JUDGMENT D.P. Singh, J.
1. Heard counsel for the parties.
2. This writ petition arises out of proceedings under Minimum Wages Apt, 1948 (hereinafter referred to as the Act) wherein writ of prohibition has been sought restraining the respondents from proceeding with penal action against the petitioner.
3. Brief facts which are necessary for decision of this writ petition are that Swaraj Ashram is a Society registered under the U.P. Societies Registration Act and receives financial aid from the Khadi and Village Industries Commission which is a corporation established under a Central Act. It is asserted that the main object of the society is to provide engagement to weavers, spinners, etc. in their village homes and to encourage khadi and village industry. It is also stated that it runs on a no profit basis. The functioning of the organisation is such that the weavers and spinners do the entire work at their own homes and they are not paid regular wages, but they are given remuneration in accordance to their output. However, having failed to pay the minimum wages to their employees as prescribed in the notification dated 21.6.1984, notices have been issued to the petitioner for payment and also penal action for contravening the provisions of the Act. These notices are under challenge in the present writ petition.
4. The learned counsel for the petitioner has urged that since the petitioner organisation was neither a commercial establishment nor a shop and the weavers and spinners were not employees in that sense of the word, therefore, the Act or the Notification issued therein would not apply to it. In the writ petition it has been admitted that the petitioner has established 60 outlets in the State for the purposes of selling khadi cloth manufactured by its weavers. Even though weavers after lifting cotton from the petitioner's centre, weave it in their home and then return the finished product to the centre but the Act applies even to such employees. Sub-section (1) of Section 2 defines an employee. The definition in the Act includes such out workers. The Apex Court in the case of Lok Nath Nathu Lal v. State of M. P., 1960 (2) LLJ 348, after considering the provisions of the Act has held that such out workers, as the employees of the petitioner, are covered under the Act. Even according to the averments in the writ petition, it cannot be denied that the petitioner is not running retail outlets which partake the character of a shop and the finished products are sold there.
5. The second submission of the counsel for the petitioner is that since it is being run on no profit motive, the Act will not apply. A perusal of the Act shows that the Minimum Wages Act does not exclude such organisation. In fact, it has already been held by the Apex Court in the case of Management of Shri Chalthan Vibhag Khand Udyog Sahkari Mandi Ltd. v. G.S. Barot, Member Industrial Court and Anr., 1979 (4) SCC 622, that minimum wages can be fixed even at the stake of closure of the industry. However, the learned counsel for the petitioner has relied upon a judgment of the Supreme Court rendered in the case of Swarajya Ashram Karmchari Sangh v. Swarajya Ashram, Kanpur, 1995 LLJ 486, to contend that the provisions of the Act would not apply to the petitioner. The aforesaid decision was rendered under Payment of Bonus Act, 1965, which is directly related to profit motive of an establishment and the ratio laid down therein, in my opinion, would not apply to the case at hand. Therefore, this argument also has no force.
6. The next contention of the learned counsel for the petitioner is that the State Government had failed to make any enquiry regarding financial condition of the petitioner and also no opportunity was given to it prior to the issuance of the notification, thus, the action was in violation of Section 27 of the Act. A perusal of the notification annexed with the writ petition shows that the proposal was earlier notified and the Advisory Board was also consulted before fixing minimum wages. Non-eleciting the views of the petitioner, which is a unique organisation, may amount only to an irregularity. The Supreme Court in the case of Ministry of Labour and Rehabilitation and Anr. v. Tiffin's Barytes Asbestos and Paints Limited and Anr., 1985 (3) SCC 594, has held that a notification fixing minimum wages should not be interfered with under Article 226 of the Constitution of India merely on some irregularity either in the procedure adopted or the constitution of the committee which recommended it, Therefore, this ground also has no force.
7. The last contention of the learned counsel for the petitioner is that the appropriate Government in the case of the petitioner is the Central Government since it is working under the authority of Khadi and Village Commission, which Corporation has been established under a Central Act. It is admitted in the writ petition that the petitioner is a registered society receiving aid from various sources and also from the Khadi and Village Industry Commission. It has nowhere been stated or shown as to how it is working under the said Commission. Sub-section (1) of Section 2 of the Act clearly states that when a schedule employment is carried on by, or under the authority of the Central Government, the appropriate Government would be the Central Government. However, there is nothing on record to show as to how the Central Government could be the appropriate Government in the case of the petitioner.
8. The issues raised in this case are not only away from the normal rule but proves the message of the age old proverb of killing the Goose which layed the golden egg!
9. The nature of the activities carried on by the petitioner, finances involved and the object for which the petitioner society was set up, no doubt, deserves to be nurtured. The organisation is a source of employment to the teeming rural masses, and as the Mahatma then said, and which is true even today, "India lives in the villages", crippling such an organisation financially may have a telling effect on the lowest of the down trodden who are the main beneficiary of the activities of the organisation. It would also prove to be counter productive even to the very object which is sought to be achieved by the Act. It cannot be denied that the notification under the Act would only benefit the employees at the retail outlets who are only in the nature of facilitators, at the cost of the weaver. The Act contains an exception clause and this Court is confident that if the petitioner approaches the State Government for exemption under the Act, it would take into consideration the financial aspects, the objects of the petitioner society and other relevant circumstances to pass suitable orders vis-a-vis granting of exemption from the rigours of the Act. In case the petitioner approaches the State Government, the State Government shall take a decision within a period of six months with regard to granting exemption to the petitioner organisation from the applicability of the provisions of the Act.
10. However, as law stands as of date, in my opinion, petition is devoid of any merit.
11. Subject to the observations already made, the writ petition fails and is dismissed. However, in case the petitioner files an application seeking exemption from the State Government under the Act, no proceedings shall be initiated or continued against the petitioner under the Act for a period of seven months from today.
12. With the aforesaid observations and directions, the writ petition falls and is dismissed. No order as to costs.