Karnataka High Court
Sri P S Kempaiah vs Union Of India on 12 July, 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
WRIT PETITION No.22227/2022 (L-RES)
BETWEEN:
P.S. KEMPAIAH
S/O. LATE SIDDARAMA BHOVI,
AGED ABOUT 55 YEARS,
R/AT K.G. SRINIVASAPURA VILLAGE,
SOMAPURA HOBLI,
DABASPETE POST - 562111,
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT.
... PETITIONER
(BY SRI P.S. KEMPAIAH, PARTY-IN-PERSON)
AND:
1. UNION OF INDIA
MINISTRY OF LABOUR AND EMPLOYMENT,
OFFICE OF THE,
CHIEF LABOUR COMMISSIONER (CENTRAL)
JAISALMER HOUSE,
MANN SINGH ROAD,
NEW DELHI - 110 001.
2. NATIONAL HIGHWAY AUTHORITY OF INDIA
REGIONAL OFFICE, BENGALURU,
SY NO.13.14KM,
NEAR DEEPAK BUS STOP,
M.S. RAMAIAH ENCLAVE,
BENGALURU-TUMKUR ROAD, NAGASANDRA,
BENGALURU - 560 073
REPRESENTED BY IT'S
CHIEF GENERAL MANAGER (KARNATAKA).
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3. THE GENERAL MANAGER
THE MANAGEMENT OF,
M/S. JAS TOLL ROAD COMPANY LTD.,
KULUME PALYA, NH-4,
OPPOSITE TO KBDL, NELAMANGALA,
BENGALURU - 562 123.
... RESPONDENTS
(BY SRI SHANTI BHUSHAN ASG FOR R-1;
SRI SAGAR LADDA, ADVOCATE FOR R-2;
SRI L.M. CHIDANANDAYYA, ADVOCATE FOR C/R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASHING THE DEPUTY LABOUR COMMISSIONER REGIONAL-1
(STATE) QUASHING ORDER IN NO.VU KARNATAKA AA BEM-
1/KARNATAKA VE KARNATAKA/CR-50 AND 51/2021-22 DATED
03.09.2022 AS PER ANNEXURE-AX4 AND DEPUTY LABOUR
COMMISSIONER REGIONAL-1 (STATE) QUASHING ORDER
NO.VU KARNATAKA AA BEM-1/VE PA KARNATAKA/CR-09 AND
10/2021-22 DATED 05.09.2022 AS PER ANNEXURE-AX5 AND
ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 04/07/2024 FOR ORDERS AND COMING FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
In this writ petition, petitioner has sought the following reliefs:
"a) Issue a Writ in the Nature of CERTIORARI quashing the Deputy Labour Commissioner Regional-1 (State) Quashing order in No.Vu Karnataka Aa Bem-
1/Karnataka Ve Karnataka/CR-50 & 51/2021-22 dated 03/09/2022 as per Annexure-AX4 and Deputy -3- Labour Commissioner Regional-1 (State) Quashing Order No. Vu Karnataka Aa Bem-1/Ve Pa Karnataka /CR-09 & 10/2021-22 dated 05/09/2022 as per Annexure-AX5
b) The Jass Toll Company ltd of the permanent worker loss of the salary from 2005 to 2019 By Violating and corruption of the salary by 3rd respondent and 2 respondent of the principal employer salary cheating of govt of india notifications by violating and labour law. Violating salary components of loss of balance salary emoluments
1.Basic Wage per day 2.DA 3.HRA 4.EPF 5. ESI
6.Bonus as per annexure-H1 to H15 & as per annexure-J1 to J21 and Annexure-K area A calculate of the salary and Annexure-K1 Area C Calculate of the salary the 2nd respondent and 3rd respondent by Concession agreement of the project high way is Ending on 06-11-2022 as per Annexure-AZ the Hon'ble High Court of Karnataka Bengaluru. The take to legal action by loss of balance salary to amount RS 38,84,866/- The loss of salary labour law compensation of 10 (Times) penalty 3,88,48,460/- (Three Crore Eighty Eight Lakh Forty Eight Thousand Four Hundred Sixty only.
Amount by 1st to fix of Fixed Deposit amount in the High Court of Karnataka Bengaluru.
C) To Accordance in law the necessary legal action to pass appropriate orders / Deem fit by this Hon'ble Court to the facts and circumstances of the case, with costs in the interest of justice."
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2. Heard Sri P.S. Kempaiah-petitioner-party-in- person, Sri S.V. Desai, learned CGSC for respondent No. 1, Sri V.S. Likith, learned counsel for Sri Sagar Ladar, learned counsel for respondent No.2 and Sri L.M. Chidanandaya, learned counsel for respondent No.3.
3. Petitioner as a President of JASS Toll Road Company Workers Union made claim seeking revised minimum rates of wages to various category of workers including "clerks and data entry operators" covering under the skilled/clerical category in the schedule mentioned categories engaged in respect of "construction or maintenance of road or building operations" as per the notification of Government of India dated 19.01.2017 and also seeking benefits of pay and allowances by treating them, the members of the union as "skilled labourers/workers" since from the date of appointment 2005 and considering the area of workplace as area 'A' instead of area 'C' of the National Highways Authority of India as per 2007 notification issued by the BBMP, Bangalore till March, 2020.
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4. The petitioner was appointed as an 'Assistant Toll Operator' for four-lane Nelamangala-Tumkur Highway from kilometers 29.9 to 62.0 (NH-4) on a BOT basis. The Government of India fixed minimum wages for unskilled labour prescribed in certain areas, which were categorized as A, B, and C categories of the areas. Another notification was issued by the Government of India revising the minimum wages of various categories, including unskilled labour, skilled Labour and semi-skilled Labour with a clear definition of each of the categories. This being so, on 19.01.2017 the Government of India revised the minimum wage for different categories of employees, including unskilled Labour. The petitioner, as President of the JASS Toll Workers Union, sought clarification from the Deputy Chief Labour Commissioner on the definition of construction and maintenance of the roads and highways. The Chief Labour Commissioner (Central) issued clarification that the 'clerks and data entry operators' are skilled workers as per the schedule in the employment of construction and maintenance of the roads and building -6- operations as per the Gazette Notification dated 19.01.2017.
5. Petitioner gave a representation on behalf of the Union to implement the notification dated 19.01.2017 treating the employees as "skilled" and "clerical" in respect of the construction or maintenance of the road or building operators. The petitioner as the President of the Union filed a complaint on 13.08.2019, alleging that there was a payment of less than minimum wage from 2004 to 2019 and for implementation of the Notification dated 19.01.2017 and the subsequent notification dated 27.03.2019 before the Deputy (Chief) Labour Commissioner. The Deputy Chief Labour Commissioner (Central) issued notice to the National Highways Authority of India and respondent No.3 to be present on the complaint filed by the union, which was represented by the petitioner. The Regional Labour Commissioner directed the petitioner-union to approach the Authority under the Minimum Wages Act, if there is any short payment / less payment of wages to the workers and in case of non- -7- payment of wages, he may raise the matter before the Labour Commissioner, Government of Karnataka under the Payment of Wages Act, 1936.
6. The Regional Labour Commissioner (Central) gave an endorsement stating that the payment of minimum wages will come to the Labour Commissioner, Karnataka and the same will not come to the Regional Labour Commissioner (Central).
7. Aggrieved, the petitioner, through the workers union represented by the petitioner, filed W.P. No.5965/2021. This Court held that there is no infirmity in the order passed by the Regional Labour Commissioner (Central) and dismissed the writ petition reserving liberty to the petitioner to approach the jurisdictional forum. This Court confirmed the order of the Regional Labour Commissioner (Central). Pursuant to which, the petitioner filed complaint to the Labour Commissioner, Karmika Bhavan on 20.04.2021, alleging that there is less minimum wages as per the notification dated 19.01.2017 and the notification dated 27.03.2019 and also filed -8- another claim under the Minimum Wages Act on 28.06.2021, claiming Rs.14,750/- from the year 2005, treating the workplace of the petitioner as an 'A' category area. The Labour Commissioner issued an endorsement stating that the petition has to be filed under the Minimum Wages Act and the Payment of Wages Act and therefore, issued an endorsement permitting to submit the claims separately under the Minimum Wages Act and Payment of Wages Act. The petitioner filed a memo to consider the claim petition independently.
8. The first claim before the Deputy Labour Commissioner is seeking a sum of Rs.33,12,274/- claiming the shortage of minimum wages and the minimum wages is not as per the Notifications dated 19.01.2017 and 27.03.2019, issued by the Government of India. The Deputy Labour Commissioner directed the petitioner to approach the Central Government created under the Minimum Wages and as per the order dated 03.09.2022 held that the payment of wages as per the Notifications dated 19.01.2017 and 27.03.2019 is issued by the -9- Government of India to its employees and cannot be imported into the notification issued under the Minimum Wages Act as held by the Apex Court in the case of Airfreight Ltd. Vs. State of Karnataka1. The claim made by the union is rejected by the Deputy Labour Commissioner directing the union to approach the appropriate authority under the Minimum Wages Act. The Deputy Labour Commissioner on threadbare consideration of the matter held that there is no provision to pay minimum wages as per the notification stated supra issued by the Government of India under the provisions of the Minimum Wages Act. The Apex Court, in Airfreight's case, has held as under:
"The law does not require that if some employer of the shop or establishment is paying more than minimum wages, it should be specifically excluded from its operation of the Act. At any point of time, if it pays less than minimum wages, the said employer would be liable to be dealt with in accordance with law and would be compelled to pay the same. The process of making the Act applicable to certain industries or establishments situated in particular localities does not require that the State 1 (1999) 6 SCC 567
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Government should make a distinction with each and every shop and establishment by actual verification whether they were paying minimum wages or not. The notification is made applicable to all shops and commercial establishments in the State of Karnataka where the State has found that the labour was unorganized or that wages paid to the workers were below minimum wages. Hence, the contention of the appellant that the notification dated 19-8-1987 would not be applicable to the appellant Company is without any substance."
9. The order passed by the Deputy Labour Commissioner dated 03.09.2022 is justifiable and does not warrant any interference.
10. The other claim made by the union is seeking to extend the benefits of pay and allowances by treating the members of the union as "skilled labours/workers"
since from the time of appointment 2005 and considering the area of workplace as area 'A' instead of area 'C' of the second respondent-company as per 2007 Notification issued by BBMP, Bangalore till March, 2020. The Deputy Labour Commissioner by the impugned order dated 05.09.2022 after considering the material on record held that the wages paid to the members of the union is more
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than the minimum wages and the payment of dearness allowance is also strictly in accordance with law.
11. The petitioner states that he should be treated as a skilled worker and the area where he is working should be treated under as 'A' category. The contention of the party-in-person is that his appointment was in Bangalore, and Bangalore falls in the 'A' category and all other categories are in the area 'B' category. The fact remains that though the petitioner was appointed in Bangalore, he was posted in Tumkuru, and Tumkuru cannot be treated as an 'A' category. Admittedly, when the petitioner was working in Tumkuru toll, which comes in 'C' category, the claim made by the petitioner that he was working in 'A' category under the area of the minimum wage notification is completely incorrect and without basis. The 'A' category area is Bangalore city and the minimum wages prescribed for Bangalore city cannot be made use of for claiming wages for the 'C' area, Tumkuru, as the cost of living in both the places are totally different. Admittedly, the toll booth where the petitioner was
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working is 70 kms away from Bangalore city and therefore, the claim of the petitioner that he comes in 'A' category is highly unsustainable.
12. The material on record would indicate that JASS Toll Workers Union represented by its President filed petition under the Minimum Wages Act and Payment of Wages Act claiming Rs.14,750/- from the year 2005, treating the workplace of the petitioner as 'A' category. The Petitioner has claimed minimum wages from the year 2005 to 2019. Section 20 of the Minimum Wages Act reads as under:
"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 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
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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 authorized 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:"
13. The plain reading of Section 20 enumerates that where an employee has any claim of the nature referred to in Sub-Section 1, the employee himself or his or any legal practitioner or any other person authorized in writing to act on his behalf may apply to authority for direction, provided that such an application shall be presented within six months from the month when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
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The claim made by the petitioner is from the year 2005 to 2019, which is clearly barred under the proviso to Section 20 of the Minimum Wages Act.
14. The claim made by the petitioner is that he should be treated as a skilled worker and that he should be paid minimum wages, treating the petitioner as a skilled worker. The definition of skilled worker issued by the Government of India from time to time defines the words 'unskilled, semi-skilled, skilled work and highly skilled', which read as under:
"(a) "Unskilled Work" means work which involves simple operations requiring little or no sill or experience on the job
(b) "Semi-skilled Work" means work which involves some degree of skill or competence acquired through experience on the job and which is capable of being performed under the supervision or guidance of a skilled employee and include unskilled supervisory work.
(c) "Skilled Work" means work which involves skill or competence acquired through experience on the
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job or through training as an apprentice in a technical or vocational institute.
(d) "Highly Skilled Work" means work which call s for a degree of perfection and full competence in the performance of certain tasks including clerical work acquired through intensive technical or professional training or practical work experience for certain reasonable period and also requires of an worker to assume full responsibility for the judgment and or decision involved in the execution of these tasks."
15. The collecting toll and opening of the boom barrier to release the vehicles after collecting the toll is not a skilled work, but an unskilled work and therefore, the petitioner was discharging the unskilled work and thus, the petitioner cannot be held to be discharging any skilled work, making the wages applicable to skilled worker to be applied to the petitioner.
16. The Deputy Labour Commissioner issued an endorsement that he has no jurisdiction to entertain the petition for non-implementation of the notification, issued by the Government of India under the provisions of the Minimum Wages Act.
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17. All the while, the petitioner had represented the Union as a president, and now the instant petition is in his individual capacity. The members of the union have approached the Industrial Tribunal by raising a dispute and the matter is pending consideration. The order passed by the Deputy Labour Commissioner dated 03.09.2022 and 05.09.2022 is in accordance with law and does not call for any interference. The petitioner has not made out any grounds for interference and accordingly, the petition is dismissed as devoid of merits.
Sd/-
JUDGE S*/MBM