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2009 DIGILAW 211 (ORI)

SHREE GOPAL KRISHNA GOSALA v. STATE OF ORISSA

2009-03-16

I.M.QUDDUSI, SANJU PANDA

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JUDGMENT : Sanju Panda, J. - The Petitioner is a charitable society which was formed in the year 1936-37 as "Victoriya Gorakhyani Sabha, Cuttack" by Marwari Community of Cuttack and registered under the Societies-Registration Act, 1880. Subsequently, the said name was changed to "Shree Gopal Krishna Gosala" in the year 1971 -72. The object of the Society is to preserve and protect the blind, old, diseased and disabled cows including heifer bullocks and bulls and to maintain them till their death. The Society also rescued the cattle from the butchers. The Petitioner collected charity subscriptions and donations from the general public for its day to day maintenance. It has also owned some land for raising grass and fodder and tank for supply of water to the cattle and for keeping the cattle the Petitioner engaged persons who are being paid monthly or on daily wage basis, The Petitioner has also provided accommodation to the persons who are getting remuneration monthly. They are also using cow-dung cakes for cooking and other fire wood available from the land. These facilities availed free of cost are their real income, besides the wages and salaries. While the matter stood thus, the Government of Orissa published a notification on 29.4.1999 revising and fixing the minimum wages for unskill, semi-skilled, skilled and highly skilled employees for the employment of "contingent and casual employees in Government and in other establishment' at the rate of Rs. 40, Rs. 48, Rs. 56 and Rs. 64 per day, In addition to the above, dearness allowance was payable at the rate of Rs. 2.50 per day for every 50 point rise in All India Consumer Price Index Number for industrial workers. The said notification was given effect from 1st May, 1999. After the publication of the said notification, the Asst. Labour Officer issued a letter on 5.8.1999 stating therein that there were 34 employees working in the Gosala and they were receiving less than the minimum wages and some of the employees were semiskilled, such as, motor driver, salesman, machine cutter and the employees were getting only Rs. 35 per day. As the Government of Orissa in Labour and Employment Department revised the wages for unskilled Rs. 40, semi-skilled Rs. 48, skilled Rs. 56 and highly skilled Rs. 64, the Petitioner society was required to produce record within 10 days after payment or the wages to the employees for verification. 35 per day. As the Government of Orissa in Labour and Employment Department revised the wages for unskilled Rs. 40, semi-skilled Rs. 48, skilled Rs. 56 and highly skilled Rs. 64, the Petitioner society was required to produce record within 10 days after payment or the wages to the employees for verification. Again he issued another letter on 4.9.1999 to show cause within 7 days as the Petitioner society did not comply with the earlier letter to produce the record regarding payment of wages to the employees. After receiving the said show cause notice, the Petitioner society through its General Secretary on 8.9.1999 replied that the Minimum Wages Act was not applicable to Gosala. There was no question of reporting compliance of defects pointed out by the Asst. Labour Officer under the Minimum Wages Act. As the Petitioner society did not contravene any law, challenging the said notification dated 29.4.1999, it has filed this Writ Petition. 2. The main contention of the Petitioner society is that it is neither an industry nor a commercial establishment or factory. Therefore, the Minimum Wages Act is not applicable to it. 3. A counter affidavit has been filed by the Opposite Parties stating therein that u/s 27 read with Section 2(9) of the Minimum Wages Act) 1948, the appropriate Government is empowered to notify the minimum wages in a scheduled employment as has been provided in the Schedule annexed to the Act. The Schedule has been divided in two parts i.e. Part-I and Part-II. The Government in Labour and Employment Department fixed/revised the minimum wages for the employees employed in the employment in agriculture vide Notification No. 5796 dated 29.4.1999 and also a number of employees as mentioned in Part-II of the Schedule. The Petitioner society is engaged in dairy farmjng and raising livestock and its function comes under the Scheduled employment. As such, fixation of minimum wages is applicable to the employees employed in the employment in agricultural operation. Hence, the notification dated 29.4.1999 is applicable to the Petitioner society. Accordingly, the Asst. Labour Officer issued letter to the Petitioner society to ensure payment of minimum wages to its employees according to their skill as indicated in the notification. Such action of the Asst. Labour Officer was in accordance with the provisions of the Minimum Wages Act, 1948. Hence, the notification dated 29.4.1999 is applicable to the Petitioner society. Accordingly, the Asst. Labour Officer issued letter to the Petitioner society to ensure payment of minimum wages to its employees according to their skill as indicated in the notification. Such action of the Asst. Labour Officer was in accordance with the provisions of the Minimum Wages Act, 1948. The said authority was also empowered for filing claims if less payment is detected and to file prosecutions for non-maintenance of registers and non-production of those register. Therefore, as Opposite Party No. 2 has not committed any illegality or irregularity, the Writ Petition is liable to be dismissed. 4. From the above submissions of the Opposite Parties and after going through the record, this Court finds that the question raised by the Petitioner is a disputed question of facts and this being a Writ Court, we do not want to go into the factual dispute. However, since pursuant to the show cause notice issued by Opposite Party No. 2-Asst. Labour Officer, the Petitioner showed cause, let the Opposite Parties decide whether the Petitioner society is an industry or a commercial establishment or factory. It is open to the Petitioner to produce before the said authority all the relevant records and adduce necessary evidence, if so advised. Since this is a petty old matter and the concerned authority has not yet come to any conclusion after considering the show cause reply and there is an alternative remedy available under the Industrial Disputes Act, 1948, this Court is not inclined to go into the merits of the case and directs Opposite Party No. 2 to enquire into the matter and dispose of the same as expeditiously as possible, preferably within a period of four months from the date of receipt of this order. With the above observations and directions, the Writ Petition is disposed of. I.M. Quddusi, J. I agree.