judgement:
ivil Appeals Nos.
1266 & 1267 of 1969.
From the Judgment and order dated the 29th July, 1968 of the Patna High Court in Civil Writ Jurisdiction Case No. 61 of 1967 H. K. Puri and K. K. Mohan, for the appellant 264 D. Goburdhan, for respondent Nos. 1 and 2 (In both the appear) Respondent No. 21 (In C.A. No. 1266/69) and for respondent No. 60 (in C.A. No. 1267/69).
A. K. Nag, for respondent Nos. 3 19 (In C.A. No. 1266/69) and for respondent Nos, 4, S, 7 9, 11 32, 35 42, 44 52, 54 58 (In C.A. No. 1267/69).
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
By two notifications dated 22 6 65 and 28 8 65 the Government of Bihar sent to the Labour Court, Chota Nagpur Division, Ranchi, applications in respect of 73 workers of the appellant for decision under section 33C(2) of the Industrial disputes Act for retrenchment compensation.
The employer contended that it was a case of closure for reasons beyond its control and that therefore the workmen were entitled to compensation under the proviso to subsection (1) of section 25FFF of the Act and not to retrenchment compensation workers contended, however, that they were entitled to retrenchment compensation under s.25F.
The Labour Court held that it was a case of retrenchment.
Two writ petitions filed by the employer before the High Court of Patna failed and these appeals have been filed in pursuance of a certificate of fitness granted by the High Court.
The argument on behalf of the appellant is that where there is a dispute before the Labour Court considering an application under section 33C(2) as to whether the workmen had been retrenched or the factory had been closed for reasons beyond the control of the employer, it was not a matter which the Labour Court was competent to decide and that it was a matter which only an Industrial Tribunal considering a reference under section 10 is competent to decide.
In particular Item 10 of the Third Schedule to the Act is relied upon to show that the matter relating to retrenchment and closure is one which only an Industrial Tribunal is competent to decide.
Reliance is placed upon a decision of this Court in U.P. Elect.
Co. vs R. K. Shukla(1) where it was held that the power of the Labour Court is to complete the compensation claimed to be payable to the workmen on the footing that there has been retrenchment of the workmen, that where retrenchment is conceded and the only matter in dispute is that by virtue of section 25FFF no liability to pay compensation has arisen the Labour Court will be competent to decide the question, that in such a case the question is one of computation and not of determination, of the conditions precedent to the accrual of liability, and that where the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental, the Labour Curt will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested.
In the U.P. Electric Company case (supra) the facts were somewhat different.
The Court in that case noticed at page 513 of the report that "The company had expressly raised a contention that they had not retrenched the workmen and that the workmen had 265 voluntarily abandoned the Company 's service by seeking employment with the Board even before the company closed its undertaking".
This Court emphasised at page 5l7 of the report that If the liability arises from an award, settlement or under the provisions of Ch.
V A or by virtue of a statute or a scheme made thereunder, mere denial by the employer may not be sufficient to negative the claim under section 33C(2) before the Labour Court".
We, therefore, do not see how the decision in the U.P. Electric Company 's case (supra) can come to the aid of the appellant in this case.
The said case is clearly distinguishable on the peculiar facts as noticed above.
In Central Bank of India Ltd vs P. section Rajagopalan(1) this Court considered the scope of section 33C(2) elaborately and it would be necessary to quote at some length from that decision.
In that case it was urged by the employer that section 33C(2) can be invoked by a workman who is entitled to receive from the employer the benefit there specified, but the right of the workman to receive the benefit has to be admitted and could not be a matter of dispute between the parties and that the only point which the labour Court can determine is one in relation to computation of the benefit ill terms of money.
This Court observed: "We are not impressed by this argument.
In our opinion on a fair and reasonable construction of sub section
(2) it is clear that if a workman 's right to receive the benefit is disputed, that may have to be determined by the Labour Court.
Before proceeding to compute the benefit in terms of money the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit.
If the said right is not disputed, nothing more needs to be done and the labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed the Labour Court must deal with that question and decide whether workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making necessary computation can arise.
It seems to us that the opening clause of sub section
(2) docs not admit of the construction for which the appellant contends unless we add some words in that clause.
The clause "Where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be.
entitled to receive such benefit.
" The appellant 's constructional would necessarily introduce the addition of the words "admittedly, or admitted to be" in that clause, and that clearly is not permissible.
Besides, if seems to us that is the appellant 's construction is accepted it would necessarily mean that 266 it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub section (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman 's application.
The claim under section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub s.(2).
As Maxwell in Interpretation of Statutes, p. 350, has observed 'where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution; we must accordingly hold that section 33C(2) takes within its purview case of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers.
Incidentally, it may be relevant to add that it would be somewhat odd that under sub s (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub section
On the other hand, sub s.(3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour of Court under sub section
Further on this Court observed: "It is thus clear that claims made under s.33C(1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter VA.
These words of limitations are not to be found in s.33C(2) and to that extent, the scope of section 33C(2) is undoubtedly wider than that of section 33C(1).
It is unnecessary in the present appeals either to state exhaustively or even to indicate broadly what other categories of claims can fall under section 33C(2).
There is no doubt that the three categories of claims mentioned in section 33C (1) fall under section 33C(2) and in that sense, section 33C(2) can itself be deemed to be a kind of execution proceeding, but it is possible that claims not based on settlements, awards or made under the provisions of Chapter VA, may also be competent under section 33C(2) and that may illustrate its wider scope." This Court then went on to discuss some of the claims which would not fall under s.33C(2), which is not very relevant for the purposes of this case.
The present case stand on an even stronger footing.
Even the employer does not dispute that the workmen are entitled to compensation.
It only says that the compensation should be calculated on a particular basis different from the basis on which the workmen claim.
The claim also falls under Chapter VA. 267 In the decision in South Arcot, Elect.
Co. vs N. K. Khan(1) where a right had been claimed by the various workmen in their applications under section 33C(2), it was held that it was a right which accured to them under s.25FF of the Act and was an existing right at the time when these applications were made, that the Labour Court clearly had jurisdiction to decide whether such a right did or did not exist when dealing with the application under that provision, and that the mere denial of that by the company could not take away its jurisdiction.
We hold that in this case it was competent to the Labour Court to decide whether the case before it was a case of retrenchment compensation or the proviso to sub section
(1) of section 25FFF was attracted on closure of the establishment.
The question even according to the employer falls under section 25FFF and therefore in deciding that question the Labour Court has necessarily to decide whether the proviso has been satisfied.
We do not consider that the reference to item No. 10 of the Third Schedule to the Act can decide the matter one way or the other.
The item reads as follows: "10.
Retrenchment of workmen and closure of establishment It does not say that all questions arising out of retrenchment of workmen and closure of establishments have to be decided by Industrial Tribunal.
Logically if the contentions is to be accepted, even if the question of retrenchment is not disputed the Labour Court will not be competent to decide the question of compensation payable in a case of retrenchment because it raises a question of jurisdiction.
This entry should therefore be held to refer to cases where the right to retrench workers or to close an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal.
In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenched workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on the basis that the so called closure was to closure at all.
In the present case the workmen do not ask for reinstatement.
They accept the termination of their services and ask for compensation.
The only dispute is about the compensation whether it is to be paid under s.25F or 25FFF.
Item 10 of Third Schedule will not cover such a case.
We therefore uphold the decision of the High Court and dismiss these appeals with costs.
V.M.K. Appeals dismissed.

summary:
The Government of Bihar sent to the Labour Court, Chota Nagpur Division, Ranchi, application in respect of 73 workers of the appellant for decision under sec.
33C(2) of the for retrenchment compensation.
The contention of the appellant was that it was a case of closer for reasons beyond its control and that, therefore, the workmen were entitled to compensation under the proviso to sub section (1) of sec.
25FFF of the Act and not to retrenchment compensation.
The workers contended that they were entitled to retrenchment compensation under sec.
25F. The Labour Court held that it was a case of retrenchment.
The writ petitions filed by the employer in the High Court has failed and these appeals have been preferred to this Court on the basis of the certificate of fitness granted by the High Court.
Dismissing the appeals, ^ HELD : (i) It was competent to the Labour Court to decade whether the case before it was a case of retrenchment compensation or the proviso to sub sec.
(1) of section 25FFF was attracted on closure of the establishment.
Even the employer does not dispute that the workmen are entitled to compensation.
It only says that the compensation should be calculated on a particular basis different from the basis on which the workmen claim.
The claim also falls under Chapter VA of the Act.
[266H; 267B C] Central Bank of India Ltd. vs P. section Rajagopalan ; relied on.
U.P. Electric Company vs R. K. Shukla [1970] 1 S.C.R. 507 and South Arcot Elect.
Co. vs N. K. Khan [1969] 2 S.C.R. 902, referred to.
(ii) Item No. 10 of the Third Schedule to the Act does not say that all questions arising out of retrenchment of workmen and closure of establishment have to be decided by Industrial Tribunal.
This entry refers to cases where the right to retrench workers or to lose an establishment is disputed and that question is referred for adjudication to the Industrial Tribunal.
In that case the Tribunal will be competent to decide whether the closure or retrenchment was justified and whether the retrenchment workmen should be reinstated or the workers in the establishment purported to have been closed should be continued to be paid on basis that the so called closure was no closure at all.
In the present case the workmen do not ask for reinstatement.
They accept the termination of the services and ask for compensation.
The only dispute is about the compensation whether it is to be paid under section 25F or 25FFF.
Item 10 of Third schedule will not cover such a case.
[267D G]


judgement:
Civil Appeal No. 1327 of 1973.
From the judgment and order dated the 21st July 1973 of the Madhya Pradesh High Court in Election Petition No. 36 of 1972.
N. M. Ghatate and section Balakrishnan, for the appellant.
247 section section Khianduja, for respondent No. 1.
The Judgment of the Court was delivered by KHANNA, J.
This appeal is directed against the judgment of Madhya Pradesh High Court whereby that court dismissed the section petition filed by the petitioner appellant to challenge the election of respondent No. 1 to Madhya Pradesh Legislative Assembly from Pandhurna constituency in Chhindwara district.
The election for Pandhurna constituency took place on March 8, 1972.
There were six candidates who contested the election.
The main contest was, however, between Madahavlal Dube respondent No. 1 and Dr. Ratanchand Mangalchand Sanghvi respondent No. 2.
Respondent No. 1 was declared elected.
The appellant, who was an elector in the above mentioned constituency, filed election petition to challenge the election of respondent No. 1 on various grounds.
It is not necessary to set out all the grounds because in the appeal before u, only one ground which is the subject matter of issue No. 10 has been pressed on behalf of the appellant.
The allegation which gave rise to issue No. 10 was contained in para 13 of the election petition.
The petition was, however, ordered to be amended because it did not contain full particulars.
The allegation with particulars was thereafter contained in para 13 of the amended petition.
According to the appellant, respondent No. 1 or his agent or any other person With his consent had got published and widely circulated a leaflet with the caption "Sawal Janta Ke" purporting to be on behalf of Pandhurna Matdar Sangh.
The aforesaid leaflet, according to the appellant seemed to have been drafted by respondent No. 1 and was full of defamatory and false averments calculated to prejudice the election prospects of respondent No. 2.
The leaflet was stated to have been very widely circulated and distributed throughout the consistency.
Every sentence of the leaflet, it was added, contained statement of fact about the personal character or conduct of respondent No. 2 which was false to the knowledge of respondent No. 1.
Respondent No. I and his friends were stated to have got the leaflet published under the psudonym of Pandhurna Matdar Sangh although there was no such Sangh in existence.
The name of the press and publisher ' s name was also not mentioned in the leaflet.
The appellant also mentioned the places where and the names of persons through whom the leaflets were alleged to have been distributed.
According to the leaflet which has been marked exhibit P4, respondent No. 2 was not a man of good character.
The said respondent was alleged to have committed rape upon a nurse while he was a government doctor.
He was also stated to be carrying on with another woman.
The activities of respondent No. 2 were stated to have driven his wife to insanity.
Reference was also made to some other shady and unethical activities in which respondent No. 2 was stated to he indulging Respondent No. 1 in his written statement denied that he, his agents or any other person with his consent had got published and circulated the leaflet in question.
It was also denied by respondent 248 No. 1 that he had drafted the aforesaid leaflet.
According to respondent No. 1, he had no connection with that leaflet and he was unable to make any statement about the truth or falsity of its contents.
It was denied that the said leaflet was widely circulated and distributed throughout the constituency.
The allegation that the leaflet was calculated to prejudice the election prospects of respondent No. 2 too was denied.
Likewise, respondent No. 1 denied that the different sentences of the leaflet contained statement of fact about the personal character or conduct of respondent No. 2 which was false to the knowledge of respondent No. 1.
According further to the respondent, he came to know of the said leaflet only some weeks after the election was over.
The said leaflet, it was added, appeared to have been got printed by someone interested in respondent No. 2 to create a ground for filing an election petition.
Issue No. 10 reads as under: "10(a) Whether the leaflet with the caption 'Sawal Janta Ke ' was published by respondent No. 1, his agents or any other person with his consent? (b) Whether the respondent No. 1 has any connection with the aforesaid leaflet? (c) Whether the material contained in the leaflet relates to personal character of respondent No. 2? (d) Whether the leaflet was widely circulated and distributed throughout the constituency and it was calculated to prejudice the election prospects of respondent No. 27 (e) Whether the leaflet was distributed at the places and by the persons named in paragraph 13 of the election petition? (f) Whether all persons named in the paragraph 13 except Shrimati Kamla Bai Mohogaonkar of Mohogaon were active supporters of respondent No. 2 ? Whether any corrupt practice under section 123(4) of the R.P. Act was committed in respect of the above '! Whether the allegations made in paragraph 13 make out a ground for challenging the election of respondent No. 1 under section 100(1) of the R.P. Act, 1951?" The High Court decided issues 10(a) and (b) against the appellant on the ground that no evidence had been led by him in this behalf.
On issue 10(c)? it was held, that though the material contained in leaflet P4 related to the personal character and conduct of respondent No. 2, the appellant had failed to prove that its contents were false to the knowledge of respondent No. 1 or that he did not believe them to be true.
No corrupt practice as defined in section 249 123(4) of the Representation of the People Act was held to have been proved issues 1(1) and (e) were held to be of no consequence in view of the fact that it was not proved that respondent No. 1 was guilty of corrupt practice.
In the result the election petition was dismissed.
In appeal before us Mr. Ghatate on behalf of the appellant has argued that the appellant wanted to file a photostat copy of the manuscript of leaflet P4 which, according to the appellant, had been written by respondent No. 1.
The High Court, it is pointed out, did not admit the aforesaid photostat copy in evidence on the ground that there was no sufficient reason for allowing the appellant to lead secondary evidence.
It is that order of the High Court which has been the main target of the criticism of Mr. Ghatate.
After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference.
According to clause (a) of section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it.
Clauses (b) to (g) of section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses.
In order to bring his case within the purview of clause (a) of section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy.
Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert.
The appellant also filed affidavit in support of his applications.
It was, however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1.
There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1.
The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken.
Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such a document.
The photostat copy appeared to the High Court to be not above suspicion.
In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy.
We find no infirmity in the above order of the High Court as might justify interference by this Court.
250 The matter may also be looked at from another angle.
There is no evidence on record to show that the contents of leaflet exhibit P4 were false.
Respondent No. 2 in relation to whose personal character and conduct statements were made in leaflet P4 was not examined as a witness.
No other evidence was also led of any person who knew about the character or conduct of respondent No. 2 to show that the statements contained in leaflet in question were false.
The High Court consequently arrived at the conclusion that on the material on record it could not be held that the contents of the said leaflet were false and that respondent No. 1 believed them to be false or did not believe them to be true.
As such, no corrupt practice as defined in section 123 (4) of the Representation of the People Act.
1951 was held to have been proved.
A corrupt practice, according to section 123(4), consists of the publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be also or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate`s election.
Apart from the other requirements, it is of the essence of the matter that the impugned statement of fact in relation to the personal character or conduct of a candidate which is alleged to have been published should be false.
Unless the said statement of fact is shown to be false, its publication would not constitute corrupt practice as defined in clause (4) of section 123 of the Act.
When there is complete absence of any material on the record to show that the impugned statement of fact is false, no occasion would plainly alias for remanding the case to the High Court to enable the appellant to produce in evidence the photostat copy in question with a view to show that the original of that had been written by the respondent.
There is no merit in the appeal.
The same is accordingly dismissed with costs.
P.H.P. Appeal dismissed.

dataset_name: IN-Abs

summary:
The election for Pandhurna Constituency for the M.P. legislative Assembly took place in March, 1970.
There were 6 candidates who contested the election.
The main contest was between respondents nos.
1 and 2.
Respondent No. 1 was declared elected.
The appellant, a voter, filed an Election Petition challenging the election on the grounds that respondent No. 1 published and circulated a leaflet containing defamatory and false averments against respondent No. 1 and it was calculated to prejudice the election prospects of respondent No. 2.
The leaflet it was alleged contained the statement of fact about the personal character or conduct of respondent No. 2.
In the leaflet it was mentioned that respondent No. 2 committed rape and he was carrying on with another woman.
The ties of respondent No. 2 were stated to have driven his wife into insanity.
Reference was also made to some other shady and unethical activities.
Before the High Court the appellant wanted to file a photostat copy of the manuscript of the leaflet which according to the appellant was written by respondent No. 1.
The High Court did not admit the aforesaid photostat copy in evidence on the ground that there was no sufficient reason for allowing the appellant to lead secondary evidence.
The High Court also held that though the material contained in the leaflet related to the personal character and conduct of respondent No. 2, the appellant failed to prove that its contents were false to The knowledge of respondent No. 1, and he did not believe them to be true and that, therefore, the corrupt practice defined in section 123(4) of the Representation of the People Act was not proved.
While dismissing the appeal this Court held: ^ Under section 65(a) of the Indian Evidence Act, secondary evidence may been of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved or when a person refuses to produce it.
There was no affidavit that the original document was in possession of respondent No. 1.
The photostat copy appeared to the High Court to be not above suspicion.
In view of all the circumstances, the High Court rightly came to the conclusion that no foundation was laid by the appellant for leading secondary evidence in the shape of photostat copy.
There is no evidence on record to show that the contents of the leaflet were false.
The respondent No. 2 was not examined as a witness.
No other evidence was also led of any person who knew about the character or conduct of respondent No. 2 to show that the statements contained in the leaflet in question were false.
Apart from the other requirements, it is of the essence of section 123(4) of the Representation of the People Act.
1951 that the impugned statement of fact in relation to the personal character or conduct of a candidate.
which is alleged to have been published should be false [249D, F 250D]


judgement:
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, section 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 section 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.
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.
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 section 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. vs 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 vs 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 vs The State of U.P & Others v The State of U.P & Others ; 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 vs Gopal Bhiva (2) and Ramlanshan Jageshwar vs 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.

summary:
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 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 vs Sales Tax officer ; relied on Bombay Gas Co. vs 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]