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2020 Supreme(Ker) 33
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN, V.G.ARUN, JJ.
Tata Consultancy Services Limited – Appellant
Versus
State Of Kerala – Respondent
WA.979/2018, WA.978/2018, WA.980/2018, WA.981/2018, WA.982/2018, WA.983/2018, WA.984/2018, WA.985/2018, WA.986/2018, WA.987/2018, WA.988/2018, WA.989/2018, WA.990/2018, WA.992/2018, WA.1021/2018, WA.1042/2018, WA.1077/2018, WA.1079/2018, WA.1080/2018, WA.1115/2018, WA.1123/2018, WA.1137/2018, WA.1141/2018, WA.1169/2018, WA.1170/2018, WA.1171/2018, WA.1172/2018, WA.1173/2018, WA.1174/2018, WA.1176/2018, WA.1177/2018, WA.1187/2018, WA.1189/2018, WA.1190/2018, WA.1191/2018, WA.1192/2018, WA.1193/2018, WA.1195/2018, WA.1198/2018, WA.1199/2018, WA.1200/2018, WA.1207/2018, WA.1208/2018, WA.1209/2018, WA.1210/2018, WA.1212/2018, WA.1215/2018, WA.1216/2018, WA.1217/2018, WA.1219/2018, WA.1220/2018, WA.1224/2018, WA.1225/2018, WA.1233/2018, WA.1234/2018, WA.1236/2018, WA.1237/2018, WA.1238/2018, WA.1240/2018, WA.1241/2018, WA.1242/2018, WA.1243/2018, WA.1244/2018, WA.1246/2018, WA.1247/2018, WA.1253/2018, WA.1254/2018, WA.1256/2018, WA.1257/2018, WA.1265/2018, WA.1266/2018, WA.1267/2018, WA.1268/2018, WA.1269/2018, WA.1270/2018, WA.1271/2018, WA.1272/2018, WA.1273/2018, WA.1274/2018, WA.1275/2018, WA.1281/2018, WA.1294/2018, WA.1295/2018, WA.1325/2018, WA.1326/2018, WA.1327/2018, WA.1332/2018, WA.1355/2018, WA.1366/2018, WA.1368/2018, WA.1383/2018, WA.1400/2018, WA.1435/2018, WA.1436/2018, WA.1438/2018, WA.1449/2018, WA.1510/2018, WA.1523/2018, WA.1632/2018, WA.1651/2018, WA.1677/2018, WA.1925/2018, WA.1935/2018, WA.1938/2018, WA.1956/2018, WA.2201/2018, WA.2506/2018, WA.760/2019, WA.887/2019, WA.1946/2019, WA.2077/2019, WP(C).23631/2018, WP(C).23736/2018, WP(C).24365/2018, WP(C).37783/2018, WP(C).6090/2019, WP(C).13807/2019, WP(C).18071/2019 & WP(C).24859/2019. Decided on : 23-01-2020
For the Appellant : SRI.P.BENNY THOMAS, SRI.D.PREM KAMATH
For the Respondent: SRI.K.V.SOHAN, SRI.P.VIJAYAKUMAR, SRI.V.R.RAKESH (SERVED ON)
IMPORTANT POINT
Whether the Rules under the Minimum Wages Act could provide for the payment of wages only through a Bank account as provided under the Payment of Wages Act?- The Wages Act of 1936 is prior in time to the Minimum Wages Act of 1948-
• Sub-rule (2) of Rule 21A of the Kerala Rules as amended by Exhibit P1 notification to be ultra vires the Act. However, the other amendments are upheld and the regulatory measure by which there is an insistence brought in for uploading the details of the workers as required in Form XIV as also the other prescriptions, inter alia, of the uploading to be done three days prior to the payment, wage slip issued on a day prior to the payment, are all upheld.
• The prescription made by sub-rule (2) of Rule 21A, that the employers of the scheduled employments should pay and disburse the wages to the employees only through individual Bank accounts would be in violation of the specific statutory mandate
Headnote:
Wages Act of 1936 is prior in time to the Minimum Wages Act of 1948;; The Information Technology Act, 2000- Sections 6 & 7-If voluntarily the employers make payments through Banks with consent of the employees, there would be no penalty imposed on ground of violation of Section 11(1) of the Minimum Wages Act-The employers of the scheduled employments may be granted three months time to commence uploading of Form XIV in Wage Payment System, as of now without the account number of the employee; if not voluntarily provided. There can be no insistence that the minimum wages will be paid through the bank accounts or through the WPS system of the Department. However those who voluntarily do either will not be prosecuted for reason only of violation of Section 11(1). While declaring sub-rule (2) of Section 21A of the amended Rules of 1958 to be ultra vires to the statute, the other amendments are upheld.
Statement of facts:
Current technological advancements, to ensure payment of minimum wages to the employees, mainly of the un-organized sector, is challenged on the ground of the rule being ultra vires, illegal and the procedure prescribed cumbersome, unworkable and unreasonable- The challenge is against the amendments made to the Kerala Minimum Wages Rules, 1958 by notification dated 08.07.2015.
Finding of the court:
The employers of the scheduled employments may be granted three months time to commence uploading of Form XIV in Wage Payment System, as of now without the account number of the employee; if not voluntarily provided. There can be no insistence that the minimum wages will be paid through the bank accounts or through the WPS system of the Department. However those who voluntarily do either will not be prosecuted for reason only of violation of Section 11(1). While declaring sub-rule (2) of Section 21A of the amended Rules of 1958 to be ultra vires to the statute, the other amendments are upheld.
Result:
The Writ Petitions filed are also partly allowed in the same lines as the Writ Appeals
JUDGMENT
K. Vinod Chandran, J.
A laudable objective, in tune with current technological advancements, to ensure payment of minimum wages to the employees, mainly of the un-organized sector, is challenged on the ground of the rule being ultra vires, illegal and the procedure prescribed cumbersome, unworkable and unreasonable. We cannot but observe at the outset that essentially the challenge arise from the reluctance to adapt to change especially to a digital platform which also is alleged to be fraught with evils that often does not meet the eye; infringing the privacy of the employer and the employee. The State, on the other hand, asserts that the virtual world is a reality and the technological improvements over the years should inform the interpretation of statutes, failing which the citizens would be deprived of the benefit of the welfare measures effectively implemented through the digital arena.
2. The challenge is against the amendments made to the Kerala Minimum Wages Rules, 1958 by notification dated 08.07.2015. The notification is produced as Exhibit P1 in W.P(C) 25590 of 2017, from which W.A.No.979 of 2018 arises; the documents in which are referred to in the course of this judgment unless otherwise specifically referred. Exhibit P1, the Kerala Minimum Wages (Amendment) Rules, 2015; introduced a procedure by which inter alia the payment of wages has been enabled through a Wage Payment System ('WPS' for short) facilitated under the information technology. The employers of those scheduled employments as specified in the Appendix are required to submit electronically or upload an I.T. Enabled 'Register of Employment and Wages' in the form prescribed. It is also mandated that the employers shall pay and disburse the wages to the employees only through individual bank accounts. There are also provisions under Rule 29 to make the WPS effective and ensure that the regulatory measures are in place. Sub-rule (4A) of Rule 29 requires the 'Register of employment and wages' in Form XIV to be authenticated by the employer or by an authorized person prior to the submission or the uploading of the same in the WPS. Sub-rule (4B) confers power on the Inspector authorized by the Labour Commissioner to electronically authenticate the submitted or uploaded form, which authenticated form shall be maintained as duly signed either physically or in the electronic media. Sub-rule (4C) requires the Bank account numbers of the employees entered in Form XIV for effecting payment of wages through Banks, by the employers. The Register in Form XIV shall be electronically submitted or uploaded in the WPS at least three days prior to the crediting of wages in the individual bank accounts of the employees as per Sub-rule (4D). Sub-rule (4E) prescribes that the employers covered under WPS to issue electronically generated wage slip to all its employees through the System at least a day prior to effecting payment of wages. The newly introduced Rule 29C provides exemption to the employers insofar as the maintenance of certain Registers, on the System being enabled.
3. Learned Counsel Sri.Benny P.Thomas first contended that the power conferred on the Central Government under the Minimum Wages Act, 1948 [for brevity 'Minimum Wages Act'] does not extend to the various prescriptions made in the present amendment. It is argued that there can be no insistence that the wages should be paid only through Bank accounts. It is pointed out that Form XIV, which accompanies the amendment has about 44 columns, many of which are irrelevant insofar as the payment of minimum wages. The requirements necessitate a cumbersome procedure, which does not serve any purpose, according to the employers. It is argued that the amendment to the Payment of Wages Act, 1936 [for brevity 'Wages Act'] relied on by the Government to substantiate the prescription of payment through Bank accounts was brought in after the Rules were amended.
4. Sri.Adarsh Kumar, learned Counsel, argued that the
