Mohan Brothers vs M.K. Seth And Ors.
1987 Latest Caselaw 210 Del

JUDGMENT

Kirpal, J.

1. The challenge in this writ petition is to the order dated 31st March, 1986 whereby the authority constituted under the Minimum Wages Act had directed that respondents No. 2 and 3 should be paid minimum wages as Salesmen in the establishment of the petitioner.

2. Briefly stated, the facts are that the petitioner is dealing in cloth and is registered under the Delhi Shops and Establishments Act, According to the petitioner, respondent No. 2, Chhaggo Mal, was appointed as a Shop Assistant w.e.f. 1st March, 1971. Respondent No. 3, Umed Singh, was appointed as a Stock Boy w.e.f. 1st June, 19/9. Respondent Nos. 2 and 3 were paid their wages in accordance with the terms of their employment.

3. The Delhi Administration issued a Notification dated 23rd February 1982 fixing minimum rates of wages in the employment in all shops and other establishments covered by the said Act. This Notification fixed minimum rates of wages for un-skilled, semiskilled, skilled and other categories of employees.

4. Respondents No. 2 and 3 filed a claim before the authority constituted under the Minimum Wages Act, namely, respondent No. 1, contending that they were working as Counter Salesmen with the petitioner and they should be paid the minimum wages of Salesmen in terms of the said Notification dated 23rd February, 1982. The petitioner therein denied the claim. Evidence was lead by the parties. It may here be stated that three issues were framed and they were:

1. Whether the claim is time barred?

2. Whether the application is maintainable or not?

3. To what amount, if any, are the petitioners entitled?

5. By order dated 31st March, 1986, the aforesaid three issues were decided against the petitioner. The petitioner was directed to pay wages to respondents 2 and 3 by treating them as Salesmen.

6. In this writ petition, challenging the aforesaid order of respondent No. 1, Dr. Anand Prakash, learned counsel for the petitioner, has confined his attack to the decision of the authority on Issue Nos. 2 and 3. The contention of the learned counsel is that the impugned order is based on a misreading of the Notification dated 23rd February, 1982. According to the learned counsel the authority has assumed that there is no post with the designation of an Assistant or a Stock Boy under the Delhi Shops and Establishments Act and it is on this assumption that the impugned decision has been arrived at.

7. While dealing with issue No.2, respondent No. 1 has observed as follows:

"The management-respondent thus was trying to mislead the labour authorities and deprive the claimants of their legal right of minimum wages by de-grading them as Stock Boys which too is a creation of the management-respondent as there is no designation as Stock Boys under Delhi Shops and Establishments Act. There is no such category according to the Notification of Delhi Admn. dated 23.2.82 wherein the authorities of Delhi Admn. have notified the categories of skilled, semi-skilled and unskilled workman. The management could not by their own stretch of imagination have created such a post which never existed or exists under the prevailing law. The management according to their own admission states that the claimant's nature of job was to show the cloth to the customers, convince them and then settle the rates and then to prepare a slip of sold goods which is sent to the cash counter for preparing Cash Memo. All these above said jobs are of the same nature of that of a salesman and hence by merely changing their designation the management could not have deprived the workmen of their legal right. In view of the foregoing issue No.2 is also decided in favor of the claimants and against the management."

8. The reading of the aforesaid passage from the impugned order of respondent No. 1 clearly shows that what weighed with the authority was the assumption that there was no category of Stock Boy or Assistant under the Delhi Shops and Establishments Act. The authority has overlooked the terms of the Notification dated 23rd February, 1982, which has been placed on the record, wherein different categories of employees and their minimum wages are set up. Under the category of semi-skilled employees at serial No. 7 there is a category of 'Stock Boy' and at serial No. 10 there is a category of 'Assistant'. Respondent No. 1 was clearly mistaken in proceeding on the basis that the category of 'Stock Boy' or 'Assistant' was unknown to this Shops and Establishments Act.

9. It is contended by learned counsel for the respondent that in a shop where cloth is sold there is no employee who is kept as a Stock Boy or an Assistant. I am unable to agree with this contention. The Notification dated 23rd February, 1982 applies to all shops and establishments covered by the Act. There is nothing to prohibit an establishment from engaging persons as Stock Boys or Assistants even if the said shop or establishment is carrying on the business of selling cloth. The said Notification dated 23rd February, 1982, therefore, makes it clear that under the Shops and Establishments Act category of 'Stock Boy' and 'Assistant' is not unknown. This being so the very premise or basis of the order of respondent No.1 is incorrect

10. It is open to respondent No. 2 to satisfy respondent No. 1 that the work which is actually done by the said respondents is that of the Salesmen and that they should be paid the minimum wages of Salesmen. It is possible that in a shop like that belonging to the petitioner there may be a Salesman, a Stock Boy and an Assistant. In order to decide whether the said respondents were working as Salesmen or not, what respondent No. 1 has to do is first to ascertain what should be regarded as normal duties of Salesman, Stock Boys and Assistants. He should then find out as to what work is actually being performed or is required to be performed by respondents No. 2 and 3. It is only thereafter that respondent No. 1 can determine as to whether looking at the nature of the work done by the said respondents they can be regarded as Salesmen or not. Without undertaking this exercise, the authority under the Minimum Wages Act cannot jump to the conclusion that the said respondents were working as Salesmen. As I have already mentioned, in the present case, respondent No. 1 was greatly influenced by his determination that there was no designation of Stock Boys under the Delhi Shops and Establishments Act. This assumption of the said respondent was clearly erroneous. In view of the fact that the decision of the authority under the Minimum Wages Act has proceeded on this wrong assumption, I have no option but to issue a writ of certiorari quashing the impugned decision. I further direct the authority under the Minimum Wages Act to decide the application of the respondents No. 2 and 3 for payment of minimum wages de novo. In deciding the case afresh it will not be necessary for the authority to allow the parties to lead evidence afresh but the parties may be given liberty to examine any additional evidence if they so desire. Parties to bear their own costs.