KURIAKOSE C J Vs. STATE OF KERALA
HIGH COURT OF KERALA
KURIAKOSE C J
STATE OF KERALA
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(1.) The petitioner has been convicted by the Industrial Tribunal and Special First Class Magistrate (for Labour Laws), Alleppey under S.22A of the Minimum Wages Act for failure to submit a return in Form III prescribed by the Kerala Minimum Wages Rules and sentenced to pay a fine of Rs. 25/. The petitioner admitted before the lower court that he did not submit the return, but claimed that he was not bound to do it; and the lower court rejected the claim.
(2.) The argument of the counsel of the petitioner is that under R.21(4)(iii) every employer is not bound to submit a return in Form III and that only such employers who have made realisations under clause (i) and deductions under clause (ii) of sub-r.(4), are bound to submit returns in Form III. To appreciate this contention, I may point out that under the Kerala Minimum Wages Rules an employer is entitled to make some deductions from the wages of persons employed by him; and that clause (i) of sub-r.(4) regulates the imposition of fines and clause (ii) of the same sub-rule regulates the making of deductions for damage or loss. Clause (iii) then provides:
"All realisations under clause (i) and all deductions under clause (ii) shall be recorded in a register maintained in Forms I, II and III as the case may be. A return in Form III shall be submitted annually by the employer".
This indicates that the employer who is bound to make a return in Form III under clause (iii) is that employer who has made realisations under clause (i) and deductions under clause (ii). Clauses (i) and (ii) refer to the deductions mentioned in sub-r.(3); and sub-r.(3) says that "any person", desiring to impose a fine or make a deduction shall explain to the employed person, etc.
(The use of "any person" here, I am aware, is not conclusive and can be explained as that person who desires to impose a fine or make a deduction). Again, R.29 dealing with registers and forms prescribes that a register of wages shall be maintained by "every employer"; and this register must also contain all deductions made from wages. In the light of these, the maintenance of registers in Forms I and II and the submission of a return in Form III do not appear to be obligatory to every employer. Admittedly, the petitioner had made no realisations under clause (i) nor deductions under clause (ii) of sub-r.(4). Such an employer who had not made realisations under clause (i) or deductions under clause (ii) does not appear to be "the employer" mentioned in clause (iii) who is bound to file a return in Form III. The lower court characterises the argument of the counsel of the petitioner as both "ingenuous and ingenious": I am not able to find any ingenuity in the argument; and I feel that the argument is quite ingenuous (open, frank, free from deception).
(3.) I may now point out a small mistake in clause (iii). Form I mentioned there is captioned "Register of Fines" and Form II is captioned "Register of deductions for damage or loss caused to the employers by the neglect or default of the employed person". These two forms between themselves exhaust all the realisations and deductions under clauses (i) and (ii), so that the reference in the first sentence of clause (iii) to Form III appears to be a mistake. The sentence should have been:
"All realisations under clause (i) and all deductions under clause (ii) shall be recorded in a register maintained in Forms I or/and II as the case may be".
Reference to Form III should not have been there. Form III is intended for submitting an annual return, whereas Forms I and II are to be maintained from day to day. This is clear, especially from the second sentence of clause (iii). I may also point out that Form III is captioned "Deduction from Wages", which again indicates that this is only a summary or total of Forms I and II an abstract with the addition of the total number of persons employed and the total wages paid.
For a person like the petitioner who had not made deductions from wages under clauses (i) and (ii) of sub-r.(4) of R.21, there is no obligation to file a return in Form III, as he is not ''the employer" mentioned in clause (iii).
The revision petition is allowed; the conviction and sentence of the petitioner are set aside; and the petitioner is acquitted.;
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