The Secretary, Agricultural Produce Market Committee vs Labour Officer and Competent Authority Under Minimum Wages Act, 1948 and B. Keshwa

Aravind Kumar

Secretary of APMC, Mangalore is seeking quashing of the order dated 21.11.2011 passed by Labour Officer and competent authority Sub-Division -1, Mangalore in MWA:CR-31/2008, Annexure-A.

Heard Sri. Sangamesh, learned counsel appearing for petitioner and learned Government Advocate appearing for respondents 1 and 2. Perused the impugned order.

Petitioner is a market committee constituted under the provisions of Karnataka Agricultural Produce Marketing (Regulations) Act and Rules, 1966 and had invited tender during February, 2008 from registered security agencies to employ watchman and also drive its Light Motor Vehicles in its premises. Third respondent Sri. B. Keshwa, Proprietor of Supreme Security Services was highest bidder of the contract and was awarded the contract. An agreement came to be entered into between third respondent and petitioner on 27.03.2008 which is at Annexure-B. First respondent initiated proceedings on the basis of the claim made by the employees who claimed arrears of wages contending that they were paid less than the minimum wages. On registering the claim petition, notice was ordered to respondents namely, the petitioner herein and third respondent. Though notices were served, petitioner herein remained absent and as such was placed exparte. Third respondent herein contested the matter before the Authority by filing detailed statement of objections and on adjudication of the said claims made by the employees and after recording of evidence and marking of documents, competent authority by order dated 21.11.2011 allowed the claim petitions and ordered that petitioner and third respondent herein are jointly and severally liable to pay the difference of wages of Rs. 33,535.18 and further ordered them to pay compensation of Rs. 33,535.18 in total a sum of Rs. 67,070.36 within 60 days from the date of order. It is this order which is impugned in the present writ petition. The prime contention raised by learned counsel for petitioner is that no opportunity was granted and there is violation of principles of natural justice and there was no relationship of ''employer'' and employee'' between the petitioner and the employees provided by third respondent to work in the premises of petitioner since under the contract, Annexure ''B'' petitioner is not liable and as such claim petition itself is not maintainable. Learned Government Advocate supports the impugned order.

Having heard the learned advocates for the parties and on perusal of the impugned order and as also grounds urged by learned counsel for petitioner, it is noticed that on registering the claim petitions, notices have been issued to the parties i.e., petitioner and third respondent herein. Having received the said notices from the competent authority, petitioner herein has sent a reply on 07.01.2009 stating that the secretary of APMC, Mangalore is proceeding on official duty to Bangalore and is unable to attend the proceedings on the date fixed and sought for adjournment. Accordingly competent authority adjourned the matter to 20.04.2009 to enable the petitioner to appear on the said date i.e., 20.04.2009. Thereafter also authority has issued notice and in reply another adjournment was sought for by the petitioner. Thereafter matter has been adjourned to 18.05.2009, 08.06.2009, 22.06.2009, 29.06.2009 on which dates the petitioner has not appeared inspite of service of summons. Hence, left with no other option, competent authority has rightly proceeded to hold service of notice on petitioner herein as sufficient and had placed exparte. In view of the said factual matrix, the contention of the learned counsel for petitioner that there was lack of opportunity to appear and contest before the authority lacks merit and said contention is contrary to facts. Hence said contention is hereby rejected.

In so far as second contention namely that there was no relationship of employer and employee between the petitioner and claimants/workmen employed by the third respondent herein when seen in the background of definition of employer as defined under Minimum Wages Act, 1948 in Section 2(e) read with section 21(4) of Contract, Labour (Regulations and Abolition) Act, 1970. Same also does not merit consideration. These two definitions read as under:

2(e) "employer" means any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one ore more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, and includes, except in sub-section (3) of section 26,-

(i) in a factory where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person named under clause (f) of sub-section (1) of section 7 of the Factories Act. 1948 (63 of 1948), as manager of the factory:

(ii) in any scheduled employment under the control of any Government in India in respect of which minimum rates of wages have been fixed under this Act, the person or authority appointed by such Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department:

(iii) in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed under this Act, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority:

(iv) in any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, any person responsible to the owner for the supervision and control of the employees or for the payment of wages;

Section 21(4) - Responsibility for payment of wages:-

In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.

Though agreement has been entered into on 27.03.2008 as per Annexure-B between petitioner and third respondent, it does not absolve the petitioner of its statutory liability in as much as petitioner being principal employer is jointly and severally liable to answer the claim and as such it cannot be absolved of its liability. A perusal of the impugned order would go to show that liability is fastened jointly and severally on the petitioner as well as third respondent and as such the contract, Annexure-B dated 27.03.2008 entered into between the petitioner and third respondent recedes to background in view of statutory liability on the petitioner. As such there is no merit in the petition. Same stands dismissed.

Sri. Jagadeesh Mundaragi, Government Advocate is permitted to file memo of appearance within a period of four weeks from today.