Andhra HC (Pre-Telangana)
Divisional Railway Manager, South ... vs Labour Enforcement Officer (Central), ... on 13 October, 1997
Equivalent citations: 1998(1)ALT40
ORDER
1. The common question which arises for decision in these writ petitions is whether the licensed porters, who are employed in the Parcel Offices of the Railway, are entitled for payment of the minimum wages as per the Minimum Wages Act, 1948 (hereinafter referred to as the Act).
2. The competent authority under the Act held in favour of the porters and directed the Railway Administration to pay not only the difference of wages claimed but also a further sum equivalent to the difference of wages as one time compensation. Questioning the said orders of the authority, these writ petitions are filed by the Railway.
3. It is not in dispute that employment in loading and unloading in Railways' goods sheds, docks and ports was brought within the purview of the Act by adding the same to Part-1 of the Schedule to the Act vide Notification No. S.P. 2092 date April 23, 1983 issued by the Central Government which is the appropriate Government. Likewise employment in ashpit cleaning on Railways was added to Part-I of the Schedule to the said Act vide Notification No.S.O. 2093 dated April 23, 1983. By Notification dated December 7, 1989, the Central Government fixed the minimum rate of wages payable to the employees engaged in loading and unloading in Railways' goods sheds and in ashpit cleaning the Railways. The minimum wages so fixed were being revised from time to time. Thus it is beyond dispute that the employees engaged in loading and unloading in Railways' goods sheds and in ashpit cleaning in Railways are covered by the Minimum Wages Act. The present controversy is whether the licensed porters engaged for loading and unloading in the Railways' Parcel Offices are also entitled for payment of the minimum wages as per the Act.
4. According to the petitioner (Railway Administration), employment in Railway Parcel Offices, which are distinct and different from Railways' goods sheds, is not covered by the aforesaid notifications and as such the licensed porters who work in the Parcel Offices are not entitled for payment of minimum wages. It is the further contention of the Railway that the licensed porters are not regular employees of the Railway but they are self employed labour whose main occupations to carry the luggage of the passengers at the time of alighting from and boarding into the train. The Railway Administration engages some of the licensed porters on a rotation basis for short intervals for the purpose 0 of loading and unloading of parcels in the breakvans of the trains and they are paid remuneration on hourly basis.
5. On the other hand, it is the contention of the respondents (licensed porters) that there is no distinction between goods sheds and Parcel Offices as the goods in both the places are, booked by the Railway and the nature of work done in both the places is essentially the same. They further contended that, on a proper interpretation, the statutory notification must be deemed to include parcel offices also and a clarification to this effect was given by the Deputy Chief Labour Commissioner, Government of India, Ministry of Labour, New Delhi on June 17, 1991. The Learned Counsel appearing for both parties have cited several decisions in support of their respective contentions reference to which will be made presently.
6. It must be noted at the outset that there is some ambiguity in the statutory notifications issued from time to time which has given rise to the present controversy. In the Notification No. S.O. 2092 dated April 23, 1983, the employment in loading and unloading in Railways' goods sheds, docks and ports, was notified as a scheduled employment under the Act. This notification was issued under Section-27 of the Act. But in the notification dated December 7, 1989 issued under Sections 3, 4 and 5 fixing the minimum wages, it is stated that the employment in loading and unloading in Railways' goods sheds, docks and ports was added to Part-I of the Schedule of the Act vide Notification No. S.O. 2092 dated April 23, 1983. According to the learned Counsel for the petitioners, the comma(,) after "Railways' "in the first notification is a printing or clerical mistake and it should be read as "Railways." Otherwise it makes no sense. On the other hand, the learned Counsel for the respondents argues that the comma used in the first notification is correct and the apostrophe used in the later notification is a mistake. He has pointed out that in several subsequent notifications issued in the years 1991, 1992 and 1996 revising the minimum wages, comma instead of apostrophe is used. He also placed reliance on issued by the Deputy Chief Commissioner of Labour, New Delhi where it is clarified that for the purpose of the notification dated December 7, 1989, parcel handling can be treated as goods, and Parcel Offices or platforms can be treated as goods sheds because here also the work of loading and unloading of goods (Parcels) is carried on. The learned Counsel for the petitioners, however, sought to repel this contention by citing a decision of the Supreme Court in Kerala Financial Corporation v. C. I. T., 1994 210 ITR 219 wherein it has been held that circulars cannot detract from or override the provisions of the Act. There can be no dispute about the said proposition. However, in the instant case, the discrepancy between the two notifications gives scope for some doubt which necessitated a clarification. Hence the Deputy Chief Commissioner of Labour issued the clarification dated June 17, 1991. The said Clarification is quite plausible and reasonable and it is in keeping with the objects of the Act which is intended to ensure payment of reasonable wages to labour and prevent exploitation of labour. It is a cardinal rule of statutory interpretation that welfare legislation should receive a broad and liberal interpretation rather than a strict and literal construction and that the benefit of doubt if any, should go to the weaker section (see Workmen v. American Express International Banking Corpn. (1985-II-LLJ-539) (SC), B. Shah v. Labour Court, Coimbatore, (1978-I-LLJ-29) (SC), People's Union for Democratic Rights v. Union of India, (1982-II-LLJ-454) (SC). In Cochin Shipping v. E. S. I. Corporation (1993-II-LLJ-795) (SC) it was held that the endeavour of the Court should be to place a liberal construction so as to promote the objects for which the welfare legislation has been made. The question which arose for consideration in that case was whether a carrier's establishment carrying on the activity of clearing and forwarding operations in the port of Cochin was a 'shop' falling under the purview of the notification whereby the Employees' State Insurance Corporation Act was extended to certain classes of establishments specified in the schedule thereto. The Supreme Court, while answering the said question in the affirmative, observed that merely because certain establishment which are akin to the shop are enumerated in the notification, the, Court is not obliged to give a narrow meaning to the word 'shop' nor does it, in any way, dilute the meaning of 'shop'. What is to be noted is that the object is to envelope as many establishments as possible without leaving any room for doubt. In C. I. T. v. Gotla 1985 156 ITR 323 also, which is cited by the beamed Counsel for the petitioners, it is held that if a strict and literal construction leads to absurd or unjust results which could not have been intended by the legislature, such construction should be avoided. In B. S. Mica Mines v. Union of India, 1984 Lab. IC 140, a Division Bench of the Delhi High Court held that the term 'Mica works' includes mica mines also and the notification revising minimum wages to workmen in mica works applies to the workmen in mica mines also.
7. Even accepting the interpretation suggested by the learned Counsel for the petitioners that employment in "Railways' good sheds" only is notified as scheduled employment under the Act, the term "Railways' goods sheds" is not defined in the statutory notifications. It is also, not defined either in the Minimum Wages Act or the Railways' Act 1989. Likewise 'Parcel Office' also is not defined. The provisions of the Railways' Act, 1989 do not seem to make any distinction between "goods sheds" and "parcel offices". Section 2(2) of the Railways Act, defines "carriage" as meaning the carriage of passengers or goods by a railway administration. Section 2(19) defines "goods" as including (i) containers, pallets or similar articles of transport used to consolidate goods; and (ii) animals. Section 2(27) defines "parcel" to mean goods entrusted to a railway administration for carriage by a passenger or a parcel train. Section 2(34) defines "railway servant" as meaning any person employed by the Central Government or by a railway administration in connection with the service of a railway. Chapter IX of Railways Act, 1989 deals with carriage of goods. Section 61 deals with maintenance of rate-books etc., for carriage of goods. It provides that every railway administration shall maintain, at each station and at such other places where goods are received for carriage, the rate-books or other documents which shall contain the rate authorised for the carriage of goods from one one to another and make them available for the reference of any person during all reasonable hours without payment of any fee. Chapter X deals with special provisions as to goods booked to individual stations. Chapter XI deals with responsibilities of railway administrations as carriers. The several provisions in these chapters do not seem to make any distinction between "goods sheds" and "parcel offices". Admittedly both are under the control of the Railway. The nature of work carried on in both the places is also practically one and the same though there might be some difference in the scale of operations and the quantities of goods booked. The work in parcel offices also is perennial in nature. The only difference is that the parcel offices are located on the platforms whereas the goods sheds are usually situated at some distance and the goods booked in goods sheds are loaded into goods trains whereas the goods from the parcel offices are loaded into the break-vans attached to the passenger trains. The goods in both the places are booked by the railway administration only and it is their responsibility to ensure the safety of the goods until delivery. Having regard to all these factors, there is no reason why the Railway's Parcel Offices cannot be treated as Railways' goods sheds coming within the purview of the statutory notifications and why the porters engaged in loading and unloading operations in the parcel offices should be denied the benefit of minimum wages prescribed under the Act.
8. The learned Counsel for the petitioners sought to contend that the licensed porters are not regular employees of the Railway and as such they are not entitled to the minimum wages. He has also submitted that this Court as well as the Supreme Court dismissed some writ petitions filed by licensed porters seeking directions for their absorption as regular employees of the Railways. In my view the question whether the licensed porters can be treated as regular employees or not, is not very material or relevant for deciding the question of their entitlement for minimum wages under the Act. Section 2(i) of the Minimum Wages Act defines "employee" to mean any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises not being the premises under the control and management of that other person; and also includes an employee declared to be an employee by the upto property Government; but does not include any member of the Armed Forces of the Union. Having regard to this wide and inclusive definition of "employee" under the Act, I am inclined to think that the licenced porters working in the Railway Parcel Offices also come within the purview of the Act. In Rajakamal State Insurance Corpn., (1996-II-LLJ-435) (SC), the question which fell for consideration was whether the Hamalis engaged by a carrier for loading and unloading of goods were entitled to the benefits of the provisions of the Employees' State Insurance Act. The employers contended that the provisions of the said Act cannot be applied to the Hamalis engaged by them as the Hamalis were not their regular employees, no regular salary was paid to the Hamalis but they were paid on piece rate after collecting the charges from the customers and there were no fixed hours of work. Rejecting the said contention the Supreme Court held that the test of payment of salary or wages is not relevant. What is important is that the Hamalis work in connection with the work of the establishment and the loading and unloading work is done at the directions is and control of the employer.
9. The learned Counsel for the petitioners next contended that the services of the licensed porters are utilised by the Railway for short intervals at the time of arrival of trains for the purpose of loading and unloading of goods into the breakvans and, thereafter, they are free to attend to their other work of carrying the luggage of passengers. This is countered by the learned Counsel for the respondents by stating that the services of the porters is utilised by the Railway on rotation basis for more than 9 hours per day and when the working hours are sought to be reduced to 4 hours per day, the porters filed W.P. No. 13364 of 1994 in this Court seeking a direction that their full-time employment cannot be converted into a part-time job for 4 hours a day only. The said writ petition was allowed by a learned Single Judge of this Court by judgment dated July 30, 1996 and the same was confirmed by the Division Bench in W.A. No. 1243 of 1996. The Special Leave Petition S.L.P. No. 2963 of 1997 filed against the said judgment was dismissed by the Supreme Court on March 26, 1997 holding that the porters are entitled to be paid according to the Minimum Wages Act on per-day basis eventhough they may not be regular employees of the Railway. In view of this pronouncement of the Apex Court, I am afraid the question raised is no longer open to debate. It may also be mentioned that pending disposal of W.P. No. 13364 of 1994, an interim direction was granted by this Court in W.P.M.P. No. 16321 of 1994 directing the South Eastern Railway, Visakhapatnam to pay the minimum wages under the Minimum Wages Act to the petitioners therein pending disposal of the writ petition. As the said interim direction was not implemented, Contempt Case No. 752 of 1995 was filed. The said Contempt Case was disposed of on March 22, 1996 holding that the petitioners therein were entitled to the minimum wages as fixed by the Government and directing the railway administration to pay the arrears within six weeks and to continue to pay the minimum wages in future as per the Government notification. It is stated by the learned Counsel for the respondents that the said order has been complied with. It is also stated that all the other railways except the South Central Railway have implemented the minimum wages for licensed porters working in the parcel offices.
10. For all the aforesaid reasons, I have no hesitation to hold that the licensed porters engaged in the Railway Parcel Offices are entitled for minimum wages as per the Minimum Wages Act.
11. The learned Counsel for the petitioners next contended that even in the goods sheds the Railway has now dispensed with its earlier practice of engaging the services of Hamalis for loading and unloading and that under the present system the Hamalis are provided by the consignors/consignees themselves and the Railway has nothing to do with them. This is beside the point as the question of payment of minimum wages to the porters by the Railway will arise only if and when the Railway utilises their services for loading and unloading.
12. The learned Counsel for the petitioners finally submitted that, in any case, the award of one-time compensation in addition to the difference of wages is not justified and it is without authority. Section 20(3) of the Minimum Wages Act empowers the authority to direct payment, in addition to the difference of wages, of such compensation as the authority may think fit not exceeding ten times the amount of such difference of wages. It cannot, therefore, be said that the authority had no jurisdiction to award compensation at all. At the same time, the discretion conferred by the said provision must be exercised soundly and judiciously by the authority. In R. K. Bhuwalka v. Authority Under M. W. Act, 1987(2) ALT 455, it was held that where there was no attempt by the employer to exploit the labour by resorting the breach was lenial, the case did not call for the levy of compensation under Section 20(3) of the Act which is penal in character. In the instant case having regard to the facts and circumstances of the case and also the ambiguity in the statutory notifications which gave room for some doubt, I am satisfied that award of compensation in addition to the difference of wages is not justified. Accordingly the writ petitions are partly allowed to the extent of setting aside the direction to pay one-time compensation to the respondents. The direction for payment of difference of wages claimed will, however, stand and it is affirmed.
13. There will be no order as to costs.