THE MANAGING DIRECTOR, JALPAIGURI ELECTRIC SUPPLY CO. LTD. Vs. THE AUTHORITY UNDER PAYMENT OF WAGES ACT & ORS.

JUDGEMENT

(1.) In this writ petition, the adjudication made by the Authority under the Payment of Wages Act, 1936 in P.W.A. Case No. 56 of 1972 awarding a total sum of Rs. 2,39,626.43P. to the applicants before tho said Authority is under challenge.

(2.) The Managing Director, Jalpaiguri Electric Supply Co. Ltd is the petitioner in the instant petition The applicants before the said Authority under the Payment of Wages Act are respondents and the West Bengal State Electricity Board and State of West Bengal have also been impleaded as respondents in the instant writ petition. It appears that during the pendency of the Rule, some of the applicants died. The application made before the Payment of Wages Authority out of which the said P.W A. Case No. 56 of 1972 arose, has been annexed to the writ petition being Annexure A'. The said applicants made another application under Sec. 17A of the Payment of Wages Act before the said Authority (hereinafter referred to as the said Authority) inter alia praying for attachment of the properties of the Jalpaiguri Electric Supply Co. Ltd. and also the purchase price to be paid by the West Bengal State Electricity Board to the said Company Such application under Sec. 17A has also been annexed to the writ petition and marked with the letter B. In the main application before the Authority, the applicants made a claim of a total sum of Rs. 2,14,235 17P. on account of unpaid wages from 1st Feb., 1971 to 18th Feb., 1971, gratuity, leave wages, compensation under Sec. 25FF of the Industrial Disputes Act and the bonus for the year 1970-71 and compensation for Rs. 25.00 on account of delay in payment of wages The petitioner filed a written statement in the said proceeding being P.W.A. Case No. 56 of 1972 inter alia denying the allegations made by the applicants. The petitioner specifically denied in the said written statement that the services of the applicants had been terminated by the petitioner or by the said Company on 18th April, 1971 or prior to the acquisition of the business of the Company by the West Bengal State Electricity Board. The petitioner also denied that the respondents were entitled to gratuity, earned leave, bonus or any compensation under S 25FF of the Industrial Disputes Act. It was pleaded by the petitioner that the respondents had voluntarily accepted the service under the West Bengal State Electricity Board with effect from 19th Feb., 1971 viz from the date of acquisition of the business of the petitioner and as such there had been no interruption in the service of the said applicants. It was also contended that the Managing Director was not a person responsible for payment of wages to the respondents and there was a Manager in the concern of the said Company where the said applicants had been employed and on that score also the said claim petition of the applicants should be dismissed. A copy of the said written statement has been annexed to the writ petition being Annexure C. The petitioner also filed a petition of objection to tin said application for attachment under Sec. 17A of the Payment of Wages Act. The Authority, however, passed an order directing the West Bengal State Electricity Board to withhold payment to the extent of Rs. 200,000.00 to the petitioner till the disposal of the said proceeding before it. The Authority thereafter passed an ex parte order in favour of the applicants fora total sum of Rs. 1,77,056 95. The petitioner thereafter made an application for restoration and the said case was restored for rehearing on merits on payment of costs of Rs. 350.00. During the pendency of the said proceeding before the Authority, some of the applicants withdrew their claims against the petitioner and one of the applicants filed a separate case after withdrawal of his claim in the group application. After that, the applicants who had been contesting the said application filed an application for amendment of the claim from Rs. 2,39,626.43 to Rs. 1,59,115.36P. Three witnesses were examined on behalf of the said contesting applicants and one witness was examined on behalf of the petitioner. The Authority inter alia came to the finding that the Managing Director could be deemed to be the Manager under Sec. 3 of the Payment of Wages Act and as such he had been rightly impleaded by the applicant/workmen, that applicants could be deemed to be the persons employed in the factory and the office where they worked as Clerk being attached to the factory did not constitute a commercial establishment under the Shops and Establishment Act, that the services of the applicants had been interrupted by the transfer of the industry from the petitioner to the West Bengal State Electricity Board and as such the services of the said applicants stood automatically terminated with effect from date of taking over by the West Bengal State Electricity Board even though the petitioner did not formally terminate the services of the said applicants. The Authority also held that the gratuity claimed by the said applicants was payable to them. It was also held by the said Authority that the said applicants were entitled to get retrenchment compensation under Sec. 25FF of the industrial Disputes Act and they were also entitled to claim the leave wages. In that view of the matter, the Authority passed an award for Rs. 1,49,626.43 in favour of the said applicants and also directed payment of compensation for Rs. 90,000.00 at the rate of the Rs. 2,000.00 in favour of each of the said applicants, thereby giving an award for a total sum of Rs. 2,39,624 43P. A copy of the adjudication of the Authority has also been annexed to the writ petition being Annexure E. It has been contended by the petitioner in the instant writ petition that the direction passed against the Managing Director who was not the Manager of the factory n.r occupier of the factory was illegal any claim against the said Managing Director was not entertain able or maintainable in law because the said Managing Director was not responsible for the payment of wages. It is also contended that tho claim petition filed by the said applicants did not bear tho signatures of the said applicants and the said application was also not made in the statutory form supported by certificate of authorisation in form D in accordance with the provisions oi the Payment of Wages Act and the rules framed thereunder. The petitioner has also contended that the gratuity has been excluded from the definition of wage in the Payment of Wages Act. There is no time limit fixed for payment of gratuity and there was also no contract for payment of gratuity. The petitioner has further contended that the services of the applicant not having been terminated by the said Jalpaiguri Electric Supply Co Ltd and or by the petitioner and/or by any other officer of the said Company, the claim for gratuity was, in any event, outside the purview of the Payment of Wages Act. It has also been contended that in view of the existence of dispute as to whether or not on taking ever the ownership and management and control of the industries of the said Company by the West Bengal State Electricity Board there has only been a change in the management without affecting the service of the applicants and also in view of the disputed fact that the services of the applicants have not been terminated by the Company and as such there was to question of payment of retrenchment compensation under Sec. 25FF of the Industrial Disputes Act, the application before the Authority is not maintainable. It has been contended that in the facts of such dispute involving complicated questions of law and facts, it was a pre-eminently a fit case to be decided by the Industrial Tribunal under the Industrial Disputes Act and not by the Authority under the Payment of Wages Act Accordingly, such disputes should not have been entertained by the said Authority and the adjudication is illegal or without jurisdiction. It has also been contended that the applicants claimed compensation amounting to Rs. 25.00 only on the ground of delayed payment of wages and there was no claim for compensation on the ground of deduction of wages. In such circumstances, the finding of the Authority that there had been deduction of wages and consequential direction for payment of Rs. 90,000.00 as compensation to the said applicants at the rate of Rs. 2,000.00 each by the Authority is contrary to the claim preferred by tho said applicants.

(3.) Mr. Banerjee, the learned Counsel appearing for the petitioner, has contended that the claim of the applicants is unfounded and as the services of the applicants had been only transferred under the West Bengal State Electricity Board, there was no occasion for termination of their services and there was no occasion for the said applicants to suffer any prejudice because of transfer of management and consequential absorption of the applicant under the West Bengal State Electricity Board Mr Banerjee has contended that Jalpaiguri Electric Supply Co. Ltd was a licensee under the Electricity Act and had been supplying electricity to the consumers. As it was decided by the West Bengal State Electricity Board to take over the management of the said Company in the matter of supply of electricity to the consumers, the licence of the company was cancelled and the West Bengal State Electricity Board started supplying electricity to the consumers. As a result, the employees including the applicants of the said Company were absorbed from the very date of taking management by the West Bengal State Electricity Board. In the circumstances, the said applicants have not suffered any prejudice. Mr Banerjee has also contended that in any event the services of the applicants had not been terminated by the said Company or by any other officer of the said Company, but the said applicants on their own had accepted their service under the West Bengal State Electricity Board. In the aforesaid circumstances, there was no occasion to pass any order for retrenchment compensation. Mr Banerjee has contended that the Authority under the Payment of Wages Act cannot entertain complicated questions of law and fact involving the right of workman within the meaning of Industrial Disputes Act. For such adjudication, the proper authority is the Labour Court or the Industrial Tribunal constituted under the Industrial Disputes Act. In the application made before the Authority under the Payment of Wages Act, the claim for retrenchment compensation under Sec. 25FF was raised by the said applicants and the contention as to whether or not in the facts of the case the applicants should be deemed to have been retrenched under the Industrial Disputes Act and as such were entitled to retrenchment compensation under S 25FF was required to be decided such adjudication should not be made by the Authority and in the fitness of things, the Authority should have returned the said applications for presentation before the appropriate authority viz. the authority under the Industrial Disputes Act. In support of this contention, Mr. Banerjee has referred to the decision of the Supreme Court made in the case of Payment of Wages Inspector Ujjain Vs. Surajmal Mehta, reported in AIR 1969 SC page 590 . It has been held in the said decision by the Supreme Court that the Authority under the Payment of Wages Act in an application under Sec. 15(2) of the Act cannot entertain claim for compensation under Sec. 25FF of the Industrial Disputes Act. For entertaining such claim, the proper authority is the Labour Court. The Supreme Court has held that although compensation under S 25FF or under S 25FFF are wages within the meaning of Sec. 2(vi)(d) of the Payment of Wages Act, but when in an application under Sec. 15(2) of the Payment of Wages Act claiming compensation under S 25FF of the Industrial Disputes Act, a defence is taken by the ex-employer that such compensation was not payable or tho same was defeated by reason proviso to Sec. 25FF because the concerned workmen continued to be in the employment by the new employer and the terms and conditions of their new employment were not unfavourable than those under ex-employer, the authority exercising jurisdiction under the Payment of Wages Act should not entertain such application and deal with such complicated problems of both law and fact in view of limited jurisdiction of such authority under the Payment of Wages Act In paragraph 11 of the said decision, it has been held by the Supreme Court that the claim for unpaid wages on tho footing that compensation under Sections 25FF and 25FFF have not been made cannot be entertained under Sec. 15(2) of Payment of Wages Acton two grounds, viz (i) firstly, it is not a simple case of deduction having been unauthorisedly made beyond the wage period and the time of payment as fixed under Sections 4 and 5 of the Payment of Wages Act and (ii) secondly, because objection is raised about the maintainability of such claim on the ground that there was no retrenchment in the eye of law and the conditions of service were not changed Mr. Banerjee has contended that the facts of this case squarely come under the decision of the Supreme Court made in the said case of Surajmal Mehta (supra). Objections similar to the objections raised in the said case have been raised by the petitioner before the Authority constituted under the Payment of Wages Act and it was contended by the petitioner before the said Authority that there had been no retrenchment in the eye of law and the terms and conditions of the service of the said applicants under the West Bengal State Electricity Board were similar and they had been absorbed from the very date of taking over management. In the aforesaid circumstances, the Authority should not have entertained the said application and proceeded to determine the complicated questions of law and fact for basing its award.