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TMI Blog1959 (9) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ondonation of delay made in putting forward the claim for overtime wages under the second proviso to s. 15(2) of the Payment of Wages Act 4 of 1936 (hereinafter called the Act). The authority considered the case made out by the appellants for condonation of delay and held that they had failed to prove sufficient cause for not making their applications within the prescribed period. The appellants then moved the High Court at Bombay under Arts. 226 and 227 of the Constitution. These applications also failed and were dismissed. Then the appellants moved the High Court for a certificate, and a certificate was granted to them. It is with this certificate that they have come to this Court. 3. It is necessary at first to set out the circumstances under which the appellants have made their claim for overtime wages in their present applications. Section 59 of the Factories Act, 1948 (63 of 1948) which came into force on September 23, 1948, provides for the payment of extra wages for overtime to persons who are workers as defined by s. 2(1) of the Act. It is common ground that the appellants are not workers under the said section; and so they did not claim any of the benefits conferred on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requested him to persuade the Ahmedabad mills to extend the benefits of the Factories Act to their Watch Ward staff; on November 1, 1952, the union received a reply from the Minister stating that he had drawn the attention of the factories Department to the judgment in the Ruby Mills' case [Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521]. Thereafter the secretary of the union requested the Chief Inspector of Factories, Ahmedabad, to enforce the above decision in Ahmedabad. Subsequent correspondence followed between the union, the factory authorities and the Mill Owners' Association, Ahmedabad. In May, 1953, the Mill Owners' Association accepted the position that the appellants were covered by the Factories Act and in July, 1953, the appellants were for the first time paid for overtime at the rate provided under the Factories Act. Some mills paid the overtime wages with effect from January, 1953, some from May, 1953, and some from July, 1953. 6. In August, 1953, the secretary of the new union, which the appellants had jointed in the meanwhile, wrote to the employers requesting them to pay overtime wages for the prior period; and when this re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority observed that the appellants did not specify when they came to know about the decision in the case of Ruby Mills [Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521], and no satisfactory explanation had been given by them as to why, immediately after coming to know of the said decision, they did not move the authority. The authority also examined the correspondence that passed between the parties after the decision in the Ruby Mills case [Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521] and found that the appellants were even then claiming the benefit of the Factories Act prospectively and not retrospectively. In the absence of any affidavit explaining the conduct of the appellants after May 2, 1952, when the Ruby Mills' case [Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521] was decided, the authority came to the conclusion that the inaction of the appellants was not at all satisfactorily explained, and so no sufficient cause could be said to have been shown by them to justify the condonation of delay. As a result of these two findings the authority refused to excuse delay, and so the claim made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h which we are directly concerned in the present appeals. This proviso lays down further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient case for not making the application within such period. The principal question which has been agitated in the High Court and before the authority was whether ignorance of law can be said to constitute sufficient cause within the meaning of this proviso. 12. Mr. Phadke contends that this proviso confers wide discretion on the authority and Legislature has deliberately not circumscribed or regulated in any manner the exercise of the said discretion. He concedes that it has to be exercised judicially but he protests against the imposition of any right rule, or, as he called it, self-denying ordinance, by which the authority would invariably refuse to teat ignorance of law as falling within the expression sufficient case under the proviso. According to him there is no rule in India that ignorance of law cannot be a sufficient cause for explaining the delay made in instituting legal proceedings; and he strongly urged that even if such a rule applies to ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve already noticed the authority has held against the appellants on two grounds, one that ignorance of law cannot be a sufficient cause, and second that, even if it was, in fact the appellants had not explained the delay made by them in making the present applications after they knew of the decision in the case of Ruby Mills [Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521] on May 2, 1952. This latter conclusion is a finding on a question of fact and its propriety or validity could not have been challenged before the High Court and cannot be questioned before us in the present appeals. Unfortunately it appears that the attention of the learned judges of the High Court was not drawn to this finding; otherwise they would have considered this aspect of the matter before they proceeded to deal with the interesting question of law raised before them. 15. Mr. Phadke fairly conceded that he could not effectively challenge the finding of the authority that no satisfactory explanations had been given for the delay in question. He, however, argued that the said finding would not effect the final decision because, according to him, once it is held that ignorance of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed period, and he held that when once the bar to the proceedings had been surmounted by the establishment of reasonable cause, there was no further limited period within which the claim must be made. Accordingly, compensation was awarded to the applicant. The employer appealed against this award and his appeal was allowed. The Court of Appeal reversed the finding of the County Court Judge on the first point, and held that for the applicant's failure to make the claim within six months she had not shown any reasonable cause, and that naturally led to the reversal of the award. Even so, in considering the question of the construction of s. 2(1), proviso (b), the learned judges observed that if sufficient cause had been established by the applicant she would have succeeded in obtaining compensation, because they agreed that, if the bar imposed by the statutory period of six months prescribed for the making of the claim had been raised, the claim of the applicant could not be subjected to any further bar of limitation. It is this view on which Mr. Phadke relies, and he contends that the same principle should be applied in construing the relevant proviso to s. 15 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur Workmen's Compensation Act. S. 10(1) as it originally stood prescribed a period of six months for the making of the claim for compensation. It also required that notice of the accident had to be given as soon as practicable after the happening thereof and before the workman had voluntarily left the employment in which he was injured. The second proviso to s. 10(1) lays down that the Commissioner may admit and decide any claim to compensation notwithstanding that the notice had not been given or the claim had not been instituted in due time as provided by the sub-section if he is satisfied that the failure so to give notice or to institute the claim as the case may be was due to sufficient cause. It appears that in construing the material terms of this proviso it was thought that the position under the proviso was similar to the position under the proviso (b) of s. 2(1) of the English Act. It is open to argument whether that is really so; but, in any case, after s. 10 was amended in 1938, the position is clearly different and distinguishable from the position of the English section. The relevant proviso under the amended section lays down that a Commissioner may entertain and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay (Vide Ram Narain Joshi v. Parameswar Narain Mehta [[1903] I.L.R. 30 Cal. 309]). Therefore the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction between May 2, 1952, and the respective dates on which they filed their present applications is fatal to their claim. That is why we think it unnecessary to consider the larger question of law which Mr. Phadke sought to raise before us. 20. We would like to add that the learned Attorney-General had raised a preliminary objection against the validity of the certificate granted by the High Court in the present appeals. He wanted to urge that the High Court was in error in considering the total value of the consolidated appeals for the purpose of granting certificate under Art. 133. We have, however, not thought it necessary to consider this argument. 21. The result is the appeals fail and are dismissed. The respondent has fairly not pressed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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