Madhya Pradesh High Court
M/S. Ziqitza Health Care Ltd. vs Anil Kumar Singh Kaurav on 2 July, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2024:MPHC-GWL:16623
1 MP-206-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 2 nd OF JULY, 2024
MISC. PETITION No. 206 of 2019
M/S. ZIQITZA HEALTH CARE LTD. AND OTHERS
Versus
ANIL KUMAR SINGH KAURAV AND OTHERS
Appearance:
Shri N.K. Gupta, learned Senior Advocate alongwith Ms. Chitra Bais, learned
counsel for the petitioners.
Shri Saurabh Bhelsewale, learned counsel for the respondent No.1.
Shri Sankalp Sharma, learned counsel for respondent No.2.
ORDER
1. The instant petition under Article 227 of the Constitution of India is directed against the orders dated 02.11.2017 passed by Labour Court No.1, Gwalior in COC 117/D/2017/MW Act, whereby the petitioners herein have been directed to make payments of over time wages as well as the work done on rest days to the tune of Rs.81,283/- alongwith penalty of Rs.10,000/- to the respondent. The petitioners are further aggrieved by the order dated 16.08.2018 passed in case No.232/2017/MW Act, whereby the application filed under Order 9 Rule 13 of CPC for setting aside the exparte award dated 02.11.2017 was also rejected.
2. The case in nutshell is that present respondent No.1 had filed an application under Section 20 of Minimum Wages Act before the labour Court No.1, Gwalior, which was registered as case No.COC Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 2 MP-206-2019 117/D/2017/MW Act. The Presiding Officer issued notices to the petitioners and deeming the service being effected proceeded against the petitioners exparte and after adducing the evidence on behalf of respondent No.1 passed finial order on 02.07.2020, which is impugned herein. As an when, the fact of passing of the award came to the knowledge of petitioners, an application under Order 9 Rule 13 CPC has been preferred on 30.11.2017.
3. After service of notice on respondent No.1 and in the presence of the counsel, the matter was finally heard and decided vide order dated 16.08.2018 and a view was taken that no ground is made out by the petitioners for setting aside the exparte proceedings against him and accordingly the application was rejected.
4. Aggrieved by the said rejection of the application as well as the award passed by the labour Court the present petition came to be filed.
5. Learned senior counsel Shri N.K. Gupta alongwith Ms. Chitra Bais, Advocate had raised two folds arguments; first argument was based on decision of the Hon'ble Apex Court in the matter of Steel Authority of India Ltd. & another Vs. Jaggu & others reported in (2019)7 SCC 658 ; and second argument was is based on the decision of Division Bench of this Court in the matter of Chief Executive Officer/Director Ziquitza Health Care Ltd. Vs. 108 Ambulance Karmachari Sangh Madhya Pradesh and another passed in MP No.5802/2022 on 10.04.2024.
6. Learned senior counsel while referring to the matter of SAIL Vs. Jaggu (Supra) contended that the very application of respondent No.1 under Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 3 MP-206-2019 Section 20 of Minimum Wages Act before the labour Court was not maintainable, as the minimum wages Act is primarily concerned with fixing of rates of minimum wages of the workers, overtime rates, rate of payment for the work done on a day of rest and is not really intended to do an act for enforcement of payment of wages. It was further contended that herein case the only prayer which has been made under an application under Section 20 of the Act was to make payment towards overtime done by respondent No.1 for over and above 08 hours up to 12 hours, therefore, the said aspect entails the application to be not maintainable but learned labour Court though it was a legal issue and the present petitioners were exparte had not considered same and passed the award, which is per se illegal.
7. It was further contended that when the provisions of Minimum Wages Act is said to be not attracted in the present matter for payment of overtime/wages, respondent No.1 was required to take resort of other laws such as payment of Wages Act or Industrial Dispute Act.
8. It was further contended that in absence of any rebuttal on the part of the present petitioners with regard to the rate of overtime, there was no occasion for the learned labour Court to have gone into the aspect of directing the petitioners to make payment and as such the very application under Section 20 of Minimum Wages Act was not maintainable, therefore, the petition in that context deserves to be allowed.
9. In alternate, while placing reliance in the matter of Chief Executive Officer (Supra) it is contended by the senior counsel that there is no evidence Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 4 MP-206-2019 adduced on behalf of respondent No.1 to substantiate that he had worked overtime over and above 08 hours except for pleadings in the application and his own statement. Even if it is assumed for the sake of arguments that he had continued up till 12 hours, the period over and above 08 hours can only to be construed to be resting period and cannot be spread over as overtime and for that respondent No.1 is not entitled for any amount.
10. While referring to paragraphs 11 and 12 of the aforesaid judgment, it has been contended that Division Bench has taken note of the aforesaid aspect and had categorically denied the contentions of the respondent/employee therein that waiting for emergency calls and responding it within minutes to urgency can be treated as working hours is not sustainable, as there is distinction between working hour and resting period as deliberated by this Court in case of Gurusharan Singh Brij Bhushan singh Vs. Manager Rewa Transport SErvices and others. [1967MPLJ 442].
11. It was further argued that though the petitioners were proceeded exparte before the labour Court, the aforesaid issue raised in the present petition being legal issues should have been dealt with by the learned labour Court, as raising a legal issue even at later stage is permissible, therefore, on both the counts the present petition deserves to be allowed and the impugned order passed by learned labour Court is liable to be set aside.
12. Per contra, Shri Saurabh Bhelsewale appearing for respondent No.1/employee has submitted that no illegality has been committed by the labour Court in directing the petitioners to make the payment of wages of the Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 5 MP-206-2019 overtime which he had done during the tenure of his service. With regard to the maintainability of the application under Section 20 of Minimum Wages Act before the learned labour Court he had relied upon the decision of Single Bench of this Court in the matter of M/s Ziqitza Health Care Ltd. & another Vs. Sushil Kumar Dohre & others passed in M.P. No.4951/2019 on 29.11.2019, which was later on affirmed by the Division Bench of this Court in W.A. No.329/2020 vide order dated 29.05.2020 and it was contended that the arguments as advanced by the Senior Counsel with regard to maintainability of petition has no force, as the Division Bench of this Court has held the application under Section 20 of the Minimum Wages Act is maintainable for determining the claim arising out of the payment of less than the minimum rates of wages or in respect of payment of wages in relation to the days of rest for work done on such of the days as provided under clause (b) and (c) of the sub-rule (1) of Section 13 or of wages at the overtime rate under Section 14.
13. With regard to the fact that the respondent had worked for more than 08 hours up to 12 hours it was submitted that in the pleadings paragraph 4 and 5 of the application filed under Section 20 of the Minimum Wages Act there is specific mention of the aforesaid fact which has not been rebutted by the respondents by filing their response to the pleadings, which had went unrebutted and thus, would amount to admission on the part of the petitioners and apart from that he has also adduced his evidence before the labour Court and had pleaded that he had worked for more than 08 hours in a day of which chart has been appended alongwith the application and Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 6 MP-206-2019 accordingly has sought for payment of overtime for the said period and it was only after adjudication of the aforesaid evidence adduced on behalf of respondent No.1 that labour Court has come to the conclusion that he was not entitled for receiving the said payment.
14. It was further submitted that the Division Bench of this Court in the matter of Chief Executive Officer/Director Ziquitza Health Care Ltd. (Supra) has considered the provisions of two Acts treating them to be conflicting were Motor Transport workers Act, 1961 and Minimum Wages Act, 1948 but had not considered Section 38 of the Motor Transport workers Act, 1961, wherein there is specific mention that the act shall not apply in relation to any transport vehicle used for transporting sick and injured persons, therefore, the provision which has been considered and adjudicated upon in the aforesaid decision were not at all applicable in the present matter.
15. It was further submitted that if the aforesaid analogy is considered in its right perspective, then only the provisions of Minimum Wages Act would be said to be applicable for determining the rate of wages for overtime which the labour Court has rightly considered and accordingly has rightly passed the order. On the basis of aforesaid arguments, it was contended that the case of the petitioner is bogus and, therefore, the award passed by the learned labour Court needs no interference and thus, it was prayed that the present petition be dismissed with exemplary cost.
16. On the other hand, Shri Sankalp Sharma, learned counsel for Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 7 MP-206-2019 respondent No.2 had supported the case of the petitioners and had submitted that firstly the application under Section 20 of Minimum Wages Act itself was not maintainable and secondly in the light of judgement of Division Bench since no evidence has been adduced by respondent No.1 with regard to his claim that he had worked for more than 08 hours, the claim adjudicated by the labour Court was not sustainable in the eyes of law. Accordingly, the petition should be allowed.
17. In alternate, it has been contended that if this Court comes to a conclusion that the award passed by the labour Court is in conformity with the legal provisions, then since respondent No.1 was an employee of the petitioners and was outsourced by respondent no.2 through the petitioners, therefore, even otherwise the liability would be that of the petitioners. It was further submitted that in paragraph 13 of the cross examination the respondent No.1 had admitted this fact and in the light of aforesaid admission, no liability can be saddled on the respondent No.2.
18. Heard learned counsel for the parties and perused the record.
19. The Hon'ble Apex Court in the matter of Steel Authority of India Ltd. & another Vs. Jaggu & others(Supra) in paragraphs 33 and 34 has dealt with the exposition of the scheme of Minimum Wages Act,1948 and its jurisdiction to invoke under Section 20(1) of the Act. For reference paragraphs 33 and 34 of the case is quoted herein below:-
33. The exposition of scheme of the minimum wages Act, 1948 and its jurisdiction to invoke Section 20(1) of the Act has been examined by this Court in Town Municipal Council, Athani Vs. The Presiding Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 8 MP-206-2019 Officer, Labour Courts, Hubli and Others, Etc. (supra).
"7. The long title and the preamble to the Minimum Wages Act show that this Act was passed with the object of making provision for fixing minimum rates of wages in certain employments. The word "wages" has been given a wide meaning in its definition in Section 2(h) of that Act and, quite clearly, includes payment in respect of overtime and for work done on weekly offd ays which are required to be given by any employer to the workmen under the provisions of that Act itself. Section 13(1), which deals with weekly offdays, and Section 14(1), which deals with overtime, are as follows:
13. (1) In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act, the appropriate Government may-
(a) fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals;
(b) provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest;
(c) provide for payment for work on a day of rest at a rate not less than the overtime rate.
14. (1) Where an employee, whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage period as may be prescribed, works on any day in excess of the number of hours constituting a normal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate Government for the time being in force, whichever is higher. In order to provide a remedy against breach of orders made under Sections 13(1) and 14(1), that Act provides a forum and the manner of seeking the remedy in Section 20 which is as follows:
20. (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 a stipendiary Magistrate to be the Authority to hear 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 subsection (1) of Section 13 or of wages at the overtime rate under Section 14, to employees employed or Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 9 MP-206-2019 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 subs ection (2):
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) ....
(4)....
(5)....
(6)....
(7)....
We have mentioned these provisions of the Minimum Wages Act, because the language used at all stages in that Act leads to the clear inference that that Act is primarily concerned with 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 for enforcement of payment of wages for which provision is made in other laws, such as the Payment of Wages Act, 4 of 1936, and the Industrial Disputes Act 14 of 1947. In Section 20(1) of the Minimum Wages Act also, provision is made for seeking remedy in respect of claims arising out of payment of less than the minimum rates of wages or in respect of 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. This 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, rates for payment of work done on days of rest and overtime rates. 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 Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 10 MP-206-2019 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. If the payment is withheld beyond the time permitted by the Payment of Wages Act even on the ground that the amount claimed by the workman is not due, or if the amount claimed by the workman is not paid on the ground that deductions are to be made by the employer, the employee can seek his remedy by an application under Section 15(1) of the Payment of Wages Act. In cases where Section 15 of the Payment of Wages Act may not provide adequate remedy, the remedy can be sought either under Section 33C of the Act or by raising an industrial dispute under the Act and having it decided under the various provisions of that Act. In these circumstances, we are unable to accept the submission made by Mr Sen on behalf of the appellant that Section 20(1) of the Minimum Wages Act should be interpreted as intended to cover all claims in respect of minimum wages or overtime payment or payment for days of rest even though there may be no dispute as to the rates at which those payments are to be claimed. It is true that, under Section 20(3), power is given to the Authority dealing with an application under Section 20(1) to direct payment of the actual amount found due; but this, it appears to us, is only an incidental power granted to that Authority, so that the directions made by the Authority under Section 20(1) may be effectively carried out and there may not be unnecessary multiplicity of proceedings. 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 for the purpose of enforcement of payment of amounts and not for the purpose of ensuring compliance by the employer with the various rates fixed under that Act. This interpretation; in our opinion, also harmonises the provisions of the Minimum Wages Act with the provisions of the payment of Wages Act which was already in existence when the Minimum Wages Act was passed. In the present appeals, therefore, we have to see whether the claims which were made by the workmen in the various applications under Section 33C(2) of the Act were of such a nature that they could have been brought before the Authority under Section 20(1) of the Minimum Wages Act inasmuch as they raised disputes relating to the rates for payment of overtime and for work done on weekly off-days." (Emphasis supplied)
34. The scheme of the Act of which reference has been made by this Court clearly manifests that the Act is primarily concerned with fixing rates of minimum wages, overtime rates, rate for payment of work on a Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 11 MP-206-2019 day of rest and is not really intended to be an Act for enforcement of payment of wages for which provision has been made in other laws such as the Payment of Wages Act, 1936 and the Industrial Disputes Act, 1947. Section 20 of the Minimum Wages Act, 1948 is primarily enacted to resolve disputes about the rates of wages, rates of payment of work done on days of rest and overtime rates and to ensure that the rates of wages which are notified by the appropriate Government for various categories of employees under the Minimum Wages Act are to be strictly complied with by the employer in making payments and if any payment is made at the rates lower than the minimum rates of wages prescribed by the appropriate Government, the remedy has been provided to the workmen/employee to invoke Section 20(1) of the Act and being a selfcontained Code and a beneficial legislation, it is a social protection to ensure and secure adequate living wage in the interest of public and looking to the nature of enquiry postulated under the scheme of Minimum Wages Act, 1948, there appears no scope of enquiry to examine the principles of equal pay for equal work which is a dispute to be determined by a adjudicatory mechanism provided under the law.
20. It has categorically been held by the Apex Court that from the provisions of Minimum Wages Act a clear inference could be drawn that the Act is primarily concern with fixing of rates of minimum wages of the workers, overtime rates, rate of payment for the work done on a day of rest and is not really intended to be an act for enforcement of payment of wages for which provision has been made in other laws such as Minimum Wages Act and Industrial Disputes Act.
21. It has further been held by the Apex Court that in Section 20(1) of the Minimum Wages Act, 1948 also the provision is made for seeking remedy in respect of claims arising out of payment of less than the minimum rates of wages or in respect of payment of remuneration for days of rest or for work done on such days under clause (b) and (c) of sub-section (1) of Section 13 or of the wages of overtime rate under Section 14 and the Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 12 MP-206-2019 language used under Section 20(1) shows that the authority appointed under the provision of that provision of law is to exercise jurisdiction for deciding the claims which relate to rates of wages, rates of payment of work done on days of rest and overtime rates. It has been further held that if there is no dispute as to the rates between the employer and employees, Section 20(1) would not be attracted and 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) and in the 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 under the payment of Wages Act. If the payment is withheld beyond the time permitted by the Payment of Wages Act even on the ground that the amount claimed by the workman is not due, or if the amount claimed by the workman is not paid on the ground that deduction are to be made by the employer, the employee can seek his remedy by way of an application under Section 15(1) of the Payment of Wages Act and in cases where Section 15(1) of the Payment of Wages Act may not provide adequate remedy, the remedy can be sought either under Section 33-C of the Act or by raising an industrial dispute under the Act and having it decided under the various provisions of the Act.
22. In these circumstances, it would not be acceptable that Section Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 13 MP-206-2019 20(1) of the Minimum Wages Act should be interpreted as intended to cover all claims in respect of minimum wages or overtime payment or payment for days of rest even though there may be no dispute as to the rates at which those payments are to be claimed. It is true that under Section 20(3), power is given to the Authority dealing with an application under Section 20(1) to direct payment of the actual amount found due; but this is only an incidental power granted to that Authority, so that the directions made by the Authority under Section 20(1) may be effectively carried out and there may not be unnecessary multiplicity of proceedings.
23. Thus, 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 for the purpose of enforcing of payment of amounts and not for the purpose of ensuring compliance by the employer with the various rates fixed under that Act. In the light of the judgement passed by the Apex Court in the matter of Steel Authority of India Ltd. and Ors. Vs. Jaggu and Ors. (supra) , the interpretation thus harmonises the provisions of the Minimum Wages Act with the provisions of the payment of Wages Act which was already in existence when the Minimum Wages Act was passed and the scheme of the Act clearly manifests that the act is primarily concern with fixing rates of the minimum wages of the workers, overtime rates, rate for payment of work on a day of rest and is not really intended to be an act for enforcement of payment of wages for which provision has been made in other laws such as Payment of Wages Act, 1936 and the Industrial Disputes Act, 1947. , thus, Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:16623 14 MP-206-2019 the provision of Section 20 can be invoked primarily to resolve the dispute regarding rate of wages etc.
24. It is also pertinent to note that nowhere the petitioners have raised any dispute with regard to rate of minimum wages which the respondent had claimed, rather they have only disputed about the actual period for which the respondent had worked beyond the period of 08 hours i.e. the period of actual overtime work.
25. The crux, therefore, would be that the Section 20 of the Minimum Wages Act, 1948 is primarily enacted to resolve the disputes about the rates of wages, rates of payment of work done on the days of rest and overtime rates and to ensure rates of wages which are notified by the appropriate Government for various categories of employees under the Minimum Wages Act and are strictly complied with by the employer in making payments and if any payment is made at the rates lower than the rates of minimum wages prescribed by the appropriate government, the remedy has been provided to the workman/employee to invoke Section 20(1) of the Act but herein case admittedly the claim of the petitioner was for payment of the arrears of wages of Rs.81,283/- and there was no dispute about the minimum wages, rate of the payment of the work done on the days of rest or overtime rates, therefore, the provision of Section 20(1) of Minimum Wages Act according to this Court would not be attracted.
26. Accordingly, both the orders Annexure P/1 dated 02.11.2017, whereby the petitioners have been directed to pay sum of Rs.81,283/-
Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PMNEUTRAL CITATION NO. 2024:MPHC-GWL:16623 15 MP-206-2019 towards the arrears of overtime wages alongwith penalty of Rs.10,000/- as well as the order dated 16.08.2018 rejecting the application under Order 9 Rule CPC are hereby set aside. Since this Court has held that the provisions of minimum wages Act would not be applicable to the present case, therefore, the respondent is granted liberty to assail the claim before the appropriate forum under the appropriate law.
27. With the aforesaid direction, the present petition stands disposed of.
Certified copy as per rules.
(MILIND RAMESH PHADKE) JUDGE neetu Signature Not Verified Signed by: NEETU SHASHANK Signing time: 9/26/2024 5:43:35 PM