DUST BLOWERS Vs. REGIONAL LABOUR COMMISSIONER

JUDGEMENT

(1.) These writ petitions can be conveniently decided by this common judgment. For the sake of convenience the facts in Writ Petition No.749/2011 are being referred to.

(2.) According to the petitioner it is a proprietory concern which is registered under provisions of the Maharashtra Shops and Establishments Act, 1948. The said concern claims to be governed by the provisions of the Industrial Disputes Act, 1947 (for short, the Act of 1947) as well as the Minimum Wages Act, 1948 (for short, the Act of 1948). The petitioner is engaged in the business of providing services of housekeeping to its clients. On 26/12/2001 it was awarded a housekeeping contract by the respondent No.2-Housing Development Finance Corporation Ltd. (for short, HDFC) for a period of one year. As per the said contract the petitioner was required to depute its employees at the premises of respondent No.2 for undertaking the work of housekeeping. The contract was thereafter extended. On 25/06/2009 the Labour Enforcement Officer visited the premises of the respondent No.2 wherein the petitioner was providing housekeeping services. Pursuant to the said inspection a notice was issued to the petitioner on 08/07/2009 calling upon the petitioner to rectify various irregularities noticed during the inspection. It was stated that the establishment of the respondent No.2 constituted a scheduled employment under the Act of 1948 and the minimum rate of wages as fixed by the Government of India were payable to its employees. It was indicated that the employees were being paid lessor wages than the minimum rate of wages as fixed under the notification issued by the Government of India. The petitioner on 14/07/2009 gave a reply to the aforesaid notice and furnished various records/documents as demanded. The Labour Enforcement Officer thereafter issued another notice on 19/04/2010 seeking production of further documents. The Labour Enforcement Officer then moved an application before the Authority under the Act of 1948 since it was noticed that the employees of the petitioner were receiving less wages than the minimum wages stipulated. The application in question was preferred under Section 20 of the Act of 1948 seeking a direction that the difference in the amount of wages for the period from 01/10/2008 to 31/05/2009 be directed to be paid by the petitioner. The petitioner filed an application seeking dismissal of the proceedings on the ground the petitioner was paying minimum wages as per the Notifications issued by the State Government. It took the stand that the appropriate Government in so far as the petitioner was concerned was the State Government. Another objection was raised that the establishment where the inspection was carried out was not joined as a party and its presence was necessary. The Labour Commissioner and Authority under the Act of 1948 passed an order on 13/01/2011 in the said proceedings under Section 20. It was held that since the respondent No.2 carried out its functions by virtue of the provisions of the National Housing Bank Act, 1987 which was a Central Act, the Central Government was the appropriate Government. It was the liability of the employer to pay wages that were higher between the wages fixed by the Central Government and the State Government. Accordingly it was directed that the petitioner should pay amount of compensation equal to five times the difference of wages. Being aggrieved by that order the petitioner has challenged the same.

(3.) Shri A. J. Pathak, learned counsel for the petitioners submitted that the Authority under the Act of 1948 committed an error in holding that the appropriate Government in so far as the petitioner was concerned was the Central Government. He submitted that the petitioner was a proprietory concern providing housekeeping facilities. The establishment was registered under provisions of Maharashtra Shops and Establishments Act, 1948 and the appropriate Government for the petitioner was the State Government. The employees deployed at the respondent No.2-establishment were less than 20. Though the provisions of Contract Labour (Regulation and Abolition) Act, 1970 were applicable, the establishment was not required to obtain any licence under that Act. Since the petitioner-establishment was neither a controlled industry nor an establishment with regard to any scheduled employment carried on by or under the authority of the Central Government, the appropriate Government was the State Government. There was no reason for the said Authority to take into consideration the provisions of the National Housing Bank Act, 1987 or the Insurance Act 1938 or for that matter the provisions of the Insurance Regulatory and Development Authority Act, 1999 as said statutes had no relevance whatsoever. Even if it was assumed that the provisions of the said Central Acts were applicable to the establishment where the housekeeping contracts were being executed, it would not mean that in so far as the petitioner's establishment was concerned the appropriate Government was the Central Government. It was also submitted that it was the petitioner who was the employer and the services of its employees were transferable. It was likely that an employee who was discharging duties at the respondent No.2-establishment could be transferred at a place anywhere in the State. This could result in disparity in the wages structure of the employees working under the same employer. Since the establishment of the petitioner was not "under authority of the Central Government" the impugned order directing payment of difference in minimum wages was unsustainable. In support of his submissions the learned counsel relied upon decisions in Abdul Rehman Abdul Gafur and another vs. Mrs E. Paul and ors. AIR 1963 Bom 267, Indian Labour Organisation and ors. vs. D. H. Deshmukh, Presiding Officer, 6 th Labour Court, Bombay and ors. 1996 (2) CLR 630 and Steel Authority of India Ltd. And ors. vs. National Union Water Front Workers and ors. 2001(3) CLR 349 . Moreover, it was submitted that the respondent No.2 in each writ petition ought to have been impleaded as a party in the said proceedings before the Authority and in its absence the impugned order could not have been passed. It was thus submitted that the impugned orders were liable to be set aside.