MR. PRASHOB BALAKRISHNAN P vs. THE SENIOR LABOUR INSPECTOR

- 1 - R IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 13th DAY OF July, 2012 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR

W. P.NO.32423/2009 C/w W.P.No.31976/2009 & W.P.No.5040/2009 (L-MW)

W.P.No.32423/2009

BETWEEN:

Mr. Prashob Balakrishnan P. Executive-HR Bharti Airtel Limited 11/1 & 12/1, ‘Maruthi Infotech Center’ Block ‘A’ West Wing, Koramangala Inner Ring Road Amarjyothi Layout Domlur Bangalore-560 071.

..Petitioner

(By Sri.S.N.Murthy, Sr. Counsel for M/s S.N.Murthy Associates)

AND:

The Senior Labour Inspector 22nd Circle, Karmika Bhavan Bannerghatta Road Bangalore-560 029.

….Respondent

- 2 -

(By Sri.Jagadeesh Mundaragi, AGA)

This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India praying to Quash complaint dated 25.10.2008 (wrongly stated that 25.10.01) CC No.813/2008 on the file of the Metropolitan Magistrate, Traffic Court I, Bangalore at Annexure-A and also declare that the Central Government is the appropriate Government under the Minimum Wages Act, 1948 in respect of the activities carried out by the establishment of M/s Bharathi Airtel limited and further may be pleased to declare that the provisions of the Minimum Wages Act, 1948 are not applicable to M/s Bharathi Airtel Limited.

W.P.No.31976/2009

BETWEEN:

M/s Bharti Airtel Limited Represented by its Head-Legal & Regulatory Mr.S. Nagaraj Having its office at 11/1 & 12/1, ‘Maruthi Infotech Center’ Block ‘A’ West Wing, Koramangala Inner Ring Road Amarjyothi Layout Domlur, Bangalore-560 071.

..Petitioner

(By Sri.S.N.Murthy, Sr. Counsel for M/s S.N.Murthy Associates)

AND:

The Senior Labour Inspector 22nd Circle, Karmika Bhavan Bannerghatta Road Bangalore-560 029.

….Respondent

(By Sri.Jagadeesh Mundaragi, AGA)

- 3 - This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India praying to Quash further proceedings in CC No.813/2008 on the file of the Metropolitan Magistrate, Traffic Court, I Bangalore Vide Annexure-A and also declare that the Central Government is the appropriate Government under the Minimum Wages Act 1948 in respect of the activities carried out by the petitioner and further may be pleased to declare that the provisions of the Minimum Wages Act 1948 are not applicable to the petitioner company.

W.P.5040/2009

BETWEEN:

Human Resource Manager M/s Bharti Airtel Limited 11/1 & 12/1, ‘Maruthi Infotech Center’ Block ‘A’ West Wing, Koramangala Inner Ring Road Amarjyothi Layout Domlur, Bangalore-560 071. ..Petitioners

(By Sri.S.N.Murthy, Sr. Counsel for M/s S.N.Murthy Associates)

AND:

The Senior Labour Inspector 22nd Circle,

- 4 - Karmika Bhavan Bannerghatta Road Bangalore- 560 029.

….Respondent

(Respondent is served)

This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India praying to Quash Criminal Complaint No.1312/2008 on the file of the Metropolitan Magistrate, Traffic Court III, Bangalore at Annexure-A and declare that the Central Government is the appropriate Government under the Minimum Wages Act, 1948 in respect of the activities carried out by the first petitioner and further may be pleased to declare that the provisions of Minimum Wages Act, 1948 are not applicable to the first petitioner company.

These Writ Petitions are coming on for preliminary hearing in ‘B’ group this day, the court made the following:

ORDER

A short but an interesting point of law is involved in these writ petitions and said question being common to all these writ petitions they are taken up together for consideration and disposed off by this common order.

Heard, learned Advocates appearing for parties.

- 5 - 1. State Government is not the ‘appropriate Government’ under the Minimum Wages Act, 1948, and it is the Central Government, since petitioner is an industry established and run under the authority of Central Government and as such notice issued by the State Government is bad in law and it is without authority of law. 2. Even otherwise Section 3(1)(b) of the Karnataka Shops and Commercial Establishment Act, 1961, exempts the petitioner-establishment from the purview of said Act, since it is carrying on the business of ‘telephone services’ and as such exempted. 3. ‘telephone services’ is not one of ‘scheduled employment’ as defined under Section 2(g) read with Section 27 of the Minimum Wages Act, 1961 and as such provisions of the Act is not attracted. 4. State Government itself had granted exemption to the petitioner-establishment from the applicability of Minimum Wages Act, 1961, by way of clarification in view of definition of “telephone

- 6 - services” falling under Section 3(1)(b) of Karnataka Shops and Commercial Establishment Act, 1961, and as such petitioner establishment is not required to obtain registration under said Act.

On these grounds by relying upon the judgment of the Division Bench of this Court in the case of Regional Labour Commissioner vs. T.K.Verkey & Co., reported in ILR 1991 Kar. 946, he seeks for allowing of the writ petition and for quashing of the complaint in C.C.No.813/2008 on the file of the Metropolitan Magistrate Traffic Court I, Bangalore, at Annexure-A and for a declaration that Central Government is the ‘appropriate Government’ under the Minimum Wages Act, 1948, to initiate proceedings against petitioner establishment in respect of its activities and not the State Government and for a further declaration to declare that provisions of the Minimum Wages Act, 1948, are inapplicable to the petitioner establishment/Industry.

- 7 - 3. Per contra, Sri. Jagadeesh Mundaragi, learned Additional Government Advocate appearing for respondent would contend that definition of ‘appropriate Government’ as defined in Section 2(b)(i) of the Minimum Wages Act, 1948, would indicate that Central Government would be the `appropriate Government’ only in relation to such of those employment as described under the Schedule to the Act, which is carried on by the Central Government by itself or such employment which is under the Authority of the Central Government and submits that it has to be so construed only by restricting its interpretation and for all other employment, the `appropriate Government’ would be the State Government as per Section 2(b)(ii) of the Act and as such he submits that contentions raised in the writ petition is liable to be rejected. In support of his submission he relies upon the judgment of the Division bench of this Court in Cotton Corporation of India Ltd., vs. Odusmutt reported in 1999 I LLJ 19 and seeks for dismissal of the writ petition.

- 8 -

(1) Whether in the instant case, the ‘appropriate Government’ is the Central Government or the State Government empowered to issue notice to petitioner establishments under the Minimum Wages Act, 1948?

(2) Whether exemption provision i.e., Section 3(1)(b) of the Karnataka Shops and Commercial Establishments Act, 1961 is attracted to the facts on hand and as such, the provisions of the Minimum Wages Act is inapplicable to the petitioner establishments.

(3) Whether ‘telephone services’ is not a scheduled employment as defined u/s. 2(g) of the Minimum Wages Act, and as such, provisions of Minimum Wages Act is not applicable to petitioner establishments?

(4) Whether petitioners are entitled for the prayer sought for in the Writ Petition?

(5) What order?

BRIEF BACKGROUND OF THE CASE:

- 9 - quashing of the proceedings initiated by Senior Labour Inspector, Government of Karnataka before the Jurisdictional Magistrate for alleged violation of certain provisions under the Karnataka Shops and Commercial Establishments Act. Said writ petitions came to be disposed of on 27.06.2011 and a direction was issued to the Labour Inspector which reads as under: “In the result, these petitions are disposed of directing the Labour Inspector to receive and consider petitioners representation along with documents. If filed within a fortnight from today and pass orders thereon, in accordance with law, after extending reasonable opportunity of hearing to the parties. Until such time the Labour Inspector takes a decision, the prosecution proceedings before the Magistrate are directed to be kept in abeyance.”

- 10 - petitioner vide their representation dated 8.7.2011 came to be rejected. The copy of the said order has been filed by the learned Counsel appearing for petitioner along with a memo on 19.3.2012 and same has been placed on record in these writ petitions.

- 11 - grounds urged in Writ Petitions be considered in the background of subsequent events also.

STATUTORY PROVISIONS A. MINIMUM WAGES ACT, 1948 2. Interpretation. - In this Act, unless there is anything repugnant in the subject or context-

(b) “appropriate Government” means- (i) In relation to any scheduled employment carried on by or under the authority of the (Central Government or a railway administration) or in relation to a mine, oil- field or major port, or any corporation established by (a Central Act), the Central Government.” (ii) in relation to any other scheduled employment, the [State Government];

Section 27: Power of State Government to add to Schedule – The appropriate Government, after giving by notification in

- 12 - the Official Gazette not less that three months’ notice of its intention so to do, may, by like notification add, to either Part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act, and thereupon the Schedule shall in its application to be (State) be deemed to be amended accordingly.

B. Karnataka Shops and Commercial Establishments Act, 1961

Section 2(e) “Commercial establishment” means a commercial or trading or banking or insurance establishment, an establishment or administrative service in which persons employed are mainly engaged in office work, a hotel, restaurant, boarding or eating house, a café or any other refreshment house, a theatre or any other place of public amusement or entertainment and includes such establishments as the State Government may by notification declare to be a commercial establishment for the purpose of this Act.”

(a) xxx

(b) “any railway service, water transport service, postal, telegraph or telephone service, any system of public conservancy or sanitation or any industry, business or undertaking which supplies power, light or water to the public.”

- 13 - RE POINT NO.1: 10. It is the contention of the learned senior counsel that notice issued or the proceedings initiated by the respondent against petitioner establishment is without authority of law namely the ‘appropriate Government’ as defined under the Minimum Wages Act, Sec.2(b) would be Central Government alone which has the authority to initiate action if at all if any and not the “State Government” on the ground that contract has been entered into between petitioner establishment and the Government of India, Ministry of Communications, Department of Communication as per Licence Agreement ddated29.10.2001 and in view of the fact that contract is being carried on under the authority of Central Government, the Appropriate Government would be the Central Government alone and not the State Government.

- 14 - 1885 it has been contended that petitioner establishment is run under the authority of the ‘Central Government’ and as such it is the `Central Government’ alone which would be the “appropriate Government’’ to issue notice to the petitioner establishment for any alleged violation of the provisions of the Minimum Wages Act and as such the officers of the Labour Department, Government of Karnataka will have no jurisdiction to inspect the records of the petitioner establishment or to prosecute the petitioner establishments and its officers. A perusal of the License Agreement which has been produced alongwith a Memo dated: 25-06-2012 would indicate that said agreement is executed by the Central Government by virtue of the power conferred on it under section 4 of the Indian Telegraph Act, 1885. It empowers the Central Government to grant licence on such conditions and in consideration of such payments as it thinks fit to any person to establish and maintain the work enumerated in the said section. Said agreement would also indicate that it would be on non exclusive basis that such a

- 15 - licence is granted to the petitioner establishments. The said licence is valid for a period of 20 years from the effective date as per the terms and conditions agreed to thereunder for operating in the State of Karnataka which is defined as ‘Service Area’. It also indicates that Government of India can grant licence for the said service in the same area to others also. It is also agreed to between the parties that said licence is granted on payment of one time entry fee of Rs.35 crores in addition to which the annual licence fee in the form of Revenue sharing @12% of adjusted gross revenue would be payable by the licensee to the licensor. The mode of payment, dates on which payments is to be made are specified in the agreement including the guarantees to be given by the licensees namely the petitioner herein for due performance of contract.

- 16 - is recognised rule of interpretation of statutes that expression used in a statute should ordinarily be understood in a sense in which if best harmonises with the object of the statute and which effectuate the object of the legislature and not attach a meaning which would negate the intent of legislation or frustrate it. Therefore, when two interpretations are feasible, the court will prefer that which advances the remedy and suppresses the mischief as the legislature envisioned. The object oriented approach, however, cannot be carried to the extent of doing violence to the statute by re-writing the section or substituting the words in place of the actual words used by the legislature.

- 17 - construction” or “mischief rule’ which enables consideration of four parameters in construing the Act namely:

(1) What was the common law before making of the Act? (2) What was the mischief and defect for which the scommon law did not provide? (3) What remedy the act has provided? and, (4) What is the reason for the remedy?

- 18 - legislation it can be best understood. Hence, same requires to be extracted and it reads as under:

“The justification for statutory fixation of minimum wage is obvious. Such provisions which exist in more advanced countries are even necessary in India, where workers organizations are yet poorly developed and the workers bargaining power is consequently poor.

- 19 -

- 20 - and Commercial Establishments” to be added and accordingly it has been added. Subsequently the State Government in exercise of its power vested under section 27 of the Minimum Wages Act has issued a Notification dated 06.07.2004 by adding all such workmen employed which is not included hitherto under the Scheduled Employment to be brought under the provisions of the Minimum Wages Act.

Whether petitioner establishments would fall within section 3(1)(b) of Karnataka Shops and Commercial Establishments Act and as such it is exempted.

To bring the petitioner establishment within the purview of “under the authority of the Central Government”, as defined under section 2(b)(i) of Minimum Wages Act it has to establish that there is no financial benefit which

- 21 - accrue to the petitioner establishment. In the instant case, it is a simple licence agreement executed by the Central Government in favour of the petitioner for a consideration to operate in such areas as provided for under the License Agreement granted by the Central Government in Karnataka State. Petitioner is required to pay the licence fee. Petitioner establishment is conducting its own business as a licensee after having obtained licence from the licensor i.e. Government of India and it is not carrying on the business on behalf of the Government of India. The nature of the contract does not disclose that Government of India is having any control over the administration of the petitioner establishments. The liability to pay salaries, wages etc., to its employees is fully within the domain of the petitioner establishment. It cannot be said that petitioner establishment is a company or an industry carried on by the Central Government. The business i.e. being carried on by the petitioner establishment is for its financial benefit and not for the benefit of the Central Government and any profit it earns by such

- 22 - licence issued by the Government of India would accrue as a profit to the petitioner establishments and it would not go to the coffers of Government of India. There is no over all control of the Central Government over the petitioner company in question. At this juncture it would be of benefit to note the judgment of the Division Bench of this court in the case of Cotton Corporation of India ltd and Odusmath G.C. & Others reported in 1999(1) LLJ 19 whereunder it has been held as follows:

“31. In the present case the Corporation is not either created or run by the Central Government.

Nor is it a statutory corporation. The authority to control its management and business affairs are not vested in the Central Government by any statute. Such authority is conferred on it by the articles of the corporation and the exercise thereof is entirely subject thereto and to the relevant provisions of the Companies Act. The Corporation carries on its said business i.e., industry, in its own right as a distinct legal person independently, of the Central Government. The trade in which it is engaged is not its exclusive monopoly. Indisputably other traders are also carrying on the said business. In that view of the matter, we find that merely because the Central Government is shown to be having extensive powers and control over the Corporation in the matter of its functioning and business by virtue of its articles it cannot be stated that the

- 23 - corporation `carries on its business under the authority of the Central Government’ and, therefore, it is the `appropriate Government’ to make a reference of an Industrial dispute to the Labour Court under Section 10 of the Act. Hence, we are in respectful agreement with the view so taken by the learned single Judge and we hold that the `appropriate Government’ within the meaning of Sec.2(a)(i) of the Act for the purpose of making a reference of an industrial dispute concerning the corporation to a Labour Court under Sec.10 of the Act is the `State Government’ and not the `Central Government’.

As a result, we hold that the references in question pending before the respondent Labour Court are valid references in law and it has the jurisdiction to try and adjudicate upon them. Therefore, we do not find any good ground to interfere with the impugned judgment”.

- 24 - Government’ with reference to the definition clause of `appropriate Government’ as defined under the Minimum Wages Act and held that it is distinct and the definition of the word `appropriate Government’ as defined under the Industrial Disputes Act, 1947 and Contract Labour (Regulation and Abolition) Act, 1970 is not in para materia with the definition found under the Minimum Wages Act. It has been held as under: “27. The learned Single Judge has proceeded on the basis that the definition of “appropriate Government” contained in Section 2(a) of the Contract Labour (Regulation and Abolition) Act, 1970 and the definition of similar expression contained in the Minimum Wages Act are in pari materia, whereas it is not so. The definition of “appropriate Government” in the Contract Labour (Regulation and Abolition) Act is in relation to an establishment pertaining to an industry carried on by or under the Authority; whereas the definition of “appropriate Government” in the Minimum Wages Act is in relation to scheduled employment carried on by or under the Authority. Thus the one is in relation to an establishment carried on by or under the authority and the another is in relation to schedule employment.

Therefore, the decision rendered under the Contract Labour (Regulation and Abolition) Act with reference to “appropriate Government” cannot also have full bearing on the issue arising under the Minimum Wages Act as to which is the “appropriate Government”.

- 25 -

- 26 - limited company can be a business carried on by/or under the authority of Government. In the instant case, the business is being conducted by the petitioner company itself and to conduct said business, licence has been issued by the Government of India and as such, no inference can be drawn that it is by virtue of such authority given by the Central Government petitioner establishments are carrying on its business. It is a licence issued by the Government of India to petitioner establishments under a contract to operate in State of Karnataka and by virtue of such licence, business was being carried on by the petitioner establishments as its own business and it cannot be held to be a business carried under the authority of Government of India. In view of the above discussion, I am of the considered view that the contention raised by the learned counsel for petitioner that appropriate authority to issue notice or initiate proceedings against petitioner establishments would be the Central Government and not the State Government cannot be accepted and its stands rejected.

- 27 - RE: POINT NO.2:

- 28 - “any railway service, water transport service, postal, telegraph or telephone service, any system of public conservancy or sanitation or any industry, business or undertaking which supplies power, light or water to the public.”

- 29 - order to unfold it – Not permissible when language of statute is unambiguous”.

As long as there is no ambiguity in the statutory language resort to any interpretative process to unfold the legislative intent becomes impermissible.

The supposed intention of the legislature cannot then be appealed to whittle down the statutory language which is otherwise unambiguous. If the intendment is not in the words used it is nowhere else. The need for interpretation arises when the words used in the statute are, on their own terms, ambivalent and do not manifest the intention of the Legislature”.

- 30 - petitioner-licensee to establish, install, operate and maintain Basic Telephone Service on non-exclusive basis in the Service Area of “Karnataka Telecom Circle”. Services to be rendered by petitioner establishments in Karnataka Telecom Circle and scope of licence under which the licensee is required to operate is specified in the schedule appended as `terms and conditions’ to the said agreement. Clause 2 of said agreement defines the scope of licence. Clause 2.2 (b)(i) enables the licensee to provide Voice Mail, Audiotex services as Value Added Services over its network to the subscribers falling within its Service Area on non- discriminatory basis.

Different clauses of agreement has been defined after clause 33 whereunder sub-clause (41) or service is defined as under: (41) “Service” covers collection, carriage, transmission and delivery of voice or non voice messages over LINCENSEE’s PSTN in licensed service area and includes provision of all types of services except those requiring a separate licence.

Clause 54 in the said definition defines value added service to amend and include the following:

- 31 - “54. VALUE ADDED SERVICE” – Value Added Services are enhanced services which add value to the basic teleservices and bearer services for which separate licences are issued. At present, Government is issuing licences for following Value Added Services:-

(i) Cellular Mobile Telephone Service (Public Land Mobile Network) (ii) Road Paging Service (iii) Public Mobile Trunking Service (iv) Electronic Mail (v) Voice Mail Service (vi) Closed Users Group Domestic 64 kbps data network via INSAT Satellite system. (vii) Videotex Service (viii) Video-conferencing (ix) GMPCS (x) Internet

- 32 - clause (b) also has to be taken into consideration for example Railway services, postal, telegraph, any industry, business or undertaking which supplies power, light, or water to the public is also included in the said exemption clause. In order to ascertain the intent of legislature the words surrounding such other exempted categories would also requires to be examined. Hence, I am of the considered view that `Doctrine of noscitur sociis’ would be applicable to the circumstances of this nature namely the words accompanying particular statute namely agnates and cognates would required to be looked into to ascertain true and correct meaning of the word to which exemption is sought for. In this regard the Judgment of Hon’ble Supreme Court in the case of C.B.I.AHD Patna Vs Braj Bhushan Prasad reported in AIR 2000 SC 4014 and The State of Bombay and others Vs The Hospital Mazdoor Sabha and others reported in 1960 SC 610 requires to be looked into whereunder it has been held as follows: (1) AIR 2001 SC 4014 – C.B.I.AHD Patna Vs Braj Bhushan Prasad

- 33 -

(1999) 4 SCC 135, Lokmat Newspapers (P) Ltd., Vs Shankarprasad (1999) 6 SCC 275”.

“The court, tribunal, authority or officer in which or before whom the proceeding would have laid if it had been instituted after the appointed date”.

(2) AIR 1960 SC 610 – The State of Bombay and others Vs The Hospital Mazdoor Sabha and others –

- 34 - 9. It is, however, contended that, in construing the definition, we must adopt the rule of construction noscuntur a sociis. This rule, according to Maxwell, means that, when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. The same rule is thus interpreted in " Words and Phrases " (Vol. XIV, P. 207): "

Associated words take their meaning from one another under the doctrine of noscuntur a sociis, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim Ejusdem Generis." In fact the latter I maxim "is only an illustration or specific application of the broader maxim noscuntur a sociis ". The argument is that certain essential features or attributes are invariably associated with the words "business and trade" as understood in the popular and conventional sense, and it is the colour of these attributes which is taken by the other words used in the definition though their normal import may be much wider. We are not impressed by this argument. It must be borne in mind that noscuntur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where

- 35 - the meaning of the words of wider import is doubtful; but, where the object of the Legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service. As had been observed by Earl of Halsbury, L. C., in Corporation of Glasgow v. Glasgow Tramway an Omnibus Co. Ltd., 1898 AC 631 at p.634, in dealing with the wider words used in S.6 of Valuation of Lands (Scotland) Act, 1854 " the words 'free from all expenses whatever connection with the said tramways' appear to me to be so wide in their application that I should have thought it impossible to qualify or cut them down by their being associated with other words on the principle of their being ejusdem generis with the previous words enumerated ".

If the object and scope -of the statute are considered there would be no difficulty in holding that the relevant words of wide import have been deliberately used by the Legislature in defining "industry" in S. 2(j). The object of the Act was to make provision for the investigation and settlement of industrial disputes, and the extent and scope of its provisions would be realised if we bear in mind the definition of " industrial dispute" given by S. 2(k), of "wages” by S. 2(rr), " workman " by S. 2(s), and of “employer by S. 2(g). Besides, the definition of public utility service prescribed by S. 2(m) is very significant. One has merely to glance at the six categories of public utility service mentioned by S. 2(m) to realise that the rule of construction on which the appellant relies is inapplicable in interpreting the definition prescribed by S. 2(j)”.

- 36 - 25. Associated words take their meaning from one another under this doctrine namely a doubtful word if crop ups for consideration or interpretation its meaning same can be understood from the words it accompany. This doctrine stands on higher footing or higher pedestal than `ejusdem genris’. Keeping this doctrine in mind when the words used in clause (b) of sub section (1) of section 3 of the Act namely “telephone service” is examined it would indicate that such of those services which are rendered by the State for the public and for the public at large stands exempted. It is in this background the exemption clause is to be understood as otherwise the mischief that may occur on account of any other interpretation may lead to negate the very intention and purpose of exemption clause.

- 37 - from the agreement referred to supra cannot be construed so as to exclude the petitioner establishment from the purview of the Act and definition clause is exhaustive clause and in the instant case the nature of the activity of the petitioner establishments are based on a commercial venture and that too for a consideration as specified in the agreement itself and rendering of telephone service along with other services by petitioner as a licensee cannot be held that it would be entitled to seek exemption from the application of the Act. In that view of the matter I am of the considered view that the contention of learned senior counsel appearing for petitioner that petitioner establishments are exempted under clause 3(1)(b) of the Act cannot be accepted and it stands rejected. Hence, it is held that exemption provided under section 3(1)(b) of Karnataka Shops and Commercial Establishments Act is not applicable to the facts on hand and same would be inapplicable to the petitioner-establishments.

- 38 - RE. POINT NO.3:

Section 2 (g) of the Minimum Wages Act, 1948 reads as under: “2(g) “schedule employment” means an employment specified in the Schedule or any process or branch of work forming part of such employment;”

Under Section 2(g) of Minimum Wages Act would be attracted to the employment specified in the schedule or any process or branch of work forming such employment. Schedule -I to the Act defines the types of Employment brought under the Minimum Wages Act. Appropriate Government is empowered under Section 27 of the Minimum Wages Act, 1948, to add to the schedule by issuing Notification in the Official Gazette of not less than three months notice of its intention to do so, to add to either part of the schedule any employment

- 39 - in respect of which it is of the opinion that the minimum rates of wages should be fixed under this act and on such issuance of the gazette Notification its application to the State will be deemed to be included accordingly. The schedule to the Minimum Wages Act have undergone such amendments and the appropriate Government both State and Central in exercise of their power under Section 27 have issued Gazette Notifications from time to time. It is no doubt true that initially the employees in the petitioner establishment could not have been brought under the purview of the Minimum Wages Act since the said employment was not declared as schedule employment as defined under Section 2(g) of the Act. By virtue of the power vested with the `appropriate Government’ i.e., State Government in the instant case has issued a Notification to the said effect on 27th/28th January, 1971 by bringing the adding item as item No.28 to Schedule-I and reads as under: “28. The employment in Shops and Commercials Establishment."

- 40 -

Petitioner establishments in the instant case undisputedly had got themselves registered under the Provisions of the Karnataka Shops and Commercial Establishment Act and later on did not continue the registration on the premise that they fall under exempted category as defined under Section 3(1)(b) of said Act. In view of the fact that the establishment of the petitioner is held to be establishment as defined under the Act and schedule employment under the Minimum Wages Act, it cannot be held or construed that the petitioner establishment would be entitled for claiming exemption from the provisions of Minimum Wages Act, 1948, and it is inapplicable to them. In that view of the matter point No.3 formulated hereinabove is to be answered against the petitioner and in favour of the respondent-State.

Re. Point No.4 & 5:

In view of the discussion made hereinabove, I am of the considered view that petitioners are not entitled for the reliefs sought for. In the result writ petitions are

- 41 - hereby dismissed. Rule discharged. No order as to costs.

Sd/- JUDGE

DR/PL/SBN