Full Judgment Text
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PETITIONER:
CHIEF MINING ENGINEER EAST INDIA COAL CO. LTD.
Vs.
RESPONDENT:
RAMESWAR AND ORS.
DATE OF JUDGMENT:
08/08/1967
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
BHARGAVA, VISHISHTHA
VAIDYIALINGAM, C.A.
CITATION:
1968 AIR 218 1968 SCR (1) 140
CITATOR INFO :
RF 1970 SC 237 (5,13,14)
F 1971 SC1902 (13)
R 1972 SC 451 (17)
RF 1972 SC1579 (4)
R 1974 SC1604 (12)
RF 1975 SC 171 (22)
R 1975 SC1898 (6,7)
E&R 1978 SC 995 (4)
ACT:
Coal Mines Provident Fund and Bonus Scheme Act, 1948 (46 of
1948)--Bonus under the Scheme--Jurisdiction of Labour Court
under s. 33C of Industrial Disputes Act--Limitation for
applications--Eligibility for bonus.
Industrial Disputes Act, 1947 (14 of 1947) s. 33C Bonus
under Coal Mines Provident Fund and Bonus Scheme
Act--Jurisdiction of Labour Court--Limitation for
application.
HEADNOTE:
The respondents--workmen filed applications in 1962 claiming
bonus under the Scheme framed by the Central Government
under the Coal Mines Provident Fund and Bonus Schemes Act,
1948 and railway fares and leave wages from 1948 onwards.
The Labour Court, Dhanbad allowed their claims under S.
33C(2) of the Industrial Disputes Act, 1947, which, in
appeals to this Court, the appellant-Company challenged,
contending, that (1) the Labour Court had no jurisdiction to
try these applications under S. 33C(2); (ii) the
applications were barred by Limitation prescribed by the
bonus Scheme and/or due to laches. and (iii) under the said
Scheme the workmen were not entitled to bonus as they were
employed as domestic servants.
HELD:The appeals must fail.
(i)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-see. 2 of s. 33C
is wider than that of sub-s 1, and the sub-section is not
confined to cases arising under an award settlement or under
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the provisions of Chapter VA there is no reason to hold that
a benefit provided by statute or a Scheme made thereunder,
without there being anything contrary under such statute or
s. 33C(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
remained to be computed must fall under sub-section 2 and
the Labour Court therefore had jurisdiction to entertain and
try such a claim, it being a claim in respect of an existing
right arising from the relationship of an industrial workman
and his employer. [144B-D].
Punjab National Bank Ldt. v. Kharbanda [1962] Supp. 2 S.C.R.
977 Central Bank of India v. Rajagopalan [1964] 3 S.C.R.
140, and Bombay Gas Co., Ltd. v. Gopal Bhiva [1964] 3 S.C.R.
709 relied on,
(ii)There is no justification for inducting a period of
limitation provided in the Limitation Act into the
provisions of s. 33C(2) which do not lay down any
limitation. It is a matter of some significance that though
the legislature amended section 33C by Act 36 of 1964 and
introduced limitation in that Section, it did so by means of
a proviso only in respect of claims made under sub-sec. 1
but did not provide any such limitation for claims under
sub-sec. 2. [14-4H-145B].
Bombay Gas Co. Ltd. v. Gopal Bhiva [1964] 3 S.C.R. 709
relied on.
141
The period of three years of limitation provided for by
clause (3) of S. 9A of ;the Bonus Scheme applies to
applications for payment by the Coal Mines Provident Fund
Commissioner from the deposit made in the Government
treasury and has no application to claims under
S. 33C(2) which makes no provision for limitation. [145D-
E].
(iii)Two conditions are necessary to render an employee
ineligible for Bonus under S. 1 of the Bonus Scheme: (1)
that he is employed as a mali, a sweeper or a domestic
servant, and (2) that he performs during the relevant period
domestic or personal work. To render an employee ineligible
for bonus under this exception both the capacity and the
nature of work are relevant factors. It follows that even
though an employee is employed as a mali, a sweeper or a
domestic servant if he does non-domestic or non-personal
work he will be entitled to bonus and would lose his right
to A only during that period that he does domestic or
personal work. [146B-C].
Bhowra Colliery v. Its Workmen, [1962] L.L.J. 378, relied
on.
On the evidence, the respondents were employed in the
colliery, they were not assigned the exclusive duty of
supplying water at the residence of the junior officers but
they supplied water at certain pit heads. So the exception
did not apply.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 256--267 of
1966.
Appeals by special leave from the Award dated April 6, 1964
of the Central Government Labour Court, Dhanbad in Ap-
plications L.C. Nos. 237 / 245, 228 / 247, 238 / 250, 230 /
252, 239 / 254, 229/255 of 1962.
H.R. Gokhale and D. N. Gupta, for the appellant (in all the
appeals).
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Janardan Sharma, for the respondents (in all the appeals).
The Judgment of the Court was delivered by
Shelat, J.-These appeals by the special leave arise out of
applications filed by workmen of the appellant-company
claiming bonus under the Scheme framed by the Central
Government under the, Coal Mines Provident Fund and Bonus
Schemes Act, 46 of 1948 and railway fares and leave wages
under the award of the Industrial Tribunal (Colliery
Disputes) which came into effect as from February 22, 1954.
The Central Government Labour Court at Dhanbad allowed
their claim under section 33C (2) of the Industrial Disputes
Act, 1947.
Mr. Gokhale for the appellant-company challenged the
correctness of the Labour Court’s decision and raised the
following contentions : -
(1) that the Labour Court had no jurisdiction to try these
applications under s. 33C (2):
(a)because s. 33C(2) contemplates recovery
of money payable under an award, settlement or
under the provisions of Chapter VA of the
Industrial Disputes Act only
142
and not under any other statute or scheme
framed there under;
(b)that under s. 33C(2) the benefit capable
of being computed in terms of money is a non-
monetary benefit and not a claim for money
itself; and
(c)that the proceedings under section
33C(2) being in the nature of execution
proceedings substantial questions between an
employer and his employee cannot be
adjudicated by the Labour Court under this
section;
(2)that in any case these applications were barred by
limitation prescribed by the said bonus Scheme and/or due to
laches on the part of the respondents-,
(3)that under the said Scheme the respondents are not
entitled to bonus as they were employed as domestic servants
and were during the relevant period performing domestic and
personal work; and
(4)that the direction to pay bonus for the period prior to
the dates on which these respondents were employed was in-
valid.
The contention as to jurisdiction of the Labour Court
depends on the true construction of s. 33C(2) as it stood in
1962 when these applications were filed and before its
amendment by Act 36 of 1964. Section 33C(2) has so far been
the subject matter of decision by this Court in three cases,
viz., Punjab National Bank Ltd. v. Kharbanda(1), Central
Bank of India v. Rajagopalan(2) and Bombay Gas Co. Ltd. v.
Gopal Bhiva(3).
The following propositions on the question as to the scope
of S. 33C(2) are deducible from these three decisions:-
(1)The legislative history indicates that
the legislature, after providing broadly for
the investigation and settlement of disputes
on the basis of collective bargaining,
recognised the need of individual workmen of a
speedy remedy to enforce their existing,
individual rights and therefore inserted s.
33A in 1950 and S. 33C in 1956. These two
sections illustrate cases in which individual
workmen can enforce their rights without
having to take recourse to s. 10(1) and
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without having to depend on their union to
espouse their case.
(2)In view of this history two
considerations are relevant while construing
the scope of s. 33C. Where industrial
disputes arise between workmen acting collec-
tively and their employers such disputes must
be adjudicated upon in the manner prescribed
by the Act, as for
(1) [1962] Supp. 2 S.C.R. 977. (2) [1964]
3 S.C.R. 140.
(3) [1964] 3 S.C.R. 709.
143
instance under s. 10(1). But having regard to
the legislative policy to provide a speedy
remedy to Individual’ workmen for enforcing
their existing rights, it would not be
reasonable to exclude their existing rights
sought to be implemented by individual
workmen. Therefore though in determining the
scope of s. 33C care should be taken not to
exclude cases which legitimately fall within
its purview, cases which fall, for instance
under s. 10(1), cannot be brought under s.
33C;
(3)Section 33C which is in terms similar to
those in
s. 20 ofthe Industrial Disputes (Appellate
Tribunal) Act,,
1950 is a provision in the nature of an
executing provision;
(4)Section 33C(1) applies to cases where
money is due to a workman under an award or
settlement or under Chapter VA of the Act
already calculated and ascertained and
therefore there is no dispute about its
computation. But sub-section 2 applies both
to 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 a dispute about its
calculation;
(5)Section 33C(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. It is open to
the Labour Court to interpret the award or
settlement on which the workmen’s right rests.
(6) The fact that the words of limitation
used in s. 20(2) of the Industrial Disputes
(Appellate Tribunal Act. 1950 are omitted in
s. 33C(2) shows that the scope, of s. 33C(2)
is wider than that of s. 33C(1). Therefore,
whereas sub-section 1 is confined to claims
arising under an award or settlement or
Chapter VA. claims which can be entertained
under sub-section are not so confined to those
under an award, settlement or Chapter VA.
(7)Though the court did not indicate which
cases other than those under subsection would
fall under sub-section 2. it pointed out
illustrative cases which would not fall under
sub-section 2, viz., cases which Would ap-
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propriately be adjudicated under s. 10(1) or
claims which have already been the subject-
matter of settlement to which ss. 18 and 19
would apply.
(8)Since proceedings under s. 33C(2) are
analogous to execution proceeding and the
Labour Court called upon to compute in terms
of money the benefit claimed by a workman is
in such cases in the position of an executing
court. the Labour Court like the executing
court
144
in execution proceedings governed by the Code
of Civil Procedure, is competent under s.
33C(2) to interpret the award or settlement
where the benefit is claimed under such award
or settlement and it would be open to it to
consider the plea of nullity where the award
is made without jurisdiction.
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 subsec. 1 and the sub-
section is not confined to cases arising under an award,
settlement or under the, provisions of Chapter VA. there is
no reason to hold that a benefit provided by a statute or a
Scheme made thereunder, without there being anything
contrary tinder such statute or s. 33C(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-section 2 and the Labour Court therefore
had jurisdiction to entertain and try such a claim, it being
a claim in respect of an existing right arising from the
relationship of an industrial workman and his employer. The
contention that the Labour Court had no jurisdiction because
the claim arose under the said scheme or because the benefit
was monetary or because it involved any substantial question
between the Company and the workmen must, in view of the
said decisions, fail.
These- applications were made in 1962 though they related to
claims for the years commencing from 1948 and onwards. The
contention therefore was that part of these claims, at any
rate, must be held to be barred either by limitation or by
reason of laches on the part of the workmen. The answer to
this contention is clearly provided in the case of Bombay
Gas Co.(1) where a distinction was drawn between
considerations which would prevail in an industrial
adjudication and those which must prevail in a case filed
under a statutory provision such as S. 33C(2). This court
pointed out there that whereas an industrial dispute is
entertained on grounds of social justice and therefore a
Tribunal would in such a case take into consideration
factors such as delay or laches, such considerations are
irrelevant to claims made under a statutory provision unless
such provision lays down any period of limitation. The
Court held that there is no justification in inductina
period of limitation provided in the Limitation Act into the
provisions of s. 33C(2) which do not lay down any limitation
and that such a provision can only be made by legislature if
it thought fit and not by the court on an analogy or any
other such consideration. It is a matter of some
significance that though the legislature
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(1)[1964] 3 S.C.R. 709.
145
amended section 33C by Act 36 of 1964 and introduced
limitation in the section, it did so by means of a proviso
only in respect of claims made under sub-sec. 1 but did not
provide any limitation for claims under sub-section 2. In
view of this fact and the decision in Bombay Gas Company’s
case(1) Mr. Gokhale conceded that he could not press the
contention that the present claims were barred by limitation
or laches.
Some reliance however was sought to be placed on cl. 3 of s.
9A of the Bonus Scheme. Section 9(A) contemplates that the
employer has first to tender the bonus payable to the
workman under the Scheme. If the bonus, in spite of the
tender, remains unclaimed for six months after such tender,
he is required to have it credited in the Reserve Account
established under the Scheme. The section then provides by
cl. 2 that the bonus amount shall be paid in the seventh
month from the end of the quarter to which it relates by
depositing it in such government treasury as may be
prescribed and the original chalan of such deposit shall be
sent within the time set out therein to the Coal Mines
Provident Fund Commissioner. Clause (3) then provides that
a workman who desires payment of arrears of bonus payable to
him shall apply to the said Commissioner within three years
from the last date of the quarter to which the bonus
relates. The period of three years of limitation thus
applies to applications for payment by the Commissioner from
the deposit made in the treasury and has no application to
claims under s. 33C(2) which as aforesaid makes no provision
for limitation
The contention that the respondents-workmen, though
admittedly the employees of the appellant company, were not
entitled to bonus under the Scheme as they were doing
domestic and personal work, viz., of supplying water at the
residence of certain junior officers of the Company
throughout the relevant period, is also not tenable. The
relevant portion of s. 1 of the Bonus Scheme relied on by
the Company reads as follows:
"1. Class of employees eligible to qualify for
bonus Except as hereinafter provided, every
employee in a coal mine to which this Scheme
applies shall be eligible to qualify for
bonus.
Exceptions-An employee in a coal mine shall
not be entitled to a bonus under the Scheme
for the period during which-
(a)...........................
(b)he is employed as a mali, sweeper or
domestic servant on domestic or personal
work........."
(1) [1964] 3 S.C.R. 709.
my(N)ISCI-12
146
Under this section every employee of the Company except as
therein provided is eligible for bonus. The exception
provides that a person though an employee in a colliery is
not entitled to bonus inter alia for the period during which
he is employed as a mali, sweeper or domestic servant on
domestic and personal work. Two conditions are therefore
necessary to render an employee ineligible for bonus : (1)
that he is employed as a mali, a sweeper or a domestic
servant and (2) that he performs during the relevant period
domestic or personal work. To render an employee ineligible
for bonus under this exception both the capacity and the
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nature of work are relevant factors. It follows that even
though an employee is employed as a mali, a sweeper or a
domestic servant if he does non-domestic or non-personal
work he will be entitled to bonus and would lose his right
to it only during that period that he does domestic or
personal work. In Bhowra Collicry v. Its Workmen(1) this
Court construed this very exception and held that if the
concerned workmen were employed and worked as garden
mazdoors and malis to look after the gardens attached to the
bungalows occupied by the Colliery officers they would not
be eligible for the bonus notwithstanding the fact that the
bungalows were owned by the Colliery, the workmen were
Colliery’s employees and worked under the Company’s orders
and were liable to be transferred from one job to another.
Thus the employment of a person as a mali, sweeper or a
domestic servant and discharge by him of domestic or
personal work as distinguished from non-domestic and non-
personal work, i.e., work relating to the colliery, are
necessary conditions before the exception can apply.
In view of the admitted position that the respondents-work-
men were employees of the Company the burden of proof that
they fell within the exception is clearly on the Company.
In its written statement the Company no doubt averred that
these workmen were employed as domestic servants and carried
out domestic and personal duties and were therefore not
eligible for the bonus. But it is clear from the evidence
of the two witnesses examined by the Company that the
Company failed to establish either that the respondents were
employed as domestic servants or that they were exclusively
en-aged on domestic or personal, work. On the other hand,
from the evidence of Sibu, one of the respondent workmen, it
appears that the respondents were employed in the colliery,
that they were not assigned the exclusive duty of supplying
water, at the residence of the junior officers but that they
supplied water at certain pit heads. On this evidence the
Labour Court has given a finding that they were engaged in
supplying water at certain points in the colliery. In these
circumstances the Labour Court was justified in coming to
the conclusion that the exception did not apply.
(1) [1962] L.L.J. 378.
147
The last contention which remains to be considered was that
the Labour Court was not right in awarding the claim of the
workmen in full, both as regards bonus and railway fares and
leave wages. According to the Company, none of these
workmen was in its employment in 1948, that they were
appointed at different dates and that they would at best be
entitled to bonus for the period during which they were so
employed. This contention has, however, no force in view of
the Company not having disputed the quantum of relief
claimed by the workmen both as regards bonus as also the
railway fares and leave wages.
The appeals are dismissed with costs.
Appeal dismissed.
Y. P.
148