Karnataka High Court
The Karnataka Pradesh vs S Padmanaban on 18 October, 2010
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OE KARNATAKA
AT BANGALORE A '
DATED THIS THEf13HbAY OF OCTOBER, 2_oId% x
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREOIj&' k $
WRIT PETITIO'N'N 'O.ZOSOOKZQU7
WRIT. PETITION VI.\IC>»;.1_';.?.,'7,'6 €/'2():(V).V€>"('L-MW)
IN
BETWEEN A A V %
The. K.OarnaI'é1"L2_1 Pra€lesIl*; :
Gerigral' 'workersw CO__:_1_gress
. . AN"()".33,E*'KI'iVSh§1a Reddy Layout
A ' v.Ramam_u1*ih«yIiagar
.DO()I'El'VE£HiVI1E1g}iF"1:'0St
Sri N';Kf1ishnachari.
EangaIo;e;560 O16
Rép. by itsvPresident
. . . PETITIONER
{.Bj'..Ashri K.S1"inivasa, STM Assts., Shri P.S.RajagOpa1, Adv
Shri K.I(rishnachari party--in~persOn)
3
3\.)
AND
1. S.Padmanaban
S/o Sadakshara Ruben
Aged about 53 years
Trainer
Karnataka Trainers' Association_
C/0 Bangaiore Turf Club Ltd., ' i
Race Course Road,
Banga1ore--560 001.
2. The Secretary
Bangalore Turf Club' Ltd., *
Race Course Road __ g A
Bangalore-560 001. V "
3. The Authorityju"i'1dei*._E\/I5riirhuinI ~
Wages
Conciiiatio--n_Qfficer i_ ° " V
D1'v1si:5n----1§r_ up
Banne-rghattaVRr:{ad,i' .
Banga1ore--56Qi0.i29.
2 2 = 2 ...RESPONDENTS
S,p_N.Mu1'th_y.7..Sr.AdV. for R2, Shri R.Ornkumar, AGA «forR3",' Sh_ri'S_.Vijayashan}<ar, Senior Advocate for Shri _ =B,Cr.Piabh.aka.r,'*Adv. for RE) msywgéit petition is filed under Articles 226 and 227 of the Constitution of India, praying to quash the impugned order ndated-23.09.2006 passed by R3 vide Annex./'-\ to the writ Vpeti.tyion in so far it relates to imposing the liability on the 'jespondent _No. .1. and etc. IN W.P.NO. 15266/2006 BETWEEN
1. Sri S.Padmanabhan S/0 Sri Sadakshara Ruben Aged about 52 years Trainer Karnataka Trainers Association Bangalore Turf Club Ltd Race Course Road Banga1ore--56O O01. _ B (By S.N.Murthy Associates, _ AND l. Karnataka Pradesh General Krishna RevdclyVB»uildings,.j' = Near Po'lice»Stat3'ioia _ Rai1namurt.hy'N'aga:» i _ B' Doo1*VVar1iMNagar Post' " -. it " = Bangalo.::ei--56O 0_itE,_ ii a_RlepreVsented e « i"res'ider;t"«i,._ ._ under the ' .__Minimu"nj. 'W ages Act, 1948 'Anti Labour & Conciliation Officer Diivisi-'or: IV, Bangalore A. it 'VK'a1'mika Bhavan V' Bannerghatta Road Bangalore-560 029.
. . . RESPONDENTS é (By Shri Krishnachari (President -- KPGWC) party--in--person for C/R1, R2 sewed) This writ petition is filed under Article 226.2101". the Constitution of India, praying to quash the impugi1ed"goifder passed by R2 dated 23.09.2006 vide Annex.E»;""t'oit{ritp_ petition. "
These petitions having been" «heard; l(';~.r1 28.07.2010 for orders coming on this day for pronolunce.,fnent:_of orders, the Court made the foll0win%é' 0 RI).
These petitions are hea_rd-..Vto'gether; ~ since vviithey have chalienged the Very sarneiiiaward:-pasiseld:i_the authority under The -E948 (hereinafter referred to as the 'Act' fo1'lbiieivi.tyil)li Conciliation Officer. themlearned Counsel Shri.K. Srinivas, STM ieeeeeiieei the petitioner in WP 20550/2007 and for res"pon'dent".ll\I0.l in WP 5266/2006 and the learned Senior Adyocate Shri. S. Vijayashankar for the Counsel for respondent in W.P. No.20560/2007 and the learned Senior Advocate é Shri, S.N. Murthy for the counsel for the petitioner in W.P.No.15266/2006 and respondent no.2 in W.P.No.20560/2007.
3. The petitioner in W.P.No.2()560/07 is a 1igieoeeiiim, which seeks to espouse the cause of ,twenty _siX{ who claim that their employer is the Ba'nga7l_oire'i (hereinafter referred to as for.__breyiit.y)iI'~--lhey had".
approached the competeznt authori,_t'y blunder Aet, seeking payment of minimum wages."VTheir__.elaiiifi1i was allowed, but howetferliithee»authoifity held' that the Karnataka Trainers' Association, _was_in -ifact;"li_:a'b«1e to pay the said minimum wages, the petitioner is before this Court. 6 ItV~.i_s the Wpietitioner°s contention that BTC is an .as~s_ociation_ ofjriiembers formed with an object of promoting horse and has engaged over 1,800 workmen. It "fac-iluitates owners of race horses to stable them at the Club i?remises and are trained by trainers who have formed an E association amongst themselves. The workmen whose cause is espoused by the petitioner are known as 'Syces', who.4jarefun'dVer the supervision of the trainers. It is a fact "
workmen are paid out of monies wh'ic'h"are ctyontributedi the owners towards their wages to the which; channels the same through theit:.:trainers"'to'be? "to the workmen. This is the yeicirrently itioillovwed. The claim having been filed" the above system of by BTC for its conveniyence itself as a principal employer of to avoid legal obligations, the fact remaifiedii'thatTthe'c_urre.nt practice had been evolved over a y_ per_ioi:1 time .iaind«.fo_r.all purposes, BTC continued to be the 'pr:ir:cipal4en§plo'yer. This is evident from the circumstance that the ._workmein{_ar:e not appointed either by the owners of the race "..,horses"r1o7r the trainers association. Both the owners of race horses and the trainers are not permanently stationed at BTC. 2 The race horses are taken to other cities for racing, along with ?> or without the trainers associated with particular horses. Therefore, the presumption would be that, it is as a matter of convenience that, payment of wages to the workrneii "in the manner as above, who are permanently stati_oiiie.d is i only in order to avoid the legal obligation' oi"B'l"C workmen.
5. The competent autho1'it"y=su'nder the the following issues:
i) Whether the_ that the ' pro'v.isio_ilisVipof'.apply to the respondents V and respondents are liable to pay rniniimuna wages'?
Whether 'the' petitioner proves that there are i"tjpasti't7i_able reasons for filing the petition after a by 'V ' f 8 'years ?
Whether the petitioner proves that the respondents have been paying them less than the minimum wages?
Z association have come into being only from the year 1998, whereas, the workmen were already discharging theirldnties under BTC. Therefore, if the principal employe.f_:iis'heid the Trainers' Association, the woilgrien stand'-ris'kv'of not'? being enabled to claim their legitirnatcfidiiies the trainers association beingiia_V:vl'i-Lipid and .t_ransitory..;b"o'dy"iwhich' i changes in its composition V."a11dV_':"WVith0ut theree-ibeing any employer and employee' re'lationshipf_'~w.yis--a--Vis the said association and 't.he_' woi%km__eni.~it 'E£.'.Si.1i1liE'S..lVI1__v1V3:.iSf:I'l'OuS anomaly and jeopardizesthe'seciLiri.ty:"oif'e.eAnip.loy':jrient of the workers. it is furthe1fApoi11ted'ioi;i-t."t!ie'"'trainers are themselves licenced by the BTC;°who, in._tiir.n; employed by the owners of race ho'rses,__piwhvo pay"'the.m'for their services, and in the absence of and employee and relationship either between the w'orkmen,itra'iiners and the race horse owners, it cannot be said that theworkmen who would then be rank outsiders,'have been
--..Val1owed to work on the premises of BTC even before the i V -----Trainers Association has come into existence. It is further 'é 19 taken over by BTC, which included veterinarians, offiee staff, labourers and syces, totaliy numbering 97. Sl. No. Category 9
1. Staff
2. C0ntingency;_..Paid 9
3. Temp0raryiS*taiffy draw}; 03 other (Syce). 9 ' ' 1 * ' Mainfarm r.abo~ug¢~gi 9 23 Berur 1{(ia.3/a1garF _ 1;.' V 02 Rai.i}dani:'1,Ci}iarde«n'VLabdarers 14 4 5
6. it 1.1 7 . .. . .
8 Begur »..H--ead Cooly 1 1 " Labourers ;
" ' - Grand 'Total 97 incurred heavy loss in maintaining the Farm .and'ythe'1*e'fQre;:the tease stood terminated and it has been leased the 'Government to NUS United Racing and Bloodstock 2 iBre.eAderis Private Limited from the year 1992. On termination Z 20 of the lease, a tripartite agreement was signed between the present lease holder of the farm, BTC and the workmen employed at the farm, represented by a union wheyre-.i_n~.._it'-._was stipulated that the dues of whatsoever nature workmen stood finally settled. The1*ea.fter,--'_4ithe4ii p.re4seiirt.i_lease--ii' holder issued appointment letters toithe:'--workmieni '~Incide:nt.aliy,V it is further stated that there~v_V/.gi§».yBangalore. 'Riders Institute, which was loc'ate_d elsewheiregbut is now housed in the Club premises. It trains :iinr'horsi§:: riding, apart from providing theifaicijiglity ptbpthe other school and college st.udents..':'V-.,%I'be"'hors.es "used therein are unsuitable for racing. There are about horses in the stables for this purpose and5:..theiV'Institute"employs E0 persons including 4 syces and 5 0 .'hetp¢r's..:_"t i.Vi'lt.v:iis.reiterated therefore, the petitioner ~ Union has 'entered'_into--.V.alMemorandum of Understanding with the Trainers Association as regards reduction of wages payable to them and of that settlement has already been filed along with the .--VStatemen_t of Objections which was current in 31.10.2009. The %» 22 wages in terms of the settlements. There was no dispute that the Trainers Association was supervising the work of the workmen and the wages were paid directly by Association. The evidence on behalf Association was to the effect that therwages are Vp'aida'4initerms'vofi ' ; A settlements arrived at from time to'.;iri-zeand as t~her.e"i'no separate Minimum Wage Notificiémon for"---aihorse trainer in the Schedule of establishments _unde1'e-the."Minimtirri "Wages Act. The difference claimed was imaigiiiriary~.and't_'Co.i1cocted. Material was produced to testabplish in fact, been paid from to .a'ndi4that""se'veral of the workmen were not at all employedi d,uringith_e relevant period for which the claim was beifzg "The.....c«ompetent authority by its order dated directed the first respondent to pay the idirferenieeieriminimum wage to the extent of Rs.7,85,545.10 plus terftimes of the difference as compensation while holding ii --..V'thatie'the BTC was not liable to pay any amount since there was
---no employer--emp]oyee relationship. it is pointed out that the first respondent not aggrieved by the second portion of the order insofar as holding that there is no e.m_p]o:yer4e:mp1oyeeV.f*~-- relationship between the BTC and \jvcrf:rne.nii itlie association was concerned. 'H_ow.ever,"a writ petit.i_'on... been?' filed by the said respondent 5266/@006:acghaiiienging the determination of the w:agei'.iv:.di.fference and the compensation covering the Trainers activity toi_HitheiiMinimum Wages Act and that the're:i's of nine years in approaching the authority and-. the iiclaim is imaginary since the workmen on A6}~:1i:21'if_ the has been made had not worked for the ._reilepvaf1ti"pvei'iod."i It is significant that the Trainers Association has no"tgtiestioned the finding that there was no relationship of iie'mp1oyer--employee, as between the BTC and the workmen and 'the BTC has not been made a party to that writ petition. It is 5 24 after 18 months from the date of filing of the above writ petition by the Trainers Association, that the petitioner -- Union has filed the present petitions and the contentions ra.ise~d_:'in_ the petition were never urged before the authority at-nldliti' first time that such contentions areraised and 'the very petition would not be maintaiiiiabieiin the ab-seiice_i:of_.iany finding that there was relationship aspempioysrsm;;1oyee;i Further, the relationsh.i_p t.ris~a~vis"' the Trainers Association is that of lice~ns_or'fand li--cenvs'e~ei,_'_'..It cannot even be said that the is itheippr'inc'ipa1':.lemployer of the workmen and inithe ab.sle'ncfe.. ,any:NotifiCation covering trainers activity in the SCll'l£-T:tZlLil,€3 e'n:_1p}oyment stipulated under the Minimum Waiges__p'Act and"if.___the Trainers Association Cannot be made A of that the principal employer let alone a lficelnsovr... l it-__isl; contended that an employer is one who employs peithezrdirectly or through another person in any scheduled A' --..'"ern.piloyrrient. This is the determining factor. If there is no such
---engagement, then such a person would not be in a position to Z 25 claim as an employee. It is declared by the BTC that it has not employed any of the syces in its establishment. On the other hand, there is overwhelming evidence on record, _t.ov_d.isc.l0se that the Trainers Association and the Workersfilnioiti['jaad'7--nog dispute as to the relationship and theA»vs.ettlemerit1i' andi' other working conditions from time to__itiimeiiw_ould facie evidence of such relationship. ln'..viev.vfofiithefladmittedi state of affairs by the"'wV_itness'eis behalf of "the" Union, the issue is no longer open for 'T-debiate.:i Further}iii;isofar"--_asithe cilairr1--ii'that.~ithe minimum wages was not--. incorrect as is evident from a comparative .state_mie.ntw.;_itihat has been filed by the BTC to deirrioristrate that"th.e._.wages agreed to be paid by the Trainers pi V'Ass9_c'i'atiorI'*is far in excess of the minimum wages prescribed a;1_diithereifoirc;. on merits, the petition would not survive for consid.e_ration and would have to be rejected outright. Q 26 It is further pointed out that the BTC has not engaged the stable workers is also established by reference to several proceedings where this question had arisen and it has been consistently held that there is no relationship of employer. and employee as between the stable workers such in question and the BTC. As for Provident Fund Appellate Tribunal, No.ATA/301(6)/2001 by <)rder_da.ted 8;9.i2n05 'h,as"§h'eld.tif1at the "
stable workers engaged by ;,thei,."gh_oi'se owinevrs tlirough the trainers were not the eni lloeets.the'l7urf"Club. A statement P y y Inadeiron behalf .ai'Sein'ior"Ad\,*ocate appearing on behalf of the Trainers ilA.3siociation'Ai.'n' a,._lwrit petition before this court, which of'by....a.n'orde1* dated 28.2.2007, preferred by the I V'Karna'tal{a.,Trainers Association, that the workmen are engaged bypthe is recorded. So also, the Regional Provident AFund' Commissioner, Bangalore, in an order dated 18.3.2008
--..V'l1as.fneld that the Appellate Tribunal, New Delhi having already '' ---held that the stable workers were not the employees of BTC , 3 27 the question could not be re--open_ed. it is canvassed that from the evidence on record, the following important test__ for the determination as to whether an employer--employee existed between the BTC and the workers applied:--
(61) The concept ofemployment via, (1') employer (ii) emplo_ye_e ) tr.f:oié.1f:'aVc_fVIW T employment The employer z's*o1t.e wl1yr)"e'n.g.{ige.§9 serviees of other Person. " " ' The erhpl()yee-r's*vorle works for another for hire , "The _pe;3n;)loy.m.er1t is the contract of service lheriiieeh tltehhd the employee wherezmder the employeelagrees; to--._se'r'Qe the employer subject to his conlaeoll and supe.1fvlis.i.(.ih.
) V _5}»:peri)is'i'oi'; .a_.rt.__cl. control test V "(r:) The power to select " (cl) -V ._The ;9_oi«ver to di.s'nu'ss The-lrioncept of employment involves the employer- . employee and contract of employment. Employer is one who ienigalges the service of another person. The employee is one V "who works for another for hire. The employment is the ./S 28 contract of service between the employer and ernployee whereunder the employee agrees to serve the ernployensubject to his control and supervision. This would entail vs11:pervisli'on'~. pp and control by the employer, the powerm p_select thepovver i to dismiss.
From the evidence on record, thel"E"_rainers Association represented by the above tests and in fact, there the relationship thr0ughout._ onijpjlthellcircumstance that BTC provides_Vcer=tai'n_l and imposes regulatory rneasi:.res--.in activity is not a decisive factor to deterrriinérlie relationship.
it "T_he..i"se_cond respondent is a licensor possessed every right toenforce discipline, guidelines on its premises. This is a slyvstem that is prevalent in all the Turf Clubs in the country i' -hand. there is enough authority to hold that even if there is certain
----amount of supervision and control and even payment of wages Z 29 in certain exigencies may not create employer--ernployee relationship. In the instant case, when there is neither any element of supervision or control nor payment of it cannot be that such a privity of contract is created}.
9. It is contended that, the first. .respo'nden'thasfiled second of the above petitions challengingi the order,' inexplicable that the workers has i also 'challenge' the order which is inthepir faVVo'u'rc_:aftei*-.an unexplained delay. As can be seen from the im~pug"n'efd:'ordefr,vi.t:h,e 'workers union has been :v'lgranted:iV5.theffifelief»lclaimefdl;Vand therefore, it is as an afterthoilghtpthatitlie'pi'eserit"'petition is filed seeking to fasten the 51i«ab_ilityl on_lB'l"C..i" "This is further compounded by the that the first respondent does not question the oifeirnployer and employee as between himself and the 'concerned workmen. Incidentally, there are other 2 iiproceedings, where this question insofar as the relationship » 'between the workmen and the Trainers Association is Z 30 concerned, has been affirmed as is apparent from the decision of the Karnataka Appellate Tribunal dated 08.09.2005, which is exhibited as Annexure 'R5' and an order of this Court in W.P.No.26596/2005 relating to Provident Fuvnddjdpated 28.08.2007 at Annexure 'R6' to the staternentbmfosjvectittns, Therefore, the question of employerand empioryég the workmen and BTC is totally ab'sent._'_and the against BTC is wholly misconcejived. A
10. Incidenta1iy,,.it is atlsoiioiasserted thatv..ins0far as the rniniraumi w'ages afei'co:nce'rned,_ virtue of settlements arrived at from time to__ti;rrie, it'he""workmen engaged by the Trainers Association; s-uychas the workmen represented by the petitioner are paid' wages at a rate which is far higher than the wages the Minimum Wages Act. In this regard, the comparison' of the rates of wages to which the workmen are 2 ie'nti.tledi to and the difference of the wages actually drawn is indicated in tabular form as below:
3 31
Period Minimum Wage Rates R3. R5.
Entitlement of wages as per Settlement Rs. Ps.
Entitlement of Wages over and .
above M1nimum----._¢ .. .
Wage Rateg Rs.
(Differen.ce)a'V A 9' fV.Date of _' Settlement 1.12.1996 10 31.3.1997 1,482-00 1 ,900--00 '2..'8..:_191.9.6.1' . 0.
1. Va'i.1'.d~_. "frOm 1 1.1.1996, 1;-11 ""~f"31'.12.1998' 1.4.1997 to 31.3.1998 1 , 604-40 1.900003" ' 1 410- 1.4.1998 to 31.12.1998 1,734-45
51.,_900--0f0 . 1 _d0..
1.3.1999 to 31.31999 1 ,7 34-45 ,2.70Os00' _ 1.
13.3.2000 Valid from 1.1.99 to 31.12.2001 1.4.1999 to 31.3.2000" 1 ..d0_ 1.4.2000 to 31.12.2000;
T I 720-65 _d0_ 1.1.2001 to 31.3.2001 " 2.700--00 651-90 ..d0_ 1.4.200 to 1 '31..3.2000 2,0481-101:1 2.700--00 651-90 _d0- 1 .4.j20.02 1.0
-M09-30 2,700--00 590-70 _d0..
-- » 1.1;:>.A003' to' 31.3.2003 3,425-00 1 ,315--70 27.09.2003 vaiid from 1.1.2003 to 31.12.2005 1 3'1-.3;200:1 2,193-90 3,425--00 1,231-10 _dO_ M2003 to 1 I 'I~«1.4§;3004 to 1 2395-00 3,425~00 1,030-00 _d0- 1 'jj'1v-3.1.3.2005 33 filed after a period of nine years of the period for which the difference of wages was claimed as barred by laches.l:and--.t.here was no jurisdiction in the competent authority condone"
delay when there was not evenmlan' ..applicatiOn_,$eel;in;g condonation of the delay.
The petitioner admits which he is engaged is in training at the club stables and to. on behalf of the in question are stable workers horses, cleaning the stables and ei(erci'sing It is contended that State Goyferriment 'r1asV_l not fixed minimum wages for the nature of work. ?'i'hei"«-reasoning of the competent authority that the .wlor1<menl"_'bei1ig'engaged on the premises of BTC would be coyeredi under the Schedule to the Act, as "Clubs " are included ~ the Scheduled employment, is questioned on the ground that i even if the proposition is accepted, a closer examination of the Z 34 relevant notification under which the minimum wages are prescribed for the several category of workrrien employed by clubs do not include the workmen in question. The notificgatiorz has categorized the following : S
i) Manager
ii) Assistant Manager
iii) Supervisor
iv) Accountant
v) Head Cook
vi) Swimming Coac};"~~«--%,,
vii) Steward
viii)
ix) :'Barrr1anVVS A V
x) Teleghone"Opcra:or*$.. 44 S
xi) ; ' 'Electrician " "
S xii) AssistantCool{"l /. .
'xiv)'*l S
xv)' z atcliman H i " x\a'i_)4 Sweeper/Cleaner S )_{vii)" Scavenger to V} __>iviii) Gardener 35 xix) Picker Whereas the workmen in question are the fotlowing-:. '
i) Jamadars/Farriers/riding boys
ii) Syces
iii) Spare boys syces
iv) Extract boys/faltus The competent authority _has_th'eiric.ei"eXercised"jurisdiction where there was none -- Vasv'i'it_Vis'vlonly -iI1_.v.resfpect of a Scheduled employment thatl deteImi'nati'on of minimum wages was maintainab~le:'§o;__ ii i It ccwntcndeii-~that.lover'-the' decades, there was never any claim by _'worl<lrner1..ait'the various settlements arrived at as to '~ thegwragels fallinglllbevlew the minimum wage and it is for the first time' and speculative claim was made, which has.44lbeen.all;owed without any reason being assigned for the delay tobe overlooked.
ll the absence of a privity of contract between BTC and the l " workmen - it was necessary for the workmen to establish that a 3 36 horse trainer fell under the scheduled employment. The competent authority has inexplicably held that the scheduled employment "Clubs" was applicable, but the petitioner was held sliable to pay the difference in wages" the compensation.
It is also contended that the workmen who"weie :e'nlgaged,: in y clearing horse dung could not have lgeeerl ibe:7s.k'ii1l;ed workers (See: Para 8 (e))'ifl__a'nd minimum toil' skilled workers could not havepibelen-applied to'them..v:§ It is asserted that the -much greater than the minimum and hence, the claim itself was not maintainablel. cc-nipe~nsation directed to be paid is without whollyV---unsustainable. The phenomenal amount "im_p'os:e'd_.is uniust and unfair. above background, the points that arise for Apconsiidefiation by this court are the following :
i -ea) Has the competent authority justified the entertainment "of the claim under Section 20 of the Act in respect of a period 3 37 commencing nine years prior to the date of claim ? Even if the delay could be condoned, was the competent authority justified in granting the claim in toto and award compensatio'n..4_atVv 10 times the claim ?
b) Were the Workmen, in qu:estio--n.,y within iscopeV7§)fi'j« i Scheduled employment under the it I
c) Has the competent author'ity:"'addressed 313 Paftifis namely» andiitheii concerned workmen, in the proper the liability be fastened on that the Scheduled item "Clubs", if there was no relationshipof employee vis-a-vis, BTC and the w'oi*km_e r1,..yconce'rned-«?' i Competent Authority justified in assuming that tile woVrl<m:e,--1iii'were entitled to wages payable to skilled workers ppemplogyed in a club? Was the miriimum wage payable ifildctermined in accordance with law and the facts and "circumstances ? g 38 On the question ofthe claim being highly belated, there can be no dispute that the claim was indeed belated. Sube.sec:t'io11.V(2) of Section 20 of the Act provides that every appiii:antp--a claim shall present such application.*vvithi.n six months fr'0ti3 the date on which the minimum wagesgor"-_othe1' 'amount payable. It is further provideditltat ar1y---- "may be admitted after the said. _«olflllslixdrnoi1ths if the Authority is satisfied that the applicant "had for not making the application suchiperiod. "
Given the he-iabpove provision, it is plain that the Legislature*--.._Vhas Vlaffo17die'd..l~7i' the discretion to the competent au1'h°erityito__ conslide-r~-the facts and circumstances on a case by case'..bas:is,.l"eitl1er to condone the delay or to reject an appplicationii the instant case, the Authority has readily acceptedlthe laconic reasons assigned in the application. The l '~\_2l\'!o--rkmen were employed in the premises of a prestigious club ll "in the heart of the city and had the assistance of seasoned trade g 39 unions , though they may have engaged in humble chores, the reasons assigned could not have been rather naive_ly'._,ae.cepted by the competent authority.
In the opinion of this court, gi_ven,.t.hlafjt .'c.1a'i-mi was m,-asie under a labour welfare legislation, con(ionatio1ni'o.f delay} ought' to be liberal -- but theflrihe toibe"icoVnsiciered would be, even if the delayiriui:entertai:;ii.ng"'theglgiapplication could be justified, whether' of the period commencigwg inflthe year 2005. In the facts and iciireiirnstainces,"it_'woul.d,i at best, have been reasonable to restrict 'the co_ns~idera'tioi1"of the claim not extending three years prior to-.the'pres'entation of the claim. This would have been in consonance with the law of limitation which prescribes glirigiitation, for the price of work done by a plaintiff, in c'iv.il"isui"t.l That law does not distinguish between an ignorant » w'orl.§man or an enlightened one. These workmen on hand were hot bonded labourers on a remote quarry, to be enabled to Z 40 recover monies due to them from a remote point of time. Hence the claim should have been restricted as aforesaid_';'--«_a"'--.,u In so far as the compensation directeddto concerned, it has been granted for~the'askain_g by jthe_co'm:pet.ent i T authority. Though the discretion toiiawa'rdi a vested with the authority, to and in a reasonable this court, would be to award reasonable found to be payable and boststirasalciornpensation. When the amount amount may even be justified for and effort spent in adjudication is fruitleiss.._4_a case the compensation awarded w_ouéltd:ruinp_even"'a»prc-sperous employer. The same requires to at drasti_calil'y.V:scaled down, even if it is to be paid. The"--ipnext question as regards whether the workmen in question could be said to fall within the scope of a scheduled employment under the Act.
5 41 To address this issue, the definitions of the following ex ressions ma usefull be extracted:
P Y Y "employer" means any person who:«.employ's, * whether directly or through another 'person', or whether on behalf of himself_or any otherfperson, one or more employees in any'7 sc__hedu.l_ed A' employment in respect of which mi~ni'inumrat"es of wages have been fixedunder thi-.é1.A"ct,' and include except in Sub>section"(3) of Sect.i'on"'26.,
(i) in a factory where"ther.e is ca:'1'i.ed_on any schedule "~e_mp1_oyment 2 in" - respect of which minimum ~rates,oi§ }wage'"s._have been fixed under the 'lA_ct,',"any .-person _ named under (clause(,f)"of'Sub¥SectionI(l.) 'of Section 7 of , 'ltiieei'Fact.ories--~}\c't,e'l948__(.63 of 1948)), as 'vi 2 mjana ger_cf_ the factory. .
(ii) any l"sch'e_duled employment under the 'control'of_,a1iy.~i}overnment in India in respect of which mjvnimum rates of wages have been if fixed u"r_1de"r this Act, the person or authority appointed by such Government for the A supewision and control of employees or ,4 where no person or authority is so appointed, the head of the department;
_ ,(i1'i)_ ln any scheduled employment under any local "V authority in respect of which minimum rates of wages have been fixed 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; 3 42
(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 oiflthe employees or for the payment of wages; '' XX XX XX "Scheduled Employmeiit? means, V an r employment specified in the scheduie , i or any process ; i A or branch of work forming part of such erntploytnenrgv * . xx' "employee" .means<'any person who isemployed for hire or r-ewtard Lto ;_do"--a,riy 'work, skilled or unskilled, manual A or»7clericai',fflin*__a scheduled employment ingrespfecti --of~.which n'ri.i'iimum rates of wages:h_a've been yfixed;-..and_jincludes an OLlt~WO1'k€I' llll "to «whom'7:}1ny articles orlmmaterials are given out by _ another;*person'-._to~----.be made up, cleaned, washed, altered, '(;r:nam'ent'e»dy,xfinished, repaired, adapted or 'otherwise processed for sale for the purposes of the _ trade'or_ibusines's' of that other person where the V proces-sis to be carried out either in the home of the out--worker""or in some other premises not being A , premises under the control and management of that person; and also includes an employee declared 7'_to__ befan employee by the appropriate Government; Mbult 'does not include any member of the Armed Forces of the (Union).
V tilt is true that Horse Racing or Horse stables are not ..._..§cheduled employment. In the instant case, BTC, the horse Z 43 owners and the horse trainers are inter--dependent for their continued existence in those roles. BTC is a club and"C:1luhsVVare a category of scheduled employment. The sole is horse racing, hence it is unlike'-.oth'ier _.c.lji1b.s_ that are contemplated. It is said to be the ionlygone as State. There would hence be"'-nfoiiother club"-x,aihich_engages at jamadarv 3 SyCe= 3 fahh"-5.. 01'.'éhridiliginibflyt are all horse stable hands. Hence the Notilfifcation"ilissiied by the State Government :_iotii:ncli3ding ahoxzjen/'orlrttnen among the list of employees whol:rtayiVi'ne«.iis't1'ally "engaged in any other social or cultural club This is especially so in the light of Sub~sect.i_on. 'Section 3 of the Act which reads as Ehjttattiithstanding anything contained in sub--section V (13,. appropriate Government may refrain from fixing ..mini1nurn rates of wages in respect of any scheduled employinent in which there are in the whole State less than one thousand employees engaged in such employment, but if at any time (***) the appropriate Government comes to a finding after such inquiry as it may make or cause to be 3 44 made in this behalf that the number of employees in any scheduled employment in respect of which it has refrained from fixing minimum rates of wages has risen to one thousand or more, it shall fix minimum rates of yua,_iges'ii~. payable to employees in such employment (as SOOI'r"I.1S' A' be after such finding.) ll l i ll But from a reading of the above de.fiAnvitio»n.s..h'arnio'niously, there is no difficulty in holdingthat tlieslaidy * covered under the Scheduled enipl:oy<m.ent...' "An._'AerI_i:ployer _is a person who employs onellor j.erriplolyees, whether directly or through another pfersonil (1ft2i3Elt:il'~-I_1'ZtliT1€','Tl)ii'i.! in any scheduled emploiyrrienct;lipjsclhiedulediflemployrnent means an employment specified any process or branch of work forming. part employment. And an employee is a employed in a scheduled employment and ~ine.iude's7_a.n__ ojat' --worker to whom any articles or materials (read- 'horses ) are given out by another person (read- trainer), 2 itoibe cleaned, washed, adapted, ornamented (read- fed, washed and exercised) for the purposes of the trade or business ( read- 5 45 activity ) of that other person (read--BTC). In other words, it may be said BTC has, for the purposes of its main activity, horse racing. It does not own any race horses --~ it _invites.._race horse owners to bring them to its premises andhouseC'theri':---in.» its stables. The horses need to be train.e_d an.d.ithleI'eifore, .t_1jainersi 1. are employed ~ the horse owner to be cared for, the stables bernaintaiiied:;sTH'erice, the stable workers are em;5io.yed.'.Vr('Thcire no material" available to establish that the appointed the workmen frornltfirie to"tirne.*f N'ot:.ai-isi'n.gl.e entity amongst these is dislpensabl.e.i'li'A:l.1.:p:tiij,s"is:_to-- facilitate the main activity of are. It is irolr1i«c.alv.that_ lornliyfemployees engaged by BTC for its a(_i'ri«:ini_s'tra,tive iiai'rd....i.ncidental activity of feeding its members i rsqueiaclhring'-their thirst, or who potter in the garden, are coveretl.liir;der the Notification specifying the employees ppengagedi' in the Scheduled employment of Clubs. In any event, ll fe*ve.n the work of the stable workers is a branch of work 5 46 forming part of such employment, it would therefore be scheduled employment.
In so far as the relationship vis-a--vis BTC, the 'I'raiine»rs and the workmen are concerned, the competent__;aut<horit3i' concluded that the trainers are the e>mploye1""i'.i;~ai§lep pay __tih'cu wages of the workmen and has pres;um:a'bl.}ii held that i's'(_no privity of contract of employer_va'n.d emiployeepbetwieen and it the workmen. This conclusion i.sp'--apparently'on the admitted position that the workmen"are-.einderithe.. direct supervision of the resipeicti*ve»Vtrainiijier is training a particular horse and to which"the"wor'l<.rriet'1'-airetassigned. And the further admitted circ;um.stance'-that'there were several settlements entered into 'between theatrade unions and the trainers association in respect H ~_of._wagesj_and,"other service conditions of the workmen. One of the isstieshframed by the competent authority was as to which of » it itheprespondents, BTC or the Trainer was liable to pay the ifminimum wages to the workmen. The prayer in the writ Z f7 petition by the workmen is hence incorrectly framed. It is not in serious dispute that the source of payment of wages is the amount paid as maintenance cost of each horse. BTC"hav.ing made it the entire responsibility of the Owner pay the wages of the workman t<1'rrough Tthevytrainer" vwasla convenient arrangement of absolving, itself of obligatiiong while it might also enable it legal obligations that may aris~e, which hasliiprompted the workmen to file the w_ri't if the present arrangement ego-ntiniie undistirrbed, the larger question that li'ngers is "lw'i1etlielri'the=.trainer or his association can be considered as t.heiiprincipal..'employer of the workmen. _~ 'is VdoLib't'i*7nlV__for. the following reasons:
' owners, the horses and the trainers - do not irerhein eeeetee. They field their horses in other race clubs in the country and hence, are not permanent fixtures at the Club. are replaced by other owners, horses and trainers. The Z 48 workmen however, have been working in the premises of BTC for the past several years atleast as admitted even by BTC. Hence it is cieai that their role as workmen at the ._well defined-- their paymasters may be a floating who is a licencee of the Ciub ma_y~~voluntarily'"leave may ' . 2 even be suspended by BTC, he workmen who may have been-v..supervis'ed. 'respect of the horse of which he,Wa_s thetrainer. j"By denyviirigthe status of employees under BTC -5- in a precarious position of being:j,disow.nec1 t'he,:B:TC~----iff its activity was to be suspended' for any [fie h '" ~-- ' In the 'words ofjVthe' court,
-- , "5. Ti;e_:trawe.7'test'-Inay, with brevity, be indicated once ,>o,grai.n. Whiereaworker or group of workers labours to ..pi'r2a'ztcev goods or services and these goods or services A business of another, that other is, in fact, the ,e,tnpl()_ver. He has economic control over the " ttéorkers' subsistence, skill, and continued employment. If he, for any reason, chokes off,' the worker is, virtually, laid off" The presence of intermediate '5 49 contractors with whom alone the workers hatie immediate or direct relationship e.r contractn is of consequence when, on lifting the veil or look'ing. ~ eonspectus of factors governing eitzployi-neizt,[)r$ie'll discern the naked truth, th()nghcZrape¢i"in" perfect paper arrangement, that the it the Management, not the immediate eoJrttraei'or.°':
Myriad devices, haljlhidaetrinpfllalafter fohi éfviégaili form depending on the degree" of' 'eot1ceaimen.t'needed, the type of ir2dzist;=y:,fl>*he i_'ocat and the like may he resorted to 'ieg_istation casts welfare_.o£2iig'atior§s on based on Artic[e;"l"3{§, ..g'rtdf'4:3_--'AV_("ff' the Constitution. The tnn.stll aiirtid the mischief and
-,'.2ttlrpt)5ei_lof.'t/;--e -iaw and not be misled by the mayo zgffphttfgat apg§:e'at'ance.s. "(Hnssainbhai vs. The M Alash"'Faetoryi--.The;hitiil1' Union (1978) 4 sec 247). hflowever', "the question not really having arisen for eor'1_siderati.o_n Before the Competent Authority, namely whether BTC isiindeed the principal employer of the workmen, the liquesétionll remains open as it requires to be addressed with reference to material evidence, which is not readily M 'forthcoming.
% In so far as the determination of the minimum wage payable and the difference directed to be paid requires'-to be reconsidered on two grounds, the competent aut.hhority.j' proceeded to determine the minimum wage paya.bi'e.ori--i.the basis» .. of the minimum wage payable to ski.lied i'Wo'rkler iri':'ae..__cl.1;bi. The nature of work performed by the'workmeni\é.(as,hhbaslicailyi> manual labour, though riding a may reqt--1ire_ some amount of skill, (if they are ""peirrIiitted'{f :0 the horses, while exercising then1};" _This"y\?as':lreq:uir:ed to addressed by the C0mP€l'3n["3U'€h§5i'ii3'~ib€fC5l'3:"holding that they were entitled to wages of sll<i;i..i__ied wlorkiIr_1en..l-Iowevei', it is unfair on the part of «-_thetrrpsettheser inii"WP----~i5266/2006 to debunk the workmen as in clearing horse dung. And secondly, in the...circumsta.iice that tabular statements are filed to spell out the-wiorkmen have received wages that are higher than the _ i minimum wages claimed and therefore the claim was not
-rniaintainable. This contention does not seem to have been § 51 taken before the competent authority. No such statements are filed in evidence. The workmen have not coun't'ered.lfthis . However , if this is indeed true then the claim' rnjayli'1iot.ll3el' maintainable. This is again an issue which re'qu.i.resV.Val'closler investigation and findings of fact are ltohe recoordledlf 1
12. In the light of,.--the opjin'i'onp_:'e§{lpressedThereinabove, the writ petitions are allowedf 'order is quashed.
The claim of"th¢'_'.workrr:en': is. to the competent Authority for a-lll"r,esh"consicleratiori in the following terms :
prepared and filed may be re~ presentedlwithvbetterlparticulars. The claim shall be restricted tov-'al'periodV.i.of threeyears immediately preceding the date of its 'fir_st'pre«seritatioli;. in the year 2005. The claim may incorporate any sub.seqiient period for which amounts may be due. ll The question whether BTC is the principal employer of V' "the workmen, though the trainer and his association supervise 5 and pay the workmen, may be addressed and appropriate findings given ~should the workmen raise such a --corit'e.nt'ion, and seek to establish the same.
The Authority shall.reconsider,the1'rate of.miniiniin;is'--wages payable to the workmen anda1_s'e....addre'ssV the ques«tion..tvhethei°eit they are to be considered ash.--s|li<yfiled--~..workers-.or./as manual labourers.
The q1ies_tio1i* 'the"'4cla.ilm,.itself is maintairtable as the are to*b_e receiying a higher wage than the minimurn_wage' 'sought to be demonstrated by BTC as well as the 'trainer before this court may be considered if such écontehtioni'is_ raised by those patties. ii ._JHayitigfl.-1'egard to the long pendency of the dispute, the Authority is directed to expedite the hearing and decide the it in accordance with law, preferably in the English
-it-language, especially in addressing legal aspects with reference 6 53 to provisions of law and the judgments of the apex court ar_~d_ this Court.
JT/nv