Madras High Court
Elisamma vs The Corporation Of Madras on 11 May, 2011
Author: M.Venugopal
Bench: Elipe Dharma Rao, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11.05 .2011
Coram
THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE Mr. JUSTICE M.VENUGOPAL
W.A.No.3559 of 2002
1.Elisamma
2.Ramaiah
3.Narasaiah
4.Chinnammal
5.Guruvaiah
6.Erukkalamma
7.Peddamariamma
8.Marathamma
9.Kullakondamma
10.Kottaiah .. Appellants
vs.
1.The Corporation of Madras,
rep. By its Commissioner,
Rippon Buildings,
Chennai 600 003.
2.The Deputy Commissioner of Labour-I
Authority notified under the
Payment of Wages Act 1936
Teynampet, Chennai .. Respondents
PRAYER: Appeal filed under Clause 15 of the Letters Patent against the order passed by the learned single Judge in W.P.No.5934 of 1994 dated 28.03.2002 after the Judgment was dictated in the open Court it was not signed and the matter was posted on 5.7.2002 for being spoken to and the Court passed the order on 5.7.2002.
For Appellants : Mr.K.Shanmugakani
For RR 1 : Mr.V.Bharathidasan
For RR 2 : Mr.V.Viswanathan, A.G.P.
JUDGMENT
M.VENUGOPAL,J.
The Appellants/Petitioners/Workers have filed the present Writ Appeal as against the order dated 28.3.2002 in W.P.No.5934 of 1994 passed by the Learned Single Judge and the subsequent order dated 5.7.2002 passed under the caption 'Being Spoken to'.
2.According to the Appellants/Workers, the Appellants and 4 others have projected an application as per Section 15 of the Payment of Wages Act, 1936 before the Deputy Commissioner of Labour-I/ 2nd Respondent [Authority notified under the Act] seeking a direction as regards the payment of wages mentioned in Annexure A to F attached to the petition.
3.According to the Appellants, earlier they have been employed by S.K.P.D. Charities, the owner of the Kothawalchavadi market for the purpose of cleaning the said market. The said work has been entrusted to the Petitioners by the Corporation of Madras as per Section 197 of the Madras City Municipal Corporation Act, 1919. The Appellants have been absorbed by the 1st Respondent/Corporation of Madras and they have been in direct employment of the 1st Respondent/Corporation of Madras from the year 1974.
4.The Appellants have to take the garbages in Baskets with the help of an iron plate and load them in a lorry and other vehicles intended for the said purpose. The nature of work involves continues physical work without any break. They have not been given any holiday and further they have been required to work on National holidays. The Corporation Sub-Division No.53-A has been headed by the Conservancy Inspector, who used to pay wages and acted as Supervisor, who is to exercise control over the said Appellants. Each of the Appellants have been paid a consolidated salary of Rs.100/- per month from 1.6.1987.
5.According to the Learned Counsel for the 1st Respondent /Corporation of Madras, the Appellants lay a claim that as per G.O.Ms.No.499, Labour and Employment Department, dated 6.6.1977, minimum wages have been determined for various workers who are employed in Corporation/local bodies. The said G.O. has come into effect from 1.6.1987. On the basis of the aforesaid Government order, the Appellants are eligible to draw minimum wages at the rate of 130/- per month, special allowance of Rs.100/- per month and dearness allowance of Rs.85/- per month and hence, they have filed the application before the appropriate authority.
6.The Learned Counsel for the 1st Respondent/Corporation submits that the Appellants are the employees of Sri Kannika Parameswari Devesthanam Charities, the owner of Kothawalchavadi market and as such not the employees of the 1st Respondent/ Corporation. Also, a plea has been taken that they are not full time workers and they are working as part time workers and also to continue to work on part time basis under their employer S.K.P.D. Charities, Madras.
7.The substance of the contention of the 1st Respondent/ Corporation is that the Appellants are not eligible to claim wages from the 1st Respondent/Corporation of Madras under the payment of Wages Act, 1936.
8.The Learned Counsel for the 1st Respondent urges before this Court that the appropriate authority as per his order dated 6.10.1993 has come to the consequent conclusion that the 1st Respondent/Corporation is the employer of the Appellants and that the S.K.P.D. Charities are not the employer of the Appellants and hence, directed the 1st Respondent to pay wages to them as claimed in Annexure A to F within a period of one month from the date of receipt of the impugned order etc.
9.It is the contention of the Learned Counsel for the 1st Respondent/Corporation of Madras that the 1st Respondent is not the employer of the Appellants. The appropriate authority has committed an error in holding that the Appellants are the employees of the 1st Respondent/Corporation in the absence of any proof. As such, the impugned order made in P.W.No.40 of 1992 dated 6.10.1993 passed by the Deputy Commissioner of Labour is liable to be set aside.
10.The Learned Counsel for the 1st Respondent/Corporation of Madras brings it to the notice of this Court that the Appellants have no orders in their favour appointing them as employees of the 1st Respondent/Corporation of Madras and therefore, they cannot claim that they are the employees of the 1st Respondent/Corporation of Madras.
11.The Learned Counsel for the 1st Respondent/Corporation of Madras takes a plea that there is no relationship of Master and Servant between the Appellants and the 1st Respondent in regard to the cleaning of Kothavalchavadi market. The Appellants have been paid from the funds collected from the S.K.P.D. Charities. At no point of time they have been paid directly from the funds of the 1st Respondent/Corporation of Madras.
12.The Learned Counsel for the 1st Respondent contends that there is no supervisory control over the Respondents by the officers of the 1st Respondent/Corporation of Madras and therefore, the finding of the 2nd Respondent/ Appropriate Authority as per Section 15 of the Payment of Wages Act that the Appellants are the employees of the 1st Respondent is an error apparent on the face of record which is liable to be set aside in the interest of justice.
13.The Learned Counsel for the 1st Respondent presses into service a legal plea that as per Section 15 of the Payment of Wages Act an application has to be presented within 12 months from the date on which the deduction from the wages was made or from the date on which the payment of wages was due as the case may be and the application filed before the 2nd Respondent by the Appel1ants and 4 others is an belated one and the failure of the 2nd Respondent to consider the issue of limitation amounts to failure to exercise the jurisdiction vested on him.
14.In response, the Learned Counsel for the Appellants submits that 27 sanitary workers have been worked in the Kothavalchavadi market (private market) as sweepers through one private contractor and during the year 1974 there have been a heavy flood in Madras city due to torrential rains. Further, taking note of the hygienic grounds, the Government of Tamil Nadu has taken over the internal sanitation as a matter of fact, in the year 1974 in Kothawalchavadi market. By an order dated 6.9.1974 the 1st Respondent/Corporation of Madras has taken over the internal sanitation work in the said market and directed the market owners viz., S.K.P.D. Charities to pay a sum of Rs.2500/- towards services rendered for internal sanitation work carried out by the 1st Respondent/Corporation of Madras in the said market. The 1st Respondent/Corporation has been carrying on the internal sanitation work in the said market till it has been closed in the year 1996.
15.The Learned Counsel for the Appellants submits that the sanitary workers employed in the aforesaid market approached the then Commissioner of Madras-V.Karuppannan seeking employment. Payments of an agreement dated 1.9.1974, the 1st Respondent/ Corporation has taken over the services of the said 27 workers as Sanitary Workers agreeing to pay wages and other conditions. Also, the 1st Respondent/Corporation installed a new Division i.e. 30 Special Divisions in the Kothawalchavadi Market. One Sanitary Inspector has been heading the office and he has taken the attendance of the workers and supervised the said workers who have been performing the sanitation and completed the work.
16.The 1st Respondent/Corporation has paid the wages to the workers through the said Sanitary Inspector. The tools, instruments necessary for the sanitation work have been provided by the 1st Respondent. Initially, the workers viz., the male workers have been paid Rs.75/- and female workers have been paid Rs.65/- and later it has been increased to Rs.100/- per worker.
17.The Learned Counsel for the Appellants/Workers brings it to the notice of this Court that the workers filed W.P.No.11954 of 1986 before this Court praying for regularisation of the services. The 1st Respondent/Corporation admitted the terms of the employment of the workers in its counter. But this Court has directed the workers to approach the Industrial Law Authorities. The workers have preferred a Writ Appeal against the said order of this Court passed in the aforesaid Writ Petition and the same has been dismissed.
18.The workers filed P.W.No.40 of 1996 seeking wages on par with other workers for the period beginning from January 1987 to December 1991. The 1st Respondent /Corporation filed its counter, let in oral and documentary evidence. The 1st Respondent has produced all the records before the Authority. The 2nd Respondent/Appropriate Authority, on a consideration of the materials and documents on record, has passed an order dated 6.10.1993 directing the 1st Respondent/Corporation to pay wages at par with the other sanitary workers. Moreover, as against the order of the Appropriate Authority, the 1st Respondent/Corporation has preferred the Writ Petition No.5934 of 1994 and the interim stay has been granted. In M.P.No.823 & 24/1995 the Appellants have prayed for vacating the stay order granted by this Court and this Court has been pleased to pass order directing the 1st Respondent/Corporation to disburse 50% of the wages.
19.The contention of the Learned Counsel for the Appellants is that the 1st Respondent is a model employer and it has violated under Articles 14, 16, 21 and 23 of the Constitution of India and also the 'Forced Labour' is a sin.
20.The Learned Counsel for the Appellants submits that the 1st Respondent/Corporation orally terminated the services of the workers on 3.2.2000 inspite of the proceedings pending before the Authorities for the Industrial Establishment and Conferment of Permanent Status Act. As per Section 304 of the Madras City Municipal Corporation Act, the 1st Respondent/Corporation has taken over the internal sanitation work by an order dated 6.9.1974 and also absorbed the service of the workers as per agreement dated 1.9.1974. The wages for workers as per the terms of agreement have been paid by the 1st Respondent/Corporation. Attendance Register and supervision has been done by the 1st Respondent through the Sanitary Inspector in the Special Division 30. All the tools, instruments necessary thereto have been provided by the 1st Respondent. The Corporation of Madras has been exercising the powers of Master and Servant relationship. Also the workers are its employees.
21.It is the case of the Appellants that they have been employed by the 1st Respondent as Sanitary Workers from 1974 to 1995 in the said market and that the Kothawalchavadi has been closed during the year 1996 and when the Kothawalchavadi has been closed in the year 1996, the services of the workers have been transferred to the Division situated at 30 and they have been working still they have been orally terminated by the Appellant.
22.Lastly, it is the contention of the Learned Counsel for the Appellants that the 1st Respondent has denied the employment to the Appellants on the basis it has been performing the work on behalf of the S.K.P.D. Charities and has received a sum of Rs.2500/- per month and distributing the same to the workers as wages.
23.The Learned Counsel for the Appellants submits that the Appellants/workers filed P.W.No.40 of 1992 before the 2nd Respondent/Deputy Commissioner of Labour-I [An authority notified under the Payment of Wages Act, 1936] wherein they have claimed amounts mentioned in A, B, C, D, E and F Annexures thereto and after contest and upon analysis of the entire material on record has come to the consequent conclusion that the existence of master and servant relationship between the Appellants and the 1st Respondent have been established and that the 1st Respondent is the employer of the Appellants and further that the Kannika Parameswari Devesthanam Charities are not the employers of the Appellants and the 2nd Respondent has come to this conclusion by placing reliance on the letter in Reference in No.AHO II.C.No.D1/783/74 dated 6.9.1974 from the 1st Respondent/Corporation's Assistant Commissioner addressed to the Secretary to the Sri Kannika Parameswari Devesthanam Charities and directed the 1st Respondent to pay amounts as claimed in Annexure A, B, C, D, E and F to each of the Appellants within a period of one month from the date of receipt of this order. Also, it has been intimated that if the amounts are not paid within one month as directed, necessary legal proceedings will be initiated to recover the amounts.
24.The Learned Counsel for the 1st Respondent/Corporation of Madras cites the decision of Balaram Abaji Patil V. Ragojiwalla [1969 II L.L.J. 491 at page 493] wherein it is held among other things that 'the legislature never intended that workers who are covered by the Payment of Wages Act and to whom the Minimum Wages Act is also extended shall be deprived of their remedy under the Payment of Wages Act for recovering the wages due to them under the provisions of the Minimum Wages Act.
The right to minimum wages is intended by the legislature to create an obligation on the part of the employer, the infringement of which is not confined to the remedy mentioned in the Act. The remedy by way of an application to the Authority under the Payment of Wages Act is as expeditious and inexpensive as the remedy by way of an application to the Authority under the Minimum Wages Act, and there is no reason why, in the case of workers covered by both the Acts, the legislature should be assumed to have intended to bar one remedy in preference to the other.'
25.It is to be noted that the workman cannot be denied the wages when he reports himself on duty. In this connection, this Court pertinently points out the decision in J.D.A. Jaipur V. Labour Court and others [1990 Vol.60 FLR 81 at page 85 (Raj.)] wherein it is inter alia held as follows:
"It appears that the management got annoyed with the workmen as they instituted a suit challenging the transfer order Annexure-1. This annoyance or displeasure continued more vigorously when the operation of Annexure 1 was stayed by the Civil Court. After all what the workman can do is to report himself on duty. It is with the employer to take work from him or not. The workman cannot snatch the work from the employer. In rests on the sweet will of the employer to take or not take work from the workmen. But the workmen cannot be denied the wages when he reports himself on duty but the work is not taken from him by the employer.
26.This Court aptly points out the decision in Modi Industrial Limited V. State of U.P. and others [(1992) 64 All. F.L.R. 471] wherein it is held that 'if the workmen have not worked although the work was offered to them, then, they are not entitled to claim wages.'
27.Apart from the above, this Court cites the following decisions:
(a) In Kothari (Madras) Limited V. Second Additional District Judge-cum-Appellate Authority and others [1990 Vol.76 F.J.R. 209] it is held that 'if the absence from duty is due to coercion and the workman is not consenting party, then, the Management has no right to deduct wages.'
(b) In The President, Athni Municipality V. Shetteppa Laxaman Pattan and others [1965 (1) The Mysore Law Journal 749 at page 750] it is observed as follows:
"(1)Under S. 20 of the Act, the authority had jurisdiction to decide disputes relating to the payment of remuneration for days of rest, even before its amendment.
(2)Though the State Government had not prescribed the rests of wages, since S. 13(1)(c) prescribed the minimum wage payable for such work, the authority was entitled to calculate wages for the work turned out by the employees on a day of rest at that rate.
(3)Under S.20, claims by persons who had ceased to be in employment on the date of application were cognizable by the authority."
(c)In Karnataka Film Chamber of Commerce V. State of Karnataka [1987 I L.L.J. 182] it is held as follows:
"Section 4 of the Act also is a definite indication that basic wage is an integral part of the minimum wage. Section 4.1 postulates that the minimum wage fixed or revised by the appropriate Government under Section 3 may consist of a basic rate of wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate Government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers; or a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates, where so authorised; or all-inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions, if any. Therefore when the question of neutralisation of the cost of living arises by payment of D.A. it necessarily follows that the Court should keep in view whether there had been an increase or decrease in the basic wage in a particular industry over a given period of time for the purpose of determining whether the neutralisation factor adopted by the State Government exceeds 100% or 200% or 300% in a given situation.
On the plain terms of Section 4(1) of the Act, it is clear that the payment of Dearness Allowance would arise only if the basic wages fixed for a particular category of workmen fell short of the minimum wage which the State Government has to fix taking into consideration the needs of the workers' family consisting of three consumption units. Language of Sec. (4) does not lend itself to the interpretation that a minimum wage under Sec.4(1) of the Act necessarily should consist of basic wages and Dearness allowance.
The minimum wages Act is a beneficial piece of social legislation which protects the day to day living condition of the workers employed at the lowest level of wages in sweated labour. Though the minimum wages are fixed statutorily, it does not measure up either to the fair wage or to the living wage. This Court should also take into consideration the C.P.I. index which has gone up from 470 in the year 1982 to 620 in the year 1986. The workers had a long run of litigation since 1982 in obtaining this minimum wage under the impugned notification since as noticed earlier, the two notifications made in the year 1982 and 1984 were successfully challenged by the petitioners. Therefore, any interference on grounds which are not really substantial would be repugnant to the entire object of the purpose of the Act and opposed to well settled principles of exercising the extraordinary jurisdiction under Article 226 of the Constitution."
(d)In The Bharatpur Central Co-operative Bank Limited V. Ratan Singh and others [1995 L.L.J. Vol. 3 (Supp.) 813] it is held as follows:
"It is of course open to the Authority under the Act to see whether the order of suspension was passed by an office competent to pass such an order. If the order of suspension has been passed by an officer or Authority not competent to pass it, it is then open to the Authority under the Act to ignore or disregard such an order of suspension. The Authority under the Act has a very limited jurisdiction. It does not He within his jurisdiction or competency to examine the order of suspension on merits and to see whether it is justified in law or not. If the order of suspension has been passed by an officer competent to pass it, the Authority under the Act cannot examine its validity to see as to whether it was justified in law or not. Here in the instant case, the Authority, under the Act acted improperly and exercised jurisdiction not vested in it when it entered into the question whether the order suspending the employed person was or was not justified in law."
(e)In Bidi, Bidi Leaves and Tobacco Merchants' Association, Gondia and others V. The State of Bombay (Now Maharashtra) and others [AIR 1962 Supreme Court 486 at page 487] the Hon'ble Supreme Court has held in paragraph 21 as follows:
"The definition of the term "wages" postulates the binding character of the other terms of the contract and brings within the purview of the Act only one term and that relates to wages and no other. That being so, it is difficult to hold that by implication the very basic concept of the term "wages" can be ignored and the other terms of the contract can be dealt with by the notification issued under the relevant provisions of the Act."
(f)In People's Union for Democratic Rights and others V. Union of India and others [1982 Labour Industrial Cases 1646 at page 1649] it is held as follows:
"Where a person provides labour or services to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words "forced labour" under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied.
What Article 23 prohibits is 'forced labour' that is labour or service which a person is forced to provide and 'Force' which would make such labour or service 'forced labour' may arise in several ways. It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternative and compels him to adopt one particular course of action may properly be regarded as 'force' and if labour or service is compelled as a result of such 'force', it would be 'forced labour'. Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage.
In the instant case, Re.1/- per worker per day was deducted by the jamadars from the wages payable to the workers employed by contractors for Asiad Projects with the result that the workers did not get the minimum wage of Rs.9-25 per day.
Held that the same amounted to infringement of Art.23."
(g)In M/s.Woolcombers of India Limited V. Woolcombers Workers' Union and another [AIR 1973 Supreme Court 2758 at page 2759] it is observed as follows:
"For fixing basic wages and dearness allowance industrial adjudication sometimes leans on the industry part of the industry-cum-region formula and at other times on the region part of that formula. The industry part of the formula becomes relevant when the business carried on by the employer before industrial adjudication is also carried on by several other concerns in the region in which the employer is working. AIR 1964 SC 689, Ref."
(h) In Murudhar Kshetriya Gramin Bank V. Bhagwan Ram and another [1995-II-L.L.J.-1076] it is held hereunder:
"A reading of the section clearly shows that limitation of 30 days is given for filing of appeal, besides the time spent in obtaining certified copy of the order appealed against. It further shows that no appeal shall lie unless the memorandum of appeal is accompanied by certificate of deposit which clearly means that the appeal and deposit and information of deposit to Court have to be within limitation. It is wrong to say that even if appeal filed is within limitation, but prior to deposit and deposit is not made within limitation and information by producing certificate of deposit is filed within limitation. Such an appeal will be deemed to be not competent and would be dismissed as such."
28.Section 2(h)(vi) of the Payment of Wages Act reads as follows:
" "wages" means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes -
(a)any remuneration payable under any award or settlement between the parties or order of a court;
(b)any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period;
(c)any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);
(d)any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions but does not provide for the time within which the payment is to be made;
(e)any sum to which the person employed is entitled under any scheme framed under any law for the time being in force;
but does not include -
(1)any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a court;
(2)the value of any house accommodation, or of the supply of light, water, medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of Subs. By Act 41 of 2005, s.3, for the words "the State Government" (w.e.f. 9th November. 2005)[the appropriate Government];
(3)any contribution paid by the employer to any pension or provident fund, and the interest which may have accrued thereon;
(4)any travelling allowance or the value of any travelling concession;
(5)any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment; or (6)any gratuity payable on the termination of employment in cases other than those specified in sub-clause (d)."
29.Section 3 of the Act speaks of the responsibility of every employer in regard to payment of all wages to be paid under this Act to persons employed by him etc. Section 4 speaks of fixation of wage periods by the person responsible for determining the payment of wages under Section 3 of the Act. Section 5 of the Act speaks of time of payment of wages. Section 15 of the Act enjoins 'the claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claim.' Section 16 speaks of single application in respect of claims from unpaid group. Section 17 of the Payment of Wages Act speaks of an appeal against an order dismissing either wholly or in part an application made under sub-section (2) of section 15 or against a direction made under sub-section (3) or sub-section (4) of the Section 15 may be preferred within 30 days of the date on which the order has been made, in a Presidency town before the Court of Small Causes and elsewhere before the District Court etc.
30.The Payment of Wages Act, 1936 has been enacted with a view to ensure that wages payable to workers covered by the Act are disbursed within the prescribed time limit and further that the employers received their full wages without any deduction not authorised by law.
31.In the instant case on hand, the 1st Respondent/Corporation has not filed any Appeal against the order made in P.W.No.40 of 1992 dated 06.10.1993 passed by the Deputy Commissioner of Labour-I, Chennai-6. In this connection, for the sake of convenience, the ingredients of Section 15 of the Payment of Wages Act, 1936 is quoted as follows:
"15.Claims arising out of deductions from wages or delay in payment of wages and penalty for malicious or vexatious claim. - [(1) The appropriate Government may, by notification in the Official Gazette, appoint -
(a) any Commissioner for Workmen's Compensation; or
(b) any officer of the Central Government exercising functions as, -
(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 or 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.] (2)Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act, or any other 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 Subs. By the Act 53 of 1964, s. 13, for the works "six months" [twelve months] from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be:
Provided further that any application may be admitted after the said period of Subs. By the Act 53 of 1964, s. 13, for the works "six months" [twelve months] when the applicant satisfies the authority that he had sufficient cause for not making the application within such period."
32.Under the Tamil Nadu Payment of Wages Rules, 1937 Rule 9 refers to Prescribed Authority and the same is as follows:
"The Chief Inspector of Factories in respect of factories governed by the Factories Act, 1948 (Central Act LXIII of 1948), the Chief Inspector of Plantations in respect of Plantations governed by the Plantations Labout Act, 1951 (Central Act LXIX of 1951) Ins. By G.O.Ms.No.319, Labour and Employment, dated the 17th April, 1976 [the Chief Inspector of Motor Transport Undertakings in respect of motor transport undertakings governed by the Motor Transport Workers Act, 1961 (Central Act 27 of 1961)] and the Deputy Commissioners of Labour in respect of other industrial establishments to which the provisions of the Act have been extended, shall be the authority competent to approve under sub-section (1) of section 8, acts and omissions in respect of which fines may be imposed under sub-section (8) of section 8, the purposes to which the proceeds of the fines shall be applied Ins. By G.O.Ms.No.264, Labour and Employment, dated the 25th March, 1975 [in the case of establishments to which the Tamil Nadu Labour Welfare Fund Act, 1972 (Tamil Nadu Act 36 of 1972) does not apply]."
33.Without preferring an Appeal as against the order dated 6.10.1993 made in P.W.40 of 1992 by the Deputy Commissioner of Labour-I, the 1st Respondent has straightaway filed the Writ Petition before this Court.
34.Significantly, Section 3 of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 speaks as follows:
"3.Conferment of permanent status to workmen.-- (1) Notwithstanding anything contained in any law for the time being in force every workman who is in continuous service for a period of four hundred and eighty days in a period of twenty four calendar months in an industrial establishment shall be made permanent.
(2)A workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike, which is not illegal, or a lock-out Certain words omitted by Act 48 of 2000 (w.e.f. 1st February, 2001) or a cessation of work which is not due to any fault on the part of the workman.
Renumbered as Explanation I by Act 44 of 1985, s.2 (deemed to have come into force on 1st January, 1982) Explanation I.-- Subs. By Act 44 of 1985, s.2 (deemed to have come into force on 1st January 1982) [For the purposes of computing the continuous service referred to in sub-sections (1) and (2), a workman shall be deemed to be in continuous service during the days on which ---];
(i)he has been laid off under an agreement or as permitted by standing orders made under the Industrial Employment (Standing Orders) Act, 1946 (Central Act XX of 1946) or under any other law applicable to the industrial establishment;
(ii)he has been on leave with full wages, earned in the previous years;
(iii)he has been absent due to temporary disablement caused by accident arising out of and in the course of his employment; and
(iv)in the case of a female, she has been on maternity leave; so, however, that the total period of such maternity leave does not exceed twelve weeks.
Ins. By Act 44 of 1985, s.2 (deemed to have come into force on 1st January, 1982) [Explanation II. -- For the purposes of this section, 'law' includes any award, agreement, settlement, instrument or contract of service whether made before or after the commencement of this Act]."
35.The Appellants have filed an application before the Deputy Commissioner of Labour-18 an Authority constituted under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 and that they have been confirmed with the Permanent Status by the Authority under the Tamil Nadu Industrial Establishments Confirmation of Permanent Status Act, 1981 on 30.1.2004.
36.Section 3 of the Minimum Wages Act, 1948 speaks of the appropriate government to fix the minimum rates of wages.
37.Rule 21 of the Minimum Wages (Tamil Nadu) Rules, 1953 speaks of 'Time and conditions of payment of wages and the deductions permissible from wages.' Rule 29 of the Minimum Wages (Tamil Nadu) Rules, 1953 refers to the filing of an Application as per Section 20(2) or sub-section (1) of Section 21, by or on behalf of an employed person or group of employed persons shall be made in duplicate in Form VI or Form VII etc. Rule 27-A of the Minimum Wages (Tamil Nadu) Rules, 1953 enjoins that certain documents deemed to be maintained under the rules which refers to the Deputy Commissioner of Labour in respect of all other establishments.
38.Section 15(2) of the Payment of Wages Act authorises an employee to approach the Authority under the Payment of Wages Act as per decision P.Manohar Reddy V. Appellate Authority [2008 (2) L.L.N. 447 (A.P)]. In the aforesaid decision, at page 465 & 466 in paragraph 25 & 26 it is observed hereunder:
"25. The jurisdiction of the Authority under Section 51, to adjudicate claims arising out of delay in payment of wages, is intimately and integrally connected with payment of "wages" as defined under Section 2(23) of the Act. Jurisdiction must also be read in the context of Section 38 and, if there is delay in reference to the point of time indicated in Section 38, then an employee is entitled to make a grievance of that fact and the authority is entitled to order wages which have not been paid and which should be paid in accordance with S.38.
26.A claim of delay in payment of wages would require the Authority, exercising jurisdiction under Section 51, to examine what the terms of the contract of employment are. If existence of such a contract of employment is admitted then as to whether the terms and conditions prescribed therein are fulfilled and, if the terms of employment are fulfilled, whether the employee is entitled for remuneration m respect of such employment. The jurisdiction of the Authority is really to construe the terms of the contract in so far as they relate to payment of wages. Where the claim is based on a pre-existing right the Authority would have jurisdiction to entertain and examine the claim. However, where its denial is on exercising power under the terms of the contract, or of any other provision of law, it would fall beyond the jurisdiction of the Authority as examination of the claim, in such circumstances, would involve an adjudication of the validity of the action of the employer."
39.The authorities have no jurisdiction to decide the question of validity of termination of services as per decision of the Hon'ble Supreme Court in State of Punjab V. Baldev Singh, Conductor 1999 (81) F.L.R. 303 (SC).
40.It is to be remembered that Section 29(2) of the Indian Limitation Act visualises in no uncertain terms that if a special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule, the provisions of section 3 will apply as if such period were the period prescribed by schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 shall apply only in so far as and to extent which, they are not expressly excluded by such special or local law. A cursory perusal of section 17 of the Payment of Wages Act, 1936 it is clear that there is no specific exclusion as to the applicability of section 5 of the Indian Limitation Act by virtue of the Payment of Wages Act being a special law.
41.In the decision of Hafizuddin V. Additional District Judge, Allahabad and another [2006 (109) FLR 877 (Allahabad High Court) it is laid down that 'Section 5 of the Limitation Act is applicable under Section 17(1) of the Payment of Wages Act. As the appeal filed by the respondents has been entertained and delay has been condoned.'
42.In Ajay Bansal V. State [2008-I-L.L.J.-199] (Delhi High Court) at page 204 in paragraph 14 it is held as follows:
"14. In the first place it must be noticed that these argument that the activities of the appellant does not constitute a Scheduled Employment is clearly unacceptable in view of a notification dated 13.8.1965 issued by Government of India under Section 27 of the Minimum Wages Act. By the said notification an amendment was made to the Schedule to the Act and Item 15 was introduced. The said amendment reads as under:
AMENDMENT In Part I of the said Schedule, after item 14 the following new item shall be added, namely:
"15. Employment in all shops and other establishments, covered by the Delhi Shops and Establishments Act, 1954."
That this notification was not disputed by the appellant either before the learned Single Judge or in the appeal or written submissions before us. Therefore both the competent authority and the learned Single Judge rightly proceeded to examine whether the appellant was an establishment covered by the Shops Act. If indeed it was, then it would undoubtedly be covered by the Minimum Wages Act by virtue of the above amendment."
43.In Rampur Distillery V. Competent Authority and others [2006-II-L.L.J.-948] at page 950 & 951 in paragraph 13 it is held as follows:
"Having heard learned counsel for the parties and having perused the record of the case, I am of the firm opinion that in the present case, no illegal deductions have been made from the wages of the respondent-workmen. They were in fact claiming "potential wages", which is clearly not within the scope of the jurisdiction of the authority under Section 15 of the Act as has been laid down by the Hon'ble Supreme Court in the case of A.V. D'Costa V. B.C. Patel and another AIR 1955 SC 412. I respectfully agree with the dictum of the Hon'ble Supreme Court. As such the impugned order is liable to be set aside."
44.In Management of Davanagere Cotton Mills, Davanagere V. C.R. Krishna and another [2008-II-L.L.J.-733 (Kant)] at page 735 in paragraph 10 it is observed and held as follows:
"10. Per contra, the learned counsel for the employees invited our attention to Clause 4 of the explanation 2 to the notification dated 19.8.1987 and contended that the categories of employees, which are not included in the schedule, shall have to be paid the same wages as employees in the employment of similar nature. He also referred to the evidence placed on record to establish that the employees in the employment of similar nature were admittedly paid higher wages, than the wages paid to the employees herein and that in terms of the said provision in the notification, the employees are entitled to be paid by the employer, the same wages as was being paid to the other employees discharging similar duties. We find force in the submission made by the learned advocate for the respondents. The learned Single Judge has held that the employees herein cannot be considered as falling in Sl. No. 6 of Index Group V of the notification. There being no dispute that when measurer in the show room of the appellant discharging similar duties as employees herein, were paid higher wages, the employees herein, should not have been discriminated and as such, the learned Single Judge held that the writ petitioners are entitled to be paid the same wages by applying the concept of "equal pay for equal work." We do not find any arbitrariness in the approach of the learned Single Judge in considering the matter on the context of "equal pay for equal work". taking into account Clause 4 of explanation 2 to the notification dated 19.8.1987. Hence the judgment relied upon by the learned advocate for appellant has no application."
45.In Collector Land Acquisition, Anantnag and another V. Mst.Katiji and others AIR 1987 Supreme Court at page 1353, the Hob'ble Supreme Court has held that 'in regard to condonation of delay under Section 5 of the Limitation Act Courts should adopt a liberal approach etc.'
46.In Major (Retd.) A.S. Lally V. Assistant Labour Commissioner and others [2008 (4) L.L.N. 494 (Punjab and Haryana High Court)] at page 496 in paragraph 6 and 7 it is observed as follows:
"6.A perusal of Cl. (i) of Sub-Sec. (3) of S.20 of the Act makes it evident that if an application is made under Sub-sec.(2) of S. 20 of the Act then after hearing the party or holding any such enquiry as may be considered necessary the authority under the Minimum Wages Act may award the workman the amount paid to him less than the minimum wages payable to him. The provision further stipulates that the authority is competent to award compensation ten times the amount so worked out. There is no dispute regarding the fact that the workman-respondent No.2 has been paid less than the prescribed minimum wages amounting to Rs.2235.60 for the period of 1 May 2001 to 27 May 2001. The aforementioned amount has been multiplied by five and the authority was empowered to award compensation to the extent of ten times. We find that the case of the Petitioner is squarely covered by Cl.(i) of Sub-sec. (3) of S.20 of the Act. We also placed reliance on a judgment of the Kerala High Court in the case of S.Ponnambalan V. Authority under Minimum Wages Act, 1948, (Deputy Labour Commissioner) and another [1995 (1) L.L.N. 135]. In para 5 of the judgment it has been categorically held that liability of payment of compensation is attracted whenever wages paid by the employer is found to be less than the minimum rate of wages in which case the Authority is given jurisdiction to pass appropriate order directing compensation to the employee not exceeding ten times the amount of such excess. The authority in the present case is fully justified by directing the petitioner-establishment to pay the workman-respondent No.2 a sum of Rs.11,178 which is five times the amount of compensation which was found due to the workman-respondent No.2. There is no legal infirmity in the directions issued by the authority.
7.The argument that the case of workman-respondent No.2 would fall under Cl.(ii) of Sub-sec. (3) of S.20 of the Act does not require any detailed consideration because Cl.(ii) postulates any other case which may not necessarily be involving minimum, rates of wages. However, in the present case, there is no dispute that the workman-respondent No.2 has been paid less than the prescribed minimum wages for the period of 1 May 2001 to 27 May 2001. The argument is wholly misconceived and the same is rejected.
47.In Union of India V. Prem Saran Kapoor and others [2008 (116) F.L.R. 210 & 211 (Delhi High Court)] it is held as follows:
"Since the orders dated 30th July, 1979 and 18th December, 1979 passed in the Second Appeal and the order of this Court passed in the instant writ petition have not been complied with by the petitioners let the amount be recovered under the orders of the Prescribed Authority as ordered vide order dated 16.5.1984 with 9% simple interest with half yearly rest along with 6% compound interest per annum. The amount shall be paid to the legal heirs and representatives of the deceased workman by a bank draft within a period of one month from today. In case the amount is not paid within the time allowed by this Court, the same shall be recovered from the petitioners as arrears of land revenue within a further period of one month."
48.The Writ Petition No.4703 of 1999 filed by the 1st Respondent/Corporation of Madras praying to declare the provisions of Section 17 of the Payment of Wages Act, 1936 as violative of Article 14 and 19 (i)(g) of the Constitution of India has been dismissed by this Court on 28.3.2002 holding that the Hon'ble Supreme Court has upheld the validity of the Payment of Wages Act and also the Corporation of Chennai is a local authority and being an instrumentality of State, it cannot challenge the validity of an Act passed by the Parliament or the State legislature and resultantly, the Writ has been dismissed.
49.The Conservancy Inspector of the 1st Respondent N.M.Arumugam, in his evidence before the 2nd Respondent/Authority, has stated that he is disbursing the salary of the Appellants and the Appellants are reporting to him at the time of their duty and he takes their attendance and in shift system, he grants leave to the Appellants and even during festival and National holidays, the Appellants are to attend duty. Further, he is also deposed that the 1st Respondent/ Corporation is providing the Appellants with necessary instruments, and that the Appellants are paid a monthly salary of Rs.100/- and the salary will be deducted if they do not attend duties and that they have not been paid the minimum wages. Also, it is the evidence of said Arumugam that the money paid by Kannika Parameswari Devasthanam are distributed and paid to the employees and further, the Appellants are sweeping the rubbish in the market and bringing them to a particular place.
50.The evidence of the Conservancy Inspector-Arumugam [in P.W.No.40 of 1992 on the file of the Deputy Commissioner of Labour-I] clearly points out the 1st Respondent/Corporation is the Master of the Appellants and further, the 1st Respondent/Corporation is the Employer of the Appellants and Kannika Parameswari Devasthanam Charities are not the employers of the Appellants. It cannot be gainsaid that in law, an Employer is required to pay wages to the Employees and as a matter of fact, the letter of the Assistant Commissioner (N), Corporation of Madras, Madras-3 dated 6.9.1974 addressed to the Secretary, Sri Kannika Parameswari Devasthanam, Madras-1 confirms the fact that the 1st Respondent/Corporation of Madras is the Employer. As such, the 1st Respondent/Corporation of Madras is required to pay the Appellants, the amounts claimed in Annexures A, B, C, D, E & F, as directed by the 2nd Respondent/Deputy Commissioner of Labour, in its order dated 6.10.1993 in P.W.40 of 1992. The Writ Appeal filed by the Appellants is allowed by this Court, setting aside the order of the Learned Single Judge passed in W.P.No.5934 of 1996 dated 28.3.2002 as well as the subsequent order dated 5.7.2002 passed under the caption 'Being Spoken to'. Consequently, W.P.No.5934 of 1996 filed by the 1st Respondent/ Corporation of Madras is dismissed. There shall be no order as to costs.
(E.D.R.J.) (M.V.J.) .05.2011 Index :Yes / No Internet :Yes / No Sgl ELIPE DHARMA RAO,J.
AND M.VENUGOPAL,J.
Sgl To
1.The Commissioner, The Corporation of Madras, Rippon Buildings, Chennai 600 003.
2.The Deputy Commissioner of Labour-I Authority notified under the Payment of Wages Act 1936 Teynampet, Chennai JUDGMENT IN W.A.NO.3559 OF 2002 11.05.2011