BENNET COLEMAN AND CO LTD Vs. FERNANDEZ

JUDGEMENT

(1.) THIS is a petition for an appropriate writ, order or direction against the authority under Payment of Wages Act, 1936, who is the first respondent, in respect of an order passed by the first respondent, and also Rs. 10 for advocate's fees, and As. 8 for court-fee. The matter arises in this way. The petitioners, Messrs. Bennet Coleman and Co. Ltd. are the proprietors of the Times of India Press. The second respondent was at all material times one of their employees. On 6 March, 1948, an agreement was entered into between the petitioners and the Times of India Indian Employees' Union, and certain terms and conditions of employment and service were agreed upon between the parties. One of such terms related to the dearness allowance payable to the employees. in the month of February, 1951, the said union, on behalf of the second respondent and other employees, made certain demands, one of which related to dearness allowance. Conciliation proceedings thereafter took place but, as they did not result in any agreement being arrived at between the contesting parties, the demands made were referred for adjudication under the Industrial Disputes Act. It appears that under the agreement of March, 1948, in the case of employees whose basic salary was between Rs. 100 and Rs. 150, Schedule B, which relates to dearness allowance, provided that if the cost of living index for Bombay was between 301 to 325, dearness allowances would be 52 per cent, of the basic salary, whilst if the cost of living index went up to between 326 to 360 the dearness allowance would be at the rate of 58 per cent, For the months of June to September, 1961, admittedly the cost of living index was between 326 to 350, but the petitioners chose to pay dearness allowance to their employees not at 58 per cent, as they would have been entitled to under schedule B of the agreement of March, 1948, but only at 52 per cent, their plea being that the employees, by having put forward a demand for a larger dearness allowance than that granted to them under the agreement of March, 1948, the said agreement had been terminated and was no longer binding on them. Thereupon, the second respondent presented a petition to the first respondent claiming Rs. 39-12-0 being the difference between the dearness allowance calculated at 58 per cent. , as it should have been and at 52 per cent, as it actually was for the months of June to November, 1951. The plea put forward by the general manager of the Times of India Press, who was the opposing party before the authority appointed under the Payment of Wages Act, was that there was no binding agreement to pay dearness allowance by reason of the fresh demands put forward by the employees which was the subject-matter of adjudication. The first respondent negatived this plea and made an order for the payment of the amount. The only question that has been argued on this petition is whether the payment of wages authority had jurisdiction to determine what he had actually sought to determine.

(2.) WHAT is urged on behalf of the petitioners is that, under the Payment of Wages Act, the authority concerned has only the right to make an order for payment of wages where the wages are admitted and a deduction has been made or there is delay in payment; but if the wages are not admitted or there is any dispute as to the terms of employment, the payment of wages authority has no jurisdiction to determine it. The scheme of the Payment of Wages Act was examined by a division bench of this Court (to which I was a party) in Sarin v. Patil 53 Bom. L. R. 674, and reliance has been placed by the petitioners on certain observations made by the learned Chief Justice in his judgment in that case. We were there dealing with the case of an employee who, it was alleged, had bean dismissed from service; and what we did hold was that the payment of wages authority had no right to determine whether the dismissal was rightful or wrongful and whether the service had in fact been terminated At page 677 of the report, the learned Chief Justice observed as follows: Now what is contended by Mr. Seervai on behalf of the authority, and supported by Mr. Vakharia on behalf of respondent No. 2. is that it is competent to the authority to decide whether a contract of service was terminated or not, because if he comes to the conclusion that the contract of service was not validly terminated, then the employee continues in service and what the authority directs the employer to pay is wages within the meaning of the definition in the Act. It is further pointed out that in this particular case the employee is a Government servant and in the light of decisions of the Privy Council if the proper procedure is not followed for terminating the services of a Government employee, the Government employee continues in service and he is entitled to the payment of his salary, Therefore, what is urged is that all that the authority has decided in this case is that the employee being a Government servant, and proper procedure not having been followed in terminating his services, he continues to be a Government servant still employed by the B. B. and C. I. Railway, and as such servant, he is entitled to the payment of wages, and as there has been delay in payment of wages, the employer is bound to pay those wages.

(3.) THE learned Chief Justice then proceeds to point out that such could not be the true construction of Section 15 of the Act. Therefore, when this judgment refers to the termination of the contract of service, it is dealing with a case of termination of service and not termination of any particular or terms of service; what actually was held being that if it 13 alleged that service itself was terminated, the payment of wages authority could not determine whether it was so or not. In the same judgment on the next page the learned Chief Justice proceeds to point out that it is competent to' the authority to construe the terms of employment in order to determine what wages are to be paid and it would also be open to the authority to determine whether a person has been employed or not, because the question of contract of employment and the terms of employment. can only arise provided the person seeking relief was employed. The learned Chief Justice emphasizes the fact that the mere denial of the fact of employment cannot oust the jurisdiction of the authority, because, if it could, then the entire object of the Payment of Wages Act could be defeated by the employer alleging in each and every case before the authority that no contract of employment ever existed.