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    Shuchi Upadhyay
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    Airfreight[1]

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    21 views10 pages

    Airfreight

    Uploaded by

    Shuchi Upadhyay

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as PDF, TXT or read online from Scribd
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    As a matter of principles of natural justice. | Accepted the document (witten statement) Produced belore ma an marked it as ex hibit. Vihether to give evidestial valve such cocuments of nol is mater of law and Drinciplo® of justice. in hese circumstances {tha request of the managernont representa live (para 204 page 12 on respect ol exhibit 178) \s proper and Justis. Exhibit 178 ac- cordingly wil be dealt with appropriately whils crawving the fingings ~ 4, itis cloarly seen from the oncuiry procend: ings that the ‘writen statement to the charge Shoo! was airoady filed. evidanice was lod by both Paiies and the matter vas avjauined for oral Submissions Delailed watlon statement tied by the workman was realy in the nature of mitten arguments and the same was taken on record by the enquiry officer. The Labour Court. however Observed that the sald siatervent of the waikinasy should have bean treated as exaininalionsin-chie! !and the management shoud have been nsked to Cross-examing the workmnn on that slatement ndlor to examine tho manayemantss witnesses {o contradict the said statement aven though the entite avidence of management as well as the workman was recorded by tha Enquiry Officne and the matter was posted for fing ventter argu ments on behall of batt the pasties. The Lato Court observed that the delinquent workinan heck ol examined himsolt in ne exquity and terelore on his request his statement should have bean Meated as examination.in-chiel In my opinion the View taken by the Labour Court is totally jer vorse. lis seen from the enquiry papers that only two witnesses were exainined on behal of the workmen. At 90 point of time the workinan dis closed fis intention to lead his own evidence Even in the writen statement Exh, 178 it is no ‘wehere montioned that the stalemant should be Wasted as his examinalion.in-chial. The Labour Court was, tharotore, clearly wrong in hotdin there was violation of principlas of natural jos ‘Thal apart, it Is admitied position that wo sepa. ‘alo incuiries were conducted against the work. ‘man. Tha allagad irregularity occurred in the 22nd saguiry which was commenced under charge Sheet da‘ed 12.9.1988, The Labour Couth, tee: ver, held that oth the enquvias were bad on ae Count of the allaged viclaion of prineiies of natu. ‘al justice. seems tnat ihe Labour Court has Passed the impugned awau without proper appl ation of ind. In my opinicn the mpage’ A award Aoimatttt os shin vaannsal Mefe e AEE Ud ge of prayer clause (a) of tho pation Matter it ig¢ ae 4 1999 LLR 1008 al ‘SUPREME COURT OF INDIA Hon'ble Mr. D.P. Wedhwe, J. a Hon'ble Mr. M.8. Shah. J : Givl Appeal No. 4259 of 1999 Arising out of Spacial Leave Pelion Civil He 19999 of 1995 Decided on 4 8 1999 Aicireight Lid. , State of Karnataka & Others “a A. MINIMUM WAGES ACT - Sections 9 andt! «Notification dated 19.8.1987 extending Gcl 10 shops and commercial establish rents In Karnaiake Stale by Karnelala, Govt, - Payinent of pay more than minh, num wages would nol exclude an esla> Nishment from purview of the Act, HELO . {he Nouhcaton is mada applicatia to all shops and commercial establishments in the Stete al Kamalaka where the Siate fins (ound that tw. ‘labour was unorganised or that wages paid 1 be workers were below minimum wages Hence te Blea that the Company is paying mere than mine imum wages (a8 alleged), the rwtlicatar under the Act would not be applicable to it has no force Paad ~ FURTHER HELD. The Notlicaion issued under the Ac! prescibing ‘miniewuen wages applies to al hinds of shops ant Commercial esiabistinients - big or sina: and that payment of more than prescribed minim rains of wages is not relevant lor deciding ils Piicatuy. I cannot be slated thal as ty are poying more wan the prescribed nininuon WAGES. the Act oF the Novlicaton woud net be 1999 sepleable, For detemining whother they are pay: 69 minimum rates of wages oF rot. tha amount Paid for the value of dems which ara axckatad un: er Section 2(h) of tha Act is not 10 be taken into considoration, Para 15 , MINIMUM WAGES ACT - Sections 3 and 6 "read with section 27 - Notification “dated 19.8.1987 of State Government of Karnateka - Extension of Act to shops ‘and commercial establishments - Appel lant engaged In import and export, clear- Ing and forwarding of cargo, travel and tourlsm, Import, consolidate and courler sarvices - Plea that appollant establish. mont iu not a shop and commercial es- tablishment - Not tenable - What the es lablishmont Is doing le purely commer- lal activity of profil motive and hence covered by the expressions shops and commercial establishments, Paras 6,786 ©. MINIMUM WAGES ACT - Sections 3 and 4 - Concept of minimum wages does take In the factor of prevailing cost of e ential commodities whenever such minimum wage Is to be fixed - Once rates of minimum wages are prescribed, whether an all inclusive uis 4{1)(l) oF by combining basic plus doarness aliow- ance uls 4(1)(I), ara not amenable to split up - Where employer Is paying total which Is higher than minimum 1 {fixed Including cost of living index (VDA) hho Is not required to pay VDA separ HELO tts apparent that what is ixad ts tolal remunera Vion which should be paid to tha employaes cov- ered by the schedule and not for payment of casis of different components which are taken Ino consideration for fixation of minimum rates of wages. It 19 thus clear tha! the concept of mini mum wages does take in the factor of pravailiig cost of assential commocilas whonaver such fininumn wage is {0 be fixed. The ited of long, such wage Inthe light of cost of wing at a parncw- lar juncture of time and of neutrahsing the rising Prices of esseniial commodines by hoking up Scales of minimum wages with the cost of living Index is provided for im Section 4 but VOA is: Airieight Lis, v5. State of Karnataka & Omrers at ans parcel of wages Onze tates of minavn wages are prescabed wntor thy 8-4 ail inclusive under Sachon (1); of & ing basic pius deamess atfowance wiucr © (1), ar8 not amenadie fo sput up tt 13 one (1s Package. Neher the scheme nor any provisioi of tha Act provides that the rates of minimum wages ‘8 to be spl up on the basis of the cost of ouch necessities taken into consideration far fining the samo. Hence, in cases whave employer is paying {otal sum which ig higher than muymum rates ot wages fined under the Act inclusing the cust of living indax (VDA), ha 18 not required to pay VO Separately Howaver, that higher wages show's bo calculated us dahned in Sechon 2h) of the Act Pane 15 FURTHER HELO. White decking the quoston of payment of rn mum wages, tha competent autnouty 3s not 10 Quired to bilurcate each componont ol the cosis of each item taken inlo consideration for tis) minimum wages, as lump sum amount 1s deter mined tor providing adequate temunetatisn to Ihe workman so that he can sustain and manisin himself and his lamuly and also preserve tvs ett ciency a3 a worker Deamess Allowance 1p. ‘and parcel of cost of necessites. In cases were the muninwin rates of wages 1s lwhed up ws VDA it souk! not mean tat aes a sepa component which 1S required! 19 be pans se) rately where the employer pays a 10131 pay pack age which 15 more than the prescntied minonun ato of wagos. Kirumum tata of wages fined us ar the Act 1$ remunaravan payable 19 the Wormer 483 one package of fixed amount In cases where ‘unumum wage 18 linked with tha cost of ining un ex, the amount paid on the basis of desiness .1 lowance 18 not 10 be taken as an intepence:st component of the minmum wages Dut as ort and parcel of he process of computing tha rates (of minimum wages which 1s 10 be determined at lar faking into consideraon the cost of varcus nacessiias Para 15 D. MINIMUM WAGES - Principles tor tix tion of minimum wages - Must provide not merely for the bare subsistence of lite but for the preservation of etliciency of worker ate. Varlous components ex plained, 1010 HELO Munmuay wage must provide not merely for the bare subsisience af life but for the grasarvation of the elfic'ancy of the worker and so it must also provide for some measure of education, medical requirements and amenities of twnsell and ts family, While Yixing the minimum wages, the ca~ pacity of the smployer to pay is wealed as irel- ‘evant and the Act contemplates that rates of mii ‘mum wage should be fixed in Schedule industries with @ dual object of providing sustenance and maintenance of the worker and his family and preserving his atficiency as a worker. So its Quired to take into consideration cost of bare sub- sistence of lite and preservation of atficiency of the workers and for some measure of education, ‘medical requirements and amenities, This cost is likely to vary depending upon tha cost prevailing in the market of various items, 1! there are intla- tionary conditions prevailing in the country. then ‘minimum wages fixed at @ particular point of time would not serve the purpose. Therelore, Section 4 contemplates that minimum wages fixed at @ articular point of time should be revised from time to time, Section 4 postulates that mire wage fixed of revised by the appropriate gover. ‘ment uyder Section 3 may consist of basic rates fof wages and spacial allowance af a rate to be ‘adjusted af such inlervels in such manner as the appropriate goverment may direct to accord as nearly as practicable with a vanalion in the cost of living index number applicable to such workers alternatively. it permits the fixation of basic rate of wages withior without cos! of ving allowance and the cash value of the concessions In respect of supplies of essential commodities at concessional rales where $0 authorised: or in the alternative, it pennits an all inclusive rate allowing for the basic rata, the cost of living allowance and the cash value of concessions, il any. The purpose of Sec: tion 4 is to 09 that minimum wage can be linked with increase In cost of living so that Increases in cos! of living can be neulraised or all inclusive rates of minimum wages can be fixed, Para 15 CASES REFERRED 1. Bhikusa Yamasa Kshainya & Anew, ‘Sangamner Akola Taluka Bid! Kamgar Union & (Ors, AIR 1963 SC 806, 2. Cochin Shipping? Co. v. ESI. Comoration (1992) 4 Sc 245. * 3. Employees’ State Insurance Comoraton v. ALK Swamy and Others, 1994 1) SCC 445, Arto UW, vs. Slate of Kavnalaba & Oilers un 4 Hoty Jen Band 4 Reginal Dwector ESIC, | [1907] 2 SCC 104 Rehag rw 5 tnematonal Ore and Fertizers (licha) Pr Lid Employees” Sinn meance. Cowra ton, 9A? fa) See 201 6 Kaman Metals & Aloys Lit v Thow Woke men 1967 (2) SCR 463 Retedon. i 7. Municipal Council, Halla v. Bhagat seat 4 (rs. (1998) 2 SCC 443, 1998 (1) Supreme 3 ae | § 8. U. Unichoyi v. Stale of Kerala, AIR 1962 SC rc, For Appellant «Mi JP. Cama, St. Advocate, Tripurani Ray, Vishwailt Singh, Advocates. . For Respondents > Mi N Ganpathy. K, Kirn, SR Chal, Subramanaya, Mely Shaima, Adv: cales. JUDGMENT SHAH, J.—Loave granted. 2. Tis appeal by special leaves ied against tha, ¥ Judgment and order dated 16 October. 1904 '% passed by the Division Bench ol the High Couto, Kamnataka at Bangalore In Appeal No. 2502 Oly 1998 dismissing the appeals led by the opbek tantcompany and conlimning the ordat passed by the learned Single Judge In Writ Pation Ni, 23096 of 1997, : 3. Writ Petition was fled in the High Court of | Karnataka foe a declaration thal the Notiicallon dated 19th August, 1987 Issued by the Stale Govt + exninent in exercise ol the power under Secon * 27 of the Minimum Wages Act (heteinatter ta fewed tons “the Act? fixing the minimums rales ol wages eayable lo the categories of employees a pecilied in the said Notibeation for ites No. 28, namely “shops and commeicial estabishmenis under the Act, was not applicable to the oppel: lantindustry and also for setting side the order dated Mist July. 1997 passed by the Labour Ol- ficer {he Competent Autorly) under the Mink mum Wages Act 4. Respondent - employees contended that ap- pallant was required lo pay vatiable dearness Towance on the basis of the Holiication issued Under Section 3 tead wih Section § of the Act Applications under Section 20(2) of the Act we Hed as the employer failed to pay. the sak amouni. The Labour Ollicer cvected that ench employee was entiled to the cllerence of ii mum wages to the extent o! Re. 8.740 by way of 1999 Alfoignt Lu ve on Reation $e. 2888 Afowance in trms of ne Nae caigo, fation, Th. competent euthotiy also drecteg oy 20) 2 BAY componslion ene Section ages: aieayt 8 ACL. However tet po iy O1W8r out for snag 2meIOVE to pay compersc "8 $8 and such other Aside by he High Cour 5. AL the time of heann Cama, Stata ct Karnaisha & Oners 2h gh Court has also py siete SPY, does not come un- common pov Hed 10 tg ra Meaning cl the expracsin eect aNGEs ant comer. ‘hope ange estabishment on Po eMNAN” 68 dane ince ne Comment Karaka sno oe reannilEslablahmenis acy vse mun aes the Nouicauon unser nei somsaB88 A: which azpies to sheng content! estblahments wows nora Spoteadi tothe appetan: compan el Contondled th ) sary trae, FO is purpose, a Sota we 2 f800U8 decisions of me eee soatnnie dea wit he meaning ats expres. wor Commercial esiacishmer: nd Regional Orecror ESE 101 A Shep was held ts by hs Pelitoner on wages mae ny ae rang tS estabishmnant a area 2 Intern 8. In cur ve ‘Company is ne ‘commercial [8 S0mitted by the Pollant-company i Sloarance and saitm,lnpon, consotcat ang 12 aces EMG Several otices stscrrt fisces including Now Dem: Madras, Ahmar cimitod that II tabiish trav 88 SNP In the + fisbel Cochin Shopng Cow eet Coreranon tubmeenah Mode: fase he bad’ wherein he company eae Bge he business of leans roe forwarding y of Pe Sere '5 atthe Por of ‘Cochin situated in We ihe tre atthe queston we wheter the es ececent he type of Ie fecncet 83 shop wal me mean EE P80 88 wed im the roan ESU Act? The Coun heed waa ry /emgton Islan '2bIshmeet wth booking al ef ward au 02 pnaening sevico to cater to the needs of e784 ceed importers others who want 10 Caley hs goods furor. Therotote i @ shop cory ye Sratematc, economic of comment aChuny Peaar.in the case ot Employee Siate insurance Corporation v FLX. Swamy and Othe's, 1984 () See 44s the Cour held that “De word ‘shop Nag Sout expanded maaring and means s pace ry services. are sold on retail basis” The Caan turter observed that the Employees Stale Turance Act. 1948 was a beneficial lagsiation reretore. i was reasonably possiio $0 19 are rue the word ‘shop’ 38 to Include the activity Stan advertising agency within it 7, Further even taking into consideration the Tegering given to Ure expression “commercial €5 TRenatmant” and the word “ship” vader Section soy ana 2(u} respectvaly ofthe Mysore Estoy a inanis and Commarcial Establshrmants| Act Wear ie apparent that the appotant-Compary = T xamorea! esindishment and also 2 ‘shor ‘Section 2{e) and 2:u) 1ead as under ate) "Commercial Establishment” meats aeyamerciat ot Wading o¢ banking oF insur see gstabishnent, an establshinent oF Mreringeiativa sevico in wNch prisons Om fhoyert of analy eng in oft WOH, & Pott restaurant. boarding oF eating House. rte oF ay other ralrashment House, 7 ahaster or any other place of publi amuse see of eniertainment and includes such srabislvments as tho Stale Government by eetiicatin declare Yo be 8 commercial @S Taiishrment for the purposes ofthis ACL” “shop” means any premises were any ade of business is carried on of wh sol icos are rendered Io customers, and in- Chulos oftcers, slore-rooms. godowns. OF Srarehouses, whether in the same prerses aismermise, used in connection with Such Trade of business, but does not include & Commercial estabishment or @ shop ah ached to a lactory where the persons 6 ployed in the shop fall win the seapo of the Factors Act, 1948. 8, The acivties stated above carried on by the dppéliant-company would be covered by the def aRton ot the word “ship” which inte, aa. means Shy premises where do of business is cared ay Pianare tve services are reridered 10 Custom sr ty would also be commercia establishment srayor trading establishment Hanes, the conten tion of the apelin thats ntsight tw ve State of Kae boy the ad dain tins wo SUL staNC® beamed Counsel forthe appatiant submtind Meat enpatant company is paying mote than rin ee epsand haratre, tha notiicaton sued Ty tw sine Goveunment would nol be apnieaDs Pi he appellant He subenitted thal in Ary

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