Brij Kishore Tewari vs J.B. Iron and Steel Industries and Others

D.K. Seth, J.—The Petitioner was working as head clerk in the office of J. B. Iron and Steel Industries since 1966. The said industries had two parts, one part consisted of the factory and workshop and the other part consisted of the office. Both these parts were separate and distinct. Despite request, the Respondent No. 1 did not pay minimum wages according to the regulations applicable in his case. Therefore, the payment of wages less than the minimum wages are deductions within the meaning of Payment of Wages Act, not excepted. Therefore, he made an application u/s 15 before the prescribed authority under the Payment of Wages Act alleging deduction of wages from January, 1978 to November, 1978 amounting to Rs. 1,932. This was registered as P.W. Case No. 159 of 1978. It was alleged by the Petitioner that the said minimum wages is payable according to U.P. Shops and Commercial Establishment Act, 1962, as applicable in the case of Respondent No. 1, inasmuch as the Respondent No. 1 is a commercial establishment within the meaning of Section 2(4) of the said Act. By Government order dated 14.8.1972, the minimum wages of the technical staff, was fixed. The same was revised by the Government order dated 25.9.1977 but the wages of the clerical staff of the factory were not fixed. The Petitioner on 4.2.1978 addressed a letter to the Government on that account. The said letter was replied on 16.8.1978 by the Government. Therein it was clarified that minimum wages of clerical staff was not considered necessary to be fixed because the clerical staff will be governed by Section 2 (4) of the Shops and Commercial Establishment Act. Despite such clarification, the Petitioner having not been paid minimum wages even on demand, he had made the said application. By order dated 10.9.1979 which is Annexure 11 to the writ petition, the Petitioners'' application was allowed. The Respondents then preferred an appeal being Appeal No. 359 of 1979 before the learned Ist Additional District Judge, Kanpur against the said order dated 10.9.1979 u/s 17 of the said Act. By an order dated 30.9.1989, the learned District Judge, allowed the appeal, which is Annexure 12 to the writ petition, reversing the order of the prescribed authority. It is against this order the present writ petition has been moved.

Sri Arun Kumar Gupta, learned Counsel for the Petitioner assails the said order on the ground that the learned Additional District Judge had not addressed itself to the question as to whether the Petitioner was working in the commercial establishment and entitled to the minimum wages as prescribed. The revisional Court, on the other hand, has committed manifest error in holding that the claim of the Petitioner does not fall within the ambit of deduction but that of entitlement. According to him, though the establishment is within the same precincts but the same is not connected with the manufacturing process and, therefore, the same is not part of the factory. The prescribed authority, having held on facts that the establishment is not a part of the factory, the same could not have been interfered with by the appellate authority. According to him, by reasons of the Government order, the Petitioner being entitled to the rate of wages under the Minimum Wages Act, non-payment thereof amounts to deduction, within the meaning of Payment of Wages Act. He relies on various decisions in support of his contention, to which I shall refer at appropriate time.

The learned Counsel, appearing on behalf of the Respondent No. 1, on the other hand, contends that the Petitioner is employed in the factory/workshop and the work carried by him is connected with the manufacturing process and is ancillary with the same. It is an office of the factory itself and not a commercial establishment and it has been so recognised under the Factories Act and it has never been registered under the Shops and Commercial Establishment Act. It does not fit in the definition of shops and establishment as given in Section 2 (4) of the said Act. He further contends that since he is a worker of the factory, he Is allowed the benefit of Employees Estate Insurance Scheme, which is not available to an employee of shop or establishment. According to him, in case he is not paid minimum wages, his remedy lies in an application u/s 20 of the Minimum Wages Act. The non-payment of minimum wages does not amount to deduction.

After having heard the learned Counsel for the parties at length, the simple question, as appears to me and calls for decision, is as to whether, in the facts and circumstances of the case, non-payment of minimum wages Is a deduction within meaning of Payment of Wages Act, which can be recovered u/s 15 of the said Act. It is the case of the Petitioner and as has been held by both the authorities, it is apparent that despite demand, the Petitioner has not been paid minimum wages inspite of the letter of the State Government as contained in Annexure 3 to the writ petition, clarifying the position. The Petitioner had himself written to the State Government that minimum wages has not been fixed in respect of the clerical staff of the factory though the technical staff of the factory have been so provided. Therefore, entitlement of minimum wages was also in doubt. The clarification by the Government is not a Government order by which the minimum wages of the clerical staff has been fixed. On the other hand, the clarification appears to be vague. Inasmuch as the State Government had pointed out that it was not considered necessary to fix the minimum wages for clerical staff because they are governed u/s 2 (4) of the Shops and Commercial Establishment Act. The same is the opinion of the State Government. Even assuming that the Petitioner is entitled to minimum wages, then it is to be proved that minimum wages has been fixed by the Government order in respect of class of workers in (he area concerned. Admittedly, the Petitioner has been paid wages, according to the terms of employment. There has been no allegation of deduction from the wages payable to him, according to the terms of his employment. On the other hand, the Petitioner claims that he is entitled to minimum wages payable to the employees of shops and establishment and, therefore, non-payment thereof amounts to deduction. Withholding of payment also amounts to deduction. But when payment is admittedly being paid according to the terms of employment, there cannot be any question of withholding of payment of wages, according to the terms of employment. If it is claimed that the wages paid to him, according to the terms of employment, is less than minimum wages and that he is entitled to minimum wages, which is also disputed by the employer, then it is a question of entitlement and not a question of deduction which can be adjudicated upon u/s 15 of the Payment of Wages Act. The remedy in such a situation is provided u/s 20 of the Minimum Wages Act where minimum wages has not been paid, can be recovered, according to the procedure contemplated therein. In case the minimum wages is not paid, then the remedy is under the Minimum Wages Act. When the remedy is provided for a particular right or relief operating in the field, in that event the same would prevail upon the other provision operating in a field different. In the facts and circumstances of the case, there is no doubt that the present case is a question of entitlement within meaning of Section 20 of the Minimum Wages Act and not a case of deduction within the meaning of Section 15 of Payment of Wages Act.

Therefore, the finding to the above extent by the learned Additional District Judge, cannot be said to be erroneous. Now there is no sufficient material to hold as to whether the Petitioner is governed under the Shops and Commercial Establishment Act or is a worker within meaning of the Factories Act. This question also is not required to be gone into, in view of the above findings, which in itself is sufficient for setting aside the order of the prescribed authority. Therefore, the net result is that the order passed by the appellate authority cannot be interfered with.

The other finding of the prescribed authority or the appellate authority would be of no avail. Since the said finding has been given by the authority before which the claim could not have been lodged. In case the Petitioner so chooses and he applies u/s 20 of the Minimum Wages Act, provided he is so eligible under law, in that event the question may be gone into on the basis of material, that might be produced before the appropriate authorities. In that view of the matter, it is not necessary to refer to the other contentions and citation all of which are not relevant for the present purpose.

The decision in the case of R.A. Jaleshwar v. Bombay Gas Company Limited 1961 LLJ 38, deals with the question as to whether the worker employed is connected with the manufacturing process or not, is a question. I have left open. The decision in the case of Ambica Mills Company Ltd. v. S.B. Bhatt and Ors. 1961 (1) LLJ 1, also does not help Sri Gupta, since in the said case in order to ascertain deduction, it was held as to whether deduction is by way of delayed payment or withholding of payment, to be decided on the basis of terms of employment and as to whether lock-out declared was legal or illegal. But in the present case, it was not contended that the wages according to terms of employment is not being paid. On the other hand, it is being claimed that he is entitled to minimum wages, which fact is also in dispute, rendering the same to be the question for determination of entitlement. Therefore, in the facts and circumstances of the present case, the case cited is distinguishable. The decision in the case of State of Kerala v. Mulloth 1961 LLJ 184, does not help Sri Gupta, inasmuch as there it was held that the school run inside the factory was not part of the factory because it did not carry out any manufacturing process and running of the school had neither any connection nor the same is ancillary to the manufacturing process. Since the same question is kept open here, therefore, the decision cited above does not apply.

In that view of the matter, I am not inclined to interfere with the impugned order of the learned Additional District Judge in appeal No. 359 of 1979 reversing the order dated 10.9.1979 passed in P.W. Case No. 159 of 1978. This order, however, will not prevent the Petitioner from his espousing his cause, if he is so eligible and is so advised, under the provisions of Minimum Wages Act before the appropriate authority unless barred by any law, in which the question raised but not dealt with in this judgment shall remain open.

In the result the writ petition fails and is accordingly dismissed, subject to the above observations.

There will be, however, no order as to costs.