The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI WP(S) No. 3306 of 2013 ---- Dr. Ashok Kumar Birsa Agriculture University and ors. -Versus- ... ... … Petitioner ... Respondents CORAM : HON’BLE MR. JUSTICE APARESH KUMAR SINGH ---- ---- For the Petitioner For the Respondents :M/s. Rajiv Ranjan & R.R. Sinha :M/s. A. Allam, Sr.Advocate & Nehala Sharmin 5- 22.8.2013
Legal Reasoning
Heard learned counsel for the parties. ---- The petitioner is aggrieved by the office order dated 23.5.2013, Annexure-3, by which a minor penalty of withholding of one increment with cumulative effect has been imposed upon him in terms of clause 13.9(2)(a) of the Birsa Agricultural University Statute.
Legal Reasoning
The contention of the petitioner is that a show cause was issued, vide Annexure-1 dated 12.10.2012, upon him with the allegation that he had allowed payments for six hours of minimum wages to the concerned workmen, who were discharging their work in the Krishi Vigyan Kendra, Dhanbad, the same being in contravention of the Minimum Wages Act, which does not provide for proportionate deduction of minimum wages. The petitioner in response defended himself by relying upon Annexure-2/1, which is an office note. According to him when the matters relating to discharge of work lesser than 8 hours by certain daily wagers were brought to his notice, he constituted a committee of three employees of the said Krishi Vigyan Kendra including one, who was a Scientist. They reported on 28.12.2011 that upon inquiry and examination of relevant materials, it was found that the daily wagers were actually discharging six hours of duty, therefore, they should be paid 75% of the wages of full day work i.e. 9 hours of duty. In such circumstances, the petitioner ordered on the file that in the interest of State, for discharging of six hours of duty, 75% of the minimum wages due for the normal days work be paid. 2. However, the respondents took it as an admission of guilt of the petitioner, as would appear from the impugned order and imposed him minor punishment of withholding of one increment with cumulative effect with a warning not to repeat the same misconduct in future. This, according to the petitioner, despite being a minor penalty, is adversely affecting his promotional avenue to the higher post in the organisation. Learned counsel for the petitioner submits that a preliminary inquiry, which was concluded before issuance of the show cause based upon the allegations made by certain daily wages laborers, was never served to him and nor was it part of the charges. The respondents at this stage, in their counter affidavit have brought on record the alleged complaints made by certain workmen and the said inquiry report, which is Annexure-C to the counter affidavit. In absence of such materials, the charges under the show cause issued to him even do not constitute a misconduct in view of the specific provisions of Rule 24(4) of the Bihar Minimum Wages Rules, 1951(Now adopted by Jharkhand) framed under the Minimum Wages Act, 1948. He submits that under the provisions of Rule 24(4), where an employed person worked for less than a normal working day, wages proportionate to the hours of work done by him shall be paid to him to the nearest 5 paise multiple. Provided that if such person has worked for more than three quarters of a normal working day, he shall be deemed to have worked for the full day. As such the allegation against him was that the proportionate deduction of minimum wages for six hours of duty by a daily wager was in contravention of the Minimum Wages Act, which, however, as a matter of fact, is not a contravention of the provisions of Minimum Wages Act and the rules framed thereunder. In such circumstances, the petitioner had 3. satisfactorily explained his conduct through Annexure-2/1, an office note and should not have been punished with the impugned punishment. Learned counsel for the respondents, on the other hand, submits that the allegations were made against the petitioner by the daily wagers working in the Krishi Vigyan Kendra, Dhanbad under the University that inspite of having worked for full period of their duty, they were being paid lesser wages than the full minimum wages. He relies upon the complaints contained in Annexure-A series to the counter affidavit. Learned counsel for the respondents also relies upon the preliminary inquiry report, which is contained at Annexure-C, which also supports the aforesaid complaints that the daily wagers were being paid lesser wages than full minimum wages. In such circumstances, learned counsel for the respondents submits that the petitioner has been imposed with minor penalty though the allegations are more serious than what they appear on the face of it. Therefore, no interference is required under the powers of judicial review of this Court in the impugned punishment, which is only a minor punishment. I have heard learned counsel for the parties at some length and gone through the materials available on record. The charge against the petitioner as contained in show cause notice dated 12.10.2012 was that he had allowed payments for six hours of minimum wages to the concerned workmen, who were discharging their work in the Krishi Vigyan Kendra, Dhanbad, the same being in contravention of the Minimum Wages Act, which does not provide for proportionate deduction of minimum wages. Therefore, the petitioner was asked to submit his response to the same. In response the petitioner furnished the report of the committee, which was constituted by his order for making recommendation in such matters, where the daily wagers were 4. not discharging full 8 hours of duty rather they were discharging 6 hours of duty. The said committee was required to enquire and make recommendation to the petitioner. The committee reported on 28.12.2011 that the daily wagers were actually discharging their duty for six hours of work and, therefore, it recommended payment of 75% of the wages of full day i.e. 9 hours of the day. On such report the petitioner, therefore, ordered that if daily wagers are working for six hours only then proportionate payment of 75% be given to them. The provisions of relevant Rule 24 of the Bihar Minimum Wages Rules, 1951 (now adopted by the Jharkhand) , are quoted hereunder: “ 24. Number of hours of work which shall constitute a normal working day--[(1) The number of hours which shall constitute a normal day shall be-- (a) in the case of an adult--9 hours; (b) in the case of a child -- 4 hours; (c) in the case of adolescent -- 6 hours]. (2) The working day of an adult worker shall be so arranged that inclusive of the intervals for rest, if any, it shall not spread over more than twelve hours on any day. (3) An inspector appointed under the Act may require the employer to get an employee, whose age cannot be ascertained by mere appearance, examined by any Medical Officer or administrative Medical Officer employed under the Employees State Insurance Corporation who will certify the age of the employee. Such Medical Officer shall be entitled to charge a fee of a Rs. 4 (four rupees) for examining each such employee and that be paid by the employee. (4) Where an employed person has worked for less than a normal working day, wages proportionate to the hours of work done by him shall be paid to him to the nearest five paise multiple: Provided that if such person has worked for more than three quarters of a normal working day, he shall be deemed to have worked for the full day. (5) The provision of sub-rules (1) to (4) shall, in the case of workers in agriculture employment, be subject to such modifications as may, from time to time, be notified by the State Government. (5-A) No child shall be employed or permitted to work for more than 4 hours on any day, and ] (6) Nothing in this rule shall be deemed to affect the provision of the Factories Act, 1948 (LXIII of 1948).” 5. From perusal of provision, it is clear that in the case where an employed person has worked for less than a normal working day, wages proportionate to the hours of work done by him shall be paid to him to the nearest 5 paise multiple. Provided that if such person has worked for more than three quarters of a normal working day, he shall be deemed to have worked for the full day. In the instant case, as was alleged in the show cause notice that the daily wagers were paid minimum wages, which were proportionately reduced to six hours of payment, which was in contravention of the provisions of the Minimum Wages Act. Provision of Rule 24 quoted (supra) framed under the Minimum Wages Act, 1948 permits such proportionate deduction in wages proportionate to the hours of work done by such employed person. It further appears that the show cause did not include any statement of imputations or complaints made by the complainant nor the preliminary inquiry was enclosed with show cause notice, which was in the nature of a show cause for a minor penalty. It is also not in dispute that at the time of the preliminary inquiry, the petitioner was not given any opportunity to cross examine the concerned complainants before issuance of show cause notice. Therefore, on the face of the show cause and the allegations made out and referred to hereinabove, the petitioner did not appear to have committed any violation of the Minimum Wages Act in ordering the proportionate reduction of minimum wages for execution of six hours of work by such daily wagers. In the aforesaid circumstances, therefore, the charge could not be substantiated on the ground that it was in the nature of violation of the Minimum Wages Act as alleged. The petitioner had given cogent explanation for that, as discussed 6. hereinabove. The impugned punishment order, therefore, appears to be suffering from non-application of mind and misdirected. In such circumstances, the impugned order dated 23.5.2013 can not be sustained in law as well as on facts and it is, accordingly, quashed. This writ petition stands allowed. However, the respondents are at liberty to take a decision in respect of initiating any fresh proceeding in accordance with law. Pandey (Aparesh Kumar Singh, J. )