1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 2030 OF 2009. Mahanagar Telecom Nigam Ltd. ..Petitioner. v/s. S.M. Nikam & Ors. ..Respondents. .... Mrs. R.V. Masurkar, i/b. Vinay S. Masurkar, for Petitioner. Mr. S.N. Pillai, for Respondent Nos. 2 to 11. .... CORAM : S.J. KATHAWALLA, J. DATE : 11TH JANUARY 2010. P.C. Heard learned Advocates appearing for parties. 2. Rule. Rule made returnable forthwith by consent. The learned Advocate appearing for the respondent nos. 2 to 11 waives service. 3. The present writ petition is filed by the petitioner/ M.T.N.L. impugning the order dated 9th July 2009 passed by the Authority under the Minimum Wages Act, 1948 and the Regional Labour Commissioner (Central), Mumbai, directing the petitioner/M.T.N.L. to pay an amount of Rs.96,876.00 (Rs. 48,438.00 as claim +Rs.48,438.00 as compensation) to 10 employees within 30 days from the date of the order. The impugned order was passed pursuant to an application dated 25th February 2009 under section 20(2) of the Minimum Wages Act, 2 1948 filed by the respondent no.1 i.e. the Labour Enforcement Officer (Central). 4. The main contention advanced by the learned Advocate appearing for the petitioner/M.T.N.L. is that the respondent nos. 2 to 11 who are contract labourers initially appointed by a Contractor M/s. Excellent Sanitation and Engineering had approached this Court in Writ Petition No.2066 of 1999 for declaration that they had become direct workers of M.T.N.L. The said petition was admitted by an order dated 20th August 1999 and the petitioner/M.T.N.L. was restrained from terminating the services of these employees with liberty to the petitioner/M.T.N.L. to change the contractor. It was submitted that since the petitioner/M.T.N.L. is not the employer of the concerned employees, as per the law and these employees have continued to work with the petitioner/M.T.N.L., only in view of the interim order dated 12th May 1999, the question of applicability of notification dated 7th August 2008 does not arise. It is also submitted that the respondent nos. 2 to 11 are not the employees in any ‘Scheduled Employment’ by the respondent. It is submitted that when the employees filed the writ petition, they were engaged in “Employment of Sweeping and Cleaning”. Thereafter, the petitioner/M.T.N.L. has started assigning 3 miscelleneous jobs, not restricted to sweeping and cleaning, to the said employees. It is therefore, submitted that the question of applicability of notification dated 7th August 2008 does not arise. It is submitted that pending the Writ Petition No.2066 of 1999, the respondent nos. 2 to 11 ought not to have approached the Authority under the Minimum Wages Act, 1948 and the Authority under the Minimum Wages Act, 1948 ought not to have entertained such an application and passed the impugned order. It is also submitted that since the authority has come to the conclusion that there was a malafide intention on the part of the petitioner/M.T.N.L. in making the short payment to the respondent nos. 1 to 11, the Authority ought not to have awarded the compensation to the respondent nos. 1 to 11 and that the Authority has erred in granting compensation at one time of the claim amount. 5. The learned Advocate appearing for the respondent nos. 2 to 11 submitted that respondent no.1 is an employer as defined under section 2(e) of the Minimum Wages Act, 1948. The work was covered under the ‘Scheduled Employment’ for which minimum wages have been fixed under Government notifications. The petitioner/M.T.N.L. - employer has failed to pay the short payment to the concerned employees amounting to Rs. 4 48,438/-. It is submitted that even if the respondent nos. 2 to 11 have continued in the employment of the petitioner/M.T.N.L. as contract labour, they are still entitled to the minimum wages under the notification No. S.O. No.1994 (E), dated 7th August 2008. He has submitted that the notification is not impugned by the petitioner/M.T.N.L. and in fact, it is an admitted fact that the notification pertains to fixation of minimum wages per day payable to the employee engaged in ‘Scheduled Employment’ i.e. ‘Employment of Sweeping and Cleaning’ and that the rate of wages for employees working in that category is Rs.181.35 per day (Rs.180.00 Basic + Rs.1.35 UDA). It is, therefore, submitted on behalf of respondent nos. 2 to 11, that pending of the writ petition wherein the issue involved is whether respondent nos. 2 to 11 have become direct workers of the petitioner/M.T. N.L., cannot come in the way of the Authority under the Minimum Wages Act, 1948 to decide the application filed by the respondent no.1. It is therefore, submitted that the impugned order is correctly passed by the Authority allowing the claim application and directing the petitioner/M.T.N.L. to pay a sum of Rs. 48,438/- to respondent nos. 2 to 11 and has further correctly granted one time compensation instead of ten times since the Authority has come to the conclusion that there is no malafide intention on the part of 5 the petitioner/M.T.N.L. in this regard. 6. I have considered the submissions advanced by the learned Advocates appearing for the petitioner/M.T.N.L. as well as respondent nos. 2 to 11. I have also perused the notification dated 7th August 2008. The respondent nos. 2 to 11 admittedly were engaged in ‘Scheduled Employment’ i.e. “Employment of Sweeping and Cleaning” when they approached this Court in Writ Petition No.2066 of 1999 and when this Court ordered that they be continued and restrained the petitioner/M.T.N.L. from terminating their services. Only because respondent nos. 2 to 11 are also assigned certain miscellaneous jobs by the petitioner/M.T.N.L., it cannot be contended by the petitioner/M.T.N.L. that respondent nos. 2 to 11 have seized to be engaged in ‘Scheduled Employment’ and that the notification dated 7th August 2008 is not applicable to them. The Writ Petition No.2066 of 1999 filed by the respondent nos. 2 to 11 before this Court is for declaration that respondent nos. 2 to 11 have become direct workers of the petitioner/M.T.N.L. Therefore, the contention on part of the petitioner/M.T.N.L., that since the writ petition is pending before this Court, the petitioner/M.T.N.L. cannot be ordered by the Authority under the Minimum Wages Act, 1948 to pay minimum wages to respondent nos. 2 to 11 is 6 untenable and is rejected. The order directing the petitioner/M.T.N.L. to pay an amount of Rs.48,438/- as claimed by the Authority under the Minimum Wages Act, 1948 cannot be faulted. However, since the Authority under the Minimum Wages Act, 1948 has come to the conclusion that there is no malafide intention on the part of the petitioner/M.T.N.L. in this regard, the question of directing the petitioner/M.T.N.L. to pay any compensation to respondent nos. 2 to 11 cannot arise. To that extent, the Authority under the Minimum Wages Act, 1948 has erred in granting compensation of Rs.48,438/- to respondent nos. 2 to 11. Hence, I pass the following order :- (i) The petitioner/M.T.N.L. shall pay an amount of Rs. 48,438/- towards the claim, as ordered by the Authority under the Minimum Wages Act, 1948, to respondent nos. 2 to 11 within a period of four weeks from today. (ii) The order directing the petitioner/M.T.N.L. to pay an amount of Rs.48,438/- to respondent nos. 2 to 11 towards one time compensation, is quashed and set aside. 7. Writ petition is accordingly, disposed of with no order as to costs. [ S.J.KATHAWALLA, J. ]