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State of Mysore Vs. Mensinakal (S.P.) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberCriminal Appeal No. 430 of 1964
Judge
Reported in[1966(12)FLR179]; (1967)ILLJ87Kant
ActsMinimum Wages Act, 1948 - Sections 2, 3, 3(1), 3(1A), 22A, 22B(2) and 27
AppellantState of Mysore
RespondentMensinakal (S.P.)
Excerpt:
.....of the municipality were not allowed the weekly day of rest enjoined by rule 24 of the mysore minimum wages rules, 1958. the second was that there was a failure to maintain an overtime register showing payments of overtime wages in disobedience to rule 28(2). the third was that the wage slips in form vi were not issued to those clerks as required by rule 29(2). 3. the finding of the magistrate was that there was no obedience to the relevant provisions of these three rules, and it was also admitted by the accused in his statement under s. even otherwise, we do not agree that a valid and good determination already made under the act can perish in the way suggested. 22b(2)(b) is that there can be no prosecution for a disobedience which is older than six months and if the disobedience,..........continues the operation of the old determination notwithstanding the omission on the part of the state government to make the review prescribed by the clause. 24. an appeal was next made to sub-section (1a) of s. 3 which creates power in the appropriate government to refrain from fixing minimum rates of wages in respect of any scheduled employment in which there are less than a thousand employees. it was suggested that the government of the new state of mysore refrained from making any fresh determination for the reason that the number of persons employed as naka clerks by the local authorities in the entire state of mysore did not exceed a thousand and that if the government of the new state of mysore desisted from making a determination, for the reason that sub-section (1a) dispensed.....
Judgment:

Somnath Ayyar, J.

1. In this appeal preferred by the State Government, the challenge is to an order of acquittal made by a Magistrate of Haveri in a prosecution commenced under S. 22A of the Minimum Wages Act (Central Act 11 of 1948).

2. The accused was the secretary of the Haveri Municipality, Haveri, constituted under the Bombay District Municipalities Act. The accusation was threefold. The first was that the naka clerks in the employment of the municipality were not allowed the weekly day of rest enjoined by rule 24 of the Mysore Minimum Wages Rules, 1958. The second was that there was a failure to maintain an overtime register showing payments of overtime wages in disobedience to rule 28(2). The third was that the wage slips in form VI were not issued to those clerks as required by rule 29(2).

3. The finding of the Magistrate was that there was no obedience to the relevant provisions of these three rules, and it was also admitted by the accused in his statement under S. 342, Criminal Procedure Code, that no weekly day of rest was allowed, that no register under the 28(2) was maintained and that no wage slips were issued under rule 29(2).

4. The prosecution commenced on a complaint made by the Inspector of Minimum Wages on 21 January 1963 and the allegation in that complaint was that the date of the contravention of the rules was 25 July 1962. That there was no obedience to the rules until 9 August 1962 was what the accused admitted.

5. But the Magistrate was of the opinion that the Haveri Municipality was not an employer within the meaning of Clause (e) of S. 2 of the Minimum Wages Act, and that there was no duty on its part to obey the rules. It is the correctness of this view which requires investigation in this appeal.

Section 2(e) of the Act defines an employer thus :

'(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 S. 26. . . .'

6. The expression 'scheduled employment' as stated in S. 2(g) means an employment specified in the schedule, or any process or branch of work forming part of such employment. It is not disputed that the employment in the municipality is a scheduled employment within the meaning of those words occurring in Cls. (e) and (g) of S. 2, since serial No. 6 in Part I has reference to employment under any local authority which the Haveri Municipality was.

But it was urged before the Magistrate that even so, the Haveri Municipality did not become an employer since in respect of employment under it, minimum rates of wages had not been fixed. It is obvious that even if the employment is a scheduled employment, a person becomes an employer only if in respect of such scheduled employment, minimum rates of wages have been fixed under the Act as stated in S. 2(e).

7. Now those minimum rates of wages can be fixed by the appropriate Government in the exercise of power created by S. 3(1)(a) of the Act. That clause of the Act as it stood when the prosecution commenced reads :

'3. (1) The appropriate Government shall, in the manner hereinafter provided -

(a) fix the minimum rates of wages payable to employees employed in an employment specified in Part I or II of the schedule and in an employment added to either part by notification under S. 27.'

8. It is not disputed that when the limits of the Haveri Municipality were within the State of Bombay a notification was issued by the Government of the State of Bombay on 30 October 1954 fixing minimum rates of wages for the employees working under the Haveri Municipality.

9. But the Magistrate thought that that notification ceased to have any efficacy when S. 3(1) of the Act was amended on 17 September, 1957 by the Minimum Wages (Amendment) Act, 1957 (Central Act 30 of 1957). The question is whether this assumption made by the Magistrate is correct.

10. It would be necessary, to understand the effect of the amendment made in the year 1957, to trace the history of that amendment. Section 3(1)(a) of the Act as it stood in the year 1948 when the Act came into force for the first time read :

'3. (1) The appropriate Government shall, in the manner hereinafter provided -

(a) fix, before the expiry of three years, in the case of an employment specified in Part II of the schedule, or two years in any other case from the commencement of this Act or, as the case may be, from the date of the notification under S. 27 including the employment in the schedule, the minimum rates of wages payable to employees employed in all scheduled employments.' Since the employment under the Haveri Municipality was in Part I, it was the duty of the Government of the State of Bombay to fix the minimum rates of wages before the expiry of a period of two years from the date of the commencement of the Act. The date of the commencement of the Act was 15 March 1948. But no such minimum rates of wages were fixed within the prescribed period.

There was, however, an amendment made to this section in the year 1954 by the Minimum Wages (Amendment) Act, 1954 (Central Act 26 of 1954). After it was so amended Sub-section (1) of S. 3 of the principal Act read as follows :

'The appropriate Government shall, in the manner hereinafter provided -

(a) fix the minimum rate of wages payable to employees employed -

(1) in an employment specified, in Part I of the schedule at the commencement of this Act, before 31 December 1954.'

11. So it became possible for the Government of the State of Bombay, after this amendment to fix the minimum rates of wages in respect of employment under the Haveri Municipality before 31 December 1954, since the amended section extended the period for the fixation of those minimum rates of wages in that way. It is not disputed that in the exercise of that power, the Government of the State of Bombay did fix the minimum rates of wages by notification made on 20 October 1954. With such fixation, the Haveri Municipality became an employer within the meaning of Clause (e) of S. 2 of the Act and was under a duty to obey the relevant provisions of the rules.

12. The argument that that duty to obey the rules in that way came to an end when S. 3 of the Act was again amended for the second time with effect from 17 September 1957, by the Minimum Wages (Amendment) Act, 1957 (Central Act 30 of 1957). What the amending Act did was to substitute for the figures '1954' in S. 3(1)(a), the figures '1959.' By this amendment, the period within which the minimum rates of wages could be determined was further extended till 31 December, 1959. The relevant part of the amending Act reads :

'3. Amendment of S. 3. - In S. 3 of the principal Act -

(a) in Sub-section (1) -

(1) in Clause (a) for the figures '1954' wherever they occur the figures '1959' shall be substituted.'

13. By the time this amendment was made, the area of the Haveri Municipality had become part of the new State of Mysore under the provisions of the States Reorganization Act, and the argument constructed for the accused was that insistence on obedience to the rules by the Haveri Municipality, should have been preceded by a fresh determination of the minimum rates of wages in respect of employment under that municipality, by the Government of the new State of Mysore before the expiry of the extended period of time, and that since that was not done, the municipality ceased to be an employer when the Act was amended for the second time, and that there was no longer any duty on its part to obey the rules.

14. The alternative contention which did not appeal to the Magistrate was that in any event when there was a reorganization of States on 1 November, 1956, and the area of the Haveri Municipality stood transferred to the new state of Mysore, the notification by which the minimum rates of wages were fixed by the Government of the State of Bombay lapsed and ceased to have effect.

15. Sri Ramachandra Rao, the learned Government Pleader, has pointed out to us that the Magistrate was between two minds on the question whether with the reorganization of Stated and the transfer of the area of the Haveri Municipality to the new State of Mysore, the determination made by the Government of the State of Bombay lost its efficacy. We do not think that the Magistrate had any doubt in his mind that the notification of the Government of Bombay continued to operate after the reorganization of States although, the language employed by the Magistrate in Para. 6 of his judgment may be understood as indicating some kind of a doubt in his mind as to whether it did.

16. But the Magistrate was clear in his mind that the notification perished when the Act was amended in the year 1957, and, that in any event did not operate after 31 December 1959.

17. In our opinion, S. 119 of the States Reorganization Act continued the operation of the notification of the Government of Bombay even after there was the reorganization of States. So, the Haveri Municipality continued to be an employer within the meaning of the Act even after its area became part of the new State of Mysore. The question is whether as found by the Magistrate, it ceased to be an employer either on 17 September 1957 when S. 3 was amended for the second time, or, after 31 December 1959 which was the last day of the extended period within which there could be a determination of the minimum wages under the amended section.

18. In our opinion, there is nothing in the second amendment made to S. 3 which can assist the view that the notification of the Government of the State of Bombay which continued to operate under S. 119 of the States Reorganization Act, perished at any stated point of time. When S. 3(1) of the Act was amended in the year 1954, the purpose of the amendment was to extend the period within which the appropriate Government could fix the minimum rates of wages. If there was already a determination within the period prescribed by the principal Act, it did not obliterate the determination already made.

19. Similarly, the purpose of the second amendment which was made in 1957 was to further extend the time for the second time till 31 December 1959. If before S. 3(1) was amended for the second time the determination had been made either under the principal Act as it stood when it was enacted, or within the extended period allowed by the section after it was amended for the first time that determination continued to operate even after the section was amended for the second time in the year 1957. It is unreasonable to suggest, that when the period for the determination was again extended, the determination previously made perished, or, that there was any duty on the part of the appropriate Government to make a determination again.

20. In our opinion, the effect of the two amendments made to S. 3 was merely to enable a determination which had not been made within the time allowed. There is nothing in the amendments which required fresh determinations. The amendments did not require new determinations, and did not supersede the old.

21. We must therefore dissent from the view taken by the Magistrate that on 25 July 1962 which was the material date stated in the complaint preferred by the Inspector of Minimum Wages, the Haveri Municipality was not an employer within the meaning of the Act and was under no duty to comply with the rules. In our opinion, the disobedience to the relevant rules which was admitted, did amount to a contravention of the provisions of the Act and to an offence punishable under S. 22A of the Act.

22. An argument was however constructed by Sri Malimath that there was something in S. 3(1)(b) of the Act which rendered the determination made by the Government of the State of Bombay on 30 October 1954 ineffective after 30 October 1959. It was said that under that section it was the duty of the Government of the new State of Mysore to review the determination made by the Government of the State of Bombay within five years after there was a determination by the Government of the State of Bombay, and that the omission to make that review displaced the old determination made by the Government of the State of Bombay.

23. The answer to this submission is what is to be found in the proviso to this clause which expressly continues the operation of the old determination notwithstanding the omission on the part of the State Government to make the review prescribed by the clause.

24. An appeal was next made to Sub-section (1A) of S. 3 which creates power in the appropriate Government to refrain from fixing minimum rates of wages in respect of any scheduled employment in which there are less than a thousand employees. It was suggested that the Government of the new State of Mysore refrained from making any fresh determination for the reason that the number of persons employed as naka clerks by the local authorities in the entire State of Mysore did not exceed a thousand and that if the Government of the new State of Mysore desisted from making a determination, for the reason that Sub-section (1A) dispensed with such determination, the old determination made by the Government of the State of Bombay ceased to operate.

25. In our opinion, this argument is entirely in the nature of a mere speculation. There is no evidence that the number of naka clerks in the entire State of Mysore employed by local authorities was less than a thousand at the relevant point of time. Even otherwise, we do not agree that a valid and good determination already made under the Act can perish in the way suggested.

26. That the prosecution was commenced too late and beyond the period of six months prescribed by S. 22B(2)(b) of the Act, was the next submission made. Section 22B(2)(b) provides that no Court shall take cognizance of a complaint against any person for an offence under S. 22A, unless the complaint is made within six months of the date on which the offence is alleged to have been committed. The contravention alleged in the case before us is a contravention punishable under S. 22A, and it was pointed out to us that the complainant gave evidence that the relevant rules had been contravened as early as on 27 June 1961 and that the complaint presented on 21 January 1963 was made too late.

27. This argument overlooks the fact that the offence with which the accused was charged are continuing offences and that the complaint stated that the disobedience to the rules continued even on 25 July 1962, and it was not disputed that such disobedience continued until 9 August 1962. The clear meaning of S. 22B(2)(b) is that there can be no prosecution for a disobedience which is older than six months and if the disobedience, as in the present case, continues until 9 August 1962, and if the case for the prosecution was that there was such disobedience on 25 July 1962, the complaint presented on 21 January 1963 with respect to the disobedience on that day was well within time.

28. In our opinion, the Magistrate was not right in thinking that the offences with which the accused was charged were not established. The accused who was the secretary of the municipality was the person who was charged with the duty of complying with the rules and was therefore clearly guilty of those offences. He was, in our opinion, wrongly acquitted of those offences.

29. Sri Malimath has informed us that the municipality has since complied with the relevant provisions of the rules and that the transgression of those rules is no longer continuing. The Government Pleader accepts the statement made by Sri Malimath. That being so, we do not consider it necessary at this distance of time to convict of these offences and to impose any sentence upon him. Since the purpose of this appeal has been fully accomplished by an elucidation that the accused was wrongly acquitted by the Magistrate on a misinterpretion of the law, it is not necessary for us to do anything further in this appeal.


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