Reached Daily Limit?

Explore a new way of legal research!

Click Here
Bombay High CourtIndian Cases

Sharda Industries And Engineering … vs Chandraball S/O. Harbans Choube And … on 18 September 1987

Print Friendly, PDF & Email

Bombay High Court
Sharda Industries And Engineering … vs Chandraball S/O. Harbans Choube And … on 18 September, 1987
Equivalent citations: (1994)IIILLJ310BOM
JUDGMENT

H.W. Dhabe, J.

1. This is a writ petition arising out of the proceedings Under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short, “the Act”).

2. The respondent No. 1 was working as Tongsman in the petitioner’s steel industries. He was suspended pending enquiry by an order dated 9.12.1978. He was thereafter dismissed on 4.9.1979. He challenged his dismissal before the competent Labour Court and the order of dismissal was set aside and the petitioner was directed to be reinstated in service with full back wages and continuity of employment. The order of the Labour Court was finally confirmed by this Court.

3. The respondent No. 1 thereafter filed the instant application Under Section 33-C(2) of the Act in which his main grievance was that he was not paid the wages of semi-skilled categories fixed under the notification in regard to the engineering industries under the Minimum Wages Act. The period of claim is from 1.1.1978 to 31.12.1982. According to him, the total difference payable to him under the Minimum Wages Notification for semi-skilled category and his existing wages which are paid at the rate of Rs. 50/- per month was Rs. 20,393.38 out of which he was already paid an amount of Rs. 9,979.93. Thus the actual difference in wages payable to him was Rs. 10,413.45. He also made a claim of encashment of leave with wages under the provisions of the Factories Act which was granted to him because of his forced unemployment by reason of the order of dismissal. He further claimed bonus at the rate of 20% under the Payment of Bonus Act for four years from 1978 to 1981. He calculated the claim on account of leave encashment at Rs. 1,692.80 and the amount of bonus for the aforesaid four years at Rs. 3,058/-. He thus made a total claim against the petitioner in the sum of Rs. 15,164.25 in his claim petition. The petitioner filed its written statement an denied the claim made by the respondent No. 1. In particular it was claimed that the petitioner did not belong to semiskilled category and the dispute whether he belonged to semi-skilled category on unskilled category could not be adjudicated by the learned Labour Court in his limited jurisdiction Under Section 33-C(2) of the Act.

4. The parties led evidence in the instant proceedings. The learned Labour Court on the basis of the evidence on record held that the categories were fixed by the Minimum Wages Notification itself and the only question which the Labour Court had to see was whether by reason of duties performed by the respondent No. 1 he belonged to semi-skilled category or un-skilled category. The learned Labour Court thus held that the claim petition filed by the respondent No. 1 was maintainable and he had jurisdiction to decide the same. As regards the question whether by reason of the duties performed by the respondent No. 1 he belonged to semi- skilled category or the unskilled category the learned Labour Court held in favour of the respondent No. 1 holding that he belonged to the semi-skilled category. The learned Labour Court also held on merits that the respondent No. 1 was entitled to difference in the minimum rate of wages fixed for the semi- skilled category and the existing wages paid to the respondent No. 1. He also held that he was entitled to encashment of leave and bonus. The learned Labour Court noticed that the respondent No. 1 has not given allowance for Rs. 2,000/- which was deposited by the petitioner in the High Court and which he had withdrawn. He thus held that the respondent No. 1 was entitled to an amount of 13,464 on account of the claims made by him in the instant claim petition. Feeling aggrieved, the petitioner has preferred the instant writ petition in this Court.

5. The first question raised on behalf of the petitioner is that since there is a dispute of categorisation of employees the Labour Court had no jurisdiction to decide the same under his limited jurisdiction Under Section 33-C(2) of the Act. It is clear from the Minimum Wages Notification that the categorisation of skilled, semi-skilled and unskilled is made by the said notification itself. In the Notification these expressions are defined and, therefore, the only task left is to decide by reason of the duties performed by the employees concerned in which category they fall. It is well-settled that such a dispute is within the jurisdiction of the Labour Court Under Section 33-C(2) of the Act because no new right is intended to be created and the claim as set out by the respondent No. 1 is only in relation to the execution of the right conferred upon him by the notification under the Minimum Wages Act, 1948. The claim petition has therefore rightly been held to be maintainable under Section 33-C(2). The above contention raised on behalf of the petitioner is, therefore, rejected.

6. The next question of law urged before me is that unless an employee has actually worked he is not entitled to leave with wages Under Section 79 of the Factories Act. In support of the above submission the learned counsel for the petitioner has relied upon decision of the Andhra Pradesh High Court in the case of Workmen, Bangagora Tea Estate v. Management of Bangagora and Anr. 1971 LIC 5 I 8. The said decision no doubt supports him. However, thereafter there is a recent decision of the S.C. in the case of Workmen of American Express International Banking Corporation v. Management of A.E.I.B. Corporation, interpreting the same expression ”expression” actually worked” occurring in Section 25B of the Act. The Supreme Court has held that the expression “actually worked under the employer” cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, Standing Orders etc.

7. Applying these tests it is clear that the respondent No. 1 would be deemed to be in employment once he is reinstated in service. He has also been paid wages for the said period. The test, therefore, laid down in the above case relating to actual work is satisfied in the instant case. Even the continuity of service is granted to him by the learned Labour Court while directing his reinstatement. He thus satisfies the test laid down by the Supreme Court in the above decision. He would, therefore, be entitled to encashment of leave with wages in accordance with the provisions of the Factories Act. As regards the actual amount granted by the learned Labour Court of leave with wages no dispute is raised by the petitioner.

8. As regards the claim of the difference in wages the main submission on behalf of the petitioner is that the respondent No. 1 is unskilled employee as is clear from his duties. It is urged that his principal duties are of lifting red-hot iron material with a pair of tongs. According to the learned counsel for the petitioner this is an un-skilled job. He has drawn my attention to the definitions of the expression “semi-skilled” and “unskilled” given in the Minimum Wages Notification. The same are reproduced below:

“Semi-skilled: A semi-skilled employee is one who has sufficient knowledge of that trade to be able to do repetitive work and simple job with the help of simple tools and/or machines.
Un-skilled : An un-skilled employee is one who does work that involves the performance of the simple duties which require the exercise of little or no independent judgment or previous experience although a familiarity with the occupational environments is necessary. His work may thus require in addition to physical exertion, familiarity with a variety of articles or goods. No workman shall be classified as unskilled if he is called upon to operate any machine. The watchmen, Peons, Chowkidars, Sweepers, Scavengers and employees doing the work of similar nature shall be classified as unskilled”.
9. It is clear from the definition of the expression “unskilled” that it requires little or no independent judgment or previous experience although a familiarity with the occupational environments is necessary. It is also clear that the work requires mainly physical exertion. However, it is made clear in the said definition that no workman shall be classified as unskilled if he is called upon to operate any machinery. As against this if the definition of the expression “semiskilled” is perused it is clear from the said definition that a semi-skilled employee requires sufficient knowledge of the trade to be able to do repetitive work and he should also be able to do simple jobs with the simple tools or machines. Here in the instant case admittedly the work is done by the respondent No. 1 with a pair of tongs in the atmosphere of very high temperature with necessary wearing apparel. In the facts of the instant case it cannot, therefore, be said that the respondent No. 1 is not a semiskilled employee. The finding rendered by the learned Appellate Court in this regard is, therefore, correct and has to be upheld. At any rate, it cannot be said to be perverse.

10. As regards the computation of the claim of the difference in wages there is some substance in the contention raised by the petitioner in this regard. According to the learned counsel for the petitioner the claim is made by the respondent No. 1 for a period prior to the date of his dismissal and also for a period subsequent to the date of his reinstatement. According to him in the schedule filed by the respondent No. 1 he has not given any allowance for the wages which are already paid to him at the rate of Rs. 250/- per month. Further, his contention is that as regards the period of suspension from 9.12.1978 to 4.9.1979, 50% of the wages for the suspension period were paid to him for which also no allowance is given by the respondent No. 1 in the aforesaid schedule. The paid wages for which allowance is not given, according to the petitioner, are as follows:-

(a) For a period from 1.1.1978 to 30.11.1978 no allowance is made for a payment of Rs. 2,750/- at the rate of Rs. 250/- per month.
(b) 50% of wages paid for the period of suspension Rs. 984.77; and
(c) For a period from 23.9.1982 i.e. the date of reinstatement to 31.12.1982, 3 months and 8 days Rs. 816.67.
After deducting the above amount along with the amount of Rs. 2,000/- of which deduction is allowed by the learned Labour Court the total on account of difference in minimum wages payable to the respondent No. 1 would be Rs. 3,795.34.

11. As regards the claim for bonus under the Payment of Bonus Act it is not in dispute that the petitioner has paid 20% bonus to its employees for the years 1978 to 1982. As regards bonus the learned counsel for the petitioner has been fair enough not to challenge the findings of the learned Labour Court in that regard, although the learned Labour Court included the claim for bonus for 1982 also which was not strictly speaking claimed by the petitioner in the claim petition.

12. In the result the instant writ petition is partly allowed. The order of the learned Labour Court is modified and in the light of the findings recorded by me the petitioner is directed to pay Rs. 8,845.89 to the respondent No. 1 on account of his claim in the instant case. There would, however, be no order as to costs in this writ petition.