LABOUR

LAW
ASSIGNMENT

PAYMENT OF
WAGES ACT

[ AMIT ANAND]
21813
 Assignment 1
Sec 7 to 13 & 14 to 15 of Payment of wages act, 1936

Introduction
1. The Payment of Wages Act, 1936 came into force on 23rd April 1936.
2. This Act was passed to regulate the payment of wages,
3. It ensures the payment of wages in a prescribed manner and at regular intervals without
unauthorized deductions.
4. The Central Government is responsible for enforcement of the Act in railways, mines,
oilfields and air transport services, while the State Governments are responsible for it in
factories and other industrial establishments.

Some employees earn commissions or “bonuses” based on sales made in a pay period. In these
situations, the employment contract or the practice of the employer often provide that the
commission or bonus is not “due and owing” or “earned” until some future event has occurred.
For example, this could be when goods or services have been delivered to the customer and full
payment has been received. In such cases, the commission or bonus is not “earned” in the pay
period in which the sales are actually made. Instead, in accordance with the employer’s accepted
or agreed-on practice, it is “earned” and paid at a later date.

Applicability of the Act:

This Act applies to the whole of India.

1. Section 1(4): This Act applies to the payment of wages to the persons employed:

i. in any factory

ii. by the railway administration

iii. in an industrial establishment

2. Section 1(5): Empowers the Appropriate Govt. to extend the whole or part of the Act, for
payment of wages to any class of persons employed in the establishment or class of
establishments.
3. Subject to conditions:3 months’ prior notice must be issued and Notification of the extension.

Object of the Act:

The Payment of Wages Act regulates the payment of wages to certain classes of persons
employed in industry and its importance cannot be under-estimated. The Act guarantees payment
of wages on time and without any deductions except those authorised under the Act. The Act
provides for the responsibility for payment of wages, fixation of wage period, time and mode of
payment of wages, permissible deduction as also casts upon the employer a duty to seek the
approval of the Government for the acts and permission for which fines may be imposed by him
and also sealing of the fines, and also for a machinery to hear and decide complaints regarding
the deduction from wages or in delay in payment of wages, penalty for malicious and vexatious
claims. The Act does not apply to persons whose wage is Rs. 24,000/- or more per month. The
Act also provides to the effect that a worker cannot contract out of any right conferred upon him
under the Act. The main objectives of the act are:-

1. Safeguarding the wages of employees.

2. Regulate the payment of wages.
3. Ensure timely payment.
4. Provide for a speedy and effective remedy to the employees.
5. Constitution of authorities for hearing the claims of the persons employed.
6. Safeguard the wages of the employees from unlawful deductions.
7. Protect the employees from unjustified delay in payment of wages.

Salient Features of the Act:

1. The Act was enacted with the ensuring of timely payment of wages to the workers
without unauthorized deductions.
2. The Act applies to wages payable to the unemployed person in a wage period if such
wages do not exceed rupees Rs. 24,000 per month.
3. (Central Govt. decides the wages every 5 years by notification in Official Gazette)
4. The Act requires that salaries must be paid to workers in an industrial establishment by:

Less than 1,000 workers 7th day of every month

 More than 1,000 workers 10 days of every month

5. The Act requires that a worker, who has not been paid wages or unauthorized deductions
have been made from his wages, can file a claim under this Act, before the authorities
appointed.
6. The power of hearing claims vested with the Presiding Officer of the Labour Court

Coverage of Employees

Employees drawing wages up to Rs 6500 per month are covered under the Act as amended with
effect from 6th September 2005.

Type of deductions can be made on pay?

At the time of payment of the wage to employees, employer should make deductions according
to this act only. Employer should not make deductions as he like. Every amount paid by the
employee to his employer is called as deductions.

The following are not called as the deduction

 Stoppage of the increment of employee.

 Stoppage of the promotion of the employee.

 Stoppage of the incentive lack of performance by employee.

 Demotion of the employee

 Suspension of the employee

The above said actions taken by the employer should have good and sufficient cause.

The following mentioned are the main deductions that are allowed under the Sec 7(2) of
Payment of Wages Act, 1936:-

 Fines
  Deduction for the actual period of absence
 Deduction for the damage or loss of goods expressly entrusted to the employed person;
 Deduction for house accommodation;
 Deduction for the amenities and service supplied by employer with agreement to the
employee;
 Deduction for recovery of advances and interest, and adjustment of overpayment;
 Deductions for recovery of loans from any fund constituted for the welfare of labour as
agreed between employer and employee;
 Deduction for income tax;
 Deduction on orders of a court or other authority;
 Deduction for subscription and repayment of advance from any Provident Fund;
 Deduction for payments to cooperative societies as agreed between employer and
employee;
 Deduction of premium for LIC policy on written authorization of the employed person;
or any other investment for Post Office Saving Schemes;

LIMIT OF DEDUCTIONS {Sec 7(3)}

However, as mentioned in section 7 of the Act, the total amount of deductions should not exceed
75% of wages of the employee in any wage period if whole or part of the deductions is meant for
the payments to cooperative societies. In other cases it should not exceed 50%.

How wages (including vacation pay) are paid

An employer may pay wages, including vacation pay, by:
1. Cash;
2. Cheque;
direct deposit, which includes Interact e-Transfer, into the employee's account at a bank or other
financial institution. If payment is by cash or cheque, the employee must be paid the wages at the
workplace or at some other place agreed to electronically or in writing by the employee.
If the wages are paid by direct deposit, the employee’s account must be their name. Nobody
other than the employee can have access to the account unless the employee has authorized it.

Deductions from the wages of an employee

Section 7 of the Act allows deductions from the wages of an employee on the account of the
following: -
  fines;
 absence from duty;
 damage to or loss of goods expressly entrusted to the employee;
 housing accommodation and amenities provided by the employer;
 recovery of advances or adjustment of overpayments of wages;
 recovery of loans made from any fund constituted for the welfare of labour in accordance
with the rules approved by the State Government, and the interest due in respect thereof;
 subscriptions to and for repayment of advances from any provident fund;
 income-tax;
 payments to co-operative societies approved by the State Government or to a scheme of
insurance maintained by the Indian Post Office;
 deductions made with the written authorization of the employee for payment of any
premium on his life insurance policy or purchase of securities.

In case of Gopinath Jadhav vs W.M.BAPAT1 In this case it was held that there is nothing
illegal in the action of the employer or the representative union in arriving at a settlement and the
clause in the settlement providing for deduction of certain amount and paying it to the
employee’s union such settlement does not contravene sec.7 of the Act because this section
permits deductions with the consent of the employees.

In case of JC Mills Ltd & ors. Vs Payment of wages Inspector &ors 2. Supreme court that the
learned single Judge had considered this point and held that the directors also could not escape
the liability in respect of payment of back wages and the Authority under the Payment of Wages
Act had ample powers -to proceed against them.

Rule for imposing Fines on employer

Section 8 deals with fines. It provides that:

No fine shall be imposed on any employed person save in respect of such acts and omissions on
his part as the employer with the previous approval of the State Government or of the prescribed
authority may have specified by notice under sub-section (2).

1
15 July 1981
2
(2000) ILLJ 47 MP
Fine should be imposed by the employer on employee with the approval of the state government
or prescribed authority. Employer should follow the rules mentioned below for and before
imposing of fine on the employee.Notice board of fines on employee should be displayed in the
work premises and it should contain activities that should not be made by employee.

1. Fine should not be imposed on the employee until he gives the explanation and
cause for the act or omission he made.

2. Total amount of fine should not exceed 3% of his wage.

3. Fine should not be imposed on any employee who is under the age of 15 years.

4. Fine should be imposed for one time only on the wage of the employee for the act
or omission he made.

5. Fines should not be recovered in the way of installments from the employee.

6. Fine should be recovered within 60 days from the date on which fine were
imposed.

7. Fine should be imposed on day act or omission made by the employee.

8. All fines collected from the employee should be credited to common fund and
utilize for the benefit of the employees.

A notice specifying such acts and omissions shall be exhibited in the prescribed manner on the
premises in which the employment carried on or in the case of persons employed upon a railway
(otherwise than in a factory) at the prescribed place or places.

No fine shall be imposed on any employed person until he has been given an opportunity of
showing cause against the fine or otherwise than in accordance with such procedure as may be
prescribed for the imposition of fines.

The total amount of fine which may be imposed in any one wage-period on any employed person
shall not exceed an amount equal to three per cent.
Rules that an employer should follow before deducting wages for absence
from duty

An employer can deduct wages for absence from the duty through Section 7(2)(b) which is an
authorized deduction under the Act. Section 9 of the Act prescribes the mechanism for
application of such deduction of wages in respect of employees who are absent from duty. The
guidelines are provided below:

1. If 10 or more workers, acting in concert, absent themselves

2. Without giving notice that is required by the employment.
3. Without any reasonable cause
4. Then the employer cannot make deductions more than amount exceeding wages of 8
days.

Illustration : The employer can deduct the number of wages for the absence from the duty in the
same proportion as the employee’s absence bears to the total time he was obliged to do the work.
Illustration: If the salary of an employee is Rs.72,000 annually. X (an employee) absents himself
from the work for one whole month, then his employer cannot deduct more than Rs. 6,000/-
(72,000/12).

In case of Anant Ram v. District Magistrate, Jodhpur3 – It was held in this case that the
absence of work must be voluntary. Hence no deduction can be made under section 7, clause (2),
when the absence from the duty is for the period between employee’s dismissal and
reinstatement as such absence cannot be said to be voluntary.

Rules that an employer should follow before deducting wages for damage or
loss

An employer can deduct wages for damage or loss through Section 7(2)(c), which is authorised
under the Act. According to Section 10,The employer shall not deduct the wages exceeding the
amount of damage or loss of goods occurred due to neglect or default of the employee. Also, it is
to be ensured that the employee had the custody of the goods which were so damaged.The

3
(AIR 1956 Raj 145)
employer is bound to give an opportunity to the employee for showing cause before deducting
any wages.

In case of Indian Airlines vs Union of India4Apex Court stated that "Semantic luxuries are
misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity,
receive a broad interpretation. Where legislation is designed to give relief against certain kinds of
mischief, the Court is not to make inroads by making etymological excursions.

2. 3.

4.

In case of M/S Rampur Engineering Co. Ltd. v. City Magistrate5– It was observed by
Allahabad High Court that the deduction for loss of electric bulbs and tools that were given to
the employees for their own personal use is a valid deduction. In another case of

J.D.A. v. Labour Centre & Ors6 court stated the workman cannot be denied the wages when he
reports himself on duty but the work is not taken from him by the employer.

Rules that an employer should follow before deducting wages for house
accommodation or services rendered

An employer can deduct wages for house accommodation through Section 7(2)(d) and for
services rendered through section 7(2)(e), which is authorized under the Act. According to
section 11, An employer cannot deduct wages exceeding an amount which is equivalent to the
value of house accommodation or any other service supplied. Such deduction can only be made
if such service or accommodation has been accepted by the employee.

Rules that an employer should follow before deducting wages for recovery of
advances

4
128 (2006) DLT 735,
5
AIR 1966 All 544)

6
1990) 60 F.L.R. 81 (Raj.)
An employer can deduct wages for recovery of advances through Section 7(2)(f), which is
authorised under the Act. According to section 12,For the advances that are given after
employment has commenced– The employer is bound to follow the rules and conditions made by
the appropriate government.

For the advances that are given before the employment period begins– The employer shall
recover the same from the first payment of wages of such employee. But no recovery shall be
done by the employer in the case where the advance is given for travelling expenses.

Rules that an employer should follow before deducting wages for recovery of
loans

An employer can deduct wages for recovery of loans through Section 7(2) (ff), which is
authorized under the Act. According to section 12A, the employer is bound to follow the rules
made by the appropriate government in this behalf.

DEDUCTIONS FOR PAYMENTS TO CO-OPERATIVE SOCIETIES AND INSURANCE

SCHEMES. [Sec 13]

Deductions for payments to co-operative societies or deductions for payments to scheme of

insurance maintained by the Indian Post Office or with employee acceptance deductions made
for payment of any premium on his life insurance policy to the Life Insurance Corporation shall
be subject to such conditions as the State Government may impose.

Maintenance of registers and records

Section 13A provides that every employer shall maintain such registers and records giving such
particulars of persons employed by him, the work performed by them, the wages paid to them,
the deductions made from their wages, the receipts given by them and such other particulars in
prescribed form. Every register and record required to be maintained shall be preserved for a
period of three years after the date of the last entry made therein.

Retention of vacation pay records

The employer must keep records of the vacation pay earned and paid to the employee during the
vacation entitlement year (or stub period, if any) and how that vacation pay was calculated.
These records must be made no later than seven days after the start of the next vacation
entitlement year (or first vacation entitlement year if the records relate to a stub period) or the
first payday after the next vacation entitlement year ends (or first vacation entitlement year if the
records relate to a stub period), whichever is later.

INSPECTORS

Inspectors. [Sec 14]

The state government may appoint an inspector for purpose of this act. Every Inspector shall be
deemed to be a public servant within the meaning of the Indian Penal Code, 1860 [Sec 14(5)].
The inspector of this act is having powers mentioned below

 Inspector can make enquiry and examination whether the employers are properly
obeying the rules mentioned under this act.

 Inspector with such assistance, if any, as he thinks fit, enter, inspect and search
any premises of any railway, factory or industrial or other establishment at any
reasonable time for the purpose of carrying out the objects of this Act.

 Inspector can supervise the payment of wages to persons employed upon any
railway or in any factory or industrial or other establishment.

 Seize or take copies of such registers or documents or portions thereof as he may

consider relevant in respect of an offence under this Act which he has reason to
believe has been committed by an employer.

Claims arising out of deductions from wages or delay in payment of wages

and penalty for malicious or vexatious claims

Section 15 deals with claims arising out of deductions from wages or delay in payment of wages
and penalty for malicious or vexatious claims. It provides that the appropriate Government may,
by notification in the Official Gazette, appoint-
(a) any Commissioner for Workmen’s Compensation; or

(b) any officer of the Central Government exercising functions as,-

(i) Regional Labour Commissioner; or

(ii) Assistant Labour Commissioner with at least two years’ experience; or

(c) any officer of the State Government not below the rank of Assistant Labour Commissioner
with at least two years’ experience; or

(d) a presiding officer of any Labour Court or Industrial Tribunal, constituted under the
Industrial Disputes Act, 1947 or under any corresponding law relating to the investigation and
settlement of induct.

However, 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. Any application may be admitted after the said
period of twelve months when the applicant satisfies the authority that he had sufficient cause for
not making the application within such period.

A claim under the Act shall be disposed of as far as practicable within a period of three months
from the date of registration of the claim by the authority. It may be noted that the period of three
months may be extended if both parties to the dispute agree for any bona fide reason to be
recorded by the authority that the said period of three months may be extended to such period as
may be necessary to dispose of the application in a just manner.No direction for the payment of
compensation shall be made in the case of delayed wages if the authority is satisfied that the
delay was due to-

(a) a bona fide error or bona fide dispute as to the amount payable to the employed person; or

(b) the occurrence of an emergency, or the existence of exceptional circumstances, the person
responsible for the payment of the wages was unable, in spite of exercising reasonable diligence;
or

(c) the failure of the employed person to apply for or accept payment.
In the other case of Twin City Industrial Employers Association v. Union of India7, the same
arguments were presented however the Supreme Court did not interfere in the order passed by
the Ministry from protecting the small scale enterprises from paying any wages to the
employees.The Supreme Court has passed contradictory orders in both the cases however in the
first case the provisions of the Payment of Wages Act are being affected as there is no timely
payment of the wages to the workers.

In case of Hayder Miah Vs. Labour Court & Ors 8. court stated that If any Court, tribunal or
Authority is specified by a particular enactment by which an offence is created as having
jurisdiction to take cognizance and try such offence, it is only such Court, Tribunal or Authority
that can exclusively take cognizance and to try that offence and a trial by other court becomes
without jurisdiction.

[Sec 15(2)]

If any employer does opposite to the provisions of this act, any unreasonable deduction has been
made from the wages of an employed person, or any payment of wages has been delayed, in such
case any lawyer or any Inspector under this Act or official of a registered trade union authorized
to write an application to the authority appointed by government for direction of payment of
wages according to this act. Every such application shall be presented within 12 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. Time of making an application can be accepted if there is
reasonable cause.

[Sec 15(3)]

After receiving of the application the authority shall give an opportunity to hear the applicant and
the employer or other person responsible for the payment of wages and conducts the enquiry if
necessary. It is found that there is mistake with employer; authority shall order the employer for

7
30 April.2020
8
10 BLT (HCD)-202
payment of the wage or refund to the employee of the amount deducted unreasonably or the
payment of the delayed wages, together with the payment of such compensation as the authority
may think fit. There will not be any compensation payable by employer if there is a reasonable
and genuine cause in delay in the payment of wages.

Deductions from wages

Only three kinds of deductions can be made from an employee’s wages:

1. Statutory deductions

Certain statutes require an employer to withhold or make deductions from an employee’s wages.
For example, employers are required to make deductions for income taxes, employment
insurance premiums and Canada Pension Plan contributions.An employer is not permitted to
deduct more than the applicable statute allows and cannot make deductions if the money is not
remitted to the proper authority.

2.Court orders

A court order may indicate that an employee owes money either to the employer or to someone

else other than their employer, and that the employer can make a deduction from the employee’s
wages to pay what is owed.The court order must specifically state that the employer may make a
deduction from the employee’s wages in order for the employer to make the deduction. If an
employee owes money to someone other than their employer, a court order may direct an
employer to make a deduction from an employee’s wages and send the money to the court clerk
or other official, to be paid in turn to a third party. The employer is not allowed to make this
deduction if the money is not sent to the court clerk or other official specified in the order.The
Wages Act limits how much the employer is allowed to deduct at any one time.

3. Written authorization

An employer may also deduct money from an employee’s wages if the employee has signed a
written statement authorizing the deduction. This is called a "written authorization."An
employee’s written authorization must state that the employer may make a deduction from their
wages. The authorization must also:

1. specify the amount of money to be deducted;

2. provide a method of calculating the specific amount of money to be deducted.

An employee’s oral authorization or a general statement (“blanket authorization”) that an

employee owes money to the employer under certain circumstances is not sufficient to allow a
deduction from wages.

Special statements regarding vacation pay

Employees may request (in writing) a statement containing the information in the employer’s
vacation records. The employer is required to provide the information no later than:

1. seven days after the request,

2. the first pay day after the employee makes the request,

whichever is later, but subject to the following:

If the employee asks for information concerning the current stub period or vacation entitlement
year, the employer is required to provide the information no later than:

1. seven days after the stub period or vacation entitlement year ends,
2. the first pay day after the stub period or vacation entitlement year ends, whichever is
later.

The employer is required to provide the information with respect to each stub year or vacation
entitlement year only once.If the employee has agreed that vacation pay will be paid on each pay
cheque as it is earned, the employer does not need to keep records and provide statements about
vacation pay as discussed above. Instead, the employer must report the vacation pay that is being
paid separately from the amount of other wages on each wage statement, or provide a separate
statement setting out the vacation pay that is being paid. The employer must also keep a record
of that information.
Conclusion

It is mandatory for the employer to carefully comply with his obligations under the Act in order
to prevent himself from being punished under section 20 of the Act. The duties of the employers
that were discussed above have significantly curbed the exploitation of the workers employed in
the industries. The workers are now in a better position in comparison to the earlier situations of
the workers. Though we have come a long way, still there is a need to fully execute, implement
and keep a check on the employer in order to ensure the objectives of the Act. The Payment
wages act is a regulation drawn up to protect the employee’s rights from being infringed by the
employer. The employee should be paid on time and should not be harassed against anything
during the employment. It has however given a lot of protections to employees and will continue
to do so in the future as well.
LABOUR LAW ASSIGNMENT
ASSIGNMENT NO 02
CASE LAWS

AMIT
ANAND
21813
SEM 6
 THE PAYMENT OF WAGES ACT,1936 {CASE LAW}
 Nagar Palika vs Prescribed Authority AndOrs. on 10 September, 1991
Equivalent citations: (1994) IIILLJ 672 All

FACTS OF THE CASE

1. The respondents No. 2 to 9 were working as Safai Karamchari with the petitioner. It is
stated that the age of superannuation in the municipal services is 60 years. The respondents
No. 2 to 9, according to the petitioner, were retired after the completion of age of 60 years.
The respondents were retired with effect from 21.4.1979 and this order was passed on
28.4.1979, a copy whereof is Annexure 1 to the writ petition. These respondents are said to
have filed representations before the petitioner protesting against their retirement is in their
opinion these respondents had not reached the age of superannuation. Their case was that
they were examined by the Chief Medical Officer, Ghazipur and they were below 60 years
when the order of retirement was passed. The petitioner states that since the record of the
Nagar Palika had shown their age more than 60 years, therefore, they were retired.

2. After the order of retirement was passed the respondents No. 2 to 9 filed an application
before the prescribed authority, respondent No. 1, under the provisions of the Payment of
wages Act and claimed wages between the period of 1.4.1979 to 31.12.1979 and further
claimed wages to the extent of Rs. 255/- per month. The petitioner had filed objection before
the respondent No. 1 stating therein that the respondents No. 2 to 9 had reached the age of
superannuation therefore, they were retired after attaining the age of 60 years. The petitioner
seems to have taken objection to the maintainability of the application before the Prescribed
authority. The payment of Wages Authority is said to have accepted the claim of the
respondents No. 2 to 9 and gave directions for payment of wages with effect from 21.4.1979
to 31.12.1979 to them and further wages of Rs. 255/-per month per worker were directed to
be paid. The respondents No. 2 to 9 were held entitled to Rs. 3044/- each. It was held by the
respondent No. I that no order of retirement was served on the respondents No. 2 to 9,
therefore they cannot be deemed to have been retired from service. It was further held that the
Chief Medical Officer, Ghazipur had issued certificates in their favour certifying that the
respondents No. 2 to 9 had not completed the age of 60 years on the relevant date i.e.
21.4.1979.

ARGUMENTS BY BOTH PARTIES

 The petitioner challenges the order of the prescribed authority on the ground that it
has given a declaration in respect of the age of retirement of the respondents No. 2
to 9. The respondent No 1 could not give such a declaration under the provisions
of Sec 15 of the Payment of Wages Act, which has a limited scope. Under the said
section the respondent No. 2 could look whether there was any deduction in the
payment of wages or there was any delay in payment of wages. It could not give
any declaration about the age of the respondents No. 2 to 9. Under Section 7 of the
Payment of Wages Act permissible deductions, on the grounds specified in the
said section, can be made which deductions cannot be claimed under Section 15 of
the Payment of Wages Act. The respondent No. 1 could not adjudicate a disputed
question as to whether the respondents No. 2 to 9 were in the employment or not.
 The impugned order dated 19.10.1981 is said to be wholly illegal, misconceived
and bad in law.
 In their counter affidavit the respondents No. 2 to 9 have stated that the age of
retirement is 60 years but they say that on the relevant date they had not completed
the age of superannuation and they were arbitrarily and wrongly retired by the
petitioner. Their age was determined by the Medical Expert and - they were found
below 60 years on the relevant date. The Municipal record are said to contain
wrong entries about their date of birth which is without any basis. It is said that the
respondent No. 1 has not given any declaration regarding their entitlement to
work. It has only declared that the respondents No. 2 to 9 had not completed the
age of superannuation; and they were entitled to wages for the period for which
they were prematurely retired. The wages could not have been paid without giving
a finding about the attainment of age of superannuation of the respondents No. - 2
to 9. The respondent No. 1 was deciding the question of wages, therefore, the
finding about the respondents' age in the impugned order is an incidental matter
and not the main matter, which was to be decided by the respondent No. 1
Anything said contrary to this in the writ petition is said to be not well-founded. It
is stated that the petitioner had knowledge of the award dated 19.10.1981. The
appeal could be filed against the award within 30 days under the provisions of
the Payment of Wages Act. The petitioner has admitted that he got the knowledge
of the award on 13.11.1981. He could have, therefore, preferred the appeal
because 30 days limitation prescribed for filing the appeal had not expired on that
date. Without exhausting the alternative remedy the petitioner has filed this writ
petition, which is not maintainable
 The rejoinder affidavit filed by the petitioner is also on the record. It refutes the
contents of the counter affidavit and asserts the averments which are already
pleaded in the writ petition. It is stated that the declaration about the question of
superannuation could not be given by the respondent No. 1. Such a question could
be decided under the provisions of the U.P. Industrial Disputes Act. Such a
question cannot be treated incidental to the claim of payment of wages.

.JUDGEMENT

THE COURT considered the submissions made by the learned counsel for the parties
and also considered the pleadings and documents placed on the record. The award is
announced on 19.10.1981. The petitioner obtains knowledge of the award on 13.11.1981
i.e. before the expiry of period of limitation for filing appeal, which is 30 days. The
appeal is not filed. Writ Petition under Article 226 of the Constitution is filed in this
Court on the ground that appeal is not an efficacious remedy and on the date of filing of
the writ petition appeal had become barred by time. It was contended by the learned
counsel for the petitioner that the order of the respondent No. 1 was without jurisdiction,
therefore, there was no bar if the writ petition was filed and writ could not be barred for
not exhausting the alternative remedy of filing the appeal. This contention cannot be
accepted and the answer to learned counsel for the petitioner is given in AIR 1955 All.
702 (supra). It is said by the Court that "if there is an order under that provision of law,
that is enough to give a right of appeal to the aggrieved party. The question, whether any
payment of wages could have been or should Have been ordered, according to the terms
of Sub-section (3) of Section 15, could be raised in the appeal and it could have been
contended that the Magistrate had no jurisdiction to deal with this matter, in as much as
the Payment of Wages Act did not apply to the case of these employee".

THE court held that From the aforesaid discussion it is clear that the writ petition
under Article 226 of the Constitution of India is not tenable because statutory remedy
which is efficacious and which was available to the petitioner was not exhausted by the
petitioner on untenable ground i.e. on the ground of avoidance of making a deposit of the
amount determined by the award. That remedy was not availed of though the knowledge
of the award was acquired by the petitioner within the period of limitation. On merits the
learned counsel for the parties advanced arguments. Therefore, the finding on merits is
also recorded against the petitioner and for the reasons which have been given elsewhere
in this judgment the prescribed authority had the competence of determining a question of
fact as to whether the respondents No. 2 to 9 had attained the age of 60 years or not on the
relevant date and if they had not attained that age the respondent No. 1 could allow them
wages as the wages were deducted for that period in violation of statutory rules. That
question was incidental and auxiliary to the main question as to whether the wages were
deducted from the legally due and payable wages of the respondents No. 2 to 9. This
question is not barred to be determined under Section 15 of the Payment of Wages Act.
So, the writ petition accordingly fails and is dismissed with costs.

THE EQUAL REMUNERATION ACT,1976{CASE LAW}

 M/s Mackinnon Mackenzie and Co. Ltd. v. Audrey D’Costa and other,
1987

Equivalent citations: 1987 AIR 1281, 1987 SCR (2) 659

FACTS OF THE CASE

The petitioner is a company carrying on the business of rendering supporting services to

water transport, like operation and maintenance of piers, docks, pilotage, lighthouses, loading
and discharging of vessels etc. referred to as Item 12 under the heading “Water Transport” in
the list of establishments and employments to which the Act has been made applicable under
sub-section (3) of Section 1 of the Act. Respondent 1 Audrey D'Costa was one of the
employees working under the petitioner till June 13, 1977 on which date her services were
terminated. During the period of her employment under the petitioner she was working as a
Confidential Lady Stenographer. After her services were terminated, she instituted a petition
before the Authority appointed under sub-section (1) of Section 7 of the Act complaining that
during the period of her employment, after the Act came into force, she was being paid
remuneration at the rates less favourable than those at which remuneration was being paid by
the petitioner to the Stenographers of the male sex in its establishment for performing the
same or similar work.
ARGUMENTS BY BOTH PARTIES

THE petitioner claimed that she was entitled to recover the amount equivalent to the
difference between the remuneration which she was being paid and the remuneration which
was being paid to the male Stenographer who had put in the same length of service during the
period of operation of the Act. The petitioner opposed the said petition. The petitioner
contended inter alia that the business which was being carried on by it was not one of those
businesses notified under sub-section (3) of Section 1 of the Act, that there was no difference
in the scales or grades of pay between lady Stenographers and other male Stenographers at
the time when the case was pending before the Authority referred to above, that Respondent 1
and other lady Stenographers who had been doing the duty as Confidential Stenographers
attached to the senior executives of the petitioner company were not doing the same or
similar work which the male Stenographers were discharging; and that there was no
discrimination in salary on account of sex. The petitioner contended that Section 4 of the Act
had not been violated by it.

RELEVANT STATUTES IN REFERENCE

Before dealing with the contentions of the parties, it is necessary to set out the relevant legal
provisions governing the case. Article 39(d) of the Constitution of India provides that the
State shall, in particular, direct its policy towards securing that there is equal pay for equal
work for both men and women. The Convention Concerning Equal Remuneration for Men
and Women Workers for Work of Equal Value (for short, “Equal Remuneration Convention,
1951”) was adopted by the General Conference of the International Labour Organisation on
June 29, 1951. India is one of the parties to the said Convention. Article 2 of that Convention
provides that each member shall, by means appropriate to the methods in operation for
determining rates of remuneration, promote and, insofar as is consistent with such methods,
ensure the application to all workers of the principle of equal remuneration for men and
women workers for work of equal value and that this principle may be applied by means of
(a) national laws or regulations, (b) legally established or recognized machinery for wage
determination, (c) collective agreements between employers and workers, and (d) a
combination of these various means. article 3 of the convention provides that where such
action will assist in giving effect to the provisions of the Convention, measures shall be taken
to promote appraisal of jobs on the basis of the work to be performed. The methods to be
followed in this appraisal may be decided upon by the authorities responsible for the
determination of rates of remuneration, or where such rates are determined by collective
agreements, by the parties thereto. In England the above Convention is given effect to by the
enactment of Equal Pay Act, 1970. Almost all other European community States have also
signed the Convention. The European Economic Community Treaty also provided that during
the first stage that is before December 31, 1961 each member State should ensure and
subsequently maintain the application of the principle that men and women should receive
equal pay for equal work1. (See EEC Treaty Article 119, Para 1). Many cases have been
since decided by the national courts in those States and also in the European Court of Justice
on the basis of the several laws enacted by the said States in implementation of the Equal
Remuneration Convention, 1951. The EEC States are obliged to observe this Convention
faithfully. A short account of this branch of law is to be found in Halsbury's Laws of
England, 4th Edn., Vol. 52, paras 20.11 to 20.18 Many interesting cases are referred to in
those paragraphs. In one case it is held that where a job classification system is used for
determining pay, it must be based on the same criteria for both men and women and so drawn
up as to exclude any discrimination on the ground of sex. In another case concerning the pay
of a woman who claimed equal pay with her predecessor, a man, the European Court held
that the concept of equal pay in the EEC Treaty was not restricted to cases where men and
women were employed contemporaneously but also applied where a woman received less
pay than a man employed prior to her by the employer on equal work (See Macarthy's Ltd. v.
Smith).

JUDGEMENT
It has been found by the Authority, the appellate authority and by the learned Single Judge
that the Confidential Lady Stenographers were doing the same work or work of a similar
nature as defined by Section 2(h) of the Act which the male Stenographers in the
establishment of the petitioner were performing. Respondent 1 was working as a lady
Stenographer. The lady Stenographers working in the establishment of the petitioner were
called “Confidential Lady Stenographers” since they were attached to the senior executives
working in the petitioner-company. In addition to the work of Stenographers they were also
attending to the persons who came to interview the senior executives and to the work of
filing, correspondence etc. There was practically no difference between the work which the
Confidential Lady Stenographers were doing and the work of their male counterparts. It was
suggested that the lady Stenographers were found by the management to be proper persons to
be Confidential Stenographers. It may be so. It, however, does not mean that they should
suffer for their loyalty, integrity, sincerity and punctuality and receive less pay for possessing
those qualities when they are doing the same kind of work as men. In the circumstances of
the case, applying the true tests which are discussed above to the facts of this case, we do not
find any ground to take a view different from the view taken by the learned Single Judge, the
appellate authority and the Authority who have dealt with this case.
It is lastly urged on behalf of the petitioner that the enforcement of the Act will be highly
prejudicial to the management, since its financial position is not satisfactory and the
management is not able to pay equal remuneration to both male Stenographers and female
Stenographers. The Act does not permit the management to pay to a section of its employees
doing the same work or a work of similar nature lesser pay contrary to Section 4(1) of the Act
only because it is not able to pay equal remuneration to all. The applicability of the Act does
not depend upon the financial ability of the management to pay equal remuneration as
provided by it.
THE court held that they do not find any ground to interfere with the judgment of the High
Court. So, the above said petition, therefore, fails and it is dismissed. There shall, however,
be no order as to costs.
MINIMUM WAGES ACT
 Dr. D.B. Gupta &Ors vs State Of Bihar &Anr on 30 November,
2016

FACTS OF THE CASE

This is an application, filed under Section 482 of the Code of Criminal Procedure, 1973
(hereinafter referred to as the ‗Code'), seeking quashing of the First Information Report,
bearing Saharsa Police Station Case No. 177 of 2016, registered on the basis of an order,
dated 04.02.2016, passed by the learned Chief Judicial Magistrate, Saharsa, in exercise of
power under Section 156 (3) of the Code. The First Information Report has been
registered disclosing commission of offence punishable under Sections
420, 466, 467, 468, 120B read with Section 34 of the Indian Penal Code and Section
22A read with Section 22B of the Minimum Wages Act, 1948.

The order, dated 04.02.2016, passed by the learned Chief Judicial Magistrate, Saharsa, in
Complaint Case No. 01(C) of 2016, has been specifically challenged on the ground of
lack of jurisdiction, for the reason that the learned Chief Judicial Magistrate, Saharsa, did
not have the competence to take cognizance on the basis of the complaint case filed by
respondent no. 2 and, therefore, to exercise his jurisdiction under Section 156(3) of the
Code.

.ARGUMENTS BY BOTH PARTIES

(i) The petitioners have been made accused in the complaint petition and the First
Information Report. They are said to be the senior officials/executives, employed with
M/s Lupin Limited, which is a pharmaceutical company, engaged in the business of
manufacturing and sale of pharmaceutical products. The respondent no. 2 was a medical
representative, employed with the said M/s Lupin Limited, at Saharsa.

(ii) The respondent no. 2 has alleged in the complaint petition that he had filed claim in
Form-6 of Minimum Wages Act in the Court of the Assistant Labour Commissioner,
Saharsa, on 29.08.2012, which was registered as M.W. Case No. 10 of 2013. The Court
of Assistant Labour Commissioner, Saharsa, had issued notice on 13.04.2013, to Patna
High Court Cr. WJC No.495 of 2016 dt.30-11-2016 the petitioners, asking their
appearance and filing their show cause replies on 08.05.2013. It was mentioned in the
show cause notice, in terms of Section 20 (4-A) of the Minimum Wages Act, 1948 (Bihar
Amendment), that the service condition of respondent no. 2 shall not be altered and status
quo shall be maintained till the said case was pending in his Court.

(iii) In collusion with each other, the petitioners, after having received the show cause
notices from the Court of the Assistant Labour Commissioner, Saharsa, terminated the
service of respondent no. 2 on 27.04.2013 despite the fact that the said notices were
received by them, between 20.04.2013 and 24.04.2013. The complainant alleged that by
terminating his service, the accused persons committed acts of dishonesty, cheating and
giving false evidence to the Court. The complainant further alleged that on 11.06.2015,
the Tribunal at Saharsa had passed an order that accused no. 1, Labour Superintendent,
Saharsa, should file prosecution against other accused persons (the present petitioners)
under Section 22-A of the Minimum Wages Act, 1948 (Bihar Amendment) for violation
of Section 20 (4-A) of the Minimum Wages Act, 1948 (Bihar Amendment).

(iv) The complainant, thereafter, visited the Court several times for filing of the complaint
case, but the accused Patna High Court Cr. WJC No.495 of 2016 dt.30-11-2016 no. 1
maintained prevaricating attitude, which compelled him to file the complaint petition. The

(v)Learned Counsel, appearing on behalf of respondent no. 2, has fairly conceded that no
offence under Sections 420, 466, 467, 468, 120B read with Section 34 of the Indian Penal
Code is made out even if the contents of the complaint petition are treated to be true. He
has, however, submitted that the said allegation do constitute offence punishable
under Sections 119, 166, 175, 217 and 218 of the Indian Penal Code.

RELEVANT STATUTES IN REFERENCE

.Section 22-A of the Minimum Wages Act, 1948, (Bihar Amendment) reads thus:-

―22-A. General provision for punishment of other offences.- Any employer who
contravenes any provision of this Act or of any rule or order made thereunder shall, if no
other penalty is provided in this Act for such contravention, be punishable with
imprisonment for a term which may extend to six months, or with fine which may extend
to one thousand rupees, or with both.‖
Reference of Section 22-B of the Minimum Wages Act, 1948 is also relevant for the
present case, which states that no Court shall take cognizance on a complaint against any
person for an offence punishable under Section 22-A of the Minimum Wages Act, 1948,
except on a complaint made by, or with the sanction of, an Inspector.

Section 22-B (2) (b) of the Minimum Wages Act, 1948, prescribes limitation of six
months from the date on which the offence is alleged to have been committed, within
which a complaint alleging commission of offence under Section 22-A of the Minimum
Wages Act, 1948 (Bihar Patna High Court Cr. WJC No.495 of 2016 dt.30-11-
2016 Amendment) can be filed.

23. On close and careful reading of Sections 22-A and 22-B of the Minimum Wages Act,
1948 (with Bihar Amendment), it is easily discernible that cognizance on a complaint can
be taken by a Court only if it is filed by a competent person within the period prescribed
under sub- Section (2) of Section 22-B of the Minimum Wages Act, 1948. The proviso to
sub-Section (2) of Section 22-B of the Minimum Wages Act, 1948 (Bihar Amendment),
however, enables the Court to condone the delay and allow the complaint to be made
even after expiry of the said period provided it is satisfied that the State Government or
any other Officer authorized by it in this behalf was prevented by sufficient cause from
sanctioning the making of complaint within the period specified.

Section 156 of the Code of Criminal Procedure, 1973, reads thus:

"156. Police officer' s power to investigate cognizable case.

(1) Any officer in charge of a police station may, without the order of a Magistrate,
investigate any cognizable case which a Court having jurisdiction over the local area
within the limits of such station would have power to inquire into or try under the
provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in
question on the ground that the case was one which such officer was not empowered
under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as
above- mentioned.

It is easily evincible on bare reading of Section 156 (3) of the Code of Criminal
Procedure, that if a Magistrate is empowered to take cognizance under Section 190 of the
Code then only he may make an order for investigation by Police under sub-Section (3)
of Section 156 of the Code of Criminal Procedure, 1973.

Section 190 of the Code of Criminal Procedure, 1973, lays down the circumstances in
which a Magistrate can take cognizance, which are as under:

―190. Cognizance of offences by Magistrates -

Patna High Court Cr. WJC No.495 of 2016 dt.30-11-2016 (1) Subject to the provisions of
this Chapter, any Magistrate of the first class, and any Magistrate of the second class
specially empowered in this behalf under sub-section (2), may take cognizance of any
offence--

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his
own knowledge, that such offence has been committed (2) xx xxxx.‖

Section 22-B of the Minimum Wages Act, 1948 (with Bihar Amendment) read
with Section 190 of the Code of Criminal Procedure, 1973, leaves no scope for any doubt
that the Magistrate could not have taken cognizance without receiving a complaint by a
person authorized under the provisions of Section 22-B of the Minimum Wages Act, 1948
(with Bihar Amendment). This leads to one and only irresistible conclusion that he was
not authorized to make an order under Section 156 (3) of the Code of Criminal Procedure,
1973, he having no authority to take cognizance on a complaint filed by the Opposite
party No.2.

JUDGEMENT

After having held so and quashing the order passed by the learned Chief Judicial
Magistrate, Saharsa, dated 04.02.2016, the court had remanded the matter back to the
high Court below for passing an order afresh
The court noticed that filing of a claim by respondent no. 2 for minimum wages of total
amount of Rs. 55,550/-, M. W. Case No. 10 of 2013, is the foundation for lodging of the
complaint petition. The said amount was admittedly paid to the respondent no. 2 on
23.02.2013. It is not clear as to whether the Assistant Labour Commissioner, Saharsa,
while issuing notice to the petitioners in the said M. W. Case No. 10 of 2013, was made
aware of the fact or it was there in his mind that the amount, in question, was already paid
to the claimant on 23.02.2013 itself. After the amount Patna High Court Cr. WJC No.495
of 2016 dt.30-11-2016 already having been paid, the said M. W. Case No. 10 of 2013 had
become infructuous for all practical purposes. The Assistant Labour Commissioner,
Saharsa, while disposing of the said M. W. Case No. 10 of 2013, in his final order,
recorded that since respondent no. 2 had received the said amount of Rs. 55,550/-, he was
not entitled for any other compensation by way of relief. In that background, what made
respondent no. 2 to file a complaint petition before the Court of the learned Chief Judicial
Magistrate, Saharsa, is not apparent. It is evidently because he had personal grudge
against the petitioners, who, according to respondent no. 2, were instrumental in his
dismissal from service.

EMPLOYEE COMPENSATION ACT ,1923{CASE LAW}

 E.Muthu vs M/S.Santhi Enterprises & Ors.

FACTS OF THE CASE

1. This appeal has been preferred under Section 30 of the Employee's Compensation
Act, 1923 against the order of the Commissioner for Employee's Compensation-
2/Deputy Commissioner of Labour-2 (Employee's Compensation), Teynampet,
Chennai-600 006 dated 11.10.2010 made in W.C.No.466/2008.
2. The claimant workman is the appellant in the present appeal. He made the claim
for compensation on the basis of his contention that he was employed as a
workman doing the work of grinding of motor under the first respondent herein on
a daily wage of Rs.200/-, apart from annual bonus, travelling, tea and other
allowances and that on 31.12.2007 at about 10.00 a.m, he sustained injuries in an
accident arising out of and in the course of employment, resulting in complete loss
of sight of his left eye and other multiple injuries. He made the claim against the
first respondent herein as his employer and the second respondent herein as the
insurer, on the file of the Commissioner for Employees Compensation-2,
Teynampet, Chennai 600 006.

ARGUMENTS BY BOTH PARTIES

The first respondent/employer did not appear before the Commissioner for Employees
Compensation and he did not file any objection also. The second respondent/insurer
alone filed a counter denying the averments made by the claimant and also contending
that the claimant should prove that he was a workman under the first respondent; that
he was in receipt of a daily wage of Rs.200/- and that he sustained injury in an
accident arising out of and in the course of employment under the first respondent. It
 was also contended therein that the claimant should prove his age, nature and the
extent of disability. Apart from the above said general denial and contentions intended
to cast the burden of proof on the workman/claimant, the second respondent had also
taken a plea that the employer, namely the first respondent had insured only five
workman employed under the first respondent under a policy bearing Policy
No.411901/48/2007/15; that the appellant herein/claimant was not covered by the
insurance policy and that the employer, namely the first respondent herein did not
inform the second respondent/insurer of the accident in which the appellant/claimant
sustained injuries leading to the alleged permanent disability. Based on the above said
contentions and also contending that the amount claimed was not made in accordance
with the provisions of the Employee's Compensation Act and on the other hand, it was
highly exorbitant and imaginary, the second respondent herein pleaded before the
Commissioner for Employee's Compensation-2 for the dismissal of the claim as not
maintainable.

The loss of eye sight of one eye is admittedly a scheduled injury. It appears as item
No.25 of Part II of Schedule I. The percentage of loss of earning capacity has been
noted in the schedule as 40%. Section 4 of the Employee's Compensation Act, 1923
deals with the amount of compensation in case of death, injuries resulting in
permanent total disablement, permanent partial disablement and temporary
disablement, whether total or partial. Section 4(1)(b) prescribes the amount of
compensation in case of permanent total disablement. According to the said provision
an amount equal to 60% of the monthly wages of the injured multiplied by the
relevant factor or an amount of Rs.1,20,000/- whichever is more shall be the
compensation.

Sub section (c) deals with compensation awardable in case of permanent partial
disablement. It classifies the injuries into two categories, namely 1) injuries specified
in Part II of Schedule I to the effect that the percentage of compensation would be the
percentage of loss of earning capacity as specified in the relevant entry in Part II of
Schedule I; and 2) non-schedule injuries, namely injuries not specified in Schedule I
in which case, the loss of earning capacity shall be decided based on the assessment to
be made by a qualified Medical Practitioner. For better appreciation Section 4(1) is
extracted here under:

JUDGEMENT

The above said discussions will make it clear that the claim of the appellant/claimant that
he suffered 100% loss of earning capacity due to the loss of one eye without
complications, when the other eye not being affected, is not substantiated and that the
substantial question of law formulated in this appeal deserves to be answered accordingly
against the appellant herein/claimant and in favour of the respondents. In all other
respects also, the order of the Commissioner for Employee's Compensation cannot be
stated to be either erroneous or defective warranting interference by this court in this
appeal preferred under Section 30 of the Employee's Compensation Act, 1923 and that
hence the appeal deserves dismissal. However, this court is of the view that there shall be
no order as to cost.

In the result, the civil miscellaneous appeal is dismissed and the order of the
Commissioner for Employee's Compensation-2/Deputy Commissioner of Labour-2
(Employee's Compensation), Teynampet, Chennai 600 006 dated 11.10.2010 made in
W.C.No.466 of 2008, shall stand confirmed. However, there shall be no order as to cost.

THE EMPLOYEE’S STATE INSURANCE ACT,1948{CASE LAW}

E.S.I. Corporation vs M/S.Suvik Industries on 30 April, 2015

This is the complaint filed u/s.200 of the Cr.P.C., by complainant/ESI Corporation
represented by the Inspector, ESIC, Bangalore against the accused persons with a prayer
to punish the accused for the offence u/s.85(a) which is punishable u/s.85(i)(b) of ESI
Act, 1948.

FACTS OF THE CASE

the Employees' State Insurance Corporation is a Statutory Body, established u/s.3(1) of
the Employees' State Insurance Act, 1948 as amended from time to time, the Regional
Director is the Chief Executive of its Karnataka Region. The Regional Director & the
Joint Regional Director of the ESI Corporation are authorized by the Corporation to
sanction prosecution in terms of Sec.86(1) of the Act, as per Notification dated:28.2.1968
published in Part.III.Sec.4 of the Gazette of India dated:9.3.1968 as per
O.O.No.T.11.14.31.77. INS.(DESK.1) Dated: 7.4.77 published in Part III, Sec.4 of the
Gazette of India dated: 30.4.1977 respectively.

The Insurance Inspector of the Corporation is a public servant in terms of Sec.21 of the
Indian Penal Code r/w Sec.93 of the ESI Act, duly authorized to act, appear, to make
application and to institute criminal proceedings on behalf of the Corporation and to
represent it in all the courts by resolution of the corporation in No.A.38/ 80/INS.IV dated:
26.7.1991 which is duly published in the Gazette of India, Part III, dated:17.8.1991.

The factory M/s.Suvik Industries is covered under ESI Act having Code No.53-7287-67.
A communication regarding its coverage under the Act with request to comply with the
provisions of the Act was also sent in Form No.C-11 dated:9/28.2.88.

Sri-Vikram C. i.e., accused No.2 is the Managing Partner and Prl. employer of said
Factory in terms of Sec.2(17) of the said Act was in charge of the factory during the
period of default and was responsible for the conduct of business document viz., details of
ownership dated:20.10.2005.

Accused No.2 who is the Managing Director &Prl.employer of the said factory which has
been failed to pay any contribution in accordance with Sec.39 of the ESI Act for the wage
period from 10/2006 to 9/2007 as required u/s.40 of the ESI Act R/w.Regulations 29 &
31 of ESI (General) Regulations 1950.

Since accused No.2 has not paid the contribution a notice was issued in Form No.C-18
dated:02.04.2008 through registered post asking the accused No.2 to show cause to why
the contribution for the above said period should not be determined and an opportunity
was also provided for a personal hearing on 26/4, 28/4 & 06.06.2008, the said notice was
served on him.

Accused neither availed the opportunity of personal hearing nor replied to the said notice.
Therefore, the ESI Corporation proceeded to pass orders u/s.45A of the said Act and
determined the contributions as Rs.64,350-00 for the wage period from 10/2006 to
09/2007, the said order dated:23.05.2008 passed in terms of Sec.45-A of the Act was sent
to the said Prl.employer i.e., accused No.2 and A-1-M/s.Suvik Industries by registered
post acknowledgement and advised to pay the contributions within 15 days, the said
orders has been served on him on 23.5.2008 as per acknowledgments received. But
accused No.2 did not comply orders. So show cause notice dated:02.04.2009 was issued,
asking him to show cause why they should not be prosecuted u/s.85 for non payment of
contribution for the period from 10/2006 to 08/2007 till the issuance of show cause
notice. The said show cause notice has been served and acknowledgements received. The
said prl.employer/accused No.2 has neither shown any cause for the non-payment of
contribution nor paid the contributions so far, he has failed to pay the amount
of Rs.64,350-00 towards contribution for the wage period 10/2006 to 09/2007 in
accordance with S.39 & 40 of the Act with Regulations 29 & 31 of the said Act and ESI
(General) Regulations 1950 respectively, he has also violated Regulation 31 R/w.S.39 &
40 of the General Regulation 1950 & ESI Act 1948 respectively and thus committed
offence under clause(a) of S.85 punishable u/s.85(i)(b) of the ESI Act, 1948. With these
grounds prays to direct the accused to pay contributions which are due to the Corporation
and submit the return within the time which may be granted to the accused. The Joint
Director In charge, ESI Corporation, SRO, Bommasandra, Karnataka Region, Bangalore,
had accorded sanction to prosecute the accused, the cause of action arose within the
jurisdiction of this court and complaint is within time. With these grounds prays to punish
the accused for the offence said above.

On this complaint, the case has been registered, cognizance taken, accused secured,
enlarged on bail, copies of the complaint and other documents were furnished to him.
Thereafter, the charge has been framed against A.2 by readover and explained to him in
the language known to him, he on behalf of him & representing A.1 pleaded not guilty &
claimed to be tired. Hence, the matter was posted for EBC, where complainant has given
his evidence as P.W.1 and got marked Ex.P.1 to 18, he has been cross examined by the
learned counsel for accused. On the complainant's closed their evidence, statement of
accused u/s.313 of Cr.P.C., has been recorded, the accused has denied the incriminatory
evidence readover to him and submitted he has got evidence. Therefore, an opportunity
was given and posted the matter for defence evidence where A.2-Vikram C., has given
his evidence as D.w.1 & got marked Ex.D.1 to 4, he has been cross examined by the
complainant's counsel.

ARGUMENTS BY BOTH PARTIES

P.W.1 has also deposed that accused No.2 did not file returns and not paid contributions
for the period from Oct-2006 to Sept-2007, so they issued opportunity notice on adhoc
basis in Form-C-18 on 2/4/2008 calling accused No.2 to appear before Dy.Director, ESIC
to say whether he has paid contributions and filed returns fixing the date of hearing on
20.4.2008 as per Ex.p.8, the same is served through RPAD both to A.1 & 2 on 4.4.2008
as per the postal acknowledgements Ex.p.9 & 10, inspite of it, accused No.2 did not
appear to sent a letter on 20.4.2008 seeking adjournment till 6.5.2008 as per Ex.p.11, the
matter was adjourned till 6.5.2008 & intimation was given to A.2 as per Ex.p.12, the
acknowledgement for having served intimation is at Ex.p.12(a).

JUDGEMENT

The court Held that :

"The E.S.I. Corporation filed an application before the E.S.I Court. The E.S.I. Court held
that the respondents before the E.S.I. Court were liable to pay contribution. In appeal to
the High Court, it was contended that the E.S.I. application was barred by time
under Art.19 of the Limitation Act, 1963, and under Rule 17 of Mysore Rules framed
under E.S.I. Act. and argues that this case is bared by limitation as complaint is filed after
2 years of incident. I have perused the above referred case in connection to recovery
proceedings. But the present case is in connection to penal offence.