The Code on Wages, 2019 - Part IV
- 1. CS Meenakshi Jayaraman The Code on Wages, 2019 Part IV
- 3. 3 Legends used in the Presentation Code The Code on Wages, 2019 CG Central Government CRPC Criminal Code of Procedure, 1973 Govt. Government ICF Inspector cum Facilitator IPC Indian Penal Code SG State Government
- 4. 4 Presentation Schema Inspector cum facilitator Exemption from employer’s liability Protection against attachment of Employer’s assets Average rate of wages paid in India Case law: Binod Kumar v. Union of India and Others Case law: Naterpal singh v. District & sessions judge
- 6. 6 Appropriate Govt. may appoint Inspector-cum-facilitator to exercise their powers throughout the State / geographical limits assigned in relation to one / more establishments Appropriate Govt. may, lay down an inspection scheme which may also provide for generation of a web-based inspection and calling of information for such inspection electronically and without prejudice to this confer such jurisdiction of randomised selection of inspection for the purposes of this Code Every ICF shall be deemed to be a public servant within the meaning of sec. 21 of IPC and he may- Advice employers / workers relating to the compliance with the Code Inspect the establishments assigned to him
- 7. 7 ICF may examine any person in the establishment, collect information from any person, search, seize / take copies of register, documents in respect of an offence and making intimations to the appropriate Govt. about defects / abuses not covered under any other law Failure to produce the documents / giving information to the ICF, shall be punishable with simple imprisonment / fine / both as per the provisions of sec. 175 & 176 of IPC, 1860 Sec. 94 of CRPC, 1973 shall apply to the search / seizure made by the ICF for the purposes of this Code Contd.
- 9. 9 •Courts in India are barred from entertaining any suit for the recovery of minimum wages, any deduction from wages, discrimination in wages and payment of bonus •Which is directed, adjudicated / recovered under this Code Bar of suits •Action taken by the appropriate Govt. / its officers in good faith, cannot be prosecuted Protection of action taken in good faith •Employer has to prove that the dues are paid to the employee, in case of any claim for non-payment / less payment / deduction from wages / bonus Burden of proof
- 10. Exemption of employer form liability in certain cases 10 If the employer is charged by an offence under this Code, and charges some other person as the actual offender, then the employer will be free from liability, if- Thus, the said other person will be held liable and the employer will be discharged from liability • He has used due diligence to enforce the execution of the Code and • The other person has committed offence without his knowledge, consent / connivance Employer may be examined on oath and the evidence of employer & his witness shall be cross examined by / on behalf of the persons whom the employer charges as the actual offender
- 11. Protection of employer’s assets 11 shall not be liable to attachment under any decree / order of any court in respect of any debt / liability incurred by the employer Any amount deposited with the appropriate Govt. by the employer to secure the due performance of a contract with that Govt. and Any other amount due to such employer from that Govt. in respect of such contract Other than any debt / liability incurred by the employer towards any employee employed in connection with the contract aforesaid
- 12. Contd. 12 • Overriding power: • The provisions of the Code shall prevail notwithstanding anything contained in any other law, award, agreement, settlement / contract of service • Delegation of powers: • CG- to SG or officer / authority subordinate to CG / SG • SG – to officer / authority subordinate to SG • Provisions of Mahatma Gandhi National Rural Employment Guarantee Act, 2005 and the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 shall not be affected by this Code • Sec. 67 of the Code grants power to the appropriate Govt. to make rules • CG has power to issue directions to the SG for executing the provisions of the Code
- 13. Average rate of wages paid in India 13
- 14. 14 Average range of daily wage rates for Agricultural & Non-agricultural occupation on All India basis during the month ended October, 2020 Amount of Wages (in Rs.) Men Women Children Agricultural occupation 258-400 170-269 125-213 Non-Agricultural Occupation 222-514 160-352 173 (engagement of child labour in non-agricultural occupation is very minimal) Data from: Report by Labour Bureau for the period ended October, 2020
- 15. Case law 1 15
- 16. 16 Binod Kumar Union of India and Others Facts of the case Petitioner Respondent Union of India being the employer of the respondents has paid less payment of wages to the respondents as per the Minimum wages Act, 1948 Thus, the respondents claimed for the payment of wages as per Minimum Wages Act, 1948
- 17. Contd. 17 • Further, in its order dated 8th December, 1988 it refused to review its order • The Labour Commissioner being an Authority under the Minimum Wages Act, 1948 has directed the petitioner to pay Rs.17,094 to the respondent towards the claim of less payment of wages • And also awarded compensation to 21 employees in its order dated 1st February, 1988 • Aggrieved by the order of Regional Labour Commissioner, the Petitioner challenged the order in the Patna High Court Filing of petition to Regional Labour Commissioner (Central) Filing of writ application to Patna High Court
- 18. Contd. 18 • Point to be decided: • Whether the authority has jurisdiction to entertain a claim for less payment of wages u/s 20(1) of Minimum Wages Act, 1948 • Contention made by the Petitioner: • Learned counsel of Petitioner contended that once the complaint is made for less payment of wages, the jurisdiction of authority under Minimum Wages Act is ousted and such claim can be entertained either under Payment of Wages Act / Industrial Disputes Act (Manganese Ore (India) Ltd., v. Chandi Lal sadu) • Lordships of Manganese Ore (India) Ltd., v. Chandi Lal sadu relied on the below decision (in brief) • “The Minimum wages Act is concerned with the fixing of rates of wages and not the enforcement of payment of wages. • U/s 20(1) the remedy can be availed only in case of payment of wages less than minimum rate • If there is no dispute as to rates between the employer and employee, the Minimum Wages Act would not be attracted and the appropriate remedy can be availed only under Payment of Wages Act / Industrial Disputes Act
- 19. Contd. 19 Thus, the Regional Labour Commissioner (Central) has no jurisdiction to pass the impugned order by exercising its power under Minimum Wages Act, 1948 If the dispute is regarding the rate of wages, the Regional Labour Commissioner (Central) would have considered the matter Impugned order passed on 1st February, 1988 is quashed • In the given case there was no dispute regarding the rate of wages because complaint petition itself indicates that minimum rate of wages is fixed by the Govt. • It appears that this aspect of the matter has not been considered by the Regional Labour Commissioner (Central) Analysis and decision of Patna High Court as on 15th February, 2000
- 20. Contd. 20 • Before the enforcement of Code of Wages, 2019: • The dispute relating to less payment of wages and payment of less rate of wages were falling under 2 different Acts viz. the Minimum Wages Act and the Payment of Wages Act respectively • Thus, the Authority to pass any order for such disputes were also different (as discussed in the case law) • After the enforcement of Code of Wages, 2019: • As the Code of Wages repealed both the Minimum Wages Act and the Payment of Wages Act, the aspect of both less payment of wages and payment of less rate of wages is covered in the Code • Thus, issues relating to both the aspects can be decided under this Code without any confusion in jurisdiction
- 21. Case law 2 21
- 22. 22 Naterpal Singh District & Sessions Judge Facts of the case Petitioner Respondent The Petitioners worked as agricultural labourers for non-application respondent Due to the dispute between the agricultural labourers and their employer, the Petitioner made application to the Authority under Payment of Wages Act
- 23. Contd. 23 • Aggrieved by the order of the Authority, the Employer preferred an appeal • Decision as on 9th June, 2000 • It was held that the petitioners are entitled for wages as well as penalty • As on 21st April, 2004 • The appeal was allowed only on the ground that the claimants were agricultural labourer and thus, they are not covered under the provisions of Payment of Wages Act • Hence, the authority under Payment of Wages Act has no jurisdiction to entertain the claim of the applicants Authority under Payment of Wages Act Order passed by the District Judge
- 24. Contd. 24 • Aggrieved by the order of the District judge, the Petitioner filed a writ petition in the Rajasthan High Court • Learned counsel of the Petitioner: • The Appellate court has committed grave error of law by holding that the persons employed in the agricultural operation are not covered under Payment of Wages Act • He drew attention to the notification issued by the govt. dated 20/01/1967 whereby the employment in agricultural category is governed by Payment of Wages Act • Learned counsel of the Respondent: • Held that the notification covers only those employees who are engaged and employed in the agricultural department of SG / CG as these departments may be considered as industry • And private individual employment as agriculturist is not covered by the said notification Contentions made by the Learned Counsel before Rajasthan High Court
- 25. Contd. 25 Thus, the writ petition filed by the petitioner is allowed The order passed by the District Judge is set aside and The order passed by the Authority under the Payment of Wages Act is restored • The said notification clearly specifies that the provisions of Payment of Wages Act, 1936 shall apply to wages payable to employees of the “Employment in Agriculture” • Thus, the employment in agriculture cannot be interpreted to narrow down to mean that it applies to employment in agricultural department Analysis and order passed by Rajasthan High Court as on 8th May, 2009
- 26. 26 Thank You! Scan the QR Code to Join our Research Group on WhatsApp Scan the QR Code to explore more Research from our Website DVS Advisors LLP India-Singapore-London-Dubai-Malaysia-Africa www.dvsca.com Copyrights © 2020 DVS Advisors LLP