IMPORTANT POINTS
When the workmen are employed only for a few hours, their minimum wages, if any, is to be computed by an adjudicatory process in terms of S.20 of the Minimum Wages Act, 1948 or there has to be an adjudication by the Labour Court that the workmen are regular employees of the establishment concerned.

JUDGMENT :

A.M. SHAFFIQUE, J.

1. Appeal is filed by respondents 1 and 2 in W.P. (C) No. 14087/2019. By the impugned judgment, the learned Single Judge allowed the writ petition setting aside an order passed by the Labour Court, Ernakulam in Claim Petition No. 49/2014 and remitting the matter back to the Labour Court to consider the claim petition afresh. Claim Petition No. 49/2014 was filed by the writ petitioners u/s 33C(2) of the Industrial Disputes Act. They claimed payment of salary as per the provisions of Minimum Wages Act. The concerned notification fixing the minimum wages was produced as Ext.P18.

2. The appellants herein who were appearing for the Management took up a contention that writ petitioners were not regular employees whereas they were working on part-time basis in the school managed by them and therefore they were not entitled to claim minimum wages as stated in Ext.P18, whereas they have been paid the wages which is due to them in accordance with the contract between the parties. The writ petitioners however took up a contention that they were regular employees of the Institution and they filed a reply affidavit denying the contention urged by the management by contending that they were working from morning to evening. The petitioners have also adduced evidence before the Labour Court. However, the Labour Court by its order dated 20.2.2019 formed an opinion that Section 33C(2) does not envisage an enquiry as to whether the writ petitioners were entitled for the minimum wages as claimed by them especially on account of the dispute that the writ petitioners have denied the liability to pay such minimum wages. It was held that in the absence of any pre-existing right or admitted liability of the employer, no determination can be made under S.33 C(2) of the I.D. Act.

3. The learned Single Judge however placed reliance on the judgment of a learned Single Judge of this Court in G4S Security Services (India) Ltd. vs. Satheeshkumar K. and Others, 2010 (1) KLT 463, wherein it was held that while considering an application u/s 33 C(2), it is open for the Labour Court/Industrial Tribunal to consider whether the claim for minimum wages can be granted or not.

4. Learned counsel for the appellants though initially raised a contention that schools had been excluded from the purview of Industrial Disputes Act, in so far as the proposed amendment has not come into force, such a contention does not survive. However, it is argued that the Minimum Wages Act, 1948 prescribes a mode for fixation of minimum wages, in which event, an application u/s 33 C(2) is not maintainable. Learned counsel submits that whether the petitioners were entitled for being paid the full minimum wages on account of the fact that they were part-time employees is a matter which cannot be adjudicated by the Labour Court while considering an application u/s 33 C(2). Smt. Vaheeda Babu, learned counsel for the appellants also placed reliance on the judgment of the Apex Court in Krishnan and Another vs. Special Officer, Vellore Co. Op. S.M. and Another, (2008) 7 SCC 22.

5. On the other hand, learned senior counsel Sri. T.M. Mohammed Youseff appearing on behalf of the workmen would contend that the factual materials available in the case by itself would indicate that writ petitioners were workmen engaged by the management. It is pointed out that as per the bye-law of CBSE, the cadre strength of non teaching staff has been specifically mentioned which includes driver, sweeper etc. Their working hours are also specifically mentioned. That apart, the attendance registers produced in the case will belie the fact that they were only part-time workers. It is argued that consideration of the question as to whether the workmen were part-time or fulltime is an ancillary issue which could be decided by the Labour Court, while adjudicating on an application under Section 33 C(2) of the I.D. Act. Following are the judgments relied upon by the learned counsel for the respondent