Punjab-Haryana High Court
Govt. Medical College & Hospital Sec.32 vs Authority Appointed Under Minimum ... on 10 October, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
DEEPAK KUMAR BHARDWAJ
2014.10.13 11:16
I attest to the accuracy and
authenticity of this document
In the High Court of Punjab and Haryana, at Chandigarh Chandigarh
Civil Writ Petition No. 8472 of 2002 (O&M)
Reserved on: 24.4.2014
Date of Decision: 10.10.2014
Government Medical College Hospital, Chandigarh
... Petitioner
Versus
Authority appointed under Minimum Wages Act, U.T. Chandigarh and
Others
... Respondents
CORAM: Hon'ble Mr. Justice G.S.Sandhawalia.
Present: Mr. Deepak Sharma, Advocate
for the petitioner.
Mr. J.S.Mehndiratta, Amicus Curiae.
G.S.Sandhawalia, J.
The challenge, in the present writ petition is to the order dated 31.12.2001 (Annexure P5) whereby the Authority under the Minimum Wages Act, 1948 U.T. Chandigarh has directed the petitioner College/Hospital to pay the wages for the period from 3.10.1997 onwards till 31.12.1997 and also held it liable to pay simple interest @ 12% per annum on the allowed wages to the applicant from 1.4.2002 onwards till it is not paid. Further compensation at the rate of five times of ` 1,184/- i.e. ` 5,920/- was also directed to be paid along with interest from 1.4.2002 taking the total to ` 7,104/-, in one case, while similarly adjudicating on a total of 33 applications. The challenge is also being made to the subsequent recovery being sought to be effected whereby the Authority under the Minimum Wages Act issued communications Civil Writ Petition No. 8472 of 2002 (O&M) 2 dated 23.1.2002 (Annexure P6) and 25.1.2002 (Annexure P7) directing that the said payment be made along with 12% simple interest.
The pleaded case of the petitioner Hospital/College is that it had allotted work of providing manpower to the Government College/Hospital to one M/s Enter Climax Securities, respondent No.3, w.e.f. 1.11.1997 who was the highest bidder in the tender. Prior to that, M/s National Security & Allied Services, respondent No.2, had been given the said work. It had been made clear that as per the contract, as the person employed by the said contractor would be employees of the new Contractor, for all intents and purposes, and the respondents would ensure that minimum wages would be paid under the prevalent Labour laws. Respondent No.4 had filed a claim petition under the Minimum Wages Act, 1948 seeking minimum wages to the tune of ` 1,632/-, whereas the claimant was only paid ` 1,316/- per month. Reply was filed taking the plea that as per Clause 10(B.1) & 10(B.3), it is the responsibility of the contractor and there was no liability of the hospital. Vide order dated 26.2.1999 (Annexure P3), the claim application was decided in favour of the employee, which was set aside in Civil Writ Petition No. 12594 of 1999 on 30.4.2001(Annexure P4) and the matter was remanded to the authorities. Resultantly, the impugned order has been passed on 31.12.2001 (Annexure P5). The plea taken, accordingly, was that the claim petition filed under the purview of the Authority under the Minimum Wages Act and the order passed was without jurisdiction. The hospital could not be held liable in view of the contract. While admitting the writ petition on 19.8.2002, for regular hearing the Civil Writ Petition No. 8472 of 2002 (O&M) 3 operation of the impugned order was directed to be stayed.
Perusal of the file would go on to show that when Civil Writ Petition No. 12594 of 1999 came up before this Court, the matter was remanded on the ground that under Section 2(i) of the Minimum Wages Act, 1948 (In short "the Act") the word "Scheduled Employment" was there and the definition of an employee was not taken into consideration by the Authority. Accordingly, the matter was remanded to the Authority to pass order afresh. Resultantly, the impugned order has been passed After admission, counsel for the private respondents-workmen had not put in appearance and this Court was constrained to call upon the legal aid counsel to assist the Court. Accordingly, Mr. J.S.Mehandiratta, Advocate appeared and argued the matter on behalf of the private respondents.
Perusal of the impugned order would go on to show that the Authority framed issue No.1 that the applicants are entitled to the difference of the wages claimed in the various applications, if so, with what details and whether any other relief could be granted to them under issue No.2.
It was contended before the Authority that the minimum wages for the Government hospitals has neither been fixed nor revised at any time by the Chandigarh Administration. Their claim was also contested on the issue of limitation since it pertains to the period from 1996 to 1998, the period when the term of original contractor was over. The plea of the petitioner Hospital was that before the contractors, under whom the applicants worked, they had never lodged any protest before Civil Writ Petition No. 8472 of 2002 (O&M) 4 respondent No.2 to protect the minimum wages, whereas the plea of the workmen was that once the employment of the contract labour was admitted, the Principal employer was bound to ensure that the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 was enforced in the establishment. Reference has been made to the notification dated 18.2.1995 whereby rates of the wages were fixed at Employment No. 27 for Nursing Home, Dispensaries, Medical Practitioners etc. and not for Government Hospitals. Accordingly, reference was made to Section 2(e), 20 & 21 of the Contract Labour (Regulation and Abolition) Act apart from Rules 25, 72 & 73 of the Contract Labour (Regulation and Abolition) Central Rules, 1971 to hold that the Government Hospitals would be expected to pay at least the minimum wages, for hospitals and therefore, were responsible to pay the same, being the Principal employer and the claim was restricted to six months from the date of application i.e. 2.4.1998. Therefore, from 3.10.1997 onwards, the application was allowed at the rate as mentioned above along with compensation.
Counsel for the petitioner has contended that Section 2(e) pertains to the definition of employer as Section 2(g) pertains to words "Scheduled Employment" which means an employment specified in the Schedule or any process of branch of work forming part of such employment. Accordingly, reference has been made to the Schedule and Entry No. 16 that pertains to employment in scientific industries and similarly, entry No. 64 pertains to provide employment in private hospitals and is not applicable to the petitioner Institute, being a Civil Writ Petition No. 8472 of 2002 (O&M) 5 Government hospital. Reliance was placed upon the judgment of the Apex Court in Ram Singh and Others v. Union Territory, Chandigarh and Others (2004)1 Supreme Court Cases 126 to submit that the factual relationship between the petitioner-hospital and the contract employee was not there and without the same being proved, the authority did not have any jurisdiction to grant the minimum wages.
Amicus Curiae, on the other hand, has submitted that the Act was a beneficial piece of legislation and the State being a model employer could not wriggle out of its liability to pay the minimum wages. Reference was made to a judgment rendered by the Apex Court in Pali Devi and Others v. Chairman, Managing Committee and Another (1996)3 Supreme Court Cases 296 to submit that purposive approach should be taken into consideration for the necessary intendment of the statute and merely because the appellants therein were ex-employees and not existing ones, could not disentitle them to seek necessary relief.
Section 2(e) of the Act defines "employer" and perusal of the same would go on to show that the employer means, 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 rates of wages have been fixed under the Act. Section 2(i) of the Act defines "employee", which means any person who is employed for hire or reward to do any work in a scheduled employment in respect of which the minimum rates of wages have been fixed. Section 2(g) defines "scheduled employment", which means an employment specified in the Civil Writ Petition No. 8472 of 2002 (O&M) 6 schedule, or any process or branch of work forming part of such employment. The appropriate Government has the power to fix the minimum wage under Section 3 of the Act, which is to be payable to the employees in the employment specified in Part 1 or Part II of the Schedule. The relevant definitions read as under:-
"2(e) "employer" means 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 rates of wages have been fixed under this Act, and includes, except in sub-section (3) of section 26,--
(i) in a factory where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person named under 1 [clause (f) of sub- section (1) of section 7 of the Factories Act, 1948 (63 of 1948)], as manager of the factory;
(ii) in any scheduled employment under the control of any Government in India in respect of which minimum rates of wages have been fixed under this Act, the person or authority appointed by such Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;
(iii) in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed Civil Writ Petition No. 8472 of 2002 (O&M) 7 under this Act, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;
(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 this Act, any person responsible to the owner for the supervision and control of the employees or for the payment of wages;
XXX XXX XXX XXX XXX XXX XX
(g) "scheduled employment" means an employment specified in the Schedule, or any process or branch of work forming part of such employment;
XXX XXX XXX XXX XXX XXX XX
(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 Civil Writ Petition No. 8472 of 2002 (O&M) 8 the Armed Forces of the Union.
XXX XXX XXX XXX XXX XXX XX
12. Payment of minimum rates of wages.- (1) Where in respect of any scheduled employment a notification under section 5 is in force, the employer shall pay to every employee engaged in a scheduled employment under him wages at a rate not less than the minimum rate of wages fixed by such notification for that class of employees in that employment without any deductions except as may be authorized within such time and subject to such conditions as may be prescribed.
(2) Nothing contained in this section shall affect the provisions of the Payment of Wages Act, 1936 (4 of 1936)."
The procedure for fixing and revising minimum age is provided under Section 5 of the Act. The minimum rates of wages in respect of the scheduled employment is fixed by the appropriate Government on the advice of the committee/committees appointed under clause (a) of sub-section (1) and on the advice of the said committee/committees, the same is to be revised and to come into force on the expiry of three months from the date of issuance of the notification.
Counsel for the petitioner has placed reliance upon the notification dated 4.6.2001, which came into effect w.e.f. 1.10.2001 to submit that under employment No.27, only private hospitals including nursing homes, dispensaries or medical practitioners would be covered as per the earlier revised notification dated 19.2.1996 and the Government hospitals were not in the ambit of the said notification. The said submission is only to be noticed and rejected. The only pleaded defence before the Authority was that it was the Contractor who was Civil Writ Petition No. 8472 of 2002 (O&M) 9 liable and the hospital could not be fastened with the liability of the contractor. Since it is an issue that goes to the root of the matter it is to be adjudicated upon. Perusal of the notification would go on to show that the employment No. 27 would show that apart from the private hospitals, dispensaries are also included in any establishment. The relevant clause reads as under:-
"Employment No.27: (Private Hospitals including Nursing Homes, Dispensaries or a Medical Practitioner in any Establishment or a Chemical or Pathological Laboratory) previously revised vide notification bearing No. 8/10/34-HII(4)- 96/3616, dated the 19th February, 1996."
The Act being beneficial piece of legislation would necessarily mean the Government hospitals would also come within the ambit of the dispensaries and liable to pay minimum wages and it could not mean that only the private hospitals are required to pay the minimum wages and whereas the Government hospitals would not be within the ambit of the Act.
Reference can be made to the observations of the Constitution Bench of the Apex Court in Express Newspaper (Private) Ltd. and Another v. The Union of India and Others 1958 AIR (Supreme Court) 578, wherein the wage structure of the working journalists and the recommendations of the Board were under consideration. The concept of minimum wages was noticed and the fact that the State has strive to achieve the directive principles as laid down in the Constitution and the enactment of the Minimum Wages Act, 1948. Accordingly, it was observed that the enactment was for betterment of Civil Writ Petition No. 8472 of 2002 (O&M) 10 the workmen, who were employed in the newspaper establishments and freedom of the press was not being effected by providing all the general laws to the working journalists.
Similarly, in Chandra Bhawan Boarding and Lodging, Bangalore v. State of Mysore and Another 1970 AIR (Supreme Court) 2042, again a Constitution Bench of the Apex Court, while examining the issue of minimum wages, took into consideration the provisions of the Act and the object behind the Act and rejected the submission that the Government was not competent to enhance the rate of wages. It was noticed that the Act was enacted for the purpose of fixing or revising the minimum rates of wages in view of the Machinery Convention held at Geneva in 1928. It was held that minimum wage must provide not merely for the bare sustenance of life but for some measure of education, medical requirements and amenities as such. The submission that the same will not be applicable to the Government hospitals, thus, keeping in view the intendment of the Act cannot be accepted.
Beneficial legislation, which has been enacted for the interest of the employees, intends to improve the safeguards in the service conditions and requires a liberal interpretation and, therefore, it does not lie in the mouth of the Government to submit that this provision would not be applicable to the Government hospitals and colleges.
Reliance can also be placed upon the observations of the Apex Court in Pali Devi's case (supra) wherein while interpreting the provisions of the Act, it was held that definition of the employee would Civil Writ Petition No. 8472 of 2002 (O&M) 11 also mean ex-employee so that the full effect could be given to the intendment of the Act. The relevant observations read as under:
"Thus on account of the preponderance of Authority, Sections 20(2) and 2(i) had to be read alongwith the Rules and Form VI to lean in favour of the view that both past and present employees were entitled to move in the matter. Such would be a purposive approach, which would carry out the necessary intendment of the statute, for which the Rules and the Form lend a hand to carry out the objectives of the Act. The language-employed therein, even though executive voiced, is more often than not, demonstrative of the legislative purpose. So viewed, the intendment of the statute is furthered if an ex-employee too is held entitled to seek relief under Section 20(2) of the Act."
In such circumstances, the authority has rightly held that the principal employer would be liable to ensure the payment of minimum wages to the employees while placing reliance upon the provisions of Section 12 of the Act. Reliance has also been placed upon the notes of the notification wherein it is specifically provided that where the workman is employed through a Contractor, the principal employer will be personally responsible for ensuring the payment of minimum rates of wages of the contractor would, thus, go on to show the intendment of the Act.
Sub Clause 4 of Section 21 of the Contract Labour (Regulation and Abolition) Act, 1970 further provides that the principal employer can make the recovery of the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor. Section 21(4) reads as under:- Civil Writ Petition No. 8472 of 2002 (O&M) 12
"21(4) In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor."
In Senior Regional Manager, Food Corporation of India, Calcutta v. Tulsi Das Bauri and Others 1997 AIR (Supreme Court) 2446, it was noticed that under Section 21(4) of the Contract Labour Act, the principal employer is statutorily responsible for the payment of wages and if the contractor commits default, recovery can be made from the said contractor. The relevant observations read as under:-
"5. Section 21 postulates the responsibility for payment of wages.Under sub-section (1) a contractor shall be responsible for payment of wages to each worker employed by him ascontract labour and such wages shall be paid before the expiry of such period as may be prescribed. Under sub- section (4), in case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deducting from any amount payable to the contractor under any contract or as a debt payable by the contractor. That liability has been prescribed under sub-section (2) thereof which says that every principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor and it shall Civil Writ Petition No. 8472 of 2002 (O&M) 13 be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed.
6. Thus it could be seen that the principal employer is statutorily responsible to ensure payment of the wages as per the law. In case the contractor commits default in the wages, the principal employer is made responsible for due payment and in case such payment is made, he is entitled to have it recovered by deducting from any amount payable to the contractor under the contract or as a debt payable by the contractor."
Thus, the petitioner hospital can, at any time, claim its legitimate dues from the contractor and the respondent claimants cannot be denied the benefits which are to flow from the legislation.
The judgment of the Apex Court in Ram Singh's case (supra), relied upon by counsel for the petitioner, does not help the petitioner as it was the case pertaining to regularization of the services and in such circumstances, it was held that the matter of relationship of employer and employee inter se had to be adjudicated upon by the Industrial Tribunal before any relief could be granted.
Accordingly, keeping in view the above discussion, this Court is of the opinion that there is no merit in the present writ petition and the same is dismissed.
(G.S.Sandhawalia) Judge October 10, 2014 "DK"