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PETITIONER: BOMBAY GAS CO. LTD.

       Vs.

RESPONDENT: JAGANNATH PANDURANG & OTHERS

DATE OF JUDGMENT12/08/1975

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. DUA, I.D.

CITATION:  1972 AIR 2356            1972 SCR  (3) 929  1972 SCC  (2) 119  CITATOR INFO :  RF         1974 SC1495  (11)

ACT:      Industrial Disputes  Act 1947  Section 10-Award  of  an Industrial Tribunal,  if binds  workman coming to Work under the employer after the award.      Labour. Law-Principles  of res  judicata, if  apply  to industrial disputes.

HEADNOTE:      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

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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  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 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  v. Sales  Tax officer  [1965] 1  SCR  686 relied on      Bombay Gas  Co. v.  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

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of that Act. [298A-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: 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,  S.  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 s. 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.  The. High  Court held  that the claims of the respondents were  not barred  by the  award and remanded the

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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

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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.           115. 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

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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

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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 s. 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. v.  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

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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  v. 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 v. The State      of U.P  & Others  v The State of U.P & Others [1962 (1)      SCR 574 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 v.  Gopal Bhiva  (2) and  Ramlanshan Jageshwar v. 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.      In the  result the  appeal is  allowed. The judgment of the High  Court is  set  aside  with  the  result  that  the petitions of  all the  workers stand  dismissed. The special leave granted  in this  case was  subject to  the conditions that the  appellant would pay the costs of the appeal to the respondents in  any event. The appellant will therefore bear its own costs and  pay the costs of the respondents V.M.K.                                        Appeal allowed 300