2010(6) ALL MR 18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

B.P. DHARMADHIKARI, J.

Madhav S/O. Sitaramji Ramteke & Ors.Vs.Central Cables Ltd. & Anr.

Writ Petition No.3380 of 1999

1st September, 2010

Petitioner Counsel: Mr. M. V. MOHOKAR
Respondent Counsel: Mr. KAKANI,Mr. T. R. KANKALE

Minimum Wages Act (1948), S.21 - Claim for minimum wages - Nature of industry is basic dispute between parties - Proper finding be recorded by Industrial Court.

In the instant case, the basic dispute between parties is about the exact nature of the industry. The Industrial Court did not record any specific finding about it was pending. Before High Court, the material shows a claim for minimum wages by treating industry to be an engineering industry or in the alternative as a plastic industry. Effort of respondent employer is to show that it is a residuary industry. Unless and until, after appreciating evidence and entire material, a proper finding is recorded by court competent to do so, this court in writ jurisdiction cannot for the first time consider the said controversy. Hence, it is apparent that matter needs to be sent back to Industrial Court for taking fresh decision in accordance with law. [Para 11]

JUDGMENT

JUDGMENT:- Matter is part-heard. Today respective counsel have concluded their arguments.

2. During arguments, my attention has been invited to the orders of this court dated 20/11/2008, by which this court has directed Government to file affidavit about the type of Industry carried out by respondent no.1. That affidavit has been placed on record on 29/7/2010. Its perusal shows that deponent Shri. R. B. Jadhav, Assistant Commissioner of Labour, Nagpur, has stated therein that it is engineering Industry. The enquiry report submitted by a Committee of three Government Labour Officers after visiting the establishment shows that, according to them, the issue needs judicial adjudication. They have also placed on record a chart pointing out the machines employed, purpose thereof and nature of activity.

3. Shri. Kakani, has pointed out that during pendency of present writ petition the establishment of respondent no.1 has been inspected on 13/2/2006 and therein the nature of employment/Industry has been specified to "residuary" . The similar inspection carried on 4/4/2008 is also pressed into service to show that it also classifies Industry of respondent as 'residuary' one. According to him, both these reports are by two Government labour officers each. He has also brought to notice of this court that a Minimum Wage application (MWA) No.1 of 2006 has been filed by Minimum Wage Inspector under Section 21 of Minimum Wages Act for recovering alleged arrears on account of difference between wages as paid by respondent no.1 and wages prescribed for residuary Industry.

4. These subsequent events are stated by me in the beginning because it has become clear that matter needs to be remanded back to Industrial court.

5. The petitioners filed ULP (complaint) No.1349 of 1996 on 5/12/1996 claiming difference of wages on the ground that Industry in which they work is an engineering Industry and hence minimum wages prescribed for that Industry ought to have been paid to them. The learned counsel for the petitioners has pointed out that there are inspection reports which show that Industry was then classified as engineering industry and an application in MWA No.18 of 1995 was filed by Minimum Wage Inspector for recovery of arrears accordingly for period of six months. In ULP (complaint), the arrears for period prior to that period were sought. It is brought to notice of this court that in scheduled appended to Minimum Wages Act in exercise of power under Section 27 thereof, residuary industry has been added on 6/12/1996. Effort, therefore, is to demonstrate to this court that prior to 6/12/1996 categorization of respondent no.1 as residuary industry was not possible.

6. In this background, Advocate Mohokar has contended that the learned Member of Industrial Court ought to have adjudicated upon the nature of industry and it has abdicated its jurisdiction in favour of Labour Court. He points out that Labour Court could have in proceedings under Section 20 and 21 of the Minimum Wages Act considered the nature of industry but then as those proceedings in MWA.No.18 of 1995 were being prosecuted by department, the same have been dismissed in default. His contention is - Industrial court ought to have, therefore, considered the material brought on record by the petitioners about the nature of activity or operations undertaken in the establishment of respondent no.1 to find out whether it constitutes engineering industry or not. He has taken me through the relevant evidence to urge how necessary material for said purpose is already available.

7. Advocate Kakani, on the other hand, has urged at the outset that ULP (complaint) as filed was under Item No.9 of Schedule IV of MRTU and PULP Act, 1971. Hence, a settled service condition needed to be established and as in present matter the dispute about categorization of industry is yet not settled, said ULP (complaint) was premature and has been rightly dismissed by the Industrial Court. He states that after adjudication by labour Court in MWA No.18 of 1995, the issue could have been raised properly.

8. After pointing out subsequent events he has also invited attention to amendment made to original complaint before Industrial Court by adding paragraphs 4-A and 4-B. He contends that the petitioners have sought minimum wages payable to plastic industry by said amendment and plastic industry is a distinct entry in schedule of Minimum Wages Act.

9. Learned counsel, therefore, argues that the petitioners themselves are not certain about nature of industry and till such nature is appropriately dealt with and declared, ULP complaint under Item 9 could not have been filed. He points out that even three Government Labour Officers, who visited the establishment after orders of this court dated 20/11/2008, could not with certainty certify the nature of activity. He has invited attention to the fact that deponent - Assistant Labour Commissioner Shri. Jadhav has been examined as their witness by petitioners before the Industrial Court. Shri. Jadhav, who was then the Labour Officer and he has deposed in favour of the petitioners, has stuck to same stand even in affidavit filed before this court. He, therefore, states that in writ jurisdiction, this court should not interfere.

10. In brief reply, Advocate Mohokar has pointed out that the subsequent events being pressed into service before this court were not before the Industrial Court. Similarly, the objection to maintenability of the ULP (Complaint) is by way of after thought and there was no such effort before Industrial Court. He points out that Industrial Court has not dismissed the complaint after recording a finding that ULP complaint as filed is not maintenable. He has further stated that claim for minimum wages of plastic industry was made in the alternative.

11. After hearing respective counsel including learned AGP, I find that basic dispute between parties is about the exact nature of the industry. The Industrial Court did not record any specific finding about it because then MWA No.18 of 1995 was pending. Before this court, the material shows a claim for minimum wages by treating industry to be an engineering industry or in the alternative as a plastic industry. Effort of respondent no.1 is to show that it is a residuary industry. Unless and until, after appreciating evidence and entire material, a proper finding is recorded by court competent to do so, this court in writ jurisdiction cannot for the first time consider the said controversy. Hence, it is apparent that matter needs to be sent back to Industrial Court for taking fresh decision in accordance with law.

12. Events briefly noted above also show that subsequently some other material has been procured by both parties and they wish to use it against each other. Relevance of that material is not in dispute. Hence, parties need to be given opportunity to place that material before Industrial Court. For that purpose, it is necessary to permit parties to amend their respective pleadings.

13. In this situation, without recording any finding on various issues raised by both learned counsel before me and only to have a proper adjudication about the disputed nature of industry, impugned order dated 6/5/1999 delivered by Industrial Court in ULP Complaint No.1349 of 1996 is hereby quashed and set aside. The said complaint is restored back to the file of Industrial court for giving parties opportunity to amend their pleadings, to produce necessary documents to substantial their contentions and to lead additional evidence, if any. It is clarified that parties are at liberty to raise all defences available to them in law in the matter.

14. The Industrial Court shall after the process of amendment is over, attempt to decide ULP complaint finally as early as possible and in any case within nine months thereof. Parties are directed to appear before the Industrial Court on 20th September, 2010 and to abide by its further directions in the matter.

Rule is made absolutely accordingly. No costs.

Ordered accordingly.