Kerala High Court
M/S. Cavalier Detective Security ... vs Bharath Sanchar Nigam Limited (Bsnl) on 23 December, 2015
Author: Dama Seshadri Naidu
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939
WA.No. 204 of 2016 () IN WP(C).18261/2012
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AGAINST THE ORDER/JUDGMENT IN WP(C) 18261/2012 of HIGH COURT OF KERALA
DATED 23-12-2015
APPELLANT(S)/PETITIONER :
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M/S. CAVALIER DETECTIVE SECURITY SERVICES,
REPRESENTED BY ITS PROPRIETOR, THOMPIL BUILDINGS,
3RD FLOOR, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010.
BY ADV. SRI.MATHEW KURIAKOSE
RESPONDENT(S)/RESPONDENTS :
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1. BHARATH SANCHAR NIGAM LIMITED (BSNL)
ERNAKULAM TELECOM, REPRESENTED BY ITS
PRINCIPAL GENERAL MANAGER, ERNAKULAM TELECOM,
ERNAKULAM.
2. REGIONAL LABOUR COMMISSIONER (CENTRAL),
OFFICE OF THE LABOUR COMMISSIONER (CENTRAL),
MINISTRY OF LABOUR & EMPLOYMENT, GOVERNMENT OF INDIA,
KENDRIYASHRAM SADAN, KAKKANAD, KOCHI-682 030.
R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA
R BY SRI.C.S.RAMANATHAN, SC, BSNL
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.
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W.A. No. 204 of 2016 ( )
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Dated this the 7th day of July 2017.
JUDGMENT
Dama Seshadri Naidu,J.
Cavalier Detective Security Services, the appellant-proprietary concern, runs a security agency, contractually employing ex-service men in establishments like the respondent-Bharat Sanchar Nigam Ltd., (BSNL) on their request. Here, Cavalier entered into Ext.P1 contract to employ security guards in BSNL, initially for one year, later extended for a few more years, beginning from2010.
2. While the ex-service men supplied by Cavalier were with BSNL, the Central Government revised the minimum wages with effect from 01.10.2010. But Cavalier did not pay the differential amount to the workmen employed by it. As a result, the Inspector under the Minimum Wages Act, the Enforcing Authority, noticed the Cavalier's lapses and issued the Ext.P3 notice, dated 21.03.2011.
3. Cavalier, it seems, pleaded ignorance about the minimum- wage revision and, eventually, paid the differential wages on W.A. No.204/2016 -2- 30.09.2011. It also paid to the workmen the overtime wages on 01.03.2012, 02.03.2012, and other dates. But the Labour Enforcement Officer initiated proceedings under Section 20 of the Minimum Wages Act.
4. Eventually, the Regional Labour Commissioner, the authority under Section 20 of the Minimum Wages Act, passed Ext.P12 order:
Cavalier pay 50% of the differential wages as compensation to the workmen and Rs.10/- for each wage period on overtime wages to each employee from October 2010 to February 2011.
5. Aggrieved, Cavalier initially filed W.P.(C) No. 18261 of 2012 before this Court. A learned Single Judge, through judgment dated 23.12.2015, dismissed the writ petition. Further aggrieved, the appellant has come up with this intra-court appeal.
6. Sri Mathew Kuriakose, the learned counsel for the appellant, has submitted that Section 20(3) of the Minimum Wages Act does not cloth the authority with any power to mulct the appellant with any penalty. To support his contentions, he has relied on Town Municipal Council, Athani v. The Presiding Officer, Labour Courts, W.A. No.204/2016 -3- Hubli1. He has made strenuous efforts to impress upon us that the Supreme Court in Athani has considered all aspects of the minimum Wages Act and has concluded that the authorities have no power to order the employer to pay compensation. Cut to the chase, Athani confines the authority's jurisdiction to its determining only the rates of wages. He has also submitted that the Courts have consistently followed the ratio of Athani in Manganese Ore (India) Ltd v. Chandi Lal Saha2 and other cases.
7. The learned Standing Counsel for the 1st respondent, on the other hand, has submitted that the authorities under Section 20 of the Act have passed Ext.P12 order after considering all factors that have gone into the dispute. He has also submitted that the authorities have the jurisdiction to order the employer to pay compensation, as is evident from Section 20(3) of the Act. He has further submitted that the judgment relied on by the appellant differs.
8. To elaborate, the Standing Counsel has submitted that the 1 1969 (1) SCC 873 2 1991 Supp (2) SCC 465 W.A. No.204/2016 -4- issue in Athani is the jurisdictional scope of the Industrial Disputes Act in the backdrop of the Minimum Wages Act, which is declared to be more efficacious to grant relief on the issue raised in that case. Though the workmen are said to be the ultimate beneficiaries, they have not been made parties to the proceedings. Even the Ext.P5 judgment directs that the compensation be paid to the workmen.
9. Heard Sri Mathew Kuriakose, the learned counsel for the appellant and Sri C.S. Ramanathan, the learned Standing Counsel for the first respondent, besides perusing the record.
10. To begin with, we may set out to examine whether Section 20(3) of the Act cloths the authority with no power to direct the employer to compensate the workmen for the lapses on the employer's part, namely, not paying the revised minimum wages. It is profitable to extract Section 20 of the Act:
"20. Claims.--(1) 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 a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any other officer with experience as a Judge of a Civil Court or as stipendiary Magistrate to be the Authority to hear W.A. No.204/2016 -5- and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of sub-section (1) of Section 13 or of wages at the overtime rate under Section 14, to employees employed or paid in that area.
(2) Where an employee has any claim of the nature referred to in sub-section (1), the employee himself, or any legal practitioner, or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, or any 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 six months from the date on which the minimum wages or other amount] became payable:
Provided further that any application may be admitted after the said period of six months when the applicant satisfies the Authority that he had sufficient cause for not making the application within such period.
(3) When any application under sub-section (2) is entertained, the authority shall hear the applicant and the employer or give them an opportunity of being heard and after such further inquiry, if any, as it may consider necessary may without prejudice to any other penalty to which the employer may be liable under this Act, direct -
(i) in the case of a claim arising out of payment of less than the minimum rates of wages the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid together with the payment of such compensation as the authority may think fit not exceeding ten times the amount of such excess;W.A. No.204/2016 -6-
(ii) in any other case the payment of the amount due to the employee, together with the payment of such compensation as the Authority may think fit not exceeding ten rupees;
and the authority may direct payment of such compensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application."
(emphasis added)
11. As seen from the above extract, if an employer pays less than the minimum rates of wages, and later if a claim arises because of that deficit wages, the authority can direct the employer to pay the deficit amount along with penalty as compensation "not exceeding ten times the amount of such excess." Here, the authority, in his wisdom, has restrained himself from inflicting any financial injury on the employer. He has, in fact, directed the employer to pay 50% of the differential amount, that is half of one-time differential wages.
12. As contended by Sri Kuriakose, Section 20, for that matter the very scope of the Minimum Wages Act, fell for a comprehensive consideration in Athani. Much turns on what the Supreme Court has held in that case and, in fact, Cavalier's sheet anchor is Athani. So it is meat to examine the decision minutely.
W.A. No.204/2016 -7-
13. Various workmen claimed wage-dues for overtime work and work done on weekly off-days. All of them invoked section 33C(2) of the Industrial Disputes Act. The Labour Court entertained all these applications, computed the amounts due to those workmen, and directed the employer to pay. High Court dismissed the appeals. The Supreme Court, in further appeal, considered these issues:
(a) Should the workmen have applied under Section 20(1) of the Minimum Wages Act, instead of invoking the Industrial Disputes Act?
(b) To have their grievance redressed under Section 20 (3) of the Minimum Wages Act, do the workmen still have their claims unaffected by the statute of limitation?
14. We need not refer to the Supreme Court's decision on issue
(b), which, in fact, was later overruled. Nor is it necessary for our purpose.
15. Issue (a) is premised on an assertion that the Minimum Wages Act, an efficacious special enactment, is comprehensive and self-containing, and it should prevail over the Industrial Disputes Act, W.A. No.204/2016 -8- a general enactment: the labour court's jurisdiction stands excluded.
16. The Supreme Court has held that if there is no dispute regarding the rates of wages to be paid, the Minimum Wages Act cannot be taken recourse to. The rates of wages disputed, workmen could invoke Section 20 of that Act.
17. The Minimum Wages Act is primarily concerned, held the Supreme Court, with the fixing of rates--rates of minimum wages, overtime rates, rate for payment for work on a day of rest--and is not really intended to be an Act to enforce payment of wages for which provision is made in other laws, such as the Payment of Wages Act and the Industrial Disputes Act.
18. The Court also interpreted Section 20 of the Act. It observed that the language used in Section 20 (1) shows that the Authority appointed under that provision of law is to exercise jurisdiction for deciding claims which relate to rates of wages, and rates for payment of work done on days of rest and overtime rates. If there be no dispute on rates between the employer and the employees, section 20 (1) would not be attracted. If the employer attempts to pay at lower W.A. No.204/2016 -9- rates, the workmen can invoke the authority's aid under Section 20(1). Indeed, the Supreme Court has held if there is no dispute about the rates of wages, the Minimum Wages Act has no role to play.
19. If the dispute concerns wages not paid under whatever pretext, the workmen could invoke, according to the Supreme Court, Section 15(1) of the Payment of Wages Act or Section 33C of the Industrial Disputes Act.
20. Interpreting sub-section (3) of Section 20, the Supreme Court has held that the power to make orders for payment of actual amount due to an employee under Section 20(3) cannot, therefore, be interpreted as indicating that the jurisdiction to the Authority under Section 20(1) has been given to enforce payment of amounts and not to ensure compliance by the employer with the rates fixed under that Act.
21. On the facts, the Court has further observed that it could find no dispute relating to the rates. Though the workmen pleaded the rates at which their claims had to be computed, they did not allege that the employer disputed those rates. Nor did the employer pleaded W.A. No.204/2016 -10- that the workmen's claims were payable at a rate different from the rates claimed by them.
22. In Chandi Lal Saha there was no dispute regarding the rates of wages, and it was admitted by the parties that the minimum rates of wages were fixed by the Government of India under the Act. The workmen demanded the minimum wages so fixed and the appellant denied the same to the workmen on extraneous considerations. Under those circumstances, the Supreme Court observed, the remedy under Section 20 of the Act was not available to the workmen, and the Labour Court rightly exercised its jurisdiction Under Section 33-C (2) of the Industrial Disputes Act, 1947. In fact, Chandi Lal Saha followed Athani.
23. In State of Jharkhand v. Nirmal Singh3, a case almost identical on facts to this case, a Division Bench of the High Court of Jharkhand has examined Section 20 (3) of the Act and also the precedential impact of Athani. After analyzing Athani, the Division Bench has observed that the language used in Section 20(1) shows that 3(2005) II LLJ 345 (Jhar) W.A. No.204/2016 -11- the authority appointed under that provision of law is to exercise jurisdiction for deciding claims which relate to the rates of wages, rates for payment for work done on days of rest and over time rates. If there be any dispute on rates between the employer and the employee, Section 20(1) would be attracted. The purpose of Section 20(1) must 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 workers are given the right to invoke the aid of the authority appointed under Section 20(1).
24. The High Court of Jharkhand has eventually held that "the authority under Section 20 of the Act has a right to entertain a complaint that even though minimum wage under the Act has been fixed, the employer is not paying that wage, but something less and after the inquiry contemplated, to-direct the employer on being satisfied that minimum wage is not being paid, to pay the minimum wage to the employee." As seen, the Court ruled that Athani has not confined the redressal mechanism under the Minimum Wages Act W.A. No.204/2016 -12- only to rates of wages and the disputes about their denial. It has, the Division Bench reckoned, held that the concurrent jurisdiction of cognate enactments is permissible--in fact, prevalent, too.
25. We may notice that this Court, too, has adopted the same view point: Suja Isac v. Deputy Labour Commissioner.4 In the impugned judgment, the learned Single Judge has discussed the issue and the binding precedents threadbare and held that the Ext.P12 order is unassailable.
26. We respectfully concur with the precedential analysis of Athani as undertaken by the High Court of Jharkhand in Nirmal Singh. And we also hold that the impugned judgment has resolved the issue by applying the correct statuary and precedential parameters, thus, calling for no interference.
27. In these facts and circumstances, we find no merit in the appeal and so we dismiss it. No order on costs.
The learned counsel for the appellant has brought to our notice that the appellant has sought an alternative relief in the writ petition:
42014 (4) KLT 2281 W.A. No.204/2016 -13- that the principal employer, the BSNL, be directed to pay compensation awarded in Ext.P12. We clarify that if the law permits, the appellant may realise the amounts from any entity as it desires.
ANTONY DOMINIC, JUDGE.
DAMA SESHADRI NAIDU, JUDGE.
Rv W.A. No.204/2016 -14-