Full Judgment Text
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PETITIONER:
TOWN MUNICIPAL COUNCIL, ATHANI
Vs.
RESPONDENT:
PRESIDING OFFICER, LABOUR COURT, HUBLI & ORS.
DATE OF JUDGMENT:
20/03/1969
BENCH:
BHARGAVA, VISHISHTHA
BENCH:
BHARGAVA, VISHISHTHA
SHELAT, J.M.
CITATION:
1969 AIR 1335 1970 SCR (1) 51
1969 SCC (1) 873
CITATOR INFO :
R 1970 SC 196 (17)
RF 1970 SC 209 (2,4)
O 1977 SC 282 (21,22)
D 1979 SC1393 (12)
F 1985 SC1279 (3)
O 1992 SC1918 (8)
ACT:
Industrial Disputes Act (14 of 1947), s. 33C(2)-Applications
for payment for overtime work and work done on off days-If
governed by section -No dispute re : rates-Whether
applications governed by s. 20(1) of the Minimum Wages Act
(11 of 1948).
Limitation Act (36 of 1963),Art. 137-If applies to
applications to quasi-judicial bodies.
HEADNOTE:
Applications, in which the claim of the workmen of the
appellant for computation of their benefit in respect of
over-time work and work done on weekly off-days, were
entertained by the Labour Court, under s. 33C(2) of the
Industrial Disputes Act, 1947. The Labour Court computed
the amounts due to the various workmen and directed the
appellant to make the payments. Writ petitions filed by the
appellant in the High Court challenging the decision of the
Labour Court were dismissed. In appeal to this Court, it
was contended that : (1) The jurisdiction of the Labour
Court to proceed with the applications was barred by the
provisions of the Minimum Wages Act, 1948; and (2) Even if
the applications were competent and not barred by the
Minimum Wages Act, they were time-barred under Art. 137 of
the Limitation Act, 1963.
HELD : (1) The Minimum Wages Act is concerned with the
fixing of rates-rates of minimum wages, overtime rates,
rates for payment of work on a day of rest-and is not
intended for enforcement of payment of wages. Under s.
20(1) of the, Minimum Wages Act, in which provision is made
for seeking remedy in respect of claims arising out of
payment of less than minimum rates, or in respect of
remuneration for days of rest, or for work on such days, or
of wages at the overtime rates, the Authority is to-exercise
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jurisdiction for deciding claims which relate to rates of
wages, rates for payment of work done on days of rest and
overtime rates. The power under s. 20(3) of the Minimum
Wages Act given to the Authority dealing with an application
under s. 20(1) to direct payment of the actual amount found
due, is only an incidental power for working out effectively
the directions under s. 20(1) fixing various rates under the
Act. That is, if there is no dispute as to rates between
the employer and the employee and the only question is
whether a particular payment at the agreed rate is due or
not, then s. 20(1) of the Minimum Wages Act would not be
attracted at all, and the appropriate remedy would only be
either under s. 15(1) of the Payment of Wages Act, 1936, or
under s. 33C(2) of the Industrial Disputes Act. [59 D-G; 60
B-C]
In the present case, there was no dispute by the appellant
about the rates put forward by the workmen; and a pleading
by the, appellant in one’ of the applications that the State
Government had not prescribed any rates under the Minimum
Wages Act, did not mean that there was a dispute as to the
rates claimed by the workmen. Therefore, the remedy under
s. 20(1) of the Minimum Wages Act could not have been sought
by the workmen, and hence, the question of the jurisdiction
of the Labour Court to entertain the applications under s.
33C(2) of the industrial Disputes Act being barred because
of the, provisions of the Minimum Wages Act, could not
arise.[61 A-D]
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(2) (a) Though the question of limitation under Art. 137 of
the 1963Act was not raised either in the Labour Court or the
High Court, it could be allowed to be raised in this Court,
because, a question of limitation raises a plea of want of
jurisdiction and is a pure question of law, when it could be
decided on the basis of the facts on the record, and the
respondents had sufficient notice of the question. [55 G-H]
(b) Article 137 of the Limitation Act, 1963 governs only
applications presented to courts under the Civil and
Criminal Procedure Codes. The use of the word ’other’ in
the first column of the article giving the description of
the application as ’any other application for which no
period of limitation is provided elsewhere in this
division’, indicates that the Legislature wanted to make it
clear that the interpretation put by this Court in Mulchand
JUDGMENT:
v. Gopal Bhiva, [1964] 3 S.C.R. 709, 722-723 on Art. 181 of
the 1908-Act on the basis of ejusdem generis should be
applied to Art. 137 of 1963-Act also, the language of which,
is only slightly different from that of Art. 181 of the
1908-Act. That is, in interpreting Art. 137 of the 1963-Act
regard must be had to the provisions contained in the
earlier articles. These articles refer to applications
under the Code of Civil Procedure, to two cases of
applications under the Arbitration Act, and to two cases of
applications under the Code of Criminal Procedure. This
Court in Mulechand & Co. Ltd. case held that the reference
to applications under the Arbitration Act had no effect on
the interpretation of Art. 181 of the 1908-Act and that,
that article applied only to applications under the Code of
Civil Procedure. On the same principle, the further
alteration made in, the articles in 1963-Act containing
reference to applications under the Code of Criminal
Procedure could not alter the scope of Art. 137 of the 1963-
Act. Moreover even the applications under the Arbitration
Act were to be presented to courts whose proceedings are
governed by the Code of Civil Procedure. The further
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amendment including applications governed by the Criminal
Procedure Code still shows that the applications must be to
courts. The alterations in the 1963-Act, namely, the
inclusion of the words ’other proceedings’ in the long title
to the 1963-Act, the omission of the, preamble and change in
the, definition so -as to include ’petition’ in word
’application’, do not show an intention to make Art. 137
applicable to proceedings before bodies other than courts
such as quasi-judicial tribunals and executive bodies. [63
D-H; 64 A-G; 65 B-F]
In the present case, since the applications were presented
to the Labour Court, a tribunal which is not a court
governed by the Civil or Criminal Procedure Codes, the
applications are not governed by Art. 137 of 1963-Act. [65
G-H]
Manager Mls. P. K. Porwal v. The Labour Court at Nagpur, 70
B.L.R. 104, overruled.
&
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 170 to 173
of 1968.
Appeals by special leave from the judgment and order dated
August 25, 1967 of the Mysore High Court in Writ Petitions
Nos. 741, 973, 974 and 975 of 1966.
B. Sen, S. N. Prasad and R. B. Datar, for the appellant
(in all the appeals).
53
Janardan Sharma, for the respondents Nos. 4 to 14 (in C.A.
No. 170 of 1968) respondents Nos. 4 to 24 and 26 to 53 (in
C.A. No. 171 of 1968), respondent No. 4 (in C.A. No. 172 of
1968) and respondents Nos. 4 to 17 (in C.A. No. 173 of
1968).
The Judgment of the Court was delivered by
Bhargava, J. "these four connected appeals have been filed,
by special leave, by the Town Municipal Council, Athani, and
are directed against a common judgment of the High Court of
Mysore in four writ petitions, filed by the appellant under
Art., 226 of the Constitution, dismissing the writ
petitions. The circumstances in which these appeals have
arisen may be briefly stated.
Four different applications under section 33C,(2) of the
Industrial Disputes Act No. 14 of 1947 (hereinafter referred
to as "the Act") were filed in the Labour Court, Hubli, by
various workmen of the appellant. Application (LCH) No. 139
of 1965 was filed by eleven workmen on 28th July, 1965,
seeking computation of their claim for overtime work for the
period between 1st April, 1955 and 31st December, 1957, and
for work done on weekly off-days for the period between 1st
April, 1955 and 31st December, 1960. The amount claimed by
each workman was separately indicated in the application
under each head. The total claim of all the workmen was
computed at Rs. 62,420/82P according to the workmen
themselves. The second application (LCH) No. 138 of 1965
was presented by 50 workmen on 23rd July, 1965, putting
forward a claim for washing allowance at Rs. 36 each from
1st January, 1964 to 30th June, 1965, and cost of uniform at
Rs. 40 each from 1st January 1964 to 30th June, 1965 in
respect of 18 of those 50 workmen. The third application
(LCH) No. 101 of 1965 was filed by one workman alone on 19th
April, 1965, claiming a sum of Rs. 8,910/72P in respect of
his over-time work and compensation for work done on weekly
off days. The fourth application (LCH ) No. 140 of 1965 was
filed on 26th July 1965 by 14 workmen making a total claim
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of Rs. 17,302/60P, for work done on weekly off-days during
the period from 1st December, 1960 to 30th June, 1965. 13 of
the workmen claimed that they were entitled to payment at
Rs, 1190 each, while one workman’s claim was to the extent
of Rs. 1832/60P. The Labour Court at Hubli entertained all
these applications under s. 33C(2) of the Act, computed the
amounts due to the various workmen who had filed the
applications, and directed the appellant to make payment of
the amounts found due. Thereupon, the appellant challenged
the decision of the Labour Court before the High Court of
Mysore by four different writ petitions under Art. 226 of
the Constitution. The order in Application (LCH) No.
139/1965 was challenged in,
54
Writ Petition No. 741 of 1966, that in Application (LCH) No.
138/1965 in Writ Petition No. 973 of 1966; that in Applica-
tion (LCH) No. 101 of 1965 in Writ Petition No. 974 of 1966;
and that in Application (LCH) No. 140/1965 in Writ Petition
No. 975/1966. The principal ground for challenging the
decision of the Labour Court was that all these amounts
could have been claimed by the workmen by filing
applications under section 20(1) of the Minimum Wages Act
No. 11 of 1948; and, since that Act was a self-contained Act
making provision for relief in such cases, the jurisdiction
of the Labour Court under the general Act, viz., the
Industrial Disputes Act, 1947 was taken away and excluded.
It was further pleaded that the jurisdiction of the Labour
Court to deal with the claims under s. 20(1) of the Minimum
Wages Act had become time-barred and such claims, which had
become time-barred, could not be entertained by the Labour
Court under S. 33C(2) of the Act. Some other pleas were
also taken in the writ petitions which we need not mention
as they have not been raised before us. The High Court did
not accept the plea put forward on behalf of the appellant
and dismissed the writ petitions by a common order dated
25th August, 1967. These four appeals are directed against
that common order dismissing the four writ petitions. Civil
Appeals Nos. 170, 171, 172 and 173 of 1968 are directed
against the order governing Writ Petitions Nos. 741/ 1966,
973/11966, 974/1966 and 975/1966 respectively.
In these appeals in this Court also, the principal point
urged by learned counsel for the appellant was the same
which was raised before the High Court in the Writ
Petitions, viz., that the jurisdiction of the Labour Court
to deal with the claims of the workmen under S. 33C(2) of
the Act, was barred by the fact that the same relief could
have been claimed by the workmen under s. 20(1) of the
Minimum Wages Act. In the course of the arguments, however,
learned counsel conceded that he could not press this point
in Civil Appeal No. 171 of 1968 arising out of Writ Petition
No. 973 of 1966 which was directed against the order of the
Labour Court in Application (LCH) No. 138 of 1965, because
the claim in that application before the Labour Court was
confined to washing allowance and cost of uniform which are
items not governed by the Minimum Wages Act at all. His
submissions have, therefore, been confined before us to the
other three appeals in which the claim of the workmen was
for computation of their benefit in respect of overtime work
and work done on weekly off-days.
It may be mentioned that the objection to the jurisdiction
of the Labour Court was raised on behalf of the appellant
not
55
only in the writ petitions before the High Court, but even
before the Labour Court itself when that Court took up the
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hearing of the applications under s. 33C(2) of the Act.
However, the ground for challenging the jurisdiction of the
Labour Court was confined to the point mentioned by us
above. It was not contended either before the Labour Court
or in the writ petitions before the High Court that the
applications were not covered by the provisions of s. 33C(2)
of the Act. The plea taken was that, even though the
applications could be made under s. 33C(2) of the 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 the question whether
these applications before the Labour Court were at all
included within the scope of s. 33C(2) of the Act; but, on
the objection of 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 appeals at the time of final hearing. We did not
consider it correct to allow such a new point to be raised
at this late stage. However, another new point, which had
not been raised before the Labour Court and in the writ
petitions before the High Court, was permitted to be argued,
because it was raised by a separate application, presented
before the hearing, seeking permission to raise it. The new
question sought to be raised is that, even if the
applications under s. 33C(2) of the Act were competent and
not barred by the provisions of the Minimum Wages Act, they
were time-barred when presented under article 137 of the
Schedule to the Limitation Act No. 36 of 1963. The question
of limitation was incidentally mentioned before the, Labour
Court as well as the High Court, relying on the circumstance
that applications under s. 20(1) of the Minimum Wages Act
could only have been presented within a period of six months
from the date when the claims arose. At that stage,
reliance was not placed on article 137 of the Schedule to
the Limitation Act; but, well before the final hearing, a
written application was presented on behalf of the appellant
seeking permission to raise this plea of limitation in these
appeals. Notice of that application was served on the res-
pondents well in time, so that, by the time the appeals came
up for hearing, they knew that this point was sought to be
raised by the appellant. A question of limitation raises a
plea of want of jurisdiction and, in these cases, this
question could be decided
56
on the basis of the facts on the record, being a pure
question of law. It is in this background that we have
permitted this question also to be raised in these appeals,
though it was not put forward either in the High Court or
before the Labour Court. Thus, we are concerned in these
appeals with the two aspects relating to the exclusion of
the jurisdiction of the Labour Court to, entertain
applications under s. 33C(2) of the Act because of the
provisions of the Minimum Wages Act, and the plea that the
applications under s. 33C(2) of the Act were time-barred Dr
at least part of the claims under the applications were ame-
barred in view of article 137 of the schedule to the
Limitation Act, 1963.
On the first question, both the Labour Court and the High
Court held that the contention raised on behalf of the
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appellant that the jurisdiction of the Labour Court was
excluded because of s. 20(1) of the Minimum Wages Act has no
force, on the assumption that the claims made in these
applications under s. 33C(2) of the Act could have been
presented before the Labour Court under s. 20(1) of the
Minimum Wages Act. In our view, this assumption was not
justified. As we shall indicate hereafter, the claims made
by the workmen in the applications under S. 33C(2) of the
Act could not have been made before the Labour Court under
s. 20(1) of the Minimum Wages Act, so that it is not
necessary for us to decide the general question of law
whether an application under s. 33C(2) of the Act can or
cannot be competently entertained by a Labour Court if an
application for the same relief is entertainable by the
Labour Court under s. 20(1) of the Minimum Wages Act.
The long title and the preamble to the Minimum Wages Act
show that this Act was passed with the object of making
provision for fixing minimum rates of wageaein certain
employments The word "wages" has been given a wide meaning
in its definition in S. 2(h) of that Act and, quite clearly,
includes payment in respect of overtime and -for work done
on weekly off-days which are required to be given by any
employer to the workmen under the provisions of that Act
itself. Section 13(1), which deals with weekly off-days,
and section 14(1), which deals with overtime, are as follows
:-
"13. (1) In regard to any scheduled employment
minimum rates of wages in respect of which
have been fixed under this Act, the
appropriate Government may-
(a) fix the number of hours of work which
shall constitute a normal working day,
inclusive of one or more specified intervals;
57
(b) provide for a day of rest in every
period of seven days which shall be allowed to
all employees or to any specified class of
employees and for the payment of remuneration
in respect of such days of rest;
(c) provide for payment for work on a day of
rest at a rate not less than the overtime
rate."
"14. (1) Where an employee, whose minimum
rate of wages is fixed under this Act by the
hour, by the day or by such a longer wage-
period as may be prescribed, works on any day
in excess of the number of hours constituting
a normal working day, the employer shall pay
him for every hour or for part of an hour so
worked in excess at the overtime rate fixed
under this Act or under any law of the
appropriate Government for the time being in
force, whichever is higher."
In order to provide a remedy against breach of orders made
under ss. 13(1) and 14(1), that Act provides a forum and the
manner of seeking the remedy in section 20 which is as
follows :
"20. (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 a stipendiary
Magistrate to be the Authority to hear and decide for any
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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 clause (b) or clause (c) of subsection (1) of
section 13 or of wages at the overtime rate under section
14, to employees employed or paid in that area.
(2) Where an employee has any claim of the, nature referred
to in sub-section (1), the employee himself, or any legal
practitioner or any official of a registered trade union
authorised in writing to act on his behalf, or any
Inspector, or any person acting with the permission of the
Authority appointed under sub-
58
section (1), may apply to such Authority for a
direction under sub-section (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 sub-section
(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 rates 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 ten
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 as the Authority
may think fit, not exceeding ten rupees,
and the Authority may direct payment of such
compensation in cases where the excess or 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-
59
(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.
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(6) Every direction of the Authority under
this section shall be final.
(7) Every Authority appointed under sub-sec-
tion ( 1 ) shall have all the powers of a
Civil Court under the Code of Civil Procedure,
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 section
195 and Chapter XXXV of the Code of Criminal
Procedure, 1898."
We have mentioned these provisions of the Minimum Wages Act,
because 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 really
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
respect of claims arising out of payment of less than the
minimum rates, of wages or in respect of payment of
remuneration for days of rest or for work done on such days
under clause (b) or clause (c) of sub-section (1) of section
13 or of wages at the overtime rate under section 14. This
language used in s. 20(1) shows that the Authority appointed
under that provision of law is to exercise jurisdiction for
deciding claims which relate to rates of 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
employees, section 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 are 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
60
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 section 15(1) of the Payment of
Wages Act. In cases where section 15 of the Payment of
Wages Act may not provide adequate remedy, the remedy can be
sought either under section 33C 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 as intended to cover all claims in
respect of minimum wages or overtime payment or payment for
days of rest even 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
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that the directions made by the Authority under s. 20(1) may
be effectively carried out and there may not be unnecessary
multiplicity of proceedings. The power to make orders for
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. 33C(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 inasmuch as they raised disputes relating to the
rates for payment of overtime and for work done on weekly
off days.
We have examined the applications which were presented
before the Labour Court under s. 33C(2) of the Act in these
appeals and have also taken into account the pleadings which
were put forward on behalf of the appellant in contesting
those applications and we are unable to find that there was
any dispute
61
relating to the rates. It is true that, in their
applications, the workmen did plead the rates at, which
their claims had to be computed; but it was nowhere stated
that those rates were being disputed by the appellant. Even
in the pleadings put forward on behalf of the appellant as
incorporated in the order of the Labour Court, there was no
pleading that the claims of the workmen were payable at a
rate different from the rates claimed by them. It does
appear that, in one case, there was a pleading on behalf of
the appellant that no rates at all had been prescribed by
the Mysore Government. That pleading did not mean that it
became a dispute as to the rates at which the payments were
to be made by the appellant. The only question that arose
was whether there were any rates at all fixed under the
Minimum Wages Act for overtime and for payment for work done
on days of rest. Such a question does not relate to a
dispute as to the rates enforceable between the parties, so
that the remedy under section 20(1) of the Minimum Wages Act
could not have been sought by the applicants in any of these
applications. No question can, therefore, arise of the
jurisdiction of the Labour Court to entertain these
applications under s. 33C(2) of the Act being barred because
of the provisions of the Minimum Wages Act. The first point
raised on behalf of the appellant thus fails.
In dealing with the second question relating to the
applicability of article 137 of the schedule to the
Limitation Act, 1963 to applications under s. 33C(2) of the
Act, we may first take notice of two decisions of this Court
on the scope of the parallel provision contained in article
181 of the First Schedule to the Indian Limitation Act No. 9
of 1908. Article 181 of that Schedule laid down that the
period of limitation for an application, for which no period
of limitation was provided elsewhere in the schedule or by
section 48 of the Code of Civil Procedure, 1908, would be
three years, and the time from which the period would begin
to run would be when the right to apply accrued. The scope
of this article was considered first by this Court in Sha
Mulchand & Co. Ltd. (In Liquidation) v. Jawahar Mills
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Ltd.(1) where the Court had to consider the question whether
this article would govern an application made by the
Official Receiver under section 38 of the Indian Companies
Act for rectification of the register of a limited company.
The Court noted the fact that the advocate appearing in the
case relied strongly on article 181 of the Limitation Act
and, thereafter, took notice of the fact that that article
had, in a long series of decisions of most, if not all, of
the High Courts, been held to govern only applications under
the Code of Civil Procedure. The Court also dealt with the
argument advanced
(1) [1953] S. C. R. 351.
62
that the reason for holding that article 181 was confined to
applications under the Code was that the article should be
construed ejusdem generis and that, as all the articles in
the third division of the schedule to the Limitation Act
related to applications under the’ Code, article 181, which
was the residuary article, must be limited to applications
under the Code. That reasoning, it was pointed out, was no
longer applicable because of the amendment of the Limitation
Act by the introduction of articles 158 and 178 which
governed applications under the Arbitration Act and not thus
under the Code. The Court then considered the views
expressed by the various High Courts in a number of cases
and held :-
"It does not appear to us quite convincing,
without further argument, that the mere
amendment of articles 158 and 178 can ipso
facto alter the meaning which, as a result of
a long series of judicial decisions of the
different High Courts in India, came to be
attached to the language used in article 181.
This long catena of decisions may well be said
to have, as it were, added the words ’under
the Code’ in the first column of that article.
If those words had actually been used in that
column, then a subsequent amendment of
articles 158 and 178 certainly would not have
affected the meaning of that article. If,
however, as a result of judicial construction,
those words have come to be read into the
first column as if those words actually
occurred therein, we are not of opinion, as at
present advised, that the subsequent amendment
of articles 158 and 178 must necessarily and
automatically have the effect of altering the
long acquired meaning of article 181 on the
sole and simple ground that after the
amendment the reason on which the old
construction was founded is no longer
available."
This earlier decision was relied upon by the Court in Bombay
Gas Co. Ltd. v Gopal Bhiva and Others(1), where the Court
had to deal with the argument that applications under s. 33C
of the Act will be governed by three years’ limitation
provided by article 181 of the Limitation Act. The Court,
in dealing with this argument held :-
"In our opinion, this argument is one of
desperation. It is well settled that art. 181
applies only to applications which are made
under the Code of Civil Procedure,, and so,
its extension to applications made under s. 33C(2)
of the Act would not be justified. As early
(1) [1964] 3 S. C. R. 709, 722-23.
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as 1880, the Bombay High Court had held in Rai
Manekbai v. Manekji Kavasji(1), that art 181
only relates to applications under the Code of
Civil Procedure in which case no period of
limitation has been prescribed for the
application, and the consensus of judicial
opinion on this point had been noticed by the
Privy Council in Hansraj Gupta v. Official
Liquidators, Dehra Dun Mussoorie Electric
Tramway Company Ltd. (2) An attempt was no
doubt made in the case of Sha Mulchand & Co.
Ltd. v. Jawahar Mills Ltd.() to suggest that
the amendment of article 158 and 178 ipso
facto altered the meaning which had been
attached to the words in art. 181 by judicial
decisions, but this attempt failed, because
this Court held ’that the long catena of
decisions under art. 181 may well be said to
have, as it were, added the words "u
nder the
Code" in the first column of that Article’.
Therefore, it is not possible to accede to the
argument that the limitation prescribed by
art. 181 can be invoked in dealing with
applications, under s. 33C(2) of the Act."
It appears to us that the view expressed by this Court in
those cases must be held to be applicable, even when
considering the scope and applicability of article 137 in
the new Limitation Act of 1963. The language of article 137
is only slightly different from that of the earlier article
181 inasmuch as, when prescribing the three years period of
limitation, the first column giving the description of the
application reads as "any other application -for which no
period of limitation is provided elsewhere in this division.
In fact, the addition of the word "other" between the words
"any" and "application" would indicate that the legislature
wanted to make it clear that the principle of interpretation
of article 181 on the basis of ejusdem generis should be
-applied when interpreting the new article 137. This word
"other" implies a reference to earlier articles and,
consequently, in interpreting this article, regard must be
had to the provisions contained in all the earlier articles.
The other articles in the third division to the schedule
refer to applications under the Code of Civil Procedure,
with the exception of applications under the Arbitration Act
and also in two cases applications under the Code of
Criminal Procedure. The effect of introduction in the third
division of the schedule of reference to applications under
the Arbitration Act in the old Limitation Act has already
been considered by this Court in the case of Sha Mulchand &
Co. Ltd. (3). We think that, on the same principle, it
(1) (1880) 1. L. R. 7 Bom. 213. (2) (1932) L. R. 60 1.
A. 13, 20
(3) [1953] S. C. R. 351
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must be held that even the further alteration made in the
articles contained in the third division of the schedule to
the new Limitation Act containing references to applications
under the Code of Criminal Procedure cannot be held to have
materially altered the scope of the residuary article 137
which deals with other applications. It is not possible to
hold that the intention of the legislature was to
drastically alter the scope of this article so as to include
within it all applications, irrespective of the fact whether
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they had any reference to the Code of Civil Procedure.
This point, in our opinion, may be looked at from another
angle also. When this Court earlier held that all the
articles in the third division to the schedule, including
article 181 of the Limitation Act of 1908 governed
applications under the Code of Civil Procedure only, it
clearly implied that the application must be presented to a
Court governed by the Code of Civil Procedure. Even the
applications under the Arbitration Act that were included
within the third division by amendment of articles 158 and
178 were to be presented to courts whose proceedings were
governed by the Code of Civil Procedure. At best, the
further amendment now made enlarges the scope of the third
division of the schedule so as also to include some
applications presented to courts governed by the Code of
Criminal Procedure. One factor at least remains constant
and that is that the applications must be to courts to be
governed by the articles in this division. The scope of the
various -articles in this division cannot be held to have
been so enlarged as to include within them applications to
bodies other than courts, such as a quasi-judicial tribunal,
or even an executive authority. An Industrial Tribunal or a
Labour Court dealing with applications or references under
the Act are not courts and they are in no way governed
either by the Code of Civil Procedure or the Code of
Criminal Procedure. We cannot, therefore, accept the
submission made that this article will apply even to
applications made to an Industrial Tribunal or a Labour
Court. The alterations made in the article and in the new
Act cannot, in our opinion, justify the interpretation that
even applications presented to bodies, other than courts,
are now to be governed for purposes of limitation by
-article 137.
Reliance in this connection was placed by learned counsel
for the appellant primarily on the decision of the Bombay
High Court in The Manager, Mls. P. K. Porwal v. The Labour
Court at Nagpur(1). We are unable to agree with the view
taken by the Bombay High Court in that case. The High Court
ignored the circumstance that the provisions of article 137
were sought to be applied to an application which was
presented not to a court but
(1) 70 B. L. R. 104.
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to a Labour Court dealing with an application under s. 3 3C
(2) of the Act and that such a Labour Court is not governed
by any procedural code relating to civil or criminal
proceedings. That Court appears to have been considerably
impressed by the fact that, in the new Limitation Act of
1963, an alteration was made in the long title which has
been incorrectly described by that Court as preamble. Under
the old Limitation Act, no doubt, the long title was "An Act
to consolidate and amend the law for the limitation of suits
and for other purposes", while, in the new Act of 1963, the
long title is "An Act to consolidate and amend the law for
the limitation of suits and other proceedings and for
purposes connected therewith". In the long title, thus, the
words "other proceedings" have been added; but we do not
think that this addition necessarily implies that the
Limitation Act is intended to govern proceedings before any
authority,. whether executive or quasijudicial, when,
earlier, the old Act was intended to govern proceedings
before civil courts only. It is also true that the preamble
which existed in the old Limitation Act of 1908 has been
omitted in the new Act of 1963. The omission of the
preamble does not, however, indicate that there was any
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intention of the legislature to change the purposes for
which the Limitation Act has been enforced. The, Bombay
High Court also attached importance to the circumstance that
the scope of the new Limitation Act has been enlarged by
changing the definition of "applicant" in s. 2(a) of the new
Act so as to include even a petitioner and the word "
application" so as to include a petition. The question
still remains whether this alteration can be held to be
intended to cover petitions by a petitioner to authorities
other than Courts. 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
than Courts. We have already taken notice of the change
introduced in the third division of the schedule by includ-
ing references to applications under the Code of Criminal
Procedure, which was the only other aspect relied upon by
the Bombay High Court in support of its view that
applications under s. 33C of the Act will also be
governed by the new article 137. For the reasons we have
indicated earlier, we are unable to accept the view
expressed by the Bombay High Court; and we hold that article
137 of the schedule to the Limitation Act, 1963 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.
The appeals fail and I are dismissed with costs. One
hearing fee.
V.P.S. Appeals dismissed.
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