Judgment:
Chandramauli Kumar Prasad, J.
1. In this writ application prayer of the
petitioner is for issuance of a writ in the nature
of certiorari for quashing the order dated
January 17, 2003 passed by the Sub-divisional
officer Bank, as an authority appointed under
the Minimum Wages Act, in case No. 2 of 1999
whereby the petitioner has been directed to pay
a sum of Rs. 25,945/- towards claim of less
payment of wages and Rs. 7,500/- as
compensation.
2. Shorn of unnecessary details, facts giving rise to the present application are that the petitioner was appointed, as an executing agent of Scheme No. 5 of Jawahar Rojgar Yojna for the financial year 1993-94 for construction of well at village Goripur, falling within Chandan Panchayat in the district of Banka. For execution of the work Baigan Bhugar, Birhaspat Bhujar, Titu Bhujar, Phas Bhujar and Sattan Bhujar were engaged. The Enforcement Officer-cum-Inspector appointed under the Minimum Wages Act, 1948 (hereinafter referred to as the Act) on enquiry found that the aforesaid five employees engaged for execution of the work were not paid the minimum wages prescribed under Act. The Enforcement Officer further found that those persons were engaged from Falgun 1996 to May 21, 1999 and were paid wages @ Rs. 14, 18 and lastly Rs. 20 per day although the minimum wages prescribed from January 31, 1998 was Rs. 39.70 and Rs. 51 from April 1, 1999. Accordingly, the Enforcement Officer filed application before the Authority appointed under the Act (hereinafter referred to as the Authority) under Section 20 of the Act inter alia contending that each of the employee has been paid less amount by Rs. 5,199/- and hence prayer was made to direct payment of the aforesaid amount, along with 10 times compensation. Petitioner took the plea that minimum wages were paid to the employees and in support thereof various documents were placed on record. The Authority on appreciation of the material, came to the conclusion that the plea put forth by the petitioner that he had paid the minimum wages is untenable and accordingly by the impugned order directed for payment of wages and compensation.
3. Mr. Sanjay Kumar Verma appearing on behalf of the petitioner attempted to assail the finding of the Commissioner in regard to the non-payment of minimum wages. The Commissioner on appreciation of evidence came to the conclusion that plea put forth by the petitioner is unfounded and for coming to the aforesaid conclusion, he had relied on the statement of the employees. He had also referred to the receipt produced by the petitioner and in view of the statement of the employees that it did not contain their signatures, rejected the petitioner's plea. The Authority also held that the petitioner not only paid less wages, but in order to avoid payment, documents were created to mislead him. Said finding has been recorded by the Authority on appreciation of material on record which cannot be said to be perverse calling for interference by this Court in exercise of writ jurisdiction.
4. Mr. Verma, then submits that the dispute in the case is not in regard to the rate of wages but non-payment of minimum wages fixed under the Act and hence the remedy under the Act is not available. Accordingly, he submits that the order passed by the Authority is absolutely without jurisdiction. In support of his submission, Mr. Verma has placed reliance on a decision of the Supreme Court in the case of Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli AIR 1969 SC 1335 : 1969 (1) SCC 873 : 1969-II-LLJ-651 and my attention has been drawn to the following passage from the judgment, which reads as follows at p. 658 of LLJ:
'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 Act is primarily concerned with fixing of rates - rates of minimum wages, overtime rates, rate for 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 provision 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 far 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 provision 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 disputes as to rates between the employer and the employees, Section 20(1) would not be 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 payment 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 Payment of Wages Act. If the payment is withheld beyond the time permitted by the Payment of Wages Act even on the ground that the amount claimed by the workman is not due, or if the amount claimed by the workman is not paid on the ground that deductions are to be made by the employer, the employee can seek his remedy by an application under Section 15(1) of the Payment of Wages Act. In cases where Section 15 of the Payment of Wages Act may not provide adequate remedy, the remedy can be sought either under Section 33C of the Act or by raising an industrial dispute under the Act and having decided under the various provisions of the Act. In these circumstances, we are unable to accept the submission made by Mr. Sen on behalf of the appellant that Section 20(1) of the Minimum Wages Act should be interpreted as intended to cover all claims in respect of minimum wages or overtime payment or payment for days of rest even though there may be no dispute as to the rates at which those payments are to be claimed. It is true that, under Section 20(3) power is given to the Authority dealing with an application under Section 20(1) to direct payment of the actual amount found due; but this, it appears to us, is only an incidental power granted to that Authority, so that the directions made by the Authority under Section 20(1) may be effectively carried out and there may not be unnecessary multiplicity of proceedings. The power to make orders for payment of actual amount due to an employee under Section 20(3) cannot, therefore, be interpreted as indicating that the jurisdiction to the Authority under Section 20(1) has been given for the purpose of enforcement of payment of amounts and not for the purpose of ensuring compliance by the employer with the various rates fixed under that Act. This interpretation, in our opinion, also harmonises the provisions of the Minimum Wages Act with the provisions of the Payment of Wages Act which was already in existence when the Minimum Wages Act was passed. In the present appeals therefore, we have to see whether the claims which were made by the workmen in the various applications under Section 33C(2) of the Act were of such a nature that they could have been brought before the Authority under Section 20(1) of the Minimum Wages Act inasmuch as they raised dispute relating to the rates for payment of overtime and for work done on weekly off days.'
(Emphasis is mine)
5. Reliance has also been placed on a decision of the Supreme Court in the case of Manganese Ore (India) Ltd. v. Chandi Lal Saha AIR 1991 SC 520 : 1999-III-LLJ (Suppl)-1537 to contend that when there is no dispute regarding the rates of wages remedy under Section 20 of the Act is not available to the workmen. My pointed attention has been drawn to the judgment, which reads as follows:
'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
Section 20 of the Act was not available to the workmen and the Labour Court rightly exercised its jurisdiction under Section 33C(2) of the Industrial Disputes Act, 1947.'
6. Yet another decision on which Mr. Verma has placed reliance is a Division Bench judgment of the Orissa High Court in the case of Sri Binod Kumar Agarwal v. Regional Labour Commissioner (Central) 1992 LIC 1303 and my attention has been drawn to the following passage from paragraph 5 of the judgment, which reads as follows:
'Even if the said amount had not been paid, as held in the aforementioned decided cases, a proceeding under the Act will not lie since the purpose for the enactment is to fix the minimum rate of wages in certain employments for enforcement of the wage at the prescribed rate appropriate proceeding is to be initiated under the Payment of Wages Act or under Section 33C(2) of the Industrial Disputes Act, 1947. There is therefore little scope for doubt that in the facts and circumstances of the present case the entire proceeding against the petitioner was misconceived. In that view of the matter the said authority was not competent to pass any order under Section 20(3) of the Act which as observed by the Apex Court in the case of Town Municipal Council, Athani AIR 1969 SC 1335 (supra), is only an incidental power granted to the authority so that directions made by the authority under Sub-section (1) may be effectively carried and there may not be unnecessary multiplicity of proceedings.'
7. Reliance has also been placed on a decision of this Court in the case of Binod Kumar v. Union of India and Ors. 2000 (2) PLJR 313 and my attention has been drawn to the judgment, which reads as follows:
'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 power 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.'
8. Mr. R.P. Bhagat, Government Pleader No. IV appearing on behalf of respondents 1 to 3 however contends that jurisdiction of the Commissioner under the Act is not confined to rate of wages in dispute but can also extend to the quantum of wages paid. In support of the submission learned counsel has placed reliance on a Division Bench judgment of the Andhra Pradesh High Court in the case of S. Subbarao v. Authority under the Minimum Wages Act, Guntur 1987 Lab IC 327 and my attention has been drawn to the following passage from the judgment, which reads as follows:
'The context in which the expression 'payment' is used in Sub-section (1) indicates clearly that it means effective payment, not a show of payment; not to give it with one hand and to take it back by the other. The allegation is that the employer was resorting to an ingenious device of paying less than the minimum wages by showing less number of days in the muster rolls than the number of days on which the workmen actually worked. We have absolutely no doubt in our mind that the authority appointed under Section 20(1) of the Act has the power to entertain such claims presented by a workman, a Union or an inspector as provided in Sub-section (2) of that Section and direct a judgement of the balance amount if any, due to the workman, as determined by that authority under Sub-section (3) of that Section.
9. Having given my most anxious consideration to the rival submission, I am not inclined to accept the submission of Mr. Verma. Section 20 of the Act as amended by Bihar Act 5 of 1983 and Bihar Act 9 of 1988 reads as follows:
'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 function 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 Judge of a civil Court or as a stipendiary Magistrate to be the Authority to hear and decide for any specified area or 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 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.'
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(3) When any application under Sub-section(2) is entertained, the Authority shall hear the applicant and the employer, or give an opportunity of being heard, and after such further enquiry, if any, it may consider necessary, without prejudice to any other penalty to which the employer may be liable under the Act, direct:
(i) in the case of 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 of the amount due is paid by the employer to the employee before the disposal of the application.'
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10. From a plain reading of Section 20(1) of the Act, the Authority under the Act is to hear and decide claims arising out of payment of less than the minimum rates of wages. Further under Section 20(3) of the Act in the case of claim arising out of payment of less than the minimum rate of wages the Authority under the Act can direct payment to the employee the minimum wages payable to him exceeding the amount actually paid together with the compensation. In my opinion when the Authority under the Act has been given power to direct payment of amount less than the minimum rates of wages, I am of the considered opinion that even in a case in which there is no dispute in regard to the rates of wages, the Authority under the Act shall have power to direct for payment.
11. I am inclined to take this view further for the reason that when a claim is laid under I Section 20(2) of the Act, it may not be known to the employee as to whether the employer shall raise the dispute regarding minimum rates of Wages. In that contingency the jurisdiction of the Authority under the Act shall be governed by the plea taken by the employer. Not only this there may be a case in which there is dispute in regard to the minimum rates of wages as also the payment to the employees the minimum wages at the minimum rates. In case the submission of Mr. Verma is accepted then in that case the Authority under the Act after adjudicating on the question of minimum rates of wages will fold his hands and relegate the employee to seek relief of payment of minimum wages to another authority. It is well settled that the Court while interpreting the provision of a statute shall avoid such situation which shall cause hardship to the employee. The object of the Act is to provide for minimum rates of wages to employees in certain employments. Thus the Act in question is a social legislation and as such I am not prepared to accept that the Authority under the Act shall have jurisdiction only in regard to the determination of minimum rates of wages.
12. Now referring to the decision of the Supreme Court in the case of Town Municipal Council (supra) and Manganese Ore (India) Ltd. (supra), I am of the opinion that the same are clearly distinguishable. In both the cases for the relief of claiming minimum wages, jurisdiction under Section 33C(2) of the Industrial Disputes Act was invoked and when the matter travelled to the Supreme Court, it was contended that remedy under Section 20 of the Minimum Wages Act being available, jurisdiction under Section 33C(2) of the Industrial Disputes Act ought not to have been invoked. In that context the Supreme Court had held that the jurisdiction under Section 33C(2) was rightly invoked. Not only this in the case of Town Municipal Council (supra) the Supreme Court had observed that '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'. Thus the two decisions, referred to above, do not as a proposition of law bar the jurisdiction of the Authority under the Act to direct payment to the employee the minimum wages not paid to him. For the same reason the decision of the Division Bench of the Orissa High Court in the case of Binod Kumar Agrawal (supra) is also distinguishable.
13. Mr. Verma is right when he contends that the judgment of this Court in the case of Binod Kumar (supra) supports his contention. The decision in Binod Kumar (supra) was rendered relying on the decision of the Supreme Court in the case of Town Municipal Council (supra) and Manganese Ore (India) Ltd. (supra). Unfortunately the decision of this Court in the case of Bahadur Singh v. Presiding Officer, Labour Court, Muzaffarpur, 1980 Pat LJR 264 which is exactly on the point was not brought to the notice of this Court while deciding the said case. In case of Bahadur Singh (supra) the contention raised was the same which would be evident from the judgment. In fact in the said case also the decision of the Supreme Court in the case of Town Municipal Council (supra) was also relied on to drive home the point. Said paragraph reads as follows:
'The main contention raised by Mr. Ranen Roy, learned counsel appearing on behalf of the petitioners is that in the instant cases there being no dispute as to rates of minimum wages, etc., the Authority under the Act has no jurisdiction to entertain the claim. Such a claim was entertainable by the Authority under the Payment of Wages Act, in which case the aggrieved party has a right of appeal under Section 17 of the Payment of Wages Act, while no such right exists under the Act and the order passed is final. In support of his submission, learned counsel has placed strong reliance on a decision of the Supreme Court in the case of the Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli AIR 1969 SC 1335 : 1969 (1) SCC 873 : 1969-II-LLJ-651.'
14. Aforesaid submission has been answered by the Division Bench in the following manner:
'In all the five writ applications with which we are concerned the employees, in paragraph No. 3 of their applications under Section 20(2) of the Act have specifically asserted that they were being paid at rates lesser than those prescribed under the Act and the landowners have refused to pay at those rates. The facts of the instant cases, therefore, are completely different from those in the case of Athani Municipal Council (supra) the application of all the employees (Respondent No. 3 in the writ applications) were therefore, maintainable under Section 20(1) of the Act and the observations relied upon by Mr. Roy in the aforesaid Supreme Court case are not applicable to the facts of the instant cases. The single Judge decision in the case of M.L. Gupta v. City Magistrate, Lucknow AIR 1960 All 541 relied upon by Mr. Roy, is also distinguishable on facts, inasmuch as the admitted position in that case was that there was no dispute arising out of payment of less wages than the minimum rate of wages.'
15. Thus the decision of this Court in the case of Binod Kumar Agrawal (supra) having been rendered without considering the decision of the Division Bench in Bahadur Singh (supra), same is not a binding precedent.
16. As observed earlier there is no inherent lack of jurisdiction in the Authority. Petitioner did not raise any objection in regard to the jurisdiction before it and it is only after decision had gone adverse to him, he has become wiser and challenging the jurisdiction of the Authority, it shall be highly inequitable to entertain this submission at this stage.
17. In the result, I do not find any merit in the application and it is dismissed accordingly.