ROHA DYCHEM LTD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner a Public Limited Company, engaged in the business of manufacturing of food colours, has a factory at Roha industrial Estate. By the present petition the petitioners seek to challenge demand made by letter dated 29th February, 2000 by respondent No. 4, for a sum of rs. 78,086. 74 paise and recover the same as land revenue. This was pursuant to the letter issued by respondent No. 2 dated 27th January, 1998. The respondent no. 2 is the Grocery Markets and Shops Board constituted under the provisions of the Maharashtra Mathadi, Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969, which hereinafter shall be referred to as the mathadi Act. The petitioners were registered with the respondent No. 2 Board on 1st July, 1994. The Mathadi Act was extended to the area where the petitioners have their factory as on 26th December, 1979. The petitioners are engaging mathadi workers for the purpose of the Act under the scheme framed under the mathadi Act. According to the petitioners they have entered into settlements with the Union representing the Mathadi workers, and as such the workmen are entitled only to the amounts to be paid on piece rate basis as set out in Clause 5 of the Settlement of June, 1994. Another settlement came to be entered into on 6th February, 1996. Though the settlement was between the Union and the petitioners the respondent board had intervened. One of the issues was payment of Dearness Allowance and that was covered by clause 6 (A) which reads as under :-

(2.) The petitioners have challenged the demand for recovery of dues as arrears of land revenue on the following grounds :-

(3.) The petition has been opposed by the respondent No. 2. It has been stated that the petitioners are depriving the Mathadi workers the right to receive dearness Allowance which is received by all industrial workers on the basis of consumer Price Index and which is being paid for almost 30 years by all the employers to Mathadi workers registered under the Mathadi Act, apart from wages and other service benefits. The Mathadi Act, it is stated, was enacted to prohibit exploitation of the mathadi workers by the employers/contractors who used to bargain with the rates of wages with the individual Mathadi workers or their leaders for getting their work done and without offering them any other benefit including dearness allowance. The respondent board was constituted under section 6 of the Mathadi Act by respondent No. 1 for effective implementation of the provisions of the Mathadi Act. A scheme has been framed under the Act which is applicable to the Mathadi workers. The Board consists of equal number of representative of registered employers of Mathadi workers as well as representatives nominated by the State of Maharashtra. Right from the constitution of the Board, the registered employers were expected to calculate the amount of wages on the basis of rate fixed by respondent No. 2 board and to be deposited with the Board along with levy fixed by the respondent No. 2 Board. The rates of wages so fixed do not include Dearness Allowance and since 1970 the Dearness Allowance to be paid to Mathadi workers used to be fixed in the month of November of every year after taking into consideration the Consumer price Index showing the rate of inflation in the market. The Board every november, at its meeting considering the Consumer Index figure, fixes the increase of Dearness Allowance. Under Clause 33 of the Scheme the Board is empowered to pass resolution and accordingly it has been so doing. The component of Dearness Allowance cannot be decided by entering into a settlement as it has been fixed by the Board. Clause 33 of the Scheme vests power in the Board to fix the rate of wages and other benefits payable to Mathadi workers. The payment of Dearness Allowance on the basis of Consumer Price index, it is submitted is a statutory payment over and above the rise in the rate of wages agreed to be paid. As the petitioners are not paying Dearness allowance the board is left with no other alternative but to recover the amount under section 13 of the Mathadi Act. An additional affidavit came to be filed on 21st July, 2002 in answer to an affidavit filed on behalf of the petitioners. It is pointed out that under the Mathadi act there are about 22 Boards functioning throughout the State of Maharashtra and there are around 2. 00 lakh Mathadi workers registered with them. In Mumbai alone there are 50,000 Mathadi workers registered under nine Boards. The grocery Markets and Shops Board is one such Board and has around 15,000 mathadi workers registered under the Districts of Mumbai, Raigad and Thane. There are about 5000 employees registered with the respondent No. 2 Board in the Districts of Mumbai, Raigad and Thane. The petitioner is one of them. Insofar as the wage rates are concerned payable to the Mathadi workers by the employers the wage rates prevailing at that time the employer registered with the board is maintained. The Board on the said wage rate levies a charge of 41%. Apart from this the employer is required to pay Dearness Allowance as fixed by the Board over and above the wage rate prospectively. The petitioner company has not paid the Dearness Allowance on the ground that they have entered into agreements/settlements with the Union representing the Mathadi Workers. Some of the Notifications issued in the year 1979, 1989 and 1995 and resolutions passed have been annexed. Another affidavit came to be filed on 22nd March, 2002 on behalf of the board. It is explained that though the Mathadi Workers employed with the petitioners may be drawing wages more than the minimum wage, the Mathadi workers employed with the petitioners will be drawing lesser wages than other industries as they are deprived of the benefits of Dearness Allowance fixed by the Board. To the contention of the petitioners, that Dearness Allowance is payable to only establishment who made the payment towards wages and D. A. fixed by the Board, the same is categorically denied. Pursuant to the direction issued by this Court at the time of hearing an additional affidavit has been filed on 18th January, 2007. Reference is made to what has been set out in the affidavit of Mr. Pol on behalf of the Board that after registration over and above the existing wage rate the Board levies charges on wage rate which at the relevant time was 41%. Apart from that the employee is required to pay Dearness Allowance as fixed by the Board. The rates fixed between the petitioners and the Mathadi Workers at the time of registration are accepted by the Board as basic rates of wages.