Bombay Gas Co. Ltd. v. Jagannath Pandurang & Others

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 358 of 1973 Appeal by special leave from the Judgment and Order dated the 6th February, 1967 of the High Court of Judicature at Bombay in Special Civil Application No. 1967 of 1965. M. C. Bhandare, P. H. Parekh, S. Bhandare, Manju Jaitley, for Respondents Nos. 1-4, 12, 15, 17, 24, 27-30, 35, 36, 47, 49, 54 63, 75, 80, 82, 86, 87, 89, 90, 94, 96-107. The Judgment of the Court was delivered by ALAGIRISWAMI, J.-This appeal arises out of the judgment of the Bombay High Court in Special Civil Application No. 1967 of 1965. The 118 respoudents are workmeu of the appellant company working in different departments of the company's works. Respondents 1 to. ~4 are Syph'?n Pumpers. They filed 14 applications before the Additional Authonty under s. 15 of the Payment of Wages Act claiming overtime wages for the period February 1957 to January 1958. Respondents 15 to 80 are Mains workers.

They filed 66 applications before the same authority claiming overtime wages for the period December 1956 to November 1957. Respondents 81 to 118 filed 38 applications before the Third Additiooal Au'hority c'aiming wag.es for weekl}'. <;>ff days. They belonged to the Mains, Heating Appliances and F1ttmg Departments. They had joined the appellant company after 1948. The relevance of the reference to their having become workers of the company after 1948 will become clear when we deal with the facts of this case later. BOMBAY GAS co. LTD. v; JAGANNATH (Alagiriswami, J.) Before the Authority under the Payment of Wages Act the company contended that all the claims were barred u11:der an award of the Industrial Tribunal in Ref. No. 54 of 1949, which was made on 30-3-1950 and published on 11-5-1950.

The Authority .held that (1) the claims of the Booster Attendants for wages for overtlllle work and weekly off days were covered by the award, (2) the claims of applicants other than Booster Attendants were not covered by the award, and ( 3) the Bombay Shops & Establishments Act was not applicable to them, and dismissed the applications of respondents 1 to 80. The applications made by respondents 81 to 113 were allowed by the Third Additional Authority holding that the award was no bar to those applications and tMt the provisions of the Bombay Shops & Establishments Act were applicable . Appeals were filed by respondents 1 to 80 in the Court of Small Causes, Bombay. The appellant company filed an appeal against the judgment in the applications of respondents 81 to 118.

The Court of Small Causes dealt with the appeals filed by the workmen as well as the appeal filed by the company and by a common judgment held that the claims of workers for overtime wages and wages for weekly off days were barred by the award. The workmen's appeals were therefore dismissed and the company's appeal was a'lowed. It was. however, held that the appellant company was a commercial establishment within the meaning of that term under the Bombay Shops & Establishments Act. All the workmen filed a writ petition, out of which this appeal arises, challenging the judgment of the Court of Small Causes.· The High Court held that the claims of the respondents were not barre<l by the award and remanded the applications of respondents 1 to 80 to the .Authority under the J>ayment of Wages Act for ascertaining and decreemg the amou:nt. As regards respondents 81 to 118 the judg- . ment of the Third Additional Authority under the Payment of Wages Act was restore<!.

As t~e award of. the Industrial Tribunal, Bombay in Ref. No. 54 of 1949 1s the most important factor that has to be taken into account in considering this appeal it would be proper to refer to portions of that ~ward whi~h relate to this appeal. About 23 demands covering a vanety of sub.tects were referred to the Tribunal. The demands out of which this appeal arises were No. 11 and 12 dealt with in paragraphs 113 to 126 of the award. Demand No. 11 was as follows : "(a) Workers should get a paid weekly off. (b) Workers of Mains, Services and District fittings departments and lamp-repairers, who have been adversely aff~cted in the matter of their earnings on account of closing down of the overtime and Sunday work should be compensated for the loss suffered by them'. compensation being the ·amount Jost by them sine; the scheme was i.ntroduced." 29 4 D~mand No. 12 was as follows :

"All work extending beyond the sehedti!cd hours of work should be paid for at overtime rate (i.e., double the rate of wages)." fn discussing demand No. 11 the Tribunal pointed out that what the workers were asking for was paid weekly day off for those worker; wllo were actually getting a weekly day off, though without pay. It appears that in this company prior to 1946 most of the workers used to work for all the seven days of the week. By about August 1946, however, weekly days off were enforced upon the major section of the workmen. The company and the union had entered into an agreement about June 1946 as regards wage scales of various categories of workers. The Tribunal, therefore, assumed that in respect of most of the daily rated workers the wages must have been fixed on the basis of what their monthly income would be for 26 working days.

Tn the cases of the classes of workers specifically mentioned in demand 11 (b) a weekly day off was enforced some time in the year 1948, while in the case of lamp repairers the weekly day off was enforced from 1st April 1949. Those categories of workers, therefore, used t<1 work for all the 7 days of the week and earn wages for all the days till a short time before the reference. The TribU11a!, therefore, proceeded 011 the basis that in their case it cannot .be said that daily rates of wages were fixed with reference to a month of 26 working days and therefore with the introduction of the weekly day ofl' the wages of these workers were reduced, and that the concession of a weekly ofl' would be a. very doubtful benefit if as a result the monthly income of these workers was to go down. The TribU11al granted the demand under demand No. 11 (b) in respect of workers who had been working on Sundays also till 1948.

Some doubts having arisen !n respect of this portion of the award a reference was made to the Tnbunal under rule 20A of the Industrial Disputes (Bombay) Rules for clarification. The doubt raised was whether the company was bound to give a paid weekly day off to the workers of the Mains Department and to pay them compensation for the loss suffered by them. It appears that the company gave a paid weekly day off to all persons mentioned in demand No. 11 except workc~s of the Ma!ns on the ground that they were not persons who were till 1948 reqwred to work on Sundays and in respect of whom a weekly day off was introduced thereafter.

The Tribunal pointed out that the paid weekly day off was given only to people who till recently used to work on all the seven days of the week and that it was unfor!tJnate 0at the company had. not at the hearing of the main adjudicat10n specifically drawn attent10n to the fact that the workers of the Mains were not till r~ntly required to work for all the seven days o~ .the "'.eek. The Tnbunal, however, held that it was clearly a cond1tion laid down for the grant of this benefit that the person concerned must be one who till 1948 was required to work on Sundays and in respect of whom a weekly day off was introduced thereafter. .. r ll II BOMBAY GAS co. LTD. v. JAQANNATH (Alagiriswami, J.) The importance of the year 1948, to which We have referred in earlier part of tho judgment, would. now b~ome apparent. Responde)lts 81 to 118 who joined the company after 1948 c~mtended that the award did not bind them. In this they are manifestly _wrong.

An award of an Indttstrial Tribunal in a reference under section 10 of the ·Industrial Disputes Act binds not only perso,ns who were the workmen of the employer at the time the award was made but also workmen who came to work under the employer after the award. It would not be corr~t, therefore, to hold that they would be entitled to be paid separately for the weekly day off. It must be presumed that their scales of pay were the same as for the workmen who were working before 1948 also. There was no averment to the contrary. They cannot, therefore, be allowed an extra benefit which would not be available to t11e same category of workmen who were working under the employer since before 1948 . The High Court seems to have been of the impression that tllese workmen were entitled to be paid for the days off either unden' the award or under s. 18(3) of the Bombay Shops and Establishments Act. It seems to have assumed that there was a scale of wages for weekly off days under tlle award.

That this is an obvious mistake would be apparent from a reading of paragraphs 114 and 115 of the award to the following effect : "114. It must be remembered that the wages of daily rated workers are ordinarily fixed with reference to what their monthly income would be on the basis of a month consisting of 26 working days. This undoubtedly secures to them the benefit of holidays with pay. . . The company and tile union have entered into an agreement about June 1946 as regards wage scales of various categories of workers ... that in respect of most of the daily rated workers the wages must have been fixed on the bosis of what their monthly income would be for 26 working days. 115. Some difference must however be made in the ease of the classes of workers specifically mentioned in demand 11 (b) ...... Until recently these categories of workers used to work for all the 7 days of the week and earn wages for all the days.

Certainly it cannot be said in their case that their daily rates of wages were fixed with reference to a month of 26 working days ...... The demand in resnect of workers of the Mains Services and District Fittings Deoartments and lami>-repairers and others who were till 1948 required to wor~ on Sundays and in respect of whom a weekly day off :vas m.troduced !hereafter without any corresponding increase Ill thctr wages 1s granted." The matter would be further clear when paragraph 14 of the award is read, wherein. the Tribunal has observed : "While therefore, I approve of Rs. 30 as the minimum wage for male mazdoors (coolies) which is at present given to the workers in this Company, I thlnk both the maximum and the increments provided are ra,her low when compared to what is now-a-aays awaroeu even in tne case· ot sou1e of the smaller concerns in the engineering industry. I, therefore, award to the wiskiiled workers (male coolies) a wage-scale of Rs: 1-2-6 to Rs. 1-10-6.

If they are monthly paid their monthly wages should be arrived at by multiplying the daily wages by 26." The total wages for 26 days at Rs. 1-2-6 a day is Rs. 30/-. It is not said that the categories of workers mentioned in demand No. ll(b), who were covered by the award, are paid separately for the days off. It is not contended that their wage sca,es have not been refixed in pursuance of the direction given in the award, except of course in the case of persons who even before 1948 were not working on Sundays also. Nor is it alleged that pre-1948 and pDSt-1948 workers are paid differently. The reasoning of the High Court cannot. therefore, be supported and the company is eutitled to succeed on this part of the case. Coming now to the question of overtime, the demand before the Tribunal was that overtime rates should be double the rate of wages. That demand was rejected in the general form. The demand seems to have been made on the analogy of the provisions of the Factories Act.

The Tribunal pointed out that there would be no justification: in making a distinction between workers covered by the Factories Act and workers not covered by that Act in respect of overtime payment if the workers were doing the same or similar work but that the same cannot be applied in respect of all types of work particularly where the work was of a very intermittent natnre, and that where the nature of the work itself was such that regular overtime becomes necessary the deterrent element must not enter in determining the rate of overtime. The union pointed out several spccilic categories in respect of whom injustice was done. One of these instances was that of booster attendants and their case was specifically dealt with and provided for.

The grievance of the workers of the Mains Department was that they were m1de to work till 1.30 p.m. on Saturdays while factory workers were let off at 1 p.m. and that 4 7t hours a week bas been a very long-standing orivi1ege of the workmen of this comoanv anrl that if they are required to work for half an hour more on Saturdays they should be paid overtime at double the rate. After discussing this question the Tribunal specifically came to the conclusion that no directions in that respect were necessary. We cannot therefore agree with th" resnonrlcnts that the sentences at· the end of paragraph 126 to the fo!Iowing effect : "I however recommend that where overtime work is given to workers not covered bv the Factories Act, the rate should at least be the single basic wage plus dearness allowance. T do not however llesire to give any general directions without knowing the nature of the work." A ,, I _, r BOMBAY GAS co. LTD. v. JAGANNATH (Alagiriswami, I.) would cover these cases.

Demand No. 12 is in respect of all workers of tne company. The specilic case of workers in the Mains department has been dealt with and rejected; so also in the case of coke supply coolies and motor drivers. The workmen CQncerned here bemg ·all workmen of the Mains department, the · questJOn of their being paid overtime wages under the provisions of the awarµ does not arise. The question however remains whether they are entitled to be paid overtime wages under the provis10ns of s. 12(3) ot tne llombay Shops & Estabhsnmen,s Act. rnat Act was in torce when the award under cons1doration was given. It is not correct .o say tnac tne workers are entitled to overtime payment by virtue of an amendment made to the Act in 1970.

The 1970 amendment had no,hing to do with the rignt or payment of overtime wages. fne content.on on bet1au Of the company is that the right to overtime wages based on any ground whatsoever should be deemed to have been dealt with and rejected by the Tribunal which gave the award in 1950. Though the demand for overtime wages was in general terms it could have been or it ought to have been supported either as on~ of the items of industrial dispute or as flowing from out of the prov,isions of the Factories Act or ttowing from the provisions of the Bombay Shops arul Establishments Act. It was the tluty of the party malting th.e demand, who tried to justify the demand, to support it on any one of the alternative basis. They could not have been ignorant of the provisions of the Bombay Shops & Establishments Act.

(Incidentally, though in this case it seems to have been conceded on behalf of the company that the workers are governed by the Bombay Shops & Establishments Act, it is contended on behalf of the company that the concession should be deemed to have been made only for the purpose of this case and not for all purposes). It is further contended that the demand for overtime wages under the provisions of the Bombay Shops & Establishments Act should be deemed to be barred on principles analagous to those of the res judicata. Reliance is placed upon the decision of this Court in Bombay Gas Co. v. Shridhar Bhau(1).

Bnt in that case the question whether the workmen should get overtime wages in the same way as the workmen governed bv the Factories Act had been considered in the reference which resulted in the award of 1953 and before the Tribunal it was conceded bv the workmen that they were not governed bv the Factories Act and the claim for the same overtime wages as those pavable to workers under the Factories Act was based on the ground that there was no reason for any distincti_on between the two sets of workmen. It was. therefore, belt! that 'so long as the award remains in force it must be held that these workmen are not governed bv the Factories Act and are not entitled to the benefits therenr. In the nresent case also the question under the Factories Act had been considered but not the question whether they are entitled to overtime (I) A. J. R. 1961 S. C. 1196. \1976] 1 s.c.R. wages under the prO\isions of the Bombay Shops & Establishments Act.

We consider that the workmen could and ought to have raised the question that even if they were not entitled to claim overtime wages at the same rate as payable to workers governed by the Factories Act, they should at least be paid the same rate as those payable to persons governed by the Bombay Shops & Establishments Act. The workers neither put forward the contention that they were entitled to the benefit of the Bombay Shops & Establishments Act nor even that on considerations similar to those applicable to the persons governed by the Bombay Shops & Establishments Act they d1ould also be paid overtime wages under the provisions of that Act. 1 ncidentally it shows that the question as to whether the Bombay Shops & Establishments Act is applicabl~ to those \VOrkmcn has been raised for the first tin1c in these proceedings.

The doctrine of re' judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the Code of Civil Procedure but to all litigations. It proceeds on the principle that there should be no unnecessary litigation and whatever daims and defences arc open to parties should all be put forward m . the same time provided so confusion is likely to arise by "' punin~ forward all such claims. It was observed by this Court in Devi/al Modi v. Sales Tax Officer('') : "The general pdnciplc underlying the doctrine of res iudicata is .ultimately based on considerations of public policy.

One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversel;! by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide : Daryao and Others v. The StMe of U.P. & Others [1962 ( l) SCR 574]." We arc therefore of opinion that the question of overtime wages should be dee.med to have been dealt with and disposed of bv the Tiibuna l ·nn whatever tbc basis of the claim for overtime wages may be. The disputes between this company and its workers quite often co1110 ta. this Court. The case in Bombay Gas Co. v. S/11idhar Bhau (su1;ra) is one s~ch. The other cas,~s are found in Bombay Gas Co. Ltd. L v. (,cmal B/11va(') and Ram/a11slu111 Jageshwar v. Bombay Gas Co.(''l .. fl)[l965] t S. C.R. 686. I') [196' JS 11 .. C. R. 709. (])

[t961] t !. L .. 1. 38. 13 I BOJ\JB,\Y GAS co. i.ro. v. ,JAGA!'\NAT!l (Alagiri.nran1i, ], ) If the workers are dissatisfied with any of the items in respect of which their claim has been rejected it is open to them to raise a fresh indus· trial dispute. The awattl has stood the test of time for 25 years, 1 cry rare occurrence indeed these days. In the result the appeal is allowed. The judgment of the High Court is set aside with the result that the petitions of all the workers stand dismissed. The special leave granted in this case was subject to the conditions that the appellant would pay the costs of the appeal to the respondents in any event. The appellant will therefore. bear its o\\'n costs and pay the costs of the respondents. V.\1.K. A f!/>tal al/awed.