V.B. Mallikeshi vs State of Karnataka

Subhash B. Adi, J.—All these writ petitions were earlier disposed of by this Court by various orders, however, the State had filed W.A. No. 1815/2009 and connected matters. The Division Bench of the Court after hearing both the sides by order dated 18.06.2012 set aside the orders passed by the learned single Judges in these writ petitions, on the ground that the State was not heard in the matter and accordingly, the matters were placed before the learned single Judge for fresh disposal. That is how these matters are again posted before me. Petitioners in all these writ petitions claim that they were appointed by the Management/Principal on daily wages as Accountant, Cooks, Assistant Cooks, Attenders, etc., in respect of hostel attached to the aided colleges. The Management was providing hostel and food facilities for Scheduled Caste/Scheduled Tribe and Backward Class Students of post-matriculation. Petitioners were appointed with effect from 01.06.1982 onwards. They have rendered more than 26 years of service, however, their services were not regularised nor they were paid minimum wages even after the State Government issuing notification dated 20th December 2001, fixing the minimum wages for Cooks, Accountants, etc., working in the residential hostels. In this regard, the petitioners had made a demand for fixing of minimum wages, however, their request has been rejected. Thereafter, some of the similarly placed employees had approached this Court in W.P. No. 43674/2004 as against the rejection of grant of minimum wages (the employees in hostel meant for SC/ST and Backward Classes) and the said writ petitions were allowed, wherein this Court by order dated 20th September 2006 quashed the circular withdrawing the minimum wages to the employees working in residential hostels and directed the respondents to continue to pay the minimum wages as drawn by the petitioners from 2003 onwards with consequential benefits. Relying on the said decision, these petitioners also sought for issue of writ of mandamus directing the respondents to pay minimum wages by extending the benefits of the orders passed by this Court in W.P. No. 17591/2004 and W.P. No. 43674/2004 dated 20th September, 2006, which order has been implemented by the District Social Welfare Officer, Chamarajanagar, by order dated 24th March, 2007.

After these writ petitions were placed again for hearing, the State has filed the detailed objections inter alia contending that, the petitioners are not employed by the, State. There is no document to show that any of the appointment is made by the State or State Authority. The hostel is not admitted to any grant-in-aid nor the appointments of the petitioners are admitted to any grant by the Government. Hostels are run by the Private Educational Institutions, in turn, the Private Educational Institutions have employed the petitioners, as such, there is no relationship of employer and employee between the petitioners and the State nor they are the sanctioned post or approved by the Government. However, the Government grants financial assistance to the Management towards the maintenance and establishment of hostels for SC/ST and backward classes. It is the Management who engaged the services of the Accountants, Cooks, Assistant Cooks, Attenders, etc. Some of the recognized institutions, which run the hostels were provided with the grant towards maintenance and establishment. Such grant is utilized for various purposes by the Management. Except this, there is no relationship between the Private Management and the State.

What is claimed by the petitioners is minimum wages in terms of Gazette dated 11th December, 2001. If there is any claim for payment of minimum wages against the employer, such claim is required to be made u/s 20 sub-section (2) of the Minimum Wages Act, before the Controlling Authority under the said Act. Hence, the Writ Petitions for grant of minimum wages is not maintainable much less against the Government. It is stated that, there is no sanctioned grant for post-matriculation, college hostels in the Department of Social Welfare of the State, there is no head of accounts in the Social Welfare Department to sanction a grant-in-aid for any post-matriculation or college hostel in the State of Karnataka. The Government of India sanctions the scholarship to the students belonging to; SC/ST, the State sanctions the extra boarding '' and lodging charges to the SC/ST students studying in private hostels, managed by the private management.

The scheme for providing financial assistance as per the Government circular dated 16.03.1981 was to provide extra boarding and lodging (EBL charges) to encourage the higher education to the students belonging to SC/ST and backward community and to bring them to the main stream by way of sanctioning the scholarship providing the private managed college to provide boarding and lodging facilities to these students. Even if there are some directions or orders issued by the Zilla Panchayat under misconception, such orders or directions would be without authority of law and will not lead to conclusion that the employee of a private managed hostel would be entitled to receive the salary grant from the Government.

Amongst 18 batches of writ petitions filed, the petitioners in W.P. No. 15238/2008 and 16279-284/2008 claiming to be working in Sri. Malathi Pre-University SC/ST ''B'' Hostel, Jagalur, Davangere District, is closed since 1998. Petitioners in W.P. No. 15239 and 15547-553/2008 claiming to be working in Sri. Devaraj Urs First Grade College, SC/ST Hostel, Davanagere Taluk is closed from 2004. Petitioners in W.P. Nos. 15235/2008 and 17941-43/2008 claiming to be working in R.L. Law College, SC/ST Hostel, Davanagere District, is closed from 31.03.2005. Similarly the hostels where the petitioners in W.P. Nos. 15236/2008, 15169/2008. 16397-402/2008, 15170/2008, 15305-308/2008, 15234/2008, 15538-308/2008, 15237/2008, 15363-866/2008. 15168/2008, 15299-303/2008, 16953-956/2008, and 2095/2009, claiming to be working in the hostel, the said hostels have been closed since 2007, 2010, 2010, 2010, 2009, 2012, 1998 and 1998 respectively. The petitioners in W.P. Nos. 15213, 15212, 15868-876/2008, 15214/2008 and 15531-537/2009 claiming to be working in hostels are not existing. Insofar as the hostels referred to in W.P. Nos. 14406/2008, 14213/2009, 14405/2008 and 2096-2100/2009 are concerned, they are only hostels which are functioning and as per the norms, the establishment and maintenance grants are provided to the said hostels. It is further stated that, since there is no relationship of employer and employee nor the Government has engaged these petitioners either on contract basis or on daily wage basis or under any scheme, the petitioners have no right to claim the wages from the Government. The sanction of financial assistance is based on budget allocation and budget allocation is also based on sanction of the schemes by the Government. The Government has no doubt sanctioned the financial assistance for establishment and maintaining the hostels under the supervision and control of the private Manager, however, the Government has no control over the employment. Only for the purpose of guidance, the utilization of the amount is specified, except this, there is no relationship much less of master and servant.

In order to encourage the SC/ST and backward class students to go for post-matriculation education, they were provided scholarship under the Central Government scheme, Simultaneously, State has also provided extra lodging and boarding scholarship based on the strength of the students, the said amount is utilised by the private management for establishment and running the hostels. Hence, the petitioners cannot have any grievance against the State for payment of minimum wages.

Learned Counsel appearing for the petitioners contended that, the petitioners were - appointed as daily wage employees initially on payment of Rs. 6.50 paise per day, which was enhanced to Rs. 10/- per day, then to Rs. 20/- per day and fixed at Rs. 780/- as honorarium payment per month. The Government has not issued any appointment order, but their salary is paid out of the grant provided to the Private Management. The Private Management only supervises the hostels and its supervision is based on financial assistance provided by the State Government, as such, the salary is paid out of the said grant. Hence, it is the Government, which looks after the wages of the servants working in the hostel.

To support his contentions, learned Counsel relied on the additional documents filed along with the reply to the statement of objections in W.P. No. 14406/2008. Relying on Annexure-X, a circular dated 14.02.1992, learned Counsel submitted that, the Chief Executive Officer of the Zilla Panchayat, Chitradurga has recommended for payment of minimum wages to the employees working in the hostel. He also relied on the order of Zila Panchayat, Chitradurga dated 28.06.1996 Wherein the Zilla Panchayat has decided to fix the consolidated wages at Rs. 780/- per month. He further relied on the Government notification dated 11.12.2001 wherein the Government in exercise of its power u/s 5 subsection (1) of the Minimum Wages Act has fixed the minimum wages for the employees working in the hostel. In view of the notification of fixing the minimum wages, the employees working in the hostel, legally entitled for the minimum wages as per the said notification. He also relied on a communication from the Commissioner of Social Welfare Department to the District Social Welfare Officer wherein he had directed the District Social Welfare Officer to extend the minimum wages to the employees working in the hostel meant for SC/ST students. He further relied on a communication issued by the Management of the private educational institution to the Taluka Welfare Officer dated 10.09.2003 to submit that, the Private Management, though pays the wages, but in turn, it is based on the direction of the Social Welfare Department, the wages are fixed. Further submitted that, the Management had even replied to the Taluka Welfare Officer inter alia expressing that the Government has not sanctioned the wages of the employees in the hostel to show that the wages are paid by the Government. Referring to these documents, learned Counsel submitted that, the expenditure incurred by private management is based on the sanction made by the Government. He further submitted that, it is the State which is the principal employer and responsible for disbursement of the salary of the petitioners and in view of fixation of minimum wages, petitioners are accordingly entitled for the same.

He also relied on a letter dated 23.04.2007 written by the Commissioner for Department of Social Welfare to the Secretary to the Department of Social Welfare for sanction of daily wages and for taking hostels under the control of the Social Welfare Department.

Learned Counsel relied on the order of the learned single Judge in W.P. No. 43674/2004 dated 20.09.2006 confirmed in W.A. No. 87/2009 and submitted that, the SLP filed against the order of this Court is dismissed and submitted that, this Court had quashed the circular withdrawing the application, of minimum wages to the employees of the hostels, as such, the order of this Court is also binding on the respondents to sanction minimum wages to the petitioners herein.

On the other hand, learned Advocate General appearing for the State contended that, to seek a direction against the State for payment of minimum wages, it is necessary that, there must be a relationship of employer and employee between the petitioner and the State. The petitioners are neither civil servants nor they have been engaged by the State either on daily wages or on monthly wages nor they were temporarily engaged nor they were engaged under any scheme by the State. However, submitted that, the private educational institutions to attract the students belonging to the SC/ST and backward classes to their colleges, they also provided hostel facilities. The Central Government sanctions the study scholarship to the SC/ST students, it also sanctions scholarship for hostel facilities depending upon the number of students. The State has extended the benefit of providing extra boarding and lodging facilities by granting the establishment and maintenance charge to the private institutions, which are running and providing the boarding and lodging facilities to the students belonging to SC/ST and backward classes. Depending upon the number of students, the amount is sanctioned to be utilised for various purposes as such, sanction of financial assistance to a Private Educational Institutions for purpose of establishment and maintenance of hostels does not create a relationship of employer and employee between the employees working in the hostels and the State. Even incidentally if the Management pays the salary out of maintenance grant, that also will not create any relationship between the State and the petitioners.

He relied on the objection statement filed by the State and submitted that, the petitioners being appointed by the private management and their appointment orders produced by the petitioners themselves show that, they are issued by the Principal of the private colleges, they do not show that they are issued at the instance of the Government or any Authority of the Government, as such, the petitioners merely because their employment is also covered by the minimum wages notification, they do not get any right against the State. Fixation of minimum wages does not mean that the State should pay it, it is the employer''s liability. He also relied on Annexure-X produced in W.P. No. 14213/2008 produced along with the statement of objections to show as to how the financial assistance is sanctioned and pointed out, that the sanctioned amount is based on the strength of the students, i.e., hostel must have minimum 25 registered students and if the hostel has got 25 to 50 students, amount is sanctioned towards the establishment and maintenance charges, the same is determined on each head of the student. The eligibility criteria for such grant under the rules/scheme is based on requirement of the establishment, for which the voluntary Organisations should also contribute towards such charges. On the basis of the strength of the students indicated, only portion at the discretion of the sanctioning authority taking into account the financial position of the voluntary organisation, the sanctions are made. It is based on these norms, the amounts are sanctioned, but this per se does not create a direct responsibility on the State to provide for salary of the employees in the hostel. If the hostels are recognised and having a requisite strength of the students, depending upon the strength, facilities to be provided and the sanctions are made. He further relied on Annexure-R12 - notification under the Minimum Wages Act and submitted that, any claim for minimum wages, the claim petition has to be made before the Controlling Authority under the Minimum Wages Act. The Writ Petition is not maintainable to claim the minimum wages. The said authority has power to adjudicate the dispute in the matter of fixation of minimum-wages.

As far as the order passed in W.P. No. 43674/2004 is concerned, he submitted that, this Court has proceeded on the basis that, minimum wages was extended to these petitioners by the State and the same was withdrawn and the withdrawal of the fixation of minimum wages was questioned before this Court. This (Court has not decided as to whether the State is employer or not. The State Government neither sanctioned the wages nor granted the salary grant, even if the withdrawal is quashed by this Court, it is the employer alone is liable to pay the minimum wages. Even otherwise, this Court not took note of the provisions of Section 20 Clause (3) of the Minimum Wages Act, that is any claim for minimum wages has to be made only before the statutory authority under the Minimum Wages Act and not directly under Article 226 of the Constitution of India. This Court has not considered as to whether there is any relationship of master and servant between the petitioners and the State, even if there is any observation, rule of sub-silentio is applicable and it will not be binding.

To support his contention, he relied on the following judgments of the Apex Court:

Municipal Corporation of Delhi Vs. Gurnam Kaur, in the matter of Municipal Corporation of Delhi v. Gurnam Kaur, (Para 27 of AIR) paragraph No. 11.

Purbanchal Cables and Conductors Pvt. Ltd. Vs. Assam State Electricity Board and Another, in the matter of Purbanchal Cables and Conductors Private Limited v. Assam State Electricity Board and another - paragraphs-53 and 63.

He further submitted that, the Government has not accepted at any time either to absorb the employees or to run the hostels. Only hostels, which are run by the Social Welfare Department, they come under the control of Social Welfare Department, but hostels run by the private management will not come within the purview of Social Welfare Department. If there are any communication by the Social Welfare Department, such communication does not confer any right on the petitioners to claim the payment of Wages from the Government. He also submitted that, all the employment under the State must be in consonance with the rules made under Article 309 of the Constitution of India. Even if the daily wage, or contractual employment are made, if they are made through any outside agency, such employment will not be under the control of the State. In the absence of relationship of employer and employee, no direction could be issued to State to provide minimum wages to the petitioners.

In the light of the above submissions, the points that arise for consideration are:

i) Whether the petitioners are the employees engaged by the State?

ii) Whether the writ petitions are maintainable for claim of minimum wages?

iii) Whether the order in W.P. No. 43674/2004 is hit by rule of sub silentio?

Even according to the pleadings in the writ petitions, petitioners claim that, the private institutions are admitted to the grant-in-aid and the said institutions have established hostel facilities to the SC/ST students studying in their colleges. That the said hostels are established by the private educational institutions. Petitioners also admit that, they were appointed by the Principal of the Private Educational Institutions. However, they claim that, they were paying the minimum wages earlier and the same has been withdrawn by the circular dated 29.04.1989 and this Court has quashed the withdrawal notification.

Even according to the documents produced by the petitioners and the State in its objection statement, including various circulars, it reveal that, right from 1965 onwards, the Government as a Social Welfare measure to encourage the students belonging to SC/ST right from third year plan in 1965, it decided to extend the facilities of extra boarding charges to the backward class students in the general hostels and accordingly, the Government order dated 30.12.1965 was issued inter alia providing for extra boarding charges to the backward class students studying in post-matric degree course in Mysore State then. Clause-2 & 3 of the said order reads as under:

Extra boarding charges may be sanctioned, subject to availability of funds, in respect of students of the following denomination studying in Post-Matric Degree courses in a College affiliated to a University in Mysore State, namely:--

a) Scheduled Castes,

b) Scheduled Tribes,

c) Denotified Tribes,

d) Nomadic and Semi-Nomadic Tribes.

Such charges may be sanctioned by the Deputy Commissioners in-charge of the restricts in respect of eligible students for each term for which they have been residing in the hostels situated within their respective jurisdictions. For this purpose, the 1st term shall be deemed to run from the date on which the classes commenced in that academic year till 31st, October of that year, and the II term shall be deemed to run from 1st November to 31st March of that academic year. Extra boarding charges may also be sanctioned subject to fulfillment of all other requirements for the months of April and/or May a special case in the event of the Hostel being required to remain open to enable students to appear for the examination and/or to attend special or regular classes during those months.

The idea of sanctioning the funds or charges was to provide hostel facilities to the SC/ST, Denotified Tribes, Nomadic and Semi-Nomadic Tribes and it is based on the strength of students i.e., number of strength corresponding the expenditure. In this regard, such Managements were required to make application for sanction of this extra boarding and lodging charges.

From time to time, the circulars are issued. On 20th December, 1977, the Director of Social Welfare and Backward Classes framed direct rules, wherein it is stipulated how the grant should be provided. Rules provided for sanction of grants towards establishment charges for the hostels run through Social Welfare Department for the welfare of SC/ST and backward classes. In so far as the hostels run by the Social Welfare Department, the expenditure is borne out by the Social Welfare Department. However, if the hostels are run by the Private Management, they were required to be recognised by the Director of Social Welfare and the minimum strength of the students at any time should not be less than 25 and such hostels should be registered under the Registration Act, based on the strength, the grants are sanctioned.

No doubt, learned Counsel for the petitioners relied on Annexures-W, X and Y in W.P. No. 14406/2008. These are not the communications issued by the State but they are communications by the Zilla Panchayat, they also do not show that the wages are directly paid by the State. However, they are only recommendations for payment of minimum wages, in turn, the Government proceedings and manner of sanction of the financial assistance right from 1965 is based on the strength of the students, on each head of the student, fixed grants are made in case of hostel having not less than 25 students.

Every amount of the Government is accountable and is to be spent in accordance with the Scheme sanctioned. Merely because the hostels are provided with the grant for establishment and maintenance, which is inclusive of employees'' salary unless such employment is admitted to the grant, or aided by the Government, that will not create a relationship of employee and employer. The object of providing the hostels for students belonging to SC/ST and backward classes was as a welfare measure. In furtherance of the same, the scholarship is provided to the students belonging to said community, correspondingly the scholarship is also provided for extra hoarding and lodging. Ex. P10, a circular dated 16.03.1981 in respect of extra boarding and lodging charges to the SC/ST students. Post-Matric hostels run by voluntary organisation. That is the voluntary organization, which intends to start hostel for Post-Matric course for the benefit of SC/ST students, those students should send an application in prescribed form and sponsors of the voluntary organization should indicate the sources of funds towards non-recurring expenditure on furniture, utensils and recurring expenditure on rent, staff, etc., and the total amount they are investing which are deposited in a Bank and the names of the persons, who are authorised by the Management to operate the funds. Along with the affidavit, the application should be forwarded through the Deputy Commissioner to the Director of Social Welfare. Such hostels should have minimum students of 50 and not more than 100. It should have all the facilities, such as, proper studying, sleeping, bathroom, lavatory, lighting, utensils, furniture and facilities for the board room, etc,. The post-matriculation scholarship at the rate of 125/- per month then was sanctioned. Now it is increased. The extra boarding and lodging charges were sanctioned every month, in any case, the Management shall claim the grant within two months according to the actual expenditure incurred on the maintenance of the Post-Matric hostel with reference to the amount sanctioned for the previous months. This clearly shows that, what was intended is dependent upon the capacity of the non-governmental organisations for running the hostels, based on proper resources and facilities, the grants towards maintenance and establishment charges based on the number of students, the Government as per the prescribed rate could sanction the amount.

Merely because the petitioners are working in hostels run by the private management assisted with financial assistance from the State Government that does not create responsibility on the State to pay the wages of such employees.

However, if the Management finds it difficult to run the hostel or the grant is insufficient and as a welfare measure, the State is required to grant additional fund, it is upto the Managements to seek for additional grant, as permissible.

It is not in dispute that, the appointments of these petitioners are made by the Private Management and not by the State. Hence, it cannot be construed that the State has engaged these petitioners and thereby the State is under obligation to pay the minimum wages, but at the same time, it cannot be said that, the employment of the petitioners, if it is covered under the notification dated 11.12.2001 prescribing minimum wages, they would be entitled for minimum wages, but said payment cannot be enforced against the State, it is open to the petitioners to seek for such payment against the employer through or by whom they have been engaged.

Apart from the above, these Writ Petitions are also not maintainable as the dispute as regard to the minimum wages is concerned, there is a separate statute providing for adjudication of such claim. When there is separate legislation viz., "the Minimum Wages Act", these writ petitions are not maintainable.

Section 20 Clause (2) of the Minimum Wages Act requires an employee, who claims minimum wages, shall make an application either by himself or through legal practitioner for payment of minimum wages and if such application is filed, the Controlling Authority shall hear the applicant and the employer and after giving an opportunity of being heard shall pass an order, as such, when there is a statutory remedy provided for claiming the minimum wages bypassing the said remedy, writ petitions are not maintainable much less against the State, if the private management is the employer, their remedy lies against the private Management or non-governmental organization, whoever has established the hostel and that remedy is only before the proper Authority under the Minimum Wages Act.

As far as the orders passed by this Court in W.P. No. 43674/2004, this Court proceeds on the basis that the State Government by order dated 02.03.1998 granted the minimum wages to the employees of the hostels for SC/ST and that the expenditure incurred would be borne by the Social Welfare Department and Zilla Panchayat fund and observing that, having decided to grant minimum wages, by issue of circular, same cannot be withdrawn. There is no sanction of minimum wages to the employees of private hostels meant for SC/ST students. The circular withdrawing the same has no consequence. Nor there is any order by the State to grant minimum wages. Notification issued u/s 5(1) of the Minimum Wages Act has general application, all the employees working in hostel are entitled for minimum wages from the employer.

When there is no relationship of employee and employer between the petitioners and the State, petitioners cannot seek minimum wages from the State, but may seek the same from their employers. There is no reference to the order of the Government sanctioning the minimum wages to the petitioners nor there is any order to show that the Government had decided to grant minimum wages to the petitioners or similarly placed employees of the hostel. Even if the withdrawal of the minimum wages passed by the District Social Welfare Officer, that does not take away the effect of notification dated 11.12.2001 fixing the minimum wages nor will have any binding effect on the State Government to grant minimum wages. Even otherwise, in case of fixation of minimum wages, when there is a statutory remedy provided u/s 20 of the Minimum Wages Act no direction could be issued to fix the minimum wages or grant the minimum wages unless it is adjudicated before the competent authority under the said Act. This Court has not held that the State is the employer. Further, the said order also does not refer the provisions of the Minimum Wages Act.

The Apex Court in a judgment reported in Purbanchal Cables and Conductors Pvt. Ltd. Vs. Assam State Electricity Board and Another, , if a particular point of law involved in a decision is not perceived by the Court, Court may decide in favour of one party because of the point raised therein. It may be shown that Court should not have decided in favour of such party by not considering the other binding law. It is not in dispute that this Court, on earlier occasion had only considered the communication of Zilla Panchayat and the notification dated 11.12.2001 notified on 22.12.2001. Even if the minimum wages is fixed, the liability to pay the minimum wages has to be decided based on relationship of employer and employee as defined under the Minimum Wages Act. The Authority to decide such issue is the Controlling Authority and the issue as to whether the Government is the employer has not been placed before the Court nor it was decided nor there is any material to indicate impliedly that was the consideration by this Court. If there is any decision arrived without reference to the statutory provisions applicable to the facts and circumstances of the case, any decision in such cases, it will not become ratio decidendi or a precedent and in such cases, the principles of sub silentio would be attracted.

The Apex Court in another case reported in Municipal Corporation of Delhi Vs. Gurnam Kaur, , relying on earlier decision, has observed that, a decision should be treated as given per in curium when it is given in ignorance of the terms of a statute or of a rule having the force of a statute.

Even otherwise, the petitioners had not claimed that they were appointed by the State. If according to them, they were, appointed by the Management and if there is any dispute as regard to the payment of minimum wages, the remedy is under the provisions of Minimum Wages Act and not by filing the, Writ Petition.

Further out of 18 batches of the writ petitions as referred to above, except W.P. Nos. 14406/2008, 14213/2009, 14405/2008 and 2096-2100/2009, all other hostels have been closed right from 1998, 2004, 2005, 2007, 2010 and 2012. Hence, when the hostels themselves are closed, the consideration of relief as on the date of 2008 also could not have arisen in some cases and in respect of private institutions, which are running hostels, learned Advocate General submitted that, as per the prescribed norms, grants have been extended to such hostels.

In view of the above, in my opinion, there being no relationship of employer and employee, which is a paramount consideration for the purpose of enforcing for payment of minimum wages, the question of granting direction does not arise. Even in case of any dispute as regard to the employer and employee, this Court cannot decide such issue. If there is a relationship of employer and employee between the petitioners and the private management, the writ petition is not maintainable against the private institutions. Even otherwise also, if it is a claim against any statutory authority when there is an alternative efficacious statutory remedy, the writ petition is also maintainable, as such, granting the relief also does not arise. Hence, for the above reasons, I hold that the writ petitions are liable to be dismissed.

Accordingly, the Writ Petitions are dismissed, but the order of dismissal will not preclude the petitioners to work out their remedy in terms of notification dated 11.12.2001 notified on 22.12.2001 for minimum wages against the employer in accordance with law, if they are eligible for the same.