Rajasthan High Court - Jaipur
Superintendig Engineer P H E D vs Prahalad Ray And Ors on 6 January, 2012
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER 1.SB Civil Writ Petition No.1837/2008 Superintending Engineer, PHED, Sikar vs Prahlad Ray & ors 2.SB Civil Writ Petition No. 1803/2008 Superintending Engineer, PHED vs Rameshwar Mehriya & ors 3.SB Civil Writ Petition No. 1833/2008 Superintending Engineer, PHED, Sikar vs Mahesh Kumar & ors 4.SB Civil Writ Petition No.1835/2008 Superintending Engineer, PHED, Sikar vs Sanwar Mal & ors 5.SB Civil Writ Petition No. 1836/2008 Superintending Engineer, PHED, Sikar vs Shankar Lal & ors 6.SB Civil Writ Petition No. 13358/2008 State of Rajasthan & anr vs Authority Minimum Wages Act & ors 7.SB Civil Writ Petition No. 14409/2008 State of Rajasthan Vs Authority Minimum Wages Act & ors 8.SB Civil Writ Petition No. 1827/2009 State of Rajasthan vs Authority Minimum Wages Act & ors 9.SB Civil Writ Petition No. 1828/2009 State of Rajasthan vs Authority Minimum Wages Act & ors 10.SB Civil Writ Petition No. 12272/2009 Superintending Engineer,PHED, Sikar & ors vs Sanwar Mal & ors Date of Order : 6th January, 2012 PRESENT HON'BLE MR. JUSTICE MN BHANDARI Mr Chetan Bairwa, Addl Govt Counsel - for petitioners Mr RN Mathur, Sr Adv with Mr Raghunandan Sharma Mr Karanpal Singh Mr RDS Naruka - for respondents BY THE COURT:
Since on same set of facts, similar relief has been claimed, all these writ petitions have been heard together and decided by this common order.
By these writ petitions, common order passed by the Authority under the Minimum Wages Act, 1948, Sikar (for short 'the Authority') on 9.10.2007 has been challenged.
It is a case where private respondents preferred an application before the Authority to allow them benefit of minimum wages. It was stated that the Public Health & Engineering Department (PHED) engaged petitioners under the Self Financial Scheme to be run by the respective Gram Panchayat for regulating water supply. They were engaged to work as Pump Driver. Since the petitioners were not extended benefit of minimum wages, they were left with no option but to approach the Authority. The claims so preferred by the private respondents were accordingly allowed.
Leaned counsel for petitioners State submits that respondents employees were never engaged by them. In fact, they worked under the Self Financial Scheme run by the Gram Panchayat. If at all they were engaged, then by the Gram Panchayat, thus no control by the State Government regarding their engagement and other service conditions including the wages payable to them. The Gram Panchayat was not impleaded as party respondent and, at the same time, ignoring the non-existence of relationship of employee or employer, impugned order has been passed by the Authority.
The Authority even failed to consider the issue of delay in raising the claim after taking into consideration provisions of law. It casually condoned the delay and maintained the claim though no cogent justification in regard to delay had been given. The government, in fact, launched a scheme to regulate water supply and for the aforesaid, funds were given to the Gram Panchayat, thus the scheme was implemented by them only. Respondents employees agreed to work under the Self Financial Scheme and accepted the honorarium payable for it thus they were never treated as employee even by the Gram Panchayat. Hence, provisions of the Minimum Wages Act, 1948 (for short 'the Act') have wrongly been applied in these cases. This was even in ignorance of the fact that the nature of work assigned and undertaken by the Gram Panchayat is not falling in the schedule appended to the Act to bring the claim with the jurisdiction of the respondent Authority. It is accordingly prayed that impugned order passed by the Authority in these matters may be set aside.
Learned counsel for respondents, on the other hand, supported the impugned order passed by the Authority. It is stated that mere implementation of the scheme by the Gram Panchayat does not change the status of the respondents as, for them, PHED remains the principal employer. Merely for the reason that scheme was implemented through the Gram Panchayat does not absolve the liability of the petitioners to comply with the statutory provisions of the Act. Thereby, direction for payment of differential amount has rightly been passed by the Authority. Reliance has been placed upon the judgment of the Hon'ble Apex Court in the case of Patel Ishwerbhai Prahladbhai and ors versus Taluka Development Officer & ors, reported in (1983) 1 SCC 403 The prayer is accordingly to dismissed the writ petitions.
So far as the issue of limitation is concerned, same has been considered by the authority below in correct perspective thus needs no interference.
I have considered rival submissions of learned counsel for parties and perused the record of the case.
First question for my consideration is as to whether private respondents are entitled to minimum wages while working with the Gram Panchayat as stated that no relationship exist with the petitioners. This is in view of the fact that scheme was given to the Gram Panchayat for its implementation and the same was a self financial scheme (SFS). The facts, however, remain that transfer of scheme for its implementation does not absolve petitioners from their responsibility to act as per law. Similar issue came up for consideration before the Larger Bench of the Apex Court in the case of Patel Ishwerbhai Prahladbhai (supra), wherein also, transfer of certain employees to the local authorities under Panchayat administration. They were held to be entitled to the benefit of minimum wages. Paras 5, 6 and 7 of the said judgment are quoted hereinbelow for ready reference:-
5. The Minimum Wages Inspector took the matter in revision before the High Court. Diwan, C. J., who heard these Revisions followed the decision of the Full Bench of the Gujarat High Court in Criminal Appeal No. 361 of 1972, disposed of on 2.5.1974, in which the ratio of the decision in Shukla's case was approved and held that Panchayat service was part of the service of the State and the Tube- well operators concerned are State Government servants holding civil posts. In that view the learned Chief Justice agreed with the Minimum Wages Authority that as State Government servants the Tube-well operators concerned are not entitled to the benefit of the Act and he dismissed the Revisions.
1.The point arising for consideration in these civil appeals is simple. The Minimum Wages Authority and the learned Chief Justice have found that the Tube-well operators are Gujarat State Government servants. That is the contention of the contesting respondents I and 2., viz. Taluka Development officer Vijapur, Taluka Panchayat and District Development officer, Mehsana District Panchayat, in these appeals. The contention of the State of Gujarat before us in Civil Appeal No. 359 of 1974 was that the employees in the District Panchayats and Taluka Panchayats constituted under the Gujarat Panchayat Act, 1961 and Talatis and Kotwals working in Gram and Nagar Panchayats in the local cadre of Panchayats constituted under that Act are Government servants and that the other employees in the local cadre are Panchayat employees and not State Government employees. I-n that appeal we have repelled the contention that employees of the local cadre, namely, Gram and Nagar Panchayat servants barring Talatis and Kotwals are Panchayat servants and not Government servants and held that they also are State Government servants like the District Panchayat and Taluka Panchayat employees and Talatis and Kotwals working in the Gram and Nagar Panchayats.
7. Section 3 of the Minimum Wages Act, 1948 provides for the appropriate government, in the manner provided in. the Act, fixing minimum rates of wages payable to employees employed in an employment specified in Part I and Part II of the Schedule and in any other employment added to either Part by notification under s.27 of the Act subject to the proviso to s. 3(1) (a) and has power to review at such intervals as it thinks fit, such intervals not exceeding 5 years, the minimum rates of wages so fixed and revise the minimum rates, if necessary, subject to the proviso to clause (b) of sub-section (I) of s. 3. Section 2(i) of the Act defines "employee" as meaning "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.. "
"Employer" is defined in s. 2 (e) of the Act as "any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum wages have been fixed under the Act and includes, except in sub-section (3) of s. 26".
(i).........
(ii) ..............
(iii) in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed under the Act, the person appointed by such authority for the supervision and control of the employees or where no employee is so appointed, the Chief Executive officer of the local authority; and
(iv) in any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under the Act, any person responsible to the owner for the supervision and control of the employees or for the payment of wages .. ".
We are not concerned in these appeals with s. 26 (3) of the Act. Section 2 (g) defines "scheduled employment" as meaning "an employment specified in the Schedule or any process or branch of work forming part of such employment". "Employment under any local authority" is item 6 in the Schedule of the Act. Therefore, there can be no doubt that the Tube-well operators concerned in these appeals are in scheduled employment under the Panchayats. The question is whether, being Government servants, employed under the local authority, they are not entitled to minimum wages and other benefits under the Act. "Employer" under the Act being "any person who employs whether directly or through another person, or whether on behalf of himself or any other person, one or A more employees in any scheduled employment in respect of which minimum wages have been fixed under the Act", the Panchayat or Panchayats under which the Tube-well operators concerned are employed in scheduled employment would be "employers" under the Act even though they are Government servants, for under s. 102 (2) of the Gujarat Panchayat Act, 1961 a Secretary of a Gram Panchayat or Nagar Panchayat shall subject to the control of the Sarpanch or Chairman as the case may be, perform certain duties mentioned in clauses (a), (b), (c) and (d) to that sub- section and under sub-section (3) of that section the other servants of the panchayats shall perform such functions and duties and exercise such powers under the Act as may be imposed or conferred on them by the Panchayat, subject to rules, if any, made in this behalf. We are, therefore, of the opinion that the Tube-well operators concerned in these appeals, even thought State Government servants, are employed in scheduled employment under the local authority or authorities and are consequently entitled to minimum wages and other benefits under the Act, it not being disputed that minimum wages have been fixed by the State Government in respect of Tube-well operators generally though that benefit has not been extended to the Tube-well operators concerned in these appeals. The appeals are accordingly allowed with costs. The applications before the Minimum Wages Authority are allowed as prayed for and the directions shall be issued as prayed for.
In the aforesaid case, persons were engaged by the government and, thereupon, transferred to local authorities, whereas, in the present case, engagement of the respondents- employees-workmen is by the Gram Panchayat itself. The fact, however, remains that entitlement of the workmen to get minimum wages cannot be denied. This is more so when Gram Panchayat is running the scheme given by the State Government otherwise it was the duty of the petitioners to provide supply of water in villages.
In the case of Patel Ishwerbhai Prahladbhai (supra) the workmen, therein, were also Tube well Operators as, herein, they are Pump Drivers. In the aforesaid, the ratio as laid down by the Apex Court applies to the present case also. Transfer of the scheme from one department to another does not absolve the State Government from its responsibility.
Accordingly, I am of the opinion that respondents workmen are entitled for benefit of minimum wages under the provisions of Minimum Wages Act and the order passed by the Minimum Wages Authority cannot be said to be illegal on that count.
The question now comes regarding delay in maintaining the application. To consider the aforesaid issue, it would be relevant to refer provisions of section 20 which provides limitation for filing of application. Section 20 of the Minimum Wages Act, 1948 is quoted hereunder for ready reference -
20. Claims.- (1) The appropriate Government may, by notification in the Official Gazette, appoint 2*[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 3*[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) 4*[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 3*[or other amount] became payable:
Provided further that any application may 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;
(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.] (4) If the Authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer by the person presenting the application.
(5) Any amount directed to be paid under this section may be recovered--
(a) if the Authority is a Magistrate, by the Authority as if it were a fine imposed by the Authority as a Magistrate, or
(b) if the Authority is not a Magistrate, by any Magistrate to whom the Authority makes application in this behalf, as if it were a fine imposed by such Magistrate.
(6) Every direction of the Authority under this section shall be final.
(7) Every Authority appointed under sub-section (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such Authority shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of 1898).
Proviso to sub section 2 of section 20 provides for presentation of application within a period of six months from the date on which Minimum Wages becomes payable. In the present matter, the applications were not preferred within a period of six months from the date minimum wages was payable.
Learned Authority under the Minimum Wages Act condoned the delay and entertained the claims for the period prior to three years from the date of filing of the application. The delay was condoned in reference to the statement of witnesses produced by the department stating that if any claim was made by the workmen and if assurance was given by the department, he cannot say any thing on that. Perusal of the statement as quoted in the impugned order does not reveal admission of the fact that a demand was made by the workmen and any assurance was given by the department thereupon. The witness, in fact, shown his ignorance on the aforesaid fact. The authority below took presumption regarding assurance without recording its finding as to when a demand to this effect was made and alleged assurance was given. This is more so when there exist no documentary evidence for the aforesaid purpose. In the background aforesaid, inference of the assurance drawn by the authority concerned cannot be accepted and condonation of delay is without basis to accept the claim upto three years prior to application.
Proviso to section 20 (2) of the Act of o1948 provides limitation of six months for maintaining an application. In the aforesaid background, condonation of delay cannot be said to be legal. Accordingly, impugned order of the authority below needs interference on the aforesaid ground and same is set aside to the extent of entertaining claims beyond the period of limitation, accordingly, all the claims would be admissible to the extent of period of six months prior to filing of the application.
The workmen are held eligible to the benefit of minimum wages as directed above. The workmen have already been paid the amount as the present matter went up to the Hon'ble Apex Court wherein following order was passed in Civil Appeal No.675/2011 arising out of SLP (C ) No.834/2010) dated 10.1.2011 :-
Leave granted.
Heard the learned counsel for the parties.
We direct that the amount deposited by the appellants by virtue of this court's order be disbursed to the respondent-workmen as per their entitlement subject to the outcome of the writ petition. We also request the Single Judge of the High Court to dispose of the writ petition within a period of four months from today.
We accordingly set aside the order of the Division Bench to the above extent.
The Appeals are disposed of.
Since payment of minimum wages was subject to final outcome of the writ petition and as the writ petition has been allowed in part, hence, consequence to follow in regard to the payment already made to the workmen as it was not final in nature but subject to final outcome of the writ petition.
With the aforesaid directions/ observations, all the writ petitions so as the stay applications are disposed of.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-JW