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2012 DIGILAW 840 (ALL)

NEERAJ SHARMA v. PRESCRIBED AUTHORITY

2012-04-06

A.P.SAHI

body2012
JUDGMENT Hon’ble A.P. Sahi, J.—The challenge in this writ petition is to the order dated 28.2.2006 passed by the Prescribed Authority under the Minimum Wages Act, 1948. The petitioner-workman claims himself to be an employee in the super skilled category for which he has been denied wages for his over time work. The contention was that his wages were not released in accordance with rules therefore he invoked the provisions of the Minimum Wages Act, 1948. The Prescribed Authority has rejected the application primarily on the ground that the status as well as the factum of over time work have both been denied and seriously disputed by the employer which requires an adjudication and as such this aspect does not fall within the jurisdiction of the authority under Section 33-C(2) of the Minimum Wages Act, 1948. 2. Sri Shekhar Srivastava learned counsel for the petitioner contends that the authority has an implied power to compute the said minimum wages in accordance with rules and it is only an enforceable pre-existing right and not an adjudication of the right of the petitioner. He relies on the decision of the Apex Court and another High Courts which are as follows : Premier Automobilies Limited v. Kamlekar Shantaram Wadke of Bombay, AIR 1975 SC 2238 ; Cachar Cha Sramik Union v. Manager, Majhegraqm Tea Estate, AIR 1960 Assam 123; J Jaswant Sugar Mills Ltd. v. SDM Meerut, AIR 1960 All 724 ; S. Subbarao v. The Authority Under Minimum Wages Act, 1987 LAB. I.C.327; Sara Mathew v. Rosamma and another, 1987 (55) FLR 720. 3. On the strength of the aforesaid decisions it is urged that the minimum wages authority has the power to determine the liability and it would hardily to be a dispute for any adjudication as the payments are due in accordance with rules applicable. To this extent the Prescribed Authority under the Minimum Wages Act therefore will have jurisdiction to investigate and then quantify the amount as it is incidental thereto. He further contends that the Division Bench judgement of Assam reported in AIR 1960 Assam 123 (supra) holds that the Minimum Wages Authority has the right and jurisdiction to determine the wages of employment in order to ascertain the claim of minimum wages. 4. He further contends that the Division Bench judgement of Assam reported in AIR 1960 Assam 123 (supra) holds that the Minimum Wages Authority has the right and jurisdiction to determine the wages of employment in order to ascertain the claim of minimum wages. 4. Having considered the aforesaid decisions and argument raised in my opinion the nature of the dispute presently involved is firstly as to whether the petitioner was a highly skilled worker or a semi skilled worker as per the claim and counter claim made by the petitioner and the employer. Secondly, depending upon the status of the employment the additional claim of over time is also a matter of adjudication. The Prescribed Authority having considered the aforesaid aspects rightly came to the conclusion that the petitioner did not have a claim of an undisputed enforceable wages on the basis of any pre-existing entitlement. The Prescribed Authority therefore found that the Shops and Commercial Establishment Act requires the fixing of minimum wages of unskilled, skilled and super scale workers but there is no category of super skilled or highly skilled worker for the purpose of fixing wages. In such circumstances where the status of employment of the petitioner is seriously disputed, it cannot be said that the application moved was in regard to a claim of an enforceable right that was pre-existing. In the opinion of the Court it requires a determination which is beyond the adjudicatory capacity of the minimum wages authority as the issue of categorisation or classification is not incidental. The power of minimum wages authority to investigate and then to adjudicate the status of the petitioner which is in question is not within the scope of Section 33-C(2) of the Act. 5. The Court had requested Sri Srivastava learned counsel for the petitioner to assist with the aid of the judgements of this Court or other judgements of the Superior Court in this regard. Sri Srivastava submits that he was unable to lay his hands on any judgment of this Court except the case of Jaswant Sugar Mill (supra). 6. On a simple search on the Inter-net the Court found a large number of decisions of this Court and the Apex Court. To cite a few decisions, the case of U.P. State Electricity Board v. Jhagreshwar Prasad and another, 1982 ILLJ 373 All, is clearly in support of the view taken herein above. 6. On a simple search on the Inter-net the Court found a large number of decisions of this Court and the Apex Court. To cite a few decisions, the case of U.P. State Electricity Board v. Jhagreshwar Prasad and another, 1982 ILLJ 373 All, is clearly in support of the view taken herein above. Relying on several Supreme Court decisions there is yet another judgment of our Court in the case of Metal Technology Corporation v. Labour Court and others, 2006(2) ADJ 661 . Another judgment reported to the same effect is Allahabad Development Authority v. Presiding Officer, Labour Court, 2007(6) ADJ 221 . Apart from this the following decisions also support the view taken herein above: Kays Const.Co. v. State, AIR 1965 SC 1488 East India Coal Co. v. Rameshwar, AIR 1968 SC 218 P.K. Singh and others v. Presiding Officer, 1988(3) SCC 457 Dalmia Industries v. State of U.P., 1994(1) SCC 543 Municipal Corporation of Delhi v. Ganesh Razak and another, 1995(1) SCC 235 Management of Nilpur Tea Estate v. State of Assam, 1996(1) UPLBEC 42 (SC) Union of India v. Gurbachan Singh, 1997 FLR 76 489 7. The ratio of all these decisions is clearly to the effect that what is outside the scope of Section 33-C(2) of the Act, cannot be read as incidental to confer authority so as to decide an adjudicating dispute. This can only be done by raising an industrial dispute. The legislative intent is therefore clear that what falls within the powers of a tribunal, cannot be included within the fold of Section 33-C(2) of the Act. 8. In view of the aforesaid facts and circumstances of the case the decisions relied upon by the learned counsel for the petitioner do not come to his aid. To the contrary the decisions referred to herein above clarify the law against the petitioner. 9. The writ petition lacks merit and it is accordingly dismissed. ——————