Kerala High Court
Abdul Khader vs The Assistant Labour Officer on 20 June, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
WP(C) NO. 15178 OF 2013
PETITIONER:
ABDUL KHADER
AGED 66 YEARS
PROPRIETOR, AL-IQBAL HOSPITAL,
CHENTRAPPINNI, THRISSUR (DISTRICT), PIN 680 687
BY ADVS.
M.M.FATHIMA JALEENA
K.A.HAZAN(K/457/2010)
V.J.JAMES(K/000221/1975)
RAMESH KUMAR K.(K/000618/2022)
M.M.ABBAS ALI(K/000425/1998)
RESPONDENTS:
1 THE ASSISTANT LABOUR OFFICER
KODUNGALLUR - 680124
2 THE AUTHORITY UNDER THE MINIMUM WAGES ACT
(DEPUTY LABOUR COMMISSIONER), THRISSUR-680001
3 THE DEPUTY TAHSILDAR REVENUE RECOVERY
TALUK OFFICE, KODUNGALLUR - 680001
4 THE VILLAGE OFFICER
VILLAGE OFFICE, CHENTHRAPPINNI,
THRISSUR DISTRICT, PIN - 680 687.
BY ADVS.
R BY GP SRI.JUSTIN JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2024, ALONG WITH WP(C).859/2014 AND 26288/2013, THE COURT
ON 20.06.2024 DELIVERED THE FOLLOWING:
WP(C) 15178 & 26288 of 2013 :2:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
WP(C) NO. 26288 OF 2013
PETITIONER:
THRISSUR DISTRICT PRIVATE HOSPITAL AND PHARMACY
WORKERS UNION
MANNADIAR LANE, THRISSUR, PIN 680001,
REPRESENTED BY ITS SECRETARY, SOPHY THILAKAN,
W/O.THILAKAN. AGED 53 YEARS
BY ADV SMT.P.R.REENA
ADV.RENJITH THAMPAN
RESPONDENTS:
1 THE ENFORCEMENT OFFICER UNDER MINIMUM WAGES ACT
O/O.DISTRICT LABOUR OFFICER, THRISSUR, PIN 680003.
2 JOINT LABOUR COMMISSIONER
(AUTHORITY UNDER THE MINIMUM WAGES ACT 1948),
O/O. THE DEPUTY LABOUR COMMISSIONER,
THRISSUR, PIN 680003.
3 E.M.ABDUL KHADER
PROPRIETOR, AL-IQBAL HOSPITAL,
CHENDRAPPINNI, THRISSUR DISTRICT, PIN 680687.
BY ADVS.
SRI.CHRISTOPHER ABRAHAM
SMT.M.M.FATHIMA JALEENA
SRI.K.A.HAZAN
SRI.V.J.JAMES
SRI.SIRAJ KAROLY
R2 BY GP SRI.JUSTIN JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2024, ALONG WITH WP(C).859/2014 AND 15178/2013, THE
COURT ON 20.06.2024 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
WP(C) NO. 859 OF 2014
PETITIONER:
ABDUL KHADER.E.M
AGED 64 YEARS
S/O.MUHAMMED,
PROPRIETOR, AL-IQBAL HOSPITAL (NOW CLOSED)
CHENTRAPPINNI, RESIDING AT EDAVAZHIPURATH,
CHAMAKKALA P.O., CHENTRAPPINNI, PIN: 680 687.
BY ADVS.
M.M.FATHIMA JALEENA
K.A.HAZAN(K/457/2010)
V.J.JAMES(K/000221/1975)
RAMESH KUMAR K.(K/000618/2022)
M.M.ABBAS ALI(K/000425/1998)
RESPONDENTS:
1 THE EMPLOYEES COMPENSATION COMMISSIONER
THRISSUR AND THE AUTHORITY UNDER THE MINIMUM WAGES
ACT, 1948, 680 001.
2 THE ASSISTANT LABOUR OFFICER
KODUNGALLUR, PIN: 680 684.
3 THE THAHSILDAR KODUNGALLUR 680 684.
4 THE THRISSUR DISTRICT PRIVATE HOSPITAL AND GENERAL
WORKERS UNION
MANNADIAR LANE, THRISSUR, PIN 680 001,
REPRESENTED BY ITS SECRETARY, SOPHY TILAKAN.
BY ADVS.
GOVERNMENT PLEADER SRI.JUSTIN JACOB
SMT.P.R.REENA
SRI.RENJITH THAMPAN SR.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.04.2024, ALONG WITH WP(C).15178/2013, 26288/2013, THE
COURT ON THE ON 20.06.2024 DELIVERED THE FOLLOWING:
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JUDGMENT
Since common issues arise for consideration in these writ
petitions, they are disposed of by this common judgment. For the
sake of convenience, unless otherwise expressly indicated, the
status of the parties and the exhibits referred to hereinbelow shall
be as obtaining in W.P.(C) 15178 of 2013.
2. W.P.(C) 15178 of 2013: The petitioner is the proprietor of
Al-Iqbal Hospital, Chentrappinni, which was established in 1996.
Petitioner is a businessman in gulf countries and the Administrator
looks after the affairs of the hospital in his absence. The hospital has
six consulting doctors and a Resident Medical Officer, along with 20
permanent employees across various departments. Additionally,
there were 45 trainee nursing students who were undergoing
mandatory one-year training as part of their studies and most of
them leaving the hospital after completing their training. The
petitioner ensured that all the employees were enrolled in the
Employees Provident Fund.
3. While so, the petitioner received Ext. P1 revenue recovery
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notice issued by the Deputy Tahsildar (Revenue Recovery), the 3 rd
respondent for the recovery of an amount of Rs. 20,17,680/-
together with interest @ 12% per annum from 28.01.2008 due
towards arrears of wages ordered in MWA 10/2006 by the 2 nd
respondent, the Deputy Labour Commissioner, Thrissur, the
Authority under the Minimum Wages Act, 1948 (hereinafter called
the "MW Act' for short). The petitioner states that he was not aware
of any proceedings before the 2nd respondent nor he received any
notice from the 2nd respondent. On enquiry, the petitioner came to
know that the 2nd respondent passed an ex parte order on
28.01.2008 on a claim filed by the Assistant Labour Officer, the 1 st
respondent, the Inspector appointed under Section 19 of the MW Act
for payment of difference in minimum wages to 87 employees for
the period from September, 2005 to February, 2006. The petitioner
was directed to pay a sum of Rs. 10,08,840/- being the difference in
minimum wages together with compensation of Rs. 10,08,840/- to
the employees concerned.
4. On coming to know about the ex parte order in MWA 10/06,
the petitioner filed Ext. P2 application to set aside the order with
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Ext. P3 application to condone delay of 1696 days. The petitioner
also approached this Court by filing W.P. (C) No. 414 of 2013 and
this Court, by Ext. P5 judgment, directed the second respondent to
consider Exts. P2 and P3 applications in accordance with law within a
period of two months from the date of receipt of a copy of the
judgment. This Court also ordered that the revenue recovery
proceedings initiated pursuant to Ext. P1 shall be put on hold if a
sum of Rs.5,00,000/- is remitted with the Assistant Labour Officer.
5. The 2nd respondent, by Ext. P6 order, dismissed Exts. P2 and
P3 applications on the grounds that the petitioner failed to establish
that there was sufficient cause for not filing the petition to set aside
ex parte order within the time stipulated under the provisions of the
Kerala Minimum Wages Rules, 1958 (Kerala MW Rules), and that the
Rules do not empower the authority to condone the delay in filing a
petition, which is filed 1743 days beyond the time stipulated in the
Rules.
6. Ext. P6 order is impugned in this writ petition. It is
contended that the Authority under the MW Act did not provide an
opportunity of being heard to the petitioner before passing an order
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in the application filed under Section 20(2) of the MW Act. The
petitioner states that he did not receive any notice from the 2 nd
respondent in person. He intermittently goes to gulf countries in
connection with his business and in his absence, the Administrator is
looking after the affairs of the hospital. It is further contended that
the 2nd respondent went wrong in taking the trainee nursing
students as employees of the petitioner. It is also contended that if
sufficient cause is shown, the 2nd respondent can set aside the ex
parte order even after the expiry of the period of 30 days under Rule
33(4) of the Kerala MW Rules, under Section 5 of the Indian
Limitation Act, 1963. Accordingly, the petitioner has sought for
quashing Ext. P6 order and to allow Exts. P2 and P3 applications.
7. A counter affidavit is filed by the 2 nd respondent wherein the
copy of the ex parte order is produced as Ext. R2(a). In Ext. R2(a),
it is stated that on receipt of the application from the 1 st respondent
under Section 20(2) of the MW Act, notices were sent to opposite
party for appearance and filing written statement. The opposite
party did not enter appearance or filed any written statement
though he received the notice in time. Hence, he was declared ex
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parte and the case was posted for evidence. Assistant Labour Officer
was examined as AWI and Exts. A1 to A5 documents were marked.
After considering the materials on record, Ext. R2(a) order dated
28.01.2008 was passed directing the petitioner to pay a sum of Rs.
10,08,840/- as arrears of wages for the period from September,
2005 to February, 2006 to the 87 employees named therein, along
with a one time compensation of Rs. 10,08,840/-, failing which
revenue recovery proceedings will be initiated with 12% interest
from the date of order. The petitioner was also directed to pay the
minimum rate of wages to the employees in future. It is stated in
the counter affidavit that Ext. R2(a) was passed on 28.01.2008 and
Exts. P2 and P3 applications were filed after 4 years and 9 months
and that too, after revenue recovery notice was served on the
petitioner. The petitioner has not shown sufficient reason for setting
aside the ex parte order. It is stated that in view of the express
provision contained in Rule 33(4) of the Kerala MW Rules, no
application for setting aside an ex parte order shall be entertained
after one month of the date of the order. It is also stated that the
petitioner is persistently violating labour laws and four cases have
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been registered against him during the year 2008 (ST. Case
Nos.2299/08, 2302/08, 2303/08 and 2304/08) in which he has been
convicted. Four cases were filed against the petitioner under various
laws during the year 2012 and that he was convicted in one case
filed under MW Act. Accordingly, it is contended that there is no
bona fides on the part of the petitioner and the reasons projected by
him for not presenting his version before the competent authority at
the appropriate time are of no acceptable value.
8. W.P (C) No. 26288 of 2013 is filed by Thrissur District
Private Hospital and Pharmacy Workers Union, which claims that all
the employees of Al-Iqbal Hospital, Chentrappinni are its members,
for enforcement of Ext. R2(a) order by resorting to revenue recovery
proceedings. A counter affidavit is filed by the 3 rd respondent
(petitioner in W.P.(C) 15178 of 2013) contending, inter alia, that no
revenue recovery proceedings can be initiated to recover any
amount awarded under Section 20(3) of the MW Act.
9. W.P (C) No. 859 of 2014 is filed by the petitioner in W.P.(C)
15178 of 2013 challenging Ext. P11 revenue recovery proceedings
initiated against him pursuant to Ext. R2(a). For the first time, a
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challenge has been made to Ext. R2(a) order dated 28.01.2008,
producing the said order as Ext. P5 in this writ petition. Several
contentions have been raised to impugn Ext. R2(a), which were not
raised in W.P.(C) 15178 of 2013. It is contended that the Deputy
Labour Commissioner, who passed Ext. R2(a) order, had previously
conducted an inspection at the petitioner's hospital and issued show
cause notice (produced as Ext. P3 in this writ petition) for violation
of the provisions of the MW Act, while serving as the District Labour
Officer (ENF). It is based on this inspection and notice that the
Assistant Labour Officer filed the application under Section 20(2) of
the MW Act. It is contended that Ext. R2(a) order passed by the 2 nd
respondent who initiated the proceedings is violative of the doctrine
of "no man can be a Judge in his own cause". It is also contended
that no revenue recovery proceedings can be initiated to recover any
amount awarded under Section 20 (3) of the MW Act, since Section
20(5) of the MW Act provides that an order under Section 20(3) can
be executed only by a Magistrate or the Magistrate to whom the
Authority makes a reference. It is further contended that the MW Act
does not provide for awarding interest @ 12% on the amount
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awarded under Section 20(3). Ext. R2(a) order is also challenged on
factual merits.
10. A counter affidavit has been filed by the 2 nd respondent, the
Assistant Labour Officer and the 4 th respondent employees union
resisting the averments in the writ petition.
11. Heard the learned counsel on both sides.
12. The case of the petitioner is that he did not receive any
notice from the 2nd respondent, the Authority under the MW Act in
the claim petition filed by the 1st respondent Inspector under Section
20(2) in person, as he intermittently goes to gulf countries in
connection with his business and in his absence, the Administrator is
looking after the affairs of the hospital and Ext. R2(a) was passed
without affording an opportunity of hearing to the petitioner. Section
20(3)(i) & (ii) of the MW Act reads as under:-
"20(3). When any application under sub-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,
may, without prejudice to any other penalty to which the
employer may be liable under this Act, direct-
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(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."
Section 20(3) of the MW Act provides that, when any application
under sub-section (2) is entertained and before direction is issued
under Section 20(3)(i) & (ii), the Authority shall hear the applicant
and the employer, or give them an opportunity of being heard. The
petitioner was served with notice by the 2nd respondent. Chapter V
of the Kerala MW Rules deals with claims under the MW Act and Rule
33 of the Kerala MW Rules reads as under:
"Rule 33. Appearance of parties.
(1) If an application under sub-section (2) of Section 20 or
Section 21 is entertained, the Authority shall serve upon the
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employer by registered post a notice in Form X to appear
before him on a specified date with all relevant documents and
witnesses, if any, and shall inform the applicant of the date so
specified.
(2) If the employer or his representative fails to appear on the
specified date, the Authority may hear and determine the
application ex parte.
(3) If the applicant or his representative fails to appear on the
specified date, the Authority may dismiss the application.
(4) An order passed under sub-rule (2) or sub-rule (3) may be
set aside on sufficient cause being shown by the defaulting
party within one month of the date of the said order, and the
application shall then be reheard after service of notice on the
opposite party on the date fixed for rehearing in the manner
specified in sub rule (1)."
Rule 33(1) provides that, if an application under Section 20(2) or
Section 21 is entertained, the Authority shall serve upon the
employer by registered post a notice in the prescribed form to
appear before him on a specified date with all relevant documents
and witnesses, if any, and shall inform the applicant of the date so
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specified. Rule 33(2) provides that, if the employer or his
representative fails to appear on the specified date, the Authority
may hear and determine the application ex parte. The petitioner has
no case that the 2nd respondent did not issue any notice on the
application under Section 20(2). The case of the petitioner is that,
he did not receive any notice from the 2nd respondent in person, as
he intermittently goes to gulf countries in connection with his
business and in his absence, the Administrator is looking after the
affairs of the hospital. When notice has been issued and served on
the employer, and the employer failed to appear, the only option
before the Authority is to hear and determine the application ex
parte. The petitioner cannot be heard to contend that he was not
given opportunity of hearing and there is violation of principles of
natural justice.
13. As regards Ext. P6 order dismissing Ext. P2 application for
setting aside Ext. R2(a) ex parte order, the said application was filed
along with Ext. P3 application to condone delay. There was a delay 4
years and 9 months. The reason stated in Ext. P2 application for
setting aside the ex parte order and Ext. P3 application to condone
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delay is that the petitioner is a non resident Indian having business
at gulf countries and most of the time in a year, he will be abroad in
connection with the business there and the notice in the proceedings
before the 2nd respondent was not properly served on him and he
came to know of the order when he received notice intimating
execution proceedings. Rule 33(4) of the Kerala MW Rules provides
that an order passed under sub-rule (2) or sub-rule (3) may be set
aside on sufficient cause being shown by the defaulting party within
one month of the date of the said order, and the application shall
then be reheard after service of notice on the opposite party on the
date fixed for rehearing in the manner specified in sub rule (1). The
2nd respondent found that the Kerala MW Rules does not empower
the authority to condone the delay in filing Ext. P2 petition, which is
filed beyond one month of the date of the ex parte order and the
petitioner has failed to show sufficient cause for not filing the
petition within the time stipulated. Rule 33(4) of the Kerala MW
Rules permits the Authority under the MW Act to set aside an ex
parte order passed under sub-rule (2) on sufficient cause being
shown by the defaulting party within one month of the date of the
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said order. The period up to which the Authority can accept an
application for setting aside the ex parte order is statutorily fixed.
Beyond the said period, the Authority has no power to set aside an
ex parte order passed under Rule 33(2), even on sufficient cause
being shown by the defaulting party. If the delay is statutorily not
condonable, it cannot be condoned extending the provisions of
Section 5 of the Limitation Act. Further, no sufficient cause has been
shown by the petitioner to have the ex parte order set aside. When
notice was issued and served on the petitioner, he cannot contend
that the notice was not properly served on him for the reason that
most of the time in a year he will be abroad in connection with his
business. I do not find any reason to interfere with Ext. P6 order
passed by the 2nd respondent.
14. In W.P (C) No. 859 of 2014, the petitioner has come up
with two new contentions to challenge Ext. R2(a) ex parte order.
One is, the Deputy Labour Commissioner who passed Ext. R2(a)
order had previously conducted an inspection at the petitioner's
hospital and issued show cause notice for violation of the provisions
of the MW Act, while serving as the District Labour Officer (ENF). It
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is based on this inspection and notice that the Assistant Labour
Officer filed the application under Section 20(2) of the MW Act. It is
thus contended that Ext. R2(a) order passed by the 2 nd respondent
who initiated the proceedings is violative of the doctrine of "no man
can be a Judge in his own cause". It is further contended that the
MW Act does not provide for awarding interest @ 12% on the
amount awarded under Section 20(3).
15. After Ext. R2(a) order dated 28.01.2008, the petitioner
initially filed W.P. (C) No. 6419 of 2011 which was disposed of by
judgment dated 22.08.2012. The relevant portion of the judgment
reads as follows:
"The petitioner has approached this Court with the following
prayers:
"i. Call for the records leading to Ext. P1 and issue
a writ in the nature of certiorari and quash Ext. P1.
ii. Declare that Ext. P1 proceedings as an invalid
one since it is issued without notice to the
petitioner.
iii. Grant one months time to the petitioner to
challenge the order in WWA 10/2006 of the 2 nd
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respondent mentioned in Ext. P1 till such time stay
all further proceedings pursuant to Ext. P1.
iv. issue such other orders, writ or direction as
deems fit by this Hon'ble Court.
2. Obviously, the contention of the petitioner is that the
petitioner was never aware of the proceedings taken pursuant
to MWA 10 of 2006 and it was in the said circumstances that
the writ petition was filed, seeking for one month's time so as
to challenge the order passed in the MWA. After considering
the said relief raised in the writ petition, further proceedings
pursuant to Ext. P1 were directed to be kept in abeyance as
per the interim order dated 01.03.2011, which was
subsequently extended on 18.03.2011 by 'one month'.
Virtually, the relief already granted is more than that was
sought for and the interim stay expired more than one year
ago.
In the said circumstances, this Court does not find any
reason to call for interference. Interference is declined and the
writ petition is dismissed."
It is thereafter that the petitioner has filed W.P. (C) No. 414 of 2023
leading to Ext. P5 judgment directing the second respondent to
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consider Exts. P2 and P3 applications. The 2 nd respondent dismissed
Exts. P2 and P3 applications by Ext. P6 order. Ext. P6 order is
challenged in W.P.(C) 15178 of 2013. There is no challenge to Ext.
R2(a) in W.P.(C) 15178 of 2013. Ext. R2(a) dated 28.01.2008 is
challenged for the first time after an inexplicable delay of 6 years, in
W.P (C) No. 859 of 2014, wherein the petitioner has raised the
contention regarding the violation of the doctrine of "no man can be
a Judge in his own cause". Though it is admitted in the writ petition
that Ext. R2(a) could not be challenged earlier, no reason
whatsoever is stated for the belated challenge. In the application
filed under Section 20 (2), notice was issued and served on the
petitioner, but he failed to appear and the Authority determined the
application ex parte. Had the petitioner appeared before the
Authority, he could have raised this objection before the Authority
itself. Admittedly, the application under Section 20(2) is not filed by
the 2nd respondent. The case of the petitioner is that all the
proceedings after the inspection, except the filing of claim petition,
had been done by the 2nd respondent while he was officiating as the
District Labour Officer (ENF). Though it is stated that the said officer
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has been arrayed as a witness, the Appendix to Ext. R2(a) does not
refer to the name of the 2 nd respondent as a witness. There is no
pleading that Ext. R2(a) suffers from the vice of unfairness or bias.
Since the petitioner had not raised the violation of the doctrine of
"no man can be a Judge in his own cause" earlier even before this
Court, I do not consider it necessary to grant relief to the petitioner
on this ground. There is culpable delay and laches on the part of the
petitioner in challenging Ext. R2(a). The subsequent writ petition
(W.P (C) No. 859 of 2014), in respect of the same subject matter
with new ground can be viewed only as an attempt to rekindle the
lapsed cause of action. Further, the rule that no body can be the
judge of his own cause cannot be said to be an inflexible rule of
natural justice and the same can be moulded in the interest of
justice. The rule can be modified and even excluded in exceptional
cases. In Union of India v. Tulsiram Patel [(1985) 3 SCC 398],
the Hon'ble Supreme Court held:
"101. Not only, therefore, can the principles of natural justice be
modified but in exceptional cases they can even be excluded.
There are well defined exceptions to the nemo judex in causa
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sua rule as also to the audi alteram partem rule. The nemo
judex in causa sua rule is subject to the doctrine of necessity
and yields to it as pointed out by this Court in J. Mohapatra and
Co. v. State of Orissa (1984 (4) SCC 103)."
16. Yet another contention raised in W.P (C) No. 859 of 2014 is
that no revenue recovery proceedings can be initiated to recover any
amount awarded under Section 20(3) of the MW Act, since Section
20(5) provides that an order under Section 20(3) can be executed
only by a Magistrate or the Magistrate to whom the Authority makes
a reference. The Revenue Divisional Officer is not a Magistrate as
provided in Section 20(5)(b) and therefore cannot recover the
amount ordered in Ext. R2(a) as if it were a fine. According to the
petitioner, Ext. R2(a) cannot be executed through revenue recovery
proceedings and it can be executed only through a proceedings
before a 'Magistrate' and therefore the entire proceedings leading to
Ext. P11 notice (in W.P (C) No. 859 of 2014) under Section 49 or the
Kerala Revenue Recovery Act, 1968 are illegal. Of course, challenge
to Ext. P11 is a fresh cause of action.
17. Section 20(5) of the MW Act reads as under:-
"20(5). Any amount directed to be paid under this section may
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be recovered-
(a) if the Authority is a Magistrate, by the Authority as if it
were a fine imposed by the Authority as a Magistrate, or
(b) if the Authority is not a Magistrate, by any Magistrate
to whom the Authority makes application in this behalf, as if it
were a fine imposed by such Magistrate."
(underlining supplied)
Though the amount directed to be paid under Section 20 of the MW
Act is not really a fine, sub-section (5) thereof provides that the
recovery of such amount may be made, as if it were a fine imposed
by the Magistrate. The amount, a non fine, will be deemed to be a
fine for the purpose of recovery. No other mode of recovery is
provided under the MW Act (as it then stood) for recovery of amount
directed to be paid under Section 20. Therefore, it is necessary to
resort to the provisions of the General Clauses Act, 1897 (Central
Act 10 of 1897) which deals with recovery of fines. Section 25 of the
General Clauses Act, 1897 reads as follows:
"25. Recovery of fines.- S.63 to S.70 of the Indian Penal Code
(45 of 1860) and the provisions of the Code of Criminal
Procedure (5 of 1898) for the time being in force in relation to
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the issue and the execution of warrants for the levy of fines
shall apply to all fines imposed under any Act, Regulation, rule
or bye law unless the Act, Regulation, rule, or bye law contains
an express provision to the contrary."
(underlining supplied)
Under the authority of Section 25 of the General Clauses Act, 1897,
the provisions of the Code of Criminal Procedure, 1973 relating to
the issue and the execution of warrants for the levy of fines are
made applicable to all fines imposed under any Act, unless such Act
contains an express provision to the contrary. The Hon'ble Supreme
Court in Shantilal v. State of M.P. [2007 (11) SCC 243: 2008 (1)
KLT 503: 2007 (4) KHC 580] has categorically observed that Section
25 of the General Clauses Act, 1897 makes it explicitly clear that the
provisions of the Code of Criminal Procedure, 1973 relating to
payment of fine would apply to all cases wherein fines have been
imposed, unless the Act, Regulation, Rule or Bye law contains an
express provision to the contrary. The Hon'ble Supreme Court held
as under:
"26. Though S.25 of the General Clauses Act, 1897 was
not referred to in Bashiruddin Ashraf, in our opinion, bare
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reading of the said provision also makes it explicitly clear and
leaves no room for doubt that S.63 to S.70, IPC and the
provisions of CrPC relating to award of imprisonment in default
of payment of fine would apply to all cases wherein fines have
been imposed on an offender unless 'the Act, Regulation, rule
or Bye law contains an express provision to the contrary'. We
are, therefore, unable to uphold the bald contention of the
appellant that in absence of specific provision to order
imprisonment in default of payment of fine in a statute, a
Court of law has no power to order imprisonment of an
offender who fails to pay fine and such action would be illegal
or without authority of law. In our judgment, in absence of a
provision to the contrary, viz. that no order of imprisonment
can be passed in default of payment of fine, such power is
explicit and can always be exercised by a Court subject to the
relevant provisions of IPC and CrPC."
Therefore, going by the mandate of Section 25 of the General
Clauses Act, 1897, the provisions of the Code of Criminal Procedure,
1973 relating to the issue and the execution of warrants for the levy
of fines can be resorted for recovery of the amount directed to be
paid under Section 20(3) of the MW Act.
18. Sections 421 and 431 of the Code of Criminal Procedure,
1973 read as under:
"421. Warrant for levy of fine.-
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(1) When an offender has been sentenced to pay a fine, the
Court passing the sentence may take action for the recovery of
the fine in either or both of the following ways, that is to say, it
may-
(a) issue a warrant for the levy of the amount by attachment
and sale of any movable property belonging to the offender;
(b) issue a warrant to the collector of the district, authorising
him to realise the amount as arrears of land revenue from the
movable or immovable property, or both of the defaulter:
Provided that, if the sentence directs that in default of payment
of the fine, the offender shall be imprisoned, and if such
offender has undergone the whole of such imprisonment in
default, no Court shall issue such warrant unless, for special
reasons to be recorded in writing, it considers it necessary so to
do, or unless it has made an order for the payment of expenses
or compensation out of the fine under Section 357.
(2) The State Government may make rules regulating the
manner in which warrants under clause (a) of sub-section (1)
are to be executed, and for the summary determination of any
claims made by any person other than the offender in respect
of any property attached in execution of such warrant.
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(3) Where the Court issues a warrant to the Collector under
clause (b) of sub-section (1), the Collector shall realise the
amount in accordance with the law relating to recovery of
arrears of land revenue, as if such warrant were a certificate
issued under such law:
Provided that no such warrant shall be executed by the arrest
or detention in prison of the offender."
431: Money ordered to be paid recoverable as a fine.-
Any money (other than a fine) payable by virtue of any order
made under this Code, and the method of recovery of which is
not otherwise expressly provided for, shall be recoverable as if
it were a fine:
Provided that Section 421 shall, in its application to an order
under Section 359, by virtue of this section, be construed as if
in the proviso to sub-section (1) of Section 421, after the
words and figures "under Section 357", the words and figures
"or an order for payment of costs under Section 359" had been
inserted."
(underlining supplied)
Section 421 of the Code of Criminal Procedure, 1973 deals with
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warrant and levy of fine. Fine can be recovered either by issue of a
warrant for the levy of the amount by attachment and sale of any
movable property belonging to the offender or by issue of warrant to
the Collector of the district, authorising him to realise the amount as
arrears of land revenue from the movable or immovable property, or
both of the defaulter. On receipt of warrant under clause (b) of sub-
section (1), the Collector shall realise the amount in accordance with
the law relating to recovery of arrears of land revenue, as if such
warrant were a certificate issued under such law. The Kerala
Revenue Recovery Act, 1968 has been enacted for the recovery of
arrears of public revenue in the State and public revenue due on
land has been defined under Section 2(j) of the Kerala Revenue
Recovery Act to mean the land revenue charge on the land.
Therefore, the amount directed to be paid under Section 20 of the
MW Act can be recovered by the Magistrate in the manner provided
under Section 421 of the Code of Criminal Procedure, on an
application from the Authority, as if it were a fine imposed by such
Magistrate. The Magistrate has to authorize the Collector to realise
the amount in accordance with the provisions of the Kerala Revenue
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Recovery Act. Section 3(4)(b) of the Code of Criminal Procedure,
1973 reads as under:
"Section 3(4).Where, under any law, other than this Code, the
functions exercisable by a Magistrate relate to matters-
(a) xxxxxxxxxx
(b) which are administrative or executive in nature, such as,
the granting of a licence, the suspension or cancellation of a
licence, sanctioning a prosecution or withdrawing from a
prosecution, they shall, subject as aforesaid, be exercisable by
an Executive Magistrate."
The function exercisable in the matter, such as, recovery by the
Magistrate, is administrative or executive. Therefore, the Executive
Magistrates have jurisdiction to recover fine. Section 20 of the Code
of Criminal Procedure deals with the appointment of Executive
Magistrates. The Revenue Divisional Officer is an Executive
Magistrate appointed under Section 20. The Revenue Divisional
Officer also exercises the powers and functions of the 'Collector'
under Section 2(c) of the Revenue Recovery Act, and referred to in
Section 421 of the Code of Criminal Procedure. Therefore, on an
application from the Authority under the MW Act, the Revenue
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Divisional Officer, the Magistrate, can recover the amount directed to
be paid under Section 20(3) of the MW Act. Therefore, the challenge
against Ext. P11 notice issued under the Kerala Revenue Recovery
Act also fails. Here, it is to be noted that, by the Minimum Wages
(Kerala Amendment) Act, 2017, Section 20(5)(b) has been
substituted and Section 20(5)(b) now reads as under:
"Section 20(5)(b). if the Authority is not a Magistrate, by the
Authority, as if it were arrears of revenue due on land, without
prejudice to any other mode of recovery."
19. The last contention of the petitioner is that MW Act does
not provide for awarding interest @ 12% on the amount awarded
under Section 20(3) of the MW Act. What the 2 nd respondent has
ordered in Ext. R2(a) is as follows:
"if the opposite party fails to follow this order revenue recovery
proceedings will be initiated on a report on the same from the
Assistant Labour Officer with 12% interest from date of order."
In Ext. R2(a), the 2 nd respondent has, in addition to the deferential
amount between the minimum wages and actual wages, ordered
only payment of compensation and not interest on the amount
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awarded under Section 20(3). However, Section 6 of the Revenue
Recovery Act provides that arrears of public revenue due on land
shall bear interest at the rate of 12% per annum. Therefore, in the
light of the said provision, there is nothing wrong in recovering the
amount covered by Ext. R2(a) by revenue recovery proceedings with
12% interest.
20. In view of the above discussion, I find that the writ petitions
lack merit and they are accordingly dismissed.
The Minimum Wages Act, 1948 is a welfare legislation. The
object of the Act is to fix the minimum rate of wages for various
types of employment mentioned in Part I and II of the Schedule to
the Act. The petitioner has been persistently violating the provisions
of the MW Act and has been convicted at least five times for
violation of the provisions of the Act. The petitioner has been
attempting to delay the payment of amounts due under the MW Act
by all means. The observation of this Court in the judgment in W.P.
(C) No. 6419 of 2011 extracted in the earlier part of this judgment is
also relevant to be noted in this context. The petitioner shall remit
the amount covered by Ext. P11 (in W.P (C) No. 859 of 2014) with
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interest at the rate mentioned therein till the date of payment, after
deducting the amount paid pursuant to the direction in Ext. P5
judgment, before the 1st respondent, the Assistant Labour Officer
within two months from the date of receipt of a copy of this
judgment, or else, it will be open to the respondents to take steps to
recover the amount as per the provisions of the MW Act as amended
by the Minimum Wages (Kerala Amendment) Act, 2017.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
SB
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APPENDIX OF WP(C) 15178/2013
PETITIONER EXHIBITS
EXT.P1: TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT
DATED 9/2/2011.
EXT.P2: TRUE COPY OF THE APPLICATION DATED 6/11/2012 BEFORE
THE AUTHORITY UNDER THE MINIMUM WAGES ACT.
EXT.P3: TRUE COPY OF THE DELAY CONDONATION APPLICATION DATED
6/11/2012.
EXT.P4: TRUE COPY OF THE OBJECTION OF THE 1ST RESPONDENT
DATED 20/4/2013.
EXT.P5: TRUE COPY OF THE JUDGMENT DATED 4/1/2013 IN WPC
NO.414 OF 2013.
EXT.P6: TRUE COPY OF THE ORDER IN MVVA/10/2006 DATED
30/4/2013.
EXT.P7: TRUE COPY OF THE DECISION REPORTED IN 2008(1)KLT 161.
RESPONDENTS EXHIBITS:
EXT.R3(A) TRUE COPY OF THE ORDER NO.MWA.10/2006
DATED:28.01.2008
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APPENDIX OF WP(C) 26288/2013
PETITIONER EXHIBITS
EXHIBIT-P1: TRUE COPY OF THE ORDER OF THE DEPUTY LABOUR
COMMISSIONER IN M.W.A.10/2006 DATED 28.1.2008.
EXHIBIT-P2: TRUE COPY OF THE REVENUE RECOVERY NOTICE ISSUED
BY THE RECOVERY OFFICER DATED 09.02.2011.
EXHIBIT-P3: TRUE COPY OF THE ORDER DATED 30.04.2013 IN
M.W.A.NO.10/2006 OF THE DEPUTY LABOUR COMMISSIONER.
EXHIBIT-P4: TRUE COPY OF THE REPRESENTATION DATED 03.10.2013
FILED BY THE PETITIONER UNION BEFORE THE 1ST RESPONDENT.
RESPONDENTS EXTBITS:
EXHIBIT R(3)A: TRUE COPY OF THE CLAIM PETITION 25.07.2006
IN M.W.A.NO.10/2006, FILED BY THE ASST.LABOUR OFFICER,
KODUNGALLUR
EXHIBIT R(3)B: TRUE COPY OF THE INSPECTION NOTE
NO.A.1196/2006 DATED 17.04.2006 ISSUED BY THE DISTRICT
LABOUR OFFICER (E).
EXHIBIT R(3)C: TRUE COPY OF THE INSPECTION ORDER
NO.1196/2006 DATED 17.04.2006 ISSUED BY THE DISTRICT LABOUR
OFFICER (E).
EXHIBIT R(3)D: TRUE COPY OF THE SHOW CAUSE NOTICE
NO.A.1196/2006 DATED 17.05.2006 ISSUED BY THE DISTRICT
LABOUR OFFICER (E), THRISSUR.
EXHIBIT R(3)E: A TRUE COPY OF LETTER NO.MWA10/2006 DATED
09.03.2009 OF THE ASST.LABOUR OFFICER, KODUNGALLUR SENT TO
THE AUTHORITY, DEPUTY LABOUR COMMISSIONER, THRISSUR
EXHIBIT R(3)(F): TRUE COPY OF THE LETTER NO.R.R.C.10/2009
DATED 07.07.2009 ISSUED BY THE DEPUTY LABOUR COMMISSIONER TO
THE REVENUE DIVISIONAL OFFICER.
EXHIBIT R(3)G: TRUE COPY OF THE R.R.C DATED 07.07.2009
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ISSUED BY THE DEPUTY LABOUR COMMISSIONER TO THE REVENUE
DIVISIONAL OFFICER.
EXHIBIT R(3)H: TRUE COPY OF THE STATEMENT AND RECEIPT
DATED 31.07.2013 RECEIVED FROM THE 26 EMPLOYEES FOR THE
RECEIPT OF GRATUTITY AND BENEFITS.
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APPENDIX OF WP(C) 859/2014
PETITIONER EXHIBITS
EXT.P1: TRUE COPY OF INSPECTION NOTE, NUMBERED AS A.1196/2006
DATED 14/3/2006, PREPARED BY SRI.A.K.SUNDARAN, THE DISTRICT
LABOUR OFFICER, (ENF)
EXT.P2: TRUE COPY OF INSPECTION ORDER NO.A.1196/2006 DATED
17/04/2006.
EXT.P3: TRUE COPY OF SHOW CAUSE NOTICE NO.A.1196/2006 DATED
17/05/2006 ISSUED BY THE DISTRICT LABOUR OFFICER (E) FROM HIS
OFFICE AT THRISSUR.
EXT.P4: TRUE COPY OF CLAIM PETITION DATED 25/7/2006, NUMBERED
AS MWA. 10/2006 ON THE FILE OF THE 1ST RESPONDENT.
EXT.P4(A): TRUE COPY OF STATEMENT OF THE 87 BENEFICIARIES IN
THE CLAIM PETITIONS.
EXT.P5: TRUE COPY OF ORDER NO.MWA.10/2006 DATED 28/01/2008.
EXT.P6: TRUE COPY OF RELEVANT PAGES OF THE VOLUMES OF MUSTER
ROLL A.
EXT.P6(A): TRUE COPY OF RELEVANT PAGES OF THE VOLUMES OF
MUSTER ROLL B.
EXT.P6(B): TRUE COPY OF RELEVANT PAGES OF THE VOLUMES OF
MUSTER ROLL C.
EXT.P7: TRUE COPY OF STATEMENT, DATED 31/7/2013.
EXT.P8: TRUE COPY OF THE LETTER NO.R.R.C 10/2006 DATED
07/07/2009 ISSUED BY THE DEPUTY LABOUR COMMISSIONER, THRISSUR,
ADDRESSED TO THE REVENUE DIVISIONAL OFFICER.
EXT.P8(A): TRUE COPY OF THE R.R.C 10/2009, DATED 07/07/2009
ISSUED BY THE DEPUTY LABOUR COMMISSIONER, THRISSUR.
EXT.P9: TRUE COPY OF THE ORDER IN WPC 414/2013 DATED
04/11/2013 ON THE FILE OF THIS HON'BLE COURT.
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EXT.P10: TRUE COPY OF ORDER NO.M.W.A 10/2006 DATED 30/4/2013
OF THE 1ST RESPONDENT.
EXT.P11:TRUE COPY OF NOTICE NO.B1.1067/11/LABOUR, DATED
21/11/2013 OF THE TAHSILDAR, KODUNGALLOOR.
RESPONDENTS EXTHIBITS:
EXT.R4(A): TRUE COPY OF THE ORDER PASSED BY THE DEPUTY
LABOUR COMMISSIONER ON 28.01.2008 IN M.W.A.NO.10/2006
EXT.R4(B): TRUE COPY OF THE ORDER DATED 30.04.2013 IN MWA
NO.10/2006 OF THE DEPUTY LABOUR COMMISSIONER.
