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Somiben Mathurbai Vasava Vs. Lalji Hakku Parmar Leather Works Company - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpl. C.A. No. 58 of 1981
Judge
Reported in(1984)1GLR388; (1984)IILLJ381Guj
ActsIndustrial Disputes Act, 1947 - Sections 33C and 33C(2); Minimum Wages Act, 1948 - Sections 3, 3(2), 5, 10(1), 12, 12(1), 17, 20, 20(1), 20(2), 24 and 25
AppellantSomiben Mathurbai Vasava
RespondentLalji Hakku Parmar Leather Works Company
Cases ReferredAthani v. Presiding Officer
Excerpt:
.....clearly reduces such benefits and is clearly violative of s. 33c is a proper remedy in cases like the present one. 14. thus all the contentions raised by the respondent-employer..........that notification is not applicable in the present case. section 17 reads as under : 'minimum time rate wages for piece work : where an employee is employed on piece work for which minimum time rate and not a minimum piece rate has been fixed under this act, the employer shall pay to such employee wages at not less than the minimum time rate.' a bare reading of this section clearly contemplates that : (a) an employee is employed on piece work; (b) for which minimum time rate is fixed; and (c) no minimum piece rate is fixed. in the present case all these three conditions are satisfied. then, the section provides, the employer shall pay to such employee wages at not less than the minimum time rate. thus there is no escape from the conclusion that the petitioner, though employed on piece.....
Judgment:

R.A. Mehta, J.

1. This petition arises from dismissal of a Recovery Application claiming payment of minimum wages. The petitioner and several other workmen of the respondent employer, had filed Recovery Applications under S. 33C of the Industrial Disputes Act claiming payment of special allowance fixed by a notification (Ann. A to the petition) under the Minimum Wages Act for the scheduled industry of the respondent-employer. The petitioner claimed recovery of an amount of Rs. 2,246.20 ps. being the difference of amount between the wages actually paid and payable under the notification under Minimum Wages Act for the period from 1st January, 1977 to 31st May, 1978. There were several other recovery applications and it appears that a joint parishes had been given by the parties that whatever order is made in the present proceedings, would be implemented in other recovery applications also.

2. The learned counsel for the respondent faintly raised a contention that the notification is applicable to 'tanneries and leather manufactory' and the respondent's establishment could not be covered under the same. The Labour Court has negatived that contention relying on the case of Superintendent and Remembrance of Legal Affairs, West Bengal v. Soon, 1979 L.I. Cases 1963. The Labour Court held that the leather manufactory means 'the place where the leather work is carried on'. It held that leather manufactory would include preparations of articles of leather and preparations of washers from leather. In leather factory, leather cannot be manufactured (leather is a natural product) but products of leather can be manufactured and that would be leather manufactory. Hence the provisions of the notification are applicable to the respondent-establishment which manufactures leather washers. The Labour Court has rightly rejected this contention of the employer.

3. The respondent-employer also contended that the provisions of the Minimum Wages Act are not applicable to piece-rated workmen as the piece rate use to be paid to the petitioner according to the agreement made with the workmen, and since the notification does not fix the minimum piece rate, the said notification is not applicable in the present case.

4. By the notification (Ann. A to the petition) the minimum wages have been revised with effect from 1st August, 1974 whereby the basic rates of wages and special allowance have been revised and those minimum rates are minimum time rates and no minimum piece rates have been fixed. The Labour Court held that since no minimum piece rates have been fixed by the notification (Ann. A), the said notification is not applicable in the present case and for that reliance is placed on S. 17 of the Minimum Wages Act.

5. The minimum rates of wages are fixed by the appropriate Government under S. 3. Section 3(2) enables the appropriate government to fix minimum time rate, minimum piece rate, guaranteed time rate, over-time rate, etc. Section 13(3)(b) enables the appropriate government to fix minimum rates of wages for anyone or more of different wages periods, such as by the hour, by the date or by the month or by any such other larger wage period. Section 5 provides for the procedure and publication of notification fixing or revising minimum wages. Section 12(1) reads as follows :

'Where in respect of any scheduled employment a notification under S. 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 deductions except as may be authorised within such time and subject to such conditions as may be prescribed.'

The respondent-establishment is covered by the scheduled employment - 'tanneries and leather manufactory' and a notification under S. 5 is in force and minimum rates of wages have been fixed by such notification. The contention of the employer is that the notification has fixed minimum time rate of wages and no minimum piece rate has been fixed and, therefore, that notification is not applicable in the present case. Section 17 reads as under :

'Minimum time rate wages for piece work :

Where an employee is employed on piece work for which minimum time rate and not a minimum piece rate has been fixed under this Act, the employer shall pay to such employee wages at not less than the minimum time rate.'

A bare reading of this section clearly contemplates that :

(a) an employee is employed on piece work;

(b) for which minimum time rate is fixed; and

(c) no minimum piece rate is fixed.

In the present case all these three conditions are satisfied. Then, the section provides, the employer shall pay to such employee wages at not less than the minimum time rate. Thus there is no escape from the conclusion that the petitioner, though employed on piece work, is entitled to the minimum time rate fixed under the notification (Ann. A) and the Labour Court was clearly in error in holding that the notification was not applicable to piece-rated workmen.

6. The agreement produced at ex. 11 provides for payment at piece rates and the Labour Court has held that such agreement is not hit by the provisions of S. 25 of the Act. Section 25 is a provision of absolute prohibition against contracting out of the benefits and privilege under the Act. Therefore, even if an employee relinquishes or reduces his right to a minimum rate of wages or any privilege or concession accruing to him under the Act, it shall be null and void in so far as it purports to reduce the minimum rate of wages fixed under the Act. As held earlier, the minimum rates of wages have been fixed by the notification under S. 5 and the employer is bound to pay wages accordingly under Ss. 12 and 17; the agreement clearly reduces such benefits and is clearly violative of S. 25 of the Act. Therefore the Labour Court was not justified in rejecting the recovery application on the ground that the workman was entitled to wages as per the agreement and that the notification was not applicable.

7. The learned counsel for the respondent tried to resist the claim of the petitioner on several other grounds also. It was contacted that S. 33C application was not maintainable on the ground that there was no existing right of the workmen and the employer had disputed the liability. It was also contended that S. 20 of the Minimum Wages Act had provided a remedy and a limitation of six months and the Minimum Wages Act was a self-contained Code and every other remedy was barred.

8. Reliance was placed on the judgment of the Supreme Court in the case of State of Punjab v. The Labour Court, Jullunder and others, [1981-I L.L.J. 354]. It was a case under the Payment of Gratuity Act and after considering the scheme of that Act and the machinery provided thereunder including the provision for appeal, the Supreme Court held that Payment of Gratuity Act was a complete Code containing detailed provision covering all the essential features of the scheme for payment of gratuity; it created the right to payment of gratuity, indicated when the right would accrue, and laid down the principles for quantification of the gratuity; it provided further for recovery of the amount; for the enforcement of its provisions the Act provided for controlling authority and for the appellate authority. Upon all these considerations the Supreme Court held that the proceedings for payment of gratuity must be taken under that Act and the remedy under other enactments including S. 33C(2) was impliedly barred. Relying on this, the learned counsel for the respondent contended that the recovery application for payment of minimum wages could be made under S. 20 of the Minimum Wages Act only and, therefore, the remedy under S. 33C of the Industrial Disputes Act was impliedly barred.

9. Under the Minimum Wages Act, the question of exclusion of remedy by an implication would not arise because there is an express provision excluding jurisdiction under S. 24 of the Act, which provides for express bar of suits only. It provides that 'no court shall entertain any suit for the recovery of wages in so far as the sum so claimed .... (d) could have been recovered by an application under S. 20'. Thus the express bar is only against suits for recovery of minimum wages and no bar is created against the remedy in S. 33C of the Industrial Disputes Act. To read a bar against remedies other than suits would be rewriting and extending the bar beyond the express legislative intent.

10. In the case of Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli and others, [1969-II L.L.J. 651], the Supreme Court had an occasion to consider directly the question of remedies under S. 33C of the Industrial Disputes Act and S. 20 of the Minimum Wages Act and the Supreme Court held that 'the language used at all stages of the Minimum Wages Act leads to the clear inference that Act is primarily concerned with fixing of rates-Rates of minimum wages, overtime rates, rate for payment for work on a day of rest and is not really intended to be an Act for enforcement of payment of wages for which provision is made in other laws such as the Payment of Wages Act and the Industrial Disputes Act'. The Supreme Court further observed that 'the language used in S. 10(1) shows that the Authority appointed under that provision of law is to exercise jurisdiction for deciding claims which relate to rates of wages, rates for payment of work done on days of rest and overtime rates, and the purpose of S. 20(1) seems to be to ensure that the rates prescribed under the Minimum Wages Act are complied with by the employer in making payments, and, if any attempt is made to make payments at lower rates, the workmen are given the right to invoke the aid of the authority appointed under S. 20(1)'. It further held that 'in cases where there is no dispute as to rates of wages, and the only question is whether a particular payment at the agreed rate in respect of minimum wages, overtime work or work on off-days is due to a workman or not, the appropriate remedy is provided in S. 15 of the payment of Wages Act'. The Supreme Court further held the remedy can also be sought either under S. 33C of the Industrial Disputes Act or by raising an industrial dispute under the Act. Thus there cannot be any doubt that the Labour Court has the jurisdiction to entertain such recovery application and there is no provision in the Minimum Wages Act which bars the jurisdiction of the Labour Court under S. 33C of the Industrial Disputes Act.

11. The learned counsel for the respondent also contended that S. 20(2) first proviso provides that application under S. 20(1) has to be presented within six months from the date on which the minimum wages or other amounts became payable and it was also contended that such period of limitation should also be projected and read in the provisions of S. 33C of the Industrial Disputes Act. That question is also concluded by the aforesaid decision of the Supreme Court in Athani's case (supra), where the Supreme Court negatived the plea of reading the provisions of limitation in S. 33C of the Industrial Disputes Act. Therefore, this contention of limitation and maintainability of recovery application under S. 33C fails.

12. It was also contended that since the liability was disputed by the employer the application under S. 33C was not maintainable. When minimum rates of wages have been statutorily fixed by notification under S. 5, there is a clear direction to the employer under S. 12 that the employer shall pay to every employee wages at the rates not less than minimum rates of wages fixed by the notification. Therefore what could be otherwise fixed by agreement, settlement or award, has been fixed by the notification and there is no question of resolving any disputes and fixing any liability. The liability has been fixed statutorily and the only question that would arise would be regarding implementation and recovery in pursuance of the same. Therefore, S. 33C is a proper remedy in cases like the present one.

13. It was also contended that even if minimum time rate applies, there is no way to ascertain wage period so as to make the minimum time rate applicable to the employees working on piece rate basis. Section 15 is a direct answer to this contention. Section 15 provides that if an employer whose minimum rate of wages has been fixed under this Act by the day, works on any day on which he was employed for a period less than the day, he shall be entitled to receive wages in respect of work done by him on that day as if he had worked for a full normal working day (subject to the exceptions mentioned in the proviso). Thus there is no difficulty in finding out the wages due to an employee. It is not the case of the employer that on any day the workman was not provided with work due to unwillingness on the part of the worker or due to any circumstances on which the employer might be justified in omitting to give the work to the willing workers.

14. Thus all the contentions raised by the respondent-employer fail. In view of our findings that the employer is liable to pay minimum time rate fixed by the notification to the workmen, we quash and set aside the impugned judgment and award of the Labour Court in Recovery Application No. 2787 of 1978 by holding that the petitioner is entitled to the minimum time rate of wages as fixed under the notification (Ann. A. to the petition) and remand the matter back to the Labour Court, Baroda, for ascertaining and quantifying the claim of the petitioner on the basis of the evidence that may be led before it for ascertaining the number of days and minimum wages therefore payable to the petitioner workman. On such amount being ascertained the petitioner will also be entitled to interest at the rate of 12% from the due date of payment till the actual date of payment and the Labour Court is directed to issue recovery certificate accordingly. The matter is remanded to the Labour Court, Baroda, for disposal according to law. The Labour Court is directed to dispose of the proceedings within a period of three months from the receipt of the writ since the claim for minimum wages is pending since long.

15. Rule made absolute accordingly with costs.

16. Petition allowed.


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