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The Payment of Wages Act, 1936
Section 2 in The Payment of Wages Act, 1936
The Minimum Wages Act, 1948
Section 15 in The Payment of Wages Act, 1936
Section 2(i) in The Payment of Wages Act, 1936

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Allahabad High Court
U.P. Basic Shiksha Parishad ... vs Prescribed Authority Under ... on 31 March, 2006
Equivalent citations: 2006 (3) AWC 2992, (2006) IIILLJ 417 All
Author: S Yadav
Bench: S Yadav

JUDGMENT

Sabhajeet Yadav, J.

1. By this petition, the petitioner has challenged the order dated 30.3.1993 (Annexure -1 of the writ petition) passed by Prescribed Authority under the provisions of Payment of Wages Act 1936 in P.W. Case No. 74 of 1991 Smt. Pramila Devi v. District Basic Education Officer, Jhansi and Ors. whereby the prescribed authority has allowed the application of Respondent No. 2 under Section 15(2) of Payment of Wages Act 1936 and granted a sum of Rs. 1,45,376/- as arrears of wage for the period claimed and equal sum of Rs. 1,45,376/- as compensation thus total amount in tune of Rs. 2,90,752/- along with Rs. 200/- cost.

2. The relief claimed in the writ petition rests on the allegation that some posts of Assistant teacher in Junior Basic School run by Basic Shiksha Parishad fell vacant in district Jhansi. To fill up the aforesaid posts advertisement was made, inviting applications from desirous candidates. In pursuance thereof several applications were received including that of respondent No. 2. Selection was conducted by duly constituted Selection Committee and respondent No. 2 stood at serial number 15 in the select list and accordingly she was offered appointment vide letter dated 27th March, 1991 (Annexure-2 of the writ petition), in pursuance thereof she joined the post of Assistant Teacher, Junior Basic School and after having joined the post she moved an application stating that she had been appointed and worked as untrained Assistant Teacher in Primary School with effect from 31.1.1967 to 24.7.1969, thereafter she was sent for B.T.C. training on 24.7.1969 and on completion of her B.T.C. training she has resumed her earlier post on 1.7.1972. Thereafter she requested to change her status as trained teacher instead of untrained teacher but authorities did not pay any heed over the matter thus the Respondent No. 2 continued to work on her original post without any payment of her salary and compelled to move said application before Prescribed Authority under Payment of Wages Act, 1936 at Jhansi vide P.W. Suit No. 74 of 1991.

3. In reply to the various averments to the application of Respondent No. 2 a counter affidavit/written statement had been filed by petitioner No. 2 before the Prescribed Authority and a rejoinder affidavit was also filed by respondent No. 2 thereon. There upon vide order dated 30.3.1993, (Annexure-1 of the writ petition), passed by the respondent No. 1, the claim of respondent No. 2 was allowed and sum of Rs. 2,90,752/- was granted as arrears of salary including compensation to her, hence this petition.

4. The petitioners have assailed the impugned order dated 30.3.1993 on various grounds including the applicability of provisions of the Payment of Wages Act 1936 and on question of limitation and jurisdiction of Prescribed Authority to adjudicate the dispute in question, besides the claim of respondent No. 2 on merits.

5. In reply to the allegations made in the writ petition a detail counter affidavit has been filed by respondent No. 2 wherein the stand taken by her in nut shell has been stated in para 3 to 12 and para 16 before giving parawise reply of the writ petition as under:

3. That the humble deponent was originally appointed as a Primary School Teacher by the Competent Authority vide appointment order dated 27.1.1969 and accordingly she joined on 31.1.1969. The true copy of the appointment order is being filed and marked as Annexure C.A.-I to this affidavit.

4. That since the humble deponent was unqualified, she was directed through letter dated 24.7.1969 to qualify in the prescribed training. It was specifically cited while sending her for training that in case she does not proceed for training, her services shall he terminated. The true copy of the letter dated 24.7.69 is being filed and marked as Annexure C.A.-II to this affidavit.

5. That from the contents of the above letter dated 24.7.69 (Annexure C.A. II) this Hon'ble Court may kindly find that while sending the deponent for training, her status as un-qualified teacher was still retained and maintained in the department.

6. That thereafter, the humble deponent completed her training of 2 years as BTC and after completion thereof, she joined hack on her substantive post on 1.7.1972 and she has also physically worked thereafter as a qualified Teacher without any break from 1.7.1972 onwards. The true copy of the joining letter dated 1.7.1972 is being filed and marked as Annexure C.A.-III to this affidavit.

7. That the true copy of the attendance register duly initialed by the humble deponent and inspected by AIGS (Assistant Inspector for Girls School) from time to time is being filed and marked as Annexure C.A. -IV to this affidavit.

8. That the humble deponent, however, was much aggrieved by the action of petitioners, inasmuch as while the deponent was at work and her services were not terminated, or discharged or dispensed with in any manner whatsoever, her salary was illegally and unauthorisedly deducted. The humble deponent submitted series of representations and true copies thereof are being filed and marked as Annexures C.A. V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX and XX to this affidavit.

9. Since the petitioners failed to pay the salary inspite of the fact that the humble deponent was always at work, though her salary was deducted unauthorisedly, it was only the remedy open to her, the humble deponent filed claim application under Section 15(2) of the Payment of Wages Act 1936 (No. 74/91 Pramila Devi v. Basic Shiksha Adhikari, Jhansi).

10. That the above claimed filed before the Prescribed Authority was contested by the petitioners and after exchange of counter and rejoinder affidavit, the claim of the humble deponent was decided and was allowed to the tune of Rs. 1,45,376/- as principal amount towards accrued wages and equivalent amount thereof as compensation thus making it to Rs. 2,90,752/-.

11. That it is specifically stated that the plea of limitation was raised by the petitioners before the Prescribed Authority and the same was decided separately through a speaking order and the delay was condoned vide judgment dated 20.1.1992. The true copy of the judgment is being filed and marked as Annexure XXI to this affidavit.

12. That the petitioners, however, did not prefer any appeal or any writ petition against the above order of the prescribed Authority condoning the delay. Undoubtedly, the Prescribed Authority was within its own jurisdiction to condone the delay under Section 15(2) of the Payment of Wages Act, the exact wordings of which are reproduced below:

Provided that every such application shall be presented within (twelve months) from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be.

Provided further that any application may he admitted after the said period of (twelve months) when the applicant satisfied the authority that he had sufficient cause for not making the application within such period.

16. That the direction given by the Prescribed Authority has become final and absolute as no appeal has been filed before the District Judge under Section 17 of the Payment of Wages Act, the exact reproduction of Section 17(2) of Payment of Wages Act is being reproduced below:

No appeal under Clause (a) of Sub-clause (1) shall lie unless the memorandum of appeal is accompanied by a certificate by the Authority to the effect that the appellant has deposited the amount payment under the direction appealed against.

(2) Same as provided in Sub-section (1) any order dismissing either wholly or in part an application made under Sub-section (2) of Section 15, or a direction made under Sub-section (3) of Sub-section (4) of that section shall be final.

6. Thus on the basis of pleadings of the parties and available evidence on record the Prescribed Authority has adjudicated the controversy in favour of respondent No. 2 by framing three specific issues. Thus it is necessary to examine them by recapitulating again as under:

(1) As to whether the provisions of Payment of Wages Act applies to the teachers of such institutions?

(2) As to whether the claim of respondent No. 2 was barred by time and law of limitation?

(3) As to whether the respondent No. 2 was entitled for the relief claimed and awarded in the impugned order?

7. I have heard Sri K.S. Shukla, learned Counsel for the petitioner and no one appears on behalf of the contesting respondent No. 2, when the case was called out in the revised list.

8. The first question which arises for consideration is that as to whether the provisions of Payment of Wages Act 1936 is applicable in given facts and circumstances of the case or not? In this connection it is pointed out that while taking assistance of the provisions of Section 22F of the Minimum Wages Act 1948, hereinafter referred to as Act, 1948, the Prescribed Authority has held that since the respondent No. 2 was appointed in the scheduled employment included under the aforesaid Act, therefore, in view of the aforesaid provisions of aforesaid Act, the provisions of Payment of Wages Act 1936 (hereinafter referred to as the Act 1936) is applicable in respect of wages payable to the respondent No. 2. For better appreciation of the question in issue the provisions of Section 22F of Act 1948 is reproduced as under:

22-F. Application of Payment of Wages Act, 1936, to scheduled employments.- Notwithstanding anything contained in the Payment of Wages Act, 1936 (4 of 1936) the appropriate Government may, by notification in the Official Gazette direct that, subject to the provisions of Sub-section (2), all or any of the provisions of the said Act, shall, with such modifications, if any, as may be specified in the notification, apply to wages payable to employees in such scheduled employment as may be specified in the notification.

(2) Where as or any of the provisions of the said Act are applied to wages payable to employees in any scheduled employment under Sub-section (1), the Inspector appointed under this Act shall he deemed to be the Inspector for the purpose of enforcement of the provisions so applied within the local limits of his jurisdiction.

9. On a careful reading of the aforesaid provisions of Act 1948 it reveals that notwithstanding anything contained in the payment of wages Act, 1936, the appropriate Government may by notification apply all or any of the provisions of said Act in respect of wages payable to the employees in such scheduled employment as may be specified in such notification. In other words, it means that irrespective of non-application of provisions of the Act 1936 on its own strength in respect of certain class of employees, the provisions of the Act-1936 can be made applicable by notification of appropriate Govt. in respect of payment of wages of such employees if then employment is under scheduled employment of Act-1948. But before dealing with this issue in detail at this stage it is necessary to examine first the relevant provisions of the Act 1936.

10. Section 1 of the Act 1936 deals with the short title, extent, commencement and application of the provisions of Act as under:

1. Short title, extent, commencement and application.- (1) This Act may be called The Payment of Wages Act, 1936.

(2) It extends to the whole of India {****}

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

(4) It applies in the first instance to the payment of wages to persons employed in any {factory, to persons} employed (otherwise that in a factory) upon any railway by a railway administration or, either directly or through a subcontractor, by a person fulfilling a contract with a railway administration {and to persons employed in an industrial or other establishment specified in Sub-clauses (a) to (g) of Clause (ii) of Section 2}.

(5) The State Government may, after giving three months' notice of its intent ion of so doing, by notification in the Official Gazette, extend the provisions of {this Act} or any of them to the payment of wages to any class of persons employed in {any establishment or class of establishments specified by the Central Government or a State Government under Sub-clause (h) of Clause (ii) of Section 2}:

{Provided that in relation to any such establishment owned by the Central Government no such notification shall be issued except with the concurrence of that Government}.

(6) Nothing in this Act shall apply to wages payable in respect of a wage period which over such wage-period, average {one thousand six hundred rupees}, a month or more.

11. On a plain reading of the aforesaid provisions of Section 1 of the Act 1936, it is clear that the provisions of the Act, extends to the whole of India in its application from appointed date notified by the Central Government in Official Gazette Sub-section (4) provides that the provisions of Act applies in the first instance to the payment of wages to persons employed in any factory, to persons, employed (otherwise than in a factory) upon any Railway by a Railway administration or either directly or through a sub-contractor, by a person fulfilling a contract with a Railway administration and to persons employed in an industrial or other establishment specified in Sub-clauses (a) to (g) of Clause (ii) of Section 2. Sub-section 5 of which provides that the State Government may, after giving three months notice of its intention of so doing by notification in Official Gazette. extend the provisions of this Act or any of them to the payment of wages to any class of persons employed in any establishment or class of establishments specified by the Central Government or a State Government under Sub-clause (h) of Clause (ii) of Section 2.

12. Now it is necessary to have a glance over the provisions of Section 2 with Section 2(ii)(a) to (g) and (h) of the Act 1936. which reads as under;

2. Definitions.- In this Act, unless there is anything repugnant in the subject or context.-

(i) "employed person" includes the legal representative of a deceased employed person;

(ia) "employer" includes the legal representative of a deceased employer:

(ib) "factory" means a factory as defined in Clause (m) of Section 2 of Factories Act, 1948 and includes any place to which the provisions of that Act have been applied under Sub-section (1) of Section 85 thereof;

(ii) "Industrial or other establishment" means any

(a) tramway service, or motor transport service engaged in carrying passengers or goods or both by road, for hire or reward:

(aa) air transport service other than such service belonging to. or exclusively employed in the military, naval or air forces of the Union or the Civil Aviation Department of the Government of India;

(b) dock, wharf or jetty;

(c) inland vessel, mechanically propelled:

(d) mine, quarry or oilfield:

(e) plantation;

(f) workshop or other establishment in which articles are produced, adapted or manufactured with a view to their use, transport or sale:

(g) establishment in which any work relating to the construction, development or maintenance of buildings, roads, bridges or canals, or relating to operations connected with navigation, irrigation or the supply of water, or relating to the generation, transmission and distribution of electricity or any other form of power is being carried on;

(h) any other establishment or class of establishments which the Central Government or a State Government may, having regard to the nature thereof, the need for protection of persons employed therein and other relevant circumstances, specify, by notification in the Official Gazettee.

13. From a bare perusal of Section 2 containing the definition clause of the Act, it is clear that words or expressions defined, thereunder, arc preceded by phrase "unless there is any thing repugnant in the subject or context", which normally means that unless context otherwise requires, the meaning assigned in the definition clause shall be given effect in the statute, but this normal rule may however be departed from if there be some thing in the context to show that the definition should not be applied. The words and expressions defined in the definition clause of Section 2, are used in both the ways, some words have been defined by using expansive or inclusive definition like "includes" whereas some words or expression have been defined by using restrictive clause like "means".

14. Now question arises for consideration as to how these expressions would be interpreted? In this connection it is pointed out that the golden rule of interpretation of statute in connection of definition clause has been laid down by Hon'ble Apex Court in S.K. Gupta and Anr. v. K.P. Jain and Anr. AIR 1979 S.C. 734, wherein in para 25 of the decision while taking note of earlier decisions Hon'ble Apex Court observed as under:

25. The noticeable feature of this definition is that it is inclusive definition and where in a definition clause the word 'include' is used, it is so done in order to enlarge the meaning of the words or phrases occurring in the body of the statute when it is so used, these words or phrases must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include (see Dilworth v. Commr. of Stamps (1899) A.C 99 at p. 105). Where in a definition section of a statute a word is defined to mean a certain thing, wherever that word is used in that statute, it shall mean what is stated in the definition unless the context otherwise requires. Hut where the definition is an inclusive definition, the word not only bears its ordinary, popular and natural sense whenever that would be applicable but it also bears its extended statutory meaning. At any rate, such expansive definition should he so construed as not cutting down the enacting provisions of an Act unless the phrase is absolutely clear in having opposite effect (see Jobbins v. Middlesex County Council (1949) 1 KB 142). Where the definition of an expression in a definition clause is preceded by the words 'unless the context otherwise requires', normally the definition given in the section should be applied and given effect to but this normal rule may, however, be departed from if there be something in the context to show that the definition should not be applied (sec Khanna, J. in Indira Nehru Gandhi v. Raj Narain . It would thus appear that ordinarily one has to adhere to the definition and if it is an expansive definition the same should be adhered to. The frame of any definition more often than not is capable of being made flexible but the precision and certainly in law requires that it should not be made loose and kept tight as far as possible (see Kalya Singh v. Genda Lal ).

15. Thus from the aforesaid settled legal position it is clear that where in a definition section of a statute, a word is defined to mean a certain thing, wherever that word is used in that statute it shall mean what is stated in the definition, unless the context otherwise requires but where the definition is an inclusive or expansive definition, which enlarge the meaning of words or phrase occurring in the body of statute, when it is so used, these words or phrases must be construed as comprehending not only such things which they signify according to their natural import but also those things which the interpretation clause declares that they shall include, in other words, the word does not only bears its ordinary, popular and natural sense whenever that would be applicable but it also bears its extended statutory meaning. At any rate such expansive definition should be so construed as not cutting down the enacting provision of Act unless the phrase is absolutely clear in having opposite effect.

16. Having regard to the restricted meaning assigned to the expression "industrial or other establishment" the educational institution, though otherwise falls and comprehended within definition of expression "Industry" under the broader sweep of Industrial Dispute Act but does not fall within any category of establishments given under Clause (ii) (a) to (g) of Section 2 of the Act 1936. It is also no where indicated in the impugned judgment that any notification has been issued purporting to be under Section 1(5) of the Act 1936 extending the provisions of Act in respect of payment of wages to any class of persons employed in the educational institution and such institution has been specified by Central Government or State Government under Clause (h) of Clause (ii) of Section 2 of the Act 1936. However as indicated in the impugned judgment that the employment in question is one of the scheduled employment under Minimum Wages Act 1948 and by virtue of the provisions of Section 22F of Minimum Wages Act 1948, which have overriding effect on the provisions of Payment of Wages Act, the provisions of Payment of Wages Act have been made applicable to the employees of scheduled employment but no reference of any such notification along with full particulars has been given in the impugned judgment.

17. Assuming for the sake of arguments that the provisions of the Act 1936 were made applicable by virtue of Section 22F of the Act, 1948 so far as it relates to the payment of wages of employees of scheduled employment is concerned notwithstanding any thing contained under the Act 1936, as the provisions of Act 1948 have overriding effect upon the provisions of Act 1936, even then it is necessary to examine as to whether the provisions of Act 1948 itself have any application to the "teachers" of such Basic Educational Institution, assuming that such Basic Educational Institution is covered under such notification by including it or embracing it under scheduled employment?

18. Before adverting to the aforesaid question, it is necessary to examine as to whether the teachers are "workman" under the Industrial Dispute Act? In this connection it is necessary to point out that the aforesaid question came up for consideration before Hon'ble Apex Court in A. Sundarambal v. Government of Goa Daman Diu , wherein Hon'ble Apex Court has held that even though an educational institution has to be treated as an industry, teachers in an educational institution cannot be considered as "workman". The teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or postgraduate education cannot be called as 'workman' within the meaning of Section 2(s) of the Act. Imparting of education which is the main function of teachers cannot be considered as skilled or unskilled manual work or supervisory work or technical work or clerical work. Imparting of education is in the nature of a mission or a noble vocation. The clerical work, if any, they may do, is only incidental to their principal work of teaching.

19. Thus in view of the law laid down by Hon'ble Apex Court referred herein before, it is clear that even though an educational institution imparting education primary, secondary, graduate or post graduate level has to be treated as industry, but the teachers in such educational institution, cannot be considered as workman for simple reason that imparting of the education which is main function of teachers cannot be considered as skilled or unskilled, manual, supervisory, technical or clerical work, rather it is in the nature of a mission or noble vocation.

20. Now coming to the question as to whether the teachers are covered by definition of "employee" under the Act 1948? This question came up for consideration before Hon'ble Apex Court in Haryana Unrecognised Schools Association v. State of Haryana , wherein Hon'ble Apex Court has held as under: A combined reading of Sections 3, 2(i) and 27 of the Minimum Wages Act, 1948 and the statement of objects and reasons of the legislation makes it explicitly clear that the State Government can add to either part of the Schedule any employment where persons are employed for hire or reward to do any work skilled or unskilled, manual or clerical. If the persons employed do not do the work of any skilled or unskilled or of a manual or clerical nature then it would not be possible for the State Government to include such an employment in the Schedule in exercise of power under Section 27 of the Act. Since the teachers of an educational institution are not employed to do any skilled or unskilled or manual or clerical work and therefore, could not be held to be an employee under Section 2(i) of the Act, it is beyond the competence of the State Government to bring them under the purview of the Act by adding the employment in educational institution in the Schedule in exercise of power under Section 27 of the Act, Hence, the State Government in exercise of power under the Act is not entitled to fix the minimum wage of such teachers. The impugned notifications so far as the teachers of the educational institution are concerned are accordingly quashed.

21. Thus in view of aforesaid settled legal position since under Section 2(i) of the Minimum Wages Act 1948 the word "employees" is defined to mean that, any person who is employed for hire or reward to do any work, skilled or unskilled manual or clerical in a scheduled employment in respect of which minimum rates of wages have been fixed and since the teachers are not employed to do any skilled or unskilled or manual or clerical work, therefore, they could not be held to be an employee under Section 2(i) of the Act, 1948, thus it is beyond the competence of the State Government to bring them under the provisions of the Act 1948 by adding the employment in educational institution in Scheduled employment of the Act 1948 by invoking the powers under Section 27 of the Act

22. Thus on a joint reading of Section 2(i) and Section 27 of the Act 1948, there can be no scope for doubt to hold that since the teachers employment irrespective of the level of imparting education, despite Basic Educational Institution being included in the scheduled employment, cannot be included in the scheduled employment, therefore, by virtue of the provisions of Section 22F of the Act 1948, the provisions of Act 1936, so far as it pertains payment of wages of teachers are concerned cannot be held applicable, accordingly any provisions including Section 15, 16 and 17 of the Act 1936 cannot be held applicable in respect of payment of wages of such teachers. Therefore, the authority appointed/prescribed for adjudication of dispute of payment of wages under Section 15 of the Act has no jurisdiction to decide such dispute and appellate authority contemplated under Section 17 of the Act have no jurisdiction to hear me appeal against the order passed by Prescribed Authority under Section 15 of the Act 1936, thus the Prescribed Authority has no jurisdiction to entertain and adjudicate the dispute of Payment of Wages raised by respondent No. 2 through application under Section 15 of the Act. Accordingly the impugned judgment and order dated 30.3.1993 (Annexure 1 to the writ petition) passed by the Payment of Wages Authority/Prescribed Authority under the Payment of Wages Act is wholly without jurisdiction and not sustainable in the eye of law and liable to be quashed.

23. Since I have already held that Prescribed Authority under the provisions of the Act -1936 has no jurisdiction to decide and adjudicate upon the claim of Respondent No. 2 with regard to the payment of her wages claimed by her in the application moved before such authority and impugned order dated 30.3.1993 is liable to be quashed on that ground alone, therefore, I need not to examine the other questions which I have formulated herein before and also decided by Payment of Wages Authority as to whether the claim of respondent No. 2 is barred by time and law of limitation and as to whether the respondent No. 2 was entitled for relief claimed and awarded in the impugned order on merits or not.

24. In view of the foregoing discussions, the writ petition succeeds and stands allowed. The impugned order dated 30.3.1993 (Annexure-1 of the writ petition) passed by Respondent No. 1 is hereby quashed.

25. There shall be no order as to costs.