w w w . L a w y e r S e r v i c e s . i n

Tata Consultancy Services Limited, TCS Centre, Kochi, Represented by Its Asst. General Manager-HR, Boban Varghese Thomas & Others v/s State of Kerala, Represented by Its Secretary, Labour & Welfare Department, Government Secretariat, Thiruvananthapuram & Others

    WA. No. 979 of 2018
    Decided On, 23 January 2020
    At, High Court of Kerala
    For the Appellants: E.K. Nandakumar, P. Gopinath, Sr. Advocates, M. Gopikrishnan Nambiar, K. John Mathai, Joson Manavalan, Kuryan Thomas, Paulose C. Abraham, P. Benny Thomas, D. Prem Kamath, Navod Prasannan Pattali, Adarsh Kumar, K.M. Aneesh, Biju Varghese Abraham, Dileep Chandran, R. Maneesha, Issac M. Perumpillil, Jijo Paul Kallookkaran, R. Bindu (Sasthamangalam), M.P. Prasanth, K.K. Premalal, Vishnu Jyothis Lal, Varghese K. Paul, Anith James, Bindhu Antony, Vineed Abraham, P.M. Mohammed Shiraz, Alex. M. Scaria, Saritha Thomas, Latha Anand, Joseph Sebastian (Parackal), M.N. Radhakrishna Menon, S. Suraj, S. Jamal, P. Ramakrishnan, C. Anil Kumar, Asha K. Shenoy, T.C. Krishna, C.B. Mukundan (Thrissur), Preethi Ramakrishnan (P-212), Pratap Abraham Varghese, M.P. Mathew (Malayil), K.V. Krishnakumar, A.K. Preetha, S.S. Viswajith Anand, S. Mahitha, P.J. Elvin Peter, K.R. Ganesh, Santhosh Mathew, Arun Thomas, Jennis Stephen, Vijay V. Paul, Karthika Maria, Anil Sebastian Pulickel, Advocates. For the Respondents: K.V. Sohan, State Attorney, P. Vijayakumar, Assistant Solicitor General (By Order), V.R. Rakesh (Served On), A. Rajagopalan, Dinesh R. Shenoy, M.N. Manmadan, T.V. Vinu, C.G. Preetha, H. Gopakumar, Anish Jain, Haridas P. Nair, K.L. Sreekala, M.A. Vinod, Suvin R. Menon, B. Premkumar, Mini Gopinath , K.A. Balan, S. Biju, K. Thyagarajeswaran, Jaishankar V. Nair, Krishna Das P. Nair, M.C. Mony, V. Girish Kumar, S. Vaidyanathan, Tulasi Panicker, R. Prasanth Kumar, Keerthi Solomon, Premalatha K. Nair, T.P. SindhumoL, CGC., K.S. Manu (By Order), Government Pleader (B/O), A.S.G.I(B/O), R. Sunil Kumar, A. Salini Lal, Advocates.

Judgment Text

K. Vinod Chandran, J.

1. A laudable objective, in tune with current technological advancements, to ensure payment of minimum wages to the employees, mainly of the un-organized sector, is challenged on the ground of the rule being ultra vires, illegal and the procedure prescribed cumbersome, unworkable and unreasonable. We cannot but observe at the outset that essentially the challenge arise from the reluctance to adapt to change especially to a digital platform which also is alleged to be fraught with evils that often does not meet the eye; infringing the privacy of the employer and the employee. The State, on the other hand, asserts that the virtual world is a reality and the technological improvements over the years should inform the interpretation of statutes, failing which the citizens would be deprived of the benefit of the welfare measures effectively implemented through the digital arena.

2. The challenge is against the amendments made to the Kerala Minimum Wages Rules, 1958 by notification dated 08.07.2015. The notification is produced as Exhibit P1 in W.P(C) 25590 of 2017, from which W.A.No.979 of 2018 arises; the documents in which are referred to in the course of this judgment unless otherwise specifically referred. Exhibit P1, the Kerala Minimum Wages (Amendment) Rules, 2015; introduced a procedure by which inter alia the payment of wages has been enabled through a Wage Payment System ('WPS' for short) facilitated under the information technology. The employers of those scheduled employments as specified in the Appendix are required to submit electronically or upload an I.T. Enabled 'Register of Employment and Wages' in the form prescribed. It is also mandated that the employers shall pay and disburse the wages to the employees only through individual bank accounts. There are also provisions under Rule 29 to make the WPS effective and ensure that the regulatory measures are in place. Sub-rule (4A) of Rule 29 requires the 'Register of employment and wages' in Form XIV to be authenticated by the employer or by an authorized person prior to the submission or the uploading of the same in the WPS. Sub-rule (4B) confers power on the Inspector authorized by the Labour Commissioner to electronically authenticate the submitted or uploaded form, which authenticated form shall be maintained as duly signed either physically or in the electronic media. Sub-rule (4C) requires the Bank account numbers of the employees entered in Form XIV for effecting payment of wages through Banks, by the employers. The Register in Form XIV shall be electronically submitted or uploaded in the WPS at least three days prior to the crediting of wages in the individual bank accounts of the employees as per Sub-rule (4D). Sub-rule (4E) prescribes that the employers covered under WPS to issue electronically generated wage slip to all its employees through the System at least a day prior to effecting payment of wages. The newly introduced Rule 29C provides exemption to the employers insofar as the maintenance of certain Registers, on the System being enabled.

3. Learned Counsel Sri.Benny P.Thomas first contended that the power conferred on the Central Government under the Minimum Wages Act, 1948 [for brevity 'Minimum Wages Act'] does not extend to the various prescriptions made in the present amendment. It is argued that there can be no insistence that the wages should be paid only through Bank accounts. It is pointed out that Form XIV, which accompanies the amendment has about 44 columns, many of which are irrelevant insofar as the payment of minimum wages. The requirements necessitate a cumbersome procedure, which does not serve any purpose, according to the employers. It is argued that the amendment to the Payment of Wages Act, 1936 [for brevity 'Wages Act'] relied on by the Government to substantiate the prescription of payment through Bank accounts was brought in after the Rules were amended.

4. Sri.Adarsh Kumar, learned Counsel, argued that the subordinate legislation brought out by the Government under the Minimum Wages Act, which makes mandatory procedures, are already made under other enactments. The attempt of the State is to make a consolidated labour enactment, for which there is no power conferred under the Minimum Wages Act. The subordinate legislation is clearly ultra vires, especially looking at Section 11, which mandates payment of wages in cash. Further it is argued that the provisions made and the details required warrant disclosure of confidential information, which put the employer and the employee to prejudice and result in impinging their right to privacy. As an example, it is pointed out that the 'Other Allowance' as required to be divulged in Form XIV, in the case of doctors, may result in difficulties to those Doctors to whom such payment is made. An expert doctor's charges may vary from others equally qualified and, hence, there could be no such disclosure made which would not in any manner come under the purview of the enactment ensuring payment of minimum wages. Sri.Adarsh Kumar asserts that his arguments are not based on any hardship or inconvenience, but on the ground of there being no enabling provision to make the provisions as of now, invoking the power under the Minimum Wages Act. Reliance is placed on Bidi, Bidi Leaves and Tobacco Merchant's Association v. Bombay State [AIR 1962 SC 486], Cellular Operators Association of India v. TRAI [(2016) 7 SCC 703], Kerala Samsthana Chethu Thozhilali Union v. State of Kerala [(2006) 4 SCC 327] and an unreported decision of this Court in Insurance Appeal No.43 of 2010 dated 17.05.2016 [Regional Director, ESI Corporation v. Uno Security Services].

5. Sri.K.K.Premlal, learned Counsel also appearing for the appellants, produces before us the WPS Manual as downloaded from the website of the Kerala Government. It is specifically pointed out that the website provides about 16 Banks to which the payments are to be made directly through the System. It is, hence, argued that the Government does insist on payment through the Department, ie: through the WPS. It is pointed out that there can be no insistence on the employees to open a Bank account, much less direct them so to do in a particular Bank or Banks. Malabar Cancer Centre Society v. Dinesh Kumar [2018 (2) KLT 140] is relied on to argue that this court had held that the employer cannot insist their employees to open an account in a particular Bank. When the provisions in the Act prescribe payment of minimum wages in cash, a violation would entail invocation of the penal clauses under the Rules, which, at this point, would extend to a fine of Rs.2 lakhs. It is pointed out that an employee if he refuses to open an account in a Bank and insists payment in cash, the employer would necessarily have to do that. In that event, it would be in consonance with the Act; but, however, in violation of the prescription in the Rules. Vice versa, if there is a payment in accordance with the Rules, it could be in direct conflict with the provisions in Section 11.

6. Sri.K.V.Sohan, learned State Attorney, would, however, urge us to take an interpretation keeping in mind the technological advancements made over the years. It is pointed out that the learned Single Judge himself has appreciated the move of the State Government in having taken recourse to information technology to ensure compliance of the provisions of the Act without conducting physical verification of the records. The ground raised of infringement of privacy is not at all substantiated, since the details sought for are otherwise required to be maintained by the employer, which can also be accessed by the officers of the Department who has the power to inspect the establishments. On Section 11, it is asserted that a payment through the Bank is also in cash and we have to take note of the rapid strides made by the entire world generally in technology and this Country, particularly in Banking. The payment in cash would take in payment through Bank account also, is the specific argument raised by the State. It is also pointed out that the power conferred on the State definitely permits such a measure to be adopted in effecting supervision and implementation of the Minimum Wages Act.

7. We broadly agree with the findings of the learned Single Judge except on one aspect, which we will deal with a little later. It has been rightly argued by some of the petitioners that they do not take up the ground of undue hardship to challenge the amendment to the Rules, rightly so. Nor can the measure directing uploading of details in the System manned by the Department said to be against the statute, i.e., the Minimum Wages Act. As has been held in Khoday Distilleries Ltd. v. State of Karnataka [(1996) 10 SCC 304], a subordinate legislation can be questioned on the ground of unreasonableness not in the sense of it being 'not reasonable', but in the sense that it is manifestly unjust. There can be alleged no manifest arbitrariness especially insofar as the details sought for in Form XIV, already have to be recorded in the physical form in Registers maintained as provided under the Act and the Rules. Form V under the Kerala Rules is the 'Over-time Register For Workers' which require the normal working hours the overtime work carried out and the normal as also the overtime wages to be recorded. The 'Muster Roll' in Form VI records the entire details of the workman. Form XI the 'Register of Wages' already requires all deductions including those contributed to the PF and ESI to be recorded and maintained. The requirement as per the amendment is only to provide the same digitally as per the details charted out in Form XIV and uploaded in the website of the Department inter alia for ease of inspection and supervision and better management of the regulatory measure. Further the Ease of Compliance to Maintain Registers Under Various Labour Laws Rules, 2017 is the consolidated regulatory measure prescribed under which Form B takes in almost all the heads provided in Form XIV of the Amended Rules.

8. As has been rightly noticed by the learned Single Judge, there can be no ground taken of the maintenance of records digitally being against the provisions of the Act, since Sections 6 & 7 of the Information Technology Act, 2000 validates digital maintenance of documents, records or information which are to be maintained under any law and deems it to be a proper maintenance as per that enactment. It cannot also be alleged that there is a cumbersome procedure, since what has been earlier mandated to be physically recorded in Registers has now been directed to be recorded in the electronic media. In the amendment, we specifically notice that on Form XIV being maintained as prescribed there under, there are exemptions provided under Rule 29C from maintaining the Register of Fines in Form I, Register of Deduction of Damage or Loss Caused to the Employee in Form II, Over Time Register for Workers in Form V and Register of Wages in Form XI; which we have already referred to. As we noticed at the outset, the ground of hardship and cumbersome procedure are only raised for reason of reluctance to shift to a digital form, a total changeover from the earlier mundane practice of recording details in a worn out Register; which could also be substituted or manipulated.

9. There have also been instances of two registers being maintained, with one recording the correct details and the other offered to the inspecting officials. Violation was the norm, since it was impossible for the limited officers of the Department implementing the labour welfare enactments to carry out even periodic inspection of all the establishments within their jurisdiction, which proportionately are numerous. The maintenance of Registers, which is mandatory as per the enactment by the aforesaid provisions, is possible of supervision immediately for reason of the employer obliged to upload the same with the details of payments made to the workmen/employees every month prior to the payment of wages. An officer could verify the details of all the establishments under his jurisdiction and ensure that the same has been uploaded in the electronic media by a few clicks on his Personal Computer sitting in his office. This also enables identification of the erring establishments against whom physical inspection can be done making the implementation of the Act more effective.

10. In the context of uploading of Form XIV, there was an argument addressed that Section 2(h) of the Minimum Wages Act, defines 'wages' as remuneration, expressed in terms of money, if the terms of the contract of employment, express or implied, were fulfilled. If the terms are not fulfilled, there can be no payment of wages and hence there could be no uploading of evidence of payment of wages in advance. We need only notice the argument to reject it, since the payment of wages as per the Wages Act by Section 5 is required to be paid only after the expiry of the 7th or 10th day, after the last day of the wage period in respect of which the wages are payable. The Minimum Wages Act does not fix any time. Invariably the wages are paid on a monthly basis and wage period is taken as a month comprising of 30 or 31 days. Then the requirement to pay arises only before the 7th or 10th day of the next month. The wage period ends on the last of the month and the requirement is only to upload Form XIV in the website of the Department three days before the actual payment is made ie; before the 7th or 10th day of the next month. The wage slip generated electronically is also required to be issued to the employee only on the date before which the actual payment is effected. Definitely the receipt as required under the Minimum Wages Act can be taken from the employee after such payment is effected. We do not find any difficulty in entering of the details as required under Form XIV or for effectuating the uploading three days prior to the payment of wages and the wage slip being issued one day before the actual payment is effected.

11. We also agree with the finding of the learned Single Judge that there is no merit in the contention that many of the information required to be entered in Form XIV has nothing to do with the Act, statute or its object. The submission of the petitioners that the prescription is in the manner of a consolidation of all labour enactments and the same is not permissible under the Minimum Wages Act has already been found by us to have no legs to stand. We do not find any difficulty insofar as all the details sought for are with respect to payments made to the employee by an employer, which, in any event, is income in the hands of the employee over which no secrecy can be claimed. Column Nos.26, 27 and 28 were proposed to be deleted and the same is carried out, evident from the notification dated 26.04.2017, substituting Form XIV, produced as Ext.R1(C) along with the Counter affidavit in W.P.(C) 18055 of 2016. What we have earlier said applies to all the other columns in Ext. R1(c). The argument seems to be on the ground that Form XIV also insist for details with respect to payment to Employees Provident Fund, Employees State Insurance, any Welfare Fund, Professional Tax and Tax Deducted at Source, which are all levies under the various enactments; the majority of them also being welfare measures for the employees.

12. Before proceeding further, we notice the decision of the Hon'ble Supreme Court in Workmen, Represented by Secretary v. Reptakos Brett & Co.Ltd. [(1992) 1 SCC 290]. This very Division Bench had noticed the aforesaid decision in K.N.B.F.C.W.A. v. State of Kerala [2019 (4) KLT 977]and spoken as follows:

"27. We notice that Reptakos Brett & Co. referred to the norms for fixation of minimum wage as accepted by the Tripartite Committee of the Indian Labour Conference held in New Delhi in 1957 and keeping in view the socio-economic aspect of the wage structure added one more additional component as a guide for fixing the minimum wage in the industry. Briefly stated, these six factors are:(i) the standard working class family to be taken to consist of three consumption units for one earner, (ii) minimum food requirement should be that essential for an average Indian Adult of moderate activity, (iii) clothing requirements to be estimated at per capita consumption of 18 yards per annum, (iv) rent with respect to housing should correspond to the minimum area provided under Government's Industrial Housing Scheme (v)fuel, lighting and other 'miscellaneous' items of expenditure constituting 20% of the total minimum wage and (vi) children's education, medical requirement, minimum recreation and provision for old age marriages etc. constituting a further 25% of the total minimum wage.

28. Reptakos Brett & Co. Ltd. though provides for the components to be looked into while fixing the minimum wage does not provide for components in addition to the minimum wages fixed. By providing for reckoning fuel, lighting, education, medical requirement etc. as factors to be reckoned in prescribing minimum wages; constituting another 20% & 25% of the total minimum wages, the indication is clear and explicit. The Government, while fixing the minimum wages, could take into account the many factors and fix the basic wages at a certain extent, of which 20% would take care of that one factor and 25% would constitute that other factor. For example if on the first four factors the Government fixed Rs.1000/- then Rs.200/- should be added for that one factor and Rs. 25O/- for that other factor; which brings the total minimum wages to Rs.1,450/-. The Government cannot separately provide specific amounts for housing, lighting, fuel, travel on official work or medical reimbursement. It does not provide for a separate component to be granted. That is the declaration made in Bidi, Bidi Leaves and Tobacco Merchants Association and Hindustan Sanitaryware and Industries Ltd. [AIR 2019 SC 2194]”.

13. The minimum wages provided is an amount taking in all factors, assuring the employee and his family a dignified living condition. It cannot be doubted that the regulatory measures with respect to the other labour welfare enactments does not lie with the regulatory measure under the Minimum Wages Act, though it is a fact that the very same Department is enjoined with implementation of many welfare enactments. We are not upholding the measure only because of the very same Department being involved in the majority of labour welfare measures. The Minimum Wages Act is one brought in with the avowed objective of ensuring minimum wages to an employee not for mere sustenance but a dignified living condition for himself and his family. The details of all payments and deductions made to and from him would assume relevance. As found by the learned Single Judge the disclosure of all allowances paid to the employee, benefits the employer also, in satisfying the authorities of due compliance under the Minimum Wages Act. More importantly, it ensures that deductions are not made in excess of what is mandated under the other enactments; which results in depriving the employee of such benefit. If it is said that only the wages paid has to be looked into by the Department, then the employer could merely make deductions under the other enactments in excess of that required; which an illiterate employee or one from the marginalized section of society may not be aware of. When the requirement under the enactment is for payment of minimum wages, which has been held by the Hon'ble Supreme Court to be not merely for the bare subsistence of life, necessarily the various deductions made from the employee's wages to satisfy the levies under the welfare enactments assumes relevance and significance. On the above reasoning, we reject the contention of the petitioners that the details called for in Form XIV travels beyond the scope of the Minimum Wages Act.

14. One other contention urged was with respect to infringement of privacy. In fact, it was vehemently set up as an example; of an expert doctor whose charges for consultation, treatment and surgery would differ. It is an admitted fact that there is no prescription made of minimum wages for doctors. But the contentions still remain that the details of various payments to the employee necessarily would reflect on the business of the employer and an access to such details by the public would put the business in unhealthy competition and create unknown hurdles. The learned Single Judge in repelling all these contentions on infringement of privacy has relied on the pleadings of the State Government in its statement dated 30.05.2016, affidavit dated 04.06.2016 and the counter affidavit dated 10.07.2017 in W.P(C)No.18055 of 2016. It is asserted that there is no private employee information that is required to be divulged in the data furnished in terms of the amended rules. On this aspect, we have to pertinently notice that the bonus paid, maternity benefits allowed and the arrears paid, which were required under Columns 26, 27 and 28 of Form XIV are now deleted, which alone could be asserted to be of a very personal nature. It has also been categorically stated by the Government that Form XIV uploaded in the website of the Department would not be accessible to the public and can only be viewed by the employer and the jurisdictional Inspectors. The System is password protected and login is permitted only by using the unique ID and password allotted to the individual employer as also to the jurisdictional Inspectors. No employee can view the details of another in the website and it is hence that the employee is required to be issued an electronically generated wage slip; the employee being concerned only about the details of his wages. The question of misuse of the data furnished does not at all arise for reason of the safeguards ensured. As far as the jurisdictional officers are concerned, necessarily they are entitled to view such details even on a physical inspection & verification and their access through the electronic media cannot at all be questioned or challenged. Thus viewed, there arises no question of infringement of privacy. The ground of infringement of privacy cannot also be raised on the sole ground of a mere apprehension of, a malfunctioning of or an illegal penetration into, the System. Man, as has been famously said, is not an island. He is essentially a social animal and none, other than a total recluse, would seclude himself only for fear of bodily harm or the apprehensions of trespass and destruction of property. Every mandate of law, especially in a regulatory measure, then could be challenged on allegations of probable misuse or illegal bypassing of the safeguards which result in perceived infringement of privacy. That cannot be a sustainable ground for setting aside a valid subordinate legislation enacted with competence, in conformity with the statute, without repugnancy, neither with manifest arbitrariness or unreasonableness nor vitiated by violation of fundamental rights [State of T.N. v. P.Krishnamurthy [(2006) 4 SCC 517].

15. One other contention raised is of discrimination insofar as the Schedule as per the Amendment including only six scheduled employments. But for the mere allegation of discrimination raised for reason of inclusion of their industry, it has not been alleged as to any equally placed industry having been excluded. The State, in its wisdom, has picked certain industries for initial coverage under the Amended Rules, which has been introduced for the first time. On looking at the industries specified, we presume; no other specific ground of discrimination having been raised, that the State first picked up those industries wherein the employees are evidently unorganized and the number of employees far less than other establishments. It is also stated in the counter affidavit of the State that they had first verified the WPS, by including 270 willing establishments, who had uploaded the details and even paid the wages through the system. A factory or a plantation having an active labour force informed in the politics and varying equations of the management-employee tussle, stand apart from shops and establishments, private hospitals, dispensaries, para medical institutions, star hotels, security services, computer software and private educational institutions (non-teaching). The specific ground argued was that a teaching institution has been excluded, which, obviously, is for reason of the work force being more informed and even the non-teaching staff in the said establishment having access to informed people in the form of teachers who make the majority of the work force. We do not find any reason to accept the ground of discrimination.

16. Now we come to the aspect of the difference of opinion we have from the findings of the impugned judgment, especially paragraphs 10 and 11, which upheld the prescription in the Amendment for payment of wages through individual Bank accounts as has been provided under sub-rule (2) of Rule 21A. The learned Single Judge has accepted the contention of the State, finding that Section 11 of the Minimum Wages Act should be understood in the background of Section 6 of the Wages Act. With due respect, we are unable to accept the said proposition. The finding of the learned Single Judge insofar as the notification issued under the amendment of Payment of Wages Act, to sustain the insistence for payment of minimum wages through Bank account alone, in the Rules under the Minimum Wages Act cannot be sustained. However, we notice that if under the amendment to the Wages Act a notification was brought out specifying that the payment of wages under the Wages Act should only be through Bank accounts, it definitely would be permissible. The amendment to the Wages Act by the proviso to Section 6 conferred power on the appropriate Government to specify the industrial or other establishments, the employer of which shall pay to every person employed, the wages only by cheque or by crediting the wages in his Bank account. The appropriate Government could provide either payment of wages only by cheque or only by crediting the wages into his Bank account; or alternatively ie: in one or either of these modes. We agree with that finding but it cannot substantiate the prescription made under the Minimum Wages Act.

17. In looking at whether the Rules under the Minimum Wages Act could provide for the payment of wages only through a Bank account as provided under the Payment of Wages Act, we have to look at both the legislation and the provisions there under.

18. The Wages Act of 1936 is prior in time to the Minimum Wages Act of 1948. The prescription in Section 6 of the Wages Act before amendment and after amendment are as follows: Prior to Amendment: “6. Wages to be paid in current coin or currency notes All wages shall be paid in current coin or currency notes or in both: PROVIDED that the employer may, after obtaining the written authorisation of the employed person, pay him the wages either by cheque or by crediting the wages in his bank account”. After amendment:

“6. Wages to be paid in current coin or currency notes or by cheque or crediting in bank account All wages shall be paid in current coin or currency notes or by cheque or by crediting the wages in the bank account of the employee:

PROVIDED that the appropriate Government may, by notification in the Official Gazette, specify the industrial or other establishment, the employer of which shall pay to every person employed in such industrial or other establishment, the wages only by cheque or by crediting the wages in his bank account”.

The Wages Act of 1936, always required payment of wages in current coin or currency notes. But the proviso, as it originally stood, provided that there could be a written authorization of the employee so as to enable payment by cheque or by crediting the wages in his Bank account. We have to keep in mind that banking had not percolated to the masses at that stage. The Minimum Wages Act, enacted far later in 1948, required minimum wages payable under the Act to be paid in cash as per Section 11(1). Section 11 had the nominal heading “Wages in kind”, specifically taking into account the prevalence of such wages being paid in kind during the pre-independence period. It was, hence, there was a mandate to pay the wages in cash and sub-section (2) approved payment in kind only when there was a pre-existing custom, which also had to be recognized by the Government, through a notification in the Official Gazette. Considering the abject poverty of the majority of the work force at that point of time there was also a provision enabling the Government to mandate supply of essential commodities at concessional rate, again by notification in the Official Gazette.

19. When the Parliament enacted the Minimum Wages Act, 1948, it is deemed to have been aware of the proviso in the Wages Act of 1936; but, however, consciously there was a mandate to pay the minimum wages in cash. Whether the same is applicable even after 70 years when Bank Nationalization and the opening of the market economy has resulted in percolation of the banking activities to the masses is a matter which should be addressed in accordance with the times, by the Union Parliament and it is not for us to interpret a clear mandate, which does not create any anomalous situation. In this context, we have to notice that the Payment of Wages Act has been suitably amended, empowering the appropriate Governments to either insist for payment only by cheque or only through Bank accounts or either of such modes. The Parliament, hence, was conscious of the developments in banking and its wider reach which is evident by the amendment made to the Payment of Wages Act in the year 2017, as is evidenced from Exhibit R1(a). However, the law making body did not choose to amend the Minimum Wages Act. We cannot find that it was an inadvertent omission. If we interpret it otherwise then it would have the effect of an amendment, which would impinge upon the legislative functions.

20. Viewed in this manner, we have to find that the prescription made by sub-rule (2) of Rule 21A, that the employers of the scheduled employments should pay and disburse the wages to the employees only through individual Bank accounts would be in violation of the specific statutory mandate. In this context, we notice the following paragraphs from P.Krishnamurthy, which has been quoted with approval in (2016) 7 SCC 703:

“16. The court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the court should proceed with caution before declaring invalidity”.

[underlining by us for emphasis]

Here, the Rule is in direct conflict with the statutory provision, which mandates payment in cash. We accept the contention that in a situation where either of the modes are resorted, of payment in cash or through Bank account

Please Login To View The Full Judgment!
s, it would result in allegations of violation of the provisions under the Act or under the Rules leading to imposition of penalty as prescribed under Section 22 of the Minimum Wages Act. It is, hence, a 'no win' situation for the employer, since either way the payment of minimum wages would attract penal provisions. 21. On our interpretation of the Act and the Rules, we find sub-rule (2) of Rule 21A of the Kerala Rules as amended by Exhibit P1 notification to be ultra vires the Act. However, the other amendments are upheld and the regulatory measure by which there is an insistence brought in for uploading the details of the workers as required in Form XIV as also the other prescriptions, inter alia, of the uploading to be done three days prior to the payment, wage slip issued on a day prior to the payment, are all upheld. 22. Having held sub-rule (2) of Rule 21A to be ultra vires, definitely the Department cannot insist for payment through the Bank accounts of the employees. In this context, we look at the specific contention raised by the appellants that only 16 Banks have been provided by the Department for the purpose of making payments through the WPS. We cannot but notice that even if the provision were to be upheld, there can be no insistence that the payment should be only through the WPS. There is no such mandate provided in the rules. The choice of Bank vests exclusively with the employee and there cannot be any insistence by the Department or the employer. If the facility for fund transfer is available through the WPS, it can be availed by the employers at their option and with consent of the employee. Be that as it may, we cannot also ignore the averment of the State in its counter affidavit that there are almost 270 establishments now successfully making the payment of wages through WPS. We do not find any reason to interfere with the same and we make it clear that though the Department cannot insist on such payment through the WPS, the establishments/employers could voluntarily make such payments through WPS as also credit wages to the accounts of the employees in other Banks with details submitted in the WPS. We say this, since pertinently there is an amendment to the Payment of Wages Act permitting such payment and the Government has also brought out a notification under the Wages Act. This would not necessarily enable the Government to bring out a similar notification under the Minimum Wages Act. But however, we make it clear that if voluntarily the employers make payments through Banks with consent of the employees, there would be no penalty imposed on ground of violation of Section 11(1) of the Minimum Wages Act. The Writ Appeals are partly allowed and it is directed that the employers of the scheduled employments may be granted three months time to commence uploading of Form XIV in Wage Payment System, as of now without the account number of the employee; if not voluntarily provided. There can be no insistence that the minimum wages will be paid through the bank accounts or through the WPS system of the Department. However those who voluntarily do either will not be prosecuted for reason only of violation of Section 11(1). While declaring sub-rule (2) of Section 21A of the amended Rules of 1958 to be ultra vires to the statute, the other amendments are upheld. The Writ Petitions filed are also partly allowed in the same lines as the Writ Appeals. The parties in the Appeals and Writ Petitions are left to suffer their respective costs.