M.M.Ismail, J. -
(1.) THE second respondent herein was an employee of the petitioner and he was superannuated with effect from 31st May, 1968. Between the petitioner and its workmen an agreement under Section 18 (1) of the Industrial Disputes Act and Rule 98 of the Industrial Disputes Rules was effected on 3rd August, 1965. The preamble to this agreement states that the workers of the petitioner and the management had entered into an agreement regarding their earlier disputes under a Memorandum of Settlement, dated 23rd April, 1962, which was in force till the end of 1965, but even during the currency of the agreement the workers through the Union had been making demands for increased dearness allowance, revision of grades for certain workmen, or ad hoc payments and though the said demand was contrary to the terms of the agreement and the workers were not legally justified or entitled to press any such claim, the management had been giving certain concessions now and then to maintain industrial peace and good relationship. The agreement further points out that the Union thereafter made a fresh demand for some ad hoc payment to the workers as they were in need of some immediate relief, that the Union desired that a sum of Rs. 10 per month be paid to all the permanent workers as advance commencing from 1st April, 1965 till the end of December, 1965, that the Union agreed to treat this as a purely temporary advance for the workers and not related to any claim, benefit, wages or allowance to which they were or might become entitled and that the said amount was to be recovered from April, 1966 in seven equal instalments out of the wages of workers payable during that period. The further recital in the said agreement is that the management considered the request and it was finally agreed between both parties to the settlement to pay a sum of Rs. 7 -50 per month to all the permanent workers in the Press purely as advance subject to the following conditions : (1) Each of the permanent employee of the petitioner would be paid a sum of Rs. 7 -50 per month with effect from 1st June, 1965 till the end of 31st December, 1965. (2) The above payment was paid only as an advance which was recoverable from the workers as such. It had no relation whatsoever to any benefit or allowance to which the workers were or might be entitled then or at any future date. (3) The aforesaid payment would be recovered from the wages of the workers from the month of February, 1966 (payable in March, 1966) in equal instalments for a period of seven months from the said date i.e., from the wages due till the end of August, 1966. If during the aforesaid period the service of any employee should cease either due to resignation, death, retirement, dismissal or otherwise, the management would be entitled to recover the amount already paid to him from the amount that might be payable to him by the management.
(2.) SUBSEQUENTLY , a dispute arose between the management and the workers as to the applicability of the recommendations of the Central Wage Board for non -journalist employees, the management contending that its establishment was not a newspaper establishment and therefore the recommendations of the Central Wage Board would not apply and the workers contending to the contrary. In view of this, a settlement, dated 7th March, 1966 was entered into between the parties under Section 12 (3) of the Industrial Disputes Act, 1947. After setting out the above controversy, the settlement recorded:
Without prejudice to these contentions it is hereby agreed that the management will continue to pay the workmen Rs. 7 -50 per month from January, 1966 onwards on the same terms as those contained in the settlement, dated 3rd August, 1965 between the parties until an authoritative decision is reached in regard to the applicability or otherwise of the Wage Board recommendations to this establishment.
One thing that can be immediately noticed is that while the settlement, dated 3rd August, 1965 provided for the payment of this monthly advance of Rs. 7 -50 only for the specified period from 1st June, 1965 till the end of 31st December, 1965, the second agreement did not provide for any specific period during which the advance of Rs. 7 -50 per month was payable. However, it stated that the payment would commence from 1st January, 1966, thereby making the payment of advance as a continuation of the payments made under the agreement, dated 3rd August, 1965. Yet another agreement was entered into on 10th May, 1968 under Section 12 (3) of the Industrial Disputes Act. This agreement refers to the workers going on a strike on and from 23rd April, 1968, and conciliation being taken up by the Special Deputy Commissioner of Labour and there being no settlement reached between the parties. However, it refers to the fact that as a result of further conciliatory talks held by the said Special Deputy Commissioner of Labour at the request of the parties, a settlement was reached in the following terms:
(i) The workers' contention is that the recommendations of the Central Wage Board for Non -Journalists Employees are applicable to this establishment. The management's contention is that the establishment is not a newspaper establishment and that Wage Board Recommendations do not apply to it. Without prejudice to the contention of either parties an ad hoc payment of Rs. 12 -50 per mensem in addition to Rs. 7 -50 already paid as per the settlements, dated 3rd August, 1965 and 7th March, 1966 will be paid to the permanent workmen but no deductions of the ad hoc payment will be made on settlements of employees accounts or from wages till the decision of the Industrial Tribunal is made known.
(ii) This payment will not form part of wages.
(iii) The payment will be made effective from 1st January, 1968; the dues for April, 1968 will be paid on 13th May, 1968, the balance of dues from January to March, 1968 before 21st May, 1968.
(iv) In regard to the issue in dispute referred to in Clause (i) as well as the question as to how the ad hoc payment now made should be dealt with, parties will await Government orders on the conciliation report.
(v) An advance of 8 days wages to daily rated and temporary workers of the Press will be paid and deducted in easy instalments against their wages.
There are a few other conditions but it is not necessary to refer to them.
When the second respondent herein was superannuated with effect from 31st May, 1968, the petitioner herein while settling his accounts deducted from the amount payable to him a sum of Rs. 232 -50. That sum represented the payment of monthly advances from 1st June, 1965 to 31st December, 1967. Once this deduction was made, the second respondent herein filed an application before the first respondent herein purporting to be under Section 15 (2) of the Payment of Wages Act, 1936. The case of the second respondent was that the said amount was not to be recovered from the amounts payable to him in view of the settlement, dated 10th May, 1968 according to which the ad hoc payments could not be deducted on settlements of employees accounts, or from wages, till the decision of the Industrial Tribunal was made known. In reply to this case of the second respondent, the petitioner contended before the first respondent 'that the application itself was not competent as the amount deducted was not wages. The second contention put forward by the petitioner before the first respondent was that the agreement, dated 10th May, 1968 providing for the non -recovery of the ad hoc payment till the decision of the Industrial Tribunal was made known was confined only to the ad hoc payment of Rs. 12 -50 payable under that agreement, but had nothing to do with the advance of Rs. 7 -50 payable under the two earlier agreements and therefore the petitioner was justified in deducting the said sum of Rs. 232 -50 from the amounts payable to the second respondent herein, since they represented the monthly advances of Rs. 7 -50 paid to the second respondent under the first two agreements and not the ad hoc payment of Rs. 12 -50 paid under the third agreement, dated 10th May, 1968. The first respondent overruled both these contentions of the petitioner and by an order, dated 16th June, 1969, directed the petitioner to pay a sum of Rs. 232 -50 together with a sum of Rs. 25 as compensation to the second respondent herein. It is to quash this order of the first respondent the present writ petition under Article 226 of the Constitution of India has been filed.
(3.) IN the affidavit filed in support of the writ petition, though a point has been taken that the application preferred by the second respondent to the first respondent was not competent, the grounds on which this objection was taken are not expressly set forth. However, during the course of the hearing, with reference to the facts of the case, a question arose, on the language of Section 15 (2) of the Payment of Wages Act, 1936 and on the basis of the very claim put forward by the second respondent to the first respondent, whether that application was competent. Since the question went to the root of the jurisdiction of the first respondent, I allowed the learned Counsel for the petitioner to raise this question, and at the request of the learned Counsel for the second respondent, I gave him time to meet this point. It is only thereafter the point was presented before me and the jurisdiction of the first respondent to pass the order in question was challenged.;