents was also justified in placing reliance on the judgment of the Apex Court in the case of The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., AIR 1964 SC 743 : (1963) 7 FLR 141 : (1963) 2 LLJ 89 : (1964) 3 SCR 140 . It will be useful to refer to the observations of the Apex Court in the said matter, as follows :--

"... We have had occasion in the past to emphasise the fact that industrial adjudication should not encourage unduly belated claims; but, on the other hand, no limitation is prescribed for an application under S. 33C(2) and it would, on the whole, not be right for us to refuse an opportunity to the respondents to prove their case only on the ground that they moved the Labour Court after considerable delay."

The learned Counsel for the respondents was also justified in placing reliance in the matter of Bombay Gas Co. Ltd. Vs. Gopal Bhiva and Others, AIR 1964 SC 752 : (1963) 7 FLR 304 : (1963) 2 LLJ 608 : (1964) 3 SCR 709 . The Apex Court observed thus :--

"A claim under S. 33C(2) is a claim for wages within the meaning of the payment of Wages Act. It is, no doubt, somewhat anomalous that a claim, which would be rejected as barred by time if made under the Payment of Wages Act, should be entertained under S. 33C(2) of the Act; but this apparent anomaly does not justify the introduction of considerations of limitation in proceedings under S. 33C(2). It is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting S. 33C(2). The failure of the legislature to make any provision for limitation cannot be deemed to be an accidental omission. In the circumstances, it would be legitimate to infer that legislature deliberately did not provide for any limitation under S. 33C(2). It may have been thought that the employees who are entitled to take the benefit of S. 33C(2) may not always be conscious of their rights and it would not be right to put the restriction of limitation in respect of claim which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is treated as relevant, it is well known that a decree passed under the Code of Civil Procedure is capable of execution within 12 years, provided, of course, it is kept alive by taking steps in aid of execution from time to time as required by Art. 182 of the Limitation Act; so that the test of one year or six months limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims. Where the legislature has made no provision for limitation, it would not be open to the Courts to introduce any such limitation on grounds of fairness or justice. The words of S. 33C(2) are plan and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any considerations of limitation. No doubt, such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may take into account, and if the legislature feels that fair play and justice require that some limitation should be prescribed, it may proceed to do so. In the absence of any provision, however, the Labour Court cannot import any such consideration in dealing with the applications made under S. 33C(2)."

This Court in the matter of J.K. Ginning and Pressing Factory v. The Presiding Officer, Second Labour Court, Akola and others (reported in 1990 (II) CLR, 868) referring to the judgment of the Apex Court in the matter of The Bombay Gas Co. Ltd. v. Gopal Bhiva and others (cited supra), in clear words, rejected the contention that the belated claim under Section 33C(2) of the Industrial Disputes Act ought not to have been entertained by the Labour Court and the Writ Petition filed at the instance of the employer was thus dismissed.

Considering the aforesaid aspects, in my opinion, the challenge raised by the petitioner to the order and award passed by the learned Labour Court being meritless, fails. Resultantly, the writ petition is dismissed.