Case: Bombay Gas Co. Ltd Vs. Jagannath Pandurang &amp; Others

1. This appeal, on certificate, by the Bombay Gas Co. Ltd., is directed against the judgment and order dated February 6, 1967, of the Bombay High Court in Special Civil Application No. 1987 of 1965. The High Court set aside the decision of the Court of Small Causes, Bombay, in Payment of Wages Appeals Nos. 162 and 163 of 1962 and remanded the proceedings to the Additional Authority for calculating and awarding overtime wages that may be due to the respondents Nos. 1 to 80 herein. The High Court further reversed the decision of the Court of Small Causes, Bombay, in Payment of Wages Appeal No. 61 of 1963 and restored the orders passed by the Third Additional Authority in favour of the respondents Nos. 81 to 118 herein, regarding their right to get wages for weekly off days. C.M.P. No. 1300 of 1972 is an application filed by the respondents in the civil appeal for revoking the certificate for leave to appeal to this Court granted by the High Court to the appellant herein.We will briefly state the circumstances under which the appeal has come to this Court on certificate : The respondents Nos. 1 to 14 who were employed under the appellant as syphon pumpers filed on March 3, 1958, before the Additional Authority 14 applications under S.15 of the Payment of Wages Act (hereinafter to be referred as the Act) claiming overtime wages for the period, February, 1957 to January, 1958. On the same date the respondents Nos. 15 to 80, who were employed under the appellant as mains workers filed before the same authority-66 applications claiming overtime wages for the same period, the claim was substantially based upon the provisions of the Bombay, Shops and Establishments Act, 1948 (hereinafter to be referred as the Establishments Act). The appellant raised two grounds of defence : (a) The claims were barred by the award, Part II of the Industrial Tribunal, Bombay, dated March 30, 1950 in Reference (I.T.) No. 54 of 1949; and (b) the applicants were not workmen covered by the Establishments Act. On October 13, 1962, the Additional Authority held that the award referred to by the company was no bar to the said employees claiming overtime wages. But the said authority accepted the contention of the company that the applicants are not covered by the Establishments Act, which gives them the benefit of weekly off days with wages under S. 18(3). In this view the applications filed by the respondents Nos. 1 to 80 herein were dismissed. The said applicants filed before the Court of Small Causes, Bombay, which was the Appellate Authority, Payment of Wages Appeals Nos. 162 and 163 and 163 of 1962, challenging the decision, dated October 13, 1962, of the Additional Authority, dismissing their applications.During the years 1962-63, the respondents Nos. 81 to 118 herein in the Civil Appeal filed 38 applications before the Third Additional Authority under S.15 of the Act claiming wages for weekly off days. The said respondents were working in mains, heating appliances and fitting departments of the appellant. Here again, the basis of the claim was under the provisions of the Establishments Act. The appellant raised the same two defences as in respect of the claim for overtime wages. The Third Additional Authority, by its judgment, dated April 26, 1963, held that the award, Part II of the Industrial Tribunal, Bombay, dated March 30, 1950 in Reference (I.T.) No. 54 of 1949 is no bar to entertain the applications of the said employees. The said authority further held that the district office in which the said applicants were employed is a "Commercial Establishment" under the Establishments Act and as such they were entitled to wages for weekly off days under S.18(3) of the said Act. Accordingly, the said authority directed the appellant to pay the amounts mentioned in the judgment to respondents Nos. 81 to 118 and also to pay certain amount by way of compensation. The appellant filed Payment of Wages Appeal No. 61 of 1963 before the Court of Small Causes, Bombay, which was the Appellate Authority, challenging the decision of the Third Additional Authority dated April 26, 1963 regarding payment of wages for weekly off days.4. All the three appeals, namely, Payment of Wages Appeals Nos. 162 and 163 of 1962 relating to overtime wages, filed by the respondents Nos. 1 to 80, and Payment of Wages Appeal No. 61 of 1963 filed by the company relating to wages for weekly off days decreed to respondents Nos. 81 to 118 were heard together and disposed of by a common judgment, dated February 11, 1965, by the Appellate Authority, the Court of Small Causes, Bombay. It was held that the claims of all the workmen for overtime wages and wages for weekly off days were barred by the award, Part II, dated March 30, 1950 of the Industrial Tribunal, Bombay, in Reference (I.T.) No. 54 of 1949 and that said award was still in force and binding on the parties. Accordingly, the Payment of Wages Appeals Nos. 162 and 163 of 1962 were dismissed and Payment of Wages Appeal No. 61 of 1963 was allowed. The result was that the applications filed by the employees before the Additional Authority and the Third Additional Authority stood dismissed.It must, however, be stated that though the Appellate Authority, the Court of Small Cases, Bombay held that the claims of all the workmen, both for overtime wages and weekly off days wages, were barred by the award, nevertheless it also considered the question whether the workmen are employed in a "Commercial Establishment" so as to claim relief under the Establishments Act. The Appellate Authority held that the district office of the company though situated within the compound of the factory is a "Commercial Establishment" under the Establishments Act. Accordingly, the Court of Small Causes agreed with the finding of the Third Additional Authority that the workmen were governed by the provisions of the Establishments Act and as such are entitled to the benefits conferred on them by that Act. However, in view of the fact that the claims of all the workmen were held to be barred in view of the award in Reference (I.T.) No. 54 of 1949, the workmens appeals were dismissed and the appeal filed by the company was allowed. As stated earlier, the decision of the Court of Small Causes resulted in the dismissal of all the applications filed by the workmen before both the Additional Authority and the Third Additional Authority.6. All the 118 workmen filed before the Bombay High Court, Special Civil Application No. 1987 of 1965 under Arts. 226 and 227 of the Constitution for quashing the judgment of the Court of Small Causes, Bombay, dated February 11, 1965. By its judgment and order, dated February 6, 1967, the High Court held that neither the claim of the respondents Nos. 1 to 80 for overtime wages, nor the claim of the respondents Nos. 81 to 118 for wages for weekly off days was barred by the award, Part II, dated March 30, 1950 in Reference (I.T.) No. 54 of 1949. So far as the respondents Nos. 1 to 80 were concerned, the High Court has set aside the judgment of the Court of Small Causes, Bombay, as well as the order, dated October 13, 1962, of the Additional Authority and remanded their applications to the latter for ascertaining and decreeing the amount of overtime wages that may be due to them. Regarding the respondents Nos. 81 to 118, the High Court has set aside the judgment of the Court of Small Causes, Bombay, and restored the order, dated April 26, 1963, of the Third Additional Authority recognising their claim for wages for weekly off days.It is seen from the judgment of the High Court that the company did not challenge the finding of the Court of Small Causes that the workmen are employed in a "Commercial Establishment" and as such are entitled to the benefits of the provisions of the Establishment Act. The High Court has also stated that the reason given by the counsel appearing for the company for not challenging that finding was that it was not open to the company, which was a respondent in the writ petition to challenge the said finding in those proceedings. Therefore, the High Court has adjudicated upon the only question whether the award bars the claims of the workmen as held by the Court of Small Causes. On this point, as pointed out earlier, the High Court disagreed with the decision of the Court of Small Causes.The appellant filed on April 6, 1967, in the High Court, Application No. 869 of 1967 praying for the grant of a certificate of fitness to enable it to appeal to this Court. In the application of the appellant, after setting out the nature of the applications filed before the Additional and Third Additional Authorities, the amounts claimed by the workmen, the decision of the said two authorities as well as the judgment and order of the Court of Small Causes, and the High Court, it was stated that the amount of value of the subject-matter before all the authorities, in the appeals, as well as in the High Court and still in dispute in the proposed appeal to this Court, was Rs. 20,000 and upwards. It was further stated that in any event the case is a fit one for appeal to this Court. Accordingly, the appellant prayed for the grant of a certificate that the amount or value of the subject-matter in the said Special Civil Application, applications before the Additional and Third Additional Authorities, in the appeals before the Court of Small Causes and in dispute in the proposed appeal to this Court was Rs. 20,000 and upwards or, in the alternative, on the ground that the case is a fit one for appeal to this Court.It will be seen, that though the appellant did not specify under which clause of Art. 133(1) the certificate was asked for, nevertheless a perusal of the averments made in the petition and the prayers made therein show that the appellant was asking for a certificate under cls. (a) and or (c) of Art. 133(1). The High Court, after hearing all parties, by its order, dated October 19, 1967, directed a certificate to issue under Art. 133(1)(b) of the Constitution. On the basis of the said certificate, the petition of appeal has been lodged by the appellant in this Court on December 16, 1967.10. The respondent has filed C.M.P. No. 1300 of 1972 requesting this Court to revoke the certificate granted to the appellant by the High Court on October 19, 1967. If the certificate is revoked, that will result in our holding that the appeal is not competent. Hence, we will deal with the application for revocation of the certificate.The appellant, relying on the calculation filed by it before the High Court, has further stated in its affidavit, dated February 18, 1972, filed in opposition to the application for revocation, that on the basis of the claim for weekly off wages in the sum of Rs. 6,675.84 for one year, if calculated for the subsequent years up to February 6, 1967, the date of the judgment of the High Court, the amount will aggregate nearly Rs. 30,000. Similarly, in respect of overtime wages, on the basis of the claim made by the workmen, if calculated up to February 6, 1967, the amount will exceed the sum of Rs. 20,000. It will be seen that if the claims made before each of the authorities for the particular periods alone are taken into account, the total claims will be less than Rs. 20,000. It is really that claim which was the subject of consideration by the High Court in the writ petition. Is it open to the appellant to add to the original claim made by the workmen, the further amount calculated by it till the date of the judgment of the High Court and establish that as the total amount so arrived at is not less than Rs. 20,000, Art. 133(1)(b) can be invoked on the ground that the judgment of the High Court directly or indirectly involves a claim in respect of property of the value of not less than Rs. 20,000 ?

Reasoning:
16. From the above, it will be seen that the High Court has not given any indication as to how it issued the certificate under Art. 133(1)(b). But one thing is clear that it did not grant the certificate on the basis of the claim made by the appellant either under cl. (a) or cl. (c) Art. 133(1). On the basis of the claims made by the workmen as overtime wages and weekly off days wages for the particular periods, the appellant had calculated at the same rate for even subsequent periods till the date of the judgment of the, High Court and claimed that the amount or value in dispute in appeal to this Court is over Rs. 26,822.09. The appellant had also raised a point in its further affidavit before the High Court that it will have to meet in future also claims from its workmen and as such it will have to face a recurring liability. On this basis the appellant has raised a plea that the judgment of High Court involves directly or indirectly a claim or question respecting property of the value of Rs. 20,000 and more. In view of the fact that the High Court has granted the certificate under Art. 133(1)(b), it has to be presumed that it has accepted the appellants plea that a certificate could be granted under the said clause when there is a recurring liability, which, if calculated for subsequent years will be at least Rs. 20,000 and more. TheEven on the basis of the valuation worked out by the appellant, it is seen that the claim for overtime wages which was filed before the Additional Authority was valued only at Rs. 18,221.25 as per the amended claim at 1 1/2 times of wages, though according to the respondents the amount of claim does not exceed Rs. 10,660. Similarly, the claim for weekly off wages filed by another set of workmen before the Third Additional Authority, even as per the appellants calculation was only Rs. 6,675.84. The claim for overtime wages and weekly off wages, each of them taken separately does not exceed Rs. 20,000. Though the appeals against the decision of the two authorities were filed before the Court of small Causes, it is to be noted that separate appeals were filed by different workmen and the appellants in respect of these two different categories of claims. Though the Court of Small Causes disposed of all the appeals by a common judgment, nevertheless, the claim in respect of overtime wages was dealt with apart and different from claim for weekly of wages. Even before the High Court, though one writ petition was filed by all the workmen, the claims under two different heads for overtime wages and weekly off wages were dealt with separately by the High Court. It is not as if that the reasons given by the High Court for upholding the claims for overtime wages automatically resulted on the allowing of the claim for weekly off wages also. In fact entirely different considerations apply for the two different sets of claims and that has been kept in view by the High Court. Though, ultimately, the High Court has delivered only a common judgment, nevertheless, the decision related to two different sets of claims, each having nothing in common with the other. Therefore, it was not open to the appellant to ask this Court to proceed on the basis that there was only one single and common claim dealt with by the High Court in its judgment. Therefore, there was no question of any consolidation of all the claims before the High Court. In this view, it will be seen that, even according to the calculations made by the appellant, the value of the subject matter of the claim with respect to overtime wages can only be the same as was before the Additional Authority, namely, Rs. 18,221.25, which is less than Rs. 20,000. Similarly, the amount or value of the claim which was adjudicated upon by the High Court in respect of weekly off wages was also of the same value as Rs. 6,675-84. As was the case before the Third Additional Authority, which claim is also less than Rs. 20,000. Therefore, considering the matter from this point of view, it is clear that the value of the subject-matter of the claim before the High Court in respect of each of these matters was less than Rs. 20,000.The appellant, as mentioned earlier, has calculated at the same rate as claimed for overtime wages and weekly off wages for subsequent years up to the date of the judgment of the High Court and has stated that so calculated the amount or value of the subject-matter of the claim relating to weekly off wages exceeds Rs. 30,000. Similarly, the amount or value of the subject-matter of the claim of overtime wages exceeds Rs. 20,000 and hence it is stated that the judgment of the High Court involves directly or indirectly a claim or question respecting property of the value of Rs. 20,000 and more.From the facts in that case it is clear that the High Court was dealing with the question whetherthe decision of the High Court will have far reaching effect on the other properties of the appellant therein, though those properties were not thesubject-matter of disputein the appeal.This decision in fact emphasises quite rightly that to attract cl. (b) of Art. 133(1) one has to look to the effect of the judgment sought to be appealed against on other properties which are not thesubject-matter of disputeand are not comprised as such in the litigation.Similarly, the decision of the Madras High Court in Commissioner of Income-tax, Madras v. S. L. Mathias, A.I.R. 1938 Mad. 352,   is also of no assistance to the appellant. The facts of the said decision show that the High Court was of the view that there is a difference of opinion between the High Courts on the effect of the proviso 2 to S.4(2) of the Indian Income-Tax Act, 19221922. The High Court was of the view that "there can be no doubt that the question involved is a substantial question of law", and on this basis granted a certificate of fitness. It is clear that the High Court granted the certificate on the ground that there was a substantial question of law involved in the appeal and as such it was a fit one for appeal to the Judicial Committee.32. Mr. Sorabji then referred us to the decision of the Madras High Court in G. Appuswamy Chettiar and another v. R. Sarangapani Chettiar and others, (1965) 1 I.L.R. Mad. 361. In that case the suit was for a declaratory relief regarding the invalidity of the adoption of a particular person. The certificate was asked for on the ground that the decision of the High Court involves directly or indirectly a claim or question respecting property of the value of Rs. 20,000 and more. It was accepted by the High Court that if leave to appeal was not granted to the petitioners therein, they will lose an estate worth more than Rs. 68,000 though the estate itself was not directly thesubject-matter of disputeeither in the trial Court or the High Court. The High Court further held that in a suit for a declaration of adoption a claim made by the reversioners to the property cannot be considered to be too remote. It is on this ground that the certificate was granted. It is clear from the judgment of the High Court that final decision of the high court in that case did affect the rights of the petitioners therein to properties of the value of more than Rs. 68,000. It is on that basis that the certificate was granted under Art. 133(1)(b).In our opinion, the decisions relied on by Mr. Sorabji do not support his contention that the certificate granted by the High Court, in the case before us, under Art. 133(1)(b) is proper and valid. In fact the said decisions clearly bring out the distinction between cls. (a) and (b) of Art. 133(1) and they lay down that only when the judgment or final order affects property which is not the subject-matter of the litigation Art. 133(1)(b) will apply. Those decisions are in conformity with the principles laid down by this Court in Chhitarmal v. M/s. Shah Pannalal Chandulal, (1965) 2 S.C.R. 751.34. It is clear that interest, unless granted by the decree of the trial Court, cannot be notionally added to inflate the value of the claim in the appeal so as to make it appear that on the date of the judgment of the High Court the value is not less than Rs. 20,000. On the same principle, we have already pointed out that mesne profits, which have not been decreed by the trial Court, cannot be added to the original claim made in the suit, so as to enable a party to plead that the value in the proposed appeal on the date of the judgment of the High Court is more than Rs. 20,000.35. We may refer to the decision of the Judicial Committee in Moti Chand and others v. Ganga Parshad Singh and another, 29 I.A. 40, where interest awarded under the decree of the trial Court was taken into account for the purpose of considering the value in the appeal before the High Court. The suit was for recovery of a certain amount together with interest. The trial Court passed a decree for Rs. 9,496 and awarded interest to the plaintiff at Rs. 570 per year on the decreed amount, until realisation. By the time the High Courts decree was made, the amount at issue had reached to Rs. 10,636 with further contingent increment. Under S. 596 of the old Civil Procedure Code, certificate was asked for from the High Court for leave to appeal to the Judicial Committee. The High Court declined to grant the certificate on the ground that the amount or value of the subject-matter of the suit in the Court of first instance was not Rs. 10,000 as required by the said section, though the amount or value of the matter in dispute on appeal to Her Majesty in Council was above Rs. 10,000. No doubt, this decision is not on the question regarding matters covered by cl. (b) of Art. 133(1). But we are only referring to this decision to show that interest can be taken into account for the purpose of considering the value in an appeal, provided the decree itself has awarded interest.We may also refer to the decision of the Judicial Committee in Surapati Ray and others v. Ram Narayan Mukherjee and others, 50 I.A. 155. In that decision the question arose under S. 110 of theCode of Civil Procedure, 1908, regarding the validity of the certificated granted by the High Court. Though the rent claimed in the suits was less than Rs. 10,000 the High Court had granted a certificate of fitness on the ground that the value of the subject-matter was over Rs. 10,000. The objection taken before the Judicial Committee regarding the validity of the certificated on the ground that the subject-matter was below the appealable value, was rejected as followsThe subject-matter in dispute relates to a recurring liability and is in respect of a property considerably above the appealable value. The certificate in the circumstances is quite in order".It is to be noted that the liability which was being denied as due to the landlord, by way of rent from the lands in question was in respect of the properties in question and it was on that basis that the certificate was held to be valid.38. Both the above decisions of the judicial Committee have no application to the facts of the present case on hand. The principle is that a claim made by one party and resisted by another is ordinarily the subject-matter of the dispute in the trial Court and continues to be the subject-matter in the appellate Courts. In the case before us the claims for overtime wages and weekly off wages before the authorities were for a specified period. The claims for the identical periods were the subject-matter in the appeals before the Court of Small Causes. The High Court had also to consider the correctness of the decision of the Court of Small Causes regarding the claims made by the workmen for the particular periods. The appellant was not entitled to notionally add on to the amount originally claimed by the workmen for particular periods, any further amounts on the ground that they must be considered to have accrued due to the workmen till the date of the judgment of the High Court. If the subsequent additions made to the original claim are accepted and correct, then the position would be that if it is an ordinary civil litigation, the subject-matter of the suit and its value would vary with the length of time during which the suit may be pending in the Courts. Such a position is not warranted by the provisions of Art. 133(1) as laid down by this Court in Chhitarmal v. M/s. Shah Pannalal Chandulal, (1965) 2 S.C.R. 751. If in the proposed appeal to this Court there is no claim or question raised respecting property, other than the subject matter of dispute, cl. (a) of Art. 133(1) will apply. That clause has not been invoked in this case by the High Court.It is not possible to accept the contention of Mr. Sorabji that as the appellant will have to face from its workmen in future claims similar to the one recognised by the High Court, there is involved a claim or question in respect of property of the value of not less than Rs. 20,000 in addition to or other than the subject-matter of appeal. In the first place, this contention proceeds on the assumption that the judgment of the High Court directs the appellant to pay in future amounts not less than Rs. 20,000. This assumption is basically erroneous, as there is no such direction given by the High Court. The payment of wages as for overtime or weekly off days will depend upon several circumstances. If overtime work is not taken, then no payment need be made. If overtime work is taken for a lesser time, then the amount to be paid will also be less.40. In our opinion, this is not a case where the decision of the High Court, apart from dealing with the subject-matter in dispute before it, has the effect of affecting the rights of the appellant, regarding other properties, including money. We may give an instance where a final judgment may have an impact or affect properties, other than the subject-matter in dispute. In a suit for mandatory injunction directing a defendant to vacate a land, the subject-matter of the suit may be only of the value of Rs. 1,500, but the decree granted by the High Court may result in the defendant therein being obliged to remove buildings worth more than Rs. 20,000 so as to give vacant possession of the land in accordance with the decision of the High Court. In such a case, though the value of the subject-matter in dispute before the High Court may be only Rs. 1,500, the judgment can be considered to involve indirectly a claim or question respecting property (in this case the buildings) of the value of not less than Rs. 20,000. Such a case may attract Art. 133(1)(b). The position before us is entirely different. The judgment of the High Court has only adjudicated upon the subject-matter of the specified claim of the workmen which was, as mentioned earlier, for a particular period. That judgment does not involve directly or indirectly, apart from the subject-matter of the writ petition, any claim or question respecting property or money of the value of Rs. 20,000 and more. In this view, we are of the opinion that the certificate granted by the High Court under Art. 133(1)(b) is not valid and proper.In the view that we take that the certificate granted by the High Court is not valid and that the appeal brought on such a certificate is not sustainable, we do not express any opinion on the merits, though arguments were heard on the same.42. As the certificate issued by the High Court under Art. 133(1)(b) is not proper and valid, the only course open to us is to revoke the certificate and set aside the order of the High Court granting the same.