Writ Appeal Nos. 629 & 631 of 2022, High Court of Kerala

_Writ Appeal Nos.629 & 631 of 2022_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 21[ST] DAY OF JUNE 2022/31ST JYAISHTA, 1944** **W.A. NO.629 OF 2022** **(AGAINST THE JUDGMENT DATED 25.01.2022** **IN WP(C) 4823/2020 OF HIGH COURT OF KERALA)** ## **APPELLANT/PETITIONER:** SRI.T.S.RAMACHANDRAN, AGED 40 YEARS, M/S.KALYAN SAREES, KOLOTHUMPADAM, THRISSUR-680 022. BY ADVS. E.K.NANDAKUMAR (SR.) M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM ## **RESPONDENTS/RESPONDENTS:** 1 THE ASSISTANT LABOUR OFFICER, THIRD CIRCLE, THRISSUR-680 003, KERALA. 2 THE DEPUTY LABOUR COMMISSIONER, THRISSUR-680 020, KERALA, (THE AUTHORITY UNDER THE MINIMUM WAGES ACT, 1948) BY ADV SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2022, ALONG WITH WA.631/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _Writ Appeal Nos.629 & 631 of 2022_ 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 21[ST] DAY OF JUNE 2022/31ST JYAISHTA, 1944** **W.A.NO.631 OF 2022** **(AGAINST THE JUDGMENT DATED 25.01.2022** **IN WP(C)10835/2021 OF HIGH COURT OF KERALA)** ## **APPELLANT/PETITIONER IN W.P.(C):** M/S.KALYAN SILKS THRISSUR PVT. LTD., 23/104D-23/1044, ROTARY JUNCTION, THODUPUZHA- 685 584, REPRESENTED BY ITS CHIEF FINANCIAL OFFICER, HARIKRISHNAN K.S. BY ADVS. E.K.NANDAKUMAR (SR.) M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJAKANNAN ## **RESPONDENTS/RESPONDENTS:** 1 ASSISTANT LABOUR OFFICER, MINI CIVIL STATION, THODUPUZHA P.O, IDUKKI 685 584. 2 THE DEPUTY LABOUR COMMISSIONER, MANJUNATH BUILDING, ETTUMANOOR, KOTTAYAM 686 002 (AUTHORITY UNDER THE MINIMUM WAGES ACT). BY ADVS. ASOK M.CHERIAN(ADDITIONAL ADVOCATE GENERAL)( THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2022, ALONG WITH WA.629/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _Writ Appeal Nos.629 & 631 of 2022_ 3 ## **JUDGMENT** _(Dated: 21[st] June, 2022)_ ## Basant Balaji, J These Writ Appeals are filed against the judgment of the learned single judge in W.P.(C)Nos.4823 of 2020 and 10835 of 2021 respectively, whereby the writ petitions were dismissed. 2. The appellants filed the writ petition to call for records leading to Ext.P5 order and quash the same by a writ of certiorari and for a further declaration that the 2[nd] respondent has no jurisdiction to decide the Minimum Wages Applications No.44 of 2017 and 45 of 2019. 3. Brief facts necessary for the disposal of these appeals are as follows: The appellant is the managing partner of a partnership firm engaged in the textile business and owns establishments across the state and outside. The State Government has fixed the _Writ Appeal Nos.629 & 631 of 2022_ 4 minimum rate of wages for employees working in shops and commercial establishments in the State. The 1[st] respondent an appointed Inspector under Section 19 of the Minimum Wages Act, 1948 (for short the Act), inspected the establishment of the appellant and observed that the wages paid by the appellant to the employees are less than the minimum rate of wages fixed by the Government. The 1[st] respondent, therefore, filed a petition before the 2[nd] respondent, who is the authority under the Minimum Wages Act, 1948 by way of a claim under Section 20(2) of the said Act. In the said application, it is stated that the wages paid by the appellant are less than the minimum rate of wages notified by the Government as Rs.1,01,952/- for the period from December 2016 to January 2017. The 1[st] respondent prayed for a direction to the appellant to pay the difference in minimum wages and the wages actually paid. Though a show-cause notice dated 20.04.2017 was issued by the 1[st] respondent, the appellant did not give a satisfactory reply and hence _Writ Appeal Nos.629 & 631 of 2022_ 5 the 2[nd] respondent registered the complaint as M.W.A.No.44 of 2017. 4. On receipt of the notice from the 2[nd] respondent, the appellant entered appearance and filed a counter statement. The main contention raised in the counter statement was that the complaint under Section 20(1) of the Act is not maintainable for want of jurisdiction, moreover, if there is no dispute as to the rates between the employer and the employee and the only question is whether a particular payment at the agreed rate is due or not Section 20(1) would not be attracted. Any claim for minimum wages can be filed only under the Payment of Wages Act or under the Industrial Disputes Act. 5. A separate application to hear the maintainability of the petition as a preliminary issue was also filed as I.A.No.121 of 2019 in M.W.A.No.44 of 2017. The 2[nd] respondent after hearing both the parties dismissed I.A.No.121 of 2019 holding that the petition filed by the 1[st] respondent is maintainable under _Writ Appeal Nos.629 & 631 of 2022_ 6 Section 20(1) of the Act. The said order was challenged by the appellant in the writ petition. 6. The learned single judge taking note of the authoritative pronouncement of the Appellate Court and the judgment of the Division Bench of Jharkhand High Court held that a complaint filed by an Inspector appointed under the Act, alleging payment of wages to an employee at a rate lesser than the minimum rate of wages fixed is maintainable under Section 20(1) of the Act before the authority constituted under the Minimum Wages Act, 1948, accordingly the writ petition was dismissed. Hence the Writ Appeal. 7. Heard Sri.E.K.Nandakumar, learned Senior counsel for the appellant assisted by Sri.Jai Mohan, and Sri.Ashok M.Cherian, learned Additional Advocate General. 8. The main contention raised by the counsel for the appellant is that the findings/observations of the learned single judge are contrary to the judgment of the Hon'ble Supreme Court in _**Town Municipal Council,**_ _Writ Appeal Nos.629 & 631 of 2022_ 7 _**Athani v. Presiding Officer, Labour Courts, Hubli and Others, etc. (1969 (1) SCC 873)**_ and also the judgment of _**Manganese Ore (India) Ltd., v. Chandi Lal Sadu and Others (JT 1991 (1) S.C. 47)**_ . The learned senior counsel submitted that where there was no dispute regarding the rate of wages to be paid under the Minimum Wages Act, the remedy under Section 20 of the Act was not available and the remedy if any is under Section 33 C(2) of the Industrial Disputes Act or Section 15 of the Payment of Wages Act. The counsel mainly relied on the judgment of the Apex Court in _**Town Municipal Council Athani's**_ case (supra), the learned single judge has thoroughly gone through the judgment of the Apex Court in _**Town Municipal Council Athani's**_ Case (supra) and specifically noted the observation of the Apex Court in paragraph 6, wherein it is stated that _“the purpose of Section 20(1) seems to ensure that the rates prescribed under the Minimum Wages Act are complied with by the employer in making payments and, if any attempt is made to make payments_ _Writ Appeal Nos.629 & 631 of 2022_ 8 _at lower rates, the workmen are given the right to invoke the aid of the authority appointed under Section 20(1)_ . Relying on this observation, the learned single judge held that, the decision does not lay down a proposition that in cases where there is the payment of wages lesser than the minimum rate of wages fixed, the provision of Section 20 of the Act cannot have any application. 9. Section 20(1) of the Minimum Wages Act clearly stipulates that 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 Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any other officers 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 the payment of less than the minimum rate of wages. Power _Writ Appeal Nos.629 & 631 of 2022_ 9 is given to the authority to decide all claims arising from the payment of less than the minimum rate of wages. 10. Paragraph 4 of the statements of objects and reasons of the Minimum Wages Act, 1948 reads as follows: _“In cases where an employer pays less than the minimum wages fixed by Provincial Governments, a summary procedure has been provided for recovery of the balance with the penalty and for subsequent prosecution of the offending party”._ The Act was amended further by Act 30 of 1957, in which a few paragraphs have been added to the statement of objects and reasons, wherein, paragraph 3(b) states that: _“to enable a claims authority to entertain claims not only in respect of payment of wages which are less than the minimum wages but also in respect of payment of remuneration for days of rest and payment of overtime wages (Section 20)”._ 11. Juxtaposing the said objects and reasons with Section 20 of the Act, wherein it is stated that all _Writ Appeal Nos.629 & 631 of 2022_ 10 claims arising out of the payment of less than the minimum rates of wages can be decided by the authority, it is crystal clear that the Act has given powers for enforcement of the duties or obligations viz. non-payment of the minimum wages as prescribed in the notification by the Government. Moreover, Form No.VI appended to the Minimum Wages (Central) Rules, 1950 in the form of an application by an employee under Section 20(2). ## 12. Paragraph 3(a) of Form VI reads as follows: _“the applicant has been paid wages at less than the minimum rate of wages fixed for his category of employment under the Act by Rs..... per day for the period from …... to .....;_ _(b) The applicant has not been paid wages at Rs....... per day for the weekly days of rest from …...... to …...;_ _(c) The appellant has not been paid wages at the overtime rate for the period from......... to …... ;_ _(4) The applicant estimates the value of relief sought by him on each account as under:_ _(a) Rs....._ _(b) Rs..... (c) Rs..... Total Rs...._ _(5) The applicant, therefore, prays that a direction may be issued under Section 20(3) of the Act for-_ _(a) Payment of the difference between the wages payable under the Minimum Wages Act and the wages actually paid; (b)...._ _Writ Appeal Nos.629 & 631 of 2022_ 11 **==> picture [61 x 26] intentionally omitted <==** Thus, it can be seen that Ext.P1 complaint filed by the Inspector prayed for a direction to be issued under Section 20(3) of the Act for the payment of the difference between the wages payable under the Minimum Wages Act and the wages actually paid along with compensation to the tune of 10 times of the above amount is perfectly in consonance with Form No.VI appended to the Rules. 13. The issue raised in this appeal has already been considered by a Division Bench of the High Court of Jharkhand in the _**State of Jharkhand through Department of Labour Employment and Training, Ranchi and Others v. Nirmal Singh (2005 II LLJ 345)**_ , wherein the Division Bench relying on the judgment of the _**Town**_ _**Municipal Council Athani's**_ case (supra) as well as the _**Manganese Ore (India) Ltd.,**_ case (supra), distinguished the same and held that: 17. _In the Light of the proposition thus enunciated by the Supreme Court, we are of the view_ _Writ Appeal Nos.629 & 631 of 2022_ 12 _that the claim that minimum wages, though fixed, had not been paid with a prayer for direction to the employer to pay the difference would not come within the purview of the authority under Section 15 of the Payment of Wages Act. Of course, the above decision of the Supreme Court is also an authority for the position that the authority under that Act could have jurisdiction to consider the question incidental to the matters provided for therein. It cannot be said that dispute present in this case is a matter which is incidental to claims arising out of deductions made in payment of wages or delay in making payment of wages. Here, the wages have been paid; there is no complaint of deduction and there is no complaint of any delay in payment and the complaint is only that though minimum wages under the Minimum Wages Act have been fixed, the same was not paid by the employer._ 18. _Section 33-C of the Industrial Disputes Act, 1947, the other provision relied on by counsel for the writ petitioner, is a provision conferring jurisdiction to deal with a dispute relating to a claim for recovery of money due to a workman from an employer under a settlement or an award, or under the provisions of Chapter-VA and Chapter-VB of the Industrial Disputes Act, Chapter-VA deals with lay-off and retrenchment and Chapter-VB makes special provisions relating to law of retrenchment and closure in certain establishments. Prima facie, it cannot be said that the claim herein comes under the purview of Chapter-VA or VB of the Industrial_ _Writ Appeal Nos.629 & 631 of 2022_ 13 _Disputes Act. This was not a claim based on settlement or award. Even granting that the claim could have been agitated under Section 33-C of the Industrial Disputes Act, so long as there is no exclusion of jurisdiction of the authority under the Minimum Wages Act from entertaining a claim which might also come within the purview of the Industrial Disputes Act or Payment of Wages Act, it cannot be held that the authority under the Minimum Wages Act has no jurisdiction to entertain the claim, if going by the relevant provision, Section 20 of the Minimum Wages Act, the Court finds that the claim is entertainable by the authority under Section 20 of the Minimum Wages Act. We are, therefore, satisfied that the argument in that behalf by learned counsel for the writ petitioner deserves to be overruled.”_ The judgment in the _**State of Jharkhand**_ (supra) was challenged before the Supreme Court in Special Leave Petition (Civil) No.15063 of 2004, produced as Ext.R2(b). The Apex Court has dismissed the SLP. 14. Section 20(2) of the Minimum Wages Act authorises any employee himself or any legal practitioner or any official of a registered trade union authorised in writing to and on his behalf, or _Writ Appeal Nos.629 & 631 of 2022_ 14 any inspector or any person acting with the permission of the authority appointed under Sub Section (1) may apply such authority for a direction under Sub Section (3). 15. Sub Section (3) prescribes that, when an application is filed under Sub Section (2), the authority shall hear the applicant and the employer and after giving an opportunity of hearing and after such further enquiry, direct payment to the employee, the difference of amount actually paid and the minimum wages together with the payment of such compensation as the authority may think fit not exceeding ten times the amount of such excess. 16. Sub Section (5) further prescribes that any amount directed to be paid under the Section may be recovered, if the fine imposed by the authority as a Magistrate or if the authority is not a Magistrate, by any Magistrate to whom the authority makes application on this behalf, as if it were a fine imposed by the Magistrate. The above discussions make it clear that _Writ Appeal Nos.629 & 631 of 2022_ 15 the argument of the learned senior counsel that the Minimum Wages Act, 1948 was enacted to provide for fixing minimum rates of wages in certain employments and if the employer does not pay the employee the minimum wages, the employee has to make a grievance either invoking Section 33 C of the Industrial Disputes Act, 1947 or by approaching the authority under the Payment of Wages Act and the employee is not entitled to invoke the jurisdiction on the authority under Section 20 of the Act will not hold good. 17. Interpretation of beneficial legislation like the Minimum Wages Act, the Court interprets its meaning keeping in mind the language or the section and also objects sought to be achieved by the Act. The provision for enforcement of the obligation to pay minimum wages is enshrined in the Act is clear, then the full effect to Section 20 must be given. The language of Section 20 is plain and unambiguous, and it provides for compelling an employer to pay his _Writ Appeal Nos.629 & 631 of 2022_ 16 employee the minimum wage on a complaint by the employee or someone on his behalf including the Inspector. Adjudication is also provided strictly following the principles of Natural Justice. 18. Learned Senior counsel next argues that Section 15 of the Payment of Wages Act, is the provision to be invoked if there is non-payment of the minimum wages prescribed by the notification. Section 15 of the Payment of Wages Act deals with claims arising out of deductions from wages or delay in payment of wages and penalties for malicious or vexatious claims. The scheme of the Act is intended to regulate the payment of wages of certain classes of persons employed in industries and its object is to provide for a speedy and effective remedy for the employees in respect of their claims arising out of illegal deductions or unjustified delay in paying wages to them. The authority under the Payment of Wages Act can entertain all claims out of deduction of wages, or delay in payment of wages, including all _Writ Appeal Nos.629 & 631 of 2022_ 17 matters incidental to such a claim. In this case, the complaint is that the minimum wage is not paid and not a complaint of delayed payments or deductions of wages. 19. Another contention raised by the learned Senior counsel is that Section 33 C of the Industrial Disputes Act, 1947 is another remedy available to the employees and Section 20(2) of the Minimum Wages Act cannot be invoked is also not correct, because Section 33 C of the Industrial Disputes Act deals with the recovery of money due from an employer. It also deals with the recovery of any amounts due to any workmen, if it is not paid. It is true that Section 33 C of the Industrial Disputes Act also gives a remedy to the employees to file claims for recovery of any money or benefit which is capable of being computed in terms of money due under the Minimum Wages Act, but there is no exclusion of jurisdiction of the authority under the Minimum Wages Act, from entertaining a claim which might also _Writ Appeal Nos.629 & 631 of 2022_ 18 be available under Section 33 C of the Industrial Disputes Act. It cannot be held that the authority under the Minimum Wages Act has no jurisdiction or to entertain the claim. The learned single judge has taken note of the dictum laid down by the Apex Court in _**Town Municipal Corporation's**_ case (supra) as well as _**Manganese Ore (India) Ltd's**_ case (supra) along with the decision of the _**State of Jharkhand's**_ case (supra) and held that an Inspector appointed under the Act is empowered to file a complaint under Section 20(1) of the Act before the authority constituted under the Minimum Wages Act. We do not find any grounds to interfere with the judgment of the learned single judge and accordingly the Writ Appeal is dismissed. _Sd/-_ S.V.BHATTI, JUDGE _Sd/-_ BASANT BALAJI, JUDGE ss