JIWAJIRAO SUGAR COMPANY Vs. J M BANERJI

JUDGEMENT

(1.) THIS is an application in revision by the defendant employer from the Judgment of the appellate court setting aside the judgment of dismissal by the trial court, and awarding a decree for part of the claim, in favour of the plaintiff-employer. The only point of law at that stage was that the trial court had held that the claim had been time-barred while the appellate court held that the suit being governed by Article 115 and not 102 of the Limitation Act, was not timebarred. For reasons that will presently appear. It is unnecessary to go in this issue now. A new point of law has been raised in revision; under Section 22 of the Payment of Wages Act, 1936, the claim of the employee in the present case was cognizable solely by the authority for the payment of wages, and therefore the civil court had no jurisdiction. It is urged on behalf of the appellant-employer that it is a case of absolute ban and basic want of jurisdiction which cannot in any event be cured by acquiescence.

(2.) THE facts which are relevant for our consideration are that in 1950 the plaintiff non-applicant was in the employment of the applicant on a pay of Rs. 69/- per month. There was a strike in the factory of the applicant in that year. It was illegal and as the plaintiff had taken part the applicant dismissed him by an order passed on the 7-9-1950. The plaintiff contended that he was entitled to his pay for more than four months, that is, from May to that date, and besides certain allowances most of which, however, have been refused by the first appellate court. The employer's contention now is that, firstly, the employee was drawing a pay less than the limit prescribed under the Payment of Wages Act and, secondly, that the claim is for "delayed wages" as defined in that Act. Accordingly, Section 22 of that Act is attracted and the Jurisdiction of the civil court is "barred" absolutely. The plaintiff non-applicant opposes this, firstly, by pointing out that this new ground is raised at a very belated stage, the employer having acquiesced in all the earlier stages; secondly, Section 15 of the Payment of Wages Act speaks of "delayed" wages and not of "refused" wages. Accordingly, Section 22 has no application in this case and the civil court had jurisdiction. Ground No. 1 :

(3.) THERE is no doubt or controversy about the employer being an industrial establishment (Sugar Mill), the wages of the plaintiff falling well below an average of 400/- per month, and the claim being for wages as defined in Section 2 (vi): " 'wages' means all remuneration. . . . . . . expressed in terms of money. . . . . . . which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment. . . . . . " it is also common ground that for the period concerned, the employee made his demand and was categorically refused by the employer. Strictly speaking, the word "delay" means failure on the part of the person that is liable to pay, to make the actual payment at appointed time, whether he accepts his liability to pay, but is unable or unwilling to do so for some other reason, or whether he denies his liability. In the popular sense, the first would be "delay", and the second "refusal".