1. This petition under Article 227 of the Constitution of India has been filed against the order dated 16-8-2018 passed by Authority, Minimum Wages Act, Gwalior in case No. 231/D/M.W.Act/17 (Misc) as well as against the order dated 2-11-2017 passed by Legal Under Authority, Minimum Wages Act/Labour Court No.1, Gwalior in case No. COC/118/D/M.W. Act/2017.
2. The necessary facts for the disposal of the present petition in short are that the respondent no.2 is a body created for providing better health services and assisting the State Authorities in expanding the reach of Medical Health Services in each and every part of the State. Several programmes are being run by the respondent no. 2 for the betterment of the health services.
3. The respondent no.2 also works in close relationship with different private bodies under the "Public Private Partnership" Scheme. Under this Scheme, 108 Ambulance Services, Janani Suraksha Vehicle and Deen Dayal Mobile Hospital are being run across the State of Madhya Pradesh. At present, these programmes are being run with an agreement with Petitioner. It is the case of the respondent no.2, that direct payment is made to Petitioners on per kilometer basis. It is claimed by the respondent no.2 that as per Clause 2.5(b) and 2.5(k) of the Notice Inviting Tender, all the responsibilities arising out of the employment offered by Petitioners for providing the services, is the responsibility of the Petitioners. As per the agreement, the respondent no.2 has no control or supervision of the services in any manner.
4. The respondent no.1, who claims himself to be an employee of Petitioner and was working as Ambulance Pilot (Driver) had filed an application under section 20(1) of Minimum Wages Act. It is alleged by the respondent no.1 that the Petitioner has taken 12 hours work from him and the payment of only 8 hours was done and for the rest of 4 hours, no payment was made. It was also the case of the respondent no.1 that even the payments were made with delay or some past payments are still pending.
5. The respondent no.2 entered appearance filed its written statement, however, the petitioners were proceeded exparte.
6. The Authority, Minimum Wages Act, Gwalior after recording evidence, allowed the application filed by the respondent No.1 by order dated 02/11/2017 and the said order has been put to challenge by the respondent no.2 by filing miscellaneous petition before this Court.
7. However, it is not out of place to mention here that near about 20 applications under section 20 of Minimum Wages Act, were filed by Drivers claiming overtime on the similar grounds. The notices were sent to the petitioners, at the Bhopal office of Petitioner no.1 and in some of the cases (COC/164/D/M.W. Act/2017), the petitioners appeared before the same Court, but did not appear in the present case, and accordingly, they were proceeded ex parte.
8. After the final order was passed, the petitioners filed an application for setting aside the ex parte order on the ground that the notices were not served on them.
9. The Court below after going through the record found that the notices were sought to be served at the Bhopal office of the petitioner through the process server, however, the notices were returned back with an endorsement that the Cluster Leader/Petitioner No.2, has refused to accept the same on the ground that he was not authorized to receive notice. Accordingly, the petitioners were treated as served due to refusal. However, it is also observed by the Court below that the notices should have been served by registered post, therefore, there appears to be an irregularity in the service of notice, but since, the petition filed by the respondent no.2 is pending before the High Court, therefore, the application was rejected.
10. Challenging the order passed by the Court below, it is submitted by the Counsel for the Petitioner, that the Court below itself has given a finding that there was an irregularity in service, therefore, the impugned final order should have been set aside.
11. The Counsel for the respondent no.2 has supported the submissions made by the Counsel for the Petitioners.
12. Heard the learned Counsel for the Parties.
13. It is not out of place to mention here that almost 20 identical applications under section 20 of Minimum Wages Act, were filed and the notices were sent at the Bhopal address of the Petitioners. In some of the cases, the petitioners had entered their appearance but did not file their written statement and also did not examine their witnesses. The filing of several similar applications has been admitted by the petitioner no.1 in the application for setting aside the exparte order. It is also mentioned that although the petitioner no.2 was served, but he did not inform the Petitioner no.1. It is also mentioned that The Minimum Wages (Madhya Pradesh Rules, 1958 have been framed and as per Rule 34, the notices were required to be served by registered post, but that was not done. The claim of the respondent no.1 was also challenged on merits in the application filed for setting aside exparte order.
14. In the present case, it appears that the petitioner no.1 has tried to twist the facts. In some of the cases, the Counsel for the petitioners was appearing before the same Court but the petitioner no.1 didnot explain as to why they did not appear in the present case. On the contrary, the petitioner no.1 has stated that only after the exparte order was passed, they instructed their Counsel Shri Kulshreshtha to verify and then the petitioner no.1 came to know that in various cases, exparte orders have been passed, but the application is completely silent about the fact that the petitioners had appeared before the Court below and had participated in some of the other proceedings by cross examining the witnesses. It appears that the petitioners were trying to play the game of hide and seek and were aware of the pendency of all the applications, but still did not appear before the Court below deliberately. So far as the refusal to receive the notice is concerned, the petitioners have not denied the said fact in the application. Even in the affidavit of Kamod Singh Yadav, the fact of refusal to receive the notice has not been disputed and it has been merely mentioned that the notice was not served in accordance with law.
15. Thus, this Court is of the considered opinion, that the although the notice was served at the Bhopal address of the petitioner no.1, but the same was refused and accordingly, the Court below had rightly treated the petitioner no.1 as served. So far as non-service of notice by registered post is concerned, in view of the refusal to receive the notice, the said defect can at the best be termed as an irregularity and not illegality.
16. Under these circumstances, this Court is of the considered opinion, that the Authority, Minimum Wages Act, Gwalior did not commit any mistake in rejecting the application filed by the petitioners for setting aside the final order. Further more, various writs were filed by the respondent no.2 against the awards passed by the Authority, Minimum Wages Act, and the same have been dismissed.
17. Thus, the order dated 16-8-2018 passed by Authority, Minimum Wages Act, Gwalior in case No. 231/D/M.W.Act/17 (Misc) is hereby affirmed on different grounds.
18. The Counsel for the petitioner has also argued on the merits of the case accordingly, the submissions on the merits of the case are also considered.
19. It is submitted that no overtime can be paid to the drivers of the Ambulance in the light of Section 13 of Motor Transport Workers Act as held by this Court in the case of Gursharan Singh Brijbhushan Singh v. Manager Rewa Transport Services, (1968) AIR M.P. 10. It is further submitted that the provisions of section 20(1) of Minimum Wages Act does not apply as there was no dispute with regard to the rates of Wages, therefore, the application filed by the respondent no.1 was not maintainable. To buttress his contentions, the Counsel for the petitioner has relied upon the judgments passed by the Supreme Court in the case of Town Municipal Council, Athani v. The Presiding Officer, Labour Courts, Hubli and others, (1969) 1 SCC 873, and the judgment passed by this Court in the case of Manganese Ore (India) Ltd., Nagpur v. Bisen Rajaram and others, (1978) JabLJ 411, judgment passed by Karnataka High Court in the case of Chief Warden, National Institute of Technology v. Labour Enforcement Officer (Central) and others, (2012) 135 FLR 897 and Chhattisgarh High Court in the case of Danteshwari Agencies v. Regional Lab. Commissioner (Central) Authority under Minimum Wages Act, 1948, Raipur, (2018) LabIC 1444.
20. The Supreme Court in the case of Town Municipal Council, Athani (Supra) has held as under :
We have mentioned these provisions of the Minimum Wages Act, because the language used at all stages in that Act leads to the clear inference that that Act is primarily concerned with fixing of rates - rates of minimum wages, overtime rates, rate for payment for work on a day of rest - and is not really intended to be an Act for enforcement of payment of wages for which provision is made in other laws, such as the Payment of Wages Act, 4 of 1936, and the Industrial Disputes Act 14 of 1947. In section 20(1) of the Minimum Wages Act also, provision is made for seeking remedy in respect of claims arising out of payment of less than the minimum rates of wages or in respect of payment of remuneration for days of rest or for work done on such days under clause (b) or clause (c) of subsection (1) of Section 13 or of wages at the overtime rate under Section 14. This language used in Section 20(1) shows that the Authority appointed under that provision of law is to exercise jurisdiction for deciding claims which relate to rates of wages, rates for payment of work done on days of rest and overtime rates. If there be no dispute as to rates between the employer and the employees, Section 20(1) would not be attracted. The purpose of Section 20(1) seems to be to ensure that the rates prescribed under the Minimum Wages Act are complied with by the employer in making payments and, if any attempt is made to make payments at lower rates, the workmen are given the right to invoke the aid of the Authority appointed under Section 20(1). In cases where there is no dispute as to rates of wages, and the only question is whether a particular payment at the agreed rate in respect of minimum wages, overtime or work on off-days is due to a workman or not, the appropriate remedy is provided in the Payment of Wages Act. If the payment is withheld beyond the time permitted by the Payment of Wages Act even on the ground that the amount claimed by the workman is not due, or if the amount claimed by the workman is not paid on the ground that deductions are to be made by the employer, the employee can seek his remedy by an application under section 15(1) of the Payment of Wages Act. In cases where section 15 of the Payment of Wages Act may not provide adequate remedy, the remedy can be sought either under Section 33-C of the Act or by raising an industrial dispute under the Act and having it decided under the various provisions of that Act. In these circumstances, we are unable to accept the submission made by Mr Sen on behalf of the appellant that section 20(1) of the Minimum Wages Act should be interpreted as intended to cover all claims in respect of minimum wages or overtime payment or payment for days of rest even though there may be no dispute as to the rates at which those payments are to be claimed. It is true that, under Section 20(3), power is given to the Authority dealing with an application under Section 20(1) to direct payment of the actual amount found due; but this, it appears to us, is only an incidental power granted to that Authority, so that the directions made by the Authority under Section 20(1) may be effectively carried out and there may not be unnecessary multiplicity of proceedings. The power to make orders for payment of actual amount due to an employee under Section 20(3) cannot, therefore, be interpreted as indicating that the jurisdiction to the Authority under Section 20(1) has been given for the purpose of enforcement of payment of amounts and not for the purpose of ensuring compliance by the employer with the various rates fixed under that Act. This interpretation; in our opinion, also harmonises the provisions of the Minimum Wages Act with the provisions of the payment of Wages Act which was already in existence when the Minimum Wages Act was passed. In the present appeals, therefore, we have to see whether the claims which were made by the workmen in the various applications under Section 33-C(2) of the Act were of such a nature that they could have been brought before the Authority under section 20(1) of the Minimum Wages Act inasmuch as they raised disputes relating to the rates for payment of overtime and for work done on weekly off-days.
21. Thus, it is clear that if there is no dispute as to rates between the employer and the employees, section 20(1) of Minimum Wages Act would not be attracted because the purpose of section 20(1) of Minimum Wages Act is to ensure that the rates prescribed under the Minimum Wages Act are complied with by the employer in making payments and if any attempt is made to make payments at lower rates, the workmen can approach the Authority under section 20(1) of Minimum Wages Act. In the present case, it is not the case of the petitioner that there was no dispute with regard to rates between the employer and the employee. In fact the Petitioners who had employed the respondent no.1 did not appear before the Authority, Minimum Wages Act, and it was proceeded ex parte. In fact, the petitioners had not pleaded before the Authority, that there was no dispute with regards to the rates of overtime. Thus, in fact, the disputed question of fact with regard to the rates of wages for overtime was never raised by the petitioner before the Authority, Minimum Wages Act, and therefore, this disputed question of fact, cannot be raised for the first time, before this Court. Accordingly, this Court is of the considered opinion that the proposition of law laid down by the Supreme Court in the case of Town Municipal Council, Athani (Supra) does not apply to the facts of the case because of lack of necessary pleadings before the Authority, Minimum Wages Act.
22. It is next contended by the Counsel for the petitioner, that the respondent no.1 is not entitled for overtime in the light of the judgment passed by this Court in the case of Gursharan Singh Brijbhushan Singh (Supra).
23. The submission made by the Counsel for the petitioner is misconceived and is hereby rejected.
24. Section 38 of Motor Transport Workers Act, 1961 reads as under :
38. Exemptions. - (1) Nothing contained in this Act shall apply to or in rel
Please Login To View The Full Judgment!
ation to any transport vehicle- (i) used for the transport of sick or injured persons; (ii) used for any purpose connected with the security of India, or the security of a State, or the maintenance of public order. (2) Without prejudice to the provisions of subsection (1), the State Government may, by notification in the Official Gazette, direct that subject to such conditions and restrictions, if any, as may be specified in the notification, the provisions of this Act or the rules made thereunder shall not apply to- (i) any motor transport workers who, in the opinion of the State Government, hold positions of supervision or management in any motor transport undertaking; (ii) any part-time motor transport worker, and (iii) any class of employers: Provided that before issuing any order under this sub-section, the State Government shall send a copy thereof to the Central Government. 25. The respondent no.1 is the driver of 108 Ambulance which is used for transport of sick or injured person. Therefore, in view of exemption clause, it is held that the provisions of Motor Transport Workers Act, 1961 have no application to the facts of the case. 26. No other argument is advanced by the Counsel for the Petitioners. 27. Resultantly, the order dated 16-8-2018 passed by Authority, Minimum Wages Act, Gwalior in case No. 231/D/M.W.Act/17 (Misc) as well as against the order dated 2-11-2017 passed by Legal Under Authority, Minimum Wages Act/Labour Court No.1, Gwalior in case No. COC/118/D/M.W. Act/2017 7 are hereby affirmed. 28. The petition fails and is hereby Dismissed.