Visakha President, Restaurant Regd.No.654/1993 The Park Unit, Visakhapatnam v. The Management, The Park Hotel, Visakhapatnam

Counsel for the Respondent(S):

1.GP FOR LABOUR

2.G VS GANESH The Court made the following: ( 2 Dr. VRKS, J W.P.No.22797 of 2007 THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR WRIT PETITION No.22797 of 2007 ORDER: The present petition under Article 226 Constitution prays for the following relief: “For the accompanying affidavit, it is hereby prayed that this Hon'ble Court may be reasons stated pleased to issue any Writ or Order or Direction more particularly one the nature Writ of MANDAMUS declaring the award dated 20-01-2006 in I.D.No. 258/02 on arbitrary the file of the 2'^^ respondent Court as illegal, under Article 14 and 21 of the Constitution of India and the provisions of Industrial Disputes Act, 1947 and pass such other further orders as the Honourable Court may deem fit and proper in the circumstances of the case.”

#2. Heard arguments of Sri M.Pitchaiah, the learned counsel for the petitioner and Sri G.V.S.Ganesh, the learned counsel for respondent No.1.

#3. Learned counsel for the petitioner cited: 3 Dr. VRKS, J W.P.No.22797 of 2007

#1. The Bharat Bank Ltd,, Delhi v. The Employees of the Bharat Bank Ltd., Delhi 1

#2. Tamil Nadu Terminated Full Time Temporary LIC Employees Association v. Life Insurance Corporation of India^

#4. In these rulings their Lordships held that in settling the disputes between the employers and the workmen, the function of Tribunal not confined to administration of justice accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace. The Industrial Tribunal has got to arrive at some equitable arrangement for averting strikes and lockouts which impede production of goods and the industrial development of the AIR 1950 SC 188 c 4 Dr. VRKS, J W.P.No.22797 of 2007 country. The Tribunal is not bound by the rigid rules of law. The process it employs is rather an extended form of the process of collective bargaining and is more akin to administrative than to judicial function.

#5. Learned counsel for respondent No.1 cited the following precedent:

#1. Airfreight Ltd. v. State of Karnataka^

#2. The Kamani Metals and Alloys Ltd. v. The Workmen'*

#3. Management Ramakrishna Pharmaceuticals, Hyderabad v. State Authority under Minimum Wages Act, 1948 and Joint Commissionerof Labour, A.P •J Hyderabad^

#4. Andhra Pradesh Hotels Association v. Government of Andhra Pradesh® '(2015) 9 see 62 '(1999) 6 see 567 "AIR 1967 Se 1175 '2002 (3) ALD 247 ' 2002 (4) ALD 545 (AP) (DB) 5 Dr. VRKS, J W.P.No.22797 of 2007

#6. I.D.No.248 of 2002 before the learned Industrial Tribunal- cum-Labour Court, Visakhapatnam was on a reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 by the Government of Andhra Pradesh by its notification under G.O.Rt. No. 1582 dated 02.07.2002. The terms of the reference made read as below: Park demand workmen “Whether Hotel, Visakhapatnam to pay minimum wages as per G.O.Ms.No.53, dated 17.10.2000 of LET&F (Lab.II) Department by neutralizing the D.A. points 411 points with basic wages and to continue to pay the allowances being paid for the last 10 years as customary allowances without including the said allowances as "all inclusive minimum wages", is justified? If not, to what relief the workmen are entitled?"

#7. The Labour Court issued notices to the employees’ union as well as the management, Employees filed statement contending that for a long time they have been paid HRA and CA and they have become customary allowances and now that the management has been withdrawing them. That grievance explains the reference made to the Labour Court. Management filed its counter. ( 6 Dr. VRKS, J W.P.No,22797 of 2007

#8. Before the Labour Court both parties were granted an opportunity to adduce evidence and accordingly the President of the workers union testified as WW1 and got marked Exs.WI to W8. On behalf of the management the in-charge manager testified as MW1 and got marked Exs.MI to M6.

#9. After considering the material on record and the precedent cited before it and the arguments advanced before it, the learned Labour Court answered the reference in the negative and at paragraph No. 14 it stated that: “In the light of the above legal precedents, it is quite clear that wages under Minimum Wages Act, bifurcation of amounts component-wise is not permissible and only the total emoluments received by the worker has to be taken into consideration. Evidently, workers are receiving wages more than fixed under Minimum Wages Act. Accordingly, hold that the claim of the petitioners is not sustainable and they are not entitled for any further relief and thus, the reference is answered.”

#10. In this writ petition the said award is assailed contending that there is a difference between ‘rights dispute’ and ‘interest dispute’. The Labour Court failed to recognize it and the dispute raised before it was an ‘interest dispute’. That the Labour Court 7 Dr. VRKS, J W.P.No.22797 of 2007 misdirected itself in addressing the reference. That the demand for payment of DA points is divorced from HRA and conveyance allowance and the Labour Court should have decided the same on merits, but it failed to do so. The award of the Labour Court holding that the minimum wages is a total package inclusive of HRA and conveyance allowances is erroneous as it failed to notice such customary benefits cannot be considered as part of the minimum wages.

#11. As against it, the learned counsel for respondent No.1 submits that no material relevant for consideration was placed before the Court to substantiate any of the contentions raised. Questions raised require determination in the context of the principle of industry-cum-region. That this writ petition is not maintainable since it is not filed by the workers union of the Park Hotel, Visakhapatnam but it was filed by Visakha Hotel and Restaurant Workers Union. The learned counsel further argued that the conclusions arrived at by the Labour Court in the impugned award are in accordance with facts and law and V ( 8 Dr. VRKS, J W.P.No.22797 of 2007 requires no interference and prays for dismissal, of the writ petition.

#12. The following aspects are to be noticed: Earlier there was a revision of minimum wages in the hotel industry under G.O.Ms.No.89 dated

15.05.1991. The next revision took place at a time when the cost of living index was at 309 points. After a draft notification and after receiving objections and after considering the report of State Minimum Wages Advisory Board, Government Andhra Pradesh issued G.O.Ms.No.53, Labour, Employment, Training and Factories (Lab-ll) Department dated 17.10.2000. Andhra Pradesh Hotels Association challenged the said G.O. and prayed for a Writ of Mandamus which was after due contest dismissed by a learned Single Judge of this Court. Against that an appeal was preferred which was also dismissed by a learned Division Bench of this Court in Andhra Pradesh Hotels Association’s case^. Now that it seems to be the turn of the workmen. ^ Supra 6 9 Dr. VRKS, J W.P,No.22797 of 2007

#13. Section 2(h) of the Minimum Wages Act 1948 reads as below: “2(h) “wages” means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes house rent allowance, but does not include- (i) the value of— (a) any house-accommodation, supply of light, water, medical attendance, or (b) any other amenity or any service excluded by general or special order of the appropriate Government; (ii) any contribution paid by the employer to any Pension Fund or Provident Fund or under any scheme of social insurance; (iii) any travelling allowance or the value of any travelling concession; (iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; (v) any gratuity payable on discharge. ■ 10 Dr. VRKS, J W.P.No.22797 of 2007

#14. The above definition makes it clear that wage includes house rent allowance. It also makes it clear that the wage does not include the value of any travelling allowance or the value of any travelling concession. Learned Labour Court referred to Ex.M6 which is statement of pay particulars of its employees as on 31.01.2005 and recorded a finding that the wages mentioned therein are not disputed by the employees/workers. It further mentioned that as per Ex.M6 there is basic pay and further the employees are paid DA, HRA and CA as per the Minimum Wages Act notification. It also recorded that from the material on record it is clear that employees have been receiving a greater amount than the prescribed amount under the Minimum Wages Act. In the present writ petition the above factual observations are not disputed. However, the fervent submission of Sri M.Pitchaiah, the learned counsel for writ petitioner is that the Labour Court ought to have considered the issue before it as interest dispute and ought to have answered the reference in the affirmative and this contention is sought to be sustained on the rulings the learned counsel has cited and referred by this Court earlier. This Court ■finds no merit in this submission. Section 4 of the Minimum 11 Dr. VRKS, J W.P.No.22797 of 2007 Wages Act, 1948 (for short, ‘the Act’) requires recapitulation and the said provision reads as below: “4. Minimum rate of wages.—(1) Any minimum rate wages fixed or revised by the appropriate Government in respect of scheduled employments under section 3 may consist of— (i) a basic rate of wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate Government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the “cost of living allowance”); or (ii) a basic rate of wages with or without the cost of living allowance, concessions in respect of supplies of essential commodities concession rates, authorised: or (iii) an all-inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions, if any. (2) The cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates shall be computed by the competent authority at such intervals and in accordance with such 12 Dr. VRKS, J W.P.No.22797 of 2007 directions as may be specified or given by the appropriate Government.” -

#15. Once the rates of minimum wages are prescribed under the Act, whether as all inclusive under Section 4(1)(iii) or by combining basic plus dearness allowance under Section 4(1 )(i) of the Act, are not amenable to split up. It is one pay package. Neither the scheme nor any provision of the Act provides that the rates of minimum wages are to split up on the basis of the cost of each of the necessities taken into consideration for fixing the same. Section 2(h) which defines the term “wage” specifically provides that the value of the items given thereunder is not required to be computed for finding out whether the employer pays minimum wages as prescribed under the Act. Therefore, while deciding the question of payment of wages, the competent authority is not required to bifurcate each component of the costs of each item taken into consideration for fixing minimum wages as lump sum amount determined providing adequate remuneration to the workman so that he can sustain and maintain 13 Dr. VRKS, J W.P.No.22797 of 2007 himself and his family and also preserve his efficiency as a worker vide Andhra Pradesh Hotels Association’s case®.

#16. The customary allowances are a matter of bargain between parties. Whether such customary allowances should be directed to be paid along with all inclusive minimum wages being paid requires consideration of necessary material industry-cum-region wise. No such material was placed before the learned Labour Court by the writ petitioner. Without placing any relevant material, it cannot be said that the writ petitioner is entitled to raise a doctrinal issue before the Court saying that it is ‘interest dispute’ and the Labour Court failed to decide it appropriately. A Writ of Mandamus can be granted by this Court against awards passed Industrial Tribunal a Labour Court if there jurisdictional error or violation of natural justice or when there was misinterpretation of a statute or rendering an award ignoring a binding precedent or when there was a perversity of finding or when it failed to comply with statutory provisions or ignored relevant material placed before it or’when the award passed was Supra 6 c 4 14 Dr. VRKS, J W.P.No.22797 of 2007 unreasonable or arbitrary or when it violated fundamental rights. In the case at hand, the impugned award does not fall under any of the above referred categories. Therefore, this Court finds no merit in this writ petition.

#17. In the result, this Writ Petition is dismissed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any shall stand closed. //TRUE COPY// Sd/- K. TATA RAO DEPUTY REGISTRAR To. SECTION OFFICER

#1. One CC to Sri M. Pitchaiah, Advocate [OPUC]

#2. Two CCs to GP for Labour, High Court of Andhra Pradesh. [OUT]

#3. One CC to Sri G. V. S. Ganesh, Advocate [OPUC]

#4. Three C.D. Copies. Cnr HIGH COURT DATED:02/04/2025 ORDER WP.No.22797 of 2007 DISMISSING THE W.P. WITHOUT COSTS