TMI Blog1955 (3) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... th of August 1941. The probate of the will was taken in due course, and the plaintiff sued for a sum of Rs. 1013/3/- on 10-8-1944. 3. The defendants, proprietors of the Khadga Vilas Press resisted the action on the grounds that the suit was not maintainable as the jurisdiction of the Civil Courts was ousted by the provisions of Section 22, Payment of Wages Act (Act 4 of 1936); that it was barred by limitation; that they were not liable for the fines paid by the Manager as it was due to his negligence that the cases were brought, and that the, defendants had suffered loss on account of negligence, misappropriation and mismanagement of the Press by the Manager, and, on that account, the Manager was liable to pay a sum of Rs. 898/11/- and the plaintiff was liable to pay Rs. 87/9/6 to them. Five different statements were set out at the foot of the written statement showing the liability of the deceased Manager and the plaintiff. 4. The learned Munsif decreed the suit, partly, holding that the salary of the deceased Manager was due from March 1941 to 21-8-1941, the salary of the plaintiff was due from 1st of August to 21st of August, 1941, at the rates claimed. He disallowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r determining whether the claim of the plaintiff arises out of delay in payment of the wages or out -of deductions from the wages. It is not controverted that the Factories Act (Act 25 of 1934), applies to the Press in question and that the salaries of the deceased Manager and the plaintiff come within, the meaning of 'wages' as defined in Section 2 of Act 4 of 1936. 7. It is contended on behalf of the appellants that the arrears of salary claimed by the plaintiff are actually wages and, as the defendants delayed in making payment of the same or deduced them from the sum which was found due from the deceased Manager, the plaintiff should have applied to the Authority which was appointed under Section 15, Sub-section (1) of the Act. This contention is met by the learned Counsel for the respondent who has argued that the Authority appointed under Sub-section (1) of Section 15 had no jurisdiction to entertain an application based on the facts mentioned in the pleadings and that in no case, whatsoever, the jurisdiction of the Civil Courts was ousted. Learned Counsel for the appellants relies on three decisions, namely, the -- 'Modern Mills Ltd. v. R. Mangalvedhekar' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the nature of a bonus as having been submitted after the date given in the award, and the person employed thereupon applied to the Authority under the Act stating that he was entitled to the bonus declared under the award. The Authority held that the person employed was entitled to the bonus as declared by the award, and this finding was challenged by an application for a writ of 'certiorari' before a Division Bench of the Bombay High Court. It was argued on behalf of the employers that the Authority under the Act was not entitled to construe the award and, in so construing it, it acted beyond its jurisdiction. Their Lordships, however, held that it was open to the Authority under the Act to construe the award in order to determine under Section 15 whether the refusal was an authorised deduction or not. This case did not go beyond holding that the Authority empowered under Section 15, CL. (1), could lawfully construe an award in order to determine if a refusal to pay a bonus, which comes under the definition of 'wages', was an authorised deduction or not. This decision is, therefore, of little assistance for the purposes of the present case. It cannot be denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of 'delayed wages' and goes further to hold that, whereas the Authority can construe the terms of a contract in order to determine what wages are to be paid and also to determine whether a person has been employed or not it cannot decide a question relating to the existence of the status of master and servant between the parties. The Authority can decide whether a servant was employed by his employer if the fact is ' denied or disputed, after which the question would arise as to what were the terms of the contract and what was the liability of the master under the terms with regard to wages, but that far only. In other words, according to this decision, it was not open to the Authority to decide whether a contract of service had been properly and validly terminated or that the dismissal of a servant by his master was wrong. I respectfully agree to the interpretation given by the learned Judges in this case as the Preamble of the' Act shows that it is an Act merely to regulate the payment of wages to certain classes of persons employed in industry. It would be too much to hold that the Authority appointed under Section 15, Sub-section (1) is empowered with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability of the deceased Manager, and, in my opinion, this accounting between the parties, involving liability could not be done nor any objection determined by the Authority. The appellants cannot invoke the aid of Section 7(2)(c) of the Act as they never pleaded that they had so deducted the wages. There were simply some allegations in the written statement, and there is nothing to prove that the deceased Manager was 'required to account and a loss was sustained by the proprietors due to neglect or default directly attributable to him. In construing the sections of the Act, the utmost strictness is necessary especially when the jurisdiction of the Civil Courts is tried to be ousted. According to Section 9, Civil P. C,, the Courts shall have jurisdiction to try all suits of a civil nature except suits of which cognisance is either expressly or impliedly barred. Exclusion of jurisdiction of Civil Courts should not be inferred without a very close scrutiny. It has been laid down in a number of cases that it is for the Civil Court to determine in the last resort the limits of the powers of a Court of special jurisdiction, and -it is for the party seeking to oust the jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 19, Limitation Act. This, section lays down that, if before the expiration of die period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. The letter was signed by defendant No. 1, one of the proprietors, and the fact of sending this letter to the plaintiff was specifically admitted .in paragraph 8 of the written statement. It is argued on behalf of the appellants that this letter (Exhibit 1/C) should not be treated as an acknowledgment saving limitation as it is not an absolutely unconditional admission of liability on the part of the defendants. Reliance is placed on a case -- ''Jogeshwar Roy v. Raj Narain Mitter 31 Cal 195 (E), in which their Lordships refused to treat as an absolute unconditional acknowledgment a statement made in writing by the defendant that he would see what was due after examining the estimates and after d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the fact that the defendants in the acknowledgment contended that nothing would be due to the plaintiff on taking of accounts was immaterial. In laying down this rule of law their Lordships depended upon two English decisions , namely, -- 'Prance v. Sympson 1854 Kay 678 (G); and -- 'River Steamer Co., In re (1871) 6 Ch A 822 (H). In the present case before us, there is a clear acknowledgment of the plaintiff's right to have the accounts taken, and there is also the unequivocal admission of liability to pay any balance that might be found due to the plaintiff. I think, therefore, that any written admission by a debtor of the existence of an unsettled account with a promise to pay the balance, if any due,. is sufficient acknowledgment within the meaning of Section 19, Limitation Act. It is not necessary- to decide in this case whether such an admission, if not accompanied by a promise to pay the balance, would amount to an acknowledgment. A glance at Explanation I of Section 19, Limitation Act indicates how wide the Legislature intended to be the scope of Section 19. Explanation of Section 19, is in the following terms: For the purposes of this section an acknowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the defendants to derive any benefit out of this order when no court-fee, however nominal, was paid by them on their claim to the set-off. Therefore, the learned Munsif cannot be blamed if he did not embark on an investigation to find out if the defendants' claim was true. 15. The last point relating to freedom from liability for the fines paid by the deceased Manager can hardly detain us any longer on the finding of the Court of appeal below that there was no satisfactory evidence to prove the personal negligence of the deceased Manager in connection with, the offences for which he had been fined under the Factories Act and under the Payment of Wages Act. 16. The appeal, accordingly fails and is dismissed with costs. Prafulla Ranjan Das, C.J. 17. I agree that the appeal should be dismissed, but would like to add a few words regarding the four points which have been argued before us. The points are (1) that the suit was barred under Section 22, Payment of Wages Act, (1936); (2) that part of the claim was barred by limitation; (3) that the appellants were not liable for the fines imposed on the Manager for violation of the provisions of Section 25, Payment of Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Government under Sub-section (1) of Section 15, Payment of Wages Act, 1936. Sub-section (2), excluding the two provisos of Section 15 is in these terms: Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of 'wages has been delayed, such person himself, or any legal practitioner, or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, under this Act or any other person acting with the permission of the authority appointed under Sub-section (1), may apply to such, authority for a direction under Sub-section (3) . Sub-section (3) lays down the procedure for hearing the application, and then states what direction the authority appointed under Sub-section (1) may give: it states that the authority may direct a refund to the employed person of the amount deducted, or the payment of the delayed wages, together with the payment of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case and not exceeding ten rupees in the latter; then there is a proviso to Sub-section (3), which says that no dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arently admitted their liability to pay the wages of their Manager of the other employee, namely, the plaintiff, at least for a part of the period of the claim; but they said that the Manager was himself liable to account to the appellants for certain acts of mismanagement and on an adjustment of accounts, the Manager owed the appellants a sum of Rs. 1463/6/- which, if debited towards his salary account, would show that the Manager owed to the appellants a sum of Rs. 898/11/-. This was the nature of the dispute on account of which the appellants did not pay the wages of the Manager and the plaintiff. The question is if such non-payment is delay in payment of wages contrary to the provisions of the Act , within the meaning of Section 15. On a careful consideration of the relevant provisions of the Payment of Wages Act, 1936, I am of the opinion that it would be stretching the language of Section 15 too much to say that the nonpayment, of wages in the circumstances mentioned above is delay in the payment of wages. The expression delay is not a term of art; It should be taken in the ordinary dictionary sense; there is, I think, a well understood difference in meaning between dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A dispute as to the amount payable may, in certain circumstances, be dealt with by the authority appointed under Sub-section (1) of Section 15. An example of such a dispute being considered by the authority appointed under Sub-section (1) of Section 15 will be found in the Nagpur decision AIR 1953 Nag 136 (C)', in which case the employee claimed wages even during the period of suspension, and the defence was that part of the wages had been paid and for the remaining period the employee was absent from duties without permission and, therefore, was not entitled to wages for that period. Such a dispute,, it was held, amounted to a delay in the payment of wages within the meaning of Section 15 of the Act. In the case before us, however, the dispute was not of that nature, and the payment of wages was not postponed on account of such dispute. In the present case the appellants, while admitting their liability to pay wages, said that the employee was liable to account, on such adjustment of accounts being made, nothing was due at all to the employee; on the contrary, employee had to pay something more to the employer. In these circumstances, I do not think that the principle laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es' as if it meant the same thing as refusal to pay wage's. In this case there is no delay on-the pait of the petitioner to pay wages. He has. refused to pay wages, rightly or wrongly, contending that respondent 2 is not his employee, he has dismissed him and therefore nothing is due to him. Therefore, the issue which really arises and which the authority has assumed jurisdiction to decide is whether the refusal of the petitioner to pay wages is justified or is valid iit law. If the Legislature wanted to confer such, a jurisdiction upon the authority, it would certainly have done so by appropriate language. Really Mr. Seervai goes to the utmost length by suggesting that all questions arising out of a contract of personal service and all questions arising out of the relationship of master and servant, have all been transferred from the civil courts to this special tribunal.........As I have said before, one would have expected very-different language, much more appropriate language, to oust the jurisdiction of the civil courts and to confer that jurisdiction upon the special tribunal . If I may say so with great respect, I entirely agree with the aforesaid observations, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver perform or permit to enjoy, or is coupled with a claim to a set-off, or is addressed to a person other than the person entitled to the property or right. It is clear that the letter acknowledged the liability for the payment of wages, but it was coupled with a claim to a set-off and a refusal to pay unless the Manager rendered accounts with regard to his acts of mismanagement etc. Under the explanation quoted above, such an acknowledgment is sufficient to extend time even though it is coupled with a claim to set off or is accompanied by a refusal to pay. The Indian law Is somewhat different from the English law in this matter. 'Under the English law, an acknowledgment of a debt implies a promise to pay. The English law makes no distinction between an acknowledgment or promise which is sufficient to extend the time in the case of a debt which is not barred, and an acknowledgment or promise which is sufficient to create a new contract where the debt has already become barred by lapse of time. But in India, an acknowledgment in which there is no express promise implying a new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s preferred was really a counter claim based on a different cause of action altogether. A counter-claim is substantially a cross-action and need not be an action of the same nature as 'the original action or even analogous thereto. Though there is no provision in the Code of making a counter-claim, a court has got the power to treat the counter-claim as a plaint in the cross-suit and hear them together, if the counter-claim is property stamped. Whether the claim of the appellants be considered to be a legal set off or a counter-claim, the appellants had to pay court-fees on their claim) This they did not do, and the courts below were right in not considering the appellants' counter-claim, when they did not pay court-fees thereon. I agree with the courts below that there was no obligation on the court to call upon the appellants to pay court-fees. 23. The last point relates to the recovery of fines. The learned Additional Sessions Judge has dealt with this point in this manner: Babu B. L. Arora was fined Rs. 50/- for-violation of the provisions of section 25 of the Payment of Wages Act (Ext. 6) and also Rs. 50/- under Sections -433 and 24(4) of the Factories Act of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
