Case: Bombay Gas Co. Ltd Vs. Gopal Bhiva &amp; Ors

when it directly arises. For the purpose of the present appeal, the only point which we have to consider is : does the fact that for recovery of wages limitation has been prescribed by the Payment of Wages Act, justify the introduction of considerations of limitation in regard to proceedings taken under S. 33C(2) of the Act.13. 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 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 and accidental omission. In the circumstances, it would be 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 12 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 consideration 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 limitation 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).14. Mr. Kolah then attempted to suggest that Art. 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years limitation should, therefore, be held to govern them. Article 181 provides 3 years limitation for applications for which no period of limitation is provided else-where in schedule I, or by S. 48 of the Code of Civil Procedure, and the said period starts when the right to apply accrues. 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 as 1993, the Bombay High Court had held in Bai Mankebai v. Manekji Kavasji, ILR 7 Bom 213 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 Co. Ltd., 60 Ind App 13 at p. 20: (AIR 1933 PC 63 at p. 64). An attempt was no doubt made in the case of Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., 1953 SCR 351 at p. 371 : (AIR 1953 SC 98 at p. 104) to suggest that the amendment of Arts. 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 "under 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.15. It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under S. 33C(2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision. In such a case, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government may refuse to make reference in that behalf. But these considerations would be irrelevant when claims are made under S. 33C(2) where these claims are, as in the present case, based on an award and are intended merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice. It can be introduced, if at all, by the legislature. Therefore, we think that the Labour Court was right in rejecting the appellants contention that since the present claim was belated, it should not be awarded.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In our opinion, this contention is well-founded. The proceedings contemplated by S. 33C(2) are in many cases, analogous to execution proceedings and the Labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing court; like the executing court in execution proceedings governed by the Code of Civil Procedure, the Labour Court under S. 33C(2) would be competent to interpret the award on which the claim is based and it would also be open to it to consider the plea that the award sought to be enforced is a nullity. There is no doubt that if a decree put in execution is shown to be a nullity, the executing court can refuse to execute it. The same principle would apply to proceedings taken under S. 33C(2) and the jurisdiction of the Labour Court before which the said proceedings are commenced. Industrial Tribunals which deal with industrial disputes referred to them under S. 10(1) (d) of the Act are, in a sense, Tribunals with limited jurisdiction. They are entitled to deal with the disputes referred to them, but they cannot travel outside the terms of reference and deal with maters not included in the reference, subject of course, to incidental matters which fall within their jurisdiction. Therefore, on principle. Mr. Kolah is right when he contends that the Labour Court would have been justified in refusing to implement the award, if it was satisfied that the direction in the award on which the respondents claim is based is withoutthus dealt with the said four categories by name, the Tribunal thought it necessary, and we think, rightly, to add the words "and others," because if there were other workmen who were till 1948 required to work on Sundays and in respect of whom a weekly days off was introduced thereafter without any corresponding increase in their wages, there was no reason why they should not have been given the benefit which was given to the workmen of the four categories specifically discussed. It is significant that having thus comprehensively described the workmen who were entitled to the said benefit, the Tribunal has added that in respect of the remaining workmen, demand No. 11(a) was rejected. Therefore, we are satisfied that the relief granted by the Tribunal in paragraph 115 of its award has reference to demand No. 11(a) and the use of the words "and others" is not only not outside the terms of reference, but is quite appropriate and justified. That being so, it is difficult to sustain the plea that the impugned direction was withoutour opinion, this fact cannot materially assist Mr. Kolah, because on a fair and reasonable construction of the material direction in the award we are satisfied that the said clause applies to all workers of the appellant who satisfy the test prescribed by it. If the respondents did not understand the true scope and effect of the said clause that cannot affect the construction of the clause. Therefore, we do not think that the failure of the respondents to take advantage of the said clause soon after the earlier award was pronounced can have any bearing on the construction of the clause.our opinion, this argument proceeds on a misconstruction of the relevant clause in the award. The said clause does not provide that before getting the benefit in question, the workers must show that they actually worked on all Sundays in the year. The test which has to be satisfied by the workers is that they could have been required to work on Sunday in that year.Kolah has strenuously argued that the Labour Court should not have allowed the claim of the respondents for such a long period when they made the present applications nearly 8 years after the award was pronounced. It is true that the earlier award was pronounced on May 11, 1950 and the present applications were made in 1958. In support of his argument that the delay made by the respondents should be taken into account. Mr. Kolah was referred to the fact that under the Payment of Wages Act (No. 4 of 1936) a claim for wages has to be made within six months from the date on which the cause of action accrues to the employees. In the State of Maharashtra, by local modification, this period is prescribed as one year. The argument is that the present claim made by the respondents under S. 33C(2) is a claim for wages within the meaning of the Payment of Wages Act. If the respondents had made such a claim before the authority under the said Act, they could not have got relief for more than a year. It would be anomalous, says Mr. Kolah, that by merely changing the forum, the respondents should be permitted to make a claim for as many as 8 years under S. 33C(2). In this connection, Mr. Kolah also contends that by virtue of S. 22 of the Payment of Wages Act, a claim for wages cannot be made by an industrial employee in a civil court after a lapse of one year, because though the period for such a suit may be 3 years under Art. 102, a civil suit is barred by S. 22. The jurisdiction conferred on the payment authority is exclusive and so far as the said Act goes, all claims must be made within one year.Mr. Kolah then attempted to suggest that Art. 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years limitation should, therefore, be held to govern them. Article 181 provides 3 years limitation for applications for which no period of limitation is provided else-where in schedule I, or by S. 48 of the Code of Civil Procedure, and the said period starts when the right to apply accrues.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 as 1993, the Bombay High Court had held in Bai Mankebai v. Manekji Kavasji, ILR 7 Bom 213 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 Co. Ltd., 60 Ind App 13 at p. 20: (AIR 1933 PC 63   at p. 64). An attempt was no doubt made in the case of Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., 1953 SCR 351     at p. 371 : (AIR 1953 SC 98   at p. 104) to suggest that the amendment of Arts. 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 "under 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.15. It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under S. 33C(2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision. In such a case, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government may refuse to make reference in that behalf. But these considerations would be irrelevant when claims are made under S. 33C(2) where these claims are, as in the present case, based on an award and are intended merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice. It can be introduced, if at all, by the legislature. Therefore, we think that the Labour Court was right in rejecting the appellants contention that since the present claim was belated, it should not be awarded.