E.S.i. Scheme Vs. Natvarlal Amrutlal Shah - Court Judgment

1. This Special Civil Application is directed against an order dated May 16, 1994 passed by the Labour Court at Ahmedabad in Recovery Application No. 2082 of 1990 whereby the claim of the present respondent Natvarlal Amrutlal Shah was allowed with the direction to the E.S.I. Corporation to pay a sum of Rs. 2,06,068/- to him as overtime dues for the period from July 21, 1973 to August 7, 1986 in respect of which the recovery application was filed on August 17, 1990.

2. On March 30, 1995 while issuing the Rule in this matter ad interim relief in terms of para 12(C)(1) was granted by the Court on the condition that the petitioner shall deposit an amount of Rs. 2,06,068/- as directed by the Labour Court, Ahmedabad in this Court within six weeks.

3. Civil Application No. 2534 of 1995 has been moved by the present respondent on September 26, 1995 for vacating ad interim relief and for direction to withdraw the amount deposited by the E.S.I. Corporation in pursuance of the order dated March 30, 1995 as aforesaid. When the matter came up before the Court on March 20, 1996, it was submitted by Mr. Mishra that other identical matters had already been decided by this Court and it was submitted by Mr. Shastri appearing on behalf of the petitioner that this matter was little different than the matters which have already been decided. Thereupon on the request of both the sides the main matter was fixed to be finally beard on March 26, 1996. Thereafter the matter came up before the Court on April 22, 1996 and Mr. T. R. Mishra submitted that this matter was exactly identical to the matters already decided by this Court by the Division Bench in Special Civil Application No. 10323 of 1993 decided on November 30, 1993, Special Civil Application No. 9427 of 1993 decided by the 35 Division Bench on October 6, 1993 and Special Civil Application No. 2962 of 1991 decided by the Division Bench on April 30, 1991. On the other hand, it was submitted on behalf of the petitioner, i.e. Director, E.S.I. Scheme that all these orders have been passed by the Division Bench of this Court prior to the Supreme Court's decision rendered in (1995-1-LLJ-395) [Municipal Corporation of Delhi v. Ganesh Razak and Anr] and according to the learned counsel for the petitioner only such claim could be entertained under Section 33-C(2) which had already been adjudicated or which were recognised by the employer. According to Mr. Bambhania the claim of the respondent which so has been allowed by the Labour Court was neither an adjudicated claim nor it was recognised by the employer and therefore the claim of the respondent should not have been entertained by the Labour Court in the proceedings under Section 33-C(2) of the Industrial Disputes Act.

4. The facts leading to the filing of the present Special Civil Application by the Director, E.S.I. Scheme are as under :

(i) The respondent was appointed as watchman under Bombay Civil Service Rules as Government Servant on September 1, 1969.

(ii) On August 17, 1990 an application under Section 33-C(2) of the I.D. Act was filed by the respondent before the Labour Court, Ahmedabad being Recovery Application No. 2082 of 1990 claiming overtime dues for the period from July 1973 to August 7, 1986 on the ground that the provisions of Minimum Wages Act, Shops and Establishments Act, and Industrial Disputes Act were applicable and the respondent had worked overtime during this period and was therefore entitled to a sum of Rs. 2,22,009.85 Ps. as overtime dues from July 1973 to August 7, 1986.

(iii) Before the Labour Court, the present petitioner - E.S.I. Corporation, appearing as opponent contested the claim of the present respondent stating that he had of course served as watchman from September 1, 1969 in the payscale of Rs. 196-232 which at present was Rs. 750-940; he had served at Cambay from September 1, 1969 onwards, and from April 13, 1985 to August 7, 1986 at D-1 Petlad and at present he was working at Cambay; that the respondent was in permanent employment as watchman from September 1, 1969 and further that he had to work from 8-00 p.m. in the night to 8-00 a.m.

5. It was contended by E.S.I. Corporation that E.S.I. Scheme was neither factory nor an industrial establishment which was governed by the Government Rules framed by the Government so and that Industrial Disputes Act, Minimum Wages Act and Shops and Establishments Act were not applicable. It was also contended that the work was taken from the respondent workman as per rules made by the Government and that no overtime work had been taken from him and as such the question of overtime payment does not arise. The details regarding the working hours and the absence of the respondent from duty from July 1, 1973 to July 31, 1986 had also been filed as Exhibit 6 with the list Exhibit 5. It appears from the impugned order dated May 16, 1994 passed by the Labour Court that the present respondent did not lead any oral evidence before the Labour Court because the present petitioner, i.e. E.S.I. Corporation had admitted in its reply that the work had been taken from the respondent workman for 12 hours. The present petitioner also did not lead any oral evidence. The respondent workman relied upon the judgment delivered in Recovery Application No. 1657 of 1980 dated October 18, 1984, Recovery Application No. 5624 of 1986 dated May 31, 1988 and Recovery Application No. 5495 of 1986 dated April 11, 1991 and Recovery Application No. 107 of 1987 dated October 20, 1992. A certified copy of the judgment rendered by this Court in Special Civil Application No. 10323 of 1993 dated November 30, 1993 had also been filed.

6. The Labour Court held that the provision of the Minimum Wages Act and the Industrial Disputes Act were applicable and the activities carried on in the hospital, dispensaries of E.S.I. Corporation were sufficient to make it an industry. It was also held on the basis of the Full Bench Judgment of Kerala High Court that the respondent being a workman in an industry could not be deprived of his dues under the Industrial Laws even if it was found that he was not entitled to such benefits under the Bombay Civil Service Rules. The Labour Court has observed that there was a clear direction to the employer under Section 12 of the Minimum Wages Act to pay overtime to every employee who does more work than prescribed and Rule 25 of the Minimum Wages (Central) Rules, 1950 provide for determination of extra wages for overtime and accordingly application under Section 33-C(2) of the Industrial Disputes Act, 1947 was maintainable. It was also held that under Section 12 of the Minimum Wages Act it was mandatory to pay minimum wages fixed in the schedule and accordingly the respondent workman was entitled to overtime wages. It was categorically held that the notification dated November 7, 1967 which had been produced on behalf of the E.S.I. Corporation regarding the payment of overtime to class IV employees was not of any help to the E.S.I. Corporation because the respondent had been held to be the workman. The Labour Court found that the respondent in all had worked for 3795 days out of 3936 days because he had remained absent for 141 days. The Labour Court thus found that the respondent-workman had overworked for 3795 days and it was also held on the basis of the written statement which had been filed by the E.S.I. Corporation that the respondent workman had worked for 12 hours a day instead of 8 hours and having worked for 4 hours more every day he was entitled to the wages for 3795 days multiplied by Rs. 52.30 Ps. which comes out to be Rs. 2,06,068/- and accordingly as against the claim of the respondent workman for Rs. 2,22,009.85 Ps. overtime due from July 1973 to August 7, 1986 was calculated and the due amount came to Rs. 2,06,068/- and the Recovery Application was thus partly allowed with the direction to the E.S.I. Corporation to pay a sum of Rs. 2,06,068/- to the workman, Natvarlal Amrutlal Shah.

7. When the matter came up before the Court on April 22, 1996 as stated above on the narration of the basic facts of the case that it was a claim for working overtime for a period from July 1973 to August 1986 which had been filed through Recovery Application under Section 33-C(2) on August 17, 1990 the question which was straightway posed to Mr. T. R. Mishra, learned counsel for the respondent-workman was that even if it is accepted in principle that the Limitation Act as such does not apply to the proceedings under Section 33-C(2) of the I.D. Act and no period of limitation has been prescribed for moving application under Section 33-C(2), so can it not be said that the concerned workman was obliged to file the claim within reasonable time and should the party fail to explain the delay and it is found that the claim had been filed after inordinate delay which remained unexplained, whether the claim should still be entertained Mr. Mishra sought time to cite decisions on this question and accordingly the time was granted on April 22, 1996 and the matter was posted for April 24, 1996. On April 24, 1996 Mr. Mishra again sought time to explain the delay in filing claim in the year 1990 for the period 1973 to 1986 and for that purpose also the time was granted upto April 30, 1996, i.e. today and Mr. Mishra has today filed an affidavit of the respondent-workman Shri Natvarlal Amrutlal Shah dated April 30, 1996, copy of which has already been given to the other side.

8. It is not necessary to go into the question as to whether this claim ought to have been entertained by the Labour Court or not under Section 33-C(2) of the I.D. Act in, view of the Supreme Court's decision in the case of municipal Corporation of Delhi v. Ganesh Razak (supra) in absence of any adjudicated claim or a claim recognised by the employer as submitted by the petitioner - E.S.I. Corporation and other ancillary questions which have been raised in this regard, because in my opinion, this matter can be decided on the simple question arising in the facts of this case as to whether the workman claiming the amount against overtime is not obliged to approach the Labour Court under Section 33-C(2) within the reasonable time notwithstanding the principle that there is no law of limitation applicable. Mr. Mishra has placed reliance on (1975-11-LLJ-373) (SC) (Punjab Co-operative Bank Limited v. R. S. Bhatia (dead) through L.R.s) 1976 (II) LLN pg. 535 (Kilaru Gopal Rao v. Labour Court) it has been submitted that in view of the law laid down in these two decisions the application under Section 33-C(2) should be entertained at any time as no period of limitation has been fixed and he also submitted that in view of the affidavit which has been filed by the respondent workman today the delay should be treated to have been duly explained.

9. So far as the affidavit dated April 30, 1996 is concerned all that has been stated in this affidavit is that the respondent was not an educated person and he had no knowledge of law. It has also been stated that several watch and ward staff in E.S.I. Scheme had preferred the Recovery Application before the Labour Court and all of them, according to his information had been paid the money computed by the Labour Court in their favour and further that according to his information in all the cases whether the Labour Court had passed the orders against E.S.I. Scheme, the E.S.I. had preferred petition and this Court had rejected the petition filed by the E.S.I.

10. I may first deal with the three so-called identical matters decided by the Division Bench on November 30, 1993, October 6, 1993 and [April 3O, 1991 to which the reference had been made by the learned Counsel during the course of arguments. In the Division Bench's decision dated November 30, 1993 and October 6, 1993 the question as to whether the workman was obliged to file the claim for overtime within the reasonable time was not at all under consideration. In fact the order dated October 6, 1993 was passed to give effect to the direction which had earlier been issued by the High Court and the Director was called upon to deposit the amount awarded by the Labour Court within two weeks and in case the High Court's order is not complied with the respondent-Director, E.S.I. was to remain personally present before the Court. Thus these two decisions dated November 30, 1993 and October 6, 1993 cannot be used as authorities to support the contentions that application under Section 33-C(2) can be filed at any time since there is no period of limitation. The third order dated April 30, 1991 shows that the claim for overtime was for the period 1966-67 to July 1980 and this claim was opposed on the ground that it could not he entertained after a long period. However, it is not discernible from go the contents of this order that what was the actual period of delay, on what date claim for the period of 1966-67 to July 1980 had been filed and the contention that the workman had come belatedly was rejected by saying that the other side had not been put to any prejudice. Having considered all these three matters none of the three decisions can be taken as an authority in respect of the question which directly falls under consideration in the facts of this case. There cannot be any quarrel with the proposition of law that any proceedings in respect of which no period of limitation has been fixed, such proceedings can be raised at any time and such claims cannot be rejected on the ground that they have become time barred. Nevertheless the question remains that even such claims for which there is no prescribed period of limitation are required to be filed within a reasonable time or not and as to whether the time in approaching the Court has to be reasonably explained or not. In such cases where no period of limitation is prescribed there cannot be any upper limit or lower limit and no formula of universal application can be laid down as to after what period the claim should not be entertained or upto what period it should be entertained, but the party filing claim after long delay cannot be absolved from the obligation of explaining delay and the cases in which it is found that the delay has been reasonably explained, the claim can certainly be entertained. No period of limitation has been prescribed with reference to the proceedings under Article 126 of the Constitution of India also but the requirement to explain the time taken to approach the Court has been insisted and applied throughout. In AIR 1964 SC. pg. 1006 [State Of Madhya Pradesh and Anr. v. Bhailalbhai] the Supreme Court has taken view that whereas three years period has been prescribed for the remedy under the common law, the period of three years should be taken as reasonable period for approaching the Court under Article 226 of the Constitution of India. But in the later decisions the Supreme Court has taken the view that in such cases no upper limit or no lower limit can be fixed and the question of delay in each and every case has to be decided on its own facts, when the period of limitation has not been fixed. It was only by keeping this end in view that the time was granted to the petitioner to file an affidavit even at this stage to explain the delay for filing the claim for the period of 1973 to 1986 in the year 1990 and because it was stated that this matter was identical to some other matters which have been decided. The plea that the party had no knowledge of law can't be entertained and it goes without saying that pleading no knowledge of law is no ground to explain the delay and the saying goes that ignorance of law is no excuse. There is nothing in the affidavit dated April 30, 1996 filed by the respondent on the basis of which it can be said that the inordinate and long delay of almost 17 years has been explained. Nothing has been said even with regard to the period from 1986 to 1990 and no factual details about the so-called other matters have been given in this affidavit. In Punjab Co-operative Case the claim application under Section 33-C(2) had been filed on July 10, 1968 in respect of the period from 1954 to 1961. It is also borne out from the contents of para 2 of the Supreme Court Judgment and Punjab Co-operative Bank's case that the workman in that case had been suspended on April 4, 1961 and he was dismissed from the service on June 22, 1961. Thereafter, he moved an application under Section 33-A of the Act challenging the order of his dismissal. This complaint under Section 33-A was dismissed on merits on July 23, 1966. In face of these facts if the plea of the Punjab Co-operative Bank was not accepted by the Supreme Court as stated in, para 6 of the judgment on which reliance has been placed by Mr. Mishra, it cannot be said that in this decision it has been laid down as proposition of law that so far as the claim under Section 33-C(2) are concerned the workman can walk, into the Labour Court at any point of time with out caring to explain the long period taken by him in approaching the Labour Court so as to enforce the recovery of overtime work. In the decision rendered by the High Court of Andhra Pradesh in Kilaru Gopal Roa v. Labour Court (Supra) the question which was under consideration was as to whether the workman can resort to the remedy under Section 33-C(2) of the I.D. Act to recover the amount due to him eventhough he had availed remedy under the payment of Wages Act or Minimum Wages Act or Shops and Establishments Act. While dealing with this question it was also considered in the end of para 6 of the judgment that Section 33-C(2) was beneficial provision providing for a prompt and cheap remedy to a workman to receive and realise the money or other benefits due to him, either under a settlement or award or any other provision of law and without being affected by the provisions of the Limitations Act whether the procedure prescribed by the State Act is more favourable, or whether the procedure prescribed by any other Act is more favourable to the employee, should be left to him and in case he chooses remedy under Section 33-C(2) of the I.D. Act, no authority can compel him to adopt other remedy available to him. Further it was considered that the claim being under the Payment of Wages Act could have been made before the Authority under the Payment of Wages Act within one year and merely by changing the forum the workman could not be permitted to apply under Section 33-C(2) of the I.D. Act and after lapse of eight years by which time even the suit to recover the amount would be barred. It was in that context that it was sought to be contended that the jurisdiction conferred on the authority under the Payment of Wages Act was exclusive and the claim had to be made within one year. While dealing with all these questions reliance was placed on Supreme Court decision rendered in AIR 1969 S.C. pg. 1335 [Athani Municipality v. Labour Court, Hubli] wherein it was held that the application under Section 33-C(2) of the I.D. Act could also be entertained even in respect of the claim which exclusively falls under the provisions of the Minimum Wages Act or Payment of Wages Act even if the period under the Payment of Wages Act had expired. While referring to Athani Municipality's case, it was observed that no period of limitation is applicable to the application under Section 33-C(2) of the I.D. Act. It was held that the principle underlying decision of the Supreme Court in Athani Municipality's case was that if the remedy under the Minimum Wages Act is not available to the workman concerned, he may resort to the remedy under Section 33-C(2) of the I.D. Act and for this view support was sought to be taken from earlier decision of the Supreme Court in Bombay Gas company's case (1968-11-LLJ-608) holding that the claim which was barred by time under the Payment of Wages Act can be made under Section 33-C(2) of the I.D. Act. Thus this decision also does not lay down any such proposition of law that the case where no limitation is prescribed the party can approach or initiate proceedings under Section 33-C(2) of the I.D. Act at any time without explaining the delay. The decision of Andhra Pradesh High Court is only an authority for the limited purpose of maintainability of application under Section 33-C(2) of the I.D. Act even in respect of those claims which have become time barred either under Payment of Wages Act or under the Minimum Wages Act. Thus no party can absolve itself of the obligation of giving an explanation seeking to explain inordinate delay. In the facts of the present case no explanation worth the name was given for delay of 17 years and even in this affidavit which has been filed today the deponent has made a bald statement that he is not much educated and had no knowledge of law. In my opinion, the long delay of 17 years can't be taken to be explained on this basis. The proceedings under Section 33-C(2) of the I.D. Act initiated in the year 1990 in respect of the overtime work for the period 1973 to 1986, therefore, should not have been entertained by the Labour Court merely because the Limitation Act is not applicable, unless it could come to the conclusion on the materials placed before it that the delay had been reasonably explained. The claim should have been therefore rejected in the facts of this case. Consequently the impugned order dated May 16, 1994 directing the E.S.I. Corporation to make payment of Rs. 2,06,068/- against overtime wages claim filed in 1990 for the period 1973 to 1986 to the respondent-work-man is hereby quashed and set aside.

Rule is made absolute accordingly. No order as to costs.

11. In view of the order passed in the main petition there shall be no order in Civil Application No. 2534 of 1995 and it also stands disposed of accordingly.