Ajanta Talkies, Allahabad v. Dy. Labour Commr — 1979 DIGILAW 59 (ALL)

JUDGMENT N.D. Ojha, J. - The petitioners in these writ petitions have cinema houses in the city of Allahabad. On 27th Aug., 1973 an application was made by one J. S.P. Pandey, an Inspector appointed under the Minimum Wages Act (hereinafter referred to as the Act) before the Authority appointed under the Act in each of these two cases. The application which was made in the case pertaining to M/s. Ajanta Talkies stated that a sum of Rs. 1,510.50 being the minimum wages of the workmen of the said talkies had not been paid to the workmen concerned, a prayer was made that a direction may be issued under Section 20 (3) of the Act for payment of the aforesaid sum of Rs. 1,510.50 along with 10 times penalty. The application which was made in the other case, viz., in respect of the cinema houses managed by M/s. Niranjan Lal Bhargava Trust, stated that the amount payable was Rs. 2,430.00. The amount of 10 times penalty claimed to be payable to the workmen was stated to be Rs. 24,300/-. Two preliminary objections were raised by the petitioners before the authority concerned viz. the Deputy Labour Commissioner, respondent No. 1, (1) that Shri J.S.P. Pandey had not been validly appointed as Inspector under the Minimum Wages Act and consequently no action could be taken on the application made by him in each of the two cases, and (2) that under an award published in the Gazette dated 11th March, 1972 the wage scales of the Employee's had been fixed and the said wage scale according to the award was to remain operative for a period of ten years and consequently in view of Section 3 (2A) of the Act the applications were not maintainable. It may be pointed out that the minimum wages which were claimed by the aforesaid two applications were on the basis of a notification dated 11th Aug. 1972, whereby minimum wages of certain categories of workmen of cinema houses was fixed at Rs. 100/- per month. It has not been disputed that the workmen in respect of whom the two applications were made fell within the category of the workmen who were entitled under the notification dated 11th Aug. 1972 to the minimum wages at the rate of Rs. 100/- per month. 100/- per month. It has not been disputed that the workmen in respect of whom the two applications were made fell within the category of the workmen who were entitled under the notification dated 11th Aug. 1972 to the minimum wages at the rate of Rs. 100/- per month. The Deputy Labour Commissioner, respondent No. 1, after considering the submissions made by the parties overruled both the preliminary objections by his order dated 20th Nov. 1973 and fixed date in each of the two cases for hearing on merits. Writ petition No. 1857 of 1974 was filed against the aforesaid order dated Nov. 20, 1973. In the other case, however the employer's contested the matter even on merits and respondent No. 1 by his order dated 21st Dec. 1973 awarded a sum of Rs. 2430/- as the difference of the minimum wages and a sum of Rs. 24,300/- as compensation being ten times penalty of the amount of the minimum wages not paid as contemplated by Section 20 (3) of the Act. It is this award dated 21st Dec., 1973, which is sought to be quashed in writ petition No. 1931 of 1974. 2. The common points which were urged in each of these two writ petitions are: (1) that Shri J.S.P. Pandey who filed the applications dated 27th Aug. 1973, before, respondent No. 1 had not been validly appointed as an Inspector under the Act and consequently no action could be taken on the basis of those applications and (2) that the award dated 11th March, 1972 was to remain operative for ten years in view of the direction contained therein and consequently in view of Section 3 (2-A) of the Act the applications made on 27th Aug., 1973, were not maintainable. A third objection was raised in writ petition No, 1931 of 1974 viz, that the amount of the difference of minimum wages had wrongly been stated as Rs. 2430/- in the award. According to the petitioner the correct amount would be Rs. 1310.68. This plea was raised by means of an amendment application which has been allowed by a separate order today. Yet another plea which has been raised by counsel for the petitioner in this writ petition was that the award of the maximum penalty of ten times was arbitrary. 3. According to the petitioner the correct amount would be Rs. 1310.68. This plea was raised by means of an amendment application which has been allowed by a separate order today. Yet another plea which has been raised by counsel for the petitioner in this writ petition was that the award of the maximum penalty of ten times was arbitrary. 3. We will first deal with the two common submissions made in each of these two writ petitions. The first submission is based on the language of Section 19 of the Act. Sub-sec. (1) provides that the appropriate Government may, by notification in the official gazette appoint such persons as it thinks fit to be Inspectors for the purposes of this Act and define the local limits within which they shall exercise their functions. "Appropriate government" has been defined in Section 2 (b) of the Act and in view of the said definition the State Government (of) Uttar Pradesh would be the 'appropriate Government Shri J.S.P. Pandey was appointed as Inspector for the whole of the State of Uttar Pradesh by notification dated 11th Aug., 1972. The relevant notification has been quoted in para 8 of the Writ Petition No. 1857 of 1974. It is the same notification by which the minimum wages in respect of certain categories of workmen of cinema houses were fixed at Rs. 100/- p. m. in cities having one lac or more than one lac population. It was urged that Section 19 of the Act contemplated the appointment of an Inspector with reference to local limits and unless local limits were defined within which an Inspector was to exercise his functions the appointment was not in accordance with the provisions of S. 19. We find it difficult to accept this submission. On a plain reading of sub-sec. (1) of Section 19 it is apparent that it is in two parts. The first entitles the Appropriate Government by notification in the official gazettee to "appoint such persons as it thinks fit to be Inspectors for the purposes of this Act" and the second part requires the appropriate Government to define the local limits within which they shall exercise their functions. The argument that no Inspector could be appointed for the whole of the State of Uttar Pradesh in our opinion is not borne out even from the language of Section 19 (1). The argument that no Inspector could be appointed for the whole of the State of Uttar Pradesh in our opinion is not borne out even from the language of Section 19 (1). Reliance was placed by counsel for the petitioners on the decisions of single Judge of this Court in State v. Kailash Chandra Bhargava (1971 All LJ 14) wherein it was held that Section 29 of the U.P. Shops and Commercial Establishment Act makes it clear that the State Government could appoint only a Chief Inspector and a Deputy Chief Inspector for the whole of Uttar Pradesh and that the other inspectors may be appointed only for different areas. S. 29 did not empower the State Government to appoint an Inspector other than a Chief Inspector and a Deputy Chief Inspector for the whole of Uttar Pradesh for filing a complaint or for exercising the powers enumerated in Section 30 of the Act in the whole of Uttar Pradesh though the State Government may appoint as many inspectors as they like for different areas. The said case, in our opinion, is distinguishable in view of the difference between the language of Section 19 (1) of the Act and of Section 29 of the U.P. Shops and Commercial Establishments Act. Reference to the language of Section 19 (1) has already been made above. S. 29 of the U.P. Shops and Commercial Establishment Act reads :- "S. 29 Appointment of Inspector. The State Government may appoint a Chief Inspector, and a Deputy Chief Inspector, for the whole of Uttar Pradesh, and as many Inspectors for different areas thereof as may be considered necessary". Under Section 29 the appointment of the Inspectors can be made only "for different areas". That is, however, not the case with the appointment of an Inspector under Section 19 (1) of the Act. Reliance was then placed on the decision of a Division Bench of this court in State of U.P. v. Sat Narain ( AIR 1959 All 218 ). The question which came up for consideration in that case was in regard to the appointment of a special judge as contemplated by Section 6 (1) and Section 7 (3) of the Criminal Law Amendment Act, 1952. The case too, in our opinion, is distinguishable. The question which came up for consideration in that case was in regard to the appointment of a special judge as contemplated by Section 6 (1) and Section 7 (3) of the Criminal Law Amendment Act, 1952. The case too, in our opinion, is distinguishable. S. 6 (1) of the Criminal Law Amendment Act aforesaid contemplated that the State Government may by notification in the official gazette appoint as many special judges as may be necessary for such 'area or areas as may be specified in the notification. There again the appointment of the special Judges could be made only for such "area or areas". In that case the appointment which was made did not make any specification of the .area whatsoever and it was in these circumstances that it was held that the appointment of the special judge concerned was not in accordance with law." In our opinion the decision which goes nearer the point is that rendered by a single Judge of this court in P.N. Dube v. State of U. P. (1978) 37 Fac. L.R. 334: (1979 Cri LJ NOC 53). In that case Section 8 of the Factories Act came up for consideration. S. 8 (1) of the Factories Act, which is relevant is as follows:- "S. 8 (1) Inspectors - The State Government may by notification in the official gazette appoint such persons as possess the prescribed qualification to be Inspectors for the purpose of this Act and may assign to them such local limits as it may think fit". On a comparison of the language of this section with language of Section 19 (1) of the Act it is apparent that the two sections are in pari materia. In P.N. Dubes case (supra) it was observed that it is for the State Govt. to confer powers upon the Inspector to exercise jurisdiction either throughout the State of Uttar Pradesh or within a particular area. 4. It was then urged with reference to the meaning of the word 'local' as contained in Blacks Law Dictionary (Revised 4th Edition, page 1086) that local was distinguished from 'general'. There can possibly be no dispute on this proposition that what the term 'local' contemplates is disinguished from 'general'. 4. It was then urged with reference to the meaning of the word 'local' as contained in Blacks Law Dictionary (Revised 4th Edition, page 1086) that local was distinguished from 'general'. There can possibly be no dispute on this proposition that what the term 'local' contemplates is disinguished from 'general'. But on that ground it cannot be said that Section 19 (1) of the Act when it uses the words 'local' limits in its later part it excludes the appointment of an Inspector for the whole of Uttar Pradesh by the State Government in exercise of its power under the earlier part of the section. In our opinion therefore it is not right to say that the appointment of J.S.P. Pandey as an Inspector was invalid simply on the ground that this appointment was made for the whole of Uttar Pradesh. 5. The matter can be looked into from another angle. An application for claim could have been filed even by the workmen concerned in view of the language of Section 20 (2) of the Act. It has not been shown to us that on account of the fact that the applications were filed not by the workmen concerned but by J.S.P. Pandey on their behalf as an. Inspector any injury of substantial nature or substantial failure of justice, as contemplated by cls. (b) and (c) respectively of Article 226 (1) of the Constitution, has resulted. The petitioners are not entitled to any relief on the basis of this technical plea on this ground also. 6. Coming to the second submission it may be pointed out that a similar question was raised on the basis of the same award dated 11th March, 1972 in U.P. Cinema Exhibitors v. State of U.P., (1977 Lab IC 993) (All) and it was repelled. It was held that keeping in view the language of S. 6-C of the U. P. Industrial Disputes Act the award could be operative only for the period mentioned in the said section or the period as may have been extended by the State Government. It was also held that the mere fact that the period of ten years was mentioned for which the award was to remain in force was of no consequence while construing the provisions of Section 3 (2-A) of the Act. We find no good ground to take a contrary view. 7. It was also held that the mere fact that the period of ten years was mentioned for which the award was to remain in force was of no consequence while construing the provisions of Section 3 (2-A) of the Act. We find no good ground to take a contrary view. 7. It was then urged that a writ petition challenging the award dated 11th March, 1972 was still pending in this court and consequently the period of award being operative as mentioned in S. 6-C of the Industrial Disputes Act was not relevant for the purposes of this case and the award will be deemed to be operative within the meaning of Section 3 (2-A) of the Act. Reliance in support of this submission has been placed on an observation made in Swadeshi Cotton Mills Co. v. Rajeshwar Prasad ( AIR 1961 SC 429 ) to the effect that the award to which S. 6-C refers is an award which has become final in the sense that it is no longer subject to consideration by any tribunal or court. The question which came up for consideration in that case was whether a compromise could be filed before the Supreme Court where an appeal under Article 136 of the Constitution against an award was pending. It appears to have been urged that in view of Section 6-C of the U.P. industrial Disputes Act such an application was not maintainable. It is while repelling this submission that the aforesaid observation was made. We may, however, point out that the reason for making the aforesaid observation is contained in the sentence preceding the said observation which is to the following effect (at p. 432) "Section 6-C undoubtedly confers upon the State Government certain powers to fix the duration of the operation of the award, but there can be no doubt that the section can have no bearing on the powers of this court in dealing with an industrial dispute brought before it under Article 136 of the Constitution." Firstly in that case the interpretation of section 3 (2-A) of the Act was not involved. Secondly the scope of a writ petition under Article 226 of the Constitution is materially different from that of an appeal under Article 136 thereof. Secondly the scope of a writ petition under Article 226 of the Constitution is materially different from that of an appeal under Article 136 thereof. When the writ petition in which the award dated 11th March, 1972 has been challenged was filed in this Court it cannot be said that the industrial dispute which was decided by the said award was brought before the High Court. A decision in a writ petition is not a decision about the merits of the rights of the parties in issue in the proceedings giving rise to it nor is a writ petition a continuation of the proceeding giving rise to it (see Udai Bhan Singh v. Board of Revenue (1974 All LJ 295) : ( AIR 1974 All 202 ) (FB). Under Article 226 of the Constitution the High Court does not hear an appeal (See the Ahmedabad Manufacturing and Calico Printing Co. Ltd. v. Ramtahel Ramanand ( AIR 1972 SC 1598 ): (1972 Lab IC 864)). Since the question which has come up for consideration before us is as to what would be the period during which an award can be said to remain in operation 'as contemplated by Section 3 (2-A) of the Act and since Section 6-C of the U.P. Industrial Disputes Act provides for the period during which an award is to remain in operation the said provision is in our opinion to be treated as the guideline particularly when there is nothing in the context of Section 3 (2-A) justifying a contrary view. In this view of the matter we do not find any force in the second submission either. 8. Now we advert to the two additional submissions made in writ petition No. 1931 of 1974. With reference to the amendment application made this behalf it has been brought to our notice that the amount of the difference of the minimum wages was Rs. 1310.68 only and not Rs. 2430/-. Shri K.P. Agarwal counsel for the workmen, has made a statement before us that even though this plea had not been raised before respondent No. 1 he was not raising any technical objection and was accepting the correctness of the plea. The total amount which has been found payable to the workmen concerned under the award Rs. 26730/- (Rs. 2430/- difference of minimum wages Rs. 24300/-being the ten times penalty). The total amount which has been found payable to the workmen concerned under the award Rs. 26730/- (Rs. 2430/- difference of minimum wages Rs. 24300/-being the ten times penalty). The amount of ten times penalty calculated on the basis of the difference being Rs. 1310.68 comes to Rs. 13106.80 and the total of both the sums comes to Rs. 14417.48 Shri K.P. Agarwal has made a further statement that any amount which may have been paid to the workmen concerned under the impugned award which may be in excess of Rs. 14417.48 shall be refunded to the petitioner in writ petition 1931 of 1974 within three month's from todays date. In view of this submission we find it unnecessary to deal with this point any further. 9. Coming to the last submission made by counsel for the petitioner in writ petition No. 1931 of 1974 viz, that the award of ten times penalty which was the maximum as contemplated by Section 20 (3) of the Act, was arbitrary it may be pointed out that this plea does not appear to have been raised before respondent No. 1 nor has any ground been taken even in the grounds of the writ petition. Consequently the petitioner is really not entitled to raise this ground for the first time during the course of arguments. Even on merits we are of opinion that the submission has no substance. Reliance was placed by counsel for the petitioner on the decision of the Supreme Court in Hindustan Steels Ltd. v. A.K. Roy ( AIR 1970 SC 1401 ): (1970 Lab IC 1166). In that case it has been held that even if an order has been passed by a Tribunal in the exercise of its discretionary powers it would not be right for the High Court not to go into the circumstances of the case to find out as to whether the discretion exercised was justified or not. In view of that decision it is certainly open to this court under Article 226 of the Constitution to go into the question as to whether the discretion by respondent No. 1 in the instant case was exercised in a judicial manner or arbitrarily. Having gone through the impugned award as well as the order passed earlier on 20th Nov. In view of that decision it is certainly open to this court under Article 226 of the Constitution to go into the question as to whether the discretion by respondent No. 1 in the instant case was exercised in a judicial manner or arbitrarily. Having gone through the impugned award as well as the order passed earlier on 20th Nov. 1973, disposing of the preliminary objections raised by the petitioner, we are of opinion that it is not a case in which it can be said that the discretion has been exercised by respondent No. 1 arbitrarily in fixing the penalty at the maximum of ten times. In the order dated 20th Nov. 1973 it has been pointed out that two of the Cinema houses in the city have already started paying to their Employee's the minimum wages as fixed by the notification dated 11th Aug. 1972, and if within the same city a different standard was allowed to be maintained by the management of other cinemas labour unrest was the likely result. In the impugned order respondent No. 1 has pointed out that the management has resisted the implementation of the Government order fixing the minimum wages on frivolous legal grounds and even on the decision of the preliminary objections they have delayed the payment on the one ground or the other. It has further been pointed out that the attitude of the employer indicated that they were adamant and that it was a fit case in which the maximum compensation may be awarded. In view of the circumstances pointed out by respondent No 1 we are of opinion that the submission made by counsel for the petitioner that the award of ten times penalty was arbitrary cannot be accepted. 10. No other point has been urged. 11. In the result we find no merit in-any of these two writ petitions. They are accordingly dismissed with costs. In view of the statement made by counsel for the workmen in writ petition No. 1931 of 1974 as aforesaid a direction is however issued requiring the workmen concerned in writ petition No. 1931 of 1974 to refund to the petitioner within three month's from today's date whatever sum has been paid to them under the impugned award in excess of Rs. 14417.48 P.