HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No.1
Civil Misc. Writ Petition No. 47335 Of 2011
The Model Intermediate College, Kalyanpur,
Kanpur......................................................................................Petitioner
Versus
The Prescribed Authority, under the Minimum
Wages Act, 1948 cum Additional Labour
Commissioner,U.P.,Kanpur Region, Kanpur & others........Respondents
With
Civil Misc. Writ Petition No. 47352 Of 2011
The Model School for Infants, 10/156, Khalasi Line
Kanpur......................................................................................Petitioner
Versus
The Prescribed Authority, under the Minimum
Wages Act, 1948 cum Additional Labour
Commissioner,U.P.,Kanpur Region, Kanpur & others........Respondents
And
Civil Misc. Writ Petition No. 47353 Of 2011
The Model Intermediate College, Kalyanpur,
Kanpur......................................................................................Petitioner
Versus
The Prescribed Authority, under the Minimum
Wages Act, 1948 cum Additional Labour
Commissioner,U.P.,Kanpur Region, Kanpur & others........Respondents
---------
Hon. Rakesh Tiwari, J.
Heard Sri Vijay Ratan Agrawal, senior counsel for the petitioner and standing counsel appearing on behalf of respondent no. 1,2 and 3 and perused the record.
Civil Misc. Writ Petition No. 47335 Of 2011 and Civil Misc. Writ Petition No. 47353 Of 2011, have been filed by Model Intermediate College, Kalyanpur, Kanpur through its Manager Deepak John, challenging the orders dated 13.7.2011 passed by the Prescribed Authority under the Minimum Wages Act in M.W. Case No. 206 of 2009 and M. W. Case No. 160 of 2009 respectively.
Civil Misc. Writ Petition No. 47352 Of 2011, has been filed by its sister society "the Model School for Infants, Kanpur", also against the impugned order dated 13.7.2011 passed by the Authority in M.W. Case No. 205 of 2009.
In all the three writ petitions, the Prescribed Authority appointed under the Minimum Wages Act, 1948, has found that the employees concerned were being paid less than the minimum rates of wages and therefore, issued direction in M.W. Case no. 206 of 2009 to the employers to pay difference of minimum rates of wages with one time compensation, thus :
^^vkns'k vr% mijksDr ds ifjizs{; esa izfroknh Jh tku ,ykbl] esllZ n ekMy b.VjehfM;V dkyst] flagiqj] fcBwj jksM dkuiqj dks funsZf'kr fd;k tkrk gS fd okn ls lacaf/kr 17 deZpkfj;ksa dks fuEu fooj.kkuqlkj U;wure osru vf/kfu;e] 1948 ds vUrxZr osru varj dh /kujkf'k rFkk {kfriwfrZ dh /kujkf'k dk Hkqxrku fd;s tkus gsrq bl U;k;ky; esa vkns'k dh frfFk ls ,d ekg ds vanj tek djuk lqfuf'pr djsa%& dz-la-
Jfed dk uke vof/k varj /kujkf'k {kfriwfrZ /kujkf'k 1-
Jh vt; dqekj Twu] 2009 ls tqykbZ] 2009 rd 2]744-00 2]744-00 2-
Jherh fueZyk feJk EkkpZ] 2009 ls tqykbZ] 2009 rd 7]651-00 7]651-00 3-
Jh lhrkjke EkkpZ] 2009 ls tqykbZ] 2009 rd 9]820-00 9]820-00 4-
Jherh nhik EkkpZ] 2009 ls tqykbZ] 2009 rd 10]901-00 10]901-00 5-
Jherh ekyrh EkkpZ] 2009 ls tqykbZ] 2009 rd 7]651-00 7]651-00 6-
Jherh xqM~Mh EkkpZ] 2009 ls tqykbZ] 2009 rd 12]401-00 12401-00 7-
Jherh eerk EkkpZ] 2009 ls tqykbZ] 2009 rd 11]651-00 11]651-00 8-
Jh lquhy f=osnh EkbZ] 2009 ls tqykbZ] 2009 rd 4]116-00 4]116-00 9-
Jh /kesZUnz EkkpZ] 2009 ls tqykbZ] 2009 rd 6]070-00 6]070-00 10-
Jh jfo EkkpZ] 2009 ls tqykbZ] 2009 rd 10]651-00 10]651-00 11-
Jh vkse izdk'k EkkpZ] 2009 ls tqykbZ] 2009 rd 7]320-00 7]320-00 12-
Jh fjUdw EkkpZ] 2009 ls tqykbZ] 2009 rd 10]651-00 10]651-00 13-
Jh jke fd'kksj xqIrk EkkpZ] 2009 ls tqykbZ] 2009 rd 5]570-00 5]570-00 14-
Jh lqHkk"k tqykbZ] 2009 2]172-00 2]172-00 15-
Jh eukst dqekj EkkpZ] 2009 ls tqykbZ] 2009 rd 1]070-00 1]070-00 16-
Jh vj'kn EkkpZ] 2009 ls tqykbZ] 2009 rd 9]151-00 9]151-00 17-
Jh lat;
EkkpZ] 2009 ls tqykbZ] 2009 rd 8]151-00 8]151-00 dqy ;ksx 1]27]741-00 1]27]741-00 izfroknh i{k }kjk osru varj dh /kujkf'k :0 1]27]741-00 o bldk ,d xquk {kfriwfrZ /kujkf'k :0 1]27]741-00 rFkk okn ifjO;; :0 500-00 bl izdkj dqy /kujkf'k :0 2]55]982-00 ¼:i;k nks yk[k ipiu gtkj ukS lkS c;klh ek=½ bl U;k;ky; esa Hkqxrku gsrq tek djsaA lsok;kstd }kjk fu/kkZfjr vof/k esa mDr /kujkf'k bl U;k;ky; esa tek u djus ij fu;ekuqlkj olwyh izek.k i= tkjh fd;k tk;sxk] ftldh leLr ftEenkjh izfroknh dh gksxhA ;g vkns'k vkt fnukad 13-7-11 esjs gLrk{kj eqgj ls tkjh fd;k x;kA izkf/kdkjh] U;wure osru vf/kfu;e] 1948] ,oe vij Jek;qDr] mRrj izns'k] dkuiqj {ks=] dkuiqjA** Counsel for the petitioner has raised a common argument in all the three writ petitions and submits that the grounds of challenge in these petitions are also the same, hence these three petitions which are connected together are being decided by this common judgment. As arguments have been advanced by the counsel for petitioner in writ petition no. 47335 of 2011, it is being decided as the leading case.
Petitioner- Model Intermediate College, Kalyanpur, Bithoor Road, Kanpur is a school managed by "The Model High School Society", 10/457, Civil Lines, Kanpur, registered under the Societies Registration Act, 1860. It is claimed that the petitioner is a Christian non aided institution imparting eduction since 1994 and is affiliated to the U.P. Board of High School and Intermediate Education. Another society known as " The Model School for infants Society, Kanpur " which is petitioner in connected writ petition No. 47352 of 2011, is said to be its sister society which runs "The Model School for Infant" independently and separately. The sister society has its office at 10/456, Khalasi Line, Kanpur, just adjacent to the office of the Model High School Society, having some common office bearers.
Petitioner Model Intermediate College was inspected by the Labour Enforcement Officer under the Minimum Wages Act, 1948 (hereinafter referred to as the Act ) on 4.8.2009 about 12.40 P.M. It is stated that the Labour Enforcement Officer inspected the attendance register of employees employed by the college and noted down their names. An inspection report was prepared by him at the spot wherein he noted that documents and registers required to be maintained by the petitioner, were not produced before him for inspection except the attendance register for the months of May 2009 to July 2009. In the inspection, he found that nine employees as per list A and 11 employees as per list B ( total 20 persons), were found employed by the petitioner college, who were not being paid the minimum rates of wages. Consequently, he moved an application under section 20(2) of the Minimum Wages Act, 1948 on behalf of the workmen, which was registered as M.W. Case no. 206 of 2009.
A notice dated 9.9.2009 in the aforesaid case was received by the petitioner college from the Prescribed Authority appointed under the Minimum Wages Act, 1948 cum Additional Labour Commissioner, U.P., Kanpur Region, Sarvodaya Nagar, Kanpur- respondent no. 1 issued under section 20 of the Act, enclosing therewith a claim application dated 26.8.2009 under section 20(2) of the Act filed by the Labour Enforcement Officer, U.P., Kanpur -respondent no. 2 who had inspected the petitioner college.
In the claim application on behalf of the workmen, it was averred that petitioner college had paid less than prescribed minimum rates of wages to its employees for the period March 2009 to July 2009, thus a balance of Rs. 1,27,741/- being difference in rates of wages fixed by the State Government, was due from the employers for payment to the employees as mentioned in the claim application. He also prayed for ten times compensation/penalty amounting to Rs. 12,77,410/- to be realised from the employers and its payment to the workmen concerned.
The petitioner contested the claim application by filing its reply/objection stating that all its employees were being paid minimum rate of wages fixed by the State Govt.; that nine persons mentioned in the claim application filed by the workmen concerned, were in fact not in their employment. Since the moot question involved in the writ petition as to the jurisdiction of the Authority is based upon the averments made in the objection filed by the employer, the objection of the employers is extracted below for ready reference:
"1. That the contents of para 1 (Aa), 2 (Aa) and details of Parishist of the alleged claim application of the applicant are not admitted as mentioned. It is emphatically denied that the opposite party has paid less than the minimum wages to any of their employees. In fact, no employee is getting less than the minimum wages as fixed by the State Govt. from time to time. The persons concerned as mentioned on Sl. No. 1 and 8 are not the employees of the opposite party, but they are the employees of M/s. Anmol Security Services, 154-A-D Block, Panki, Kanpur. The opposite party has hired a Pvt. Security agency as named above, who submitted the bill at the end of the months for supplying of guards and the School had paid the bill accordingly. The responsibility for payment of wages of those persons concerned are of M's. Anmol Security Services. The persons concerned as mentioned on Sl. No. 2, 3, 4, 5, 6, 7 and 15 are part-timers and they are getting hourly wages not less the rate of minimum wages as fixed by the State Govt. from time to time. The opposite party has not paid hourly wages at the rate less than the minimum wages to the aforesaid part-timers for the disputed period from March, 2009 to July, 2009 as alleged. It is worth to mention that the aforesaid persons concerned have already submitted an affidavit of this respect that they are part-timers employees and they are getting wages at the rate of minimum wages, which are not less than the minimum wages and they have also mentioned in affidavit that they have no complaint about wages. One so called Sri Bandi Prasad is a notorious person, who is trying to misguide the employees and have sent several false complaint against the school to several departments. The said affidavit is of dt. 13.8.2009. The persons concerned as mentioned on Sl. No. 9 Sri Dharmendra and Sl. No. 13 Sri RamKishore Gupta are the employees of the Model School Infants, 10/458, Khalasi Line, Kanpur and they have no relationship of master and servant with the opposite party. The Labour Enforcement Officer Sri Mahenra Singh has filed M.W. Case No. 205/2009 in which, the name of Sri Ram Kishore is mentioned for alleged less payment in claim application on the basis of Inspection note dt. 19.8.2009 and the said case is still pending before the Hon'ble Authority. Sri Dharmendra and Sri Ram Kishore have also given an affidavit of this respect to Model School of Infants, 10/456, Khalasi Line, Kanpur that he is an employee of the said School and getting minimum wages as fixed by the State Government from time to time and I have no complaint against wages. The said affidavit is of dt. 13.8.2009. The applicant has wrongly mentioned the name of Sri Dharmendra and Sri Ram Kishore in claim application as such, they have no relationship of master and servant with the opposite party. The persons concerned as mentioned on Sl. No. 10, 11, 12, 14 and 16 were neither employed nor engaged in any capacity by the opposite party, hence they have no relationship of master and servant, hence there is no question arises for less payment or payment to them as alleged. The applicant himself put to strict proof the contents thereof.
2. That the contents of paras 3( Aa and Sa), 4 and 5 of the alleged claim application of the applicant are not admitted as mentioned. The opposite party has given a true position about the persons concerned in the above paragraphs as involved in the case. In view of the above, this Hon'ble Authority has no jurisdiction to issue any direction against the opposite party under section 20 (3) of the Minimum Wages Act, 1948 nor any compensation can be awarded to any of the persons concerned as such, the opposite party has never paid less than the minimum wages to the persons concerned as stated above.
3. That since, there is a dispute regarding relationship of master and servant among the alleged persons concerned as mentioned on Sl. No.10, 11, 12, 14 and 16 and the persons concerned as mentioned on Sl. No. 1 and 8 are also not the employees of the opposite party of the parishist and the opposite party and where such disputes are involved, the section 4-K and 2-A of the UPID Act, 1947 are attracted, hence this Hon'ble Authority has no jurisdiction to decide the complicated question of law.
4. That neither any deduction nor any less payment has been made to the persons concerned as mentioned on Sl. No.2, 3, 4, 5, 6, 7, 15 and 17 of the parishist by the opposite party for the disputed period as such, they are all part-timers and they have submitted an affidavit of this respect as stated above. The alleged claim application filed by the applicant are false, frivolous and vexatious, hence it is liable to be rejected.
5. That this Hon'ble Authority has no jurisdiction to examine the controversy on merit and adjudicate the dispute of the persons concerned as mentioned on Sl. no. 10, 11,12,14 and 16 of Prishist of claim application as such the aforesaid persons concerned had no relationship of master and servant during the alleged period and their claim can only be determined in adjudication process and not before this forum.
6. That there does not lie any claim of the persons concerned under section 20(2) of the Minimum Wages Act, 1948 in the absence of necessary ingredients for a claim under the said section inter alia as such, the persons concerned as mentioned on Sl. No. 10,11,12,14 and 16 does not come under the definition of employee as per section 2(1) of the Minimum Wages Act, 1948 and accordingly, the opposite party are also not covered under the definition of "employers" envisaged under section 2(e) of the Minimum Wages Act, 1948. The alleged claim application of the applicant is liable to be rejected.
7. That the opposite party had already submitted a proper reply on affidavit to the inspection note dated 4.8.2009 of the applicant and had also mentioned the facts but it could not be considered by this authority, which are regretted.
Assailing the order impugned, the first contention of the counsel for petitioner is that the Prescribed Authority ought to have rejected the claim application of the Labour Enforcement Officer, filed by him on behalf of the employees under section 20 of the Act at the very thresh hold being beyond the purview of the Minimum Wages Act, 1948. In this regard, he has relied upon paragraph no. 16 of the judgment rendered by the Apex Court in Manganese Ore (India) Ltd. Vs. Chandi Lal Saha and others ( 1991 LAB. I.C. 524), which reads thus:
"16. The third argument of Mr. Sanghi based on the interpretation of S. 20 of the Act is again devoid of any force. This precise argument was considered by this Court in Town Municipal Council, Athani Vs. Presiding Officer, Labour Court, Hubli (1970) 1 SCR 51: (AIR 1969) and decided in the following terms :
" The minimum Wages Act is concerned with the fixing of rates- rates of minimum wages, overtime rates, rate for payment of work of on a day of rent and is not intended for enforcement of payment of wages. Under Section 20(1) of the Minimum Wages Act, in which provision is made for seeking remedy in respect of claims arising out of payment of less than minimum rates, or in respect of remuneration for days of rest or for work on such days, or of wages at the overtime rates, the authority is to exercise jurisdiction for deciding claims which relates to rates of wages, rates for payment for work done on days of rest and overtime rates. The power under S. 20(3) of the Minimum Wages Act given to the Authority dealing with an application under S. 20(1) to direct payment of the actual amount found due, is only an incidental power for working out effectively the directions under S. 20(1) fixing various rates under the Act. That is, if there is no dispute as to rates between the employer and the employee and the only question is whether a particular payment at the agreed rate is due or not, then S. 20(1) of the Minimum Wages Act would not be attracted at all, and the appropriate remedy would only be either under S. 15(1) of the Payment of Wages Act, 1936 or under S. 33-C(2) of the Industrial Disputes Act."
Counsel for the petitioner submits that aforesaid view of the Apex Court has been followed by Bombay High Court in Mahaarashtra State Mining Corporation Ltd and another Vs. Regional Labour Commissioner (central) and another ( 2006-II -LLJ.- 357), Patna High Court in Binod Kumar Vs. Union of India and others ( 2000 -II-LLJ.-692 as well as Jharkhand High Court in Nirmal Singh Vs. State of Jharkhan and others ( 2003(97) FLR 368).
It is submitted that in the light of aforesaid decisions relied upon by the counsel for the petitioner, there was no dispute as to rate of wages in view of the affidavits given by the employees concerned, therefore, the only question before the Authority appointed under the Minimum Wages Act was as to whether less payment than at the prescribed rate was within the scope and ambit and jurisdiction of the Authority exercised by it under section 20 of the Minimum Wages Act or not and whether appropriate remedy in this regard was under section 15(1) of the Payment of Wages Act, 1946 for delay or deducted wages or under Industrial Disputes Act, 1947 for computation of correct wages .
The second contention of learned counsel for petitioner is that some of the employees shown to be of petitioner college were in fact employed in The Model School for Infants run by its sister society, hence were not persons employed by the petitioner college, to attract the provisions of the Minimum Wages Act, the petitioner not being their employer, as such the impugned order passed by the Prescribed Authority, is liable to be quashed on this ground too.
Per contra learned standing counsel submits that from the inspection report submitted by the Labour Enforcement Officer, it appears that services of employees of the petitioner college and of the Model School for Infants are inter transferable that some of the employees of the Model School for Infants at the relevant time were working in the Model Intermediate College and as such they have been shown as employees by the petitioner college as their employees in their record, therefore, the petitioner college cannot claim that they are not its employees or that they are not responsible for payment of wages of those employees.
He submits that this precise contention of the petitioner has been dealt with by the Prescribed Authority in detail in the impugned order wherein he has found that employees of the petitioner college and the school for infants are inter se transferred as appears from the documents produced by the petitioner himself and it is for this reason that names of these employees are found in the records of the petitioner college as well as in the records of sister school for different period. The defence put up by the petitioner that they are not its employees is against the record and has been taken on basis of manufactured documents prepared after the inspection to preclude them from attaining regular and permanent status. He has also recorded a finding of fact that the affidavits got filed by the employers, show that the employees have not given the affidavits on their own but have been pressurised and threatened by the employer to do so. As regards transfer or taking work from employees of the sister school, the Prescribed Authority has recorded its findings thus :
^^izfroknh us vius dFku esa dzekad 16 ij vafdr deZpkjh Jh vj'kn dks izfr"Bku dk deZpkjh u gksus dk dFku fd;k x;k gS tcfd izfroknh }kjk izLrqr nwljs izfr"Bku es0 ekMy Ldwy bUQSDVl [email protected]] [kyklh ykbu] dkuiqj dh mifLFkr iaftdk esa Jh vj'kn dk uke vafdr gSA izfroknh }kjk vius dFku esa dzekad 9 o 13 ij vafdr deZpkjh Jh /kesZUnz o Jh jke fd'kksj xqIrk dks nwljs izfr"Bku es0 ekMy Ldwy bUQSDVl [email protected]] [kyklh ykbu] dkuiqj dk deZpkjh crk;k x;k gS fdUrq izfroknh }kjk mDr deZpkfj;ksa ds tks 'kiFk i= izLrqr fd;k x;k gS] og nwljs izfr"Bku es0 ekMy Ldwy bUQSDVl [email protected]] [kyklh ykbu dkuiqj dks lEcksf/kr gSA blls Hkh Li"V gS fd es0 ekMy ykbu] dkuiqj Hkh izfroknh izfr"Bku dh ,d 'kk[kk gS vkSj izfroknh vius cpko ds fy;s deZpkfj;ksa dks ,d 'kk[kk ls nwljs 'kk[kk esa LFkkukUrj.k fd;k tkrk gSA vU; deZpkfj;ksa }kjk tks 'kiFk i= fn;k gS] mlh rjg ds 'kiFk i= ij mDr nksuksa deZpkfj;ksa ds gLrk{kj vafdr gS blls Hkh Li"V gS fd izfroknh }kjk deZpkfj;ksa ls tcjnLrh o ncko Mkydj 'kiFk i= ij gLrk{kj djk;s x;s gSaA** The question as to whether the employees concerned have submitted affidavits on their own or under threat and pressure, has been answered by the Authority on basis of material evidence before it. The findings of facts placed by the counsel for respondent recorded in this regard, reads thus :
^^izLrqr okn esa i{kksa }kjk nkf[ky mRrj] izR;qRrj] vfHkys[kksa o i{kksa }kjk izLrqr lk{;ksa dks ns[kk x;k rFkk muds rdZ lqus x;sA oknh }kjk vius dFku esa dgk x;k gS fd f'kdk;r ds vk/kkj ij mlds }kjk Vhe ds lkFk izfroknh izfr"Bku dk fnukad 04-08-2009 dks U;wure osru vf/kfu;e 1948 ds vUrxZr fujh{k.k fd;k x;k FkkA fujh{k.k ds le; 17 deZpkfj;ksa dks U;wure osru ls de osru dk Hkqxrku fd;k tkrk ik;k x;kA fujh{k.k ds le; mifLFkr deZpkfj;ksa ds crk;s x;s osru dks fujh{k.k fVIi.kh ds ifjf'k"v esa vafdr fd;k x;kA fujh{k.k fVIi.kh dk tokc izfroknh }kjk u fn;s tkus dh fLFkfr esa izLrqr funsZ'kokn nkf[ky fd;k x;kA izfroknh }kjk dFku fd;k x;k gS fd okn i= ds ifjf'k"V ds dzekad 1 o 8 ij vafdr deZpkjh Jh vt; o Jh lquhy f}osnh izfr"Bku ds deZpkjh ugha gSa cfYd os es0 vueksy flD;ksfjVh lfoZlst&154,. Mh Cykd] iudh] dkuiqj ds deZpkjh gSa] ,slh fLFkfr esa mDr nksuksa deZpkfj;ksa dks U;wure osru dk Hkqxrku u fd;s tkus dk iz'u ugha mBrk gS rFkk dzekad 2]3]4]5]6]7]15 o 17 ij vafdr deZpkjh fueZyk] lhrkjke] nhik] ekyrh] xqM~Mh] eerk] eukst o Jh lat; ikVZ Vkbej deZpkjh gS rFkk os ?k.Vs ds vuqlkj U;wure osru dh nj ls osru izkIr dj jgs gSaa dzekad 9 o 13 ij vafdr deZpkjh nwljs izfr"Bku es0 ekMy bUQSDVl [email protected]] [kyklh ykbu] dkuiqj ds deZpkjh gSa rFkk dzekad 10] 11] 12] 14 o 16 ij vafdr deZpkjh Jh jfo] vkse izdk'k] fjUdw] lqHkk"k o vj'kn muds izfr"Bku ds deZpkjh ugha gSa] ,slh fLFkfr mUgsa U;wure osru dk Hkqxrku u fd;s tkus dk iz'u ugha mBrk gSA izfroknh }kjk vius dFku ds leFkZu esa dfri; deZpkfj;ksa ds 'kiFk i= dh Nk;k izfr izLrqr dh x;h gS] ftlesa mfYyf[kr gS fd mUgsa U;wure osru ds vuqlkj osru izkIr gks jgk gS vkSj osru ds lEcU/k esa dksbZ f'kdk;r ugha gSA izfroknh }kjk ftu deZpkfj;ksa ds 'kiFk i= dh Nk;kizfr nkf[ky dh x;h gS] muesa ls fdlh Hkh deZpkjh dks U;k;ky; ds le{k mifLFkr dj vius dFku dh iqf"V esa c;ku ugha djk;k x;k gS vkSj tks 'kiFk i= dh Nk;k izfr;ka izLrqr dh x;h ds voyksdu ls Li"V gksrk gS fd 'kiFk i= ij ,d lh gh Hkk"kk dk iz;ksx fd;k x;k gS ftlls izrhr gksrk gS fd 'kiFk i= izfroknh }kjk rS;kj dj Jfedksa ls tcjnLrh ;k ncko Mkydj gLrk{kj djk;s x;s gSaA ;fn ,slk ugha Fkk rks deZpkfj;ksa dks U;k;ky; ds le{k mifLFkr dj c;ku djkuk pkfg,] tks fd izfroknh }kjk ugha djk;k x;kA U;wure osru vf/kfu;e 1948 ds vUrxZr nk;j ,d vU; okn la[;k [email protected] esa 02 deZpkfj;ksa ds lEcU/k esa izfroknh }kjk muds 'kiFk i= dh Nk;kizfr }kjk U;k;ky; esa c;ku fn;k x;k gS fd mUgsa U;wure osru ls de osru izkIr gks jgk gSA blls Hkh Li"V gS fd izfroknh }kjk Jfedksa ls tcjnLrh 'kiFki= ij gLrk{kj djkdj 'kiFk i= dh Nk;kizfr;ka nkf[ky dh x;h gSaA izfroknh }kjk izfr"Bku esa dk;Zjr deZpkfj;ksa dh mifLFkfr iaftdk o Hkqxrku iaftdk dh Nk;kizfr;ka izLrqr dh x;h fdUrq mifLFkfr iaftdk o Hkqxrku iaftdk vf/kfu;e ds vuqlkj fu/kkZfjr izk:i esa ugha gSA** On this basis, it is further submitted by the standing counsel for the respondent- State that with regard to the security employees alleged to be employed through security services, the Prescribed Authority has found that they are in fact employees of the petitioner college and not of Anmol Security Services, 154-A, D Block, Panki, Kanpur the security agency whose employees they are said to be as from the record filed by the petitioner it is apparent that their names have been entered in the attendance register of the college stating them to be the employees of Sai Security Services, Kanpur. The Prescribed Authority has therefore disbelieved the records/documents and version of the petitioner and in the circumstances concluded that the documents appear to have been prepared by the petitioner college for the purposes of the case, and are contradictory.
The standing counsel has then urged that the Prescribed Authority has also noted that the petitioner had not produced relevant documents before Labour Enforcement Officer at the time of inspection but had submitted manufactured documents later on, hence has found them to be unreliable being fictitious documents prepared for the purposes of the case. It is stated that the Authority under the Minimum Wages Act has also taken notice of the fact that petitioner has filed affidavits of certain workmen stating that there is no dispute with regard to minimum rate of wages for payment of less wages as they are being paid correct rate of wages, but neither any of the said employees who are said to have filed their affidavits either came forward before the Prescribed Authority or was produced for oral evidence and cross examination. Even the attendance register etc. on the averments made by him on the affidavit produced in the case, were not got proved and exhibited by the petitioner by adducing of oral evidence, hence they have rightly not been relied upon by the Prescribed Authority which has recorded a categorical finding of fact that no documents were filed by the petitioner in support of their case and they filed photo stat copies of payment of wages register and attendance registers. Deliberate non production of original of these documents at the time of inspection and submission of photo copies at the time of hearing which have not been proved in the proceedings, establishes the fact that they are fictitious documents prepared after the physical inspection of the college when the Inspector had found that seventeen employees were being paid less than the minimum rates of wages, as such the workmen concerned are entitled to the difference in rates of wages with compensation having been paid less than the minimum rates of wages. Finding of the Prescribed Authority in this regard is thus :
^^izfroknh }kjk vius dFku esa okn i= ds ifjf'k"B ds dzekad 10] 11] 12] 14 o 16 ij vafdr deZpkfj;ksa dks izfr"Bku dk deZpkjh u gksus ds dk dFku fd;k x;k gS] fdUrq izfroknh }kjk vius dFku ds leFkZu esa ,sls dksbZ vfHkys[kh; izek.k izLrqr ugha fd;s x;s] ftlls muds dFku dh iqf"V gksA izfroknh }kjk fujh{k.k ds le; osru Hkqxrku jftlVj o vU; vfHkys[k ugha fn[kk;k x;k gS fdUrq izfroknh }kjk lquokbZ ds le; osru jftLVj o mifLFkr jftLVj dh Nk;kizfr;ka nkf[ky dh x;h gSA izfroknh }kjk fujh{k.k ds le; vfHkys[k u fn[kkuk vkSj okn dk;Zokgh ds nkSjku vfHkys[k fn[kkuk bl ckr dks ifjyf{kr djrk gS fd izfroknh }kjk vfHkys[k ckn esa rS;kj dj okn esa lquokbZ ds le; nkf[ky dj fn;k gks ;fn ,slk ugha Fkk rks fujh{k.k ds le; osru Hkqxrku jftLVj o vU; vfHkys[k D;ksa ugha fn[kk;k x;kA mDr leLr rF;ksa ls Li"V gksrk gS fd izfroknh dk dFku vlR; ,oa Hkzked gSA mDr leLr rF;ksa ds foospuksijkUr eSa bl fu"d"kZ dk gwWa fd okn i= esa vafdr Jfedx.k osru vUrj dh /kujkf'k {kfriwfrZ lfgr ikus ds vf/kdkjh gSA** After hearing counsel for the parties and on perusal of the record, it appears that petitioner claims that there is no dispute with regard to payment of minimum rates of wages and the only question before the Prescribed Authority appointed under the Minimum Wages Act was that whether less payment than at the prescribed rate of minimum wage was due or not to attract section 20 of the Minimum Wages Act. According to the petitioner, the said provision would not be attracted at all in the facts and circumstances of the case as some of the employees have stated on affidavit that they are being paid minimum wages at the correct rate and some are not employed by the institution,hence the appropriate remedy available to the respondents was either under section 15 of the Payment of Wages Act, 1936 for delay or deduction in wages or under section 33(C) of the Industrial Disputes Act, 1947 for computation as per judgment of the Apex Court in Manganese Ore (India) Ltd. Case (supra) and other decisions referred by him.
The questions before the Court for determination in this petition appear to be as to whether employees were being paid less than minimum rates of wages fixed by the Government to attract the provisions of section 20 of the Minimum Wages Act. Whether the employers were able to prove their case that minimum rate of wages were being paid to the employees concerned, and whether the impugned order dated 13.7.2011 passed by respondent no. 1- Prescribed Authority appointed under the Minimum Wages Act cum Additional Labour Commissioner, U.P., Kanpur in M.W. Case no. 206 of 2009 is without jurisdiction and beyond the purview of the Minimum Wages Act. Whether the case falls for determination under section 15 of the Payment of Wages Act for delay or deduction in wages ? Or the dispute with regard to payment of minimum rate of wages, lay in the arena of section 33-C of the Industrial Dispute Act. It is in this light the judgment relied upon by the petitioner may be seen to find out the ratio of law decided therein and to see as to whether these laws are applicable to the instant case.
In view of the arguments advanced by the parties, the scope of The provisions of section 15 (3) of the Payment of Wages Act, with regard to deductions or delay in payment of wages as well as of section 33 ( C) of the Industrial Disputes Act 1947 ( which is equivalent to section 6-H of the U.P. Industrial Disputes Act, 1947), with regard to computation of amount may be seen alongwith the scope of section 20 of the Minimum Wages Act wherein claims of payment of less than minimum rate of wages can be directed by the Prescribed Authority appointed under the Minimum Wages Act.
Statement of objects and reasons of the Payment of Wages Act, 1936:
In 1926 the Government of India addressed Local Governments with a view to ascertain the position with regard to the delays which occurred in the payment of wages to persons employed in industry, and the practice of imposing fines upon them. The investigations revealed the existence of abuses in both directions and the material collected was placed before the Royal Commission on Labour which was appointed in 1926. The Commission collected further evidence on the subject............ The Government of India re examined the subject in the light of the Commission's report and in February 1933 a Bill embodying the conclusions then reached was introduced and circulated for the purpose of eliciting opinion. A motion for the reference of the Bill to a select committee was tabled during Delhi Session of 1933-34 but was not reached and the Bill lapsed. The present bill is based upon the same principles as the original but has been revised throughout in the light of criticisms received when the original bill was circulated.
From the scheme of the Act it appears that the purpose of the Act is to provide that employed person shall be paid wages in a particular form at regular intervals and without any unauthorised deductions. The deductions which can be made from the wages of an employee are given in section 7 of the Act.
Section 15 of the Act deals with the direction for payment of wages delayed or deducted alongwith compensation. The Authority therefore under section 15 of the Act has jurisdiction to decide the question only when a particular case is one of the deduction or delay in payment of the wages. The deduction is not limited to the case of deductions only referred to in section 7 to 13 of the Act and there may other deductions resulting from other causes.
In 1996 Alld. Law Journal - 1893 (1894) Brij Kishore Tewari Vs. J.B. Iron & Steel Industries, the Court in paragraph no. 4 of the judgment, held thus :
" 4. After hearing heard the learned counsel for the parties at length, the simple question as appears to me and calls for decision, is as to whether in the facts and circumstances of the case, non payment of minimum wages is a deduction within meaning of Payment of Wages Act,which can be recovered under section 15 of the said Act. It is the case of the petitioner and as has been held by both the authorities, it is apparent that despite demand the petitioner has not been paid minimum wages in spite of the letter of the State Government as contained in annexure 3 to the writ petition, clarifying the position. The petitioner had himself written to the State Government that minimum wages has not been fixed in respect of the clerical staff of the factory though the technical staff of the factory have been so provided. Therefore, entitlement of minimum wages was also in doubt. The clarification by the Government is not a Government Order by which the minimum wages of the clerical staff has been fixed. On the other hand the clarification appears to be vague. In as much as the State Government had pointed out that it was not considered necessary to fix the minimum wages for clerical staff because they are governed under section 2(4) of the Shops and Establishment Act. The same is the opinion of the State Government. Even assuming that the petitioner is entitled to minimum wages then it is to be proved that minimum wages has been fixed by the Government Order in respect of class of workers in the area concerned. Admittedly, the petitioner has been paid wages according to the terms of employment. There has been no allegation of deduction from the wages payable to him, according to the terms of his employment. On the other hand, the petitioner claims that he is entitled to minimum wages payable to the employees of Shops and Establishment and therefore, non payment thereof, amounts to deduction. Withholding of payment also amounts to deduction. But when payment is admittedly being paid according to the terms of employment, there can not be any question of withholding of payment of wages. According to the terms of employment. If it is claimed that the wages paid to him according to the terms of employment is less than minimum wages and that he is entitled to minimum wages which is also disputed by the employer, then it is a question of entitlement and not a question of deduction which can be adjudicated upon under section 15 of the Payment of Wages Act. The remedy in such a situation is provided under section 20 of the Minimum Wages Act where minimum wages has not been paid, can be recovered according to the procedure contemplated therein. In case the minimum wages is not paid then the remedy is under the Minimum Wages Act. When the remedy is provided for a particular right or relief operating in the field, in that event the same would prevail upon the other provision operating in a filed different. In the facts and circumstances of the case there is no doubt that the present case is a question of entitlement within meaning of section 20 of the Minimum Wages Act and not a case of deduction within meaning of Section 15 of Payment of Wages Act."
The ratio of law therefore is that when question of applicability of section 15 considered in the case of non payment of minimum wages, it is a question of entitlement and not a question of deduction which can be recovered under section 15. It is settled law that the claim arising out of deduction from the wages i.e. where rate of wages is not disputed by the parties, the case is covered by section 15 of the Payment of Wages Act and remedy of the employee lies under the said Act. A deduction of certain amount per month from the future pay of the employee as penalty or punishment for his delinquencies in the absence of fresh contract of service at the reduced rate of wages, would fall within section 15 of the Act. Similar is the position in respect of delay of wages.
Section 15 of the Payment of Wages Act, 1936 reads thus :
"15. Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims -
(1) The State Government may by notification in the Official Gazette appoint a presiding officer of any Labour Court or Industrial Tribunal constituted under the 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.
(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.
(3) When any application under sub-section (2) is entertained the authority shall hear the applicant and the employer or other person responsible for the payment of wages under section 3 or give them an opportunity of being heard and after such further inquiry (if any) as may be necessary may without prejudice to any other penalty to which such employer or other person is liable under this Act direct the 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 twenty-five rupees in the latter and even if the amount deducted or the delayed wages are paid before the disposal of the application direct the payment of such compensation as the authority may think fit not exceeding twenty-five rupees :
Provided that no direction for the payment of compensation shall be made in the case of delayed wages if the authority is satisfied that the delay was due to...."
Under section 33 -C, the Labour court or the Industrial Tribunal can order payment by the employer in cases :
(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of 4*[Chapter VA or Chapter VB], the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrears of land revenue:
Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer:
Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.
(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government; 1[within a period not exceeding three months:] 2*[Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.] (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the commissioner and other circumstances of the case.
(4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1).
(5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen.
Explanation.--In this section "Labour Court" includes any court constituted under any law relating to investigation and settlement of industrial disputes in force in any State."
Statement of objects and reasons of the Minimum Wages Act, 1948 provides thus:
" The justification for statutory fixation of minimum wages is obvious. Such provisions which exist in more advanced countries are even more necessary in India where workers' organizations are at poorly developed and the workers bargaining power is consequently poor.
The Bill provides for fixation, by the Provincial Govts. Of minimum wages for employments covered by the Schedule to the Bill. The items in the schedule are those where sweated labour is most prevalent or where there is a big chance of exploitation of labour. After a time, when some experience is gained, more categories of employments can be added and the Bill provides for additions to the schedule. A higher period is allowed for fixation of minimum wages for agricultural labour as administrative difficulties in this case will be more than in the other employments covered by the schedule. The Bill also provides for periodical revision of the wages fixed.
Provision has been made for appointment of Advisory Committees and Advisory Boards, the later for corordination of work of the Advisory Committees. The Committees and the Boards will have equal representation of employers and workmen. Except on initial fixation of minimum wages, consultation with the Advisory Committees will be obligatory on all occasions of revision.
In case where an employer pays less than the minimum wages fixed by Provincial Governments, a summary procedure has been provided for recovery of the balance with penalty and for subsequent prosecution of the offending party.
It is in this view that section 20 of the Act provides a machinery for determination of difference of pay where less than the minimum rates of wages are paid to the employees alongwith compensation.
It is apparent from the case laws as well as section 20(1)of the Act that it does not cover all the claims in respect of minimum wages and covers only those cases where there is dispute as to the rate at which minimum wages are to be paid. But where dispute is not about the rate but question of wage to which workmen is entitled, it would not be a matter falling under section 20(1) of the Minimum Wages Act and consequently, application under section 33-C(2) of the Industrial Disputes Act would be applicable. In short, claim under the Minimum Wages Act can only be the difference between wages actually paid and the wages payable under the Act.
The application for payment of minimum wages due is therefore maintainable under section 20(3) of the Act and not under section 15 of the Payment of Wages Act or under section 33-C(2) of the Industrial Disputes Act, 1947, on the facts and circumstances of this case.
In this regard, reference may be made to 1986 Labour & Industrial Cases 1736 (1740) A.P.,. Subbarao Vs. Authority Under Minimum Wages Act, Guntur Region and others, wherein it was held that the employees were paid prescribed minimum rates of wages by the employer but subsequently the employer collected back or retained a portion of minimum rate of wages paid to the employees, therefore the authority under section 20 of the Minimum Wages Act would have jurisdiction to entertain the claim of the employee to recover that portion of wages collected or retained by the employer. The Court further held that the jurisdiction to entertain a claim of the employees for recovery of the portion of the minimum rates of wages collected back by the employer from the employees, vested solely in the authority under section 20 of the Minimum Wages Act and not in the authority under section 15 of the Payment of Wages Act.
As regards the ambit and scope of application under section 20(1) of the Minimum Wages Act, 1948 pertaining to the claims of less than the minimum rates of wages under the Act, is concerned, the Authority appointed under the Act is empowered " to hear and decide " all claims arising out of payment of less than the minimum rates of wages in its specified area. Sub clause (2) of section 20 provides that any inspector or any person acting with the permission of the Authority appointed under sub section (1), may apply to such Authority for a direction to be made under sub section (3) which states that when any application under section (2) is entertained, the Authority shall hear the applicant and the employer or give them an opportunity of being heard and after such further inquiry, if any, as it may consider necessary, and without prejudice to any other penalty to which the employer may be liable, under this Act, direct payment of the amount less paid by the employer to its employee alongwith compensation upto 10 times of the minimum rates of wages less paid. For ready reference the provision is quoted below :
(i) in the case of a claim arising out of payment of less than the minimum rates of wages, the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid, together with the payment of such compensation as the Authority may think fit, not exceeding ten times the amount of such excess;
(ii) in any other case, the payment of the amount due to the employee together with the payment of such compensation as the Authority may think fit, not exceeding ten rupees and the Authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application.
Thus, it can be safely concluded that essential prerequisite for an application by the workmen or any inspector on their behalf, is not merely omission on the part of the employer to pay but also the existence of claim by the employee or the nature referred to in sub section (1) of section 20 of the Minimum Wages Act.
The facts of the case in Manganese Ore (India) Ltd. (supra), are that demand of minimum wage was made by the workmen though they did not dispute the rate of wages fixed by the Government which were admitted between the parties. The claim of the workman before the authority was that monetary value of grains supplied at concessional rate and attendance bonus not includible in minimum wages. The Government denied the demand on extraneous considerations; the claim on both counts was allowed by Labour Court in Maharashtra. However, the Labour Court in Madhya Pradesh allowed claim regarding attendance bonus only and rejected claim of value of grains. As later part of the judgment was not challenged, it became final. Appeals were filed in the Apex Court against orders of Labour Court, Maharastra and Labour Court, M.P. as regards claim for attendance bonus only. Both the claims were allowed by the Apex Court and it was directed that benefit of judgment should be given to the employees of the appellant in the State of M.P. The following points for consideration were advanced by the learned counsel for the appellant in that case :
"1. The notification fixing the minimum wage specifically mentions that the minimum rates of wages are all inclusive rates. According to Mr. Sanghi, the wages so fixed include the amount paid by the managements towards the attendance bonus as well as the monetary benefit of the grain concession.
2. The grain concession and the attendance bonus are the benefits which can be computed in money and as such are part of the minimum wage under the Act.
3. The procedure to recover wages fixed under the Act has been provided under the said Act. Since section 20 of the Act provides for elaborate machinery to get the grievances redressed under the Act, the labour court has no jurisdiction under section33-C(2) of the Industrial Disputes Act to entertain the application.
It appears from the judgment in Manganese Ore (India) Ltd. (supra) that the Apex Court was considering as to whether monetary value of grains supplied to employees at a concessional rate as an amenity, is liable to be included in the "Rates of wages prescribed by the notification" for different categories of workmen in view of definition of wages defined in section 2 (h) read with section 11 of the Minimum Wages Act. The Court in that case was also concerned with the question as to whether attendance bonus payable to workmen after attendance for specified period and remaining loyal to the management could be treated as part of minimum wages or as an incentive not being part of the minimum wages. The question before the Apex Court arise to the jurisdiction of the Authority appointed under the Minimum Wages Act as according to the employer the matter in dispute fell squarely under the ambit of the Labour Court/ Industrial Tribunal.
The Court in the present writ petition is not concerned with the first and second contention of the learned counsel in the above noted case as the learned counsel for the petitioner has only relied upon the third contention in support of this submission. In this context, the Apex Court after noting down arguments of Mr. Sanghi, held in paragraph no. 17 and 18 of the aforesaid judgment thus :
"17. In the present case there was no dispute regarding the rates of wages and it is admitted by the parties that the minimum rates of wages were fixed by the Government of India under the Act. The workmen demanded the minimum wages so fixed and the appellant denied the same to the workmen on extraneous considerations. Under the circumstances, the remedy under S. 20 of the Act was not available to the workmen and the Labour Court rightly exercised its jurisdiction under S. 33-C(2) of the Industrial Disputes Act, 1947.
18. We do not agree with the contentions raised by Mr. Sanghi and as such find no merit in these appeals. The amount of wages due to the respondents workmen and to all other workmen similarly situated shall be paid within three months from today with 12 % interest."
In the case of Maharashtra State Mining Corporation Ltd. ( supra), the petitioner in that case challenged orders of the respondent Authority under the Minimum Wages Act passed under section 20 of the Act. The High Court had allowed the petitions quashing the impugned orders observing that if there is no dispute as to the rates of wages between the employer and the employees, the provisions of section 20 of the Minimum Wages Act would not be attracted. After analysing the scheme of the Minimum Wages Act in paragraph no. 5 of this judgment, the Court considered the case of Manganese Ore (India) Ltd. (supra), in paragraph no. 6 of the said judgment thus :
"6. Findings of Hon'ble Apex Court in Manganese Ore (India) Ltd. Vs. Chandi Lal Saha, are also identical. Thus, from the said observations of the Hon'ble Supreme Court, it is more than clear that if there is no dispute as to the rates of wages between employer and employees, Section 20(1) is not attracted. The Hon'ble Apex Court has made it clear that the Act is primarily concerned with fixing of rates, rates of minimum wages overtime rates and is not really intended to be an Act for enforcement of payment of wages for which provision is made in other laws. In cases where there is no dispute as to rates of minimum wages, the remedy to recover such undisputed amount lies elsewhere and as has been pointed out by the Hon'ble Apex Court under section 15(1) of the Payment of Wages Act or under section 33-C of the Industrial Disputes Act. This judgment is also followed by the learned single Judge of Jharkhand High Court in the judgment reproduced above and it has been held that if there is a complaint of less payment of wages, the jurisdiction is vested with the authority under the Payment of Wages Act.
Therefore the Court concluded that as petitioners have never disputed their liability to pay the minimum wages fixed and there being no dispute in relation to rate of wages fixed under Notification dated 19.3.1991, the order passed by the Authority was beyond jurisdiction under section 20 of the Act.
The same ratio is followed by Patna High Court in the case of Binod Kumar (supra) after relying upon the observations of the Apex Court in Manganese Ore (India) Ltd. (supra) in paragraph 6 holding that as there was no dispute to the rates of wages, the order passed by the Authority was beyond jurisdiction. Paragraph no. 7 of the judgment in Binod Kumar's case (supra) is as under :
"7. In the instant case there was no dispute regarding the rates of wages because complaint petition itself indicates that minimum rates of wages were fixed by the Government under the Act. It appears that this aspect of the matter has not been considered by respondent no. 1 while passing the impugned order dated February 1, 1988 as contained in Annexure 5. Respondent no. 1, also noticed the gist of the complaint that about 21 workers were paid less than minimum wages and to this effect respondent no. 2 has recorded the statement of the workers. This in my view, cannot be jurisdiction of respondent no. 1 to pass the impugned order exercising his powers under the Minimum Wages Act, 1948. If there would have been any dispute regarding the rate of wages, the Authority could have considered the matter but in the present case that is not the allegation.
As regards the case of Nirmal Singh (supra) relied upon by the learned counsel for the petitioner is concerned, in that case the claim petition dated 27.4.2002 was filed by the Labour Enforcement Officer before the Sub Divisional Officer under section 20(1) of the Minimum Wages Act. It was alleged in the said petition that the petitioner made less payment of the wages to the labourers from 1.11.2000 to 4.4.2002 in as much as the male labourers were paid Rs. 40 per day and the female labourers were paid Rs. 35 per day which is less than the wages fixed under the Minimum Wages Act. It was therefore stated in the claim petition that a direction be issued for payment of difference of minimum wages amounting to Rs. 2,36,957 and also compensation to the extent of Rs. 23,69,578. The Sub Divisional Officer passed final order directing the petitioner to pay the aforesaid amount. The Court also considered the scope and applicability of the provisions of the Minimum Wages Act as discussed by the Apex Court in the case of Town Municipal Council Athani Vs. Presiding Officer, Labour Court, Hubli and others, wherein Their Lordships observed thus :
" We have mentioned these provisions of the Minimum Wages Act because the language used at all stages in that Act leads to the clear inference that that Act is primarily concerned with fixing of rates- rates of minimum wages, overtime rates, rate of payment for work on a day of rest- and is not really intended to be an Act for enforcement of payment of wages for which provisions is made in other laws, such as the Payment of Wages Act no. 4 of 1936, and the Industrial Disputes Act no. 14 of 1947. In section 20(1) of the Minimum Wages Act also, provision is made for seeking remedy in respect of claims arising out of payment of less than the minimum rates of wages or in respect of payment of remuneration for days of rest or for work done on such days under clause (b) or clause ( c ) of sub section (1) of section 13 or of wages at the overtime rate under section 14. This language used in section 20(1) shows that the Authority appointed under that provisions of law is to exercise jurisdiction for deciding claims which relate to rates of wages, rates for payment of work done on days of rest and overtime rates. If there be no dispute as to rates between the employer and the employee, section 20(1) would not attracted. The purpose of section 20(1) seems to be to ensure that the rates prescribed under the Minimum Wages Act are complied with by the employer in making payments and, if any attempt is made to make payments at lower rates, the workmen are given the right to invoke the aid of the Authority appointed under section 20(1). In cases where there is no dispute as to rates of wages and the only question is whether a particular payment at the agreed rate in respect of minimum wages, overtime or work on off-days is due to a workman or not, the appropriate remedy is provided in the Payment of Wages Act."
Thereafter relying upon the judgment in Manganese Ore (India ) Ltd. (supra) and the decision of the Jharkhand High Court in Sheema Kanaujia Vs. Regional Labour Commissioner, the Court held that the order impugned passed by the Labour Enforcement Officer was without jurisdiction as in Manganese Ore (India) Ltd. (supra) the workman demanded minimum wages so fixed by the Government and employer denied the same to the workman on extraneous considerations, remedy under section 20 of the Minimum Wages Act, is not available to the workman and the labour Court adjudicate the same under section 33-C(2) of the Industrial Disputes Act in such circumstances. Therefore, where claim is that employee was paid at a rate less than the rate fixed under Minimum Wages Act, the case is covered by section 20(2) and in such cases jurisdiction of the Authority under section 20(2) is not ousted by section 15 of the Payment of Wages Act.
As noted above, the Minimum Wages Act deals with two situations, (i) fixation of minimum wages for certain employment, and (ii) appointment of the Authority to hear and decide all disputed claims arising out of payment of less than the minimum rates of wages. If a person is paid less wages his remedy may be either under the Payment of Wages Act or if there is dispute of wages, for computation of the wages under section 33 ( C) as noted in the judgment referred to in the body of this judgment.
In the present case, it has been noted by the Prescribed Authority that petitioner had not produced attendance register etc. at the time of inspection and had filed photo copies of these documents prepared afterwards alongwith photo copies of the affidavits of some workmen who were also not produced before the Authority. Since relevant documents i,e, attendance registers etc. were not proved and the workmen also did not verify photo copy of their affidavits filed by the employer by their oral evidence of having received minimum wages, the Prescribed Authority appears to have rightly disbelieved the case of the petitioner that there is no dispute regarding rates of wages payable to the workmen or that workmen employed were not being paid less than the minimum rate of wages. Once the Authority has come to the conclusion on the basis of documents filed by the petitioner that they have been fabricated afterwards, originals of which were neither produced before the Labour Enforcement Officer at the time of inspection nor were proved in evidence, it cannot be said that the Authority has committed any illegality in arriving the aforesaid conclusion. Since the employer contended before the Prescribed Authority appointed under the Minimum Wages Act that they have been paying their employees wages according to the terms of their contract in accordance with the minimum rates fixed by the Government which was disputed by the Labour Enforcement Officer on ground of denial of relationship of employer and employee with some of the employed persons and payment of minimum wages on hourly bases to some of them treating them to be part timer, though they worked full time and were entitled for full minimum rates of wages fixed by the State Government. The Prescribed Authority, therefore, had the jurisdiction in this case to hear and decide all claims arising out of payment of less than the minimum rates of wages.
The ratio laid down in Manganese Ore (India) Ltd. (supra) in the facts and circumstances, is of no help to the petitioner as facts clearly support the respondent case. There is apparently a dispute with regard to rate of minimum wages as the employer claims that they have been paying minimum rate of wages to the employees employed by it and employees of the contractor are not their employees which factually is negated from the record. Even withholding of some amount of minimum wages of the post on which the employed person is working, would fall under the ambit of section 20 of the Minimum Wages Act as has been held in the case of Brij Kishore Tiwari (supra). The cases relied upon by the petitioner being clearly distinguishable on facts and law are not applicable to the facts and circumstances of the present case, therefore, for this reason too section 20 of the Minimum Wages Act would apply in the instant case.
For all the reasons stated above, there appears to be no illegality or infirmity in the order impugned order, hence the Court is not inclined to interfere in exercise of its extra ordinary powers under Art. 226 of the Constitution of India. All the three petitions are accordingly dismissed.
Dt/-19.8.2011 SNT/