High Court
Case Details
CRP 228/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
Heard Mr. P.J. Phukan, learned counsel for the petitioner and Mr. B.J. Ghosh, le arned State counsel appearing for the respondents. The employer of the security guards, who have not been made party in the suit as well as in the present revision petition, has filed the present petition challe nging the order dated 6th May, 2013 passed by the learned Civil Judge, Dhubri in Misc. Appeal No.9/2011, dismissing the appeal by affirming the order dated 31st March, 2011 passed by the learned Munsiff No.2, Dhubri in Misc. (J) Case No.266 /2009 arising out of Title Suit No.472/2009 pending in the Court of the learned Munsiff No.1, Dhubri, whereby and whereunder the prayer for injunction made unde r Order 39 Rules 1 and 2 CPC has been rejected. The present petitioner filed the aforesaid suit praying for declaration that WIM CO Limited, Dhubri, of which the present petitioner is an employee, is non funct ional factory, having no business, within the meaning of the Assam Shops and Est ablishments Act, 1971 (in short, (cid:28)1971 Act (cid:29)); declaration that the worker under the plaintiff engaged in WIMCO Limited, Dhubri are not entitled to minimum wages under the provisions of the Minimum Wages Act, 1948 (in short, (cid:28)1948 Act (cid:29)); dec laration that the communications dated 4th November, 2009 and 16th November, 200 9 issued by the Labour Inspector and Inspector under the provisions of the 1948 Act are illegal and void and also for permanent injunction restraining the defen dants from giving effect to the aforesaid 2(two) communications. In the suit th ough the Labour Inspector, Assistant Labour Commissioner, Commissioner & Secreta ry and the State of Assam are impleaded as defendants, the plaintiff, however, f or the reasons best known to him, did not implead the concerned workmen, in whos e favour the aforesaid orders dated 4th November, 2009 and 16th November, 2009 h ave been passed. In the said suit, an application praying for injunction under Order 39 Rules 1 a nd 2 CPC was also filed praying for granting ad-interim temporary injunction res training the defendants from giving effect to the communications dated 4th Novem ber, 2009 and 16th November, 2009 issued by the labour Inspector and Inspector u nder the provisions of the 1948 Act. The said application was numbered and regi stered as Misc. (J) Case No.266/2009. The said application was rejected by the learned Munsiff vide order dated 31st M arch, 2011, which though was challenged in Misc. Appeal No.9/2011, the same has also been dismissed. Hence, the present revision petition. Mr. Phukan, learned counsel challenging the orders passed by the Courts below ha s submitted that since the concerned workmen are not the employees within the me aning of 1948 Act and by virtue of the provisions contained in Rule 51 of the As sam Shops and Establishment Rules, WIMCO Limited having deemed to have close dow n the business, the Inspector under the provisions of the 1948 Act had no author ity to issue the aforesaid communications dated 4th November, 2009 and 16th Nove mber, 2009 and hence, the Courts below ought not to have passed the order rejec ting the application filed under Order 39 Rules 1 and 2 CPC. It appears from the prayer made in the plaint that the plaintiff has claimed dec laration that WIMCO Limited, Dhurbi is non functional within the meaning of the 1971 Act and also for declaration that the workers engaged by them are not the e mployees within the meaning of the 1948 Act. Though such declaration was sought for, the plaintiff did not implead the workers and hence in fact the suit of th e plaintiff is bad for non joinder of necessary parties, which aspect, however, need not be gone into in the present proceeding and would naturally be gone into by the trial Court. The revision petitioner in the revision petition has not contended that WIMCO Li mited, which is a wood based industry, is not covered by the 1948 Act. What has been stated is that the security guard engaged by the plaintiff being in tempor ary employment, are not employees within the meaning of the said Act. Definition of (cid:28)Employee (cid:29) in 1948 Act is very wide, which means - any person who is employed for hire or reward to do any work, skilled or unskilled, manual or c lerical, in a scheduled employment in respect of which minimum rates of wages ha ve been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or owhterwise processed for sale for the purpose of the trade or business of that other person where the process is to be carried o ut either in the home of the out-worker or in some other premises not being prem ises under the control and management of that other person; and also includes an employee declared to be an employee by the appropriate Government; but does not include any member of the Armed Forces of the Union. Hence, the temporary empl oyees, who are on hire or reward to do any nature of work comes within the defin ition of (cid:28)employee (cid:29) under the provisions of the 1948 Act. That being the positio n, the first contention of the plaintiff cannot be accepted. The other grounds on which the order has been put to challenge, i.e. that by vir tue of Rule 51 of the Assam Shops and Establishment Rules, 1976 since the WIMCO Limited is deemed to have wound up, being not in operation for a period of 3(thr ee) months or more, neither the plaintiff nor the WIMCO Limited is liable to pay the minimum wages to the employees under the provisions of the 1948 Act, also c annot be accepted on the simple reason that such winding up, if any, would be fo r the purpose of Assam Shops and Establishment Act only, which has no effect on the minimum wages to be paid by the employer to the employee under provisions of the 1948 Act. In view of the above, I do not find any merit in the revision petition and hence , the same is dismissed. The plaintiff/revision petitioner is directed to pay the arrear minimum wages, p ursuant to the aforesaid communications dated 4th November, 2009 and 16th Novemb er, 2013, to the employees within 1(one) month from today with interest @ 9% per annum from the date when such minimum wages was due and payable till the date o f payment. The current minimum wages with effect from the month of September, 2 013 shall be paid monthly and regularly to the employees. Send a copy of this order to the Inspector under the provisions of the 1948 Act, for due implementation. The revision petition is dismissed. No costs.