IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.02.2010 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.No.17073 of 2000 Secretary S.Attayampatty Peramanur Primary Agricultural Co-operative Bank (S.359) S.Attayampatty PO – 636 203. Salem District. ... Petitioner Versus 1.The Deputy Commissioner of Labour Salem Region Salem – 636 007. 2.The Assistant Inspector of Labour 3rd Circle, Salem – 1. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari calling for the records of the 1st respondent in MW Case Nos. 141 to 145 / 2000 and quash its order dated 24.07.2000. For Petitioner : Mr.S.Ravindran for M/s.T.S.Gopalan & Co. For Respondents : Mr.A.Arumugam Special Government Pleader O R D E R The petitioner is the Secretary of the Co-operative Society. He has filed the present writ petition challenging order of the second respondent in Minimum Wages Case Nos.141 to 145 of 2000 dated 24.07.2000. 2.It is seen from the records that the Assistant Inspector of Labour–3, Salem (the second respondent herein) filed an application before the Minimum Wages authority, namely the first https://hcservices.ecourts.gov.in/hcservices/ respondent herein. The Minimum Wages applications were numbered as 141 to 145 of 2000 and notice was ordered to the petitioner Society in I.A.No.38/2000. 3.The case filed by the second respondent was that he inspected the petitioner establishment on 24.12.1999 and found that the employees were paid less than the minimum rates of wages fixed by the Government in G.O.Ms.(D)No.10, Labour and Employment Department, dated 04.01.1995 for the period from 01.06.1999 to 30.11.1999. When the defect was pointed out during the time of inspection, the delay came to his notice and therefore, the officer prayed for condonation of delay. 4.The petitioner Society filed a counter statement stating that they are paying wages according to the instructions received from the Registrar of Co-operative Societies and they have no power to enhance the payment on their own to the workers and the workers were paid wages in terms of G.O.Ms.No.183 dated 16.06.1995 and G.O.Ms.No.63 dated 14.03.1996. 5.The first respondent, being the authority under Section 20 of the Minimum Wages Act, 1948 computed the amount. The authority held that the employees engaged by the petitioner Society were paid less than the minimum wages fixed by the Government vide its order in G.O.Ms.(D) No.10 dated 04.01.1995 for the period in question. 6.Though it was contended that the Co-operative Societies are exempted from the provisions of Tamil Nadu Shops and Establishment Act, the said contention will have no relevance as the fixation of minimum wages is under the Minimum Wages Act, and that Act did not exempt Co-operative Societies from its provisions. The authority also found that the petitioner establishment is also a "shop" under the Minimum Wages Act. He further stated that the Minimum Wages Act being a social welfare legislation, any order over which the petitioner is placing reliance will have no binding effect and in that view of the matter the authority computed various sums to five persons engaged by the petitioner, which includes 4 salesmen and one night watchman. It is against this order, the writ petition was filed. 7.The writ petition was admitted on 09.10.2000. Pending the writ petition, an interim stay was granted. Subsequently when the matter came up on 19.08.2002 a direction was issued to the petitioner to deposit the amount covered by the impugned order with the authorities. 8.In the present case, even though in the impugned order the names of five persons, who are working in different Societies https://hcservices.ecourts.gov.in/hcservices/ are furnished, for reasons best known, the petitioner did not make them as a parties to the writ petition. The writ petition is liable to be rejected solely on that ground. 9.This view was taken by this Court vide judgment in MURUGA HOME INDUSTRIES VS. GOVERNMENT OF TAMIL NADU AND ANOTHER reported in 1996 (I) LLJ 598. Paras 2,3,4 and 29 of the said judgment read as follows: "2.Learned counsel for the respective writ petitioners submitted their contentions, on the interpretation of section 5(1) (b) and sub-section (2) of Section 5 of the Minimum Wages Act, 1948 (hereinafter referred to as "the Act"). On the other hand, Mr.Chandru, learned counsel for the impleaded parties in Writ Petitions Nos. 7923 and 7925 of 1993 has raised preliminary objections regarding the maintainability of the writ petitions on the ground that the respective workers or their unions have not been impleaded as parties to the proceedings. In all other writ petitions, there is no representation on behalf of the employees or their unions from the respective beedi industries and, therefore, he submitted that the writ petitions ought to be dismissed as not maintainable by this court on the preliminary ground itself. 3.The learned Additional Government Pleader also has taken the same point that the writ petitions are not maintainable for non-joinder of necessary parties, viz., as the employee or their unions and as such the writ petitions ought to be dismissed in limine as not maintainable. In support of the above contentions, Mr.Chandru, learned counsel appearing for the respondents Nos.2 and 4, cited the ruling of Prabodh Verma V. State of Uttar Pradesh, AIR 1985 SC 167, at page 180 wherein it is observed as follows: "Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non joinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. Those who were https://hcservices.ecourts.gov.in/hcservices/ vitally concerned, namely, the reserve pool teachers, were not made parties – not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or atleast some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.... To summarize our conclusions: (1) A High Court ought not to hear and dispose of a writ petition under article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them before it as respondents in a representative capacity if their number is too large to join them as respondent individually and if the petitioners refused to so join them, the High Court ought to dismiss the petition for non- joinder of necessary parties." 4.He also referred to a Division Bench ruling of this Court in T.R.Sukumaran V. State of Tamil Nadu (1978) 53 FJR 301, wherein it is observed as follows (at page 305): "We may also point out that the writ petitions are liable to be dismissed on a very narrow ground as well. The petitioners have not impleaded the respective employees or the representatives of the employees as parties to the writ https://hcservices.ecourts.gov.in/hcservices/ petitions. In the event of the petitioners succeeding in the writ petitions, the persons who will be really affected will be the employees and they have not been impleaded as parties and in their absence, no relief can be given to the petitioners herein we are referring to this as an additional ground for dismissing the writ petitions." 29.With regard to preliminary objections taken by the respondents that the petitioners have not impleaded the necessary parties and therefore, the writ petitions are liable to be dismissed in limine, there is force in the said contention in view of the Supreme Court ruling in Prabhodh Verma v. State of Uttar Pradesh (supra) referred to above, and the judgment of the Division Bench of this High Court in T.R.Sukumaran V. State of Tamil Nadu (supra). The ruling cited by learned counsel for the petitioner in State of H.P. v. Kailash Chand Mahajan (supra), is not applicable to the facts and circumstances of the case. On this ground also, the writ petitions are liable to be dismissed. However, since the writ petitions have been decided on the merits, the other writ petitions are also accordingly dismissed." The said judgment was subsequently confirmed by a Division Bench of this Court. 10.However, the learned counsel for the petitioner Mr.S.Ravindran, contended that the petitioner Society paid more amounts than what was fixed by the Minimum Wages Act. His argument was that when the Minimum Wages have fixed under Section 4(1) of the Minimum Wages Act, it does not postulate different minima for the several components, nor could each such minimum constitute the minimum rate of wages within Section 4(1). What is payable is wages, the totality of the component parts thereof. When a minimum rate of wages is prescribed as payable to an employee, what he is entitled to get is wages, the totality thereof at a rate not less than the minimum rate prescribed, the rate itself being unitary whatever its component parts under the permissive provisions of Section 4(1) of the Act. 11.The petitioner relied upon the judgment of this Court in MADRAS PORT TRUST VS. CLAIMS AUTHORITY reported in 1956 (II) LLJ 490 for this purpose. He also placed reliance upon the judgment of the Supreme Court in AIRFREIGHT LTD. VS. STATE OF KARNATAKA & OTHERS reported in 1999 (II) LLJ 705 and para 18 of the judgment reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "18.Other relevant clause (3) provides as under: "Wherever the prevailing rates of wages are higher, the higher rates of wages shall be continued to be paid". The aforesaid Notification specifically states that it has fixed the minimum wages of various classes of employees working in shops and commercial establishments in the State of Karnataka. The rates of minimum wages mentioned in the Notification were inclusive of the rates of dearness allowance as per the State Average Consumer Price Index 1960 added 100 which was payable over and above 700 points. So the Notification makes it clear that it has taken into consideration cost of living allowance which is mentioned as the dearness allowance till the date of the Notification and for the future increase, it linked with the rate of cost of living allowance. However, what is fixed by the State Government by the said Notification is the minimum "wages" which includes dearness allowance. Hence, from the aforesaid Notification itself, it can be stated that the contention of the learned Counsel for the Respondent employees is without any substance because the Notification fixes minimum wages which includes dearness allowance. Thereafter for taking care of future increase in cost of living, dearness allowance is to be paid as prescribed in the said Notification. However, if there is no question of paying dearness allowance and minimum wages would be paid as stated therein. For the purpose of illustration, we have mentioned group No.3 skilled worker where prescribed minimum wage is Rs.495.45 for Zone No.3. The said rate of minimum wage includes dearness allowance till the date of the Notification and is not bifurcated. To contend that by the said Notification, minimum wage is fixed into two parts, namely, basic wages and other dearness allowance, is without any basis as the total of both items constitutes the minimum wage which is required to be paid under the Notification. Further, as quoted above the Notification specifically saves the rights of the employees who are getting more than minimum wages from their employer by providing a clause that "wherever the prevailing rates of wages are higher, the higher rates of wages shall be continued to be paid". It does not provide that in such cases in https://hcservices.ecourts.gov.in/hcservices/ addition to "higher cases" payable by the employer, VDA should also be paid. It is, therefore, rightly submitted by the learned Counsel for the appellant that appellant falls in this category and as the company is paying higher rates of wages prescribed by the said Notification, there is no question of payment of wages plus V.D.A." 12.Therefore, his contention was that besides the Act not being applicable, the total wages paid by them is more than the minimum wages. Therefore, the authority has no jurisdiction to compute the same. They have also filed a statement showing that the basic pay, DA, HRA, CCA and medical allowance will exceed the minimum wages payable to the workmen as fixed by the authority. 13.With reference to the first objection with non- application of the Act is concerned, the Minimum Wages Act in the Schedule–1, the employment in printing press, "shops" and "commercial establishments" and cinemas were specifically included by G.O.Ms.No.201, Labour and Employment Department, dated 25.03.1974. Though the Act did not define the term shop or commercial establishment, the activities carried on by the petitioner in running a store and fair price shop it is only a shop. Failing which it is a commercial establishment. The term commercial establishment is defined under Section 2(3) of the Tamil Nadu Shops and Commercial Establishments Act, 1947. The Co- operative Societies are undoubtedly covered by the said definition. 14.The fact that Co-operative Societies are exempted by a Notification of the year 1979 is not absolute. On the contrary, the Notification applies to the provisions of Sections 31, 41, 43, 50 and 51 of the Co-operative Societies Act. The power to exempt the establishment under the Act in respect of Co-operative Societies was exercised under Section 6, which itself shows that it is a commercial establishment, without which no such exemption is necessary. The Supreme Court vide its judgment in STATE OF TAMIL NADU REPRESENTED BY SECRETARY, HOUSING DEPARTMENT, MADRAS VS. K.SABANAYAGAM AND ANOTHER reported in JT 1997 (9) SC 316 held that if an employer seeks exemption from the provisions of an Act that itself will indicate that the Act will apply. Therefore, the said objection must fail. 15.On the second question, they are paying more wages than the statutory minimum wages fixed also, cannot be accepted, because such a contention was not raised before the authority under the Act. They only relied upon the fact that they are paying wages as per the direction issued by the Registrar and that therefore, there is no necessity to pay the minimum wages and for which they have no power. If really the petitioner Society had more than the https://hcservices.ecourts.gov.in/hcservices/ minimum wages then this contention would not have been raised by them. In the absence of raising such contention and proving to the satisfaction of the authority, they are paying more wages than what was fixed. 16.This Court is not inclined to entertain such objection in this writ petition. It is suffice to state that the contentions raised first time before this Court by relying upon the judgment in Madras Port Trust case (cited supra) and Airfrieght Ltd., case (cited supra), need not be gone into this case. 17.In the light of the above, the writ petition is liable to be rejected both on the ground of non-joinder of parties and also on merits. Accordingly, the writ petition stands dismissed. No costs. TK Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Deputy Commissioner of Labour Salem Region Salem – 636 007. 2.The Assistant Inspector of Labour 3rd Circle, Salem – 1. + 1 cc to M/s. T. S. Gopalan & Co, Advocate SR No.7580 + 1 cc to Government Pleader, SR No.8142 KSK(CO) SR/15.2.2010 ORDER MADE IN W.P.NO.17073 OF 2000 https://hcservices.ecourts.gov.in/hcservices/