Per J. B. Koshy, J.

Petitioners in these Original Petitions challenge Ext. P1 notification fixing minimum wages for "artists in photo studios" and also "photographers" under S. 3 of the Minimum Wages Act. Two contentions are pressed before us. The first contention is that under entry 21 only shops and establishments are notified and under Entry. 21 Government can fix the minimum wages with regard to employees employed in shops and establishments including hotels and restaurants. Petitioners contention is that since nothing is sold in their establishment through counter, it cannot be called as 'shop'. Shop is not defined in the Minimum Wages Act. As per the definition of 'shop' under the Shops and Commercial Establishments Act, 1960 the premises wherein any services are rendered to customers or where any trade or business is carried on comes within the definition of "shop". The petitioners are rendering service. In the absence of definition to 'shop' under the Employees State Insurance Act, the Supreme Court held that establishments rendering service also can be called as a "shop". (See M/s. Cochin Shipping Co. v. E.S.I. Corpn. (AIR 1993 SC 252, 1992 (65) F.L.R. 676. Therefore, we are unable to accept the contention of the petitioners in this regard.

The second contention raised by the petitioners is that they are unable to pay the amount because of financial conditions. It is submitted that industry as such also has no capacity to pay such huge amount. It is well settled that it is the mandatory obligation of the employer to pay minimum wages and if an employer cannot pay minimum wages he has to close down the undertaking. Minimum wages is to be assessed irrespective of financial capacity of the industry or financial condition of individual employer. (See Hindustan Antibiotics Ltd. v. The Workmen (AIR 1967 SC 948). On these two grounds we are unable to set aside the notification.The employees of the 'Petitioners' establishment filed an application before the Labour Court and Labour Court had already issued notice. It is submitted that already proceedings are going on before the Labour Court. With regard to the contentions on merit regarding employment, wages paid and payable etc. petitioners can raise all their objections before the Labour Court.

Finally it was argued that since a specific machinery is provided under the Minimum Wages Act, a petition under S. 33-C(2) of the Industrial Disputes Act cannot be filed before the Labour Court. This issue was considered by this Court and the Apex Court in Hindi Prachar Press v. State of Kerala and Ors. (1982 KLT 285) and Manganese Ore (India) Ltd. v. Chandi Lal Saha and Ors. (AIR 1991 SC 520) and held that claim for minimum wages can be filed under S. 33C(2) of the Industrial Disputes Act as it is a benefit computable. Rates of minimum wages are fixed by notification and workers are entitled to receive the same as a legal right and service condition.

Therefore, without prejudice to the right of the petitioners to raise all their contentions on incidental matters like actual wages paid, nature of employment etc. before the Labour Court, these Original Petitions are dismissed.