B.Gosh & Co v. Pramod Rai & Ors

JUDGMENT SIDDHARTH MRIDUL. f. (Oral)

¶1The short questionthat arises for considerationin the presentwrit petitionis with respectto the interpretationof provisoto sub Section2of Section20 ofthe MinimumWages Act, 1948. Beforeproceedingfurtherit would be necessary to extract the relevant provision of the said Act as below;- Section 20 - Claims

(1) The appropriate Governmentmay, by notification in the Official Gazette, appoint [any Commissioner for Workmen's Compensation or any officer of the Central Government exercising functions as a Labour W.RCCJ 4429/2007 Page NoA of 7 H D Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. " Go'Sment'ot'StheTanfofL^bfur thanthe minimumratesof wages!or mrespectof the •pa^Lentrfaeration for days of rest or for work doron such days under clause (b) or clause (c) of c;ub-section (1) of section 13 or of wages at the overtime rate under section 14, ] to employees employed or paid in that area.

(2)[Where an employeehas nay claim of nature referredto in sub-section(1)1, the eniployeel^i^^elt or any legalpractitioneror any officialof a trade union authorisedin writingto act on his behalt, or any Inspector, or any person acting with the permission of the Authority appointed under^sub section (1), may apply to such Authority for a direction under sub-section (3) : Provided that every such application shall be presentedwithin six months form the date on which minimum wages[or other amountl became payable: Provided further that any application may be admitted after the said period of sixmonths when the applicant satisfies the Authority that he had sufficient cause for not making the apphcation within such period. [(3) When any applicationunder sub-section (2) is entertained the Authority shall hear the applicant and the employer, or give them an opportunity of being ^ heard, and aftersuchfurtherinquiry,ifany, as it may T' consider necessary, may, without prejudice to any ^ other penalty to which the employer may be" liable under this Act, direct-

(i) in the case ofa claimarisingout ofpaymentofless than the minimum rates of wages, the payment to the employeeofthe amountbywhichthe minimumwages payable to him exceed the amount actually paid, togetherwith the payment of such compensationas the Authoritymay think fit, hot exceedingten times the amount of such excess; W.P.(C) 4429/2007 ^ -4 Magistrate, or o c

(ii) in any other case, the payment of the amount due to the employee, together with the payment of such compensation as the Authority may think fit, not exceeding ten rupees. and Authority may direct payment of such compensation in cases where excess or amount due is paid by the employer to the employee before the disposal of the application. ]

(4) If the Authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the employer y the person presenting the application.

(5) Any amount directed to be paid under this section may be recovered-

(a) if the Authorityis a Magistrate, by the Authority as 'K if it were a fine imposed by the Authority as a

(b) if the Authority is not a Magistrate, by any Magistrate to whom the Authority makes application in this behalf, as if it were a fine imposed by such Magistrate.

(6) Every direction of the Authority under this section shall be final.

(7) Every Authority appointed under sub-section

(1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing attendance of witnesses and compelling production of documents, and every such Authority shall be deemed to be a Civil Court for all purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of 1898). \

¶2It is an admitted case of the parties that the respondents herein filed a claim before the Authority under the said Act on 23.10.2006. The said W.P.(C) 4429/2007 Page No.2, of 7 "yC- -J V Authority thereafter proceeded ex parte since the management-petitioner herein failed to appear after fihng their written statement. The said Authority proceeded to direct the petitioner herein to pay minimum wages to the respondents-workmen from 01.03.2005 to 31.08.2005.

¶3Counsel for the petitioner made the following submissions Counsel subinitted that, in terms of the proviso of sub Section 2 of Section 20 of the Act every apphcation for payment of minimum wages shall be presented within six months from date on which minimum wages become payable. Counsel, therefore, submits that for the claim instituted on

23.10.2006 the respondents-workmen could not have sought recovery of minimum wages, directed to be paid vide the impugned order, that became due and payable if at all within six months from 01.08.2004 to 31.08.2005. In other words, counsel for the petitioner submits that on 23.10.2006, the respondents-workmen were at liberty, in accordance with law, only to seek payment of minimum wages for the period of six months, ^ immediately prior to the institution of the claim so filed on ;

23.10.2006. o

¶4Counsel for the petitioner further submitted that although the second proviso to sub Section 2 of Section 20 provided that an application for payment of the minimum wages could be considered belatedly, by the Competent Authority, such an application for condoning delay in W.P.(C)4429/2007 Page NoA of 7 preferring the claim could be considered, if and only if, the claimant thereto was able to satisfy the said Authority that there was sufficient cause for not making the application within the prescribed period. Counsel for the petitioner submits that in the present case there was admittedly no such application filed by the respondents, within the meaning of the second proviso to sub Section 2 of Section 20, so as to entitle the respondents-workmen to any claim for the minimum wages of any period prior to the period of six months, immediately preceding the date of institution of the claim namely 23.10.2006.

¶5Counsel for respondent on the other hand, submitted with ^'''^^^eferenceto the written statement filed on behalf of the petitioner herein that, the petitioners had categorically admitted therein that they were ready and bound to make payments admissible to the respondents-workmen after scrutiny of their respective accounts and that, therefore, the petitioners / could not now wash their hands of the liability to pay the arrears of , minimum wages due and payable as directed by the impugned order. It was further urged on behalf of the respondents that it was inherent in the , impugned order that any delay in preferring the claim had been condoned 'V- ; by inferrence, since the power to condone delay was vested by law in the r-f" said Authority.

¶6In the present case, it is seen that the claim was instituted on behalf of the respondents-workmen on 23.10.2006. The claim was for arrears of minimum wages for the period 01.08.2004 to 31.08.2005. It appears that W.R(C) 4429/2007 Page No.5 of 7 Q the respondent did not file an application for condonation of delay, in preferring the claim, as provided in the second proviso to sub Section 2 of Section

¶20However, the petitioner herein, filed a written statement thereto, stating categorically that they were willing to make payments as were admissible after scrutiny of the respective accounts. The petitioner herein failed to appear thereafter and was proceeded ex parte. The said Authority, vide the impugned order dated 04.04.2007, granted minimum wages to the respondent from 01.03.2004 to 31.08.2005. It is also seen that the said Authority was entitled in law to grant such claims as fell within a Vperiod of six months from the date on which the minimum wages became "/^^yable. Furtherunder the provisionsofthe said second proviso,the said Authority could grant minimum wages for the period perior to six months also, if there was an application in that regard before it, on behalf of the applicant. In other words the said Authority was invested with the power and discretion to grant minimum wages even for a period prior to six months from the date of institution of the apphcation under the provisions of the second proviso to sub section 2 of Section 20 of the Act. ^Furthermore,it is alsonoticedthattherewasacategoricaladmissionon the /part of the petitioner herein that, they were liable and would make the payments as admissible in law to the respondents. '

¶7Therefore, in the facts and circumstances of the case and in the interest ofjustice, I am of the opinionthat, this is a fit case to be remitted back to the Authority under the MinimumWages Act, 1948 for adjudication W.P.(C)4429/2007 Page No.6oil in accordance with law. In the circumstances, the writ petition is allowed to the extent that the impugned order dated 04.04.2007 is set aside. The matter is remanded back to the Competent Authority under the Minimum Wages Act for disposal in accordance with law. The said Authroity will hear the parties based on the pleadings and material filed in respect to the I application, before proceeding to finally decide all the issues raised in respect to the said application once again, on the merits, including but not limited to, the question of the maintainability of the claim for the period prior to the period of six months preceding the date of institution of the aplplication by the respondents herein. The amount deposited by the Nr^l?]fetioner,withthe Registrarofthis Courtin termsofthe orderofthisCourt dated

21.08.2007 shall be transmitted to the said Authority under Minimum Wageis Act, 1948. The parties are directed to appear before the said Authority i.nder the Minimum Wages Act on 10.11.2008 at 2 P.M for I further proceedings in accordance with law. !

¶8With aforementioned, observations and directions, writ petition is disposed of, leaving the parties to bear their own costs. f / ( r' OCTOBER 03, 2008 ns W.P.CQ 4429/2007 SIDD TH MRIDUL, J Page No.l of 7 (5^ LS * IN THE HIGH COURT OF DELHI AT NEW DELHI + . W.P.(C) 4429/2007 B.GOSH & CO. Petitioner Through: Mr. Mahendra Singh, Advocate. % versus PRAMOD RAI & ORS. Through: None. CORAM: HON'BLE MR. JUSTICE P.K. BHASIN ORDER

25.05.2012 Respondents CM No. 6834/2012 In view of the facts stated in this application the same is allowed. The Registrar General is directed to get the FDR in question encashed and its proceeds be released in favour of the applicant-petitioner within six weeks from today. The applicant-petitioner shall hand over the original FDR to the Registrar General for necessary action. MAY 25, 2012 nk P.K. BHAS

+ % N ,N THE HIGH COURT OF DELHI AT NEW DELHI writ Petition (Civil)4429 of 2007 nf nprision: nrt-nhPr. 2008 Petitioner B.GOSH&CO. s p Juneja,Adv. versus PRAMOD RAI & ORS. Through; Respondents Mr. Rama Shankar, Adv. HO^T^EMR. JUSTICESIDDHARTHMRIDUL 1. Whetherreportersof local papersmay be allowedto see the judgment? 2. To be referredto the Reporteror not? 3. Whetherthe judgmentshould be reported in the Digest?