Delhi High Court
Multipurpose Training Centre For ... vs Government Of Nct Of Delhi & Ors on 30 November, 2010
Author: Dipak Misra,Chief Justice
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 30th November, 2010
+ LPA 288/2010
MULTIPURPOSE TRAINING CENTRE
FOR THE DEAF ..... Appellant
Through Mr.S.N. Shukla, Adv.
versus
GOVERNMENT OF NCT OF DELHI & ORS ..... Respondents
Through Mr.Rajeev Kr. Rai, Adv. R-3
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
In this intra-court appeal, the challenge is to the order dated 24th
February, 2010 passed by the learned Single Judge in WP (C) No.
3785/2007.
2. The singular question that emanates for consideration in this appeal is
whether the appellant - All India Federation of Deaf can be allowed to pay
to the workers less than the minimum wages on the ground that it is not
included in the list of scheduled employment either in Part-1 or Part-2 of the
Schedule of the Minimum Wages Act, 1948 (for brevity „the Act‟).
3. We have heard Mr.S.N. Shukla, learned counsel for the appellant and
Mr.Rajeev Kr. Rai, learned counsel for the respondent No.3.
4. On a perusal of the order passed by the learned Single Judge, it is
evincible that the appellant-society is engaged in imparting education to the
deaf community and is also running a printing press. The said establishment
falls in Section 2(5) of the Delhi Shops and Establishments Act, 1954, which
defines the "commercial establishment". It reads as follows: -
"2. Definitions.
(1) to (4) xxx xxx xxx
(5) "commercial establishment" means any premises wherein
any trade, business or profession or any work in connection
with, or incidental or ancillary thereto is carried on and includes
a society registered under the Societies Registration Act, 1860
(21 of 1860) and charitable or other trust, whether registered or
not, which carries on any business, trade or profession or work
in connection with or incidental or ancillary thereto, journalistic
and printing establishments, contractors and auditors
establishments, quarries and mines not governed by the [Mines
Act, 1952 (53 of 1952)] educational or other institutions run for
private gain and premises in which business of banking,
insurance, stocks and shares, brokerage or produce exchange is
carried on, but does not include a shop or a factory registered
under the Factories Act, 1948 (63 of 1948) or theatres, cinemas,
restaurants, eating houses, residential hotels, clubs or other
places of public amusement or entertainment."
5. It is also noticeable that a notification dated 13 th August, 1965 has
been issued by the Government of NCT of Delhi under Section 27 of the Act
by which an amendment has been incorporated in the Schedule to the Act
whereby the shops and other establishments covered under the Delhi Shops
and Establishments Act, 1954 come within its sweep and ambit. Sections 2
and 27 of the said Act read as follows: -
"Section 2 - Interpretation.
(a) to (d) xxx xxx xxx
(e) "employer" means any person who employs, whether
directly or through another person, or whether on behalf of
himself or any other person, one or more employees in any
scheduled employment in respect of which minimum rates of
wages have been fixed under this Act, and includes, except in
sub-section (3) of section 26, -
(i) in a factory where there is carried on any scheduled
employment in respect of which minimum rates of wages
have been fixed under this Act, any person named under
[clause (f) of sub-section (1) of section 7 of the Factories
Act, 1948 (63 of 1948)], as manager of the factory;
(ii) in any scheduled employment under the control of any
Government in India in respect of which minimum rates
of wages have been fixed under this Act, the person or
authority appointed by such Government for the
supervision and control of employees or where no person
or authority is so appointed, the head of the department;
(iii) in any scheduled employment under any local authority
in respect of which minimum rates of wages have been
fixed under this Act, the persons appointed by such
authority for the supervision and control of employees or
where no person is so appointed, the chief executive
officer of the local authority;
(iv) in any other case where there is carried on any scheduled
employment in respect of which minimum rates of wages
have been fixed under this Act, any person responsible to
the owner for the supervision and control of the
employees or for the payment of wages;
(f) xxx xxx xxx
(g) "schedule employment" means an employment specified
in the Schedule, or any process or branch of work forming part
of such employment;
(h) xxx xxx xxx
(i) "employee" means any person who is employed for hire
or reward to do any work, skilled or unskilled, manual or
clerical, in a scheduled employment in respect of which
minimum rates of wages have been fixed; and includes an out-
worker to whom any articles or materials are given out by
another person to be made up, cleaned, washed, altered,
ornamented, finished, repaired, adapted or otherwise processed
for sale for the purposes of the trade or business of that other
person where the process is to be carried out either in the home
of the out-worker or in some other premises not being premises
under the control and management of that other person; and
also includes an employee declared to be an employee by the
appropriate government; but does not include any member of
the Armed Forces of the [Union].
27. Power of State Government to add to Schedule -
The appropriate government, after giving by notification in the
Official Gazette not less than three month‟s notice of its
intention so to do, may, by like notification, add to either Part
of the Schedule any employment in respect of which it is of
opinion that minimum rates of wages should be fixed under this
Act, and thereupon the Schedule shall, in its application to the
[State] be deemed to be amended accordingly.
Notification issued by the Delhi Government is as follows: -
"NOTIFICATIONS
Delhi, the 13th August, 1965
No. F.40(10/64-Lab.-In exercise of the powers conferred by
subsection (1) of section 51 of the Madras Chit Funds Act,
1961, as extended to the Union Territory of Delhi, the
Administrator of Delhi is pleased to appoint Shri M.K. Seth, as
Inspecting officer for the purpose of the said act and the Rules
made thereunder, with effect from the 9th July, 1965.
2. The Administrator is further pleased to direct that the
appointment of Shri J.L. Kotru as Inspecting Officer vide this
administration Notification of even number, dated the 9 th
October, 1964 shall be deemed to have been cancelled with
effect from the 3rd May, 1965.
No. F. 21(19)/64-Lab- In exercise of the powers conferred by
section 27 of the Minimum Wages Act, 1948 (XI of 1948), read
with the Government of India, Ministry of Labour Notification
No. L.P. 24(1) dated the 16th March, 1949, the Chief
Commissioner, Delhi, being of opinion that minimum rates of
wages should be fixed under the said Act in respect of
employment in all shops and other establishments to which the
Delhi Shops and Establishments Act, 1954, applies and after
giving three months' notice of his intention so to do, vide his
notification of even number, dated the 5th January, 1965, is
pleased to make the following amendment in the Schedule
appended to the said Act, namely:-
Amendment
In Part I of the said Schedule, after item 14 the following new
item shall be added, namely:-
"15. Employment in all shops and other establishments,
covered by the Delhi Shops and Establishments Act, 1954."
6. In view of the aforesaid, we are of the view that Section 25 of the
Delhi Shops and Establishment Act, 1954, which has been incorporated in
the notification, would cover the benefits that are accruable under the Act.
7. In this regard we may refer with profit to the decision in Bijay Cotton
Mills Ltd. v. State of Ajmer, AIR 1955 SC 33 wherein it has been held as
follows:
"It can scarcely be disputed that securing of living wages to
labourers which ensure not only bare physical subsistence but
also the maintenance of health and decency, is conducive to the
general interest of the public. This is one of the Directive
Principles of State Policy embodied in Art.43 of the
Constitution. The material provisions of the Minimum Wages
Act are not therefore illegal and ultra vires, as the restrictions
imposed by them, though they interfere to some extent with the
freedom of trade or business guaranteed under Art.19(1)(g) of
the Constitution, are reasonable and being imposed in the
interest of the general public are protected by the terms of
clause (6) of Art.19."
[Quoted from the placitum]
8. In Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578, it
has been held that most employers and some Provisional Governments
consider that the „minimum wage‟ can at present be only a bare subsistence
wage. But according to the concept of „minimum wage‟ adopted by the
Committee on Fair Wages, a minimum wage must provide not merely for
the bare sustenance of life but for the preservation of the efficiency of the
worker. For this purpose, the minimum wage must also provide for some
measure of education, medical requirements and amenities.
9. In Y.A. Mamarde & Ors. v. Authority under the Minimum Wages
Act, (1972) 2 SCC 168, while dealing with a decision arising from the High
Court of Bombay under the Act, the Apex Court has opined that fixing the
minimum wages for overtime work at double the rate of wages actually
received by the workmen should not be considered to be outside the purpose
and object of the Act and viewing it harmoniously with the general scheme
of industrial legislation in the country in the background of the Directive
Principles contained in our Constitution, the minimum rates of wages for
overtime work should as a matter of law be confined to double the minimum
wages fixed.
10. In view of the aforesaid, the employees employed by the appellant-
society are entitled to get the benefit and hence, we perceive no error in the
order passed by the learned Single Judge.
11. In the result, the appeal, being devoid of merit stands dismissed
without any order as to costs.
CHIEF JUSTICE
NOVEMBER 30, 2010 MANMOHAN, J
kapil
