SAIT NAGJEE PURUSHOTHAM & CO. LTD. Vs. RARUKUTTI

JUDGEMENT

(1.) THIS Civil Revision Petition is directed against the decree in a small cause suit. The plaintiff was working in the shop of the defendant for some years and his services were terminated on 20 -1 -1951. According to the plaintiff he was illegally dismissed without notice and he sued for recovery of one month's salary as well as bonus equal to 6 month's salary. The defence was that the plaintiff left the defendant's service voluntarily, that he was given one month's notice, that he was not entitled to any bonus, that the claim for bonus was not justiciable, that only a sum of Rs. 4/ - was due to the plaintiff as per the defendant's account, and that the suit was barred by limitation. The learned Munsiff upheld the plaintiff's case except as regards bonus in respect of which he held that the plaintiff was entitled only to a sum of Rs. 100/ -. The defendant has preferred this revision petition from the decree. The findings of the trial court on questions of fact such as whether notice was given to the plaintiff and whether the plea of discharge is true are based on evidence. The defendant had no consistent case regarding the circumstances under which the plaintiff's services are terminated. It was stated that the plaintiff left voluntarily and also that one month's notice was given before that. As pointed out by the learned Munsiff (sic) factory evidence has not been given by the defendant on this point. The (sic) discharge was also not proved by reliable evidence. D.W. 1 admitted that the plaintiff had acknowledged in writing receipt of a sum of Rs 100/ -. The (sic) Account -Book in which this was stated to have been entered was not produced. The findings of the trial court on these points do not call for interference.

(2.) IT was contended on behalf of the petitioner that a suit for recovery of salary and bonus was not maintainable and that the plaintiff had to seek his remedy under the Madras Shops and Establishments Act, XXXVI of 1947 and the Payment of Wages Act, IV of 1936. The contention was that these Acts prescribed the machinery and procedure for enforcement of such claims and that Civil Courts could not entertain suits for the same. There is no provision in the Shops and Establishments Act for recovery of salary and bonus. Section 45 of the Act no doubt provides for penalties for contravention of certain provisions of the Act. An employer who fails to pay such sums to an employee as directed under the Act may ma(sic) himself liable to a fine. There is also no provision in the Act which bars a suit in the Civil Court. Learned Counsel for the petitioner cited certain decisions in support of the contention that when a special statute provides a remedy for the first time, that alone should be resorted to. The decisions cited have no application to this case. What was held in K.N. Nagarathnammal v. Ibrahim Saheb ( : A.I.R 1955 Mad. 305) was that where a statute takes over and occupies a field previously not regulated by legislation, the rights and powers conferred and obligations imposed by the Statute must be worked out within the statutory framework. The point for decision in that case was whether the Board of Revenue or the Government had the power to interfere with an order made by the District Collector under S. 10(b) of the Madras Hereditary Village Offices Act, appointing a Deputy to a post registered in the name of a minor. It was held that neither the Revenue Board nor the Government could interfere, as no right of appeal or revision had been provided by the Act. This decision cannot have any application to the facts of this case. The other decision relied on is Joti Prasad v. Amba Prasad ( : A.I.R. 1933 All. 358). It was held in that case that the jurisdiction of Civil Courts to try suits challenging election of Chairman of a District Board was impliedly barred by the U.P. District Boards Act, X of 1922. In my opinion there is nothing in the Shops and Establishments Act which expressly or impliedly bars a civil suit by an employee wrongfully dismissed from service. There is however a provision in the payment of Wages Act which takes away the jurisdiction of civil courts to try a suit for recovery of wages including bonus, which could have been recovered by an application under section 15 of the Act. Section 2 of the Act provides that it applies in the first instance to the payment of wages to persons employed in any factory and to persons employed (otherwise than in a factory) upon any railways by the Railways Administration or, either directly or through a sub -contractor, by a person fulfilling contract with a railway administration. The defendant has no case that the plaintiff was an employee in a factory. Section 2(5) provides :

(3.) THE last point raised is that the suit is barred by limitation. The trial court was of the view that the suit was one on a mutual, open and current account. It was urged that though the account was open and current it could not be said to be ''mutual" as there were no transactions on each side creating independent obligations on the other. The definition of "Mutual Account" given by Halleway, J. in Hirada Basappa v. Gadiga Mudappa (6 M.H.C. 142) still held good and the same is extracted below :