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TMI Blog1963 (5) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ney and to direct the appellant to pay the same to them. The direction in the earlier award on which this claim was based was made in these terms The demand in respect of the workers of the Mains, Services and District Fittings Departments and Lamp Repairers and others who were till 1948 required to work on Sundays and in respect of whom a weekly day off was enforced thereafter without any corresponding increase in wages is granted. In respect of the rest, the demand is rejected. This demand was resisted by the appellant on several preliminary grounds which formed the subject-matter of several preliminery issues framed by the Labour Court. The principal contentions raised by the appellant by way of preliminary objections were. that the applications made by the respondents were not maintainable under s. 33C (2) of the Act and that the said applications were barred by res judicata by reason of awards made in other proceedings between the same parties. It was also urged by the appellant that if the claim made by the respondents was held to be justified by the direction of the award on which the respondents relied, then the said direction was given by the earlier Tribunal without j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e overtime and Sunday Work, should be compensated for the loss suffered by them; compensation being the amount lost by them since the scheme was introduced. The Tribunal which dealt with this demand observed that demand No. 11 (a) had been badly worded. There was, however, no doubt that what the employees claimed against the appellant was, in substance, a demand for paid weekly off only for those workers who were actually getting a weekly off, though without pay. In dealing with this demand, the Tribunal noticed the fact that all the monthly paid staff employed by by the appellant got a paid weekly off,and so,it thought that there was no reason to dicriminate between the said staff and the daily rated workers. In regard to the daily rated workers usually, their mothly income would be determined on the basis of a month consisting of 26 working days. From the Statement of claim 'filed by the Union before the Tribunal, it appeared that prior to 1946, most of the workers used to work for all the seven days of the week. By about August, 1946, however, weekly offs were enforced upon the major section of the workmen. In June 1946, the appellant and the Union had entered into an ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) [1964] S. C.R. 140, establishing his plea, the Labour Court would be justified in refusing to give effect to the said Award. In our opinion, this contention is well-founded. The proceedings contemplated by s. 330 (2) are, in many cases, analogous to execution proceedings, and the labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing court; like the executing court in execution proceedings governed by the Code of Civil Procedure the Labour Court under s. 33C (2) would be competent to interpret the award on which the claim is based, and it would also be open to it to consider the plea that the award sought to be enforced is a nullity. There is no doubt that if a decree put in execution is shown to be a nullity the executing court can refuse to execute it. The same principle would apply to proceedings taken under s 33C (2) and the jurisdiction of the labour court before which the said proceedings are commenced. Industrial Tribunals which deal with industrial disputes referred to them under s. 10 (1) (d) of the Act are, in a sense, Tribunals with limited jurisdiction. They are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussed. it is significant that having thus comprehensively described the workmen who were entitled to the said benefit, the Tribunal has added that in respect of the remaining workmen, demand No. 11 (a) was rejected. Therefore, we are satisfied that the relief granted by the Tribunal in paragraph 115 of its award has reference. to demand No. 11 (a) and the use of the words and others is not only not outside the terms of reference, but is quite appropriate and justified. That being so, it is difficult to sustain the plea that the impugned direction was without jurisdiction. Mr. Kolah no doubt relied on the fact that the present respondents never thought that they were entiteld to the benefit conferred by the impugned direction and in support of this plea, he referred us to the fact that in' 1952, a demand was made on their behalf for a similar benefit. If the respondents had felt that the benefit conferred by the impugned direction was available to them, it is very unlikely says Mr. Kolah, that they would have made the same demand in 1952 on the basis that it had not been granted to them by the earlier award. It does appear that this demand was made on behalf of the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test which has to be satisfied by the workers is that they could have been required to work on Sundays in that year. In other words, what the Tribunal decided was that if there were workers employed by the appellant whom the appellant could require to work on Sundays during the relevant year, they would be entitled to the benefit. In other words, the test is : did the terms and conditions of service impose an obligation on the workers to attend duties on Sundays if called upon to do so? That is very different from saying that the benefit would be available only if the workers in question worked on all Sundays. Therefore, we do not think there is any substance in the argument that since the respondents had not been actually required to work on all Sundays in the relevant year, they were not entitled to the benefit of the relevant clause in the award. That leaves one more question to be considered. Mr. Kolah has strenuously argued that the Labour Court should not have allowed the claim of the respondents for such a long period when they made the present applications nearly 8 years after the award was pronounced. It is true that the earlier award was pronounced on May 11, 1950 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appeal, the only point which we have to consider is : does the fact that for recovery of wages limitation has been prescribed by the payment of Wages Act. Justify the introduction of considerations of limitation in regard to proceedings taken under s. 33C (2) of the Act ? In dealing with this question, it is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting s. 33C (2). The failure of the legislature to make any provision for limitation cannot, in our opinion, be deemed to be an accidental omission. In the circumstances, it would be legitimate to infer that legislature deliberately did not provide for any limitation under s. 33C (2). It may have been thought that the employees who are entitled to take the benefit of s. 330 (2) may not always be conscious of their rights and it would not be right to put the restriction of limitation in respect of claims which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, Dehra Dun Mussoorie Electric Tramway Company Ltd. (2) An attempt was no doubt made in the case of Sha Vulchand Co. Ltd. v. Jawahar Mills Ltd. (3), to suggest that the amendment of articles 158 and 178 ipso facto altered the meaning which had been attached to the words in art. 181 by judicial decisions, but this attempt failed, because this Court held 'that the long catenate of decisions under art. 181 may well be said to have, as it were, added the words under the Code in the first column of that Article. Therefore it is not possible to accede to the argument that the limitation prescribed by art. 181 can be invoked in dealing with applications under s. 33C (2) of the Act. It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under s. 33C (2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision. In such a case,, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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