Civil Writ Petition No.4605 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.4605 of 1992 Date of Decision:11.05.2011 M/s Lord Krishna, Flour Mill Pvt.Ltd. ......Petitioner Versus Authority under Minimum Wages Act, Rohtak and another .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.P.K.Mutneja, Advocate, for the petitioner. Nemo for respondent No.1. Mr.Ramesh Hooda, Advocate, for respondent No.2. **** M EHINDER S INGH S ULLAR , J.(oral) Concisely, the facts, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant writ petition and emanating from the record, are that workman-Jagbir Singh Hooda son of Ram Krishan-respondent No.2(for short “the workman”) was employed by the petitioner-Firm M/s Lord Krishna, Flour Mill Pvt.Ltd.(for brevity “the petitioner- Management”) as a Weighing Clerk. He worked with the petitioner-Management as such w.e.f. 06.11.1990 to 27.07.1991. The workman claimed that the petitioner- Management has paid him less wages than the minimum wages, prescribed by the Haryana Government, in view of the provisions of The Minimum Wages Act, 1948(hereinafter to be referred as “the Act”) and even did not pay any wages for over-time work, despite repeated requests. Consequently, the workman moved an application in a prescribed Form(VI-A)(Annexure P-1) under Section 20 of the Act before the competent authority appointed under the Act and claimed the wages in Civil Writ Petition No.4605 of 1992 2 this context. 2. Notice of the application was issued to the petitioner-Management and Sh.D.D.Sharma appeared on its behalf on 14.08.1991. The case was adjourned and Sh.Ved Parakash Jain appeared on its behalf on the adjourned date i.e.,21.08.1991. Both the parties were also present on 04.09.1991. Thereafter, as none appeared on behalf of the petitioner-Management, therefore, the competent authority accepted the claim-petition of the workman vide ex parte impugned award dated 12.12.1991(Annexure P-3). 3. Sequelly, the application(Annexure P-4) filed by the petitioner- Management for setting aside ex parte impugned award(Annexure P-3) was again dismissed in default by the competent authority, by virtue of impugned order dated 22.01.1992(Annexure P-5). 4. Instead of moving an application for restoration of application (Annexure P-4) and for setting aside the impugned award(Annexure P-3), the petitioner-Management straightway preferred the present writ petition, challenging the impugned award/order(Annexures P-3 and P-5), invoking the provisions of Article 226 of the Constitution of India. 5. The case set-up by the petitioner-Management, in brief, insofar as relevant, was that no registered notice of claim petition(Annexure P-1) was issued to it, only notice by ordinary post was issued and the same was not received by it. It was alleged that the petitioner-Management did not authorise any person to appear on its behalf before the competent authority. Thus, the ex parte impugned award(Annexure P-3) was stated to be arbitrary and illegal. Some malafide has also been alleged by the petitioner-Management against the Labour Minister for helping the workman in this regard by way of letter(Annexure P-2). 6. The petitioner-Management further claimed that it received the copy of impugned award(Annexure P-3) on 01.01.1992 and immediately moved an application(Annexure P-4), for setting aside the ex parte award on 08.01.1992, Civil Writ Petition No.4605 of 1992 3 which was again dismissed in default through the medium of impugned order dated 22.01.1992(Annexure P-5). 7. Levelling a variety of allegations and narrating the sequence of events, in all, the petitioner-Management claimed that as, no opportunity of being heard was provided to it, at any stage, therefore, the impugned ex parte award was illegal and arbitrary. On the basis of aforesaid allegations, the petitioner- Management sought the quashment of impugned award(Annexure P-3) and order (Annexure P-5), in the manner depicted here-in-above. 8. On the contrary, the workman contested the claim of the petitioner- Management and filed the written statement, inter alia, admitting that Ved Parkash Jain is the owner of the petitioner-Management, who appeared on its behalf before the competent authority. The workman reiterated that he was initially appointed as a Weighing Clerk at a monthly salary of Rs.980/- and he worked as such w.e.f. 06.11.1990 to 27.07.1991. It was denied that he left the job, but it was reiterated by the workman that his services were illegally terminated. He sent a demand notice under the Industrial Disputes Act, 1947, to refer the matter to the Labour Court. 9. According to the workman, Ved Parkash Jain, owner of the petitioner-Management appeared two times before the competent authority, after due service, but subsequently, since nobody appeared on its behalf, so, the competent authority has rightly passed the impugned award(Annexure P-3). Ved Parkash Jain, owner of the petitioner-Management was stated to have adopted a wrong practice in order to delay the payment. It was explained that so much so, the application(Annexure P-4), for setting aside the impugned ex parte award (Annexure P-3) filed by the petitioner-Management was also dismissed in default, by means of impugned order(Annexure P-5). In all, according to the workman, as, the petitioner-Management paid him less wages than minimum wages, fixed by the Government under the Act and did not pay the wages in lieu of over-time, Civil Writ Petition No.4605 of 1992 4 therefore, the competent authority has rightly passed the impugned award/order, which were claimed to be legal and valid. It will not be out of place to mention here that the workman has stoutly denied all other allegations contained in the writ petition and prayed for its dismissal. That is how, I am seized of the matter. 10. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present writ petition in this respect. 11. Ex facie, the argument of the learned counsel that since, no opportunity of being heard was provided to the petitioner-Management, so, the impugned award(Annexure P-3) and order(Annexure P-5) are illegal, is not only devoid of merit but misconceived as well. 12. As is evident from the record that the workman moved a claim petition(Annexure P-1) against the petitioner-Management, claiming the difference of wages, in the following manner:- “The applicants estimate the value of relief sought by them on each account as under:- a) Rs.477.50 b) Rs.3711.68 ------------------------ total: Rs.4189.18P ------------------------ The applicants therefore, pray that a direction may be issued under section 20(3) of the Act for; a) Payment of the difference between the wages payable under the minimum wages act and the wages actually paid; b) Payment of remuneration for the days of rest; c) Payment of wages at the rate(s); d) Compensation amounting to Rs.4189,18/-. The applicants beg leave to amend or add to or make alterations the application, if an when necessary, with the permission of the authority. The applicants do solemnly declares that the facts stated in the application are true to the best of my knowledge, belief and information.” Civil Writ Petition No.4605 of 1992 5 13. Having received the application(Annexure P-1) on 05.08.1991, the competent authority issued notices to the parties for 14.08.1991, on which date, Sh.D.D.Sharma appeared on behalf of the petitioner-Management. Not only that, Sh.Ved Parkash Jain, owner of the petitioner-Management appeared on 21.08.1991. Both the parties were again present on 04.09.1991 before the competent authority and the case was adjourned to 11.09.1991. On that day, as none appeared on its behalf, therefore, ex parte proceedings were ordered against it and the case was adjourned to 25.09.1991 for ex parte evidence. 14. The workman in order to substantiate his claim examined B.K.Anand, Labour Inspector as AW1, who has stated on oath that the workman had given a written complaint in his office, for non-payment of over-time wages and less wages than minimum rate of wages, fixed by the Government against the petitioner-Management. He(AW1) inspected the premises and directed the petitioner-Management to make the payment of over-time wages and minimum wages, as per rules, but in spite of obeying these instructions, the petitioner- Management terminated the services of the workman. Instead of reproducing the entire statement, suffice it to say that the workman has also reiterated his claim on all vital counts, while appearing as AW2 and, inter alia, maintained that he is entitled to the indicated wages. The competent authority, after taking into consideration the entire material/evidence on record, accepted the claim petition of the workman, vide impugned award(Annexure P-3), which in substance is, as under:- “The applicant was employed as weighing clerk. The rate of Minimum for 'Weightman' was fixed by Haryana Government as Rs.850/- vide Haryana Government Gazette Notification dated 11th October 1989 and Dearness allowance on these wages were to be add Rs.69.70 from 1.1.1991 and Rs.34/- w.e.f. 1.7.1991. The applicant has claimed difference of minimum wages and wages actually received by him from 6.11.90 to 27.7.91. However, cause of action under the Act is continuous one but the claim can be allowed for a period of six months only next before the date of Civil Writ Petition No.4605 of 1992 6 application (Manager, Shenaicherra Tea Estate Vs. Mahender Kisur Purkayastha, AIR, 1968 Assam 22). I, therefore, hold that the applicant is entitled to the difference of Minimum wages and wages actually received by him only from the month of February, 1991 to July, 1991. The calculation of wages due is given as under:- Period Minimum Wages Wages Difference actually drawn ------------------------------------------------------------------------------------------- Feb.,91 to June, 91 919.70 980/- 19.70x5 Rs.98.50 The applicant has claimed wages for the month of July, 1991 separately under the Payment of Wages Act, 1936. So, the applicant is entitled to Rs.3711.68 (over-time wages) and plus Rs.98.50 (as difference of minimum wages and wages actually drawn) a total of which comes to Rs.3810.18 along with compensation according to Section 20(3)(i) of The Minimum Wages Act, 1948. The respondent was given opportunity to settle the accounts and to pay the due wages to the applicant but they did not pay nor offer the amount to the applicant. Therefore, I hold that the respondent is liable to pay Rs.3810.18 along with Rs.19050.90 as compensation. The respondent is directed to pay a sum of Rs.22861.08 (Rupees twenty two thousand eight hundred sixty one and paise eight only) within 30 days failing which the applicant would be entitled to recover the amount with interest at the rate of 12% per annum from the date of default till the date of actual payment.” 15. That means, it stands proved on record that the petitioner- Management was duly served and thrice appeared and, thereafter since, nobody appeared, so, the competent authority did not have any other option, but to pass the impugned ex parte award(Annexure P-3) in this relevant connection. 16. Not only that, nobody appeared on behalf of the petitioner- Management and its application(Annexure P-4) for setting aside the ex parte impugned award(Annexure P-3) was dismissed in default as well by way of impugned order(Annexure P-5). Instead of approaching the competent authority, for restoration of the application and for setting aside the ex parte award, the petitioner-Management has filed the present writ petition, without any basis. In this manner, the plea of the workman that the petitioner-Management is adopting Civil Writ Petition No.4605 of 1992 7 illegal tactics, in order to delay the payment of the indicated wages, stands corroborated, by the conduct of the petitioner-Management. 17. What is not disputed here is that the principle emanating from Order 9 Rule 13 CPC deals with setting aside the decree exparte, which postulates that in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court (i) that the summons was not duly served, or (ii) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. 18. Meaning thereby, the ex parte decree can only be set aside on the grounds mentioned therein and not otherwise. As, no ground for setting aside the ex parte award was made out, as contemplated under Order 9 Rule 13 CPC, therefore, to my mind, the competent authority has rightly passed the impugned order(Annexure P-5) and even dismissed the application(Annexure P-4) filed by the petitioner-Management, for setting aside the impugned award(Annexure P-3) in default. 19. The next argument of the learned counsel for the petitioner that the competent authority exceeded its jurisdiction in awarding the compensation to the workman, is again not tenable. Because, it has the power and jurisdiction to award the impugned wages together with the payment of such compensation, as the authority may think fit, not exceeding ten times the amount of such excess, as contemplated under Section 20(3)(i) of the Act. Therefore, the contrary arguments of the learned counsel for the petitioner-Management “stricto-sensu” deserve to be and are hereby repelled under the present set of circumstances. Since, no ground to interfere, in exercise of writ jurisdiction of this Court, is made out, so, the impugned award(Annexure P-3) is maintained in the obtaining circumstances of Civil Writ Petition No.4605 of 1992 8 the case. 20. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 21. In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such. May 11, 2011 (MEHINDER SINGH SULLAR) seema JUDGE