Uttarakhand High Court
Uttam Singh vs State Of Uttarakhand And Another on 29 November, 2017
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 2005 of 2016 (M/S)
Uttam Singh ...Petitioner
Versus
State of Uttarakhand and another ... Respondents
Present:
Mr. B.B. Sharma, Advocate for the petitioner.
Mr. Pankaj Purohit, Deputy Advocate General for the State of Uttarakhand /
respondents.
Dated: 29th November, 2017
JUDGMENT
Hon'ble Sharad Kumar Sharma, J.
The petitioner questions the veracity of the order dated 20th December, 2014, as passed by the Prescribed Authority created under the Minimum Wages Act, 1948, wherein, by the impugned award his claim for the grant of minimum wages has been declined.
The second relief which he has sought in the writ petition is by way of a mandamus for a direction to respondent Nos. 1 and 2 to pay wages and dearness allowance for the period commencing from 7th November, 1984 to 31st July, 1990, for the post of Beldar, on which, admittedly, the petitioner has worked as a daily wager in PWD Department at Bhowali.
The contention, as agitated by the learned counsel for the petitioner before this Court, is that as per the narration of facts, he submits that when he filed a claim petition before the Prescribed Authority under Section 20 of the Minimum Wages Act, which has been agitated upon by the impugned order / award dated 20.12.2014. The denial by the 2 Prescribed Authoirth has been made on the premise that since he has not been paid a dearness allowance, he would not be entitled for the minimum wages despite the fact that he was working as daily wager.
The facts leading to the filing of the writ petition was that he contends that he was employed as a Daily Wager, carrying a wage of Rs. 240/- p.m. w.e.f. 7th November, 1984 and has worked in the said capacity till 31st July, 1990, for a total period of six years and for the period from 26th December, 1989 to 31 July, 1990, he was entitled for the wages and the dearness allowance as provided under the Act.
The grievance of the petitioner was that his wages were not determined viz-a-viz the wage which was paid to a regular employee of PWD Department and, hence, this aptitude of the respondents, violates Article 14 of the Constitution of India, as he was entitled for equal pay for equal work as envisaged under Article 39 (1) (d) of Constitution of India.
On perusal of the award dated 20.12.2014 as rendered by the Prescribed Authority under the Minimum Wages Act in Case No. 111 of 2013, the Prescribed Authority has taken a view that since the petitioner was paid the wages as admissible to a daily wager, which would be apparent from the schedule of wages, which was placed before the Prescribed Authority and, on account of the fact that since he was not a regular employee and was not employed, he was not entitled for the dearness allowance.
The learned counsel for the petitioner had drawn the attention of this Court to the definition of the employee as 3 given under Section 2 (i) of the Act, which is extracted hereunder :-
"(i) ''"employee'' means 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 premises under the control and management of that other person; and also includes an employee declared to be an employee by the appropriate Government; but does not include any member of the Armed Forces of the [Union]."
To bring a workman within the purview of an employee as defined under Section 2 (i), though, it classifies the nature of employment, i.e. skilled, unskilled, manual or clerical, but what is relevant is that he should be an employee as defined under the Act. The term employed used in sub-section (i) of Section 2, herein, would denote an employment in terms of the rule as applicable against a clear existing vacancy and will not imbibe and include within its ambit the workman.
It has never been the case of the petitioner either before the Prescribed Authority under the Minimum Wages Act or even for that ppurpose before this Court that he has ever 4 been employed by the department against an existing and clear vacancy. In that eventuality, the denial which has been made by the Prescribed Authority, in relation to the claim of payment of dearness allowance and, consequently, minimum wages was legally jusitifed, as was not admissible to him. He further places reliance on a Notification, as published in the official gazette of Government of India on 21st October, 2005, which is nomenclatured as "Minimum Rate of wages payable to the employees in the employment in agriculture".
On a simple interpretation to the nomenclature of this notification, yet again, it would be applicable to the employees who are under and in the regular cadre and are in the employment in relation to the Agricultural Department. The said aspect is further clarified from the head note of the notification itself which provides that whatsoever the implication of the said notification may be, it relates to the revision of minimum rate of wages payable to the employees in the Agriculture Department of the Central Government, required under the proviso to Sub-section 5 of the Minimum Wages Act. It is further clarified that they have to be in employment to agriculture only to attract notification dated 21.10.2005.
Since the petitioner claims his nexus to be a daily wager with the Public Works Department, he would not be able to bring himself within the ambit of the Notification dated 21st October, 2005.
Learned counsel for the petitioner has placed reliance upon the judgment rendered by the Coordinate Bench of this Court in the case of Anand Singh and others Vs. State of Uttarakhand and others, Writ Petition (S/S) No. 1546 of 5 2012, wherein, the relief claimed was against a Government order dated 6th July, 2010 and, further the relief was for the payment of dearness allowance by ignoring the ceiling limit imposed by the Government Order dated 6th July, 2010. The controversy which was being dealt with by the Coordinate Bench, was not dealing with the entitlement of dearness allowance rather it was only dealing with the effect of Government Order dated 6th July, 2010, pertaining to the ceiling limit which was being imposed by the Government Order on the employees. Hence, the consideration which was there before the Coordinate Bench was quite distinct to the issue which is involved in the instance case. As such, this judgment, on which credence has been placed by the learned counsel for the petitioner, grants him no benefit with regard to the controversy involved.
The petitioner, in relief No. II, has sought a writ of mandamus for the payment of dearness allowance to the petitioner for a specified period from 7th November, 1984 to 31st July, 1990. Without going into the issue pertaining to the delayed in raising the claim, this relief even otherwise cannot be granted by this Court, for the reasons, that the parameter contemplated for invoking a writ of mandamus, has not been complied with as it is not the case of the petitioner that prior to approaching this Court for the payment of dearness allowance, he has simultaneously approached to the authorities for the same and, there has been a denial or non consideration. In that eventuality, the relief II cannot be granted.
In that view of the matter and looking to the reasonings assigned by the learned Prescribed Authority in the Claim Petition under Section 20 of the Minimum Wages 6 Act of 1948, there is no error committed by the learned Prescribed Authority.
Thus, the writ petition fails and is accordingly dismissed.
No order as to costs.
(Sharad Kumar Sharma, J.) 29.11.2017 Shiv