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State Of U.P. v. Prescribed Authority under Minimum Wages Act & Others - WRIT - A No. 11321 of 1988  RD-AH 1082 (7 October 2004)
Civil Misc. Writ Petition No.11321 of 1988
State of U.P. through Chief Engineer, Meerut Vs. Prescribed
Authority under Minimum Wages Act and others
Hon'ble V.C. Misra, J.
Heard Sri R.K. Awasthi, Advocate, learned counsel for the petitioner and Sri Rajeshji Verma, Senior Advocate assisted by Sri S.P. Lal, Advocate on behalf of the respondents.
1. This writ petition has been filed challenging the order dated 28.3.1988 passed by the respondent no.1, annexure-E to the writ petition by which the concerned 9 workmen shall be paid the dearness allowance for the period 1.10.1986 to 31.1.1987 and balance wages at the rate of Rs.748/-.
2. The facts of the case in brief are that the respondent nos.2 to 10 who were engaged for the unit of Tube-well of the petitioner on part-time basis but they had to work for more than the period they had been engaged for, at par with the full time tube-well operators but they were not paid wages at par with them, on the basis of ''equal pay for equal work'. They moved the labour Court, Aligarh challenging the wrong full action on the part of the petitioner. The respondent no.1 after hearing the representations of the parties arrived at a finding that the nature of the work and the duties of the concerned workmen would not be treated as part time only. Since, they had to work for about 6 hours a day and, therefore, they were entitled for the minimum wages, which were being paid to the full time workers. The petitioners being aggrieved by the impugned order filed this writ petition.
3. Counter and rejoinder affidavits have been exchanged between the parties. Learned standing counsel for the petitioner in support of the case, has raised 2 grounds inter alia and he has referred to Section 20 (2) of the Minimum Wages Act, 1948, on the point firstly, that the respondent no.1 had no authority or jurisdiction to decide the issue, as to whether the respondents 2 to 10 were full-time workers or part-time tube-well operators. In this regard, he has relied upon a decision in the case of Commissioner, Thirukkazhukundram Panchayat Union Vs. Authority appointed under the Minimum Wages Act and others reported in 2003 Labour Industrial Case 3954, secondly, that the application as per Form No.VII of the Rules under 29 of the U.P. Minimum Wages Rules is not maintainable. He has also referred to Rule 24 (1) and Section 20 (2) of the Act wherein 9 hours a day constitute a normal working day, therefore, the impugned order is wrong, bad and illegal and liable to be quashed.
4. Learned counsel for the respondents has submitted that the petitioner has nowhere raised the point of authorization given in favour of Union to act on behalf the workman at any stage and specifically in the writ petition there is not any whisper of it and, therefore, this issue cannot be pressed. Sri Rajeshji Verma in support of his case, has placed reliance an order of Hon'ble Supreme Court passed on inter-locutory application in Special Leave Petition No.108753 of 1994 connected with Writ Petition (C) No.522 of 1993 and other connected petitions in which it has been observed that the Court came to the conclusion that the duties, qualifications and hours of working of the part time tube-well operators and the regularly working tube-well operators were identical on the basis of the principles of ''equal pay for equal work', the labour Court is directed that the part time tube-well operators be paid the same salary (prospectively) as was being drawn by the regular tube-well operators. Learned counsel has also placed reliance on para-4 of the rejoinder affidavit wherein the petitioners have admitted that the respondents-tube well operators were required to be resident of the area of that particular area, which comes within the tube well circle, and this had been done with a view that whenever they are needed they can immediately be summoned and agriculturists do not suffer on account of their absence which goes to prove that the respondent nos.2 to 4 tube well operators were required to be available on duty around the clock and as and when required.
The petitioner had engaged the respondent nos.2 to 10 though on party time basis but they actually took the work for more than the period shown to have been engaged and were to be available regularly for work on call, and therefore, the respondents are entitled for payment of wages at par with the regular tube-well operators.
5. Learned standing counsel has objected to the imposition of the penalty of Rs.30/- to be paid to each respondents-workmen, tube well operators since the respondent no.1 had not arrived at a finding that he was satisfied that the employees were not paid the minimum wages by the petitioner due to malicious or vexatious act on its part as per Section 20 (4) of the said Act, it is only when the prescribed authority comes to such conclusion it could impose a penalty not more than Rs.50/-.
6. I have looked into the record of the case and find that the respondent no.1 after through examination and critical scrutiny of the pleadings and material on record and the relevant evidence has arrived at a well-reasoned order dated 28.3.1988 annexure-E to the writ petition on the basis of findings of fact. The petitioner has not been able to demonstrate before this Court that the findings of fact recorded in the order suffers from any illegality or perversity or error apparent on the face of the record. More so, the said findings of fact arrived at by the respondent no.1 on the basis of which the impugned order has been passed, are not open to challenge before this Court while exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India, I do not find that any illegality has been committed by the respondent no.1 in passing the impugned order dated 28.3.1988 annexure-E to the writ petition. However, the respondents 2 to 10 shall not be entitled to be paid penalty of Rs.30/- as imposed by the respondent no.1.
7. In view of the above said facts and circumstances of the case, and observations made hereinbefore, the writ petition is dismissed. The interim stay order dated 18.8.1988 modified subsequently vide order dated 18.12.1989 stands vacated. No order as to costs.
October 7, 2004
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