IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:- 06.03.2009
CORAM:
THE HONOURABLE MR. JUSTICE K.CHANDRU
W.P.No.17492 of 1999
The Management of Senthil Motor Service,
Tiruppur ... Petitioner
.Vs.
1. Deputy Commissioner of Labour,
Coimbatore.
(Appropriate authority under the
Minimum Wages Act)
2. A.Rajendran
432, P.N.Road,
Tiruppur. ... Respondents
Petition filed under Article 226 of the Constitution of India to issue a writ of Certioriari to call for the records and quash the order dated 25.6.1999 made in M.W.I.A.No.61 of 1998 on the file of the 1st respondent.
For Petitioner : Mr.Ravi for M/s.Gupta & Ravi
For Respondent No1. : Ms.Sneha,G.A.
For Respondent No.2 : Mr.S.Ayyadurai
O R D E R
The writ petition is filed by the Management of a Transport Undertaking against the order passed by the first respondent(Competent Authority under the Minimum Wages Act) in M.W. Application No.61/1998. By the said order, the first respondent directed payment of difference in wages to the second respondent for the period from 1993 to 1997. For the earlier period, it gave liberty to the second respondent to file appropriate application with supporting documents.
2. The writ petition was admitted on 29.10.1999. This Court also granted an interim order with a condition that the petitioner deposit a sum of Rs.23,250/- with the first respondent. Subsequently, by an order dated 12.6.2000, the second respondent was permitted to withdraw 50% of the amount deposited with the first respondent. Once again, when the matter came up on 17.1.2001, this Court modified the earlier order and permitted the balance amount lying with the Commissioner to be withdrawn, since only 50% of the amount was initially directed to be deposited by order of this Court.
3. The learned counsel for the petitioner Mr.Ravi submitted that the order of the Commissioner is contrary to law and he has no jurisdiction to compute the said amount. He also submitted that for arriving at minimum wages, he has to confine himself to the term ‘wages’ found under Section 2(h) of the Minimum Wages Act 1948 which defines the term ‘wages’. In the said definition, there are several exceptions. Therefore, the first respondent, by not including the collection batta, in the payment made to the second respondent while calculating the minimum wage, was illegal. He also submitted that the collection batta ought to have been included for calculating the wages. Alternatively, he submitted that the second respondent Union had entered into a Settlements under Sections 18(1) as well as 12(3) of the Industrial Disputes Act where they have agreed to pay minimum wage in accordance with the Notification prescribed by the Government in relation to employment in Motor Transport Undertakings. He also submitted that where there was any lesser payment, the total amount paid to the petitioner will have to be calculated. Only if it is found that the total pay is less than the minimum wage, the question of calculating the difference in wages will arise.
4. Learned counsel placed reliance upon the judgment of the Supreme Court in Town Municipal Council v. Presiding Officer, Labour Court,Hubli & others reported in (1970)1 SCR 51. He placed reliance upon the following passage.
The purpose of Section 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 Section 20(1). 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 or work on off-days is due to a workman or not, the appropriate remedy is provided in the Payment of Wages Act. If the payment is withheld beyond the time permitted by the Payment of Wages Act even on the ground that the amount claimed by the workman is not due, or if the amount claimed by the workman is not paid on the ground that deductions are to be made by the employer, the employee can seek his remedy by an application under Section 15(1) of the Payment of Wages Act. In cases where Section 15 of the Payment of Wages Act may not provide adequate remedy, the remedy can be sought either under Section 33-C of the Act or by raising an industrial dispute under the Act and having it decided under the various provisions of that Act. In these circumstances, we are unable to accept the submission made by Mr. Sen on behalf of the appellant that Section 20(1) of the Minimum Wages Act should be interpreted as intended to cover all claims in respect of minimum wages or overtime payment or payment for days of rest even though there may be no dispute as to the rates at which those payments are to be claimed. It is true that, under Section 20(3), power is given to the Authority dealing with an application under Section 20(1) to direct payment of the actual amount found due; but this, it appears to us, is only an incidental power granted to that Authority, so that the directions made by the Authority under Section 20(1) may be effectively carried out and there may not be unnecessary multiplicity of proceedings. The power to make orders for payment of actual amount due to an employee under Section 20(3) cannot, therefore, be interpreted as indicating that the jurisdiction to the Authority under Section 20(1) has been given for the purpose of enforcement of payment of amounts and not for the purpose of ensuring compliance by the employer with the various rates fixed under that Act. This interpretation, in our opinion, also harmonises the provisions of the Minimum Wages Act with the provisions of the payment of Wages Act which was already in existence when the Minimum Wages Act was passed.”
5. Learned counsel also placed reliance upon the judgment of the Supreme Court in (Air Frieght Ltd. V. State of Karnataka and others) reported in 1999(4) LLN 395. He placed reliance upon the following passage.
“It is one pay package. Neither the scheme nor any provisions of the Act provides that the rates of minimum wages are to be split up on the basis of the cost of each of the necessities taken into consideration for fixing the same. Hence, in cases where employer is paying total sum which is higher than the minimum rates of wages fixed under the Act including the cost of living index (variable dearness allowance), he is not required to pay variable dearness allowance separately. However, that higher wages should be calculated as defined in Section 2(h) of the Act. Section 2(h) specifically provides that the value of the following items are not required to be computed for finding out whether employer pays minimum wages as prescribed under the Act:
(i) the value of any house, accommodation, supply of light, water, medical care, or any other amenity or any service excluded by general or special order of the appropriate Government;
(ii) any pension fund or provident fund or under any scheme of social insurance;
(iii) any travelling allowance or the value of any travelling concession;
(iv) any sum paid to any person employed to defray special expenses entailed on him by the nature of his employment; or
(v) any gratuities payable on discharge.
But while deciding the question of payment of minimum wages, the Competent Authority is not required to bifurcate each component of the costs of each item taken into consideration for fixing minimum wages, as lump sum amount is determined for providing adequate remuneration to the workman so that he can sustain and maintain himself and his family and also preserve his efficiency as a worker. Dearness allowance is part and parcel of cost of necessities. In cases where the minimum rates of wages is linked up with variable dearness allowance, it would not mean that it is a separate component which is required to be paid separately where the employer pays a total pay package which is more than the prescribed minimum rate of wages.
In the result, it is held that:
(1) The appellant-company would be covered by the expression shops and/or commercial establishment as it is carrying out various systematic commercial activities with profit motive and also it sells services on a retail basis.
(2) The notification issued under the Act prescribing minimum wages, applies to all kinds of shops and commercial establishments big or small and that payment of more than the prescribed minimum rates of wages is not relevant for deciding its applicability. It cannot be stated that as they are paying more than the prescribed minimum wages, the Act or notification would not be applicable. For determining whether they are paying minimum rates of wages or not, the amount paid for the value of items which are excluded under Section 2(h) of the Act is not to be taken into consideration.
(3) Minimum rates of wages fixed under the Act is remuneration payable to the worker as one package of fixed amount. In cases where minimum wage is linked with the cost of living index, the amount paid on the basis of dearness allowance is not to be taken as an independent component of the minimum wages but as part and parcel of the process of computing the rates of minimum wages which is to be determined after taking into consideration the cost of various necessities.
In this view of the matter, the order passed by the High Court holding that the State Government has fixed two separate categories of minimum rates of wages to be paid to the employees one basic and the other other allowance, that is, dearness allowance, is erroneous and is set aside. The matter is remanded to the Labour Officer (the Competent Authority under the Minimum Wages Act) for fresh decision in accordance with law. The appeal is allowed to the aforesaid extent with no order as to costs.
6. Learned counsel also brought to the notice of this Court, the judgment of the Bombay High Court in Harilal Jechand Doshi Ghatkopar Hindu Sabha Hospital V. Maharashtra General Kamgar Union and another reported in 1999(4) L.L.N. 899. He placed reliance upon the following passage found in the decision:
“15. Sri Bukhari also drew my attention to the case of Chairman of Madras Port Trust V. Claims Authority (A.I.R. 1957 Mad. 69), wherein it was held by the Madras High Court that what the employee is entitled to is the wages and the scheme of the Minimum Wages Act is to provide for a minimum wage for each employee. It further also lays down that the Act provides for a payment of a minimum. So long as that minimum is paid, the contractual wage-structure is left unaffected and the component parts of wages could still be regulated by contract between the employer and employee and that definition of wages postulates a contractual basis, express or implied. If the contract rate of wages is higher, the statutory right and obligation do not come into play. It was also held that if the wages paid to the concerned workmen under various heads of monthly wages, dearness allowance, house rent allowance, etc., exceeded the minimum rate of wages fixed under the Act the employer could not be held guilty of contravening the notification though a particular component of the wage-structure, viz., dearness allowance, was at a rate lower than the one fixed under that Act.
…….
19. It is thus clearly seen that S.4(1) of the Act provides for the minimum rate which could consist of component parts. Section 4(1) does not postulate different minimum for the several components nor can each such minimum constitute the minimum rate of wages within the meaning of S.4(1). If the employer has paid the total wages more than the minimum rate of wages within the meaning of S.4(1), there cannot be any contravention of the provisions of the Act. In the instant case, the minimum wages comprises of two component parts, namely, basic wage and dearness allowance. It is not disputed that the employee in the present case has been paid the wages under both the component parts and the total amount paid to the employee is higher than the minimum wages prescribed under the notification. Under the circumstances, it cannot be said that the employer has contravened the provisions of the Minimum Wages Act.”
7. Per contra, Mr.Ayyadurai, the learned counsel for the second respondent stated that the authority under Section 20(1) of the Minimum Wages Act is empowered to compute the shortfall in minimum wage and placed reliance upon the judgment of the Division Bench of the Andhra Pradesh High Court in Subbarao (S.) V. Authority under Minimum Wages Act, Guntur Region and others reported in 1987 (II) L.L.N. 50. He placed reliance upon the following passage.
“We have carefully gone through the Full Bench decision of this High Court cited before us. In that case also, the question whether the Authority appointed under S.20(1), Minimum Wages Act, would have jurisdiction to entertain a claim of alleged payment of wages less than the rates fixed under the Act did not directly arise for consideration. The issue before the Court was whether an application under S.33C(2), Industrial Disputes Act, could be entertained by the Labour Court, without directing the employee to have the claim first adjudicated by an Industrial Tribunal, in view of the fact that the amount had already been fixed under S.10, Payment of Bonus Act, creating a statutory right in favour of the employee. In our opinion, the Full Bench decision also does not advance the case of the appellant.”
8. In the present case, the first respondent very correctly held that the daily batta as part of the wage cannot be taken into account. In fact, a reading of Section 2(h) of the Minimum Wages Act, the term ‘wages’ does not show the inclusion of daily batta in the main part of the definition. The employer cannot state that the payment of daily batta is a part of the wage. The decision cited by the learned counsel for the management has no direct bearing on the present case.
9.The Supreme Court in the judgment of Manganese Ore (India) Limited vs. Chandilal Saha reported in 1991 Supp (2) SCC 465 in paragraph 15 dealt with the definition of the term ‘minimum wage’ found in the Minimum Wages Act which reads as follows:
“15. As regards the attendance bonus it was an additional payment made to the workmen as a means of procuring their regular attendance with the ultimate object of increasing production. The bonus was in the nature of extra remuneration for regular attendance. The said bonus was not payable to all the workmen at the time of joining the employment. It was payable to a workman who had put in continuous service for a specified period and who was loyal to the management. The attendance bonus was only an incentive and it was not a wage. There is a basic difference between the incentive bonus and the minimum wage. Every workman is entitled to the minimum wage from the very first day of his joining the employment whereas the bonus has to be earned and it becomes payable after the event. In the present case the attendance bonus was payable after regular attendance for a specified period and remaining loyal to the management. The scheme of payment of attendance bonus was thus an incentive to secure regular attendance of the workmen. It was an additional payment made to the workmen as a means of increasing production. In Titaghur Paper Mills Co. Ltd. v. Its Workmen1 this Court held that the payment of production bonus is in the nature of an incentive and is in addition to the wages. We are, therefore, of the view that the attendance bonus is in the nature of an incentive and it cannot be treated as part of the minimum wages fixed under the Act.
10. Therefore, this Court does not find any illegality in the order passed by the first respondent who is the Authority under the Minimum Wages Act. Hence, the writ petition stands dismissed. No costs. However, the first respondent is directed to pay the balance amount to the second respondent within a period of eight weeks from the date of receipt of a copy of this order.
vsi
To
The Deputy Commissioner of Labour,
Coimbatore