S.G. Seethalakshmi Proprietrix vs State of Karnataka and Others

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 21.10.2006 passed by the Labour Officer and Competent Authority under the Minimum Wages Act, Hubli Sub-Division-I, Hubli, impugned at Annexure-D to the petition.

The petitioner is an establishment registered under the provisions of the Karnataka Shops and Commercial Establishment Act. The second respondent is stated to have visited the shop of the petitioner on 01.02.2006 at 2 p.m. in the report prepared in that regard, the second respondent has stated that at the time of inspection, the third respondent who was a minor was employed in the petitioner''s establishment. On verification, it is stated to have been found that he was being paid only a sum of Rs. 950/- as against the minimum wage of Rs. 2421.40ps. fixed by the Government. In that view, the second respondent has initiated proceedings against the petitioner which has culminated in the impugned order dated 21.10.2006. By the said order, the Competent Authority has determined the difference of the minimum wages at Rs. 8828.40ps and a penalty of Rs. 44,142/- was levied and a total amount of Rs. 52,970.40ps was ordered to be paid. It is against the said order, the petitioner is before this Court.

The defence put forth by the petitioner before the authority and also contended herein is that 01.02.2006 was a Wednesday and the Establishment of the petitioner was closed on that day as it is a weekly holiday for the petitioner''s Establishment. In that view, the very inspection said to have been carried out is disputed and it is further contended that no such minor employee was working in their Establishment.

The Competent Authority on framing the issues for consideration has taken note of the evidence tendered by the second respondent and the documents relied on in that regard. The evidence tendered by the husband of the petitioner was also referred to.

In the light of the contention that has been put forth in the petition, a perusal of the order would indicate that though the Authority has marked the documents as exhibits, the consideration of the same has not been made in a detailed manner except to state that the documents produced would prove that the third respondent herein was working in the Establishment of the petitioner. In that light, it has been held that the respondents though has stated that the shop was closed on 01.02.2006, no material has been produced.

In a circumstance of the present nature, where the petitioner had seriously disputed that the inspection had been carried out and in that light, the documents at Exhs. P1 to P6 were relied upon, the details of the contents of the said exhibits was necessary to be stated while coming to a conclusion that the said documents would establish the fact that the third respondent herein was present on the said date. Further, in a circumstance where the Mahazar had been drawn and relied upon to prove the inspection which was disputed, in addition to the evidence of the second respondent, any witness to the said Mahazar was also required to be examined so as to establish that in fact the Establishment was open on the said day and during inspection, the third respondent was working there and the same had been recorded in the presence of any other independent person of the area when the very fact of the inspection was seriously disputed by the petitioner.

If these aspects of the matter are kept in view, in a normal circumstance, it would have been appropriate to set-aside the order dated 21.10.2006 and remit the matter to the Authority for reconsideration on tendering further evidence. However, it is to be noticed that in the instant case, though the third respondent was impleaded as a party to the instant petition, he had not chosen to appear at the first instance when the notice was ordered. Subsequently on 09.12.2003, this Court has recorded that fresh notice was issued and was served on respondent No. 3 twice. Despite the same, he has not chosen to appear. In a circumstance where the petitioner has been contending that he was not at all employed in her establishment, this aspect of the matter also would become relevant as no purpose would be served even if ultimately the Authority was to pass an order on remand.

Therefore, I am of the opinion that in the instant case the said course also need not be resorted to. Hence, for all the above stated reasons, the order dated 21.10.2006 is set-aside.

The petition stands disposed of in the above terms.