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Bombay High CourtIndian Cases

Ramakant Rajmangal Yadav vs Ramnilan Vijay And Ors. on 8 October 1987

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Bombay High Court
Ramakant Rajmangal Yadav vs Ramnilan Vijay And Ors. on 8 October, 1987
Equivalent citations: (1987)89BOMLR538, (1993)IIILLJ692BOM
JUDGMENT

H.H. Kantharia, J.

1. Respondent Nos. 1 to 5 made application (IDA) No. 3083 of 1977, under Section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the “I.D. Act”), in the Labour Court, Bombay, presided over by Respondent No. 17, against the petitioner and Respondent No. 16 for computation of money due to be on the ground that they were in the permanent employment of the petitioner and Respondent No. 16 and were performing the jobs of reconditioning steel or galvanising drums which work came within the purview of an Engineering Industry and as per a notification issued by the Government of Maharashtra under the Minimum wages Act, 1948, prescribing the minimum wages for the Engineering Industry with effect from 1st Dec., 1974, they be paid the difference between the wages actually paid to them and to which they were entitled under the Minimum Wages Act for the Engineering Industry under the said notification. They thus claimed Rs. 2,77,916/- for all of them.

2. Their application was resisted by the petitioner contending that the Labour Court had no jurisdiction to try and decide the claim under Section 33-C(2) of the I.D. Act and except the first four or five respondents, others were never in his employment. The petitioner also contended that he did not carry on business in an Engirecring Industry as alleged and that prior to 1st Dec., 1974, he was paying minimum wages to his employees as prescribed for the employees working in a commercial establishment under the Bombay Shops and Establishments Act, 1948, as he was running a purely commercial establishment.

3. Appreciating the evidence adduced before him, the learned Labour Judge rejected all the opntentions of the petitioner and accordingly by his judgment and order dated 28th Nov., 1983 allowed the application and ordered the petitioner to pay Rs. 2,27,916/- to Respondent Nos. 1 to 15.

4. Being aggrieved, the petitioner filed this writ petition under Article 226 of the Constitution.

5. At the time of admission; the petitioner filed a statement in this Court (marked ‘X’ ), indicating the amounts due and payable to the first four respondents and undertook to pay the same within four weeks. Mr. Shastri, learned Advocate appearing on behalf of Respondent Nos. 1 to 15, accepted the said amounts in full satisfaction of the claims of Respondent Nos. 1 to 4. As regards the claims of Respondent Nos. 5 to 15, rule-nisi was issued and interim relief staying the execution of the impugned order was also granted to the petitioner on his furnishing security for half the amounts awarded to Respondent Nos. 5 to 15. We are, therefore, now, concerned with the claims of Respondent Nos. 5 to 15 only. They shall hereinafter be referred to as “the workmen”.

6. Mr. Cama, learned Advocate appearing on behalf of the petitioner, raised in all five contentions for my consideration. The first point which he made is that the petitioner’s establishment was never an Engineering Industry and always was and is covered by the Shops and Establishments Act. The submission is that the workmen are not entitled to the minimum wages permissible in an Engineering Industry under the notification in question. In this connection, he referred to Entry No. 36 of the Schedule, Part 1, to the Minimum Wages Act, 1948, which read as under:

“Employment in engineering industry (not being an employment falling under entry 26 in this Part), that is to say, any industry engaged in any manufacturing process in relation to any machinery, tools, instruments, utensils or articles, or parts thereof, manufactured from ferrous or non-ferrous metals or any alloys (including manufactures of ancillary products for automobile industry, manufacture of bicycles including its spare parts) and processes connected therewith such as shaping, pressing, extrusion, turning, fabricating, processing, smelting, refining, drilling, cutting, joining, grinding, forging, welding, buffing, electroplating and moulding.
Explanation:- For the purpose of this entry, the expression “manufacturing process” shall have the same meaning as is assigned to it in Clause (k) of Section 2 of the Factories Act, 1948.”
Mr. Cama vehemently urges that this Entry is divided into two parts that (i) there should be an Engineering Industry and (ii) the other processes should be connected therewith. The submission is that there is no evidence on record to show that the petitioner here was engaged in an Engineering Industry because he does not manufacture any product meaning he does not produce a new item of any commodity as he only repairs old drums. To substantiate his argument Mr. Cama relied upon a judgment of a Division Bench of this Court (D.P. Madon and M.H. Kania, JJ.) in Commissioner of Sales Tax v. Habib Kasambhai 1975 Sales Tax Cases, Vol., 35, Page 560 and submitted that it was held therein that for an activity to amount to manufacture it must result in a different commercial article or commodity.

7. There is no dispute about this proposition of law but the fundamental question is that the Division Bench was dealing with a matter covered under the provisions of the Bombay Sales-Tax Act and the learned Judges were considering whether or not purchase of old and empty drums and resale them after repairing would amount to “manufacturing” for the purpose of levying sales-tax on such a commercial commodity. They were thus concerned with the definition of the word “manufacture” under Section 2(17) of the Bombay Sales-tax Act, 1959, which reads as under:

“manufacture”, with all its grammatical variations and cognate expressions, means producing, making, extracting, altering, ornamenting, finishing, or otherwise processing, treating, or adapting any goods; but does not include such manufactures or manufacturing processes as may be prescribed.”
9th October 1987 And here we are concerned with the meaning of the word “manufacturing” as is assigned to it in Clause (k) of Section 2 of the Factories Act. 1948, which reads as under:

“manufacturing process” means any process for –
(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal; or
(ii) pumping oil, water, sewage, or any other substance; or (in) generating, transforming or transmitting power; or
(iv) composing types for printing, printing letterpress, lithography, photogravure or other similar process or book-binding; or (v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; or
(vi) preserving or storing any article in cold storage.”
The said Division Bench distinguished and differentiated between the term “manufacture” as is found in the Sales – tax Act and the one under the Factories Act in the following manner;

“In the first place, as we have already pointed out in our decision in Commissioner of Sales Tax v. Dunken Coffee Manufacturing Co. (S.T.R. No. 9 of 1973), the definition of the expression “manufacture” in Clause (17) of Section 2 of the said Act has to be interpreted bearing in mind the fact that it has been inserted in the setting and context of a sales tax legislation of which the pith and substance is a tax primarily on the sales of goods and subsidiarily on the purchase of goods. The said Act is a piece of fiscal legislation , whereas the Factories Act is a piece of social welfare legislation, and it would be highly dangerous to interpret the definitions of terms in a fiscal statute in the light of the definitions or interpretations given to similar terms in a social welfare legislation. Apart from this, we may point out that the definition of the expression “manufacturing process” in Section 2(k) of the Factories Act clearly specifies that the process of generation, transforming or transmitting power would amount to a manufacturing process, and hence on the very terms of that definition, transforming electrical energy from a high to a low potential and the process of transmitting such energy through supply lines were both manufacturing processes. It is very significant that in the definition of the expression “manufacturing process” under the Factories Act, it has been provided, inter alia that repairing, oiling, washing and cleaning would be processes amounting to “manufacturing process” for the purposes of that Act, whereas under the said Act none of these activities are included even in the comprehensive definition given to the term” manufacture” in Section 2(17) of the said Act.”
Therefore, the question raised by Mr. Cama has already been answered by the Division Bench itself and I have nothing further to add but, that apart, the evidence, in the present case, makes it crystal clear that the business activities of the petitioner amounted to manufacturing process in an Engineering Industry. Thus, it was averred in the application by the workmen that they had been performing the jobs of reconditioning steel or galvanising drums. Except a bare word of the petitioner in the written statement that they were/are never an Engineering Industry, no other particulars were mentioned in the written statement to point out as to how and why the manufacturing activities of the petitioner would not come within the definition of an Engineering Industry. Moreover, the evidence of one of the workmen- Ramnihan Vijayee- shows that he was doing the job of cleaning old drums by putting them in shape etc. He further deposed that he used to keep those old drums in machine in order to put them in shape and he was also welding and again cleaning those old drums. He was removing old paints of the old drums and painting them again. In the cross-examination he said that dents in the old drums were removed by hands and a machine was installed to fill water in the drums. Thereafter air was filled in the drums by hand pumps and after such pressure was given the drums are emptied and were brought in proper shape by hammering. The drums were again cleaned by caustic soda and repainted. Painting work was done by machines. Welding work was done by gas welding.

Another workman- Ramnayan Sudhali- deposed that spray painting, welding and airpumping were done by machines. The petitioner adduced his own evidence but did not speak a single word about his actual business activities. The evidence, on the record, read as a whole, leaves not even an iota of doubt in my mind that the petitioner was running an Engineering Industry and the workmen were entitled to the minimum wages under the Minimum Wages Act prescribed by the notification in question effective from 1st Dec., 1974.

8. The second and third contentions of Mr. Cama can be dealt with together. He submits that (i) it is only when there is a dispute as to computation of money or benefit which is capable of being computed in terms of money that an application under Section 33-C(2) of the I.D. Act can lie and (ii) since this is a claim under the Minimum Wages Act, the proper forum would be the authority appointed under Section 20 of the said Act. The submission is that there is nothing to compute in terms of money if the workmen are entitled to wages under the Minimum Wages Act for which the proper forum would be the authority appointed under Section 20 of the Minimum Wages Act. To substantiate his argument, Mr. Cama relied upon a Supreme Court judgment in State of Punjab v. Labour Court, Jullunder and Ors. wherin it was held:

“The payment of Gratuity Act enacts a complete code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. Parliament intended that proceedings for payment of gratuity due under the Payment of Gratuity Act must be taken under that Act and not under any other Act. Therefore, the applications filed by the employee under Section 33-C( 2) of the Industrial Disputes Act did not lie, and the Labour Court has no jurisdiction to entertain and dispose of them.”
Mr. Cama also relied upon a judgment by a Division Bench of this Court (Deshmukh, C.J. and Mrs. Sujata Manohar, J.) in Pascoal D’Souza v. The Bombay Municipal Corporation and Anr. 1981 Lab.I.C. 34 and invited my attention to para 12 which reads as under:

“Assuming therefore, that there can be a claim which will legitimately fall under Section 15 of the Payment of Wages Act as also under Section 33-C(2) of the industrial Disputes Act, can it be said that this kind of claim before us is covered by both, and therefore, an application under Section 33-C(2) could not be said to be bad? Having given our anxious consideration to the arguments on either side and the interpretation of Section 33-C(2) of the industrial Disputes Act by the Supreme Court, we are of the view that the nature of the present dispute is such that it falls under Section 15(1) of the Payment of Wages Act squarely, and therefore, there is nothing to be investigated under the provisions of Sub-section (2)of S. 33-C of the Industrial Disputes Act. The reason is obvious. What is due to the workmen is never the subject matter of controversy. Whether he is paid full amount due or there has been some deduction is the only narrow question to be considered and answered in the present case. Such a dispute being of a very narrow nature of a limited character, would, legitimately fall under Section 15(1) of the payment of Wages Act. That authority having been created specifically for certain claims which must be raised within the period of limitation, we think that a marginal or narrow dispute of that type must be confined to the provision of Section 15(1) of the Payment of Wages Act. Such a dispute cannot be taken to the forum contemplated under Section 33-C(2) of the Industrial Disputes Act for the simple reason that neither the entitlement nor the amount due and payable to the workman is in doubt. In our view, therefore, the present dispute should have been lodged before the payment of wages Act authority, and the Presiding Committee of the Industrial Court or Labour Court had no jurisdiction to entertain such a petition under Section 33-C(2) of the Industrial Disputes Act. It cannot be said that the provision of the payment of Wages Act as also the provision of Section 33-C(2) of the Industrial Disputes Act are common for every type of claim regarding payment between the employer and the employee. Though some claims may be over laping and may legitimately fall under either of these provisions, so far as the dispute of the present types is concerned, we are of the view that it squarely falls under Section 15(1) of the Payment of Wages Act alone and does not seem to have any legitimate place for the enquiry contemplated by Section 33-C(2) of the Industrial Disputes Act. The Presiding Officer of the Labour Court has thus taken a correct view of the matter and has lawfully rejected the application filed by the workman before him.”
9. I am afraid, these judgments are of no avail to Mr. Cama. Firstly, the Minimum wages Act is not a self-contained code like the payment of Gratuity Act and secondly the Division Bench of this Court decided the matter before it involving a dispute of Rs. 100/- in the facts and circumstances of that case. Therefore, both the judgments are irrelevant to the issues involved in this case. A single judge of this Court (Dhabe, J.) in Prabhat Enlarging Works, Nagpur v. Prabhakar Antaramji Bagmare and Ors. 1985 Lab.I.C.1185 held:

“It is thus clear that the Minimum Wages Act, 1948 is primarily concerned with fixation of rates of minimum wages and resloving disputes, if any, about the said rates and is not concerned with enforcement of payment of wages for which the relevent provisions are contained in the Payment of Wages Act, 1936 and this Act. As such, the remedies under the said Act for enforcement of payments of wages cannot be barred by Section 20 of the Minimum Wages Act, 1948. It may also be pertinently seen that Section 24 of the said Act bars a remedy of civil suit only for recovery of wages and not the remedies under any other Act which would show that the remedy under this Act for recovery of wages is not barred. The second contention, therefore, that the Minimum wages Act, 1948, is a self-contained Code and, therefore, the instant applications under Section 33-C(2) of the Act are barred must, therefore, fail. I am supported in my view by the Divison Bench decisions of this Court in the cases of Union of India v. Samuel Peters 1975 Mah. L.J. 390; Chief Officer, Muncipal Council, Akola v. Second Labour court, Nagpur 1975 Mah.LJ.556: (1975 Lab.I.C.1644); and Lal & Co. v. Kulkarni (R.N.)1968 2 Lab. L.J. 518 in which the claims of the employees for arrears of minimum wages have been held to be maintainable under Section 33-C(2) of the Act. The above decisions of this Court are binding upon me.”
Further, a Division Bench of this Court (Qazi and Vaze, JJ) in Municipal Council, Achalpur v. Shaikh Rahim Shaikh Rustam and Ors. 1985 (1) C.L.R. 62 observed as under:

“The provision of Section 20 of the Minimum Wages Act, 1948, and Section 33-C(2) of the Industrial Disputes Act, 1947 are not inconsistent with or repugnant to each other. Section 20 of the Minimum Wages Act, is therefore, not an exclusive remedy in supersession of the remedy provided by Section 33-C(2) of the Industrial Disputes Act. A workman can make an application under Section 33-C(2) of the Industrial Disputes Act for recovery of wages even though he can recover the same by making an application under Section 20 of the Minimum Wages Act.”
This being the position in law, I find no substance in contention Nos. 2 and 3 of Mr. Cama.

10. The fourth contention of Mr. Cama is that there is no evidence on record to show that the concerned workmen worked for as many number of years as they claimed. This submission of Mr. Cama is also meritless. We are now concerned only with Respondent Nos. 5 to 15 as the claims of Respondent Nos. 1 to 4 who worked with the petitioner for ten to fourteen years are already settled. Respondent Nos. 5 to 15 worked with the petitioner for eight to twelve years as can be seen from their application under Section 33-C(2) of the I.D. Act. Ram Nihal deposed that he was in the services of the petitioner for about 13 years. Similarly, Ramnayan Sudhali deposed that he worked with the petitioner for 13 years and along with him were other 17 workmen in the employment of the petitioner. The petitioner Ramakant Yadav in his evidence did not speak a word contradicting the above evidence adduced on behalf of the workmen except making a vague statement that all the 15 workmen were not in his employment for the present . In other words, the petitioner, in the Labour Court, did not dispute the period of employment of the workman with him. His case there was that at the time of giving evidence on 19th March, 1983 the workmen were not in his employment.

11. The last contention of Mr. Cama is that out of fifteen workmen only two entered the witness box and their evidence is not sufficient to draw inferences against the petitioner as was done by the Labour Court. To this, the reply is simple that it is not the quantity of the evidence, but the quality of the same, which is to be looked into and the evidence has to be read as a whole. Regard being had to the entire evidence on record, I am more than convinced about the case of the workmen and that all the contentions raised on behalf of the petitioner are not only frivolous but also bogus.

12. It may be recalled here that Respondent Nos. 1 to 15 had in all claimed Rs. 2,27,916/-out of which the claims of Respondent Nos. 1 to 4 are settled. It means that the claims of the first four respondent to the extent of Rs. 69,576/-were settled for whatever amounts they got. Therefore, the claims of Respondent Nos. 5 to 15 to the extent of Rs. 1,58,340/- remains to be considered. As against this, the petitioner has now, without prejudice, filed calculations as to the amount due to Respondent Nos. 5 to 15 for the relevant period from 1st Dec., 1974 to 30th Sept., 1977 as under:

Name Difference per month Total months Total difference payable Less Leave Balance payable Rs.
Rs.
Rs.
Rs.
1.
Rajaram Lautan 169/-

5746.00 5259.00

2. Ramadhar Munosar 182/-

6188.00 5642.00

3. Munnar Chotkar 169/-

5746.00 5259.00

4. Jamina Jaglal 117/-

3978.00 3627.00

5. Sevak Gundun 104/-

3536.00 3224.00

6. Aasmohammed Mustakhimkhan 104/-

3536.00 3224.00

7. Chunilal Buddu 104/-

3536.00 3224.00

8. Ramchander Ramiydi 104/-

3536.00 3224.00

9. Jairam Thunsilal 104/-

3536.00 3224.00

10. Israyil Mohammed Hakit 136.50 4641.00 410.50 4240.50

11. Parag Budal 130.00 4420.00 4030.00 47399.00 4231.50 43167.50 Mr. Shastri accepts these calculations as correct and he submits that Respondent Nos. 5 to 15 are ready and willing to accept the same in full and final satisfaction of their claims for the period from 1st Dec., 1974to 30th Sept. 1977. Therefore, nothing remains to be computed in terms of money as to what exactly is payable to Respondent Nos. 5 to 15. They can be paid money as per the calculations filed by the petitioner as above.

13. In the result, the writ petition fails and the same is dismissed. The petitioner is directed to pay the amounts due to Respondent Nos. 5 to 15 as calculated by him, stated in the last para, on or before 31st October, 1987 failing which he shall be liable to pay interest at the rate of 15% per annum on the said amounts. The petitioner had furnished security as ordered by this Court on 12th March, 1984. The said security shall not be discharged till the entire amounts due to Respondent Nos. 5 to 15 are paid up by him.

14. Rule is discharged with cost quantified at Rs. 11,000/- which shall be divided by and between Respondent Nos. 5 to 15 equally (Rs. 1,000/- each).