Case: Dinaram Chutiya and Others Vs. Kakajan Tea Estate (By Divisional Manager)

Gajendragadkar, J. 1. The appellants who are the employees in the industrial establishment of the respondent, the Divisional Manager, Kakajan Tea Estate, applied to the Deputy Commissioner, Sibsagar, who is the authority appointed under the Payment of Wages Act, 1936 (No. 4 of 1936) (hereinafter called the Act), and claimed that an amount of Rs. 20, 385 should be ordered to be paid to them by the respondent on the ground that the said amount represented the total illegal deduction of Rs. 2, 000 made by the respondent from the wages payable to the appellants between 1 January, 1955 and 31 May, 1955 and compensation of Rs. 18, 000 and interest thereon. This claim was made under S.15 of the Act. 2. The respondent denied the claim and contended that he had not made any illegal deductions from the wages payable to the appellants. It appears that all the employees of the respondent were paid by the latter their respective wages under the terms of contract entered into between them in about 1950. A branch circular No. LD/G-12 dated 24 November, 1950 was issued in that behalf. On 31 December, 1954 a fresh circular was issued by the respondent making certain alterations in the wage-structure of his employees. Prior to the issue of this circular, servant allowance used to be paid to artisans in grades A, B and C according the agreed schedule. By the circular issued in 1954, the conditions in respect of servant allowance were substantially modified. The appellants belong to grades B and C. In respect of grade B artisans, the new circular provides that one servant should be arranged for two artisans or, if not provided, a servant allowance equal to half the ruling wages of an adult labourer should be paid. It appears that prior to this circular each artisan in grade B was allowed one servant or an allowance equal to the ruling wages of an adult labourer. In respect of artisans in grade C, the new circular provides that they were not entitled either to a servant or to a servant allowance.The appellants contention before the authority was that the servant allowance which was payable to them had been deducted by the respondent and that constituted the basis of their claim under S.15 of the Act. 3. The respondent did not admit this claim; and it appears that before the authority the respondent urged that as a result of the revision of the wage-structure made by the circular of 1954, the total wages payable to the employees of the respondent had in no case been reduced, and so, it was argued that fact that the servant allowance had not been paid cannot be made the basis of claim under S. 15. It was also alleged by the respondent that the new circular of 1954 embodied fresh terms of contract of service between the respondent and his employees and they had been accepted by the general committee of the Indian Tea Association and agreed to by the Indian National Trade Union Congress. In other words, the argument was that the new wage-structure was evolved by agreement between the parties and it was not at all unfavourable to the employees. 4. The authority considered the evidence led before it and came to the conclusion that the appellants were not in a position to dispute the genuineness of the latter circular and there was nothing on the record to show that the artisans "are in any way in receipt of less now after the issue of the circular" than before. In this order, the authority observed that at no stage had the appellants mentioned that by the cut in the servant allowance they were receiving less since the conditions of the circular of 1954 had been brought into force with retrospective effect from 15 August, 1954. That being so, it was held that no deduction can be said to have been illegally made by the respondent and accordingly, the appellants application was dismissed.The appellants then moved the Assam High Court by a petition under Art. 226 of the Constitution. Before the High Court, one of the preliminary points urged by the respondent was that the contention raised by the appellants by their writ petition cannot properly be agitated before the High Court under Art. 227; the finding made by the authority was a finding of fact and its correctness or propriety cannot be successfully challenged by a petition under Art 227. The High Court, however, dealt with the merits and confirmed the finding of the authority that the circular issued in 1954 did not reduce the total wages paid to the appellants before it was issued. In other words, according to the finding of the High Court, the appellants wages had not been adversely affected by the new circular at all. On that view, the High Court dismissed the appellants petition. It is against this order that the appellants have come to this Court with a certificate issued by the High Court. 5. Mr. Aggarwal for the appellants contends that under S.23 of the Act no contract can be made by an employee with his employer by which he purports to relinquish any right conferred on him by this Act, and if such a contract is made, it would be null and void. Mr. Aggarwal argues that what an individual employed person is prevented from doing under S. 23 will apply as much to a collective agreement between the employees and their employer and that even such a collective agreement cannot prejudicially affect the rights conferred on the employees by the provisions of the Act. In dealing with the present appeal, we are prepared to assume that the construction placed by Mr. Aggarwal on S. 23 is right, though, of course, we do not propose to decide that point in this case. The difficulty in Mr. Aggarwals way is that the finding made by the authority and confirmed by the High Court clearly shows that the right given to the appellants by the provisions of the Act has not been prejudicially affected. If it is found that the total wages which the appellants received even after the impugned circular was issued in 1954 are not shown to be less than before, it is impossible to accept the argument that mere deduction of the servant allowance, either partial or whole, can be said to contravene S. 23. The right claimed by the employees under S. 15 read with S. 7 is the right to receive the total wages agreed to between the parties and if the total wages are not affected, then that right cannot be said to have been contravened. On the finding recorded by the High Court and the authority, it is absolutely clear that there is no scope for the contention that S. 23 has been contravened by the respondent.Mr. Aggarwal, however, attempted to argue that in coming to the conclusion that the reduction of the servant allowance in respect of artisans in grade B and the total abolition of the said allowance in respect of artisans is grade C did not affect the appellants right, the authority and the High Court have gone wrong. He suggested that the authority compared the wages received by the appellants in 1950 and failed to take into account the increments which they had earned subsequent thereto; and in support of this case, he wanted to rely on annexure A which had been filed by the appellants along with their petition under Art. 227. 6. On the other hand, Mr. Goswami for the respondent argued that if the letters of the appointment in the case of some of the appellants which have been filed on the record and on which they rely are examined, it would be found that the figures in annexure A are wrong and he urged that the finding recorded by the High Court as well as the authority on this question is absolutely right. His case was that under the subsequent circular of 1954, basic wages as well as dearness allowance had been increased and so, the reduction or abolition of the servant allowance did not, in the least, prejudicially affect the totality of wages of the employees in any case. Besides he strenuously contended that it was not open to the appellants to challenge the correctness of the finding made by the authority in their petition under Art. 227 and if that is so, it would not be open to them to take that point even before us. In our opinion, this latter contention is well-founded and must be upheld. It may be that the evidence available on the record is not very satisfactory and the pleas taken by the respondent on this part of the case were not as clear or specific as they should have been; even so, we do not think that we can examine the correctness of the said finding. Therefore, without expressing any opinion on the merits of the finding, we hold that the appellants are precluded from disputing the validity of that finding, and so, no question arises as to the contravention of S.23 of the Act.

Decision:
0[ds]5. Mr. Aggarwal for the appellants contends that under S.23 of the Act no contract can be made by an employee with his employer by which he purports to relinquish any right conferred on him by this Act, and if such a contract is made, it would be null and void. Mr. Aggarwal argues that what an individual employed person is prevented from doing under S. 23 will apply as much to a collective agreement between the employees and their employer and that even such a collective agreement cannot prejudicially affect the rights conferred on the employees by the provisions of theAct.In dealing with the present appeal, we are prepared to assume that the construction placed by Mr. Aggarwal on S. 23 is right, though, of course, we do not propose to decide that point in this case. The difficulty in Mr. Aggarwals way is that the finding made by the authority and confirmed by the High Court clearly shows that the right given to the appellants by the provisions of the Act has not been prejudicially affected. If it is found that the total wages which the appellants received even after the impugned circular was issued in 1954 are not shown to be less than before, it is impossible to accept the argument that mere deduction of the servant allowance, either partial or whole, can be said to contravene S. 23. The right claimed by the employees under S. 15 read with S. 7 is the right to receive the total wages agreed to between the parties and if the total wages are not affected, then that right cannot be said to have been contravened. On the finding recorded by the High Court and the authority, it is absolutely clear that there is no scope for the contention that S. 23 has been contravened by the respondent6. On the other hand, Mr. Goswami for the respondent argued that if the letters of the appointment in the case of some of the appellants which have been filed on the record and on which they rely are examined, it would be found that the figures in annexure A are wrong and he urged that the finding recorded by the High Court as well as the authority on this question is absolutely right. His case was that under the subsequent circular of 1954, basic wages as well as dearness allowance had been increased and so, the reduction or abolition of the servant allowance did not, in the least, prejudicially affect the totality of wages of the employees in any case. Besides he strenuously contended that it was not open to the appellants to challenge the correctness of the finding made by the authority in their petition under Art. 227 and if that is so, it would not be open to them to take that point even before us.In our opinion, this latter contention isd and must be upheld. It may be that the evidence available on the record is not very satisfactory and the pleas taken by the respondent on this part of the case were not as clear or specific as they should have been; even so, we do not think that we can examine the correctness of the said finding. Therefore, without expressing any opinion on the merits of the finding, we hold that the appellants are precluded from disputing the validity of that finding, and so, no question arises as to the contravention of S.23 of the