IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5774 of 2001 THE UNION OF INDIA & ANR Versus THE LABOUR ENFORCEMENT OFFICER & ANR ----------- 4 28/1/2009 Heard Mr. Anil Kumar Sinha, learned counsel for the petitioners. Mr. Sinha while assailing the impugned order passed by the prescribed authority under the Minimum Wages Act has argued that the authority did not take into consideration the basic facts that the 14 workmen about whose payment of minimum wages in question was gone into, were never employed by the Railways. In this context he has drawn attention to certain statements made in the written statement which would only go to show that the Railways Administration was trying to distinguish its case in the capacity of being principal employer by taking plea that these 14 casual workmen were engaged and being managed by one Mr. A.N.Sinha, booking supervisor, Lakhisarai in capacity of contractor of the Railways. Unfortunately, this plea with regard to 14 casual workmen being not employees of the Railways and consequently the Railway Administration being not 2 employer, is not inconsonance with the definition of employer under section 2 e of the Act which reads as follows: “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 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 of 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 the employees or where no person is so 3 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; As a matter of fact when the petitioner in paragraph 5 of the written statement filed before the prescribed authority had admitted that one Mr. A.N.Sinha the booking supervisor of the Railways was managing the affairs in view of contract given to him for managing the loading and unloading operation of parcels booked through railways, the said plea along with averments made in paragraph 6 of the written statement is by itself an admission of the fact that services of these 14 workmen were utilized at the instance of Railways through a contractor. This aspect of the matter, in fact, has been gone into by the prescribed authority at great length who was found that Mr. A.N.Sinha as a matter of fact while holding the post of Booking Supervisor, 4 Lakhisarai was also holding the post in the railway administration itself. That being so, there would be no dispute as with regard to relationship of employer and employee for the purpose of this Act. The next submissions of Mr. Sinha as with regard to identification of these 14 workmen is equally misconceived and untenable. In fact this plea was never advanced before the prescribed authority. The written statement brought on record through the supplementary affidavit of the petitioner is itself a proof of the fact that the Railways had confined its case totally to the only one issue of there being lack of relationship of employer and employee. Thus when the aforesaid plea of fact was never raised by the petitioner before the prescribed authority the same cannot be permitted to be raised for the first time in the writ proceedings. As a matter of fact, this writ application seeking judicial review of the impugned order passed after appraisal of the facts in the light of evidence on record by the prescribed authority is otherwise not maintainable because 14 5 workmen in whose favour impugned order was passed have not been impleaded as parties to this writ application. That being so, this application being wholly misconceived is fit to be dismissed. In view of the fact that the order of the prescribed authority for making payment of wages in terms of the impugned order has not been complied only on the ground of pendency of this writ application, this Court would now direct the petitioner to pay the said amount within a period of one month from the date of receipt/production of a copy of this order, failing which the authority under the Act shall be at liberty to take appropriate coercive action against the Railways Administration. With the aforesaid observation and direction this writ application is dismissed. (Mihir Kumar Jha, J.) Abhay Kumar