IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.12.2011 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN Writ Petition Nos.16436 and 21160 of 2008 V.Muthu .. Petitioner in W.P.No.16436 of 2008 R.Balasubramanian .. Petitioner in W.P.No.21160 of 2008 Vs. 1. The Presiding Officer, Labour Court, Cuddalore. 2. The President, Palampoondi Village, Sathampadi Post, Gingee Taluk, Villupuram District. .. Respondents in W.P.No.16436 of 2008 1. The Presiding Officer, Labour Court, Cuddalore. 2. The President, Melsithamur Panchayat, Gingee Taluk, Villupuram District. .. Respondents in W.P.No.21160 of 2008 Writ Petition No.16436 of 2008 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandmaus, to call for the records relating to the order of the first respondent in C.P.No.23 of 2007, dated 11.6.2008 and quash the same and further direct the first respondent to compute the claim petition without following the period of limitation. Writ Petition No.21160 of 2008 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandmaus, to call for the records relating to the order of the first respondent in C.P.No.2 of 2007, dated 11.6.2008 and quash the same and further direct the first respondent to compute the claim petition without following the period of limitation. For petitioners: Mr.K.Vasudevan in both the WPs. For respondents:R-1 Court in both the Writ Petitions : R-2 notice Served-- No appearance in W.P.No.16436/2008 : Mr.C.Prabhakaran for Mr.T.Seenivasan in W.P.No.21160/2008 https://hcservices.ecourts.gov.in/hcservices/ ORDER The employees of the second respondent-Village Panchayats, raised the question as to whether the first respondent-Labour Court can reject the claim of the petitioners-employees seeking for compassionate appointment on the ground of delay alone, without considering the merits of the case, vide impugned orders dated 11.6.2008 in C.P.Nos.23 and 2 of 2007, respectively, which have been called in question, seeking to quash the same and also to direct the first respondent-Labour Court to compute the claim petitions (computation petitions) without following the period of limitation. 2. The case of the petitioners in both the writ petitions are as follows: (a) The petitioners were working as Pump Operators in the second respondent-Panchayat and served for more than 34 years and 15 years respectively, without any adverse remarks. They claim that though the Government passed various orders from time to time extending certain benefits to the Pump Operators, the same have not been paid to them by the second respondent-Panchayat at any time. (b) As per the Government Orders in G.O.Ms.No.449, Labour and Employment Department, dated 6.6.1977, the Government fixed the minimum wages to the Pump Operators and Sanitary Workers, and the same was not implemented by the heads of the Departments on the ground that the petitioners were not eligible for the minimum wages. It appears that one T.R.Ramanath, the Secretary of the South Arcot District Municipal Panchayat Workers' Union, Gingee, Villupuram District, has filed a Writ Petition in W.P.No.11902 of 1995 and this Court, by order dated 18.9.1995, disposed of the said Writ Petition with certain observations. (c) The petitioners have filed Claim Petitions under Section 33-C (2) of the Industrial Disputes Act, 1947 (for shot, 'the ID Act') before the first respondent-Labour Court. The first respondent-Labour Court, while computing their claim, passed the impugned orders, stating that they have no claim towards their dues from the second respondent-Panchayat (employers) within a period of three years from the date when the wages become due, without going through the provisions of Section 33-C(2) of the ID Act. 3. In these Writ Petitions, the petitioners challenge the impugned orders passed by the first respondent-Labour Court on the ground that there is no period of limitation while computing the claim amounts and no time limit has been prescribed for filing the petitions under Section 33-C(2) of the ID Act, which primarily deals with the computation of wages due under the settlement or award, and if the wages are paid by the employer to the employee, the employers suffer no loss and the employees-workmen (petitioners) could utilise the money, which is rightfully due to them. The legislative policy https://hcservices.ecourts.gov.in/hcservices/ appears to be that even though the workmen does not come to the Court immediately on the accrual of wages or even within the period of limitation period under Article 137 of the Limitation Act, their right should not be defeated. The workmen's money is lying in the trust with the employer and it could be recovered at any point of time, as there is no third party right accrued, and therefore, no period of limitation has been prescribed for claiming the wages, and hence, the impugned orders passed by the first respondent-Labour Court are liable to be set aside. Hence, the petitioners have filed these writ petitions to quash the impugned orders. 4. No counter affidavit has been filed by the second respondent- Panchayat before this Court. In the counter affidavit filed before the first respondent-Labour Court, the second respondent-Panchayats took a stand that the claim petitions were not maintainable, as the petitioners were only part-time employees and further that the Government Orders are not applicable to them, and the claim should be made as and when it has become due and the arrears cannot be claimed, and therefore, the claim petitions filed by the petitioners are hit by delay and latches, and hence, the second respondent-Panchayat prayed for dismissal of the claim petitions. 5. Mr.K.Vasudevan, learned counsel appearing for the petitioners- employees, in his submissions, strenuously contended that the impugned orders passed by the first respondent-Labour Court are contrary to the object of the provisions of the ID Act, and particularly, when the claim under Section 33-C(2) of the ID Act is made, it is incumbent upon the first respondent-Labour Court to compute the wages due under the settlement or award, if the same are not paid by the employer to the employee for a long time, and when the employer suffers no loss, the Court has to compute the amounts due under wages and pass an award, but on the contrary, in the present case, the first respondent-Labour Court dismissed the claim petitions on the sole ground of delay, and therefore, the impugned orders are liable to be set aside. 6. In support of his submissions, learned counsel appearing for the petitioners-employees relied on the following decisions of the Supreme Court: (a) 1963 (2) LLJ (SC) 608 = AIR 1964 SC 752= 1964 SCR (3) 709: (Bombay Gas Co. Vs. Gopal Bhiva): "In dealing with this question, it is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting S.33C(2). The failure of the legislature to make any provision for limitation cannot, in our opinion, be deemed to be an accidental omission. In the circumstances, it would be https://hcservices.ecourts.gov.in/hcservices/ legitimate to infer that legislature deliberately did not provide for any limitation under S.33C(2). It may have been thought that the employees who are entitled to take the benefit of S.33C(2) may not always be conscious of their rights and it would not be right to put the restriction of limitation in respect of claim which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is treated as relevant, it is well- known that a decree passed under the Code of Civil Procedure is capable of execution within twelve years, provided of course it is kept alive by taking steps in aid of execution from time to time as required by Art.182 of the Limitation Act; so that the test of one year or six months' limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims. It seems to us that where the legislature has made no provision for limitation, it would not be open to the Courts to introduce any such limitation on grounds of fairness or justice. The words of S.33C(2) are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any considerations of limitation. Mr.Kolah no doubt emphasised the fact that such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may take into account, and if the legislature feels that fair play and justice require that some limitations should be prescribed, it may proceed to do so. In the absence of any provision, however, the Labour Court cannot import any such consideration in dealing with the applications made under S.33C(2)." (b) 1968 (1) LLJ (SC) 6 = AIR 1968 SC 218 = 1968 SCR (1) 140 (East India Coal Co. Vs. Rameshwar): "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 Company (Bombay Gas Co. Vs. Gopal Bhiva = 1963 (2) LLJ 608 = AIR 1964 SC 752= 1964 SCR (3) 709) 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 https://hcservices.ecourts.gov.in/hcservices/ 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 inducting a 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 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 (Bombay Gas Co. Vs. Gopal Bhiva = 1963 (2) LLJ 608 = AIR 1964 SC 752= 1964 SCR (3) 709) Sri.Gokhale conceded that he could not press the contention that the present claims were barred by limitation or laches." and (c) AIR 1970 SC 209 = 1969 (2) SCC 199 = 1970 SCR (1) 396: (Nityananda.M.Joshi Vs. Life Insurance Corporation of India) : "3. In our view Article 137 (of the Limitation Act) only contemplates applications to Courts. In the Third Division of the Schedule to the Limitation Act, 1963, all the other applications mentioned in the various articles are applications filed in a court. Further S.4 of the Limitation Act, 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is "when the court is closed". Again under S.5 it is only a court which is enabled to admit an application after the prescribed period has expired if the court is satisfied that the applicant had sufficient cause for not preferring the application. It seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to courts, and that the Labour Court is not a court within the Indian Limitation Act, 1963." 7. On the other hand, Mr.C.Prabhakaran, learned counsel, representing Mr.T.Seenivasan, learned counsel on record for the second respondent-Panchayat (employer) in W.P.No.21160 of 2008 contended that the petitioner in W.P.No.21160 of 2008 has filed the claim petition after 13 years the amount became due, and therefore, https://hcservices.ecourts.gov.in/hcservices/ it is a belated claim, and hence, the claim petition is not maintainable and the first respondent-Labour Court considered the oral and documentary evidence, and rightly rejected the claim of the petitioner. As per the provisions of the ID Act, the claim has to be made within a period of 3 years from the date when the amount accrues, and the first respondent-Labour Court, while partly allowing the claim petition, ordered payment of the amount retrospectively, i.e. three years from the date of claim petition, which is not sustainable and the same is liable to be dismissed. 8. On the above background of pleadings, I have heard the submissions made by the learned counsel appearing on either side, and perused the records and the impugned orders, and given thoughtful consideration to the case on hand. 9. Admittedly, the petitioners were the employees under the second respondent-Panchayat (employer) and worked for 34 years and 15 years respectively. 10. As per the Government Order in G.O.Ms.No.449, Labour and Employment Department, dated 6.6.1979, the Government fixed the minimum wages to the Pump Operators and Sanitary Workers, and the same was not implemented by the heads of the Departments on the ground that the petitioners were not eligible for the minimum wages. It appears that one T.R.Ramanath, the Secretary of the South Arcot District Municipal Panchayat Workers' Union, Gingee, Villupuram District, has filed a Writ Petition in W.P.No.11902 of 1995 and this Court, by order dated 18.9.1995, disposed of the said Writ Petition, observing as follows: "The petitioner is a Joint Secretary of the Union. Though nothing is stated abut the members of the Union in the affidavit, learned counsel at the Bar stated that the Union has membership numbering 40,000. The prayer made in the writ petition is for a direction to the State Government and the Director of Rural Development to implement G.O.Ms.No.449, dated 6.6.1977. In the affidavit filed in support of the Writ Petition, it is stated that by the said GO, minimum wages of Sanitary Workers and Watchman were fixed at Rs.100/- per month and for Pump Operators at Rs.150/- plus D.A. That GO, it is stated, has not been given effect to for the last eighteen years. The petitioner has not sought any legal remedy in the interval. According to the petitioner, the Court's jurisdiction has been invoked for the first time after 18 years after the G.O. was issued and the implementation of which is now sought for. Even according to the petitioner, several events had accrued subsequent to the issue of the GO. According to the petitioner, there was some agitation in the year 1987 and the discussion are said to have taken place in the https://hcservices.ecourts.gov.in/hcservices/ year 1989. 2. At this distance of time, when admittedly the GO has not been implemented for 18 years and several events had occurred thereafter and when the matter was also so discussed among the parties, it is not possible to issue a Writ of Mandamus to implement that order. It is, however, open to the petitioner and members of the Association of which they are said to be the office bearers, to make appropriate claims before the Labour Court under Section 33-C(2) of the Industrial Disputes Act to the extent to which they are entitled to claim the benefits under law. 3. The writ petition is disposed of with the above observations." 11. In the above background, the petitioners have made their claim by filing computation (claim) petitions before the first respondent-Labour Court under Section 33-C(2) of the ID Act, however, the said claim petitions were partly allowed extending the benefits only for a period of three years from the date of filing of the claim petitions and for the earlier period as sought for by the petitioners in the Claim Petitions, it was denied by the first respondent-Labour Court on the ground that the claim was belated, and hence, any claim made after three years from the date when it becomes due, cannot be allowed, and therefore, the first respondent-Labour Court partly allowed the claim for the period of three years from the date of filing of the claim petitions, and dismissed the claim petitions on the ground of limitation for the earlier period as sought for by the petitioners-employees (workmen before the Labour Court). 12. In this regard, it is worthwhile to quote Section 33-C(2) of the I.D. Act, as follows: "Section 33-C: Recovery of money due from an employer-- .... (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months: Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit." 13. It is seen from the said order dated 18.9.1995 passed by this https://hcservices.ecourts.gov.in/hcservices/ Court in W.P.No.11902 of 1995 that the delay therein had been explained by the petitioner before this Court in respect of the claim for implementation of G.O.Ms.No.449, dated 6.6.1977, Labour and Employment Department, after 18 years and the petitioner therein has explained the delay by mentioning about the happenings of some agitation in the year 1987 and the discussion said to have taken place in the year 1989 and therefore, this Court has considered the aspect of delay and directed the petitioner therein and the members of the Association, of which, they are said to be the office bearers, to make appropriate claims before the Labour Court under Section 33-C (2) of the ID Act. 14. That being the order of this Court in the said W.P.No.11902 of 1995, the first respondent herein (Labour Court) could have considered the delay in filing the claim petitions, which has been properly explained by the petitioners-employees before the first respondent-Labour Court, and it could have taken sympathetic view of the matter for consideration of their belated claim and though necessary/relevant documents have not been marked as exhibits before the first respondent-Labour Court, the delay has been properly explained by the petitioners-employees to the satisfaction of the Court and the delay has also been properly explained even in the affidavit filed in support of these Writ Petitions, coupled with the other documents filed in support of the Writ Petitions in the typed set of papers. 15. It also appears that the claim for wages by the petitioners- employees is based the Government Orders marked as exhibits on the side of the petitioners-employees. The benefits enunciated in these Government Orders accrue to the petitioners/employees and the same has to be paid if they are otherwise eligible. If that is so, the first respondent-Labour Court, ought to have taken into account the scheme of the provisions of the ID Act, based on the legislative policy and even if the petitioners-workmen do not come to the Court immediately on the accrual of the wages or even within a period of limitation prescribed under Article 137 of the Limitation Act, their right could not be defeated or deprived on the ground of limitation alone. The petitioners-workmen's money is lying in the trust of the second respondent-Panchayat (employer) and therefore, the period of limitation cannot be a legal impediment to reject their claim. The wages are not a bounty paid by the employer, but it is only their entitlement after they have duly put in their blood-shedding efforts in their employment, as per the provisions of the ID Act. 16. It is seen from the decision of the Supreme Court reported in 1963 (2) LLJ (SC) 608 = AIR 1964 SC 752= 1964 SCR (3) 709: (Bombay Gas Co. Vs. Gopal Bhiva) (cited supra), relied on by the learned counsel for the petitioners-employees, that though the Legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how the limitation had been prescribed in https://hcservices.ecourts.gov.in/hcservices/ that behalf, it has omitted to make any provision for limitation in enacting Section 33-C(2) of the ID Act; the failure of the Legislature to make any provision for limitation, could not be deemed to be an accidental omission; in the circumstances, it would be legitimate to infer that the Legislature deliberately did not provide for any limitation under Section 33-C(2) of the ID Act and it may have thought that the employees who are entitled to take the benefit of Section 33-C(2) of the ID Act, may not always be conscious of their rights and it would not be right to put the restriction of limitation in respect of the claim, which they have made to make the said provision; where the Legislature has not made any provision for limitation period, it would not be open to the Courts to introduce any such limitation on the ground of fairness of justice. A plain and own reading of Section 33-C(2) of the ID Act makes it clear that it would be the duty of the Labour Courts to give effect to the said provisions of the I.D. Act, without consideration of the limitation period and take a sympathetic view in the facts and circumstances of the case and award the claim amounts as per law. 17. The above legal principles have not been taken note of by the first respondent-Labour Court. The first respondent-Labour Court shall not deny the benefits claimed by the petitioners-employees based on the Government Orders marked before the first respondent- Labour Court, apart from the Government Order in G.O.Ms.No.449, Labour and Employment Department, dated 6.6.1979. It is the duty of the Labour Court to look into the merits of the case and analyse upon the petitioners' legal entitlement and consider their claim in the light of the legal principles laid down by the Supreme Court from time to time and in the absence of any claim by third party regarding their accrued rights, the amount should have been ordered to have been paid and the money is pending before the employer in trust and the amount could be recovered by the employees at any point in the absence of the Legislature's prescription for limitation in the provisions of Section 33-C(2) of the Act, and therefore, the view taken by the first respondent-Labour Court to reject the claim of the petitioners based on the limitation so as to deprive them of their legitimate wages accrued, is not legally justifiable and the conclusions arrived at by the first respondent-Labour Court are against the principles/rules of law and natural justice and the same is arbitrary, capricious and unjust in the eye of law, and hence, the impugned orders of the first respondent-Labour Court are liable to be set aside on this narrow compass. 18. Accordingly, these Writ Petitions are allowed, setting aside the impugned orders of the first respondent-Labour Court insofar as denial of wages from the date actually it accrued, is concerned and the impugned orders of the Labour Court are confirmed in respect of the claim granted for the period of three years from the date of claim petitions. The matter is remanded to the first respondent- Labour Court for fresh consideration by conducting de-novo trial, to https://hcservices.ecourts.gov.in/hcservices/ compute the wages of the petitioners herein, from the date actually it accrued as claimed in the claim petitions filed by the petitioners, excluding the period of three years from the date of claim petitions, as already awarded by