- 1 - WP No.20466 OF2017IN THE HIGH COURT OF KARNATAKA AT BENGALURU ® DATED THIS THE16H DAY OF AUGUST, 2022 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION No.20466 OF2017(L-MW) BETWEEN:
1. KARTIKERE GRAM PANCHAYAT REP. BY ITS SECRETARY / PDO KARTIKERE VILLAGE, KASABA HOBLI-577 131 CHIKKAMAGALUR TALUK & DIST2 THE CHIEF EXECUTIVE OFFICER CHICKMAGALORE ZILLA PARISHAD CHIKKAMAGALUR-577 101 …PETITIONERS (BY SRI. ONKAR K B., ADVOCATE) AND:
1. SRI K K RAMESH RAJ URS S/O KRISHNA RAJ URS MAJOR, KARTIKERE VILLAGE-577 131 CHIKKAMAGALUR TALUK & DIST2 THE LABOUR OFFICER AND AUTHORITY UNDER THE MINIMUM WAGES ACT, SUB-DIVISION-2 CHIKKAMAGALUR-577 101 …RESPONDENTS (BY SRI. V.S. NAIK – AMICUS CURIAE R1-SERVED SRI. BOJEGOWDA T. KOLLER, AGA FOR R2) - 2 - WP No.20466 OF2017THIS WRIT PETITION IS FILED UNDER ARTICLE226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
/AWARD PASSED BY THE R-2 i.e., THE HON'BLE LABOUR OFFICER AND AUTHORITY UNDER THE MINIMUM WAGES ACT, SUB- DIVISION-2 CHIKKAMAGALURU ON DATED288.2013 WHEREIN THE CLAIM PETITION FILED BY THE R-1 HEREIN UNDER SECTION202]. OF THE MINIMUM WAGES ACT, 1948 WAS ALLOWED AS PER ANNEXURE-A. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING 'B' GROUP, THIS DAY THE COURT MADE THE FOLLOWING: ORDER
1 The petitioner is before this Court seeking for the following reliefs :
1. “Issue a writ of certiorari by quashing the impugned order/award passed by the 2nd respondent i.e., the Hon’ble labour officer and authority under the Minimum Wages Act, Sub- Division-2, Chikkamagalur in Case No.KaVeKa.04/2022 on 28.08.2013 wherein the claim petition filed by the 1st respondent herein under section 20(2) of the Minimum Wages Act, 1948 was allowed as per Annexure-A in the interest of justice and equity.
2. To grant such other reliefs including the order for the cost which this Hon’ble court deems fit in the facts and circumstances of the case in the interest of justice and equity.
2. The petitioner-Kartikere Gram Panchayat had appointed respondent No.1 as a ‘waterman’ on 28.2.1998. Respondent No.1, claiming that minimum - 3 - WP No.20466 OF2017wages have not been paid in terms of the notification issued by the Government of India dated 17.3.2006, filed a complaint with respondent No.2-Authority to make payment of the balance wage amount from 1.4.2007 to 31.3.2011 amounting to Rs.98,521/-.
3. Notice having been issued and counter statement having been filed. After hearing the parties, respondent No.2-Authority passed the impugned order wherein the petitioner has been directed to pay the balance minimum wages amounting to Rs.98,521/- and further to pay Rs.98,521/- as compensation within 30 days from the date of passing of the impugned order. It is, aggrieved by the same, the petitioner is before this Court seeking for the aforesaid reliefs.
4. Sri K B Onkara, learned counsel for the petitioner would submit that respondent No.1 is not an employee/workman of the petitioner in as much as he - 4 - WP No.20466 OF2017was appointed as a ‘waterman’ from 28.9.1998 and has discharged the work of only one hour in a day since the only job of respondent No.1 was either to open the taps/valved or close the taps/valves, which would not take more than one hour a day and as such, he is not employed for the whole day and therefore, he is not an ‘employee’.
5. Secondly, he submits that when the claim petition was submitted on 14.3.2012, respondent No.1 had ceased to be an employee of the petitioner on 4.4.2011 when respondent No.1 stopped coming for work. The claim petition has been submitted beyond the period of one year after respondent No.1 stopped coming for work. No application could have been filed by respondent No.1 since he was not an ‘employee’ of the petitioner as on the date on which the application has been filed and in this regard, he relies on sub section (i) of Section 2 of the Minimum Wages Act, 1948 - 5 - WP No.20466 OF2017(hereinafter referred to as ‘the MW Act’ for brevity), which is reproduced hereunder for convenience: Sub section (i) of Section 2 of the MW Act reads as under :
"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;
6. Relying on the same, he submits that for a person to make an application with respondent No.2, such person ought to be in employment. The employment of respondent No.1 having ceased on 4.4.2011, application has been filed 14.3.2012 and that after the period of employment comes to an end, no such application is maintainable.
7. Thirdly, he submits that any claim made under Section 20 of the MW Act could only be for adjudication of the ‘minimum wages’ liable to be paid and there cannot be any ‘recovery proceedings. Claim for recoveries will - 6 - WP No.20466 OF2017have to be done either under Section 15(1) of the Payment of Wages Act, 1948 or under Section 33C(2) of the Industrial Disputes Act, 1947 and as such, he submits that respondent No.2 having directed payment of minimum wages within 30 days is beyond the proviso to Section 20 and therefore, the impugned order is liable to be quashed.
8. In this regard, he relies on the decision of the Hon’ble Supreme Court in TOWN MUNICIPAL COUNCIL, ATHANI VS PRESIDING OFFICER, LABOUR COURT reported in AIR1969SC1335 more particularly paragraphs 7 thereof, which are reproduced hereinunder for easy reference :
7. We have examined the applications which were presented before the Labour Court under section 33C(2) of the Act in these appeals and have also taken into account the pleadings which were put forward on behalf of the appellant in contesting those applications and we are unable to find that there was any dispute relating to the rates. It is true that, in their applications, the workmen did plead the rates at which their claims had to be computed; but it was nowhere stated that those rates were being disputed by the appellant. Even in the pleadings put forward on behalf of the appellant as incorporated in the order of the Labour Court, - 7 - WP No.20466 OF2017there was no pleading that the claims of the workmen were payable at a rate different from the rates claimed by them. It does appear that, in one case, there was a pleading on behalf of the appellant that no rates at all had been prescribed by the Mysore Government. That pleading did not mean that it became a dispute as to the rates at which the payments were to be made by the appellant. The only question that arose was whether there were any rates at all fixed under the Minimum Wages Act for overtime and for payment for work done on days of rest. Such a question does not relate to a dispute as to the rates enforceable between the parties, so that the remedy under section 20(1) of the Minimum Wages Act could not have been sought by the applicants in any of these applications. No question can, therefore, arise of the jurisdiction of the Labour Court to entertain these applications under section 33C(2) of the Act being barred because of the provisions of the Minimum Wages Act. The first point raised on behalf of the appellant thus fails.
9. He also places reference to the decision of this Court in Writ Petition No.45891/2013 (The Deputy Director V. Mr. S.R. Nagaraj) dated 17.7.2014, more particularly paragraphs 6 and 7 thereof, which are re-produced hereunder for easy reference :
6. “It is thus clear that where there is no dispute as to the rate of minimum wages payable to the employee and if it is only for enforcement of the balance of wages due, Section 20(1) has no application. The Hon’ble Supreme Court has held that petitioner has other remedies for enforcement under Section 15(1) of the Payment of Wages Act, 1948 or Section 33-C(2) of the Industrial Disputes Act, 1947.-. 8 - WP No.20466 OF20177. Therefore, the application filed by the first respondent at Annexure ‘B’ is not maintainable. I am of the view that the order passed by the second respondent dated 26.8.2012 at Annexure ‘A’ is without jurisdiction. It is accordingly quashed. However, liberty is reserved to the first respondent to approach the competent authority for redressal of his grievances in relation to payment of minimum wages either under Section 15(1) of the Minimum Wages Act, 1948 or under Section 33- C(2) of the Industrial Disputes Act, 1947 before the competent authority. If such an application is made by the first respondent within six weeks from the date of receipt of a copy of this order, the authority concerned is directed to receive the same without raising objection as to limitation and consider the matter in accordance with law. No costs.
10. By placing reliance on the above, he submits that enforcement of Minimum wages is required to be done in terms of Section 15(1) of the Payment of Wages Act, 1948 or under Section 33C(2) of the Industrial Disputes Act, 1947 and therefore, he submits that the writ petition is required to be allowed and impugned order be quashed.
11. Though respondent No.1-workman has been served, he has not entered appearance and this Court considering the import of the arguments advanced by - 9 - WP No.20466 OF2017Sri Onkara, requested Sri V S Naik, learned counsel who practices regularly on the labour side to assist the Court as an Amicus.
12. Sri. V S Naik, learned counsel submits that in terms of Section 20 of the MW Act, the concerned Authority can direct payment of minimum wages if not already paid as well as impose penalty for non payment, which can be upto 10 times of the amount not paid. In the present case, admittedly minimum wages has not been paid by the petitioner to respondent No.1- employee and as such determination of the amount payable and the levy of penalty is in accordance with law and as such, the same cannot be found fault with.
13. As regards determination of the minimum wages, he submits that minimum wages having already been determined by a notification and there being no dispute in regard to quantum of minimum wages payable and are applicable to respondent No.1- - 10 - WP No.20466 OF2017workman, the respondent No.2-Authority was only required to verify the payment made and as such, there is no determination of any dispute relating to the rates of payment of minimum wages and as such, the decision in W.P.No.45891/2013 (The Deputy Director V. Mr. S.R. Nagaraj) would not be applicable to the present facts. Similar is the submission as regards the decision of the Hon’ble Apex Court in as much as he submits that even in that decision, there was a dispute as regards minimum wages liable to be paid and only in such cases, industrial dispute was required to be raised. In the present case, there is no minimum wages paid and there is no dispute as regards the minimum wages payable. Hence, the decision of the Hon’ble Apex Court is not applicable to the case on hand.
14. Lastly, he submits that the dispute as regards non payment of minimum wages raised as regards the period in which respondent No.1 was employed by the - 11 - WP No.20466 OF2017petitioner, the question of application being filed subsequently on a date on which respondent No.1 was not an employee is irrelevant in the matter. The order passed by respondent No.2 being proper and correct does not require to be interfered by this court.
15. Heard Sri Onkara K B, learned counsel for the petitioner and Sri V S Naik, learned counsel who is appointed as Amicus Curiae to assist the Court in this matter and perused the documents.
16. The points that arise for consideration are as follows :
1. Whether an employee raising an issue as regards non payment of minimum wages is required to continue to be an employee as on the date on which the dispute as regards non- payment of minimum wages is raised?.
2. Whether the appropriate authority under Section 20 of the MW Act can determine the amount of minimum wages not paid and impose penalty on the employer for non- payment?.
3. Whether recovery of any such amount can be made in a proceedings under Section 20 of the MW Act or any proceedings under Section 15(1) of the Payment of Wages Act 1948 or under Section 33 of the Industrial Disputes Act to resorted to?. - 12 - WP No.20466 OF20174) What order?.
17. I answer the above points as under 18. Point No.1: Whether an employee raising an issue as regards non payment of minimum wages is required to continue to be an employee as on the date on which the dispute as regards non-payment of minimum wages is raised?. 18.1. Sub section (i) of Section 2 of the MW Act reads as under :
"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;
18.2. A perusal of the above provision would indicate that an ‘employee’ means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scduled employment in respect of which minimum rates of wages have been fixed. 18.3. In the present case, It is not in dispute that respondent No.1 was employed by the petitioner - 13 - WP No.20466 OF2017until 4.4.2011. Of course the contention of Sri Onkar, learned counsel for the petitioner is that the claim was made subsequently after one year i.e. on 14.3.2012. The issue as regards the claim to be raised is not as regards whether on the date of claim, the person is an employee or not but as to whether the person was an employee and not made payment of minimum wages. 18.4. Thus, in my considered view, the fact of respondent No.1 not being an employee, as on the date of filing the claim petition for this purpose would be irrelevant since the claim was for the period 1.4.2007 to 31.3.2011. That respondent No.1 had been employed by the petitioner as a ‘waterman’, the relevant period being the period of employment, the question of the employee having filed the claim after he ceased to be an employee is irrelevant.-. 14 - WP No.20466 OF201719. As regards further contention that respondent No.1 was employed as ‘waterman’ and discharged his duty for only one hour a day, the same is also irrelevant. Since the employment being accepted, the period during which employee discharges such function is left to the employer and employment as such may not be questioned. Merely because the employee has discharged duty for only one hour, the employer cannot say that minimum wages are not required to be paid to such an employee as it is for the employer to extract work from such an employee. 19.1 The last contention of Sri Onkar is that the financial outlay of the petitioner-Grama Panchayath not contemplating minimum wages and if minimum wages being paid financial loss would be caused, is required to be rejected inasmuch as the petitioner–Grama Panchayath cannot, on the basis of the financial outlay, - 15 - WP No.20466 OF2017contend that the minimum wages will be paid or not paid. 19.2 Once the person is employed and the employment has been notified and minimum wages made applicable to the employee, it is for the employer to make payment of minimum wage to the employee. 19.3 I answer point No.1 holding that an employee raising an issue as regards non payment of minimum wages is not required to continue to be an employee as on the date on which the dispute as regards non-payment of minimum wages is raised.
20. Answer to Point No.2: Whether the appropriate authority under Section 20 of the MW Act can determine the amount of minimum wages not paid and impose penalty on the employer for non-payment?. And Answer to Point No.3: Whether recovery of any such amount can be made in a proceedings under Section 20 of the MW Act or any proceedings under Section 15(1) of the Payment of Wages Act 1948 or under Section 33 of the Industrial Disputes Act is required to be resorted to?. - 16 - WP No.20466 OF201720.1. The above points being inter-related, both are answered together as under :
20. 2 Section 20 of the MW Act has been reproduced herein:
20. “Claims- (1) The appropriate Government may, by notification in the Official Gazette, appoint any Commissioner for Workmen's Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any 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 payment of less than the minimum rates of wages or in respect of the 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 to employees employed or paid in that area.” (2) Where an employee has any claim of the nature referred to in sub-section (1)]., the employee himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or 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 under sub- section (3): Provided that every such application shall be presented within six months from the date on which the minimum wages 32 [or other amount]. became payable: - 17 - WP No.20466 OF2017Provided further that any application may be admitted after the said period of six 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 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— (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. 20.3 Section 15(1) of The Payment of Wages Act, 1936 reads as follows: (1) The appropriate Government may, by notification in the Official Gazette, appoint— (a) any Commissioner for Workmen’s Compensation; or - 18 - WP No.20466 OF2017(b) any officer of the Central Government exercising functions as,— (i) Regional Labour Commissioner; or (ii) Assistant Labour Commissioner with at least two years’ experience; or (c) any officer of the State Government not below the rank of Assistant Labour Commissioner with at least two years’ experience; or (d) 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 (e) any other officer with experience as a Judge of a Civil Court or a Judicial Magistrate, as 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 appropriate 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. 20.4 Section 33C(2) of The Industrial Disputes Act, 1947 reads as under: Recovery of money due from an employer- (1) xxxx - 19 - WP No.20466 OF2017(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 within a period not exceeding three months: 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. 20.5 A perusal of Section 20 of the MW Act would indicate that any person aggrieved by non- payment of minimum wages for work done, can make a claim in terms of sub section (1) of Section 20 of the MW Act to the appropriate authority appointed under sub section (1) for a direction to make payment of minimum wages. 20.6. In terms of sub section (3) of Section 20 of MW Act, when an application under sub section (2) is entertained, the Authority shall hear the applicant and the employer, or give them an - 20 - WP No.20466 OF2017opportunity 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 the Act direct payment 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. 20.7. In the present case, the petitioner-Industry is notified under the Minimum Wages Act and the minimum wages has also been fixed. Thus there is no dispute as regards the applicability of the MW Act or the minimum wages payable. Such being the case, the further contention of Sri.Onkar, learned counsel for the petitioner that - 21 - WP No.20466 OF2017if minimum wages are paid, there would be an impact on the financial situation of the petitioner is completely untenable and unsustainable. It is for the employer to decide how many employees it intends to hire on the basis of its ability to pay. The employer after hiring the employee cannot be heard to say that since he does not have the money, he is not able to pay the minimum wages. This submission is even more peculiar for the reason that even according to Sri.Onkar, learned counsel for the petitioner, the employee was only working for only one hour a day. If that be so, it was for the petitioner –Grama Panchayath to have not only such number of persons so as to get most services out of them per day as might have been possible. Since it is better to have services of fewer people who are paid in full rather than larger number of persons who are not paid anything at all.-. 22 - WP No.20466 OF201720.8. In the decision in W.P.No.No.45891/2013 (The Deputy Director V. Mr. S.R. Nagaraj) relied upon by Sri Onkar, learned counsel for the petitioner, the issue involved was as regards the payment to be made for overtime work done as also work done on weekly off days and as such there was a requirement to ascertain the rate of minimum wages payable for the over time work. It is for that reason that it was held that Section 20(1) has not application and the remedies under Section 15(1) of the Payment of Wages Act 1948 has to be resorted to. In the present case as held supra, there is no dispute as regards the applicability of MW Act and or the minimum wages payable. Hence, there would be no requirement in my considered view for enforcement under Section 15(1) of the MW Act having been determined.-. 23 - WP No.20466 OF201720.9. In view of the above, I answer Points 2 and 3 as under :- An appropriate Authority under Section 20 of the MW Act can determine the amount of minimum wages not paid and impose penalty on the employer for non payment so long as there is no dispute as regards applicability of MW Act and the minimum wages payable. If there is no dispute as regards both the above matters, then under Section 20 of the MW Act itself, recovery of the minimum wages not paid could be made without resorting to proceeding under Section 15(1) of the Payment of Wages Act or under Section 33 of the Industrial Disputes Act.
21. Answer to Point No.4 : What order?. 21.1 In view of my answers to all the above questions, there being no infirmity in the impugned order passed, the writ petition stands dismissed.-. 24 - WP No.20466 OF201721.2 This Court places on record its appreciation for the assistance rendered by Sri V S Naik, learned Advocate, as a Amicus Curiae by assisting this Court in the above matter pro boNo.Sd/- JUDGE RS List No.:
1. Sl No.:
2.