Karnataka High Court
The Mudigere Taluk Agricultural ... vs The Labour Officer & on 5 June, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 05TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION NO.33142 OF 2011 (L-MW)
BETWEEN :
THE MUDIGERE TALUK AGRICULTURAL PRODUCE
CO-OPERATIVE MARKETING SOCIETY LTD.,
MUDIGERE - 577132,
CHIKMAGALUR DISTRICT,
REP. BY ITS MANAGING DIRECTOR ...PETITIONER
(BY SRI.KARTHIKEYAN B.S.IYER, ADV., FOR SATYANARAYAN
P. HOGADE)
AND:
1. THE LABOUR OFFICER &
MINIMUM WAGES AUTHORITY,
SUB-DIVISION - 2,
CHIKMAGALUR DISTRICT,
CHIKMAGALUR.
2. SRI. G. SURESH
R/AT C/O RENUKAMMA
MEGAL PET, K.M.ROAD,
MUDIGERE,
CHIKAMAGALUR DISTRICT.
... RESPONDENTS
(BY SRI.JAGADEESH MUNDARGI, AGA FOR R1)
(BY SRI. M.D.KUMAR, ADV., FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DTD.9.9.2009 VIDE ANNEXURE-B AND
ENDORSMENT DATED. 8.12.10 VIDE ANNEX-C PASSED BY
THE R1.
2
WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner has called in question order passed by the Labour Officer under the Minimum Wages Act in proceedings No.KVK-7/09 dated 09.09.2009 Annexure - 'B' whereunder the 1st respondent authority has determined the wages payable by petitioner to 2nd respondent in a sum of Rs.2,26,471.20 and levied penalty of Rs.2,26,471.20 in all Rs.4,52,942.40.
2. Heard Sri. Karthikeyan B S, learned counsel appearing for the petitioner and Sri. Jagadeesh Mundargi, learned Additional Government Advocate for respondent No.1 and Sri. M.D.Kumar, learned counsel appearing for respondent No.2. Learned Government Advocate has made available the records of the 1st respondent authority and same is also perused.
3. 2nd respondent filed an application before 1 st respondent authority claiming payment of wages from the petitioner herein inter alia contending that he had worked in the petitioner establishment from 01.04.1998 to 11.08.2008 3 for 8 hours a day and on account of non payment of minimum wages he sought for appropriate relief being granted by the 1 st respondent authority. Though notice was served on the petitioner, none appeared and they were placed exparte. Petitioner tendered his oral evidence and two documents Exs.P1 and P2 was marked and on appreciation of oral and documentary evidence and evaluation of the pleadings 1 st respondent authority allowed the claim petition filed by 2nd respondent and directed the payment of difference of minimum wages of Rs.2,26,471.20 alongwith penalty of Rs.2,26,471.20 in all Rs.4,52,942.40.
4. Petitioner thereafter filed an application seeking the order to be kept in abeyance and sought for an opportunity being granted to the petitioner to contest the matter on merits. Said application came to be rejected and an endorsement came to be issued to the petitioner on 08.12.2010 vide Annexure 'C'.
5. It is the contention of Sri. Karthikeyan that petitioner is a Co-operative Society registered under Karnataka Co-operative Societies Act and provisions of Minimum Wages Act is inapplicable and petitioner has to 4 raise a dispute under Section 70 of the Karnataka Co-operative Societies Act. He has also contended that 1st respondent authority has committed a serious error in condoning the delay that there was no sufficient cause for delay being condoned. He has further contended that impugned order is a exparte order and petitioner had no opportunity to place materials to demonstrate that 2nd respondent had never worked in the petitioner Society and he was not an employee of the petitioner Society. He submits that 1st respondent authority committed a serious error in arriving at a conclusion that 2 nd respondent is an employee of the petitioner Society based on a receipt Ex.P1 and it does not go to show that petitioner is an employee of petitioner Society at all. On all these grounds he seeks for setting-aside the impugned order.
6. Learned Additional Government Advocate would support the order passed by the 1st respondent authority and contends that in the absence of averments made in the claim petition being not traversed it amounts to an admission as such he contends that impugned order does not suffer from any infirmity. Sri M.D.Kumar, learned counsel appearing for the contesting 5 2nd respondent would also support the impugned order and contends that on appreciation of entire evidence placed before the 1st respondent authority it has been rightly held that 2nd respondent is an employee of petitioner Society and as such he seeks for dismissal of the writ petition.
7. Having heard the learned advocates appearing for the parties and on perusal of the impugned order, endorsement issued to the petitioner as also the records made available by the learned Government Advocate it would clearly go to show that impugned order herein is an exparte order. The explanation offered by the petitioner Society for not appearing before the 1st respondent authority in the proceedings initiated by 2nd respondent under the Minimum Wages Act does not inspire any confidence in the Court for accepting it. Even otherwise when the impugned order is perused it would go to show the dehors counter statement not being filed an issue came to be raised by the 1 st respondent authority namely, "as to whether the claimant that is 2nd respondent herein is an employee of the petitioner Society?"
and came to be answered in the affirmative by relying upon Ex.P1 which is a receipt bearing No.11442 dated 6 12.05.2006 issued in favour of one Chowdhari Khazi for a sum of Rs.5,000/- which contains the signature of the person who has remitted the amount which is shown as G.Suresh to hold it is the signature of 2nd respondent and in the capacity of an employee of petitioner society he has received the said amount. On the basis of the signature found in the said receipt Ex.P1 claimant contended that he is an employee of the petitioner Co-operative Society. This conclusion of 1 st respondent is too far fetched inasmuch as any person who remits the amount to the Co-operative Society and whose signature is found on the receipt cannot be construed as an employee particularly when the said receipt Ex.P1 itself reflects that amount has been received by the Managing Director of the Society who has affixed his signature. In that view of the matter the receipt Ex.P1 alone was not sufficient to hold or arrive at a conclusion that 2nd respondent herein is an employee of petitioner Society. Except the said receipt and the self serving testimony of 2 nd respondent in his oral testimony there was no other material available before the 1st respondent to arrive at a conclusion that 2nd respondent was an employee of petitioner Society. Hence, on this ground alone impugned order ca nnot be sanctioned. 7 However, matter requires to be remitted back to 1 st respondent for adjudication afresh and reserving liberty to 2 nd respondent to prove such other material to establish the fact that he was working in petitioner Co-operative Society. Since petitioner had not filed statement of objection before 1 st respondent petitioner is also permitted to file statement of objections and 1 st respondent shall receive the same if filed since matter is remitted back.
8. One another factor which is canvassed is this Court in the case of Rangappa and others Vs. The Management of Co-operative Spinning Mills Limited, Yermarus, Raichur reported in 2006(4) KLJ 538 has held that the remedy available to an employee of a Co-operative Society is to raise a dispute under Section 70 of the Karnataka Co-operative Societies Act and provision of Minimum Wages Act is not attracted. It is also brought to the notice of this Court by learned Government Advocate that the Full Bench order of this Court in the case of N.S.Srinivasamurthy and others Vs. The Registrar of Co-operative Societies in Karnataka and others reported in ILR 2003 KAR 4858 has held that provisions of Minimum 8 Wages Act and the Gratuity Act are applicable to an employee working in a Co-operative Society. In that view of the matter the contention of the learned counsel for the petitioner that 2 nd respondent had to raise a dispute under the Karnataka Co- operative Societies Act namely under Section 70 cannot be accepted.
9. Since this Court is of the considered view that the conclusion arrived at by the 1 st respondent to hold the 2 nd respondent as an employee of the petitioner's Co-operative Society is unsustainable for the reason aforesaid impugned order is liable to be quashed. In view of discussion made herein above, following order is passed:
i. Writ petition is hereby allowed.
ii. The order passed by the 1st
respondent in KVK/7/2009 dated
09.09.2009 Annexure 'B' is hereby
quashed.
iii. The matter is remitted back to the
1st respondent for adjudication afresh and affording the petitioner an 9 opportunity to file statement of objections and lead evidence in the matter.
iv. The 1st respondent shall adjudicate the matter afresh and dispose of the matter being uninfluenced by any observations made in its order dated 09.09.2009 within a period of three months from the date of appearance of the parties.
v. Since the parties are represented before this Court they shall appear before the 1st respondent authority on 28.06.2012 without awaiting for any further notice from the 1st respondent.
vi. Petitioner shall pay a cost of Rs.2,000/- to the 2nd respondent since on account of non-appearance of the petitioner before the 1st respondent authority, 2nd respondent has been 10 perforced to appear before this Court and contest the mater.
vii. The amount in deposit made by the petitioner is directed to be refunded to the petitioner inclusive of interest earned if any on proper identification.
viii. Ordered accordingly.
Sd/-
JUDGE
GH