B.R. Tuli, J. - (1.) THE petitioner -company is running an industrial establishment at Sonepat which is a factory registered under the Factories Act, 1948. The petitioner -company manufactures grinding wheel and has never employed 50 or more than 50 workmen in its factory. Respondent 3 to 7 were in the employment of the petitioner company drawing less than Rs. 400.00 per month as their wages. They were laid off for different periods during the years 1965, 1967 and 1968 and were not provided any work for the periods of layoff. The petitioner -company refused to make any payment of wages to those respondents for the periods of lay -off and so they filed an application under Section 15 of the Payment of Wages Act, 1936 (hereinafter called the Act, to the Authority under the Act for a direction to the petitioner -company to pay the wages to them for the periods of layoff. This application was heard and decided by Shri M.K. Jain, Labour -cum -Conciliation Officer who had been appointed Commissioner under the Workmen's Compensation Act, 1923. The said Authority passed its order on August 5, 1968, directing the petitioner -company to pay the wages for the periods of lay -off to the workmen -respondents and two other workmen, who had made the application, but the order in their favour has not been contested in this petition because they have not been made respondents. Against this order, the petitioner company filed an appeal which was dismissed by the learned Additional District Judge, Rohtak, on March 2, 1970. The present petition has been directed against the orders dated August 5, 1968 and March 2, 1970, passed by the original authority and the appellate authority under the Act. The petition has been contested by respondents 3 to 7 although they have not filed any return.
(2.) THE first submission made by the learned counsel for the petitioner is that Shri M.K. Jain, who heard the application of the workmen -respondents under Section 15 of the Act, was not competent to be appointed an authority to hear the application under the Act because he was only a Law Graduate and did not possess the experience of a Civil Judge or a stipendiary Magistrate which is according to the Learned Counsel, an essential qualification. In support of this submission, reliance is placed on Section 15(i) of the Act, reading as under 15. (1) The State Government may, by notification in the Official Gazette, appoint a presiding officer of any labour Court or Industrial Tribunal, constituted under Industrial Disputes Act, 1947 (14 of 1947), or under any corresponding law relating to the investigation and settlement of Industrial Disputes in force in the State or any Commissioner for Workmen's Compensation or other officer, with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages, of persons employed or paid in that area, including all matters incidental to such claims. Provided that where the State Government considers it necessary so to do, it may appoint more than one authority for any specified area and may, by general or special order, provide for the distribution or allocation of work to be performed by them under this Act. The learned counsel emphasises that the words'' with experience as a Judge of a Civil Court or as a Stipendiary Magistrate" qualify not only the words "other officer" but also "any Commissioner for Workmen's Compensation". It is admitted that Shri M.K. Jain was a Commissioner for Workmen's Compensation but it is emphasised that he did not possess the experience as a fudge of a Civil Court or as a stipendiary Magistrate although he is a Law Graduate. This matter was considered at length by Sandhawalia, J, in Brahm Sarup v. State of Haryana and others C.W. 1855 of 1968 decided on May 26, 1970. That case was also argued by Shri J.S. Chawla, the learned Advocate for the petitioner in this case, and all the submissions made by him were considered. He has not been able to advance any fresh argument to persuade me to take a view different from the one taken by Sandhawalia, J. After carefully going through that judgment, I find myself in complete agreement with the view expressed by the learned Judge and for the reasons stated by him I find no merit in this submission of the learned counsel which to repelled. On merits, the learned counsel for the petitioner has vehemently argued that the employer has a right to lay -off his workmen if he cannot provide any work for them to the reasons mentioned in the definition of "lay -off" in Section 2(kkk) of the Industrial Disputes Act, 1947 and the workmen cannot claim wages for that period He goes on to submit that Shri M.K. Jain also found that the layoff of the workmen was proper but he held that the petitioner had no right to lay -off the workman or to refuse to pay any wages to them for those periods. This view has been endorsed by the learned Additional District Judge who dismissed the appeal. The definition of ''layoff", as given in Section 2(kkk) of the Industrial Disputes Act, is as under: 2(kk). 'Lay -off' (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw material or the accumulation of stocks or the breakdown of machinery or for any other reason to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched; Explanation. -Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid -off for that day within the meaning of this clause: Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose daring the second half of the shift for the day and is given employment then, he shall be deemed to have been laid -off only for one -half of that day: Provided further that if he is not given any employment even after so presenting himself, he shall not be deemed to have been laid -off for the second half of the shift for the day for and shall be entitled to full basic wages and dearness allowance for that part of the day. It is admitted by the learned counsel for the petitioner that there is no provision in the Industrial Disputes Act or any other Act relating to social legislation regarding employers and employees giving the right to an employer to lay -off his workmen without paying any wages. Merely because the word "lay -off" has been defined in the Industrial Disputes Act, it cannot be said that any right has been given to an employer to lay -off a workman unless the right to do so is found somewhere else. Section 25C of the Industrial Disputes Act prescribes the compensation payable to a laid -off workman provided he belongs to an establishment in which more than 50 persons are employed and who has completed not less than one year of continuous service under the employer. That section again will apply only if the right to lay off exists and the question is only with regard to the compensation payable to the laid -off workman. That section does not apply to an establishment wherein less than 50 workmen are employed or to a laid off workman of an establishment where more than 50 workmen are employed in the period of his service is of less than one year in that establishment. I again emphasis that Section 25 -C only relates to the amount of compensation payable to a laid -off workman and does not provide any right to an employer to lay off his workmen. This matter was considered by their Lordships of the Supreme Court in Workmen of Dewan Tea Estate and others. v. Their Management : A.I.R. 1964 S.C. 1458 and the relevant observations are contained in paragraphs 5 and 6 of the report, which are reproduced below: The first question which arises for our decision is whether the Tribunal was justified in holding that Section 25 -C recognises the common law right of the respondent to declare a lay -off for reasons other than those specified in the relevant clause of the Standing Order. While dealing with this argument, we must proceed on the assumption that the financial difficulties experienced by the respondent at the relevant time which have been compendiously described by it as constituting trading reasons for the lay -off do not fall within the purview of the said relevant clause. The respondent's argument is that though the trading reasons may not justify the declaration of the lay -off under the said clause, as prudent employers who must be given liberty to run their industry in the best manner they choose, that have a common law right to declare a lay -off if they feel that the alternative to the lay -off would be closure and acting bona fide they want to avoid closure and adopt the lesser evil of declaring the lay -off. Does Section 5C of the Act justify this argument? Section 25C(1) which recognises the right of the workmen who are laid -off, for compensation, provides that whenever a workman therein specified has been laid -off he shall be paid by the employer for whole of the period of the lay -off, except for such weekly holidays us may intervene, compensation at the rate prescribed by the section. The proviso to this section lays down that the compensation payable to a workman during any period of twelve months shall not be for more than 45 days, and this proviso seems to indicate that the legislature thought that normally the period of lay -off within 12 months may not exceed 45 days. Section 25 -C (2) however, contemplates the possibility that the period of lay -off may exceed 45 days, and it lays down that if during any period of 12 months, a workman is laid -off for more than 45 days, whether continuously or intermittently, he shall be paid compensation in the manner indicated by it. Thus, the position is that workmen who are laid -off are entitled to compensation and the method in which the said compensation has to he calculated has been prescribed by the two clauses of Section 25C. It is, however, sufficient that when Section 25C deals with workmen who are laid -off and proceeds to prescribe the manner in which compensation should be paid to them, it is inevitably referring to the lay -off as defined by Section 2 (kkk) of the Act. The said section defines a lay off (with its grammatical variations and cognate expressions as meaning: the failure, refusal, or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the break down of machinery or for any other reasons to give employment to a workman whose name is borne on the master rolls of his industrial establishment and who has not been retrenched. It would be legitimate to hold that lay -off which primarily gives rise to a claim for compensation under Section 25C must be a lay -off as defined by Section 2(kkk). If the relevant clauses in the Standing Orders of industrial employers make provisions for lay -off and also prescribe the manner in which compensation should be paid to them for such lay -off, perhaps the matter may be covered by the said relevant clauses; but if the relevant clause merely provides for circumstances under which lay -off may be declared by the employer and a question arises as to how compensation has to be paid to the workmen thus laid -off, Section 25 -C can be invoked by workman provided, of course, the lay -off permitted by the Standing Order also satisfies the requirements of Section 2(kkk). Whether or not Section 25C can be invoked by Workmen who are laid -off for reasons authorised by the relevant clause of the Standing Order applicable to them, when such reasons do not fall under Section 2 (kkk), is a matter with which we are not directly concerned in the present appeal. The question which we are concerned with at this stage is whether it can be said that Section 25C recognises a common law right of the industrial employer to lay -off his workmen. This question must, in our opinion, be answered in the negative. When the laying -off of the workmen is referred to in Section 24 -C, it is the laying -off as defined by Section 2(kkk), and so, work -men who can claim the benefit of Section 25C must be workmen who are laid -off for reasons contemplated by Section 2(kkk); that is all that Section 25C means. If any case is not covered by the Standing Orders, it will necessarily be governed by the provisions of the Act, and layoff would be permissible only where one or the other of the factors mentioned by Section 2(kkk) is present, and for such lay -off compensation would be awarded under Section 25C. Therefore, we do not think that the Tribunal was right in holding that Section 25C recognises the inherent right of the employer to declare lay -off for reasons which he may regard as sufficient or satisfactory in that behalf. No such common law right can be spelt out from the provisions of Section 25C. These observations clearly show that Section 25C of the Industrial Disputes Act does not recognise any common law right of an industrial employer to lay -off his workmen or any inherent right of the employer to declare lay -off for reasons which he may regard as sufficient or satisfactory in that behalf. In that case, the right to lay off was prescribed in the Standing Orders, certified under the Industrial Employment (Standing Orders) Act 20 of 1946, which were binding both on the management and the workmen. Their Lordships considered that the lay -off of the workmen in that case was not justified either under the relevant Standing Order or the definition of the word "lay -off' in the Industrial Disputes Act. It is thus clear that an industrial employer has no right to lay -off his workmen if such right is not provided for by any statutory provision or Standing Orders or the contract of service between an employer and an employee that is, the right to lay off has to be specifically provided for, so that the employer and the employee know that the employer has the right to lay off. The right to lay -off cannot be claimed as an inherent right of an employer if he cannot provide work for his workmen for a particular day or days during the continuance of his employment. This right has to be specifically provided for either by a statute or by the contract of service. The matter was considered by G.C. Mathur, J, in Kanhaiya Lal Gupta v. Ajeet Kumar Dey and others., 1967 II L.L.T 761, and I find myself in respectful agreement with the following observations made by the learned Judge: In my opinion, these principles are equally applicable to layoff In the absence of any term in the contract of service or in the statute or in the statutory rules or standing Orders an employer has no right to lay -off a workmen without paying him wages. In the present case admittedly there are no standing orders and no terms of contract between the parties have been shown which provide for layoff of workmen without payment of wages.
(3.) THE learned counsel for the petitioner has however, relied on the judgment of Bishan Narain, J, in J.R. Rolling Mills, v. The Punjab State and others. C.W. 540 of 1956, (C.W. 540 of 1956. decided on August 23, 1958), wherein the learned Judge held that Chapter VA of the Industrial Disputes Act does not apply to an industrial establishment wherein less than 50 workmen were employed and that the industrial Tribunal had no jurisdiction to travel beyond the provisions of that Chapter. The learned Judge, therefore, concluded that under the Act no compensation could have been awarded to the workmen against the management because Section 25 -C did not apply to the establishment in that case. The matter was not debated in that petition as to whether an industrial employer has the right to lay -off his workmen even if no provision is made for that purpose in the Standing Orders or any other statutory provision or rules or in the contract of service between the employer and the employee and, therefore, it cannot be taken as a judgment covering the present point under determination.;