Chhattisgarh Infrastructure Development Corporation, Through- Its
Managing Director, Cidc Ghadi Chowk, Raipur, Chhattisgarh., District :
3. The workmen moved applications under Sections 15(2) of Payment of
Wages Act, 1936 (hereinafter referred as Act, 1936) before the authority
under Payment of Wages Act/Labour Court claiming therein arrears of
overtime allowance and night halt allowance for period from 1993 to 2002.
They further pleaded that Rs. 1,15,144, Rs. 1,07,833, and Rs. 83,437/-
respectively have not been paid.
4. CIDC filed reply to applications moved under Section 15(2) of the Act of
1936 and denied averments made therein. It was pleaded that liability to
pay arrears of allowances relates to the period prior to 31.12.2002 and as
per the notification dated 27.12.2002 liability to pay dues of employees
prior to said date is of MPSRTC. It was also pleaded that the claim of the
workmen is barred by limitation and constructive res judicata.
5. The learned Labour Court framed issues, parties led evidence, and
thereafter, award was passed, whereby, the claim of the petitioners were
rejected on the ground of limitation. The workmen preferred separate
appeals before the Industrial Court against said awards and all the appeals
have been allowed vide order dated 15.05.2018. CIDC has preferred these
writ petitions against order dated 15.05.2018.
6. Mr. Anoop Majumdar, Advocate appearing for CIDC would argue that the
claim of the workmen was barred by limitation according to the provisions
of Section 15(2) of Act, 1936. It is also argued by Mr. Majumdar that the
workmen failed to demonstrate that they were entitled for overtime and
night halt allowances. He would submit that the learned Industrial Court
has fastened liability with CIDC, but CIDC is not liable to settle the dues of
employees prior to year 2002 as per notification issued by the Central
Government dated 27.12.2002, wherein the liability of the MPSRTC has
been categorically defined. He has placed reliance on the judgment passed
by the Hon'ble Division Bench in the matter of State of Chhattisgarh and
Anr. vs. G.K. Gupta and Anr., passed in WA No. 419 of 2011.
7. Mr. Chandresh Shrivastava, Advocate appearing for workmen would submit
that learned Industrial Court has specifically considered all the aspects and
passed a well reasoned order. It is contended that the wages for over time
and night halt allowance of the workmen remained unpaid, which gives
recurring cause of action. He would further submit that the liability with
regard to the payment not having been paid is admitted by the petitioner,
which is duly established from the exhibited documents. He would submit
that the learned Labour Court considered the merits of the case and initially
dismissed the applications. He would submit that the Industrial Court in
appeal allowed the claims of the workmen. It is argued that the workmen
worked under CIDC and they got retired from services, therefore, the
learned Industrial Court rightly directed CIDC to satisfy the liability. With
regard to issue of limitation, he would submit that Payment of Wages Act is a
benevolent and beneficial statute & in absence of categorical and unequivocal
mandate by the legislature it would not be appropriate to reject a claim of an
employee on the ground that he did not approach the Labour Court within the
time frame. He would further submit that the provisions of Act, 1936 itself
provides for condonation of delay, if any, and it is not the mandate of law to
give strict adherence to the time limit. It is contended that the Industrial Court
had specifically dealt with the issue where the workmen were bonafidely
pursuing their remedies. He has placed reliance on the judgment passed in
WPL No. 5110 of 2011 parties being M. Mohan Rao vs. Managing
Director and others. It is further contended by Mr. Shrivastava that the
learned Industrial Court considered genuine claims of the workmen and
directed CIDC to make payment. He would submit that after creation of
CIDC liability has been shifted with CIDC according to the provisions of
Madhya Pradesh Reorganization Act, 2000 and notification issued by the
Central Government dated 27.12.2002. He would submit that these
petitions deserve to be dismissed.
8. Mr. Varun Sharma, Advocate appearing for MPSRTC would oppose the
submission advanced by Mr. Anoop Majumdar. Mr. Sharma would argue
that a clarificatory notification in respect of the assets and liabilities of the
employees of the MPSRTC, who have come within the purview of the
CIDC, subsequent to the creation of new State was issued on 16.02.2016,
which states that all the assets, liabilities, rights and employees received by
the Chhattisgarh State due to division of Madhya Pradesh State Road
Transport Corporation shall be deemed to be subordinate to CIDC with
effect from 13.12.2002 and all employees received from the said
disintegrated Corporation shall be deemed to be absorbed in CIDC and
CIDC shall be the employer. He would submit that the clarificatory
notification would make it clear that any liability received by the State of
Chhttisgarh shall be of its employer i.e. CIDC, and therefore, the learned
Industrial Court rightly directed CIDC to satisfy it. He has placed reliance on
the judgment passed in WPL No. 3229 of 2007 parties being CIDC and
Anr. vs. Smt. Nirupa Meshram and Ors. wherein it is held that after
13.02.2002 employees allocated to State of Chhattisgarh would be liability
of CIDC.
9. He would contend that though services of workmen were allocated to State
of Chhattisgarh and they got retired from State of Chhattisgarh, but as
liability, assets were already bifurcated in the year 2002, therefore, liability
would be of CIDC to make payment of arrears of salary or any other claim
of the workmen working with CIDC. He would submit that these petitions
deserve to be dismissed.
10. I have heard learned counsel for the parties and perused the documents
placed on record.
11. Admittedly, the petitioners were employees of MPSRTC. After bifurcation
of State of Madhya Pradesh and creation of State of Chhattisgarh, their
services were allocated to the State of Chhattisgarh. Their services were
taken over by CIDC. Till 31st December, 2002, applications were not moved
by workmen before the learned Labour Court claiming therein overtime
allowance or night halt allowance. After creation of CIDC, some of the
employees/workmen opted for voluntary retirement.
12. Section 15(2) of Payment of Wage Act, 1936 reads as under :-
"15 (2) 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):
Provided that every such application shall be
presented within [twelve months] from the date on
which the deduction from the wages was made or
from the date on which the payment of the wages
was due to be made, as the case may be:
Provided further that any application may be
admitted after the said period of [twelve months]
when the applicant satisfies the authority that he had
sufficient cause for not making the application within
such period."
13. In these batch of cases, the workmen moved applications in the year 2014
before the learned Labour Court under the provisions of Section 15(2) of
Act of 1936, wherein, they claimed arrears of overtime and night halt
allowances for period from 1993 - 2002. The learned Labour Court rejected
the applications on the ground of limitation as those applications were
moved after expiry of limitation prescribed in Section 15(2) of the Act of
1936.
14. The learned Industrial Court dealt with this issue and held that the
employer failed to make payment of allowance to the workmen which gives
recurring cause of action, and therefore, the applications moved by
workmen before the learned Labour Court were within prescribed period of
limitation.
15. The findings recorded by the learned Industrial Court with regard to period
of limitation appears to be reasonable as the workmen were not paid
arrears of overtime and night halt allowance, which provided them recurring
cause of action. In the matter of M.R. Gupta v. Union of India, reported in
(1995) 5 SCC 628, the Hon'ble Supreme Court held that continuing wrongs
like persistent non-payment of dues create fresh cause of action each
month. Relevant para 5 and 6 are reproduced herein-below :-
"5. Having heard both sides, we are satisfied that the
Tribunal has missed the real point and overlooked
the crux of the matter. The appellant's grievance that
his pay fixation was not in accordance with the rules,
was the assertion of a continuing wrong against him
which gave rise to a recurring cause of action each
time he was paid a salary which was not computed in
accordance with the rules. So long as the appellant is
in service, a fresh cause of action arises every month
when he is paid his monthly salary on the basis of a
wrong computation made contrary to rules. It is no
doubt true that if the appellant's claim is found correct
on merits, he would be entitled to be paid according
to the properly fixed pay scale in the future and the
question of limitation would arise for recovery of the
arrears for the past period. In other words, the
appellant's claim, if any, for recovery of arrears
calculated on the basis of difference in the pay which
has become time barred would not be recoverable,
but he would be entitled to proper fixation of his pay
in accordance with rules and to cessation of a
continuing wrong if on merits his claim is justified.
Similarly, any other consequential relief claimed by
him, such as, promotion etc. would also be subject to
the defence of laches etc. to disentitle him to those
reliefs. The pay fixation can be made only on the
basis of the situation existing on 1.8.1978 without
taking into account any other consequential relief
which may be barred by his laches and the bar of
limitation. It is to this limited extent of proper pay
fixation the application cannot be treated as time
barred since it is based on a recurring cause of
action.
6. The Tribunal misdirected itself when it treated the
appellant's claim as 'one time action' meaning
thereby that it was not a continuing wrong based on
a recurring cause of action. The claim to be paid the
correct salary computed on the basis of proper pay
fixation, is a right which subsists during the entire
tenure of service and can be exercised at the time of
each payment of the salary when the employee is
entitled to salary computed correctly in accordance
with the rules. This right of a Government servant to
be paid the correct salary throughout his tenure
according to computation made in accordance with
rules, is akin to the right of redemption which is an
incident of a subsisting mortgage and subsists so
long as the mortgage itself subsists, unless the
equity of redemption is extinguished. It is settled that
the right of redemption is of this kind. (See Thota
China Subba Rao and Others vs. Mattapalli Raju
and Others, AIR 1950 Federal Court 1).
16. The workmen placed on record Ex. P/1 to Ex. P/7 issued by the CIDC,
Depot Manager, whereby, the employees of CIDC were held entitled to
receive overtime and night halt allowances. The claim of the workmen was
based on these documents, therefore, the contention made by Mr.
Majumdar that the workmen failed to substantiate their right to claim
allowances appears to be misconceived and is hereby rejected.
17. Now coming to the issue of liability of CIDC. In the matter of State of
Chhattisgarh and another vs. G.K. Gupta and another passed in WA
No. 419 of 2011, the Hon'ble Division Bench while dealing with the almost
similar issue with regard to notification dated 27.12.2002 issued by the
Central Government held that the liability of CIDC to make payment of
Employees Deposit Fund Scheme falls in clause 4 of the notification dated
27.12.2002 as it relates to payment of said amount up to date of
dissolution, whereas, other liabilities, such as loan and advances are
concerned would fall under clause 2 of the notification. The Hon'ble
Division Bench further held that a distinction is made between the liabilities
relating to payment of salary and the liabilities other than the salary. The
Hon'ble Division Bench modified the order passed in writ petition and held
that State of Chhattisgarh and CIDC would not be liable to incur and pay
the interest liability as demanded by the workmen pursuant to the EDF
Scheme and instead, MPSRTC was directed to make payment. Relevant
para 22 and 24 are reproduced herein-below :-
"22. As stated supra, the liability in question
falls in clause 4 because it relates to payment
of. salary up to the date of dissolution,
Whereas so far as other liabilities, such as loan
and advances are concerned, it falls in clause
2 of the order/Notification. It is thus clear that a
distinction is made between the liabilities
relating to payment of salary and the liabilities
other than the salary' Since this case relates to
liability pertaining to salary and hence it would
be governed by clause 4 and not fall in clause
2. Moreover, as rightly pointed out by the
learned counsel for the appellants from the
scheme that the entire money after deduction
by all division head offices used to be sent to
Bhopal head office in M.P. as provided in EDF
Scheme and therefore the amount always
remained with the MPSRTC at Bhopal in their
head office and not at divisional head. It is for
all these reasons, both factually and legally,
the submission has no force and is accordingly
rejected.
24. As a result of the aforesaid discussion, all
the appeals succeed and are allowed in part.
The impugned common order dated 4th July,
2011 is accordingly modified to the extent by
declaring that the appellants i.e 'State of
Chattisgarh' and 'CIDC' are not liable to incur
and pay the interest liability as demanded by
the writ petitioner pursuant to the EDF Scheme
and instead, it is declared and directed that the
'MPSRTC' (respondent No.2) is and would
continue to be liable to incur and pay the
interest liability accrued on the deposit made
by the writ petitioner pursuant to the EDF
Scheme to the writ petitioner, including all
kinds of liabilities arising out of the EDF
Scheme.
18. Relevant part of notification dated 27.12.2002 issued by the Central
Government is reproduced herein-below :-
"2) The sharing of current assets (excluding
buses and stores) and liabilities including loans,
advances, etc. shall be made by arriving at the
formula midway between the formulae
suggested by Government of Madhya Pradesh
and Chhattisgarh, i.e. between 18:82 suggested
by Chhattisgarh and 26.49 : 73.51 suggested
by Madhya Pradesh.
4) Salary of staff including Voluntary Retirement
Scheme till the date of dissolution shall be paid
by the existing undivided Corporation."
19. Mr. Varun Sharma has placed reliance in the matter of Smt. Nirupa
Meshram (supra) wherein the liability was fastened with the CIDC as
liability had emerged after creation of State of Chhattisgarh. Para 9 is
reproduced herein-below :-
"9. By implication of the clarificatory notification
it has to be presumed that, all the employees
who were on the rolls of State of Madhya
Pradesh prior to the creation of State of
Chhattisgarh and have subsequently by virtue of
the litigation or in respect of the nature of
dispute came within the purview of the petitioner
corporation or within the territory of the State of
Chhattisgarh would be deemed to be the
employees of the petitioner corporation. From
this it should also be presumed that such
employees to have retired from the employment
of Chhattisgarh Infrastructure Development
Corporation."
20. In the present case, the workmen claimed allowances for period from 1995
to 2002, therefore, it cannot be held that the liability emerged after creation
of State of Chhatttisgarh, and thus, the facts of the cited case are different
from the facts of the present case.
21. Taking into consideration the above-discussed facts and law laid down by
the Hon'ble Division Bench, it can safely be held that liability cannot be
fastened with CIDC to make payment of overtime and night halt allowances
as assessed by the learned Industrial Court in its judgment dated
15.05.2018.
22. The Hon'ble Division Bench in the matter of G.K. Gupta (supra) has
categorically held that the liability will fall within clause 4 of the notification
dated 27.12.2002 and further directed the MPSRTC to make payment of
dues to the workmen. Accordingly, these petitions are allowed. MPSRTC
(now MPRTC) is directed to make payment of arrears of overtime and night
halt allowances to the workmen within period of 90 days from the date of
receipt of copy of this order.
23. These writ petitions are accordingly disposed of.
Sd/-
(Rakesh Mohan Pandey)
JUDGE
$iddhant
