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Madhya Pradesh High Court · body

2019 DIGILAW 831 (MP)

National Health Mission v. Surendra Singh Dhakad

2019-11-29

G.S.AHLUWALIA

body2019
1. This petition under Article 227 of the Constitution of India has been filed against the Order dated 1-2-2018 passed by Authority Minimum Wages Act in C.O.C./167/D/MWA/2017 by which the claim of the respondent no.1 for overtime has been allowed. 2. The necessary facts for the disposal of the present petition in short are that the petitioner is a body created for providing better health services and assisting the State Authorities in expanding the reach of Medical Health Services in each and every part of the State. Several programmes are being run by the petitioner for the betterment of the health services. (2) The petitioner also works in close relationship with different private bodies under the “Public Private Partnership” Scheme. Under this Scheme, 108 Ambulance Services, Janani Suraksha Vehicle and Deen Dayal Mobile Hospital are being run across the State of Madhya Pradesh. At present these programmes are being run with an agreement with respondent no.2. It is the case of the petitioner, that direct payment is made to respondent no.2 on per kilometer basis. It is claimed by the petitioner that as per Clause 2.5(b) and 2.5(k) of the Notice Inviting Tender, all the responsibilities arising out of the employment offered by respondent no.2 for providing the services, is the responsibility of the respondent no. 2. As per the agreement, the petitioner has no control or supervision of the services in any manner. 3. The respondent no.1, who claims himself to be an employee of respondent no. 2 and was working as Ambulance Pilot (Driver) had filed an application under Section 20(1) of Minimum Wages Act. It is alleged by the respondent no.1 that the respondent no.2 has taken 12 hours work from him and the payment of only 8 hours was done and for the rest of 4 hours, no payment was made. It was also the case of the respondent no.1 that even the payments were made with delay or some past payments are still pending. 4. After the notices, the respondent no2. was proceeded exparte. However, the petitioner claimed that it has no control or supervision over the respondent no.2 nor does the petitioner has any relationship with the respondent no.2. 5. The Authority, after recording the evidence of the petitioner and the respondent no.1, allowed the claim filed by the respondent no.1 by impugned order. 6. was proceeded exparte. However, the petitioner claimed that it has no control or supervision over the respondent no.2 nor does the petitioner has any relationship with the respondent no.2. 5. The Authority, after recording the evidence of the petitioner and the respondent no.1, allowed the claim filed by the respondent no.1 by impugned order. 6. Challenging the impugned order passed by the Authority, Minimum Wages Act, it is submitted by the Counsel for the petitioner, that there was no employer and employee relationship between the petitioner and the respondent no.1. The respondent no.1 was employed by the respondent no.2. The petitioner had no control or supervision over the respondent no.2. Further, it is submitted that no overtime can be paid to the drivers of the Ambulance in the light of Section 13 of Motor Transport Workers Act as held by this Court in the case of Gursharan Singh Brijbhushan Singh Vs. Manager Rewa Transport Services reported in AIR 1968 MP 10 . It is further submitted that the provisions of Section 20(1) of Minimum Wages Act do not apply as there was no dispute with regard to the rates of Wages, therefore, the application filed by the respondent no.1 was not maintainable. To buttress his contentions, the Counsel for the petitioner has relied upon the judgments passed by the Supreme Court in the case of Town Municipal Council, Athani Vs. The Presiding Officer, Labour Courts, Hubli and others reported in (196) 1 SCC 873, and the judgment passed by this Court in the case of Manganese Ore (India) Ltd., Nagpur Vs. Bisen Rajaram and others reported in 1978 JLJ 411 , judgment passed by Karnataka High Court in the case of Chief Warden, National Institute of Technology Vs. Labour Enforcement Officer (Central) and others reported in 2012 (135) FLR 897 and Chhattisgarh High Court in the case of Danteshwari Agencies Vs. Regional Lab. Commissioner (Central) Authority under Minimum Wages Act, 1948, Raipur reported in 2018 LabIC 1444. 7. Per contra, it is submitted by the Counsel for the respondent no.2, that the petitioner was the Principal employer and if the petitioner is of the view that he is not responsible for the acts of the respondent no.2, then he can recover the awarded amount from it. It is further submitted that it is incorrect to say that the claim filed by the respondent no.1 was not maintainable. It is further submitted that it is incorrect to say that the claim filed by the respondent no.1 was not maintainable. It is further submitted that the judgment passed in the case of Gursharan Singh Brijbhushan Singh (Supra) has no application to the facts and circumstances of the case. 8. Heard the learned Counsel for the parties. 9. The Supreme Court in the case of Town Municipal Council, Athani (Supra) has held as under : We have mentioned these provisions of the Minimum Wages Act, because the language used at all stages in that Act leads to the clear inference that that Act is primarily concerned with fixing of rates — rates of minimum wages, overtime rates, rate for payment for work on a day of rest — and is not really intended to be an Act for enforcement of payment of wages for which provision is made in other laws, such as the Payment of Wages Act, 4 of 1936, and the Industrial Disputes Act 14 of 1947. In Section 20(1) of the Minimum Wages Act also, provision is made for seeking remedy in respect of claims arising out of payment of less than the minimum rates of wages or in respect of payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of subsection (1) of Section 13 or of wages at the overtime rate under Section 14. This language used in Section 20(1) shows that the Authority appointed under that provision of law is to exercise jurisdiction for deciding claims which relate to rates of wages, rates for payment of work done on days of rest and overtime rates. If there be no dispute as to rates between the employer and the employees, Section 20(1) would not be attracted. 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). 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. In the present appeals, therefore, we have to see whether the claims which were made by the workmen in the various applications under Section 33-C(2) of the Act were of such a nature that they could have been brought before the Authority under Section 20(1) of the Minimum Wages Act inasmuch as they raised disputes relating to the rates for payment of overtime and for work done on weekly off-days. 10. Thus, it is clear that if there is no dispute as to rates between the employer and the employees, Section 20(1) of Minimum Wages act would not be attracted because the purpose of Section 20(1) of Minimum Wages Act is 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 can approach the Authority under Section 20(1) of Minimum Wages Act. In the present case, it is not the case of the petitioner that there was no dispute with regard to rates between the employer and the employee. In fact the respondent no.2, who had employed the respondent no.1 did not appear before the Authority, Minimum Wages Act, and it was proceeded ex parte. In fact, the petitioner had not pleaded before the Authority, that there was no dispute with regards to the rates of overtime. On the contrary, the only stand which was taken by the petitioner before the Authority, Minimum Wages Act, was that it is not responsible and the entire responsibility is of the respondent no.1. In fact, the petitioner had not pleaded before the Authority, that there was no dispute with regards to the rates of overtime. On the contrary, the only stand which was taken by the petitioner before the Authority, Minimum Wages Act, was that it is not responsible and the entire responsibility is of the respondent no.1. Thus, in fact, the disputed question of fact with regard to the rates of wages for overtime was never raised by the petitioner before the Authority, Minimum Wages Act, and therefore, this disputed question of fact, cannot be raised for the first time, before this Court. Accordingly, this Court is of the considered opinion that the proposition of law laid down by the Supreme Court in the case of Town Municipal Council, Athani (Supra) does not apply to the facts of the case because of lack of necessary pleadings before the Authority, Minimum Wages Act. 11. It is next contended by the Counsel for the petitioner, that the respondent no.1 is not entitled for overtime in the light of the judgment passed by this Court in the case of Gursharan Singh Brijbhushan Singh (Supra). 12. The submission made by the Counsel for the petitioner is misconceived and is hereby rejected. 13. Section 38 of Motor Transport Workers Act, 1961 reads as under : 38. Exemptions.— (1) Nothing contained in this Act shall apply to or in relation to any transport vehicle— (i) used for the transport of sick or injured persons; (ii) used for any purpose connected with the security of India, or the security of a State, or the maintenance of public order. (2) Without prejudice to the provisions of subsection (1), the State Government may, by notification in the Official Gazette, direct that subject to such conditions and restrictions, if any, as may be specified in the notification, the provisions of this Act or the rules made thereunder shall not apply to— (i) any motor transport workers who, in the opinion of the State Government, hold positions of supervision or management in any motor transport undertaking; (ii) any part-time motor transport worker, and (iii) any class of employers: Provided that before issuing any order under this sub-section, the State Government shall send a copy thereof to the Central Government. 14. The respondent no.1 is the driver of 108 Ambulance which is used for transport of sick or injured person. 14. The respondent no.1 is the driver of 108 Ambulance which is used for transport of sick or injured person. Therefore, in view of exemption clause, it is held that the provisions of Motor Transport Workers Act, 1961 have no application to the facts of the case. 15. So far as the liability of the petitioner to pay the compensation (e) “employer” means any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, and includes, except in sub-section (3) of Section 26,— (i) in a factory where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person named under 6 [clause (f) of sub-section (1) of Section 7 of the Factories Act, 1948 (63 of 1948)], as manager of the factory; (ii) in any scheduled employment under the control of any Government in India in respect of which minimum rates of wages have been fixed under this Act, the person or authority appointed by such Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department; (iii) in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed under this Act, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority; (iv) in any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person responsible to the owner for the supervision and control of the employees or for the payment of wages; 16. In the present case, undisputedly, the petitioner entered into an amount is concerned, Section 2(e) of Minimum Wages Act, defines the word “employer” which reads as under : agreement to operate and maintain the Basic Life Support Ambulances, Advance Life Support Ambulance, Mobile Medical Units, Janani Express and Health Helpline. In the present case, undisputedly, the petitioner entered into an amount is concerned, Section 2(e) of Minimum Wages Act, defines the word “employer” which reads as under : agreement to operate and maintain the Basic Life Support Ambulances, Advance Life Support Ambulance, Mobile Medical Units, Janani Express and Health Helpline. The service provider (respondent no.2) was entitled for the payment at the rate and in the manner mentioned in the agreement and different rates were provided for different category of Ambulances/Services. It is submitted by the Counsel for the petitioner, that since, a lump sum amount was payable to the service provider (respondent no.2) at the rate of per km, therefore, the entire liability is of the respondent no.2. 17. Considered the submissions made by the Counsel for the petitioner. An agreement was entered into with the respondent no. 2 for operation and maintenance of different categories of Ambulances/Services. The respondent no.2 cannot operate and maintain the Ambulances without employing the drivers. Therefore, employment of drivers is the integral part of the agreement. Further more, clause 7 of the agreement reads as under : 7. Monitoring and Evaluation a) The State MPEMAHS Executive Committee and State Steering Committee on MPEMAHS shall review the performance of the service provider monthly/quarterly. b) The District Level Monitoring Committee on MPEMAHS shall overse the activity within their respective Districts and review the performance of service provider in every month. c) The services and records of the service provider shall be subject to inspection by designated officer(s) of the SHSMP. d) SHSMP/Government reserves the right to evaluate the performance of the Service Provider as well as the Project at any time by an independent external agency or through its own internal agency. Service Provider shall extend all support to such external/internal agency during evaluation(s). 18. Thus, it is incorrect to say that the petitioner had no control or supervision over the activities of the service provider /respondent no.2. Therefore, it can be safely said that the petitioner had employed the driver indirectly through the respondent no.2. Thus, the petitioner is a Principal Employer and he is also jointly liable to pay the amount. 19. Further Clause 2.5(k) of Notice Inviting Tender issued by the petitioner reads as under : 2.5 Service Provider's Responsibilities k) Recruit, train and position qualified and suitable personnel for implementation of the project i.e., EMAHS at various levels. Thus, the petitioner is a Principal Employer and he is also jointly liable to pay the amount. 19. Further Clause 2.5(k) of Notice Inviting Tender issued by the petitioner reads as under : 2.5 Service Provider's Responsibilities k) Recruit, train and position qualified and suitable personnel for implementation of the project i.e., EMAHS at various levels. The staff so engaged/recruited/appointed by the Service Provider shall be exclusively on the pay rolls of the bidder and shall under no circumstances this staff will ever have any claim, whatsoever, for appointment with the Government. The service provider shall be solely responsible for the performance and conduct of the staff notwithstanding the source of hiring such staff. The service provider shall be fully responsible for adhering to provisions of various laws applicable on them including Labour Laws. In case the Service Provider fails to comply the provisions of applicable laws and thereby any financial or other liability arises on the Government by Court orders or otherwise, the Service Provider shall be fully responsible to compensation/indemnify to the Government for such liabilities. For realization of such damanges, Government may even resort to the provisions of any Act, which is in force or other laws as applicable on the occurrence of such situations. 20. Thus, if the petitioner feels that it has suffered any financial loss due to the mistake of the service provider, then it can enforce the indemnity clause against the service provider, but cannot escape from the liability of making payment of amount to the respondent no.1. 21. No other argument is advanced by the Counsel for the petitioner. 22. Accordingly, this Court is of the considered opinion, that the Counsel for the petitioner could not point out any perversity in the order passed by the Authority, Minimum Wages Act. 23. Resultantly, the Order dated 1-2-2018 passed by Authority Minimum Wages Act in C.O.C. /167/D/MWA/2017 is hereby affirmed. 24. The petition fails and is hereby Dismissed.