ORDER
1. Heard the learned Counsels appearing for the respective parties.
2. The learned Counsel for the petitioner submitted that the 23rd respondent-the Minimum Wages Authority has proceeded to consider the case without condoning the delay. Therefore, he submitted that the petition deserves to be allowed only on that ground.
3. Under the first proviso to sub-section (2) of Section 20 of the Minimum Wages Act (for short ‘the Act’), the application will have to be filed within a period of six months from the date on which the minimum wages became payable. In this case, according to the respondents the amount was due and payable for year 1984-85 to 1989 and that the respondents have not made the application within the stipulated time and further, the respondents ought to have made an application under the second proviso to sub-section (2) of Section 20 of the Act which provides that the 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. He also submitted that the Authority has not even considered the question of delay before proceeding to pass the final order. On the other hand, it condoned the delay while disposing of the main matter. Therefore, he submitted that the petition deserves to be allowed on that ground and the impugned order be set aside.
4. However, the learned Counsel for the respondent wholly supported the finding of the Authority and submitted that no procedure is prescribed to file the application to condone the delay and it is not necessary that the delay should be condoned before passing the final verdict. On the other hand, the Authority has rightly condoned the delay while disposing of the main matter itself. Therefore, that finding does not call for interference.
5. Admittedly there was a delay in making the application by respondents 1 to 22. The Authority has also not passed the order regarding the condonation of delay before entertaining the application. On the other hand, the delay was condoned while passing the order on main application. In that application, the respondents had alleged that the petitioner had assured them that it would settle their claims which they believed to be true. In view of this the authority has condoned the delay having satisfied with the reasons offered to by respondents 1 to 22.
6. The only question that arises for consideration is as to whether the procedure followed by the Authority in condoning the delay while passing the final order is proper or not?
7. It is no doubt true that respondents 1 to 22 have not filed any application to condone the delay. It is held by the Madras High Court in
a decision in K. Kamaswamy Doss v A. Rama filial and Another , that neither the Act nor the rules framed thereunder require that there should be any written application to get the benefit of the second proviso to Section 20(2) and that Rule 27 only refers to the application contemplated by Section 20(2). It is also held in a decision in Rajasthan Minerals and Company v Authority under Minimum Wages Act, that the application need not be supported by an affidavit for condonation of delay.
8. In this case, the petitioner has not raised the objections before the Authority that the application is not maintainable on the ground that the application is not filed. There is no rule which prescribes that the application should be followed by an Interim Application to condone the delay as prescribed under the Civil Procedure Code. The proviso to Section 20(2) only says that the application may be admitted after the period of six months when the applicant satisfies the Authority that he had sufficient cause for not making the application within such period. Therefore the first argument of the learned Counsel for the petitioner that since there is no application to condone the delay, the application ought to have been dismissed is liable to be rejected.
9. It is next contended by the learned Counsel for the petitioner that the reasons offered by respondents 1 and 22 are not satisfactory. This argument is also unsustainable. In B.N, Elias and Company Private Limited v The Authority appointed under the Payment of Wages Act, it is held while rejecting the contention that the question as to whether there was sufficient cause or not for condoning the delay under Section 15(2) of the Payment of Wages Act was a question of fact and that the same could not be agitated in an application under Article 226 of the Constitution of India; as it is a mixed question of law and fact. In Bisnupada Paul v Sreedam Mandal*, after reviewing the decisions of the Supreme Court in Shakuntala Devi Jain v Kuntal Kumari, Sarpanch, Lonand Grampanchayat v Ramgiri Gosavi and Another, Sitaram Ram-charan and Others v M.N. Nagrashana, a Single Judge of the Gauhati High Court concluded that the views of the Supreme Court as to the power of the High Court to interfere with the discretion exercised by Authorities similar to the authority under Section 20 of the Act were as follows.-
“1. That the powers of interference of the High Court was very much limited.
2. That in exercise of the said power the High Court would not review the discretion unless the same was (a) capricious, or (b) perverse, or (c) ultra vires.
3. That the discretion exercised could not be challenged in a petition, under Article 227 if that was a finding of fact by the Authority.
4. That the High Court might refuse to interfere unless there was grave miscarriage of justice”.
10. I have carefully gone through the order passed by the Authority and it is specifically pleaded by respondents 1 to 22 that they bona fide believed the assurance held out by the petitioner that it would settle their dues and as such they did not approach the Court. It may also be mentioned here that respondents 1 to 22 are the employees and they would not like to go against the assurance of the employer. Therefore, it is natural that they waited with the fond hope that the petitioner would settle their dues. Thus, there was a delay and the same was condoned by the Authority as having satisfied the reasons. Therefore, I hold that the finding of the authority in condoning the delay does not call for interference.
11. The learned Counsel for the petitioner next argued that the Authority has imposed double the amount as penalty for not having paid the amount under the Minimum Wages Act within the time and that the same is contrary to the provisions of law.
12. In an unreported judgment in Sericulture Extension Officer and Another v M.L. Somahha and Others , it is held by this Court as follows.-
“Finally the challenge relates to the imposition of penalty. There is some delay on the part of the workers in moving the 6th respondent. This aspect should be remembered which imposes the penalty. The Authority has imposed four times the difference. I do not think that the imposition of penalty can be sustained. That part of the order needs interference. I therefore set aside the order insofar as it relates to imposition of penalty at 4 times. In all other respects the order made by the 6th respondent is confirmed”.
In a similar circumstance in an unreported judgment in Assistant Executive Engineer v Cheluvaraju and Others , this Court taking into consideration the circumstances of the case vacated that part of the award imposing penalty.
13. The petitioner has stated that the delay in not making the payment was only because of the Government Order dated 16-4-1991 directing the petitioner not to pay until further order. However, the Government Order is not produced. But the fact remains that the delay was only due to the said fact. Therefore, I am of the view that that part of the award imposing penalty by the Authority calls for interference.
14. Before parting with this judgment, notwithstanding the finding given by me as above, the fact remains that the question of limitation would go to the very root of the application filed before the Minimum Wages Authority and if the question of limitation is considered in the main petition itself, without giving a finding on that aspect and after the evidence is let in, in the event the authority were to come to the conclusion that the petition is barred by time, and the petitioners failed to make out a ground to condone the delay, the entire exercise of leading evidence on the main petition would become a futile attempt. However, according to the second proviso to Section 20(2), discretion is given to the Authorities, to condone the delay nonetheless it is also open to the Authorities to reject the application in the event the Authority is not satisfied with the reasons assigned to condone the delay. Under those circumstances, it is desirable that the Authorities concerned shall consider the question of condoning the delay before proceeding to dispose of the main petition which would save time, money and also the cumbersome procedure of recording evidence.
15. There is no doubt that rule does not provide for filing an Interim Application to condone the delay. Still it is for the Government to consider the necessity to frame relevant rules in the best interest of the parties and also to achieve the object and purpose of the Act. Therefore, send a copy of this order to the Government through Government Advocate. But however, this observation is not applicable to the matters already disposed of by the Authorities.
16. In the result, therefore, I proceed to pass the following:
ORDER
Petitions are partly allowed holding that respondents 1 to 22 are entitled only for a total sum of Rs. 1,35,909.00 and the order insofar as it relates to imposing penalty in a sum of Rs. 2,7181,8.00 is set aside.