IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 1463/2002 Date of decision 14.5.2007 H.P. State Forest Corporation & another. …Petitioner. Versus Kusal Singh and others …Respondents . Coram The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1.Yes. For the petitioners Mr. Neel Kamal Sood, Advocate. For the respondents None. Rajiv Sharma, J. (Oral) This petition is directed against the award passed by the H.P. Labour Court, Shimla on 16.1.2002 The necessary facts for the adjudication of this petition are that the petitioners-corporation had entered into an agreement with respondent No.16 on 29th July, 1995 for felling, conversion and carriage to road side depot, Khudan and stacking of 805.314 M3 converted timber. The copy of the agreement was supplied to the Court during the course of hearing, which is taken on record. The relevant paras of the agreement necessary for the adjudication of this petition are reproduced below: “14. That the Contractor(s)/Labour Supply Mate(s) will maintain a roll call register to mark daily attendance of the Labour force present on the works and would produce the 1 Whether the reporters of Local Papers may be allowed to see the judgment?Yes. 2 same on demand to the Divisional Manager of the Official incharges of the work, as and when required to do so. 24. That the Divisional Manager shall be entitled to pay the labour from the unpaid bill (bills( of the Contractor(s)Labour Supply Mate(s) in the event of the Contractor(s) /Labour Supply Mate(s) failure to pay the same. If there are no such dues/unpaid bills, the Divisional Manager shall not be liable to make any payment to labour. 30. That the Contractor(s)/Labour Supply Mate(s) shall also be bound to obtain licence under the Contract Labour (Registration and Abolition) Act, 1970 and H.P. Contract Labour (Regulation and Abolition) Rules, 1974 to comply with the same in letter and spirit.” The workmen were engaged by the respondent No.16 and they have completed the work within the prescribed period i.e. 3.11.1996 to 30.1.1997. The workmen’s wages for the period with effect from 3.11.1996 to 30.1.1997 were neither paid by the petitioners-corporation nor by the respondent No.16. The total payment of the respondents No.1 to 15 was amounting to Rs. 15,927.50 paisa. The respondents No.1 to 15 (hereinafter referred to as the workmen) have filed claim petition under section 33-C (2) of the Industrial Disputes Act, 1947 before the H.P. Industrial Tribunal-cum-Labour Court at Shimla. The petitioners- corporation has filed the reply to the claim petition vide Annexure P-3. It is admitted in para 1 of the reply by the petitioners that respondent No.16 was allotted work of lot No.3/95-96 for felling, conversion and carriage to road side depot, Khudan and stacking of 805.314 M3 converted timber. The main stand of the petitioners-corporation before the Labour Court was 3 that it was the respondent No.16, who was to make the payment of the wages to the workmen. The Labour Court vide award dated 16.1.2002 held the workmen entitled to the amount as claimed from the respondents jointly and severally with interest @ 6% from the date of petition. The Labour Court has categorically come to the conclusion that in the absence of the contractor, it is the Forest Corporation, who was liable to make the payment though they could recover this amount from the contractor. Mr. Neel Kamal Sood, Advocate appearing on behalf of petitioners- corporation has strenuously argued that the workmen could not approach the Labour Court under section 33-C (2) of the Industrial Disputes Act, 1947 and they were required to approach the authorities as constituted under the Payment of Wages Act, 1936. Mr. Sood has drawn the attention of this Court to Annexure P-15 whereby the Inspector has been appointed to settle the disputes under the Payment of Wages Act, 1936. He has further argued that the principal employer i.e. Forest Corporation was not liable to pay the wages of the workmen if the same have not been paid by the contractor i.e. respondent No.16. Respondents though served have not appeared before this Court and as such were proceeded exparte by this Court on 30.4.2004. I have heard the parties and perused the record. The main plea raised by Mr. Neel Kamal Sood, Advocate for the petitioners-corporation that the workmen should have approached the authorities appointed under the Payment of Wages Act, 1936, has not been taken before the H.P. Labour Court, Shimla. This plea has been raised for the first time in this Court. 4 This question whether the Labour Court’s jurisdiction under section 33-C(2) of the Industrial Disputes Act, 1947 is excluded by the provisions of the Payment of Wages Act, 1936 is no more res integra. The Hon’ble Punjab and Haryana High Court has held in Inder Singh Vs. Labour Court, Jullandur, 1969 (Labour Industrial Cases) 1126 that neither section 24 of the Minimum Wages Act, 1948 nor section 22 of the Payment of Wages Act, 1936 bars the jurisdiction of the Labour Court to entertain and adjudicate upon the application under section 33-C (2) of the Act. Their Lordships of Hon’ble the Punjab and Haryana High Court have held as under: “The law laid down in the above- mentioned cases clearly indicates that neither Section 22 of the 1936 Act nor Section 24 of the Wages Act bars the jurisdiction of a Labour Court to entertain and adjudicate upon an application under Section 33C (2) of the Act. The Labour Court is a judicial or at least a quasi-judicial Tribunal but not a Civil Court and the jurisdiction of the Labour Court not having been barred by the express provision of either Section 22 of the 1936 Act or Section 24 of the Wages Act, it is, against the well- settled canons of interpretation of statutes to imply any such bar to the jurisdiction of the Labour Court which is not created by any statute. Mr. Bhagirath Dass referred to the Division Bench judgment of the Madhya Pradesh High Court in Laxman v. Dayalal Meghji & Co., 1968-1 Lab LJ 139=(AIR 1967 Madh Pra 155), wherein it was held' that the Labour Court was right in holding "that it had no jurisdiction to entertain all, employee's application under Section 33C (2) for recovery of the difference in wages actually paid and the wages paid under the Madhya Pradesh Minimum Wages Fixation Act, 1962. With the greatest respect the learned Judges of the Madhya Pradesh High Court, I am inclined to think that the observations of the Bench in Laxman's case, 1968-1 Lab LJ.139=(AIR 1967 Madh Pra 155) (supra) go (contrary to the decision of the Supreme Court in Ambica Mills case, 1961-1 Lab LJ 1=(AIR 1961 SC 970) (supra), 5 and to the trend of judicial precedents on the point in question. In deciding the case of Laxman in the way the Madhya Pradesh High Court did, they followed their own earlier Division Bench judgment which was contrary to the view of the Punjab High Court. The only other case to which Mr. Bhagirath Dass referred On this point is the judgment of the Bombay High Court in Savatram Ramprasad Mills Co. Ltd., Akola v. Baliram Ukandaji, AIR 1963 Bombay 189. It may be noticed that the observations of the Bombay High Court in the aforesaid case were not approved by the Supreme Court in the Central Bank of India case, AIR 1964 SC 743 (supra). The Labour Court appears to have gone entirely wrong in holding that though there was no statutory bar to the jurisdiction vested in the Labour Court by Section 33C (2) of the Act, some kind of implied bar on general principles could be created in the way of the petitioners. Error of law in the decision of the Labour Court on the second preliminary issue is, therefore, equally obvious, and the said decision is also set aside.” The Hon’ble High Court of Mysore, in B. Narasimha Pai v. Damodara Bhat, 1971 (1) Labour Law Journal 452 has held that section 15 of the Payment of Wages Act does not take away the power vested in Labour Court by virtue of section 33 C (2) of the Industrial Disputes Act, 1947. Their Lordships of Hon’ble High Court, Mysore have held as under: “Shri Shivaramaiah, the learned Counsel for the first respondent, supports the second respondent's order on a ground different from that which has been set out in the impugned order. The first respondent's contention is that in view of S. 15 of the Payment of Wages Act, the authority that can entertain the petitioner's application is the authority appointed under that section. He points out that in exercise of powers under the aforesaid section, the State has appointed the District Magistrate, South Kanara District as the authority for South Kanara District. He also points out that the Payment of Wages Act being a special enactment and the jurisdiction having been vested in the District Magistrate, South Kanara, the Labour Court viz., the second respondent, cannot entertain 6 any petition which comes under the provisions of S. 15 of the Payment of Wages Act, 1936. It is seen that under S. 22 of the said Act, bar of suits has been provided. Section 22 reads as follows: "No Court shall entertain any suit for the recovery of wages or of any deduction from wages in so far as the sum so claimed- (a) forms the subject of an application under S. 15 which has been presented by the plaintiff and which is pending before the authority appointed under that section or of an appeal under S. 17; or (b) has formed the subject of a direction under S. 15 in favour of the plaintiff; or (c) has been adjudged, in any proceeding under S. ,15, not to be owed to the plaintiff; or (d) could have been recovered by an application under S. 15." “It is significant that the Payment of Wages Act, 1936 while providing for bar of suits does not provide for bar of proceedings under S. 33C(2) of the Industrial Disputes Act, 1947. Section 33 C(2) of the Industrial Disputes Act, 1947 provides for determination of the benefit in terms of money in very wide terms which as follows : "33 C(2)-Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such benefit should be computed may, subject to any rules that may be made under the Act, be determined by such Labour Court as may be specified in this behalf by the appropriate Government, and the amount so determined may be recovered as provided for in sub-s. (1).." Under this provision, the Labour Court is entitled to decide any claim made by the workman to receive from the employer any benefit which is capable of being computed m terms of money. It appears to us that S. 15 of the Payment of Wages Act, 1936 does not take away the powers vested in the Labour Court by virtue of S. 33C (2) of the Industrial Disputes Act, 1947. It was pointed out that under the Payment of Wages Act 7 1936, a definite period of limitation is prescribed for making claims under it. The period prescribed is 12 months from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made as the case may be. For a claim to be made under the provision of S. 33 C(2) of the Industrial Disputes Act, 1947, no period of limitation is prescribed. Therefore, it is contended that the claim which is time barred under the provisions of S. 15 of the Payment of Wages Act, 1936, should not be entertained by the Labour Court on an application filed under S. 33 C (2) of the Industrial Disputes Act, 194 7. Two questions arise in this connection. The first question is whether what is claimed by the petitioner comes within the meaning of wages as defined in the Payment of Wages Act, 1936. This question has not been considered by the first respondent. The 2nd question is whether any claim made under S. 33 C (2) of the Industrial Disputes Act, 1947, is barred by limitation. If the claim is barred under S. 15 of the Payment of Wages Act, 1936, an application under that section cannot be entertained, and this does not prelude a claim being made under S. 33 C (2) of the Industrial Disputes Act, 1947, if the claim is made within a reasonable time. The principles that apply for raising an industrial dispute under the Industrial Disputes Act, in so far as the belatedness or otherwise of the claims, would apply to a claim made under S. 33 C (2) of that Act. This aspect came up for consideration before the Gujarat High Court in Ambika Mills Ltd. v. Second Labour Court [1967-II L.L.J.800 (Guj.)]. One of the contentions raised in that case was that the applications were filed for recovering the wages and the remedy was to proceed under the provision of S. 15 of the Payment of Wages Act. The provisions of sub-s. (2) of S. 33 C of the Industrial Disputes Act, being of a general nature and the provisions of S. 15 of the Payment, of Wages Act, being in the special Act, it overrides the provisions of sub-s. (2) of S. 33(C) of the Industrial Disputes Act, and, therefore, the only remedy for the aggrieved workman was to make an application under S.15 of the Payment of Wages Act and applications under sub-s.(2) of So 33C were not maintainable. Dealing with 8 these questions, the Gujarat High Court observes as hereunder : "The right of the worker to recover the amount due to him can be enforced either by following the remedy under S. 15 of the Payment of Wages Act or under the provisions of S. 33 C (2) of the Industrial Disputes Act. These remedies are in the alternative and are independent of each other. It is true that the Payment of Wages Act does provide for a limitation but that period of limitation applies only to the procedure provided by the Payment of Wages Act. The legislature has not provided any limitation for the remedy under S. 33 C (2) of the Act. The remedy to recover the amount due under S. 33 C is an independent remedy". Thus it appears to us that the second respondent has jurisdiction to entertain the petitioner's application and therefore the order rejecting the application is not sustainable in law.” The Division Bench of the Hon’ble Bombay High Court has held in Union of India Vs. Samuel Peters, 1975 (II) Labour Law Journal 185 has held as under: “It is then urged, though for the first time, by the learned counsel for the petitioner that the claim which the respondent No.1 made under S. 33C (2) of the Industrial Disputes Act could properly be made before the Payment of Wages Authority under the Payment of wages Act and in fact it was so made by respondent No.1 and in view of this Special Act, such as the Payment of Wages Act, the general provisions of S.33 C (2) of the Industrial Disputes Act would not be applicable to the respondent No. 1 and the jurisdiction of the Industrial Court under S. 33C (2) of the Act would be barred. There cannot be any dispute that the claim, as in the present case in the absence of anything could be made under the Payment of Wages Act as well as under S. 33C (2) of the Industrial Disputes Act. It is, however, contended by Mr. Palshikar that since this claim could be made under the Payment of Wages 9 Act, which is a Special Act, the jurisdiction of the Industrial Court under S. 33C (2) in respect of such a claim is barred by necessary implication. There is no provision in the Payment of Wages Act excluding the jurisdiction of the Industrial Court under S. 33C (2) and, therefore, the contention is raised that by necessary implication such a jurisdiction is barred. In fact, in S. 22 of the Payment of Wages Act a specific provision has been made to exclude the jurisdiction of civil Court from entertaining a claim which could be made under the Payment of Wages Act. It was intended to exclude the jurisdiction also of the Industrial Court under S. 33C (2) a similar provision could have been made in respect of this also. When a specific provision has been made expressly barring the jurisdiction of some Courts there is no scope of any implication in respect of other Courts. We are, therefore, not in a position to accept the contention of Mr. Palshikar that the jurisdiction of the Industrial Court is barred by necessary implication since there is a provision for determination of such claims under the Payment of Wage's Act. This question in fact is also no 10nger open and has been decided by the several decisions of High Courts including this High Court. There is also a decision of the Supreme Court so far as the Minimum Wages Act is concerned. The Minimum Wages Act contains similar provisions to those of the Payment of Wages Act and the principles laid down in the decisions which considered the provisions of S. 33C (2) of the Industrial Disputes Act, the Payment of Wages Act and the provisions of the Minimum Wages Act, would apply in the instant case also: See: Balaram Abaji v. M. C. Raghojiwalla. A.I.R. 1961 Bom.. 59; M/s Ambica Tobacco, Gondia V. Labour Court, Nagpur, (1968) Mh. L.J. 10, Ambica Mills Ltd. Ahmedabad V. 2nd Labour Court, [1967-II LLJ 800], Lal and Company V. R.N. Kulkarni [1968-II LLJ 518] and Indersingh v. Labour Court, AIR 1969 P. &H.310. The Hon’ble High Court of Madras, in R.K. Reddiar V. Labour Court, Madurai, 1976 (2) Labour Law Journal 218 has held as under: “On that view of the matter, we considered that such a computation is competent only under S. 33C (2) of the 10 Industrial Disputes Act. That provision is wide enough to cover that relief and in our opinion, there is nothing in common between the scope of S. 15 of the Payment of Wages Act and that of S. 33C (2) of the Industrial Disputes Act Where jurisdiction is concurrent under different provisions in different enactments and the jurisdiction under one of those provisions is general and is of a larger scope, it may be possible to take the view that the general and wider jurisdiction should yield place to the special jurisdiction and that only after exhausting the latter, the general jurisdiction can be resorted. Equally, it may be said that, since the jurisdiction is concurrent, there is no legal bar to the wider jurisdiction being invoked without resorting to the special jurisdiction. But this aspect of the matter does not arise for our consideration in these cases, as we are of opinion that the scope of S. 15 of the Payment of Wages Act and that of S. 33C (2) of the Industrial Disputes Act are not concurrent, but different the former being confined only to the, two limited reliefs, which we have indicated. On that view, ,it would follow that Ismail, J. came to the correct conclusion. “Our attention has, however , been invited to some of the decided cases, which we shall briefly notice. For the appellants, reference has been made to Laxman v. Dayatal Meghji & Co.,[1968-I L.L.J 139]; A.I.R. 1967 M.P. 155, and Lakshmi Mills Co; Ltd. V. Labour Court, [1962-I L.L.J. 493]; A.I.R. 1962 Madras, 385, decided by one of us. The first of them held that the Labour Court had no jurisdiction to entertain an application under S.33C (2) of the Industrial Disputes Act for recovery of the difference wages actually paid and the wages payable under the Madhya Pradesh Minimum Wages Fixation Act, 1962. A Division Bench there was of the opinion that there was no indication whatever either in S. 33C(2) of the Industrial Disputes Act or in S. 15 of the Payment of Wages Act or in the Supreme Court decision in Central Blank of India 'V'. Rajagopalan, [1963-ll L.L.J. 89]; A.I.R. 1964 S.C. 743, that the scope of S. 33C (2) was wide enough to include claims under S. 2 (vi) and 15 of the Payment of Wages Act. But this view of the Madhya Pradesh High Court was based on its construction 11 of sub-s. (1) of S. 33C of the Industrial Disputes Act and in the light of it, of the scope, of sub-s. (2) of that section. Though Lakshmi Mills Co. Ltd. v. Labour Court (supra) took somewhat such view we do not think that that view can be sustained in view of the later decisions of the Supreme Court, as for instance in Central Bank of India v. Rajagopalan, (supra) .There the Supreme court specifically held that since sub-s. (2) of S. 33C has not repeated the words of limitation in sub-s. (1) the scope of sub-s. (2) must be held to be wider than that of sub-s. (1). On the above view of the matter, we are inclined to think that since the jurisdiction under S. 33C (2) of the Industrial Disputes Act is not concurrent, but they are different 'in their nature and scope, lit was competent for the Presiding Officer, Labour Court, to entertain the applications for computation of the allowances in terms of money and proceed under sub-s. (2) of that section. Accordingly, Writ Appeals Nos. 249 and 336 of 1970 as well as Writ Appeal No.95 of 1971 are dismissed, but with no costs. We may record that so far as respondents 1, 4 and 5 in Writ Appeal No.95 of 1971 are concerned, they do not press their claim.” Similarly, the Full Bench of the Hon’ble Madhya Pradesh High Court in Mohd. Ismail V. Central Govt; Industrial Tribunal, 1980 LAB.I.C. 112 has held as under: “However the Division Bench decision of this Court in Laxmaln Tulsiram v. Dayalal Meghji & Co. (Supra) is the solitary decision which has taken a contrary view and has held that in view of Section 22 of the Payment of Wages Act a claim could be entertained under Sections 2 (vi) and 15 of the Payment of Wages Act and not under S. 33-C (2) of the Industrial Disputes Act. This has been followed by another Division Bench decision in Managing Director, N. C. D. C. Ltd. v. G.C. Agarwal (Supra). With great respect we express our doubt about the correctness of the decision in Laxman Tulsiram v.. Dayalal Meghji & Co. (Supra). The Supreme Court in Shri Ambika Mills & Co. v. S. B. Bhatt (Supra) has only said that the matters which lie within the jurisdiction of the 12 authority under the Payment of Wages Act are excluded from the jurisdiction of the ordinary civil Courts i. e. claims arising out of deduction Or delay in payment of wages. The jurisdiction conferred on the authority is limited by section 15 and it is excluded as prescribed by Section 22 i. e. there is bar of civil suit only, and the provision cannot be read as to debar Labour Court under Section 33-C (2) from entertaining such claim. The Supreme Court in Central Bank of India v. Rajgopalan (Supra) also clearly mentioned that an application Under Section 33-C (2) may also include a claim which is not based on settlement, award or made under the provisions of Chapter V-A as mentioned in Section 33-C (1). The Supreme Court in Bombay Gas Co. v. Gopal Bhiva (Supra) has upheld that order of the Labour Court allowing a similar claim under Section 33-C (2) although such a claim was barred Under Section 15 of the Payment of Wages Act there being a limitation