PETITIONER:
BOMBAY GAS CO. LTD.
Vs.
RESPONDENT:
JAGANNATH PANDURANG & OTHERS
DATE OF JUDGMENT12/08/1975
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
DUA, I.D.
CITATION:
1972 AIR 2356 1972 SCR (3) 929
1972 SCC (2) 119
CITATOR INFO :
RF 1974 SC1495 (11)
ACT:
Industrial Disputes Act 1947 Section 10-Award of an
Industrial Tribunal, if binds workman coming to Work under
the employer after the award.
Labour. Law-Principles of res judicata, if apply to
industrial disputes.
HEADNOTE:
The 118 respondents are workmen of the appellant
company`working in different departments of the company's
works. Respondents 1 to 14 are Syphon Pumpers. They filed 14
applications before the Additional Authority under s 15 of
the Payment of Wages Act claiming overtime wages for the
period February 1957 to January 1958. Respondents 15 8 are
Mains workers. They filed 66 applications before the same
authority claiming overtime wages for tho period December
1956 to November 1957. Respondents 81 to 118 filed 38
applications before the Third Additional Authority claiming
wages for weekly of days. They belonged to the Mains,
Heating Appliances and Fitting Department 'they had joined
the appellant company after 1948. Before the Authority under
Payment of Wages Act the company contended that all the
claims were barred under 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 Tribunal held that workers of
Services and District fittings departments and lamp-
repairers who used to work till 1948 on all the seven days
of the week, would be entitled to be paid weekly day off.
The Authority held that (1) the claims of the Booster
Attendants for wages for overtime 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 and Establishments Act was not
applicable to them, and dismissed the applications of
respondents I 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
that the provisions of the Bombay Shops and Establishments
Act were applicable. The Court of Small Causes, Bombay,
which dealt with the appeals filed by the workmen and the
company held that the claims of workers for overtime. wages
and wages for weekly off days were barred by the award. It
also held that the appellant company was a commercial
establishment within The meaning of that terms under the
Bombay Shops and Establishments Act. All the workmen filed a
writ petition challenging the judgment of the Court of Small
Causes. The High Court held that the claims of the
respondents were not barred by the award and remanded the
applications of respondents I to 80 to the Authority under
the Payment of Wages Act for ascertaining and decreeing the
amount. As regards respondents 81 to 118 the judgment of the
Third Additional Authority under the Payment of Wages Act
was restored. This appeal is preferred on the basis of the
special leave granted by the Supreme Court.
Dismissing the appeal,
^
HELD: (1) An award of an Industrial Tribunal in a
reference under section is of the Industrial Disputes Act
binds not only persons who were the workmen of the employer
at the time the award was made but also workmen who came tc.
work under the employer after the award. It would not be
correct. 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 the same
category of workmen who were working under the employer
since before 194&. [295B-C].
(ii) The reasoning of the High Court that the workmen
are entitled to be paid for the days off either under the
award or under section 18(3) of the Bom-
292
bay Shops and Establishments Act, is not correct. The High
Court seems to A have assumed wrongly that there was a scale
of wages for weekly off days under the award [295C-D]
(iii) The specific 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
concerned here being all workman of the Mains department,
the question of their being paid overtime wages under the
provisions of the award does not arise. [297A-B]
(iv) The doctrine of res 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. lt proceeds on the principle that there should
be no unnecessary litigation and whatever claims and
defences are open to parties should all be put forward at
the same time provided no confusion is likely to arise by so
putting forward all such claims. [298D]
Devilal Modi v. Sales Tax officer [1965] 1 SCR 686
relied on
Bombay Gas Co. v. Shridhar Bhau A.I.R. 1961 SC 1196
referred to.
(v) 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 rates as the payable to persons governed by the
Bombay Shops and Establishments Act. The workers neither put
forward the contention that they were entitled to the
benefit of the Bombay Shops and Establishments Act nor even
that on considerations similar to those applicable to the
persons governed by the Bombay Shops and Establishments Act
they should also be paid overtime wages under the provisions
of that Act. [298A-C]
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 respondents are workmen of the appellant
company working in different departments of the company’s
works. Respondent I to 14 are Syphon Pumpers. They filed 14
applications before the Additional Authority 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 Additional Authority
claiming wages for weekly off days. They belonged to the
Mains, Heating Appliances and Fitting Departments. They had
joined the appellant company 1 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.
293
Before the Authority under the Payment of Wages Act the
company contended that all the claims were barred under 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 overtime work and weekly off days were covered
by the award, (2) the clams 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 that the provisions of the
Bombay Shops & Establishments Act were applicable.
Appeals were filed by respondents 1 to 88 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 appeals were therefore
dismissed and the company’s appeal was allowed. 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 barred by the award and remanded the
applications of respondents 1 to 80 to the Authority under
the Payment of Wages Act for ascertaining and decreeing the
Amount. As regards respondents 81 to 118 the judgment of the
Third Additional Authority under the Payment of Wages Act
was restored.
As the award of the Industrial Tribunal, Bombay in Ref
No. 54 of 1949 is 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 award which relate to
this appeal. About 23 demands covering variety of subjects
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 affected 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 lost by them
since e scheme was introduced.”
294
Demand No 12 was as follows A
All work extending beyond the scheduled hours of
work should be paid for at overtime rate (i.e., double
the rate of wages).”
In discussing demand No. 11 the Tribunal pointed out that
what the workers were asking for was paid weekly day off for
those workers who 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 In the cases of the classes of workers
specifically mentioned in demand 11(b) a weekly day off was
enforced some time in the year 1949, while in the case of
lamp repairers the weekly day off was enforced from 1st
April 1949. Those categories of workers, therefore, used to
. work for all the 7 days of the week and earn wages for all
the days till a short time before the reference. The
Tribunal, therefore, proceeded on 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 off the wages of
these workers were reduced, and that the concession of a
weekly off would be a very doubtful benefit if as a result
the monthly income of these E, workers was to go down. The
Tribunal 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 in respect of this portion of
the award a reference was made to the Tribunal 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 personal mentioned in demand No. 11
except workers of the Mains on the ground that they were not
persons who were till 1948 required 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
unfortunate that the company had not at the hearing of the
main adjudication specifically drawn attention to the fact
that the workers of the Mains were not till recently
required to work for all the seven days of the week. The
Tribunal, however, held that it was clearly a condition 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.
295
The importance of the year 1948, to which we have
referred m earlier part of the judgment, would now become
apparent. Respondents 81 to 118 who joined the company
after 1948 contended that the award did not bind them. In
this they are manifestly wrong. An award of an Industrial
Tribunal in a reference under section 10 of the industrial
Disputes Act binds not only persons 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 correct, 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 the
same category of workmen who were working under the employer
since before 1948.
The High Court seems to have been of the impression
that these workmen were entitled to be paid for the days off
either under 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 the 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 the 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 basis of what their monthly income would
be for 26 working days.
115. Some difference must however be made in the
case 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. . .
Time demand in respect of workers of the Mains Services
and District Fittings Departments and lamp-repairers
and others who were till l 948 required to work on
Sundays and in respect of whom a weekly day of was
introduced thereafter without any corresponding
increase in their wages is 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
296
to the workers in this Company, I think both the
maximum and the increments provided are rather low when
compared to what is now-a-days awarded even in the case
of some of the smaller concerns in the engineering
industry. I, therefore, award to the unskilled 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. 11(b), who were covered by the award, are paid
separately for the days off. it is not contended that their
wage scales 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 post,l948 workers
arc paid differently.. The reasoning of the High Court
cannot, therefore, be supported and the company is entitled
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 nature, 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 specific 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 made
to work till 1.30 p.m. On Saturdays while factory workers
were let off at 1 p.m. and that 47 1/2 hours a week has bean
a very long-standing privilege of the workmen of this
company and that if they are required to work for half an
hour more on Saturdays the 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
the respondents that the sentences at the end of paragraph
126 to the following effect:
“I however recommend that where overtime work is
given to workers not covered by the Factories Act, the
rate should at least be the single basic wage plus
dearness allowance. I do not however desire to give
any general directions without knowing the nature of
the work.”
297
would cover these cases. Demand No. 12 is in respect of all
workers of the company. The specific 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 concerned here being all workmen of the Mains
department, the question of their being paid overtime wages
under the provisions of the award does not arise.
The question however remains whether they are entitled
to be paid overtime wages under the provisions of s. 12(3)
of the Bombay Shops & Establishments Act. That Act was in
force when the award under consideration was given. It is
not correct to say that the workers are entitled to overtime
payment by virtue of an amendment made to the Act in 1970.
The 1970 amendment had nothing to do with the right of
payment of overtime wages. The contention on behalf of the
company is that the right to overtime wages based on any
ground what soever should he deemed to have been dealt with
and rejected by the Tribunal which gave the award in 1 950.
Though the demand for overtime wages was in general terms it
could have been or it ought to have been supported either as
one of the items of industrial dispute or as flowing from
out of the provisions of the Factories Act or flowing from
the provisions of the Bombay Shops and Establishments Act.
It was the duty of the party making the 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 contender
that the demand for overtime were under the provisions of
the Bombay Shops & Establishments Act should be deemed to
be barred on principles analogous to those of the
rejudicata. Reliance is placed upon the decision of this
Court in Bombay Gas Co. v. Shridhar Bhau(1). But in that
case the question whether the workmen should get overtime
wages in the same way as the workmen governed by the
Factories Act had been considered in the reference which
resulted in the award of 1953 and before the Tribunal it was
conceded by the workmen that they were not governed by the
Factories Act and the claim for the same overtime wages as
those Payable to workers under the Factories Act was based
on the ground that there was no reason for any distinction
between the two sets of workmen. It was. therefore, held
that ‘so long as the award remains in force it must be held
that these workmen are not governed by the Factories Act and
are not entitled to the benefits thereof’. In the present
case also the question under the Factories Act had been
considered but not the question whether they are entitled to
overtime
298
wages under the provisions 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 should also be paid overtime wages
under the provisions of that Act. Incidentally it shows that
the question as to whether the Bombay Shops & Establishments
Act is applicable to those workmen has been raised for the
first time in these proceedings. The doctrine of res
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 claims and defences are open to parties should all
be put forward it the same time provided so confusion is
likely to arise by so putting forward all such claims. It
was observed by this Court in Devilal Modi v. Sales Tax
Officer:
“The general principle underlying the doctrine of
res judicata 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 reversed 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 State
of U.P & Others v The State of U.P & Others [1962 (1)
SCR 574
We are therefore of opinion that the question of overtime
wages should be deemed to have been dealt with and disposed
of by the Tribunal on whatever the basis of the claim for
overtime wages may be.
The disputes between this company and its workers quite
often come to this Court. The case in Bombay Gas Co. v
Shridhar Bhau (supra) is one such. The other cases are found
in Bombay Gas Co. Ltd v. Gopal Bhiva (2) and Ramlanshan
Jageshwar v. Bombay Gas Co. (3)
299
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 industrial dispute. The award has
stood the test of time for 25 years a very 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 own costs and pay the costs of the respondents
V.M.K. Appeal allowed
300