Saudagar Mian and Others vs Heavy Engineering Corporation Ltd. and Others

Shambhu Prasad Singh, J.—This appeal from the appellate decree is by the plaintiffs, other than plaintiff No, 14. Originally, they were appointed by defendant respondent No. 1 as crane operators on the construction side and placed under different grades with different scales of pay. Certain dispute arose between the workmen, represented by the union, and the employer, respondent No. 1, and there was a conciliation proceeding. As it appears from Ext. B, dated 10th of February, 1964, the workmen and the employer arrived at a settlement. The settlement arrived at with regard to temporary regular workers is contained in paragraph 4 of that document and is as follows:

Temporary regular workers be made regular and all facilities enjoyed by the regular workers be extended to them:

It was agreed that the temporary regular workers for this purpose be divided into two categories.

Category 1: All such temporary regular workers as are skilled in those trades as may be required in production shall be absorbed according to the vacancy arising in the production side.

Category 2: All such temporary regular workers as are skilled in those allied trades which would normally be not required on the production side shall be reoriented in allied trades required in connection with production side shall be absorbed as regular workers.

The management will also give preference in conversion from construction to production to its construction workers over all outside recruitments. But due to the magnitude of the manning problem recruitments and placements may be concurrent.

Pay of construction workers earmarked for production will be safeguarded from the date that this conversion is decided upon, though such workers may be kept on construction until their services can be spared for production. Seniority, however, will count from the date when a worker joins as an employee of the H. E. C.

Production in this context means production, maintenance, operation and such other jobs as may be connected with the regular functioning of the factory or the industry.

Circular No. 22/64 dated 11th of March, 1964 was issued by the secretary of respondent No. 1 pursuant to the agreement reached between the workmen and it with regard to temporary regular workmen. The appellants were working as temporary regular workmen on the construction side and Nos. 1 to 4 of them were transferred from the construction side to the production side sometime in June, 1963. Appellants 5 to 13 were transferred from the construction side to the production side sometime in May, 1964 and were placed in different shops of respondent No. 1. The case of the appellants is that in the order of transfer they were put in grades different from those as shown in the office orders, by which they were transferred from the construction side to the production side and, on a verbal protest made by them, respondent No. 1 and its officers corrected the mistakes with regard to gradation of the appellants. Accordingly, office order No. SE (Maint)/3(228)/64-1954 dated 29/30 June, 1964 was issued correcting the mistakes in the gradation of the appellants. Respondent No. 1 also advertised certain posts by Ext. 3. Applications were to reach it by 7th of October, 1963. In this advertisement, different grades of pay scales were referred to and it was stated that the pay of the appointees would be fixed in one of those scales of depending on their experience and qualifications, and result of the interview. Applications for posts of crane operators were also invited by the said advertisement. According to the appellants, they were entitled to scales of pay according to their gradations and scales of pay mentioned in Ext. 3, inasmuch as there were eight grades of employees and eight scales of pay. Their request for payment to them according to the said pay scales having been turned down by respondent No. 1 they instituted this suit claiming a declaratory decree that they were "entitled to the pay (wages) according to the gradations of the production side of the defendant No. 1 in H. M. B. P. as notified by office order No. SE (Maint)/3 (228) G-4-1964 dated 29/30-6-64".

The defence of respondent No. 1, relevant for the decision of this appeal, was that there were only four grades of crane operators and not eight, as claimed by the appellants. Pay scales Nos. 5 to 8 of Ext. 3 only were applicable to the crane operators, grade Nos. I A, IB, 2 and 3 getting scales Nos. 5, 6, 7 and 8, respectively. It was further averred that the suit was not maintainable before a civil Court and it was also barred by Section 34 of the Specific Relief Act (Act 47 of 1963), because the appellants did not claim any consequential relief in the shape of arrears of pay to which they were entitled according to them.

The trial Court decreed the suit holding that it was maintainable before a civil Court; it was not barred by Section 34 of the Specific Relief Act, and on merits also the appellants were entitled to the declaration prayed for. On appeal, the lower appellate Court has reversed the findings of the trial Court on all the aforesaid three questions. According to it, the suit was not maintainable before a civil Court as it was barred by Section 34 of the Specific Relief Act. It further found that the plaintiffs, other than plaintiff No. 14 (Brindaban Samuel), had no case on merits, and had it found that the suit was maintainable and not barred by Specific Relief Act it would have remanded it to the trial Court for rehearing of the case of the plaintiffs. The appeal before the lower appellate Court was filed late and, before issuing notice of it, the delay was condoned u/s 5 of the Limitation Act. No notice of the petition for condoning the delay was issued to the plaintiffs, who were respondents before that Court at that time. Therefore, when they appeared after the final hearing of the appeal before the lower appellate Court they contended (sic). The learned Additional Judicial Commissioner who heard the appeal took the view that the delay was rightly condoned.

Mr. Lalnarain Sinha, appearing for the appellants, has contended that the Court of appeal below has erred in holding that the suit was not maintainable before a civil Court, the delay was rightly condoned and the appellants before this Court had no case on merit. He has conceded that the finding of the lower appellate Court that the suit was barred by Section 34 of the Specific Relief Act was correct but has submitted that it was a fit case where the prayer of the appellants for amending the plaint by adding a consequential relief (for which they have filed a separate petition before this Court) should be allowed. Mr. K D. Chatterji, appearing on behalf of the respondents, has supported the judgment of the lower appellate Court on all points. He has further contended that it is not a case where amendment of the plaint should be allowed at the second appellate stage.

The main and real question which arises for decision in this appeal is whether the suit could be instituted before a civil Court. According to Mr. Sinha, the claim of the appellants was based upon a contract between them and respondent No. 1, and, therefore, the suit would lie before a civil Court. According to Mr. Chatterji, the suit was not maintainable before a civil Court, because of the provisions of Section 33C(2) of the Industrial Disputes Act and Section 22(d) of the Payment of Wages Act. One of the principles governing the determination of the question how far the jurisdiction of the ordinary civil Court is taken away with respect to matters which are entrusted to special tribunals constituted by the Legislature is that where a statute creates a new right not existing at common law and specifies a particular mode in which it is to be enforced, that bars by implication the jurisdiction of civil Courts. Neither Mr. Sinha nor Mr. Chatterji challenged the correctness of the aforesaid principle, but Mr. Sinha contended that on the facts of this case the principle was not applicable. On the other hand, the contention of Mr. Chatterji is that the principle is applicable. In order to appreciate the arguments advanced before us by counsel for the parties, it is necessary to quote Section 33C of the Industrial Disputes Act in extenso:

33C (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A, the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue.

Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:

Provided further that any such application may bb entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not. making the application within the said period.

(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government.

(3) For the purposes of computing the money value of a benefit, the Labour Court may, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case.

(4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in Sub-section (I).

(5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made en behalf of or in respect of any number of such workmen.

Explanation:�In this section ''Labour Court'' includes any court constituted under any law relating to investigation and settlement of industrial disputes in force in any State.

It is not disputed on behalf of the appellants that the question raised in the suit could be decided by a Labour Court under Sub-section (2) of Section 33C, but the contention of Mr. Sinha is that as the right which the appellants are claiming has not been created by a statute, this is, the Industrial Disputes Act, Section 33C(2) does not take away the jurisdiction of the civil Court to decide the question raised. He also emphasised on the use of words "without prejudice to any other mode of recovery" in Sub-section (1) of that section. In my opinion, Section 33C(1) applies where there is no dispute as to the amount of money due to a workman from an employer. Once any question arises as to the amount of money due, it is Sub-section (2) of that section which has got application and not Sub-section (1). True it is that Sub-section (4) lays down that the decision of the Labour Court under Sub-section (2) shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in Sub-section (1). But that Sub-section makes Sub-section (1) applicable only after the amount is determined and not before that. It is doubtful whether after the amount is determined under Sub-section (2) and the decision is forwarded to the appropriate Government by the Labour Court under Sub-section (4) the workman can resort to any other mode of recovery referred to in Sub-section (1). But even if it be assumed that the workman, after the amount is determined by a Labour Court under Sub-section (2), can realise the amount by other modes of recovery, that is not of any real help to the appellants, because the question arises as to the amount of money due to a workman and whether the question can be determined only by a Labour Court or may also be determined by an ordinary civil Court. The answer to that question will depend on whether the right which the appellants are claiming is on account of the Industrial Disputes Act or independent of it. If it is independent of it, the suit of the appellants is maintainable, but if it is not independent of it then the suit is not maintainable, and the only remedy open to line appellants is to make an application before the appropriate Labour Court under Sub-section (2) of Section 33C.

It has already been noticed earlier that the appellants were transferred from construction side to production side and absorbed from temporary posts to permanent posts on the basis of a settlement arrived at a conciliation, as evidenced by Ext. B. The settlement was not between the appellants individually and respondent No. 1 but between the union of the workmen and respondent No. 1. But for the provisions of the Industrial Disputes Act, the settlement would not have bound the appellants and, if it did not bind them, they could not have enforced it against respondent No. 1 for want of reciprocity. The right, in my opinion, therefore, which the appellants are claiming is there on account of the provisions of the Industrial Disputes Act and is not independent of it. As it is a creation of that statute and it also provides a remedy for it u/s 33C(2), the lower appellate Court has rightly held that the suit was not maintainable before the civil Court.

It has further been contended by Mr. Sinha that there was a fresh contract between the appellants and respondent No. 1 before they took over on the production side and under that contract they are entitled to the scales of pay claimed by them. The appellants were already working under respondent No. 1. There is nothing on the record to indicate that on their transfer to the production side they had to perform heavier duties. In the circumstances, any assurance on the part of respondent No. I to increase their pay scales on the basis of the settlement arrived at the conciliation proceeding cannot be held to be a fresh contract as there was no consideration for it. Thus, there is no substance is this contention of Mr. Sinha.

Mr. Sinha has relied on the decisions in Rivera Steam Navigation Company Ltd. v. Inland Steam Navigation Workers'' Union 1964 I LL J 98 and Tata Chemicals Ltd. and Others Vs. Kailash C. Adhvaryu, . The decision of the learned single Judge of the Gujarat High Court does not relate to interpretation of any provision of the Industrial Disputes Act. It deals with the scope of Section 13Aofthe Industrial Employment (Standing Orders) Act, 1946, and has held that Section 13A provides only for reference of a question as to the application or interpretation of a standing order certified under the Act and the Labour Court by that section is not invested with the power to grant relief in enforcement of the rights and liabilities created by the standing orders. In the case of Rivers Steam Navigation Company, Ltd., the learned Judges of the Calcutta High Court were dealing with Section 36A of the Industrial Disputes Act. With reference to Section 33C of the Act, they observed that as the suit from which the appeal before them arose was not a suit for recovery of money either directly or by way of computation of any benefit, the said section would not apply to bar that suit. As observed earlier, it has been conceded by Mr. Sinha that but for an amendment the suit was barred by Section 34 of the Specific Relief Act and it was necessary to get the plaint amended to claim money from respondent No. 1. As the suit really was one for money, the present suit is barred by Section 33C(2) of the Act. The two decisions, therefore, are not of any real help to the appellants. As Section 33C(2) of the Act bars the suit, the other argument of learned Counsel for the respondents that it is also barred u/s 22(d) of the Payment of Wages Act need not be discussed.

The delay in filing the appeal before the lower appellate Court was condoned on the ground that it occurred on account of the mistake of the counsel who filed the appeal. The counsel himself filed an affidavit admitting his mistake. He thought that the appeal would lie to the High Court and to the Court of the Judicial Commissioner, Chota Nagpur, and under that belief kept the file with him for more than thirty days, where after he realised that the appeal was to be filed there. True it is that the change in the law by which the appeal was to be filed before the Judicial Commissioner had been introduced by amendment of the statute, the Bengal, Agra and Assam Civil Courts Act, many years ago. But there can be no doubt that the mistake was that of a lawyer and there was no laches on the part of the party. To err is human, and sometimes even competent lawyers do commit mistakes. In my opinion, therefore, it is not a case where this Court should interfere with the judgment of the lower appellate Court condoning the delay in filing the appeal.

Having hi Id that the suit itself could not lie before the civil Court, I do not consider it necessary 10 go into the question whether the judgment of the lower appellate Court is correct on merits of the case or not. In the circumstances, when the suit itself is not maintainable, no useful purpose will be served by allowing amendment to the plaint, and the application is rejected.

In the result, the appeal fails and is dismissed but, in the circumstances of the case, without costs.

Kanhaiyaji, J.

I agree.