D C YADAV Vs. UNION OF INDIA

JUDGEMENT

(1.) RULE. Mrs. Vasavdatta Bhatt, Senior Central Government Standing Counsel appears and waives service of RULE on behalf of the respondent. RULE is fixed forthwith. At the request of the learned Advocates appearing on behalf of the respective parties the matter is taken up for final hearing and disposal today.

(2.) THE petitioner, a contractor, supplying labour to the ONGC has approached this Court under Articles 226 and 227 of the Constitution of India, challenging order dated 28.05.2010 passed by the respondent authority under the Minimum Wages Act, 1948, calling upon the petitioner to deposit total amount of Rs.15,21,812.16 for payment to the concerned employees as per annexure appended to the order with the authority. This Court (Coram : M.R. Shah, J.), on 30.09.2010 issued notice by making following observation : NOTICE, only for the purpose of quantum of penalty on condition that the petitioner shall deposit the entire amount towards the wages and 50% of the penalty with the appropriate authority and on further condition that the petitioner shall deposit a sum of Rs. 5,000/- towards cost of the respondent, making it returnable on 12/10/2010. Direct service is permitted. To be placed in the first board.

(3.) THE Court has heard the learned Advocates of the parties and perused the record. THE factum with regard to ONGC being principal employer was in fact brought to the notice of the concerned authority. THE authority appears to have prompted to act in passing the order on account of the stand taken by the present petitioner. As could be seen from the order impugned, wherein the authority has observed that the petitioner has contended that they were under duty to pay the wages as per instructions of the ONGC. THE ONGC as a principal employer is not under dispute nor is it a dispute that ONGC is paying a fixed rate to be paid to the daily wager employees employed through the present petitioner. THE petitioner has made averment in para 7 of the petition which has not been disputed by the respondent in any manner. This fact coupled with the provision of defining employer under the P.W. Act persuaded this Court for remanding the matter to the competent authority for passing appropriate orders on quantum of penalty to be levied. It is observed that the order is not quashed and set aside qua the responsibility of payment of minimum wages fastened upon the petitioner, but it is quashed qua the quantum of penalty which, in my view, was required to be assessed and imposed, after taking into consideration and naturally after recording its satisfaction that, there was a malafide intention on the part of the petitioner in depriving the employees in their legitimate wages. When the matter is required to be remanded only on the quantum of penalty, the petitioner would be at liberty to once again revive his application for joining ONGC as party and would be at liberty to make appropriate submissions in view of the liberty reserved hereinabove for bringing ONGC on record. If such an application is made, the competent authority is expected to pass reasoned order and shall also pass fresh order so far as quantum of penalty is concerned. THE Court reiterate at the cost of repetition that liability of the penalty of minimum wages is not affected so far the petitioner is concerned. THE petitioner has, in fact, unequivocally given up his right to challenge the assessment and payment of minimum wages payable under the law, however, with a liberty to take out appropriate proceedings for recovering the dues from the principal employer as admissible under law. With this observation, the petition is partly allowed. THE respondent is hereby called upon to afford an opportunity to the petitioner so far as the quantum of penalty is concerned, and is expected to pass appropriate order on the application to join ONGC as party. THE amount of Rs.1,90,428/- deposited in this Court is ordered to be deposited in any scheduled bank initially for a period of one year which shall be ultimately governed by the order that may be passed. Cost of Rs.5,000/- is refunded back to the petitioner. THE petitioner would be at liberty to approach this Court with appropriate application qua the amount so ordered to be deposited in the bank. In case the penalty is more than the amount so deposited then the appropriate order shall be passed at the relevant time and in case if it is less than the amount then the applicant shall naturally be entitled to request for refund out of the said amount. It is clarified that the amount deposited in this Court may be deposited in the Nationalised Bank which shall be ultimately governed by final out come of the claim which is the subject matter of this petition. THE petition is partly allowed. Rule made absolute. However, there shall be no order as to costs.