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LABOUR RESEARCH

JANUARY-FEBRUARY-2018

VOL:15 NO.1 BANGALORE JANUARY-FEBRUARY 2018

UNION IS STRENGTH

Editorial

ELECTORAL REFORMSAN ASSERTIVE JUDICIARY AND RELUCTANT LEGISLATURE

n a democracy it is the representatives of the people who make the law of theland, the judiciary examines and evaluate and the executive to implement

it. If the legislator fails to act it is up to the judiciary to step in and providejustice to the people of the country.

Though the Cr. PC. available in the country are meant to take cognizance of theoffence committed by the people there are chances of the rich and powerfulespecially the politicians escaping from their criminal liability. Here the law islike a spider web that catches the weak and poor while the rich and powerfuljumps out of it. At present the politicians against whom criminal cases pending aregetting delayed indefinitely that takes years, probably decades to complete thetrial by which time he would have served as a minister or legislature for severalterms. Till such time they take shelter under pious dictum innocent until provedguilty. It is under this situation our Apex Court had to pass an order on 1stNovember 2017 directing the central government to set up a special court to trythose politicians especially the law makers who are involved in criminal case in atime bound manner to be disposed of within a year, in a petition seeking life timeban on convicted politicians. The court had reasoned that the back log of casesbefore the judiciary made it difficult for the court to speedy verdict in casesinvolving politicians. When politics have become a lucrative business politicians tryto remain in power by hook or crook.

According to report during the period 2009-2014 out of 543 members of Parliament162 members were involved and having criminal background and out of 4032members of the assembly 1258 people were accused in criminal cases. SupremeCourt in Manoj Nerulas’ case had examined in detail how criminalization of politicsis affecting the administration of democracy. When the Parliament is the sanctumsanctorum in a democracy the politicians who contest in Parliament against whomthere is criminal case registered is a serious problem. The question is should suchpoliticians be allowed to sit in assembly or in Parliament and make law, observedthe court.

The Supreme Court also in Jan Chowkidars’ case held that a person who is underpolice custody or is in jail cannot exercise his franchise and under the circumstancessuch person also cannot contest in the election. Since the ruling was misused by

I

TO SEEK A FAVOUR IS TO BARTER AWAY ONE'S FREEDOM

2 Labour Research,January-February-2018

various governments in power against their politicalopponents, the provision of Sec 62(5) of theRepresentation of People Act was furtheramended that, mere losing the right to votecannot debar a person from contesting the electionthat was confirmed by Supreme Court. As partof electoral reforms, Supreme Court in the year2013 passed an order introducing NOTA whilevoting that entitle a voter to reject theundesirable candidate, that did not have thedesired result as muscle and money power usedto be the deciding factor in an election.Thereafter Supreme Court vide their order dated10.7.2017 held that the law makers will haveto quit if convicted in a criminal case who cannotremain in office just because their appeal orrevision is pending against conviction, therebystriking down the provision under Sec 8 (4) ofthe Representation of People Act. This land markjudgment is a step forward in cleansing the Indianpolitics from criminalization.

From time and again the Apex Court and ElectionCommission (EC) had been reminding thegovernment of the need to amend Representationof People Act thereby bringing more transparencyand sanctity to our Democracy. However theRepresentatives of the people had been reluctantin making such reforms. In the absence of suchreforms Supreme Court had to pass many ordersas and when petition comes up before the court

to keep the criminals away from contestingelection including giving the right of the votersto know the credentials of the candidate suchas details of their assets, educationalqualification etc., before voting.

The Election Commission do not have the sufficientteeth to take action against those who violatesthe provisions of Representation of People Act,especially regarding discrepancy in submitting thedetails of the candidate, to the EC by way ofaffidavit violation of code of conduct, submissionof account by the candidate and political partiesor debar any political party etc,.

According to the Election Commission nexusbetween the politician, crime and money aremain challenges facing them and hencerecommended amendment of the Representationof People Act, from time and again.

It is not the court alone but it should be theconscience and moral responsibility of eachcandidate be the deciding factor in cleansingthe system. It is also the judgment of thepeople in electing the right candidate throughballot paper that is most powerful than thecourt verdict. When the people are made equalunder the constitution the Representative ofthe People cannot consider themselves more thanequal to others.

EPFO SUBSCRIBERS TO GETBENEFIT OF EQUITY INVESTMENT FROM APRIL

he government has decided onhow to disburse the benefit of

the higher return from investing inequity to provident fund subscribers.It will take effect from the comingfinancial year.

The Central Board of Trustees (CBT)of the Employees PF Organisation (EPFO) on 23rdNov.2017 approved a policy whereby the body plansto monetize its stock exposure to benefit subscribers.The 15 percent invested every month in equity wouldbe allotted to subscribers in the form of units. The

dividend earned by EPFO on itsequity investment would also bedistributed among the subscribers.

‘When a subscriber wants towithdraw his savings from the PF,he can opt for either cash orequity.” Said the secretary of the

labour and employment ministry. Whenever asubscribers took an advance or settled their PFaccount, the units would be liquidated by EPFO.

The number of exchange traded fund units a

Labour Issues

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NEVER BEND BEFORE THE INSOLENT MIGHT

Labour Research,January-February-2018 4

Article

subscribed will receive in his or her account will dependon the market price. For instance, out of `1,000, if`150 is the equity component and the price of a singleunit is ` 50 the subscriber will get three units. Themoney invested in equity since 2015-16 is` 32,500 crore and the return has been healthy atan annual 21.8 percent. EPFO functions under the

Union labour ministry and started investing in stocksin August 2015. In 2015 -16 it invested five percentof the annual incremental corpus in equities, in2016-17, 10 percent. The annual incremental corpusis `1.2 lakh crore and 15 percent of that will be atleast ` 18,000 crore.

Source :Business Standard.-Dt.24.11.17

he Pradhan Mantri Jan-Dhan Yojana (PMJDY)

launched on 28th August, 2014is the biggest financialinclusion initiative across theglobe, which is the mostcomprehensive scheme takinginto account the learnings fromthe past. Under this schememore than 29 crores accountswere opened having depositsof INR 64776 crore. It is significant that more than17.45 crores beneficiaries are in rural and semi-urban areas.

Status of financial Inclusion of women

With women constituting half the population, theirequal participation is imperative for sustainabledevelopment. However, their share in access tobanking facilities is below their male counterparts.For example, The Global Financial Inclusion (GlobalFindex) database suggests that only 26 percent offemale adults in India have a bank, account with aformal financial institution compared to 44 percentof male adults (World Bank 2014). The Reserve Bankof India (RBI) 2013 report indicates that women’scredit outstanding from commercial banks accountsis for only 5 percent of all crdit outstanding. Womenhave very low institutional savings. Only 13 percentof total deposits (savings) held at scheduledcommercial banks belong to women.

Women in India still significantly lack when it comesto formal ownership of material assets whichconstraint their credit access. Almost 91 percent

women in central Indiareported that their names arenot included in the land/house titles, a studyconducted by Institute ofFinancial Management andResearch states.

In an era, where digitaltechnology offers a promising

solution to some of the traditional physical and otheraccess barriers to extending financial inclusion to allof India’s women Women face a stark ‘digital divide’.Connected Women 2015, a report by GSMA (GroupSpecial Mobile Association), an internationalgrouping of mobile operators and related companies,offers insights that reflect the gender gap in mobileusage.

Women as focus for financial inclusion

Women’s contribution to economic activity andgrowth is far below its potential, resulting insignificant socio-economic consequences.

42 percent of women and girls worldwideapproximately 1.1 billion remain outside the formalfinancial system, according to the Global Findexdatabase. Despite recent progress in financialinclusion rates in general, the gender gap has notnarrowed.

Women psychology/dreams towards financialmatters are different from male counterparts. Womenhave better saving habits and are supposed to useloan amount in a better way. They keep on savingpart of households’ budget and set aside for rainy

WOMEN EMPOWERMENTPush for Financial Inclusion

In Indian ScenarioArticl

e

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DEFEND THE ECONOMIC SOVEREIGNTY OF THE COUNTRY


days. Therefore, financial inclusion of women needsfocused attention in view of their specific need.Financial inclusion of women and girls can creategender equality by empowering them and givingthem greater control over their financial lives.

Challenges of women financial inclusion

While women represent a larger share of the self-employed in developing countries and thus are ingreater need of access to formal financial services,they are less likely to secure bank credit accordingto research by the World Bank. According to Findex,women also are less likely to report having borrowedfrom family and friends in the past year. Experiencesshow that because of poor credit history or lack ofcollateral women are more likely to be denied formalcredit than men and often pay higher interest rates.

Some of the major challenges faced by women visa vis their male counterparts are summarized below:

Limited exposure and lack of formal ownershipin immovable properties

Women’s socio-economic condition is different fromtheir male counterparts, they have limited / lack ofaccess to outside world and have a lesser degree ofownership in agriculture / immovable properties.

Limitation of microcredit via SHGs and MFIs

In the recent years, banks and MFIs have disburseda fairly good amount of credit to women beneficiariesthrough self Help Group (SHG)/Group Finance.Desired progress in the economic status of thewomen has not taken place due to limited resources.Income generated out of small activities are proneto be used for other/consumption needs which, inturn, put the viability of productive activity for whichcredit availed are under strain. Institutional savingby women is low.

Insurance and pension schemes-lesserparticipation of women

Pension and insurance schemes like Indira GandhiOld Age Pension Scheme (IGNOPS), widow pension

scheme, Aam Admi bima Yojana, have beenprovided by the government. However, in most ofthese schemes, head of the household is a male andprinciple decision maker, and women do not get thefocused benefits.

Restricted mobility limited ownership of property,limited role in decision-making, limited access tomobile connection/technology, lack of financialliteracy, etc are major constraints for financialinclusion of women.

Women provide better opportunities forfinancial inclusion

Empowerment women through financial inclusioninitiatives changes the financial position of the wholefamily and has potential to change the financiallandscape of the country households. Financialinclusion of the women makes them a goodentrepreneur, professional and key player in themainstream financial ecosystem of the country.

A study analyzing gender differences with respectto micro-finance repayment found that women arebetter credit-risk for a financial institution.Experiences also indicate that women constitute aprofitable customer base. There are some qualitieswhich distinguish women from rest of the lot whichmake them better target group for FI.

Women have got better saving habits wherein theykeep money through conventional methods like withgrocery, in bamboos used for the roof of the houseor a secluded part of the house. These funds may bebetter channeled with the banking system for betteroutput for the person as well as economy. Women-owned units/activities may perform better as thereare least factors for distractions and linkages withcredit facilities which may deliver good results.Women are more law-abiding than men and thepossibility of their willful default is lesser.

Way forward

The challenge is to find ways that allow for a morenuanced and deeper understanding of women’sneeds wants and behaviour.

SUCCESS COMES TO THOSE WHO DARE AND ACT


However, a full range of financial services to generateincome, build assets, smooth consumption andmanage risk would give better results. A range ofinitiatives may be required for overall fine-tuningthe efforts of women financial inclusion.

Empowering women and girls are among the goalsaspired to by all. Women empowerment is not onlylikely to improve the distributional dynamics withinthe household but can also lift whole householdsout of poverty. In the long term, societies andeconomics can only thrive if they make full use ofwomen’s skills and capacities.

There is a need for more focus on the social, culturaland economic status of the women while formulatingplans for the financial inclusion. As such, in order tohave a holistic financial inclusion goal, women

specific perspective should be a critical component.Ensuring sustainable financial inclusion for womenwill require supply side and demand side challengesto be addressed simultaneously systemic solutions.All stakeholders of the financial inclusion ecosystem,including financial institutions, regulatory agenciestechnology service providers and civil societyorganizations, will need to play their part effectively.

Financial inclusion should be used as a tool to trulyensure empowerment of women and society withequality of economic status and opportunities withoutgender bias and every citizen and women canclaim.

Dr. B.M.PadhaExcerpts from his Article

Sources: The Indian BankerNov 2017

MATERNITY BENEFIT UNDER E.S.I.SCHEME

here are many beneficiallaws for the workers but

sometimes they are misused, andmany times remain unusedbecause of the lack ofawareness. One misconceptionis that Maternity benefits can beavailed only for two deliveries.The fact on the other hand isthat its entitlement extendsbeyond two pregnancies. Thisignorance is not confined to workers only but evenHR Executives also betray their abysmal unawarenesswhen they are approached with such queries. It is allthe more important to know the HR persons whiledealing with such employees who come from the poorand middle-class background as they tend to havemore children. Maternity benefits under ESI areapplicable for all women employees (Permanent aswell as Probationers) who have contributed at least70 days for two consecutive contribution periods andall employers are liable to obey.

The Employees’ State Insurance Act, 1948 (34 of1948) as enacted and published in the Gazette ofIndia, Extraordinary April, 19, 1948 has brought anew era in the field of social insurance legislation inIndia. Prior to this enactment there was no social

insurance legislation most of theprevious legislations could bedescribed as legislations ofsocial assistance. In fact socialsecurity of low paid employeesrequires Government action tosafeguard their welfare.

The Employees’ State InsuranceAct is a legislation which aimsat bringing about social justice

to the poor labour class of the land. It aims at thelabour welfare, which is an elastic term bearingsomewhat different interpretation in one country fromanother according to different social customs thedegree of industrialization and the educationaldevelopment of the workers.

Maternity Benefit implies periodical payment to aninsured woman in case of confinement or miscarriageor sickness arising out of pregnancy confincment pre-mature birth of child or miscarriage. For entitlementto Maternity Benefit, the insured woman should havecontributed for not less than seventy days in theimmediately preceding two consecutive contributionperiods with reference to the benefits period in whichthe confinement occurs or it is expected to occur.The daily rate of benefit is double the standard benefit

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WORK IS WORSHIP, DO YOUR DUTY


rate. Maternity Benefit in cash payable to an insuredwoman for a specified period of abstention from workdue to confinement miscarriage or sickness arisingout of pregnancy premature birth of child ormiscarriage or confinement Confinement connoteslabour resulting in the delivery of a living child orlabour after 26 weeks of pregnancy whether theresultant issue is alive or dead. Miscarriage meansexplulsion of the contents of a pregnant uterus atany period prior to or during the 26 th week ofpregnancy. Criminal abortion or miscarriage does notentitle the insured woman the benefit.

Notice of pregnancy

An insured woman, who decides to give notice ofpregnancy before confinement shall give such noticein Form 17 to the appropriate Branch Office by postor otherwise and shall submit together with suchnotice a certificate of pregnancy in Form 17 given inaccordance with these Regulations on a date notearlier than seven days before the date on which suchnotice is given.

Claim for maternity benefit commencing beforeconfinement

Every insured woman claiming maternity benefitbenefit before confinement shall submit to theappropriate Branch Office by post or otherwise-

(i) A certificate of expected confinement in Form18 given in accordance with theseRegulations not earlier than fifteen daysbefore the date of confinement;

(ii) A claim for maternity benefit in Form 19stating therein the date on which she ceasedor will cease to work for remuneration; and

(iii) Within thirty days of the date on which herconfinement takes place, a certificate ofconfinement in Form 18 given in accordancewith these regulations.

Claim for maternity benefit only after confinementor for miscarriage

Every insured woman claiming maternity benefit formiscarriage shall within 30 days of the date of the

miscarriage and every insured woman claimingmaternity benefit after confinement shall submit tothe appropriate office by post or otherwise a claimfor maternity benefit in Form 19 together with acertificate of confinement of miscarriage in Form 18given in accordance with these regulations.

Claim for maternity benefit after the death of aninsured woman leaving behind the child

For the purposes of the proviso to sub-section (2) ofsection 50 of the Act, the person nominated by thedeceased insured woman on Form 1 or on such otherForm as may be specified by the Director-General inthis behalf and if there is no such nominee the legalrepresentative shall submit to the appropriate officeby post or otherwise a claim for maternity benefit asmay be due in Form 20 within 30 days of the death ofthe insured woman together with a death certificatein Form 21 given in accordance with these regulations.

Claim for maternity benefit in case of sicknessarising out of pregnancy, confinement prematurebirth of child or miscarriage

Every insured woman claiming maternity benefit incase of sickness arising out of pregnancy,confinement, premature birth of child or miscarriage,shall submit to the appropriate office by post orotherwise a claim for benefit in one of the Forms Form9 appropriate to the circumstances of the casetogether with the appropriate medical certificate inForms 7 or 8 as the case may be given in accordancewith these regulations.

The provisions of Regulations 55 to 61 and 64 shallso far as may be apply in relation to claim submittedand a certificate given in accordance with thisregulation as they apply to certification and claimsunder those Regulations.

Other evidence in lieu of a certificate

The ESI Corporation may accept any other evidencein lieu of a certificate of pregnancy expectedconfinement confinement death during maternity

FORTUNE FAVOURS THE BRAVE


miscarriage or sickness arising out of pregnancyconfinement premature birth of child or miscarriageby an Insurance Medical Officer, if in its opinion thecircumstances of any particular case so justify.

Notice of work for remuneration

Except as provided in Regulation 89-B every insuredwoman who has claimed maternity benefit shall givenotice in Form 19 if she does work for remunerationon any day during the period for which maternitybenefit would be payable to her but for her workingfor remuneration.

Date of payment of maternity benefit

Maternity benefit shall be payable from the date fromwhich it is claimed provided that such date does notprecede the expected date of confinement by morethan forty-two days and that no work is undertakenby the insured woman for remuneration.

Disqualification for maternity benefit

An insured woman may be disqualified from receivingmaternity benefit if she fails without good cause toattend for or to submit herself to medical examinationwhen so required; and such disqualification shall befor such number of days as may be decided by theauthority authorized by the Corporation in this behalf.

Maternity Benefit in cash payable to an insuredwoman for a specified period of abstention fromwork, due to confinement miscarriage or sicknessarising out of pregnancy pre-mature birth of child ormiscarriage or confinement. ‘Confinement’ connoteslabour resulting in the delivery of a living child orlabour after 26 weeks of pregnancy whether theresultant issue is alive or dead. ‘Miscarriage’ meansexpulsion of the contents of a pregnant uterus atany period prior to or during the 26th week ofpregnancy. Criminal abortion or) miscarriage does notentitle the insured woman the benefit.

Conditionsfor Entitlement

Duration AmountPayable

Whomto be paid

Payment of contributionfor 70 days in one ortwo consecutive periods.

26 weeks of which not more thanthe 8 weeks can precede theexpected date of confinement.6 weeks for miscarriage or formedical termination of pregnancy.Additional month forcomplications payment for one(per or post)aris ing out ofpregnancy.

Sickness BenefitRate Medical bonusof RS. 5,000 whereESI hospital facilityis not available forchild delivery.

Only to the InsuredPerson. Only to theinsured woman or in r/owife of insured person.

The salary ceiling for coverage of an employee ispresently is ` 21.000 per month. Be it made clearthat the wife of the insured person (if she is not thefamily member) but the wife of the insured personwill be entitled to the Maternity Benefit Act. The

benefits under the ESI Act include Maternity BenefitAct to the insured persons and their family.

By...........H.L.Kumar AdvocateSource: FLR 2017 (155)

THE ANALOGY OF SECTION 2 (e),(g) & (i) OF MINIMUM WAGES ACT, 1948THE RELEVANT PROVISO OF SECTION 2

etion 2 of the Minimum Wages Act 1948 dealswith interpretation of certain terms in legal

parlance. It has eleven clauses but for our purposeof study we would discuss only three clauses viz.clauses ( e ) (g) (i). The relevant are as follows:

Section 2 ( e)Employer means any person who employs whether

directly or through another person or whether onbehalf of himself or any other person one or moreemployees in any scheduled employment in respectof which minimum rates of wages have been fixedunder this Act and includes except in sub-section (3)of section 26.

(i) In a factory where it is carried on any

MATERNITY BENEFIT

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STRONG REASONS MAKE STRONG ACTIONS

scheduled employment in respect of whichminimum rates of wages have been fixedunder this Act, any person named underclause (f) of sub-section (1) of section 7 ofthe Factories Act 1948 [63 of 1948] asManager of the factory;

(ii) In any scheduled employment under thecontrol of any Government in India inrespect of which minimum rates of wageshave been fixed under this Act, the personor authority appointed by such Governmentfor the supervision and control of theemployees or where no person or authorityis so appointed the head of the department-

(iii) In any scheduled employment under anylocal authority in respect of which minimumrates of wages have been fixed under thisAct, the person appointed by such authorityfor the supervision and control of employeesor where no person is so appointed the ChiefExecutive Officer of the local authority;

(iv) In any other cases where it is carried on anyscheduled employment in respect of whichminimum rates of wages have been fixedunder this Act any person responsible tothe owner for the supervision and control ofthe employees of for the payment of wages.

SECTION 2 (g)

“Scheduled employment" means an employmentspecified in the schedule or any process or branchof work forming part of such employment;

SECTION 2 (i):

“Employee” means any person who isemployed for hire or reward to do any workskilled or unskilled manual or clerical in ascheduled employment in respect of whichminimum rates of wages have been fixed;and includes an out-worker to whom anyarticles or materials are given out by anotherperson to be made up cleaned washedaltered ornamented finished, repaired

adapted or otherwise processed for sale forthe purposes of the trade or business of thatother persons where the process is to becarried out either in the home of the outworker or in some other premises not beingpremises under the control and managementof that other person; and also includes anemployee declared to be an employee by theappropriate Government but does not includeany member of the Armed forces of the Union.

THE CASE-LAW

The present case law which the author intends todiscuss is a case pertaining to Chitradurga DistrictMazdoor Sangh (Regd) v. Mysore Kirloskar Ltd.,decided by a Learned Division Bench of the Hon’bleHigh Court of Karnataka on August 14, 1998.

FACTS OF THE CASE:

A security agency was engaged by Mysore KirloskarLtd., to provide security service to the industry. It wasnoticed that the security guards were not paidminimum wages which culminated in filing of anapplication before the Authority under MinimumWages Act, 1948. The Principal Employer contestedthe case and raised a contention that security servicesis not a scheduled employment in the State ofKarnataka. The esteemed readers may please notethat at that point of time viz. when the applicationunder section 20 of the Minimum Wages Act, 1948was filed security services was not notified as ascheduled employment. It must be noted that whena particular employment has not been notified as ascheduled employment in that case the proviso ofMinimum Wages Act 1998 would not be applicable.

The Authority under the Minimum Wages Act 1948;before whom the application was filed did not acceptthe contention raised by the Principal Employer andallowed the application filed by the ChitradurgaMazdoor Sangh.

WRIT PETITION FILED BY THE PRINCIPALEMPLOYER:

Feeling aggrieved by the decision of the Authority

Labour Research,January-February-2018 10MAN IS THE ARCHITECT OF HIS OWN FUTURE

under Minimum Wages Act 1948; the PrincipalEmployer, Mysore Kirloskar Ltd., filed a writ petitionin the Hon’ble High Court of Karnataka. The LearnedSingle Judge heard the petition and ruled that theredid not exist a relationship of employer and employeebetween the Principal Employer and the Security staffprocured through the security agency.

While discussing the case-law, it would be very muchhelpful to cite the pleadings of both the partiesbefore the Authority under Minimum Wages Act1948. The Authority while hearing the claim caseconcluded as follows.

A. The applicant in his application and evidencehas stated that the workman deputed by IRespondent under the provisions of ContractLabour (R&A) Act 1970 were working withthe II Respondent and in this regard acertificate was issued to I Respondent underContract Labour Rule 25 (1) form V and onthe basis of said certificate the I Respondenthas secured licence under Contract Labour(R&A) Act 1970.

B. The Counsel appearing for the II Respondenthas stated that the workers of I Respondentare not the permanent workers of the IIRespondent and Muster roll, Wage Registersare not maintained by them and thedesignation/term Security Guard does notappear in the Notification of Government ofKarnataka and therefore the workers of IRespondent are not the workers of the IIRespondent.

C. The Counsel appearing for the beneficiarieshas stated that it was admitted by the IRespondent in their objections and evidencethat I Respondent had recruited guards whowere deputed to the establishment of IIRespondent he has also cited the statementof I Respondent as follows:

“I am working as Security Contractor, it istrue that Security Guards provided by usduring 1990-1991 to M/s Kirloskar, HariharaI have obtained the license under the

Contract Labour (R & A) Act at the time ofproviding guards to M/s Kirloskar Harihara.We ourselves have appointed the SecurityGuards who are deputed to Harihara.”

D. The Counsel appearing for the beneficiarieshas stated the verdict of Kerala High Courtin the case Kerala State Coir corporationLtd. v. Industrial Tribunal O.P.No. 6767/90 dated 29.11.1994 which has held thatworkers deputed by M/s .State Securityguards to work in Kerala State CoirCorporation may raise an industrial disputeas they become the workman of the PrincipalEmployer under section 2 (s) of the IndustrialDisputes Act 1947.

E. On the basis of the above documents andthe arguments I have come to the conclusionthat the applicant has proved that the aboveworkman were the workers of theRespondent and I answer in affirmative forthe Issue NO.4.

It has already been metioned that the learned SingleJudge ruled against the decision of the Authorityunder Minimum Wages Act 1948 but however thelearned Single Judge ruled against the decision ofthe Authority under Minimum Wages Act 1948 buthowever the learned Single Judge directed thepayment of ` 1.00,00/- terming the same asex-gratia payment.

SUBMISSIONS BEFORE THE DIVISION BENCH:

The following submissions were made on behalf ofthe beneficiaries before the Learned Division Bench:

1. That Engineering Industry carried on byMysore Kirloskar Ltd., has employed thesecurity personnel through the contractor-Respondent No.4 for the purpose of itsEstablishment.

2. That the Engineering Industry is stated tohave already been notified under the Act.

3. That Mysore Kirloskar Ltd., being the


WORKERS OF INDIA, UNITE

principal Employer has to ensure paymentof minimum wages with respect to thescheduled employment.

4. That the terms of contract entered intobetween the Engineering Industry ofRespondent No. 1 and Detective Agencyof Respondent No.4 also had stipulated forpayment of minimum wages.

ANALYSIS OF THE CONTENTIONS RAISED BYTHE BENEFICIARIES:

The Learned Division Bench analyzed thecontentions raised by the beneficiaries anddescribed the objects of the Act briefly as follows:

“The Act was enacted to provide for fixingminimum rates of wages in certainemployments. The object of the Act wasnoted by the Supreme court inY.A.M.Amorde V. Authority under theMinimum Wages Act wherein it was heldthat it was enacted to provide for fixingminimum rates of wages with the objectto minimize the exploitation of the ignorantless organized And less privilegedmembers of the society by the capitalistclass.”

The learned Division Bench has also referred tosection 3 (fixing of Minimum Wages), Section 2 (i)and stated as follows at paragraph o.7.

“A perusal of the definitions referred tohereinabove would clearly show that theprincipal employer shall be deemed to bean employer notwithstanding the availingof service indirectly through anotherperson and liable to pay the minimumwages under the Act, if the employmentcarried on by it is notified and shown assuch in the scheduled employment of theAct. It is concluded before us that PrincipalEmployer-Respondent No.1 herein wasengaged in the Employment which was ascheduled employment under the Act asNotified vide Govt. of KarnatakaNotifications No. SWL131MW 85-11 Dated18.2.1987.

Reliance on People’s Union for Democratic RightsCase

The Learned Division Bench while hearing the appeal,relied on the case of People’s Union for DemocraticRights v. Union of India and others wherein theHon’ble Supreme Court held that where a personprovides labour or service to another for remunerationwhich is les than the minimum wage was held entitledto come to the Court for enforcement which of lessfundamental right under Article 23 by asking the Courtto direct payment of minimum wages to him so thatlabour or service provided by him ceases to be forcedlabour and the each of Article 23 was remedied. Itfurther held:

“It is therefore clear that when the petitionersalleged that minimum Wage was not paid tothe workmen employed by the contractors, thecomplaint was really in effect employed bythe contractors the complaint was really ineffect and substance a complaint againstviolation of the fundamental right of theworkman under Article 23.

NO OTHER MEANING TO THE DEFINITIONS:

The Hon’ble High Court while referring to the termemployment and section 2 ( e ) of the Act has ruled asfollows:

“The word employment as used in the Scheduleto the Act must be construed in the context ofthe definition of the word employer ascontained in section 2 ( e) of the Act and evenif a worker prepares goods at his ownresidence and supplies to the employer he forthe person engaging him in scheduledemployment for reward of wages under anobligation to comply with the provisions of theAct and the Rules made thereunder. Givingdefinition any other meaning would defeat thepurpose and object of the Act. Such anapproach would only deprive the workers thepayment of minimum wages but would alsobe against the public policy in an much as inall such cases the principal employer insteadof directly employing the persons for its


A GOOD MAN DOES NOT ARGUE, HE WHO ARGUES IS NOT A GOOD MAN

business and allied matters may procure theservice through agencies and organizationswho have not specifically been included inthe schedule of the Act.

INTERPRETATION OF INDUSTRIAL LAWS:NEEDS A RATIONAL APPROACH:

While dealing with the interpretation of industriallaws the Hon’ble High Court has said that whiledealing with industrial laws, a rational approach isneeded. The Hon’ble High Court has explained asto why rational approach is needed for industriallaws. The relevant portion is extracted below:

“While dealing with industrial laws arational approach is needed keeping inmind the controversy and the object intended

[2016 (151) FLR 1062](MADHYA PRADESH HIGH COURT)

SUJOY PAUL, J.Writ Petition No. 5465 of 2015

August 3, 2016Between

Smt. RAJKUMARI SINGH (RAJ SINGH)and

STATE OF M.P. and another

Disciplinary Proceedings—Which ended with imposition of punishment of censure—However thereafterGovernment issued notice to petitioner to show cause as to why punishment of censure should not beenhanced/ modified by withholding of four increments with non cumulative effect—However, thereviewing authority can exercise certain powers under Rule 29 of M.P.C.S. (C.C.A) Rules—Enquiry wasreopened by issuance or fresh charge-sheet—Impugned order is liable to be interfered, with the solereason that a person cannot be put to notice for one reason and put to jeopardy for another reason—M.P.C.S. (C.C.A) Rubes—Rules 29 (1) proviso. [Para 4]

to be achieved by the enactment sought tobe relied upon by the workman. In thisregard, the Authority under the Act dealt withthe evidence led before it and rightlyconcluded that the Respondent Establishmentcame within the purview of the Act and liableto pay the minimum wages…”

In the result the learned Division Bench of the Hon’bleHigh court set aside the order of the Learned SingleJudge and upheld the order passed by the Authorityunder Minimum Wages Act, 1948.

Ajaya Kumar SamantarayDeputy Chief Labour Commissioner (Central),

Dhanbad-826003

Source: FLR 217 (155)

JUDGMENT

SUJOY PAUL J.—Learned Counsel for the petitioneradvanced singular contention. He submitted thatpetitioner was subjected to a disciplinary proceedingwhich ended with imposition of punishment ofcensure on 3.5.2014. Thereafter, petitioner did not

prefer any appeal. The Government by notice dated27.8.2014 directed the petitioner to show cause as towhy punishment of censure should not be enhanced/modified by withholding of four increments with non-cumulative effect. Petitioner submitted his responsevide Annexure P/6. Thereafter, respondents issued afresh charge- sheet Annexure P/7 dated 21.11.2014

Judicial Verdict

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and conducted the inquiry by appointing an inquiryofficer. His report is Annexure P/1 dated 9.4.2015.The singular ground of attack is that the competentauthority issued tile show-cause notice for a limitedpurpose whereas decision taken was for a differentpurpose. Accordingly, the proceedings from thatstage be interfered with.

2. Prayer is opposed by Shri Girish Kekre, GA for therespondents/State. He relied on various paragraphsof the return.

3. I have heard the parties at length and perused therecord.

4. In the opinion of this Court, the reviewing authoritycan exercise certain powers under Rule 29 of M.P.CS(CCA) Rules. However it is noteworthy that show-cause notice dated 27.8.2014 was only formodification of the punishment. Naturally, petitioneralso filed his response to that limited extent i.e. uptowhich order of punishment was sought to be modifiedby the competent authority. However, the competentauthority did not deal with that aspect ofenhancement of punishment and reopened the

inquiry by issuance of a fresh charge-sheet. In myview, as per proviso to Rule 29(1) of the MPCS(CCA)Rules, the competent authority can direct forconducting an inquiry as per Rule 14 of the CCA Rulesprovided he intended to enhance the punishmentwhich are covered under clauses (v) to (ix) of Rule 10of the CCA Rules i.e. major punishments. However,the reasons shown in order Annexure P/5 makes itclear that he wanted to substitute a minor punishmentby another minor punishment. Hence, for thatpurpose, there was no question to conduct regularinquiry under Rule 14 of CCA Rules. The impugnedorder is liable to be interfered with for the sole reasonthat a person cannot be put to notice for one reasonand can put to jeopardy for another reason.Resultantly, the action of respondents from the stagei.e. beyond issuance of notice dated 27.8.2014 is setaside. The liberty is reserved to the respondents toproceed against the petitioner in accordance withlaw.

5. Petition is allowed to the extent indicated above.

Petition Allowed.

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