Dismissed

Sanjay Batra Alias Sanjay Panjabi v. State of Kerala

Kerala HC20 May 2022WP(C)/12348/2022

Case brief

AI extract

What is this about?

High Court dismissed a writ petition challenging a Labour Court order settling dues of an employee under Section 33C(2) of the Industrial Disputes Act. The Court held the Labour Court correctly allowed unpaid minimum wages but rejected other claims not supported by evidence.

What did the court decide?

Writ petition dismissed; Labour Court order dated 16.10.2021 in C.P. No. 3 of 2019 allowed for Rs. 2,63,536 pending payment.

Sanjay Batra Alias Sanjay Panjabi Vs State of… — Labour and Industrial Disputes | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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FRIDAY, THE 20^TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944

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WP(C) NO. 12348 OF 2022

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PETITIONER/S:

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SANJAY BATRA ALIAS SANJAY PANJABI M/S.NIDHI COSMETICS PVT.LTD., 1/32 MAHAGUJARATH INDUSTRIAL ESTATE, SARKHEJ-BAIVA ROAD, MORAIYA, SANAD, AHAMEDABAD - 382 213, GUJARATH STATE.

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BY ADVS. C.P.PEETHAMBARAN MINI.V.A.

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF INDUSTRY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 VIDYASAGAR PANICKER VARIKKAL HOUSE, LOKAPARAMESHWARI ROAD, CHUNGAM, KAVILPAD, PALAKKAD - 678 015.

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BY ADV G.CHITRA

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OTHER PRESENT:

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GP SRI JOSHY THANIKAMATTOM

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 12348 OF 2022

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JUDGMENT

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Petitioner, an employer of the 2^nd respondent, in the present writ petition has assailed the order dated 16.10.2021 passed in C.P No.3 of 2019 whereby the application submitted by the 2nd respondent under Section 33 C(2) of the Industrial Disputes Act, 1947 has partly been allowed.

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Respondent No.2 claims to be an employee of the petitioner, who was offered a job as travelling salesman on 1.9.2001 in the company, Vijay Soaps and Chemicals in Ahmedabad which has been engaged in the manufacture of bath soaps for hotels. The job of the 2^nd respondent was to contact potential customers and take the orders for the company's products, collect payment from customers and all sales relating to work in Maharashtra state. His initial salary was Rs.3,500/- and daily expense of Rs.50/- for local work in Mumbai. Food, lodging and all other expenses on actual for out of station work were also offered. In the month of March 2004, the factory of the company was shifted to Maha Gujarat Industrial Estate and renamed Nidhi Cosmetics Pvt. Limited. Since the salary paid to him was highly insufficient for paying house rent in Mumbai, he was offered by Mr Naresh Punjabi, the Director of the

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WP(C) NO. 12348 OF 2022

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petitioner, a reasonable increment in salary and thereby an increment of 10% every year which had been received by the petitioner till 2008 also a reasonable hike in the salary, accommodation and attractive commission. Respondent No.2 continued to work as a travelling salesman for Kerala, Tamilnadu, Karnataka and Andhra States owing to his residence at Palakkad, Kerala. From the month of February 2018, the petitioner company did not pay the salary, expenses and commission. Accordingly, on 13.8.2018 submitted a complaint to the District Labour Officer (Enforcement) Palakkad. On the basis of the complaint, respondent No.2 received an e-mail dated 11.9.2018 intimating him the termination from service without notice. But no amount of settlement was ever received. Therefore, he claimed a sum on the following heads:

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Dues and settlement to be recieved from the Company

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Particulars	Amount Rs.
Balance pending salary till September 11, 2018	4,925/-
30 days notice salary	12,000/-
Bonus till September 11, 2018	12,000/-
Compensation for termination	1,02,000/-
Gratuity payment for seventeen years	1,17,692/-
Compensation equivalent to 10% Provident Fund	6,65,477/-
Cost of litigation, interest on dues and liquidated damages for mental torture	60,000/-
Total	9,74,094/-

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WP(C) NO. 12348 OF 2022

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Petitioner on receipt of the same opposed the aforementioned claim and stated that respondent No.2 was in no way connected with the company which was closed due to the loss in 2004 and all the employees were terminated. Thereafter respondent No.2 started working in M/s Nidhi Cosmetics Private Limited, a new concern as a salesman in the year 2004 and worked in Mumbai. In 2008, he discontinued his service with the company in Mumbai in order to move to his home town in Palakkad and thereby services were terminated in 2008. Subsequently, after the span of four months, the request was submitted to the company for joining and he joined afresh but thereafter he refused to travel, citing reasons of not good health. There was no pending salary of Rs.4,925/- and there was no liability to the company. Labour court considering the fact that the respondent No.2 has not paid the minimum wages allowed the application under 33 in part by holding the respondent No.2 to be entitled to get a sum of Rs.2,63,536/within a period of three months, failing which it would carry interest @6% per annum.

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Learned counsel appearing on behalf of the management further submitted that the order of the labour court is wholly perfunctory in as much as that it did not have the power to decide

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WP(C) NO. 12348 OF 2022

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an ascertained amount liable to be paid to a workman from the employer, which is due within a period not exceeding three months; whereas the amount claimed by the 2nd respondent was not an ascertained sum and also not claimed within a period of three months. The dispute regarding wages is not a matter which would fall within the jurisdiction of the labour court.

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I have heard the learned counsel for the parties and appraised the paper book and of the view that there is no force and merit in the submission of the learned counsel appearing for the petitioner management. Labour court while entertaining the application under Section 33 C(2) noticed that the claim of the respondent No.2 workman was for claiming a salary of Rs.4,925/for 11 days in the month of September 2018, which was not paid. As per Ext.P10, the message dated 24.4.2018 from the concerned bank reveals that the salary of Rs.12,000/- was credited to his account and by considering that deposit had taken the income of the respondent No.2 as Rs.12,000/- whereas the management did not lead any evidence to counter the amount of salary as Rs.12,000/- per month. By accepting the prayer of claim qua 11 days of salary, he was held entitled to Rs.4400/-. As regards the gratuity, it was held that the labour court did not have the

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WP(C) NO. 12348 OF 2022

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jurisdiction.

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The entire controversy revolves around the definition of wages as it is defined under Section 2(h) of the Minimum wages Act, 1948 to include all remunerations capable of being expressed in terms of money. Taking into consideration all the facts, it was found that the respondent No.2 was not paid the minimum wages as per the Gazette notification dated 27.5.2009 which shows that the basic wages per mensem of sales promotion employees was Rs.7,100-150-7850 and by calculating the dearness allowance @21.32 per point would mean above 147. The gazette notification of 2016 shows that the basic wages per mensem of sales promotion employees was 14,410-250-15660-300-17160 and dearness allowance to be calculated @ 26 per point above 250 points. Considering all the materials on record, it was held that the management did not pay the minimum wages to the workman and held the action of the management to be unconscionable and unpardonable. I am of the view that the employer failed to place on record any material to controvert that respondent No.2 was being paid the minimum wages. Thus in my view, the claim on behalf of respondent No.2 under 33 C(2) qua non-payment of salary was perfectly held to be justified whereas the other claims were

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WP(C) NO. 12348 OF 2022

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rejected. I do not find any illegality and perversity in the order of the labour court. No ground for interference is made out.

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The writ petition is accordingly dismissed.

Sd/-

sab

AMIT RAWAL

JUDGE

WP(C) NO. 12348 OF 2022

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APPENDIX OF WP(C) 12348/2022

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF THE APPLICATION C.P.NO.3/2019 FILED BY THE 2ND RESPONDENT BEFORE THE LABOURT COURT, KOZHIKODE UNDER SECTION 33C(2) OF THE INDUSTRIAL DISPUTES ACT. Exhibit P2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN C.P.NO.3/2019 BEFORE THE LABOUR COURT, KOZHIKODE. Exhibit P3 TRUE COPY OF THE ORDER DATED 16/10/2021 IN C.P.NO.3/2019 OF LABOUR COURT, KOZHIKODE.

Sanjay Batra Alias Sanjay Panjabi v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sanjay Batra Alias Sanjay Panjabi v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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