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Ziqitza Health Care Ltd. & Others v/s Rakesh Singh & Others

    W.A. Nos. 329 to 331, 338, 339, 355, 356, 367, 368 & 369 of 2020
    Decided On, 29 May 2020
    At, High Court of Madhya Pradesh
    For the Appellants: N.K. Gupta, Senior Counsel, B.S. Bais, Chitra Bais, Advocates. For the Respondents: M.P.S. Raghuvanshi, B.P. Singh, Sankalp Sharma, Advocates.

Judgment Text
1. All these ten Writ Appeals involving identical Question of Law and similar factual matrix have been heard together and are being adjudicated & decided by this common Order. The facts in WA. 329/2020 are being taken up for consideration.

2. This Intra-Court Appeal filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, assails the Final Order passed by the learned Single Judge while exercising supervisory jurisdiction under Article 227 of the Constitution of India dismissing the Petition in question by which challenge was made to Order dated 9.8.2018 by which an application preferred under Order 9, Rule 13, C.P.C. by the Appellant herein for setting aside ex parte Order passed on 31.10.2017 by the Authority under the Minimum Wages Act allowing application under Section 14 r/w Section 20 Minimum Wages Act ("MN Act" for brevity) preferred by Employee Respondent No.1 herein.

3. Learned Counsel for the rival parties are heard on the question of admission at length.

4. The first objection of learned Counsel for Respondents is as regards maintainability of this Writ Appeal in the face of statutory bar in Section 2(1) of 2005 Adhiniyam since the impugned Order of learned Single Bench is said to be passed under Article 227.

4.1. The issue qua the objection is no more res integra in view of Full Bench decision dated 6.7.2017 rendered in W.A. No.286/2017 Shailendra Kumar v. Divisional Forest Officer and another, where Bench of this Court comprising of three Hon'ble Judges were called upon to iron out the creases created by the divergent views on the question as to whether an award of the Labour Court passed under the Industrial Disputes Act when challenged in a Petition before the Single Judge of this Court should be treated as an order under Article 226 or 227 of Constitution? The Full Bench held thus:

"16. Therefore, we find that an order of the Labour Court or an Industrial Tribunal is amenable to the Writ of certiorari under Article 226 of the Constitution. In exercise of Writ of certiorari, the High Court demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior Tribunal. The Constitutional Bench Judgment of the Hon'ble Supreme Court reported as T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, held as under:

"7. The second essential feature of a Writ of certiorari is that the control which is exercised through it over judicial or Quasi-Judicial Tribunals or bodies is not in an Appellate but supervisory capacity. In granting a Writ of certiorari the superior Court does not exercise the powers of an Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior Tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person [Vide Per Lord Cairns in Walshall's Overseers v. London and North Western Railway Co., 1879 (4) AC 30, 39.]"

17. But issuance of the directions after setting aside an Order passed in exercise of powers conferred under Article 226, is only under Article 227 of the Constitution. Therefore, the Court exercises composite jurisdiction which will make intra Court Appeal maintainable. Thus the Order passed by the Division Bench in Superintendent, Rajmata Vijaya Raje Scindia Regional Agricultural Research Station, Ujjain's Case (Supra) does not lay down correct principal of law and is thus overruled.

18. We may clarify that the orders passed by the Judicial Courts, subordinate to a High Court even in Criminal matters when challenged in proceedings before the High Courts are only under Article 227 of the Constitution of India. Thus, no Intra-Court Appeal would be maintainable against an Order passed by the learned Single Judge in proceedings arising out of an Order passed by Judicial Courts, may be Civil or Criminal proceedings.“

5. Though the order assailed before the Single Bench is not an award but considering the fact that it was an order of an adjudicatory authority under one of the labour legislations, the ratio laid down by the Full Bench would squarely apply herein. The Full Bench has held that an order or award of the Labour Court or Industrial Tribunal is amenable to Writ of certiorari and as well as under Article 226. In this background if we consider the Petition filed by the Petitioner before the Writ Court, it is revealed that the same was though titled as a Petition under Article 227, but the relief sought was merely to quash the original order of the Authority under MN Act passed on 31.10.2017 and the subsequent Order dated 9.8.2018 of the same Authority without seeking any further direction. Therefore, the jurisdiction exercised by the learned Single Judge while deciding MP. 4952/2019 was under Article 226 seeking a Writ of certiorari. The question of jurisdiction under Article 227 of the Constitution could have arisen if certain other directions would have been sought by the Appellant/Petitioner in M.P. 4952/2019 apart from merely seeking quashment of the two orders of the Authority under MN Act. Since no such directions were sought in MP. 4952/2019 it becomes obvious that the MP was under Article 226.

5.1. In view of the above, the objection as regards maintainability stands rejected. The present Appeal, therefore, is maintainable and is heard to be decided on merits.

6. As regards merits, learned Counsel for the Appellants has placed heavy reliance on the decision of the Apex Court in Steel Authority of India Ltd. & anr. v. Jaggu & ors., 2020 (1) LLN 278 (SC): AIR 2019 SC 3601” (Para 33 and 34) to contend that the application filed by Respondent No.1/Employee under Section 20 before the Authority under MN Act was not maintainable since there was no dispute as regards rate of Wages/nonpayment of Minimum Wages. It is submitted that the grievance raised before the Authority by Respondent No.1/Employee was in fact that he was made to work for more than eight hours on certain number of days for which he was not paid and therefore, it is submitted that the dispute actually falls under the Payment of Wages Act and not under the Minimum Wages Act and thus to emphasize the distinction between the scope and ambit of the Minimum Wages Act and the Payment of Wages Act, the aforesaid decision of the Apex Court in Steel Authority of India Ltd. (supra) is pressed into service.

6.1. Bare perusal of the application under Section 20 filed by Respondent No.1/Employee before the Authority under MN Act reveals that the Employee was seeking over-time as contemplated in Section 14 of the MN Act for the hours and days for which he had worked longer than the Wage period detailed in his application. Section 14 of the MN Act relates to over-time and is reproduced in toto:

"14. Overtime.-(1) Where an Employee, whose minimum rates of Wages is fixed under this Act by the hour, by the day or by such a longer wage-period as may be prescribed, works on any day in excess of the number of hours constituting a normal working day, the Employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate Government for the time being in force whichever is higher.

(2) Nothing in this Act shall prejudice the operation of the provisions of section 59 of the Factories Act, 1948 (63 of 1948), 1[in any case where those provisions are applicable]"

6.2. An Employee who is not paid wages for the hours/days worked beyond the wage period can make a claim under Section 14 for over-time by preferring a Petition/application under Section 20 of the MN Act, which not only covers claims as defined in Section 13 but also in Section 14 of the MN Act. For ready reference and convenience, Section 20 of the MN Act, is reproduced below in toto:

"20. Claims.-(1) The appropriate Government may, by Notification in the Official Gazette, appoint 1[any Commissioner for Workmen's Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any] other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the Authority to hear and decide for any specified area all claims arising out of the payment of less than the minimum rates of wages 2[or in respect of the payment of remuneration for days of rest for work done on such days under Clause (b) or Clause (c) of sub-section (1) of Section 13 or of wages at the overtime rate under Section 14,] to Employees employed or paid in that area.

(2) Where an Employee has any claim of the nature referred to in sub-section (1)], the Employee himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, or any person acting with the permission of the Authority appointed under sub-section (1), may apply to such Authority for a direction under sub-section (3):

Provided that every such application shall be presented within six months from the date on which the Minimum Wages 4[or other amounts] became payable:

Provided further that any application 5[may be admitted after the said period of six months when the Applicant satisfies the Authority that he had sufficient cause for not making the application within such period.

(3) When any application under sub-section (2) is entertained the Authority shall hear the Applicant and the Employer, or give them an opportunity of being heard, and after such further inquiry, if any, as it may consider necessary, may, without prejudice to any other penalty to which the Employer may be liable under this Act, direct:

(i) in the case of a claim arising out of payment of less than the minimum rates of wages, the payment to the Employee of the amount by which the Minimum Wages payable to him exceed the amount actually paid, together with the payment of such Compensation as the Authority may think fit, not exceeding ten times the amount of such excess;

(ii) in any other case, the payment of the amount due to the Employee together with the payment of such Compensation as the Authority may think fit, not exceeding ten rupees; and the Authority may direct payment of such Compensation in cases where the excess or the amount due is paid by the Employer to the Employee before the disposal of the application.

(4) If the authority hearing any application under this section is satisfied that it was either malicious or vexatious, it may direct that a penalty not exceeding fifty rupees be paid to the Employer by the person presenting the application.

(5) Any amount directed to be paid under this section may be recovered:

(a) if the Authority is a Magistrate, by the Authority as if it were a fine imposed by the Authority as a Magistrate, or

(b) if the Authority is not a Magistrate, by any Magistrate, to whom the Authority makes application in this behalf, as if it were a fine imposed by such Magistrate.

(6) Every direction of the Authority under this section shall be final.

(7) Every Authority appointed under sub-section (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of Witnesses and compelling the production of documents, and every such Authority shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (5 of 1898)."

6.3. From the above, it is evident that Respondent No.1/Employee was in fact claiming over-time for the hours and periods worked beyond the 8 hrs of wage-period and thus his claim was squarely covered by Section 14. The filing of the petition under Section 20 for this kind of a claim before the Authority under MN Act, was well within the rights of Respondent No.1 and therefore the said application was filed before the right authority under the right Act i.e. MN Act.

6.4. In the decision of the Apex Court relied upon by the Petitioner in Steel Authority of India Ltd. (supra), the Apex Court, while interpreting the distinction between the scope and object of Payment of Wages Act and Minimum Wages Act, has categorically held in Para 33 after reproducing Sections 13, 14 & 20 of the MN Act, that the Minimum Wages Act primarily deals with Fixing of Rate of Minimum Wages, Over-time Rates, Rate for Payment for Work on a day of rest.

6.5. Thus, even the Apex Court in the verdict of Steel Authority of India Ltd. (supra) has held that the issue of claims regarding overtime fall within the ambit and scope of MN Act.

7. In view of the above discussion, what comes out loud and clear is that the said decision of the Apex Court does not support the case of the Petitioner and in fact clearly holds that the claim regarding over-time can be raised under the Minimum Wages Act.

8. The learned Single Judge while dismissing the Petiti

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on has not dealt with the said issue on the ground that the same was never raised by the Appellant before the Authority. Pertinently, the Appellant was proceeded ex parte since it did not turn up despite service of notice as per the record. This Court declines to go into the aspect of service/proper service/non-service of the notice to the Appellant since the same has been dealt with in detail by learned Single Judge by holding that the Appellant is guilty of playing hide and seek with the Authority under Minimum Wages Act since it appeared in certain cases of certain other similarly placed Employees filed for the same purpose before the same Authority, who was dealing with all similar cases including the instant one and yet the Appellant failed to appear in the present case which demonstrates that the Appellant knew about the fact of this case being dealt with by the Authority and yet voluntarily chose not to appear. This impelled the learned Single Judge to rightly attribute knowledge of the present case before the Authority. 9. This factual finding, in the considered opinion of this Court, does not deserve any interference as there is no perversity, illegality or rampant irregularity demonstrable. 10. In the conspectus of the above discussion, we are of the considered view that no interference is called for with the well-reasoned and detailed order of the learned Single Judge which accordingly is upheld. 11. Consequently, the Writ Appeals stand dismissed.