JOGENDRA NATH CHATTERJEE AND SONS Vs. CHANDRESWAR SINGH

JUDGEMENT

(1.) THIS is an application under Section 115, Civil P. C., and also under Article 227 of the Constitution of India against an order passed by the Court of Small Causes sitting on appeal against an order passed by the Authority appointed under the Payment of Wages Act (Act IV [4] of 1935). We might mention at once that learned advocate appearing for the petitioner at the very inception stated that he was not going to urge that Article 227 of the Constitution applied inasmuch as the Constitution was not in force at the time the judgment of the appellate -Court was passed. So we shall treat this application as one under Section 115, Civil P. C.

(2.) THE facts which need be stated briefly are as follows : The petitioner is the Manager of Messrs. Togendra Nath Chatterjee and Sons, a partnership firm carrying on business in engineering goods. The firm employed the opposite party Chandreswar Singh at a monthly salary of Rs. 47. He worked from 16 -6 -1947 till 13 -2 -1948 and went home on leave. He rejoined on 17 -9 -1948 and worked till 15 -12 -1948 when it is alleged ho left without notice. Disputes arose between the workers and the proprietor of the firm and the disputes were referred to the Industrial (Engineering) Tribunal under the Industrial Disputes Act, (Act XIV [14] of 1947). On 4 -6 -1948 the Tribunal made an award fixing the basis wages of an unskilled labourer at Rs. 30 and the dearness allowance at a maximum of Rs. 25. This award was to take effect from 1 -4 -1948 and would remain in force for a period of one year. As stated before on 15 -12 -1948 the opposite party left service of his own accord and joined another firm. This is the case of the petitioner. The petitioner's further case is that he did not further appear for receiving payment of the period between 16 -11 -1948 to 15 -12 -1948. On 2 -3 -1949 the opposite party applied for payment under Section 15, Payment of Wages Act, claiming Rs. 158 on various counts. The petitioner admitted that the sum of Rs. 47 was due and denied liability for the rest. The Authority held that it had no jurisdiction to entertain the application of the opposite party but passed an order for the admitted amount of Rs. 47 and rejected the application with respect to the balance. From this there was an appeal taken to the Court of Small Causes under Section 17, Payment of Wages Act. The learned Judge of the Small Cause Court allowed the appeal and the claims in full. Against this order the present application has been filed.

(3.) LEARNED advocate appearing for the petitioner had various contentions to make as regards the maintainability of the order passed by the Judge of the Court of Small Causes. It is not necessary for us to deal with all the points raised as there is one vital point on which this application must succeed. As stated before the application made by the opposite party for payment of the amount alleged to be due to him was made under Section 15, Payment of Wages Act. Now, no application under Section 15 of the aforesaid Act can lie except for the payment of wages. 'Wages' has been defined in the Payment of Wages Act in Section 2, Sub -section (vi) in the following terms : ''Wages' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include................' It is quite clear from this definition that wages consist of the amounts fixed by the parties by an agreement between them which resulted in a contract. It is true that the words used are 'express or implied'. It is well known that the terms of a contract may be express as well as implied. Express terms are those which are expressed in words and implied terms are those which may be attached to the contract by implication that the parties agreed to those terms. As an example we would point out that if there was a well known existing mercantile usage at the time of the contract between the parties it would be inferred that when the parties entered into the contract they agreed to be bound by this mercantile usage unless they express themselves to the contrary in the terms of the contract, but in the present case we find it difficult to conceive how it can be said that the parties when they entered into the contract of employment agreed that if there was any industrial dispute between the employers and the employees and if the dispute was referred to the arbitration of an Industrial Tribunal and if the Industrial Tribunal increased the amount payable to the workman, the employer would pay such increased amount. It seems to us that it would be very far -fetched if we are to take the view that these matters were in the minds of the parties when they entered into the contract. An implied term must be a term which was in the minds of the parties at the time of the contract and which although they did not so express they had agreed to carry out.