(Oral) (1) Heard learned counsel for the petitioner and learned learned Standing Counsel who appears for the respondent nos.1 to 5. Although Power has been filed by Shri Pravin Tewari, Advocate on behalf of opposite party nos.7, 12, 13, 15, 16, 24, 25, 26, 28, 30, 31, 33, 34 & 36 but he has not appeared to assist this Court. Shri Surendra Pal Singh, Advocate has also filed his power on behalf of opposite party nos.6, 8, 9, 10, 11, 14, 17, 18, 19, 20, 21, 22, 23, 27, 29, 32 & 37. He is also not present to assist this Court. There is no prayer for adjournment also.
(2) This Court has perused the counter affidavit filed by the private-respondents as also the counter affidavit filed by the State-respondents in the matter. Since it is seven years old matter, therefore, this Court does not find any good ground to adjourn the case today.
(3) It has been submitted by the learned counsel for the petitioner that the respondent no.3 allegedly filed an application under Section 2 of Sub Section 15 of the Payment of Wages Act, 1936 and on such application being filed by the Labour Enforcement Officer, the Dy. Labour Commissioner issued a notice under Minimum Wages Act, 1948, to the petitioner. When the Amin of respondent no.4 had come to the premises of the petitioner's Establishment alongwith Recovery Citation dated 20.04.2012, the petitioner came to know of the said Minimum Wages case having been filed and decided against it on 31.12.2011. No other notice was served on the petitioner's Establishment although there is a mention in the order impugned that the said notice was served by the Labour Enforcement Officer on the Manager of the store, no such notice was ever served.
(4) This Court is not going into the question of sufficiency of notice as it is irrelevant for deciding the controversy raised by the petitioner herein.
(5) Arguments raised by the learned counsel for the petitioner is to the effect that the Payment of Wages Act, 1936, relates to ensuring the payment of all remuneration which a person who is employed is entitled to from his Employer, and also for ensuring all other remuneration under any other scheme framed under any Law for the time being in force. Under Section 15 (2) of the Payment of Wages Act, an application for recovery of unauthorized deductions made by the Employer from the wages of the employee against the provisions of the Act can be made.
Section 15 Sub-section 2 of the Act is being quoted hereinbelow:-
"(2) Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act, or any other 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 62 [twelve months] from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be: Provided further that any application may be admitted after the said period of 62 [twelve months] when the applicant satisfies the authority that he had sufficient cause for not making the application within such period."
(6) An application under Sub-section 2 of the Section 15 was moved by the Labour Enforcement Officer on 07.07.2012 before the Dy. Labour Commissioner. A true copy of such application has been filed as Annexure No.2 to the petition which states the difference between the prescribed minimum wages for each of the employees and the actual wages being paid to the employee in the form of a Table a reference has been made to Section 15 of the Payment of Wages Act and a prayer has been made for the Appropriate Officer to issue appropriate recovery orders against the Employer for unpaid wages amounting to Rs.98,9,584/- alongwith, compensation at the same rate. On the basis of such application moved under Payment of Wages Act notices were allegedly issued under Section 20 (2) of the Minimum Wages Act, 1948 to the petitioner's Establishment alleging therein the non-payment of prescribed minimum wages to the employees in question. The Labour Enforcement Officer alone was heard as none was present on behalf of the respondents, and the opposite party no.2 passed an order under Section 20 (3) of the Minimum Wages Act, 1948 directing the petitioner to deposit within 30 days by way of Bank Draft dues amounting to Rs.19,79,168/-.
(7) It has been submitted by the learned counsel for the petitioner that the Minimum Wages Act, 1948, is a separate Act dealing with a situation where minimum wages are prescribed by the Government through a Notification for particular Trades and Industries i.e. for Scheduled employment. It has been submitted that the Government may fix the appropriate minimum rates of wages payable to employees employed in any of the Schedule employment as specified in part 1 & 2 of the Schedule and it is also open for the appropriate Government to fix such rates for a part of the State or any specific class or classes of the such employers in the whole State or a part thereof. Several kinds of minimum wages are also fixed for place rate work, Job work etc. (8) In case of violation of the minimum rates fixed in terms of wages of any kind including overtime etc., a claim can be filed under Section 20 (2) of the Act.
The relevant extract of Section 20 of the Minimum Wages Act, 1948, is being quoted hereinbelow:-
(2) [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 authorised 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 [or other amount] became payable:
Provided further that any application may be admitted after the 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."
(9) When such an application is entertained, the Authority prescribed under the Act has to hear the applicant as well as employer and hold further inquiry, if necessary to find out whether the deductions made from the minimum rate of wages is malicious or vicious and he may impose penalty not exceeding Rs.50/- to be paid by the employers to the person presenting the application.
(10) It has been submitted that in the case of the petitioner notice was issued under Rule 30 of the U.P. Minimum Wages Rule, 1952 for ensuring presence of the employer. Even if notice was received by the respondent, it was only under the Minimum Wages Act. The petitioner failed to appear in the aforesaid case but there was no adjudication at all thereafter. No inquiry as is required under Section 20 of the Minimum Wages Act was made by the Authority concerned. A perusal of the order would show that it only enumerates the claim as against all the employees, and then observes that since the employer has refused to appear despite service of notice, it is presumed that he has nothing to say in the matter and the unauthorized deductions as well as penalty equal to the amount of wages deducted should be paid by the employer within 30 days of the said order.
(11) Learned counsel for the petitioner has referred to several judgments of this Court including M/s Devyani Beverages Vs. Labour Court reported in 2006 (108) F.L.R., 426 to say that even if no affidavit is filed, the Tribunal has to form an opinion about the satisfaction of service of summons of the petitioner and then proceed further. In case, it chooses to proceed further it must still hold an inquiry. No such inquiry was held the respondent no.2 passed a non-speaking order altogether. Respondent no.2 also did not care to find out whether the application was filed under Section 15 (2) of the Payment of Wages Act or under Section 20 (2) of the Minimum Wages Act.
(12) In the counter affidavit filed by the State-respondent, it has been stated that the claim was filed under Section 15 (2) of the Payment of Wages Act, 1936, but due to clerical mistake summons were issued under Minimum Wages Act and Rule framed therein. However, there is no explanation as to why an order under Minimum Wages Act was passed thereafter.
(13) Learned counsel for the petitioner has pointed out the Paragraph no.54 of the counter affidavit filed on behalf of some of the private respondents by Shri S.P. Singh which says that the "answering respondents were paid their admitted wages. They did not know what their minimum wages was under the Law. The minimum wages must be less or higher which ought to be decided by the adjudication."
(14) Since there is an admission on behalf of the rest of the respondents that they were paid admitted wages by the employer Clause under the Payment of Minimum Wages Act could not have been filed. This Court, therefore, finds the order passed by the opposite party no.2 to be against the law, and liable to be set aside. It is set aside. However, it shall be open for the private respondents to file their claim under the Minimum Wages Act and pray for condonation of delay also from the Prescribed Authority under the Minimum Wages Act.
(15) The Writ Petition stands allowed.
(16) The amount deposited in terms of the interim order dated 18.05.2012 shall be returned to the petitioner as expeditiously as possible say within four weeks from the date of appropriate application moved in the Office of the Dy. Labour Commissioner by the petitioner.
Order Date :- 26.7.2019 PAL