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IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J.
Lt. Col. E.V. Krishnan – Petitioner
Versus
State of Kerala – Respondent
WP (C) No. 22622 of 2012
Decided On : 23-12-2022
Kerala Industrial Establishments (National and Festival Holidays) Act, 1958 - Inspector's Authority - Adjudication of Wages - Section 5(2) - Section 7 - Doctrine of Implied Powers
Fact of the Case:
The petitioners, in control of M/s. Poornam Info Vision Pvt. Ltd., challenged an order imposing an amount towards double the rate of wages allegedly payable to employees for working on national and festival holidays under the Kerala Industrial Establishments (National and Festival Holidays) Act, 1958. The Inspector's authority to adjudicate and decide the quantum of wages payable was questioned.
Finding of the Court:
The court held that the Inspector appointed under the Act is not conferred with the power of adjudication. The Inspector's powers are limited to inspection, identification, and filing complaints, and do not extend to the adjudication of wages. The court quashed the notice/order and all proceedings pursuant thereto, including the revenue recovery proceedings initiated against the petitioners personally.
Issues: The main issue was the authority of the Inspector to adjudicate and decide the quantum of wages payable under the Act. The court also addressed the legality of revenue recovery proceedings initiated against the petitioners personally.
Ratio Decidendi: The court emphasized that the Act does not confer the power of adjudication on the Inspector. It stated that the doctrine of implied powers cannot be liberally relied upon to confer the power of adjudication, and that the Inspector's powers are limited to inspection and verification. The court also highlighted that the revenue recovery proceedings initiated against the petitioners personally were not permissible.
Final Decision: The writ petition was allowed, and the notice/order and all proceedings pursuant thereto, including the revenue recovery proceedings initiated against the petitioners personally, were quashed.
JUDGMENT :
BECHU KURIAN THOMAS, J.
1. Can the Inspector appointed under the Kerala Industrial Establishments (National and Festival Holidays) Act, 1958 adjudicate and decide the quantum of wages payable as compensation as per the provisions of the Act? The above question inter-alia arises for consideration in this writ petition.
2. Petitioners are the persons in control of M/s. Poornam Info Vision Pvt. Ltd. They are aggrieved by the order issued under the Kerala Industrial Establishments (National and Festival Holidays) Act, 1958 (for short ‘the Act’), imposing an amount of Rs.48,72,678/- towards double the rate of wages allegedly payable to the employees for working on three national and eight festival holidays. Petitioners also challenge the show-cause notices issued and the revenue recovery proceedings initiated against them personally.
3. First petitioner is the Chairman and Managing Director of a 100% export oriented unit, providing services allegedly of an intellectual nature to its counterpart in the United States of America. Second petitioner is its Administrative Manager. According to the petitioners, the unit is situated in the Cochin Special Economic Zone and is duly licensed under the Commissioner of Customs.
4. The issue that has arisen for consideration stems from an inspection by the Assistant Labour Officer on 02.11.2010 consequent to which, several irregularities under various labour legislations were noticed, including those under the Act and by Ext.P4 notice, petitioners were directed to rectify the said violations. It is pertinent to mention that one of the anomalies noticed was non-payment of double the rate of wages to the employees for working on national and festival holidays and to give compensatory off to the employees.
5. In the reply submitted, petitioners pleaded that there were no violations as noticed in the inspection note and that though the Act as such is not applicable to them, leave under various heads was granted to the employees. Thereafter, a show-cause notice was issued by the third respondent on 21.03.2011, directing the petitioners to pay additional wages to the employees for working on national and festival holidays and also to produce the register and records and to show cause why prosecution proceedings and other legal steps should not be launched against the petitioners.
6. On 04.04.2011, petitioners submitted an explanation stating that the various statutes specified in the show-cause notice were not applicable to their establishment and requested to drop the proposal to prosecute them.
7. Pursuant to the aforesaid explanation, the impugned order Ext.P9, styled as a show-cause notice dated 25.04.2011 was issued, stating that the employees who had worked on national and festival holidays were not provided with double wages and compensatory off and hence there is a violation of section 5(2) of the Act. Petitioners were also directed to pay double the rate of wages to the employees amounting to Rs.48,72,678/- whose details and the calculations were annexed with the same. Consequent to the above order/show-cause notice, revenue recovery proceedings have been initiated as Ext.P12 and Ext.P12(a), proposing to recover the same from the properties of the petitioners personally.
8. A counter affidavit was filed by the third respondent, primarily contending that Ext.P9 is only a show-cause notice and that no final orders have been issued. It was also stated that no objection to the rate of calculation or the quantum of the amount mentioned in the statement have been made and that since the petitioners did not dispute the amount claimed, the third respondent initiated revenue recovery steps.
9. The first respondent, on the other hand, filed a counter affidavit stating that Ext.P9 is a final order and that the Inspector has the power to do all that is required for the purpose of the Act and since the payment as directed was not forthcoming, the revenue recovery proceedings were resorted to.
10. Sri. N.S
The authority under the Minimum Wages Act must provide an opportunity to be heard before issuing orders, but failure to appear after proper notice results in valid ex parte orders, and delays in chal....
The appropriate government should act only as an executory court and leave adjudication to the tribunal/labour court. The absence of a pre-determined right in favor of the workmen precluded the issua....
The authority's order under Section 33-C(1) was valid as the employer failed to dispute the existence of a relevant settlement, maintaining wage parity between contractual and regular employees in li....
when there is a payment of wages lesser than the minimum rate of wages payable for an employment, a claim can be raised under section 20(1) of the Act.
Claiming wages - It is proved to the satisfaction of the High Court or Supreme Court that such workman had been employed and had been receiving adequate remuneration during any such period or part th....
Point of Law : Section 33C(2) of The Industrial Disputes Act, 1947 reads as Recovery of money due from an employer.
The Labour Court has jurisdiction to entertain wage claims under Section 33(C)(2) of the Industrial Disputes Act, and the Limitation Act does not apply such claims.
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