Secretary Padippu K.S.Sangam Ltd Vs. C. Varghese [2007] Insc 311 (20 March 2007)
Dr.AR.LAKSHMANAN & ALTAMAS KABIR
(Arising out of SLP(C) No.7380 of 2006) Dr.AR.LAKSHMANAN, J.
Delay condoned.
Leave granted.
Heard Mr.T.L.V.Iyer, learned senior counsel for the appellant and
Dr.K.P.Kylasanatha Pillai, learned counsel for the respondent.
This appeal has been filed against the judgment and order dt.24.02.2006
passed by the High Court of Kerala in Writ Appeal No.1578 of 2004.
The only question arises for our consideration in this appeal is whether the
appellant-society is engaged in `dairy farming'.
The appellant is a co-operative Society registered under the Kerala
Co-operative Societies Act, 1969 and engaged in the collection of milk from its
members and distribution thereof. The respondent herein is a milk user in the
appellant-society whose work, according to the appellant, is mainly between 6.30 a.m. and 8.30 a.m. on all days. As per the settlement arrived at before the District
Labour Officer Kasergod on September 20, 1990, the respondent was being paid a
consolidated pay of Rs.350/- per month from April 1, 1990. The Assistant Labour
Officer, Kasergod also informed the appellant on 25.03.1998 that the milk
producing in co-operative Societies had not been included under the Minimum
Wages Act by any Notification and that there was no orders fixing minimum wages
for employees of such society.
In the meanwhile, the respondent filed an application before the Deputy
Labour Commissioner claiming payment of minimum wages under the Minimum Wages
Act for the period 01.01.1993 to 31.12.1994 as if the said Act was applicable
to co-operative Societies engaged in mere purchase of milk from members and
distribution thereof. The application was allowed despite appellant's contest.
The appellant challenged the decision before the High Court in writ proceedings
contending that the employment in the Society was not a scheduled employment
under the Act and, therefore, the second respondent was not competent to pass
such an order for payment of minimum wages under the Act.
The learned Single Judge of the Kerala High Court accepted the contention
and after a detailed reasoning held that the Act was not applicable to the
employment in question which applied, inter alia, only to `dairy farming'. This
judgment has, however, been reversed by the Division Bench of the High Court
with a view that even distribution of milk by a Society like the appellant will
attract the provisions of the Act.
We have heard extensive arguments advanced by the learned senior counsel for
the appellant and learned counsel for the respondent- workman. In our view, the
impact of the order passed by the Division Bench on the appellant is very
serious. Admittedly, the first respondent was employed only as a milk tester.
It is also not in dispute that the appellant-society is engaged in purchasing
milk from its members and distributing it. It is also not in dispute that the
appellant-society does not own cattle milch and they buy milk for the purpose
of production of milk and `dairy farming'. The contention of Dr.K.P.Kylasanatha
Pillai, learned counsel for the respondent, is that the sale of milk does form
part of the process of the production of milk which constitute `dairy farming'.
We are unable to countenance the said submission because it is only a part of
the process of distribution of milk. In our view, the mere activity of buying
milk from its members and distributing it will not constitute `dairy farming'
when there is no rearing of milch cows and no agriculture or farming activity
is carried on by the Society. The High Court, in our opinion, ought to have
held that the appellant-society which merely collects milk from its members and
distributes is not engaged in any employment scheduled under the Act. This
apart, the respondent's claim that it falls within the purview of `dairy
farming' in Schedule II cannot also be accepted and we are unable to accept the
submission made by the learned counsel for the respondent and the reasoning
given by the Division Bench of the High Court. We are, therefore, set aside the
order passed by the High Court and allow the appeal filed by the
appellant-society.
During the pendency of the proceedings, the respondent was paid some salary
including minimum wages. We make it clear that the amount which has already
been paid shall not be recovered from the respondent.
The appeal stands allowed accordingly.
No costs.
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