Allowed

Mrs.Sukumari Narendra Menon v. the Deputy Labour Commissioner & Another

Kerala HC19 Jan 2012WP(C)/30985/2006

Case brief

AI extract

What is this about?

The High Court set aside an order imposing a wage penalty on a charitable hostel. While rejecting the argument that the establishment was outside the Act, the Court held that a six-month limitation period barred the claim because the respondent failed to show sufficient cause for the delay and failed to notify the petitioner to oppose it.

What did the court decide?

The impugned order fixing liability of Rs. 41,528/- is set aside; the writ petition is allowed to that extent. No costs.

Mrs.Sukumari Narendra Menon Vs the Deputy Labour… — Service and Employment | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

¶4

THURSDAY, THE 19TH DAY OF JANUARY 2012/29TH POUSHA 1933

¶5

WP(C).No. 30985 of 2006 (L)

¶6

PETITIONER(S):

¶7

MRS. SUKUMARI NARENDRA MENON, PRESIDENT, KARUNA WORKING WOMEN'S HOSTEL-CUMDAY CARE CENTRE, OTTAPALAM.

¶8

BY ADVS.SRI.KRISHNAKUMAR MANGOT SMT.R.MEERA

¶9

RESPONDENT(S):

¶10

1. THE DEPUTY LABOUR COMMISSIONER, (THE AUTHORITY UNDER THE MINIMUM WAGES ACT)

¶11

THRISSUR.

¶12

2. THE ASSISTANT LABOUR OFFICER,

¶13

GRADE-II, OTTAPPALAM.

¶14

R1&2 BY GOVERNMENT PLEADER SMT.LILLY LESLIE.

¶15

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

WP(C).No. 30985 of 2006 (L)

¶17

APPENDIX

¶18

PETITIONER'S EXHIBITS:

¶19

P1 : COPY OF THE OBJECTION.

¶20

P2 : COPY OF THE ORDER DATED 5.7.2006.

¶21

RESPONDENT'S EXHIBITS : NIL

//TRUE COPY//

P.A TO JUDGE.

stu

P.R.RAMACHANDRA MENON, J

¶26

¶27

W.P.C.NO.30985 OF 2006

¶28

- - - - Dated this the 19^th day of January 2012

¶29

JUDGMENT

¶30

Ext. P2 order passed by the first respondent, who is the competent authority under the Minimum Wages Act, directing the petitioner to satisfy a total sum of Rs. 41,528/- as the difference in wages payable to the six employees named therein, in respect of the period from June 1998 to November 1998, is under challenge in this writ petition.

¶31

The case of the petitioner is that the petitioner's establishment is a charitable organization having the head office in New Delhi and stands established for the welfare of women and children; who is running a hostel for working women and a 'day care centre' for children at Ottappalam. It is stated that the persons engaged in the petitioner's establishment were never the employees, but those who came to be so engaged with the co-operation of the local people, in the best interest of the society at large and that they were being paid only 'honorarium'

¶32

W.P.C.NO.30985 OF 2006 2

¶33

and not any wages.

¶34

Pursuant to the inspection conducted by the second respondent, the petitioner was found as a defaulter, when the second respondent preferred an application before the first respondent, referring to the lapses in meeting the statutory obligations and as to the lesser wages allegedly paid by the petitioner without any regard to the provisions of the Minimum Wages Act and the notifications issued. On receipt of the notice from the first respondent, Ext.P1 statement of objection was preferred by the petitioner and evidence was tendered; after which the proceedings were finalized by the first respondent, by passing Ext.P2 order; whereby the version of the second respondent was simply accepted and reiterated mulcting the liability upon the shoulders of the petitioner to satisfy a total sum of Rs.41,528/- as the difference in wages payable, so as to bring it in conformity with the minimum wages notification in respect of the period from June 1998 to November 1998.

¶35

The second respondent has filed a counter-affidavit seeking to sustain Ext.P2 order, contending that the petitioner's establishment

¶36

W.P.C.NO.30985 OF 2006 3

¶37

comes within the purview of the Minimum Wages Act and that the employees were paid only much less than the minimum rate of wages payable and further that they were actually the employees of the petitioner. It is also stated that the contention of the petitioner that it is not a commercial establishment, but a charitable institution, has no significance at all; pointing out that the petitioner's establishment was registered under the relevant provisions of the Kerala Shops and Commercial Establishments Act from 1990 onwards and the registration was being renewed till the year 1999 as per Register No.OTP.817 and further that it comes under part-I of the above Act, with minimum wages fixed as per G.O.(Rt) No.2097/96/LBR dated 31.07.1996. It is also contended that the plea of limitation is also not attracted or applicable for the reason that, inspection was conducted only on 15.12.1998 and that the claim was preferred before the statutory authority on 03.06.1999; ie, within the prescribed time of six months.

¶38

The learned counsel for the petitioner submits that the petitioner's establishment does not come under the purview of the

¶39

W.P.C.NO.30985 OF 2006 4

¶40

Minimum Wages Act, being a Charitable Institution. On going through the materials on record, particularly the admitted/undisputed facts, it remains a fact that the petitioner's establishments is a 'hostel' and that the same was sought to be registered under the Kerala Shops and Commercial Establishments Act; which registration was being renewed from time to time. Merely for the reason that the petitioner's establishment happens to be a charitable organization, it does not tilt the balance in any manner with regard to the scope of engagement of the persons concerned. The point is answered against the petitioner.

¶41

The next contention raised by the petitioner is that no 'wages' are being paid to them. It is also stated that the institution was being run on the co-operation of the persons of the locality and it was in better interest of the society that the persons in the locality turned up and volunteered to work to meet the minimum extent of operations done by the petitioner's establishment. It is also pointed out that the payment effected was only by way of 'honorarium' and not by way of salary or wages and that there was no claim or dispute in this regard from the persons as aforesaid, at any point of time.

¶42

W.P.C.NO.30985 OF 2006 5

¶43

The factum of inspection conducted by the second respondent

¶44

is not in dispute. So also, there is no dispute with regard to the documents produced before the first respondent; particularly the inspection register and such other materials; wherein the so called employees have put their signature, also showing the payments effected to them. Whether the payment effected to the persons concerned is called by the name 'honorarium' or otherwise, the same cannot distinguish or take the employees away from the purview of the statute.

¶45

The term 'employee' is defined under Section 2(i) of the Act which reads as follows:

¶46

“(i) “employee” means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of that other persons where the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of that other person; and also includes an employee declared to be an employee by the appropriate Government; but does not include any member of the armed forces of the [union].”

¶47

It is also relevant to note that the statute does not make any distinction

¶48

as to whether the establishment is a 'commercial establishment' or a

¶49

W.P.C.NO.30985 OF 2006 6

¶50

'charitable organization'. This being the position, the contention raised

¶51

by the petitioner on this score also has necessarily to fail.

¶52

The third ground of challenge is with regard to 'limitation'. The learned counsel for the petitioner submits that the law is very specific, in so far as the power and authority vested with the first respondent to pass orders is confined to a period of 'six months', from the date when the wages became payable. Referring to the contents of the counter-affidavit filed by the second respondent, the learned counsel submits that the inspection was conducted on 15.12.1998, while the application in respect of the claim was preferred only on 03.06.1999. The learned counsel submits that, by virtue of the mandate under the statute, the claim should have been preferred 'within six months' and admittedly since the allegedly defective payment is in respect of June 1998 to November 1998, the claim preferred by the second respondent on 03.06.1999 is far beyond the period of limitation.

¶53

The learned Government Pleader appearing for the respondents submits that there is no delay on the part of the second respondent in filing the application within time; more so since the

¶54

W.P.C.NO.30985 OF 2006 7

¶55

inspection was conducted only on 15.12.1998. Even otherwise, the application was filed with a petition to condone the delay and as such, there is nothing wrong on the part of the first respondent in having passed Ext.P2 order. The learned counsel for the petitioner points out that absolutely no reason is stated in the said application for condoning the delay and the petitioner was never put on notice, as to delay involved. No opportunity was given to the petitioner to oppose the delay and the first respondent proceeded with the claim on its merits. The learned counsel also submits that, during the course of evidence tendered by the second respondent before the first respondent, the only submission made was that the delay might be condoned. What is the explanation for the delay remains rather obscure. From Ext.P2 order, nothing is discernible as to the reasons for the delay and the course pursued by the first respondent in condoning the same.

¶56

It is relevant to note the relevant provisions as well, in this regard, particularly Section 20(2) which reads as follows:

¶57

“(2) Where an employee has any claim of the nature referred to in sub-section (1), the employee himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, or any person acting with the

¶58

W.P.C.NO.30985 OF 2006 8

¶59

permission of the Authority appointed under sub-section (1), may apply to such authority for a direction under sub-section (3).”

¶60

The 'first proviso' clearly says that every application shall be presented within 'six months' from the date on which the minimum wages or other amount became payable. True, by virtue of the mandate under sub-section (1) the claim may not be preferred by the employee himself and it is enough, if the claim is preferred by the designated authority ie, the second respondent herein, who in fact has preferred the claim before first respondent. Going by the admitted version, the alleged default on the part of the petitioner is in respect of the wages paid / payable for the period from June 1998 to November 1998. The claim is admittedly preferred only on 03.06.1999. As such, it is clear that the claim was preferred after the stipulated period of six months, stipulated in the first proviso to Section 20(2) of the Act.

¶61

The next question is whether the said delay could have been condoned. The 'second proviso' to Section 20(2) says that any application filed beyond the period of six months can be condoned, if the applicant satisfies the authority as to the sufficient cause for not preferring the application within such period. There is nothing on

¶62

W.P.C.NO.30985 OF 2006 9

¶63

record to show, that any such reason was stated or any satisfactory explanation was offered from the part of the second respondent with regard to the delay sought to be condoned. The learned Government Pleader submits that the claim was preferred along with an application to condone the delay as mentioned already. A copy of said application is placed for consideration before this Court as well. The only reason stated therein is that the applicant tried to impress upon the petitioner, the need to pay the arrears of wages to the employees which proved in the negative and hence the application could not be filed on time. This Court finds that, this only amounts to some 'advice' given by the second respondent to the petitioner as to the moral duty to satisfy the minimum wages by virtue of the provisions of the Minimum Wages Act and the notifications issued thereunder. The explanation contemplated under the second proviso to Section 20(2) is with regard to the inability, if any, on the part of concerned applicant in preventing him from preferring the application within time. The 'free advice' given by the second respondent to the petitioner as to the necessity to satisfy the provisions of the Act cannot be accepted as any satisfactory

¶64

W.P.C.NO.30985 OF 2006 10

¶65

explanation for not having filed the application within time. Admittedly, the claim is in respect of the period from June 1998 to November 1998 and the claim was preferred only on 03.06.1999, by which time, the prescribed period of six months was expired. That apart, it is not discernible from Ext.P2 order passed by the first respondent, that the petitioner was put on notice as to the delay involved, nor was the petitioner ever given an opportunity to file any objection to the petition to condone the delay and no specific order is stated as passed by the first respondent in this regard. This being the position, this Court finds that Ext.P2 order passed by the first respondent is not correct or sustainable; the claim being belated by virtue of the operation of the 'first proviso' to Section 20(2). It is ordered accordingly. The impugned order is set aside and the writ petition is allowed to the said extent. No costs.

¶66

P.R.RAMACHANDRA MENON, JUDGE

¶67

stu

¶68

W.P.C.NO.30985 OF 2006 11

¶69

W.P.C.NO.30985 OF 2006 12

¶70

W.P.C.NO.30985 OF 2006 13

Mrs.Sukumari Narendra Menon v. the Deputy Labour Commissioner & Another

Case brief

What is this about?

What did the court decide?

Mrs.Sukumari Narendra Menon v. the Deputy Labour Commissioner & Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sathyan Vs State of Kerala

All Kerala Document Writers&Scribes Assn Vs State of Kerala

P.Ayyappan Vs Nivedida P.Haran and Others

Babu Vadakkedam Vs the K.S.E.Board

M.Nirmala Devi Vs the State of Kerala

Royappan Vs Appellate Authority Under Kerala Planati