Full Judgment
Vikramaditya Prasad, J.
1. Heard both the sides.
2. All these writs have been heard together and are being disposed of by this common order as in all these writs common question of law is involved.
3. In all these writs the order of the Inspecting authority passed under Section 20(2) of the Minimum Wages Act, 1948 has been challenged.
4. The petitioner is the Principal of the School in question (It is reported that now he has been transferred to some other school), in which a hall was being constructed and the labourers were working in that. On the report of the Labour Enforcement Officer a proceeding under Section 20(2) of the Minimum Wages Act was initiated and the following impugned orders (Annexure-3) in all the writs, were passed.
'Abhilekh Aaj Prastut Kiya, Niyojak Ki Ore Se Hajari ewm Avaden Dakhil Ki Gayi. Bad. Sankhya 7/2001 Men Dinank 13-7-2001 Ko Parit Aadesh Ke Anurup Yahan Bhi Bakaya Rashi + Ranch Guna Dand ke Pas Niyojak 23-7-2001 Ko Majdur Ko Bhugtan Kare.
5. The case of the petitioner is that the hall was being constructed by the School and in that construction the persons working were not the labourers rather they had donated their labour in order to help the school, that is, those persons were not the laboursers but were guardins of some students and doing 'Saramdan', further case of the petitioner is that in the impugned orders, there is nothing to show that the authority while passing the impugned orders has applied its mind and passed the reasoned order. More so, the authority had not examined any witness. The order dated 13-7-2001 annexed to Annexure-3 his got certain relevance. On perusal of the same, it appears that the petitioner had appeared in the proceeding and had admitted that he was ready to pay the wage but not in the form of wage rather in the form of 'Paritoshik'. The authority had considered this aspect of the matter whether or not honorarium was permissible under the Minimum Wages Act and came to a finding that payment of such honorarium is not in accordance with law and, therefore, he rejected the prayer of the petitioner. So this aspect was considered by the authority and he passed a reasoned order on that point.
6. So far as the second aspect i.e. witnesses were not examined is concerned, Sub-section (3) of Section 20 of the Minimum Wages Act is relevant, which reads as follows :
'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.'
7. From the aforesaid provision it is clear that while disposing such matter the authority has only duty to hear the applicant as well as the employer and in his discretion he may make further inquiry.
8. Though there is Rule 29 of the Minimum Wages (Central) Rules, 1950, which provides for examination of documents and witnesses but there is no such mandate for examining the witness either in the Act and in the Bihar Rules under this Act. Thus, if the authority had examined documents, there is no claim that the petitioner had produced the witnesses, and heard the Principal of the School, and then the requirement of the aforesaid provision is complete. Therefore, it cannot be said that the order is in violation of the certain Rules and provisions of the Act.
9. Now second question is whether the Principal was the employer or not? The employer has been defined in Section 2(e) of the Act, which reads as follows :
'2(e) 'Employee' 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'.
10. Scheduled employment in item 7 appended to the Minimum Wages Act reads as follows:
'7. Employment on the construction or maintenance of roads or any building operations'.
Undisputedly, the construction was there, which also means a building operation. Therefore, this comes within the definition of Scheduled Employment. Then there was a notification bearing No. Xl/MW-4032/94 L.E. &T;, 792 dated 21-12-1995 of the Bihar Government with respect to payment of minimum wage to such labourers of this scheduled employment.
11. There is no provision in the Act or in the Rules that any 'Saramdan' should not be treated as labour.
12. The grievance of the petitioner is regarding penalty, which is 5 times of the wages. This appears to be in excess as this was the case of school operation in the Rural Area, therefore, the penalty is reduced to 3 times from 5 times of the wages.
13. Therefore, I do not find any illegality in the impugned orders. Consequently, I do not find any merit in these four writs, which are accordingly, dismissed with the aforesaid modification in penalty, at the stage of admission itself.