IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 11.05 .2011 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.A.No.3559 of 2002 1.Elisamma 2.Ramaiah 3.Narasaiah 4.Chinnammal 5.Guruvaiah 6.Erukkalamma 7.Peddamariamma 8.Marathamma 9.Kullakondamma 10.Kottaiah .. Appellants / Petitioner vs. 1.The Corporation of Madras, rep. By its Commissioner, Rippon Buildings, Chennai – 600 003. 2.The Deputy Commissioner of Labour-I Authority notified under the Payment of Wages Act 1936 Teynampet, Chennai .. Respondents/ Respondents PRAYER: Appeal filed under Clause 15 of the Letters Patent against the order passed by the learned single Judge in W.P.No.5934 of 1994 dated 28.03.2002 after the Judgment was dictated in the open Court it was not signed and the matter was posted on 5.7.2002 for being spoken to and the Court passed the order on 5.7.2002. W.P.No.5934/1994 presented to this court under article 226 of the constitution of India to issue a writ of certiorari calling for the records relating to the order of the Deputy Commissioner of Labour I and the authority notified under the payment of wages Act 1936 made in P.R.No.40/92 dated 6.10.1993. For Appellants : Mr.K.Shanmugakani For RR 1 : Mr.V.Bharathidasan For RR 2 : Mr.V.Viswanathan, A.G.P. https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT M.VENUGOPAL,J. The Appellants/Petitioners/Workers have filed the present Writ Appeal as against the order dated 28.3.2002 in W.P.No.5934 of 1994 passed by the Learned Single Judge and the subsequent order dated 5.7.2002 passed under the caption 'Being Spoken to'. 2.According to the Appellants/Workers, the Appellants and 4 others have projected an application as per Section 15 of the Payment of Wages Act, 1936 before the Deputy Commissioner of Labour-I/ 2nd Respondent [Authority notified under the Act] seeking a direction as regards the payment of wages mentioned in Annexure A to F attached to the petition. 3.According to the Appellants, earlier they have been employed by S.K.P.D. Charities, the owner of the Kothawalchavadi market for the purpose of cleaning the said market. The said work has been entrusted to the Petitioners by the Corporation of Madras as per Section 197 of the Madras City Municipal Corporation Act, 1919. The Appellants have been absorbed by the 1st Respondent/Corporation of Madras and they have been in direct employment of the 1st Respondent/Corporation of Madras from the year 1974. 4.The Appellants have to take the garbages in Baskets with the help of an iron plate and load them in a lorry and other vehicles intended for the said purpose. The nature of work involves continues physical work without any break. They have not been given any holiday and further they have been required to work on National holidays. The Corporation Sub-Division No.53-A has been headed by the Conservancy Inspector, who used to pay wages and acted as Supervisor, who is to exercise control over the said Appellants. Each of the Appellants have been paid a consolidated salary of Rs.100/- per month from 1.6.1987. 5.According to the Learned Counsel for the 1st Respondent / Corporation of Madras, the Appellants lay a claim that as per G.O.Ms.No.499, Labour and Employment Department, dated 6.6.1977, minimum wages have been determined for various workers who are employed in Corporation/local bodies. The said G.O. has come into effect from 1.6.1987. On the basis of the aforesaid Government order, the Appellants are eligible to draw minimum wages at the rate of 130/- per month, special allowance of Rs.100/- per month and dearness allowance of Rs.85/- per month and hence, they have filed the application before the appropriate authority. 6.The Learned Counsel for the 1st Respondent/Corporation submits that the Appellants are the employees of Sri Kannika Parameswari Devesthanam Charities, the owner of Kothawalchavadi market and as such not the employees of the 1st Respondent/ Corporation. Also, a plea has been taken that they are not full time workers and they are working as part time workers and also to https://hcservices.ecourts.gov.in/hcservices/ continue to work on part time basis under their employer S.K.P.D. Charities, Madras. 7.The substance of the contention of the 1st Respondent/ Corporation is that the Appellants are not eligible to claim wages from the 1st Respondent/Corporation of Madras under the payment of Wages Act, 1936. 8.The Learned Counsel for the 1st Respondent urges before this Court that the appropriate authority as per his order dated 6.10.1993 has come to the consequent conclusion that the 1st Respondent/Corporation is the employer of the Appellants and that the S.K.P.D. Charities are not the employer of the Appellants and hence, directed the 1st Respondent to pay wages to them as claimed in Annexure A to F within a period of one month from the date of receipt of the impugned order etc. 9.It is the contention of the Learned Counsel for the 1st Respondent/Corporation of Madras that the 1st Respondent is not the employer of the Appellants. The appropriate authority has committed an error in holding that the Appellants are the employees of the 1st Respondent/Corporation in the absence of any proof. As such, the impugned order made in P.W.No.40 of 1992 dated 6.10.1993 passed by the Deputy Commissioner of Labour is liable to be set aside. 10.The Learned Counsel for the 1st Respondent/Corporation of Madras brings it to the notice of this Court that the Appellants have no orders in their favour appointing them as employees of the 1st Respondent/Corporation of Madras and therefore, they cannot claim that they are the employees of the 1st Respondent/Corporation of Madras. 11.The Learned Counsel for the 1st Respondent/Corporation of Madras takes a plea that there is no relationship of Master and Servant between the Appellants and the 1st Respondent in regard to the cleaning of Kothavalchavadi market. The Appellants have been paid from the funds collected from the S.K.P.D. Charities. At no point of time they have been paid directly from the funds of the 1st Respondent/Corporation of Madras. 12.The Learned Counsel for the 1st Respondent contends that there is no supervisory control over the Respondents by the officers of the 1st Respondent/Corporation of Madras and therefore, the finding of the 2nd Respondent/ Appropriate Authority as per Section 15 of the Payment of Wages Act that the Appellants are the employees of the 1st Respondent is an error apparent on the face of record which is liable to be set aside in the interest of justice. 13.The Learned Counsel for the 1st Respondent presses into service a legal plea that as per Section 15 of the Payment of Wages Act an application has to be presented within 12 months from the date on which the deduction from the wages was made or from the date on which the payment of wages was due as the case may be and https://hcservices.ecourts.gov.in/hcservices/ the application filed before the 2nd Respondent by the Appel1ants and 4 others is an belated one and the failure of the 2nd Respondent to consider the issue of limitation amounts to failure to exercise the jurisdiction vested on him. 14.In response, the Learned Counsel for the Appellants submits that 27 sanitary workers have been worked in the Kothavalchavadi market (private market) as sweepers through one private contractor and during the year 1974 there have been a heavy flood in Madras city due to torrential rains. Further, taking note of the hygienic grounds, the Government of Tamil Nadu has taken over the internal sanitation as a matter of fact, in the year 1974 in Kothawalchavadi market. By an order dated 6.9.1974 the 1st Respondent/Corporation of Madras has taken over the internal sanitation work in the said market and directed the market owners viz., S.K.P.D. Charities to pay a sum of Rs.2500/- towards services rendered for internal sanitation work carried out by the 1st Respondent/Corporation of Madras in the said market. The 1st Respondent/Corporation has been carrying on the internal sanitation work in the said market till it has been closed in the year 1996. 15.The Learned Counsel for the Appellants submits that the sanitary workers employed in the aforesaid market approached the then Commissioner of Madras-V.Karuppannan seeking employment. Payments of an agreement dated 1.9.1974, the 1st Respondent/ Corporation has taken over the services of the said 27 workers as Sanitary Workers agreeing to pay wages and other conditions. Also, the 1st Respondent/Corporation installed a new Division i.e. 30 Special Divisions in the Kothawalchavadi Market. One Sanitary Inspector has been heading the office and he has taken the attendance of the workers and supervised the said workers who have been performing the sanitation and completed the work. 16.The 1st Respondent/Corporation has paid the wages to the workers through the said Sanitary Inspector. The tools, instruments necessary for the sanitation work have been provided by the 1st Respondent. Initially, the workers viz., the male workers have been paid Rs.75/- and female workers have been paid Rs.65/- and later it has been increased to Rs.100/- per worker. 17.The Learned Counsel for the Appellants/Workers brings it to the notice of this Court that the workers filed W.P.No.11954 of 1986 before this Court praying for regularisation of the services. The 1st Respondent/Corporation admitted the terms of the employment of the workers in its counter. But this Court has directed the workers to approach the Industrial Law Authorities. The workers have preferred a Writ Appeal against the said order of this Court passed in the aforesaid Writ Petition and the same has been dismissed. 18.The workers filed P.W.No.40 of 1996 seeking wages on par with other workers for the period beginning from January 1987 to December 1991. The 1st Respondent /Corporation filed its counter, https://hcservices.ecourts.gov.in/hcservices/ let in oral and documentary evidence. The 1st Respondent has produced all the records before the Authority. The 2nd Respondent/Appropriate Authority, on a consideration of the materials and documents on record, has passed an order dated 6.10.1993 directing the 1st Respondent/Corporation to pay wages at par with the other sanitary workers. Moreover, as against the order of the Appropriate Authority, the 1st Respondent/Corporation has preferred the Writ Petition No.5934 of 1994 and the interim stay has been granted. In M.P.No.823 & 24/1995 the Appellants have prayed for vacating the stay order granted by this Court and this Court has been pleased to pass order directing the 1st Respondent/Corporation to disburse 50% of the wages. 19.The contention of the Learned Counsel for the Appellants is that the 1st Respondent is a model employer and it has violated under Articles 14, 16, 21 and 23 of the Constitution of India and also the 'Forced Labour' is a sin. 20.The Learned Counsel for the Appellants submits that the 1st Respondent/Corporation orally terminated the services of the workers on 3.2.2000 inspite of the proceedings pending before the Authorities for the Industrial Establishment and Conferment of Permanent Status Act. As per Section 304 of the Madras City Municipal Corporation Act, the 1st Respondent/Corporation has taken over the internal sanitation work by an order dated 6.9.1974 and also absorbed the service of the workers as per agreement dated 1.9.1974. The wages for workers as per the terms of agreement have been paid by the 1st Respondent/Corporation. Attendance Register and supervision has been done by the 1st Respondent through the Sanitary Inspector in the Special Division 30. All the tools, instruments necessary thereto have been provided by the 1st Respondent. The Corporation of Madras has been exercising the powers of Master and Servant relationship. Also the workers are its employees. 21.It is the case of the Appellants that they have been employed by the 1st Respondent as Sanitary Workers from 1974 to 1995 in the said market and that the Kothawalchavadi has been closed during the year 1996 and when the Kothawalchavadi has been closed in the year 1996, the services of the workers have been transferred to the Division situated at 30 and they have been working still they have been orally terminated by the Appellant. 22.Lastly, it is the contention of the Learned Counsel for the Appellants that the 1st Respondent has denied the employment to the Appellants on the basis it has been performing the work on behalf of the S.K.P.D. Charities and has received a sum of Rs.2500/- per month and distributing the same to the workers as wages. 23.The Learned Counsel for the Appellants submits that the Appellants/workers filed P.W.No.40 of 1992 before the 2nd Respondent/Deputy Commissioner of Labour-I [An authority notified under the Payment of Wages Act, 1936] wherein they have claimed amounts mentioned in A, B, C, D, E and F Annexures thereto and after contest and upon analysis of the entire material on record https://hcservices.ecourts.gov.in/hcservices/ has come to the consequent conclusion that the existence of master and servant relationship between the Appellants and the 1st Respondent have been established and that the 1st Respondent is the employer of the Appellants and further that the Kannika Parameswari Devesthanam Charities are not the employers of the Appellants and the 2nd Respondent has come to this conclusion by placing reliance on the letter in Reference in No.AHO II.C.No.D1/783/74 dated 6.9.1974 from the 1st Respondent/Corporation's Assistant Commissioner addressed to the Secretary to the Sri Kannika Parameswari Devesthanam Charities and directed the 1st Respondent to pay amounts as claimed in Annexure A, B, C, D, E and F to each of the Appellants within a period of one month from the date of receipt of this order. Also, it has been intimated that if the amounts are not paid within one month as directed, necessary legal proceedings will be initiated to recover the amounts. 24.The Learned Counsel for the 1st Respondent/Corporation of Madras cites the decision of Balaram Abaji Patil V. Ragojiwalla [1969 II L.L.J. 491 at page 493] wherein it is held among other things that 'the legislature never intended that workers who are covered by the Payment of Wages Act and to whom the Minimum Wages Act is also extended shall be deprived of their remedy under the Payment of Wages Act for recovering the wages due to them under the provisions of the Minimum Wages Act. The right to minimum wages is intended by the legislature to create an obligation on the part of the employer, the infringement of which is not confined to the remedy mentioned in the Act. The remedy by way of an application to the Authority under the Payment of Wages Act is as expeditious and inexpensive as the remedy by way of an application to the Authority under the Minimum Wages Act, and there is no reason why, in the case of workers covered by both the Acts, the legislature should be assumed to have intended to bar one remedy in preference to the other.' 25.It is to be noted that the workman cannot be denied the wages when he reports himself on duty. In this connection, this Court pertinently points out the decision in J.D.A. Jaipur V. Labour Court and others [1990 Vol.60 FLR 81 at page 85 (Raj.)] wherein it is inter alia held as follows: "It appears that the management got annoyed with the workmen as they instituted a suit challenging the transfer order Annexure-1. This annoyance or displeasure continued more vigorously when the operation of Annexure 1 was stayed by the Civil Court. After all what the workman can do is to report himself on duty. It is with the employer to take work from him or not. The workman cannot snatch the work from the employer. In rests on the sweet will of the employer to take or not take work from the workmen. But the workmen cannot be denied the wages when he reports himself on duty but the work is not taken from him by the employer. https://hcservices.ecourts.gov.in/hcservices/ 26.This Court aptly points out the decision in Modi Industrial Limited V. State of U.P. and others [(1992) 64 All. F.L.R. 471] wherein it is held that 'if the workmen have not worked although the work was offered to them, then, they are not entitled to claim wages.' 27.Apart from the above, this Court cites the following decisions: (a) In Kothari (Madras) Limited V. Second Additional District Judge-cum-Appellate Authority and others [1990 Vol.76 F.J.R. 209] it is held that 'if the absence from duty is due to coercion and the workman is not consenting party, then, the Management has no right to deduct wages.' (b) In The President, Athni Municipality V. Shetteppa Laxaman Pattan and others [1965 (1) The Mysore Law Journal 749 at page 750] it is observed as follows: "(1)Under S. 20 of the Act, the authority had jurisdiction to decide disputes relating to the payment of remuneration for days of rest, even before its amendment. (2)Though the State Government had not prescribed the rests of wages, since S. 13(1) (c) prescribed the minimum wage payable for such work, the authority was entitled to calculate wages for the work turned out by the employees on a day of rest at that rate. (3)Under S.20, claims by persons who had ceased to be in employment on the date of application were cognizable by the authority." (c)In Karnataka Film Chamber of Commerce V. State of Karnataka [1987 I L.L.J. 182] it is held as follows: "Section 4 of the Act also is a definite indication that basic wage is an integral part of the minimum wage. Section 4.1 postulates that the minimum wage fixed or revised by the appropriate Government under Section 3 may consist of a basic rate of wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate Government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers; or a basic rate of wages with or without the https://hcservices.ecourts.gov.in/hcservices/ cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates, where so authorised; or all-inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions, if any. Therefore when the question of neutralisation of the cost of living arises by payment of D.A. it necessarily follows that the Court should keep in view whether there had been an increase or decrease in the basic wage in a particular industry over a given period of time for the purpose of determining whether the neutralisation factor adopted by the State Government exceeds 100% or 200% or 300% in a given situation. On the plain terms of Section 4(1) of the Act, it is clear that the payment of Dearness Allowance would arise only if the basic wages fixed for a particular category of workmen fell short of the minimum wage which the State Government has to fix taking into consideration the needs of the workers' family consisting of three consumption units. Language of Sec. (4) does not lend itself to the interpretation that a minimum wage under Sec.4(1) of the Act necessarily should consist of basic wages and Dearness allowance. The minimum wages Act is a beneficial piece of social legislation which protects the day to day living condition of the workers employed at the lowest level of wages in sweated labour. Though the minimum wages are fixed statutorily, it does not measure up either to the fair wage or to the living wage. This Court should also take into consideration the C.P.I. index which has gone up from 470 in the year 1982 to 620 in the year 1986. The workers had a long run of litigation since 1982 in obtaining this minimum wage under the impugned notification since as noticed earlier, the two notifications made in the year 1982 and 1984 were successfully challenged by the petitioners. Therefore, any interference on grounds which are not really substantial would be repugnant to the entire object of the purpose of the Act and opposed to well settled principles of exercising the extraordinary jurisdiction under Article 226 of the Constitution." https://hcservices.ecourts.gov.in/hcservices/ (d)In The Bharatpur Central Co-operative Bank Limited V. Ratan Singh and others [1995 L.L.J. Vol. 3 (Supp.) 813] it is held as follows: "It is of course open to the Authority under the Act to see whether the order of suspension was passed by an office competent to pass such an order. If the order of suspension has been passed by an officer or Authority not competent to pass it, it is then open to the Authority under the Act to ignore or disregard such an order of suspension. The Authority under the Act has a very limited jurisdiction. It does not He within his jurisdiction or competency to examine the order of suspension on merits and to see whether it is justified in law or not. If the order of suspension has been passed by an officer competent to pass it, the Authority under the Act cannot examine its validity to see as to whether it was justified in law or not. Here in the instant case, the Authority, under the Act acted improperly and exercised jurisdiction not vested in it when it entered into the question whether the order suspending the employed person was or was not justified in law." (e)In Bidi, Bidi Leaves and Tobacco Merchants' Association, Gondia and others V. The State of Bombay (Now Maharashtra) and others [AIR 1962 Supreme Court 486 at page 487] the Hon'ble Supreme Court has held in paragraph 21 as follows: "The definition of the term "wages" postulates the binding character of the other terms of the contract and brings within the purview of the Act only one term and that relates to wages and no other. That being so, it is difficult to hold that by implication the very basic concept of the term "wages" can be ignored and the other terms of the contract can be dealt with by the notification issued under the relevant provisions of the Act." (f)In People's Union for Democratic Rights and others V. Union of India and others [1982 Labour Industrial Cases 1646 at page 1649] it is held as follows: "Where a person provides labour or services to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words "forced labour" under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right https://hcservices.ecourts.gov.in/hcservices/ under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied. What Article 23 prohibits is 'forced labour' that is labour or service which a person is forced to provide and 'Force' which would make such labour or service 'forced labour' may arise in several ways. It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternative and compels him to adopt one particular course of action may properly be regarded as 'force' and if labour or service is compelled as a result of such 'force', it would be 'forced labour'. Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage. In the instant case, Re.1/- per worker per day was deducted by the jamadars from the wages payable to the workers employed by contractors for Asiad Projects with the result that the workers did