IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE 21st DAY OF DECEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.26471 of 2001 21st December, 2010 BETWEEN: Dr V. Ravinder Reddy … PETITIONER(S) And The Inspector under Minimum Wages Act, 1948 & The Assistant Labour Officer, Circle-II, Warangal and another … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION No.26471 of 2001 ORDER: The point that arises for determination in this writ petition is whether or not the order dated 27.07.2001 in M.W. Case No.1 of 2001 in file No.B1/1646/2001 passed by the second respondent competent authority i.e. the Deputy Commissioner of Labour, Warangal, under Section 20(2) of the Minimum Wages Act, 1948 (for short the Act) directing the petitioner to pay an amount of Rs.1,70,276/- as difference of minimum wages payable to the workmen employed by the petitioner and those actually paid by him to them and five times the said amount which works out to Rs.8,51,380/- towards compensation is valid and proper. 2. The point arises in the following circumstances. The petitioner who is a Doctor is running a nursing home called ‘Mamatha Nursing Home’ at Varadannapeta in Warangal District. A nursing home is a scheduled employment as defined in Section 2(g) of the Act read with the Schedule containing the list of scheduled employments appended to the Act. Hospitals, Nurshing Homes, Clinics, other than Government Hospital and Dispensaries are shown at Item No.38 in the Schedule to the Act and they are added by our State Government. There is no dispute on this aspect. 3. It is found from the impugned order that the first respondent herein i.e. the Inspector under the Minimum Wages Act, 1948 - cum- Assistant Labour Officer, second circle, Warangal, inspected the Mamatha Nursing Home of the petitioner at Varadannapeta on 06.03.2001 at 4.45 p.m. and made an enquiry with the employees of the said nursing home as to whether they are being paid minimum wages as per G.O.Ms.No.14 dated 11.03.1996 issued under the Act and also the variable dearness allowance notified by the Government for every six months. 4. It is alleged in the counter of first respondent that the said enquiry with the employees revealed that they were not being paid the above wages and dearness allowance and accordingly he prepared a claim notice for Rs.1,70,276/- and issued it to the petitioner for its compliance. It is then stated that since the petitioner failed to comply with that notice and also failed to give a reply the Assistant Labour Officer drafted a claim petition and filed it before the competent authority i.e. the first respondent. It is also seen from the impugned order that the first respondent also got issued a notice to the petitioner for filing counter either by himself or through an authorized agent by 28.06.2001. However, as the petitioner failed to appear before the competent authority the said authority has set the petitioner ex parte and recorded the evidence of the complainant i.e. the Assistant Labour Officer –cum- Inspector under the Minimum Wages Act and after hearing him passed the impugned order on 27.07.2001. 5. In the impugned order, the competent authority calculated the difference between minimum wages payable and the wages actually paid at Rs.1,70,276/- and he further calculated the compensation at five times of the said amount i.e. at Rs.8,51,380/- and directed the petitioner to pay both the said amounts i.e.Rs.10,21,656/-. Questioning that order the petitioner has filed this writ petition. 6. The plea of the petitioner is that he has been running his nursing home by paying the minimum wages and other wages to his employees as per the Act and the G.Os. issued thereunder without any complaints. It is also pleaded by the petitioner that the Assistant Labour Officer –cum- the Inspector under the Act visited his nursing home on 06.03.2001 at 4.45 p.m. in his absence and made a semblance of enquiry and foisted this case. It is his further version that he did not receive any notice and an ex parte order has been passed against him without giving proper opportunity to him and this is also evident from the impugned order itself. He then pleaded that pursuant to the impugned order respondents are trying to implement it by attaching his nursing home equipment and other movables and the action of the respondents has resulted in harassment to him and therefore the impugned order should be quashed. The averments in the affidavit of the petitioner filed in support of this writ petition contain the above pleas taken by him for quashing the order. 7. At the time of admission of this writ petition an interim stay of the impugned order was granted on 27.12.2001 so far as the compensation amount was concerned and that stay order is still in force. It is not known whether the petitioner has paid the amount of Rs.1,70,276/- calculated towards the difference of the minimum wages and the wages actually said to have been paid to the employees of his nursing home. 8. The first respondent filed a vacate stay petition i.e. WPMP No.1018 of 2001 along with his counter. The first respondent denied the plea of the petitioner that he was running his nursing home by paying the minimum wages and he also denied that he foisted this case against the petitioner. He stated that in the course of inspection he made enquiries with the employees working in the petitioner’s nursing home and his enquiry revealed that they were not paid the minimum wages as per G.O.Ms.No.14 dated 11.03.1996 which was published in the A.P. Gazette No.263 dated 15.06.1996. He also pleaded that he issued a claim notice dated 19.03.2001 and it was served on the petitioner on 21.03.2001 but the petitioner did not care to reply and thereafter he filed the M.W. Case No.1 of 2001 which resulted in the impugned order and the same is justified. 9. The learned counsel for the petitioner in the course of hearing argued that a perusal of the impugned order would show that the competent authority passed the said order only on the evidence of the Assistant Labour Officer without examining any of the employees of the petitioner’s nursing home and therefore the said order is bad and cannot be given any importance as the evidence of the Assistant Labour Officer cannot be said to be a disinterested evidence. He also argued that in fact no notice was served by the competent authority on the petitioner and therefore the petitioner could not appear before the competent authority and present his case and this also vitiates the impugned order. On these two grounds, he contended for quashing the impugned order. 10. On the other hand, the learned Standing Counsel for the respondents argued that the counter of the first respondent and the impugned order show that the petitioner was given sufficient opportunity and the petitioner did not avail it and therefore he cannot now make any complaint against the impugned order. He also pointed out that examination of any of the employees of the petitioner’s nursing home before the competent authority is not necessary and that the evidence of the Assistant Labour Officer is sufficient and therefore the impugned order can be said to be well- founded. In the light of the above contentions the point is now taken up. 11. Before the point is taken up, the question of availability of alternative remedy against the impugned order for the petitioner should be considered. On this aspect, the first respondent in his counter did not say under what provision the petitioner has got the alternative remedy against the impugned order. Even in the course of arguments, the learned counsel for the respondents did not bring to my notice any provision under which the petitioner can pursue an alternative remedy against the impugned order. This writ petition is of 2001 and so far both sides did not take any steps to get it disposed of till today and more than 9 years have elapsed. In these circumstances, it is proposed to consider the validity of the impugned order on merits and dispose of this writ petition. 12. Now coming to the point, the respective cases of the parties have already been set out supra. In my opinion, the validity of the impugned order should be examined from two aspects. The first is about the decision of the second respondent in determining the difference of the amount between the minimum wages payable under the Act and the rules framed thereunder to the employees of the petitioner’s nursing home and the actual wages paid to them by the petitioner and the procedure adopted by him to determine the same. Regarding this amount, the second respondent in the impugned order going by the rates of wages mentioned in the complaint of the first respondent determined them at Rs.1,70,276/- . The petitioner in his affidavit filed in support of this writ petition though admitted that he has been paying minimum wages to his employees did not give the particulars of the employees employed by him and also the wages paid by him to them in order to support his stand that he has complied with all the provisions of the Act and the Rules with regard to the minimum wages. In these circumstances, I am of the opinion that the calculation made by the respondents regarding this amount at Rs.1,70,276/- towards difference of minimum wages payable and the wages actually paid to his employees by the petitioner can be accepted as correct. The petitioner’s counsel in the course of arguments also could not show any reason to hold that the calculation of the above difference by the respondent at Rs.1,70,276/- is not correct. Accordingly, it is held that the said calculation is correct and the impugned order so far as that amount is concerned has to be upheld. 13. The learned counsel for the petitioner however pointed out that the petitioner was not given any opportunity to put forward his case before the second respondent and therefore the impugned order should be set aside on the ground of violation of principles of natural justice. It is difficult to accept this contention. It may be noted that the impugned order reads that the claim notice was issued to the petitioner for filing his counter either by himself or through an agent and thereupon the case was posted to 28.06.2001 but the petitioner has refused to take notice of the same and abstained himself before the competent authority and consequently an ex parte order was passed. The first respondent also has stated that he has sent a claim notice to the petitioner after inspecting the petitioner’s nursing home but there was no reply from the petitioner and it was only thereafter that he filed the claim application before the competent authority. It can be thus said that the petitioner was given an opportunity both by respondents 1 and 2 but he did not avail the same. Accordingly, the contention of the petitioner’s counsel on the aspect of alleged procedural violations cannot be accepted. 14. It was then contended on behalf of the petitioner that the competent authority proceeded to fix the amount of Rs.1,70,276/- as the difference between the minimum wages payable and the wages actually paid by the petitioner to his employees just only on the evidence of the first respondent and he did not choose to examine any of the employees of the petitioner’s nursing home and therefore the impugned order which is based only on the evidence of the first respondent i.e. the Assistant Labour Officer who cannot be said to be a disinterested person cannot be accepted. This contention may apparently sound forceful but it cannot be accepted for this reason. It should be noted that nothing has been brought to my notice either from the provisions of the Act or the Rules framed thereunder that the competent authority cannot act on the evidence of the inspecting officer and that he has to necessarily examine the employees in question. It may also be noted that the general rule of evidence that no particular number of witnesses is necessary to prove a fact which is enacted in Section 134 of the Indian Evidence Act, 1872, applies here. The learned counsel for the petitioner even sought time to place before the Court the precedential authority in support of his contention but he did not do so. The impugned order shows that the competent authority after considering the matter and the evidence of the inspecting officer, proceeded to uphold the inspecting officer’s claim for Rs.1,70,276/- towards the difference of the amount payable between the minimum wages actually payable and the wages actually paid by the petitioner to his employees for the relevant period is correct. Accordingly, this portion of the impugned order cannot in my opinion be said to be bad. 15. The next aspect regarding the validity of the impugned order to be considered is about the compensation amount which may be ordered to be paid under Section 20(3) of the Act. The competent authority has in the impugned order determined the compensation amount at Rs.8,51,380/- i.e. five times of the amount of Rs.1,70,276/- which constitutes the difference between the minimum wages actually payable and the wages actually paid by the petitioner to his employees. So far as the determination or quantification of the compensation amount at five times of the above sum of Rs.1,70,276/- is concerned, the competent authority did not give any reasons for fixing that compensation at Rs.8,51,380/- which cannot be said to be a small amount. 16. It is true that under Section 20(3)(i) of the Act the competent authority has no discretion to refuse to award compensation but it is given discretion to award that compensation at an amount not exceeding ten times the amount of the excess by which the minimum wages payable by the employer exceed the wages actually paid by him. Thus, the competent authority is given discretion here and it can be anywhere between double the amount of difference or excess and up to ten times of it. In such a situation, the competent authority is expected to exercise its discretion properly and fix a reasonable amount which should not be oppressive or prohibitive leading to the very closure of the scheduled employment throwing out the persons working in it out of employment and on to the roads. The amount of compensation should be a reasonable one and should be within the means of the employer having regard to his gross income from the employment and also the net income so that he may pay the same and continue to run his establishment or business and further as a warning or deterrent to him not to repeat such violations. 17. In the present case, the competent authority has fixed the compensation at Rs.8,51,380/-. The petitioner’s establishment / scheduled employment in question is a nursing home and it is admittedly at a place called Varadannapeta in Warangal District which is not even a district head quarters. It is not an industrial establishment or a factory nor is it any other commercial establishment which can be prima facie said to be a lucrative business. The competent authority should have taken into account the medical facilities provided in the nursing home and its monthly gross income and net income and other connected things relating to its income and expenditure and he then should have fixed the compensation amount exercising his discretion properly at a reasonable amount. The competent authority could have collected this information from the inspecting officer himself and should have fixed the compensation amount taking into account the above aspects and considering the capacity of the owner of the establishment i.e. the petitioner herein. 18. The competent authority did not deal with this aspect on the above lines and did not give any reasons for fixing the amount at five times of the difference which comes to Rs.8,51,380/-. The respondents counsel could not justify the award of such an amount as compensation which cannot be said to be a small amount. Thus, for the aforesaid reasons it can be said that though the impugned order is valid insofar as the amount of Rs.1,70,276/- is concerned, it cannot be said to be valid for want of reasons with regard to the fixing of the compensation amount at Rs.8,51,380/-. 19. The question now is what should this Court do sitting under Article 226 of the Constitution of India. In my opinion, while sustaining the impugned order insofar as Rs.1,70,276/- is concerned, the matter should be remitted back to the competent authority to determine the compensation amount afresh considering all aspects relating to the petitioner’s nursing home, its location and income and expenditure and the number of employees working in it by giving due opportunity to the petitioner. It is true that this writ petition is of 2001 and more than 9 years have elapsed as on today but in the above circumstances there is no alternative before this Court, except to follow the above course. 20. Accordingly, this writ petition is partly allowed setting aside the impugned order in so far as it relates to the fixing of the compensation amount is concerned and the matter is remitted back to the competent authority to re-fix it after giving due reasons considering the above factors and such other factors which may be relevant by giving due notice to the petitioner. The rest of the impugned order is confirmed. No costs. ______________________ N. RAVI SHANKAR, J 21st December, 2010. CVRK