Madras High Court
The Management Of Murugalli Estate vs The Deputy Commissioner Of Labour on 12 August, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.8.2011
CORAM:
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.No.14711 of 2009
The Management of Murugalli Estate
(Unit of Parry Agro Industries Ltd.)
Murugalli Bazar (PO), Valparai
Coimbatore District
rep. by its Senior Manager
(Personnel and Industrial Relations) .. Petitioner
Vs.
1. The Deputy Commissioner of Labour
(Authority under the Minimum Wages Act)
Coimbatore 18.
2. The Inspector of Plantations
Valparai. .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorari to call for the records of the first respondent in M.W.Case No.296 of 2004 and quash its order dated 6.2.2009.
For Petitioner : Mr.S.Ravindran
for M/s.T.S.Gopalan & Co.
For Respondents : Mr.V.Subbiah
Special Government Pleader
ORDER
The petitioner in the management of Murugalli Estate, a unit of Parry Agro Industries Limited. They have come forward to challenge an order passed by the first respondent, viz., the authority constituted under Section 20 of the Minimum Wages Act, 1948 (for brevity, "the Act'), in relation to M.W.Case No.296 of 2004, dated 6.2.2009. By the impugned order, the first respondent computed a sum of ` 10,664.98 as due and payable to the named workers, whose names are set out in the annexure to the impugned order. There are as many as 172 workers who are the beneficiaries of the impugned order and each one of them were directed to be paid the difference in minimum wages for having worked on 21.5.2004. The amount directed to be paid ranges from ` 16/- to ` 142/-.
2. The writ petition was admitted on 29.7.2009. Pending the writ petition, this Court granted an interim stay after recording the fact that the amount has already been deposited with the first respondent.
3. It is seen from the records that the Inspector of Plantations, Valparai made an inspection of the petitioner/estate on 20.5.2004 and 21.5.2004 and he found that the workers in CYC Division numbering 54, CTR Division numbering 54, Kalyan Division numbering 25, and Factory Division numbering 39, totalling 172 workers were not paid minimum wages as fixed by the State Government vide G.O.(2D) No.58, Labour and Employment Department, dated 30.8.1995. Therefore, he lodged a petition before the first respondent, the authority constituted under Section 20 of the Act, seeking a direction to pay minimum wages to those named 172 workers.
4. On receipt of the said complaint, it was taken on file as M.W. 296 of 2004 by the first respondent and notice was ordered to the petitioner/Management. The petitioner/Management filed a counter statement resisting the claim of the Inspector of Plantations. It was stated by them that in the tea estate 90% of the work was agricultural and depending upon the requirements, persons are engaged.
5. It was stated that the yields were divided into three different seasons, viz., high crop, average crop, and low crop. It is during the high crop season, apart from the permanent workers, casual and temporary workers will also be engaged. The workers are paid on the basis of the settlement reached between them and as per the settlement, for plucking of 30 Kgs. of green tea leaves, the casual workers will be paid ` 60/-. It was stated that since the minimum wage fixed for the casual workers worked out to ` 56.44, whereas the management had been paying ` 60/-, and since it is higher than the minimum wage, there is no question of paying any excess amount.
6. It was also stated that the workers, if they did not pluck 30 Kgs. of green tea leaves, they will be paid only proportionate to the tea leaves plucked by them and the question of non payment of minimum wages does not arise. It is not enough if the workers are in the employment for a period of 8 hours, but they should also keep up the workload fixed for them. If anyone does not fulfill the minimum requirement, they cannot claim the minimum wages, as they are disqualified in terms of Section 15 of the Act.
7. However, the authority, after examining the Inspector of Plantations K.Dharmaseelan as P.W.1 and marking three documents as Exx.P1 to P3 and also examining A.David on the side of the petitioner/ Management as R.W.1 and also marking four documents, rejected the case of the petitioner and held that the workmen were entitled to the difference in the minimum rate of wages and computed the difference in respect of each of the 172 workmen. The authority held that linking the production norms with the minimum wage was not permissible, as the notification issued under the Act does not indicate any such linking with the production. Even the argument that there was no employer-employee relationship between the petitioner/Management and the workmen was also negatived, because, precisely, it was those workmen who were plucking tea leaves and handing over to the management and therefore, the management, being the beneficiary of their employment, cannot disown their employment status.
8. In the present case, the petitioner/Management, for reasons best known to them, did not make the 172 workers, who are beneficiaries under the impugned order, as party to the writ petition either in individual capacity or in representative capacity and the writ petition is liable to be dismissed on the short ground of non joinder of parties.
9. When a minimum wages notification was challenged by the employers before this Court and when this Court found the workmen, who are beneficiaries, were not made parties, all such writ petitions were dismissed holding that in the absence of the beneficiaries, effective adjudication cannot be done on the vires of the said notification. Similarly, in the present case, as the 172 named workmen working in the petitioner/estate are necessary and proper parties, in their absence, the writ petition cannot be adjudicated. A Division Bench of this Court in T.R.Sukumaran v. State of Tamil Nadu, [1978] 53 FJR 301, at page 305, has observed as follows:
"We may also point out that the writ petitions are liable to be dismissed on a very narrow ground as well. The petitioners have not impleaded the respective employees or the representatives of the employees as parties to the writ petitions. In the event of the petitioners succeeding in the writ petitions, the persons who will be really affected will be the employees and they have not been impleaded as parties and in their absence, no relief can be given to the petitioners herein we are referring to this as an additional ground for dismissing the writ petitions."
10. The said judgment came to be followed subsequently in Muruga Home Industries v. Government of Tamil Nadu and another, 1996 I LLJ 598 and in paragraph [29], it was observed as follows:
"29. With regard to preliminary objections taken by the respondents that the petitioners have not impleaded the necessary parties and therefore, the writ petitions are liable to be dismissed in limine, there is force in the said contention in view of the Supreme Court ruling in Prabhodh Verma v. State of Uttar Pradesh, AIR 1985 SC 167, referred to above, and the judgment of the Division Bench of this High Court in T.R.Sukumaran v. State of Tamil Nadu (supra). The ruling cited by learned counsel for the petitioner in State of H.P. v. Kailash Chand Mahajan, 1992 Lab IC 1371 is not applicable to the facts and circumstances of the case. On this ground also, the writ petitions are liable to be dismissed."
11. However, Mr.S.Ravindran of M/s.T.S.Gopalan and Co., learned counsel for the petitioner contended that in the absence of any complaint by the workmen concerned, the Inspector of Plantations cannot take up the issue and file a complaint and get the issue adjudicated. He also submitted that when the workmen were paid on the basis of the contract of employment and the contract stipulated plucking of 30 Kgs. of green tea leaves per day, if the workmen do not meet the workload fixed, they are not eligible to get the difference in minimum wage. He also submitted that the engagement of the workmen was done on the basis that they will get ` 2/- for every kilogram of green tea leaves plucked by them and it was not the case that the workmen were getting less than the minimum wage and only in such cases the question of invoking the Act will apply.
12. However, this contention overlooks the fact that the employment in plantation was specifically included as Item No.[4] in Part I of the schedule of employment under Section 2(g) read with Section 27 of the Act. Further, under Section 19 of the Act, Inspectors are appointed for overseeing the implementation of the Act. Under Section 20(2) of the Act, a claim for difference in minimum wages can be made either by the legal practitioner, or an office bearer of a trade union, or any Inspector, or any other person acting with the permission of the authority under Section 20 of the Act and therefore, in the absence of the workmen concerned approaching the authority, the complaint made by the Inspector of Plantations, who is also a notified Inspector under the Act in terms of G.O.Ms.No.68, Labour and Employment Department, dated 24.4.2000, is in accordance with the provisions of the Act. Hence, the objection raised by the management in this regard must necessarily fail.
13. The next contention was that if the conditions required for claiming the minimum wages are not fulfilled, the workmen have no right to claim minimum wages. For this purpose, reliance was placed upon the judgment of the Supreme Court in Pabbojan Tea Company Ltd. and others v. Deputy Commissioner, Lakhimpur and others, AIR 1968 SC 271 : [1967] II LLJ 872. The petitioner cannot cite the judgment torn out of the context in which the said judgment was rendered. In that case, the Supreme Court has observed as follows:
"17. ..... The notification dated March 11, 1952 was clearly applicable only to ordinary unskilled labour. The word ordinary' has in our opinion, some significance. It means usual, not exceptional. In other words, ordinary unskilled labour must mean unskilled labour prepared to work and working in the ordinary way. If under Rule 24 of the rules framed under this Act the period of work is fixed at nine hours a day, a labourer who cannot work for more than half of it, does not fall within the category of ordinary unskilled labour.
...
The object of the Act is to ensure some sort of industrial peace and harmony by providing that labour cannot be exploited and must at least be provided with wages which are fixed at certain minimum rates. It would go against such a principle if the courts were to uphold that persons who cannot work for more than half a day should receive what others working a full day get."
It was only in the context of the workmen not willing to work for the full hours for which the minimum wages were fixed, the Supreme Court made the observation that one has to perform the task for making a valid claim under the Act.
14. Thereafter, the learned counsel for the petitioner submitted that since there is no dispute with reference to the rate by which the workmen were paid wages, viz., ` 2/- per Kg. for plucking green tea leaves, the authority under Section 20(1) of the Act is not competent to compute the amount and for this purpose, he relied upon the judgment of the Supreme Court in Town Municipal Council, Athani v. Labour Court, Hubli and others, AIR 1969 SC 1335 : [1969] II LLJ 651, wherein it was held as under:
"7. ....... If there be no dispute 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 payments 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 the Payment of Wages Act."
But this argument was rightly rejected by the authority by stating that the minimum wages notification relied upon by the workmen did not prescribe a minimum workload for getting the minimum wage and it is also not the case of the petitioner/management that the workmen were not in employment for the entire part of the day, for which the minimum wage notification prescribed the rate of wages.
15. He also relied upon the judgment of the Supreme Court in Sanjit Roy v. State of Rajasthan, AIR 1983 SC 328 : [1983] I LLJ 220. In that case, the Supreme Court held that non payment of minimum wage would amount to forced labour prohibited by Article 23 of the Constitution of India, apart from holding that the exemption granted to the Minimum Wages Act by the State of Rajasthan is illegal. In paragraph [5], it was observed as follows:
"5. We must then proceed to consider whether on the facts the labour provided by the workers employed in the construction work of Madanganj-Harmara Road could be said to be forced labour on the ground that they received wage less than Rs.7 per day. Now it was not disputed on behalf of the respondent that the wage paid to a gang of workmen depended upon the work turned out by a particular gang and if it was less than the norm fixed by the Public Works Department, the wage earned by each member of the gang would fall short of the minimum wage of Rs.7 per day. But the argument was that this did not involve any breach of Article 23 because if any particular gang turned out work according to the norm fixed by the Public Works Department, the amount paid to the Mate of the gang was enough to give to each workman, on distribution, the minimum wage of Rs.7 per day, and it was only if less work was turned out by the gang that the workmen would receive less than the minimum wage of Rs.7 per day and this result would ensue not on account of any default on the part of the respondent but entirely because of the lethargy of the workmen constituting the gang. The workmen, said the respondent, could always earn the minimum wage of Rs.7 per day by turning out work according to the norm fixed by the Public Works Department but if they did not do so and in consequence received less than the minimum wage of Rs.7 per day the respondent could not be held responsible for breach of the fundamental right conferred under Article 23. This argument does, at first blush, appear to be attractive, but a closer scrutiny will reveal that it is unfounded. If we look at the Notification issued under the Minimum Wages Act, 1948 fixing the minimum wage of Rs.7 per day for workmen employed in the construction work, it will be obvious that the minimum wage is fixed per day and not with reference to any particular quantity of work turned out by the workman during the day. Nor does the Notification empower the employer to fix any particular norm of work to be carried out by the workman with reference to which the minimum wage shall be paid by the employer. The minimum wage is not fixed on piece-rate basis, so that a particular minimum wage would be payable only if a certain amount of work is turned out by the workman and if he turns out less work, then the minimum wage payable would be proportionately reduced. Here the minimum wage is fixed at Rs.7 per day and that is the minimum wage which must be paid by the employer to the workman so long as the workman works throughout the working hours of the day for which he can lawfully be required to work. The employer may fix any norm he thinks fit specifying the quantity of work which must be turned out by the workman during the day, but if the workman does not turn out work in conformity with such norm, the employer cannot pay him anything less than the minimum wage. If the norm fixed by the employer is reasonable and the workman does not turn out work according to such norm, disciplinary action may be taken against the workman and in a given case, he may ever be liable to be thrown out of employment, but he cannot be paid less than the minimum wage, unless, of course, the minimum wage fixed by the Notification under the Minimum Wages Act, 1948 is co-related with the quantity of work to be turned out by the workman. Otherwise, it would be the easiest thing for the employer to fix an unreasonably high norm which a workman working diligently and efficiently during the day cannot possibly reach and thereby deprive the workman of the minimum wage payable to him. There can therefore be no doubt that in the present case the respondent was not entitled to pay less than the minimum wage to the workmen belonging to a gang on the ground that such gang turned out work less than the norm fixed by the Public Works Department."
The above quoted passage from the decision of the Supreme Court is clearly on the point.
16. Therefore, not only on the ground of non joinder of parties but even on the merits the petitioner has not made out any case. Hence, this writ petition stands dismissed. The first respondent is hereby to direct the second respondent to disburse the amount lying in deposit in his office. No costs. Consequently, M.P.No.1 of 2009 is closed.
12.8.2011 Index : Yes Internet : Yes sasi To:
1. The Deputy Commissioner of Labour (Authority under the Minimum Wages Act) Coimbatore 18.
2. The Inspector of Plantations Valparai.
K.CHANDRU,J.
[sasi] W.P.No.14711 of 2009 12.8.2011