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2020 Supreme(Ker) 904
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RAJA VIJAYARAGHAVAN V., J.
Ance – Appellant
Versus
KMJ Public School – Respondent
W.P. (C). No.14087 of 2019
Decided on : 05-05-2020
Advocate Appeared:
For the Appellant : Aysha Youseff, Molly Jacob, C.K. George, Jobi A. Thampi, Ashifa Youseff, Fashiya Youseff, M. Kabani Dinesh, C.M. Ebrahim & Shoukath Husain
For the Respondent: Babu Karukapadath, M.A. Vaheeda Babu, K.M. Faisal (Kalamassery), P.U. Vinod Kumar, Stiya Sivan, Avinash P. Raveendran, Arya Raghunath & Kadija Jasmine
IMPORTANT POINT
An employer who pays to an employee less than the minimum rates of wages to that employee's class of work or less than the amount due to him under the provisions of the Minimum Wages Act is liable for punishment, in appropriate cases even of imprisonment for six months, under S.22 of the Act.
Headnote:
Industrial Disputes Act- S.33C(2) - Right to get paid notified minimum wages-It is a right already vested in employees of notified industries-Claiming-Separate adjudication by an authority is not necessary at all -The Labour Court instead of finding fault with the petitioners for not adducing any evidence ought to have granted an opportunity to the petitioners to prove the documents through the Superintendent
Statement of facts:
Writ Petition is filed challenging the order dated 20.2.2019 of the Labour Court, Ernakulam, by which the claim petition filed by the petitioner herein was dismissed finding that the application filed by them under Section 33C(2) of the Industrial Disputes Act, 1948 seeking payment of salary at par with the salary paid to employees of their respective class was not maintainable.
Finding of the court:
There was no justification on the Labour Court to reject the petition on the ground of lack of evidence after denying the petitioners an opportunity to let in the best evidence possible by summoning and examining the witness called for by them-The order passed by the Labour Court suffers from grave perversity warranting interference by this Court under Article 226 of the Constitution of India.
Result: Writ Petition allowed
JUDGMENT :
The above captioned Writ Petition is filed challenging the order dated 20.2.2019 of the Labour Court, Ernakulam, by which the claim petition filed by the petitioner herein was dismissed finding that the application filed by them under Section 33C(2) of the Industrial Disputes Act, 1948 seeking payment of salary at par with the salary paid to employees of their respective class was not maintainable.
2. Before venturing to decide on the questions raised, it would be profitable to state the relevant facts.
The 1st respondent is the K.M.J Public School, represented by its Manager. The 2nd respondent is the Principal of the said school. The petitioners 1 and 2 have been working as drivers for the past 14 and 9 years respectively in the said school whereas the petitioners 3 and 4 have been working as sweepers in the same institution for the past 8 years. They contended that they have been receiving wages at less than the minimum wages prescribed by the State Government by various notifications and also as per the directions issued by this Court in State of Kerala v. Mythri Vidya Bhavan English Medium School and another (2013 (1) KLT SN 36 (C.No. 36)). They contended that a person junior to them, who was a Class-IV grade employee, was drawing a much higher wage as compared to the petitioners. According to them, they are entitled to higher amounts toward salary from 1.7.2013 onwards.
3. The respondents filed a counter contending that the petitioners 1 and 2 are part-time drivers and the petitioners 3 and 4 are part-time sweepers of the 1st respondent institution. The salary and other benefits paid to the petitioners are commensurate to the work rendered by them. It was also stated that in addition to the monthly salary, the petitioners are provided with Provident Fund, ESI benefits, Festival and other service benefits etc. It was further contended that the pay scale directed to be paid by this Court was for full-time employees and the petitioners, being part-time employees, are not entitled to the benefits of the judgment.
4. To the contentions advanced in the counter, the petitioners filed replication asserting that the petitioners are full-time workers appointed by the 1st respondent and entitled to the salary as prayed for by them. An application for amending the claim statement was filed which was allowed. The respondents filed counter reiterating their contentions.
5. The 1st petitioner entered the box and gave evidence as PW1 and on his side, Exhibits P1 to P3 were marked. The 2nd respondent entered the box and gave evidence as DW1. Exhibits D1 to D 7 were marked on her side.
6. The Labour Court, after evaluating the evidence adduced by the parties, found fault with the petitioners for not adducing any evidence to show that they are permanent employees of the establishment. The Labour Court also concluded that Section 33C(2) does not envisage the determination and adjudication of the rights of the petitioners for the entitlement. Reliance was also placed on a decision of this Court in M. Karunakaran v. Grassim Industries Ltd. (1997 (1) KLJ 789) to come to the conclusion that the Labour Court had no jurisdiction to entertain a dispute between the workman and the employer in the absence of a pre-existing right to any amount or any benefit.
7. Heard Sri.Mohammed Yousuf, the learned Senior Counsel appearing for the petitioner as instructed by Sri C.M. Ebrahim and Smt. Waheeda Babu, the learned counsel appearing for the respondent.
8. Sri.Mohammed Yousuf would place reliance on the decisions of this Court in G4S Security Services (India) Ltd v. Satheeshkumar K and others (2010 (1) KLT 463) and it was argued that merely because the management disputes the right of the workmen for the benefit claimed, the jurisdiction of the Labour Court under Section 33C(2) is not ousted. He would point out that the stand taken by the Labour Court that only those rights already adjudicated upon by a competent authority can be enforced under Section
