S.N. Sahay, J.@mdashThese three writ petitions raise common questions and are, therefore, being disposed of by a common judgment. Smt. Shakuntala Devi who is one of the respondents in all the three writ petitions was appointed as an ''Aaya'' in R.D.S.O. Basic School, Lucknow on payment of a salary of R 50 per month in course of time. The said school was established in 1964 by a registered society known as ''Railway Educational Society, Charbagh Lucknow''. The school was recognized for classes I to V by order dated April 29, 1968 and was upgraded to a Junior High School by order dated December 26, 1974.
2. Smt. Shakuntala Devi applied to the Prescribed Authority under Section 15, Payment of Wages Act, 1936 claiming a sum of Rs. 684 on account of wages for the period July 1, 1986 to March 31, 1987 at the rate of Rs. 114 per month. The application was registered as P.W. Case No. 445 of 1987 and was allowed exparte by the Prescribed Authority by order dated May 17,1989 directing the management of the school to pay her Rs. 684 as wages and Rs. 4104 as compensation, in all Rs. 4788. The management applied on May 10,1990 and August 23,1990 for the recall of the aforesaid exparte order, but the applications were not disposed of by the Prescribed Authority. Meanwhile recovery proceedings were started and recovery certificate dated April 21, 1990 was issued by the Tahsildar, Tahsil Sadar, Lucknow in pursuance of the said exparte order. The management of the school has filed Writ Petition No. 10301 of 1990 for quashing the exparte order dated May 17,1989 and the recovery certificate dated April 21,1990 as indicated above,
3. Smt. Shakuntala Devi moved another application before the Prescribed Authority under Section 15 of the Act claiming Rs. 12,609 as Wages at the rate of Rs. 467 per month for the period July 1, 1987 to September 30,1989 and further Rs. 1,26,090 as compensation. Upon this application a notice to show cause dated November 28, 1989 was issued by the Prescribed Authority in P.W. Case No. 402 of 1989. The management filed Writ Petition No. 888 of 1990 for quashing this notice.
4. The third Writ Petition No. 889 of 1990 has been filed by the management for quashing the order dated September 28,1988 passed by the Prescribed Authority in M.W. Case No. 693 of 1987 and also the order dated 16.11.1989 passed by him rejecting an application for review filed against that order. This case was registered on the basis of a report made by the Inspector under Section 20 of the Minimum Wages Act, 1948. It was stated in the report that an inspection of the school was made by the Inspector on August 31, 1986 when it transpired that the management had paid wages to Smt. Shakuntala Devi less than the minimum wages fixed under the Act and the less payment was at the rate of Rs. 372 per month for the period September, 1986 to February, 1987 and at the rate of Rs. 410 per month for the period March, 1987 to June, 1987. The report of the Inspector was accepted by the Prescribed Authority and an exparte order dated September 28, 1988 was passed directing the management to pay Rs. 3872 on account of less payment of wages and also Rs. 3872 as compensation, the total being Rs. 7744 . The application of the management for recall of the exparte order was rejected by the Prescribed Authority on 16.11.1989.
5. The learned counsel for the petitioners in all the three writ petitions, namely, the school and its management has urged that the Prescribed Authority has no jurisdiction to pass the impugned order dated 17.5.1989 or to issue the impugned notice dated 28.11.1989 because the provisions of Payment of Wages Act, 1936 are not applicable to private educational institutions. In this connection he has submitted that private educational institutions are not covered by Section 1 (4) of the Act which deals with its applicability and no notification has been issued under Section 1(5) of the Act extending its provisions to such institutions. On the otherhand, the learned counsel for the respondents has contended that the provisions of Section 15 of the said Act apply to private educational institutions by virtue of a notification dated March 31, 1978 issued under Section 22F, of the Minimum Wages Act, 1948 and notification dated December 19. 1983 issued under Section 27 of that Act.
6. By notification dated March 31, 1978 it is provided that the provisions of Payment of Wages Act, 1936 specified in column 1 of Schedule I. shall insofar as they relate to the matters covered thereunder, apply to the claims arising out of deductions from or delay in payment of wages payable to employees in the scheduled employments specified in Schedule II with such modifications as are specified in the corresponding entry in column 2 of Schedule I. It may be mentioned that the provisions of the Payment of Wages Act, 1936, which are specified in Schedule I, Include Section 15 and so this Section applies with die modifications specified in column 2 of the Schedule, to the scheduled employments as specified in Schedule II. The list of scheduled employments that is given in Schedule II bear serial numbers 16 to 47 in Part I and one entry bearing serial no. 2 in Part II, but none of them refers to private educational institutions.
7. The notification dated December 17, 1983 which has been issued under Section 27 of the Minimum Wages Act, 1948, provides that the employments mentioned in the notification shall be added to Part I of the Schedule to the said Act, in respect of which minimum rates of wages should be fixed under the said Act. These employments are specified at serial Nos. 48 to 63 and one of them namely, serial no. 58 is �employment in private coaching schools, private schools including nursing schools and private technical institutions.�
8. Subsection (1) of Section 22F of the Minimum Wages Act provides that notwithstanding anything contained in the Payment of Wages Act, 1936, the appropriate Government may by notification in the official gazette, direct that subject to the provisions of subsection (2) all or any of the provisions of the said Act, shall with such modifications, if any, as may be specified in the notification, apply to wages payable to the employees in such scheduled employments as may be specified in the notification. Subsection (2) of Section 22F provides that where all or any of the provisions of the said Act are applied to wages payable to employees in any scheduled employments under subsection (1), the ''Inspector'' appointed under the Act, shall be deemed to be the Inspector for the purposes of enforcement of the provisions so applied within the local limits of his jurisdiction. According to Section2 (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 mines, oil fie d or majorport or any Corporation established by a Central Act, the Central Government and (ii) in relation to any other scheduled employment the State Government; and under Section 2(g) ''Scheduled employment'' means an employment specified in the schedule or any process or branch of work forming part of such employment.
9. It is envisaged in subsection (1) of Section 22F, that the provisions of the Payment of Wages Act, shall apply to those scheduled employments which are specified in the notification issued under that Section. This, by implication, means that the provisions of the said Act shall not apply to any other employment. The Minimum Wages Act is a selfcontained Act having elaborate provisions for its enforcement including Section 20 which provides for the settlement of all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days or of Wages at the overtime rate. Section 15 of the Payment of wages Act, on the otherhand, deals with claims arising out of deductions from the Wages or delay in payment of the wages including all matters incidental to such claims. The provisions of Section 15 are supplemental in nature. Unless the appropriate Government finds that the provisions of the Minimum Wages Act have proved to be ineffective or insufficient in relation to any particular scheduled employment and it is necessary to supplement the same, there would be no justification to apply the provisions of the Payment of Wages Act to that employment. There can be no general assessment and indeed no assessment of situation in respect of an employment which is not included in the schedule at the time of issuing the notification, otherwise it will not be possible to specify the scheduled employment in the notification to be issued under subsection (1) of Section 22F. Therefore, the provisions of the Payment of Wages Act cannot automatically apply to any scheduled employment by virtue of a notification issued under subsection (1) of Section 22F and will apply only to the particular scheduled employment which is specified in the notification.
10. Section 27 of the Minimum Wages Act provides that the appropriate Government after giving by notification in the official gazette not less than three month''s notice of its intention so to do may, by 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 in its application to the State be deemed to be amended accordingly. There is no provision in Section 27 that the provisions of Section 22Fare subject to Section 27 and there is no provision that any employment which is added to the schedule under Section 27 shall be deemed to have been automatically incorporated in a notification issued under Section 22F. It has been held in Madhya Pradesh Mineral Industry Association v. Regional Labour Commissioner (AIR 1960 SC 1068) that the nature and extent of the powers conferred on the appropriate Government under Section 5 (2) and Section 27 of the Minimum Wages Act are quite separate and distinct and there can be no doubt that what can be done by the appropriate Government in exercise of its powers under Section 27, cannot be done by it in exercise of its powers under Section 5(2). The same reasoning would legitimately apply to the provisions of Section 22F and Section 27. When a notification is issued under Section 27 and an employment is added to the schedule, the appropriate Government will have to consider afresh and take action in accordance with the provisions of the Act if it intends to fix minimum rates of wages under Section 5(2) or to direct under Section 22F that the provisions of the Payment of Wages Act shall apply to that employment. Now the previous notification issued under Section 22F cannot have any effect in relation to the employment added to the schedule unless further action is taken as indicated above.
11. Learned counsel for the parties have addressed elaborate arguments and have cited a large number of cases on the question whether the reference to scheduled employment in a notification issued under Section 22F is legislation by reference or legislation by incorporation. This exercise has been quite unnecessary because the matter involves the question of interpretation of Section 22F and Section 27 of the said Act. It is accordingly, not necessary to deal with the cases cited by the learned counsel. Suffice it to say that the matter relating to legislation by reference and legislation by incorporation has been examined in great detail and the law has been stated in clear, lucid and precise language in Mahendra v. Mahendra (1979 (2) SCC 519). There is a distinction between a mere reference to or citation of one Statute in another and an incorporation which in effect means bodily lifting a provision of one enactment making it a part of another. The effect of incorporation is as if the provisions incorporated were written out in the incorporating Statute and were a part of it. Once incorporation is made the provision incorporated becomes an integral part of the Statute in which it is transposed and thereafter there is no need to refer to the Statute from which the incorporation is made and any subsequent amendment made in it, has no effect on the incorporating Statute. In Secretary of State v. Hindustan Cooperative Insurance Society Ltd. (AIR 1931 Privy Council, 149), it has been laid down that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it at all events if it is possible for the subsequent Act to function effectually without the addition. The action taken under Section 27 will not override or affect the notification issued under Section 22F even if the principles relating to legislation by reference or incorporation were to be applied by any stretch of imagination.
12. In view of the foregoing discussion. I have come to the conclusion that the provisions of Section 15 of the Payment of Wages Act cannot apply to the private educational institutions by virtue of the notification dated December 19, 1983 issued under Section 27 of Minimum Wages Act eventhough the said provisions have been applied to certain scheduled employments by notification dated March 31, 1978 issued under Section 22F.
13. The learned counsel for the respondents has also relied on a notification dated January 30, 1965 which was issued under Section 26(1) of the Payment of Wages Act and was published in the official gazette on February 13, 1965. Section 26(1) provides that the State Government may make rules to regulate the procedure followed by the authorities and Courts referred to in Sections 15 and 17. The notification dated January 30, 1965, a copy of which has been filed as Annexure Clause to the counter affidavit in Writ Petition No. 888 of 1990, has been issued for publishing the U.P. Payment of Wages (Procedure) Application to Scheduled Employment Rules, 1963 made by the Governor under Section 26(1). Rule 2 provides that the U.P. Payment of Wages (Procedure) Rules shall apply in relation to claims arising out of deduction from or delay in payment of wages payable to employees m scheduled employments mentioned in the schedules to the Minimum Wages Act, 1948 for which the State Government is the appropriate Government under the Act as they apply in relation to claims arising out of deductions from or delay in payment of wages payable under the Payment of Wages Act, 1936. There can be no dispute about the fact that private educational institutions are not covered by Section 1(4) of the Payment of Wages Act nor any notification has been issued under Section 1(5) of the Act extending its provisions to such institutions. The aforesaid rules cannot enlarge the scope and area of operation of the Act under which they have been made. The principle is well settled in view of the decisions in Gadde Venkateswara Rao v. Government of Andhra Pradesh and others (AIR 1966 SC 828) and Deputy Commercial Tax Officer, Park Town Division, Madras and another v. Sha Sukraj Peerajee (AIR 1968 SC 67). Rule 2 of the aforesaid Rules would naturally have effect in relation to the scheduled employments mentioned in the Minimum Wages Act in respect of which a notification has been issued under Section 22F and the provisions of Payment of Wages Act have been applied. If there is no notification under Section 22F and the provisions of the Payment of Wages Act have not been applied to any scheduled employment, no claim can be filed under Section 15 of the Act in respect of that employment and the question of applying the provisions of U.P. Payment of Wages (Procedure) Rules will not arise. Therefore, the contention of the respondents must be rejected that the Payment of Wages Act applies to all the scheduled employments mentioned in the schedule to the Minimum Wages Act by virtue of the above mentioned notification dated January 30, 1965.
14. In my opinion, the petitioners have successfully made out a case that the provisions of Payment of Wages Act, 1936 do not apply to private educational institutions although it is included at Serial no. 58 in Part I of the Schedule to the Minimum Wages Act, 1948 and consequently, the Prescribed Authority has absolutely no jurisdiction to pass the impugned order dated May 17, 1989 or to issue the impugned notice dated November 28. 1989 under Section 15 of Payment of Wages Act, 1936. The impugned order and notice being without jurisdiction are liable to be quashed and so is the case with the impugned recovery certificate dated April 21, 1990 and the proceedings taken in pursuance thereof.
15. In writ petition No. 889 of 1990 it has been urged on behalf of the petitioners that there is no notification fixing the minimum rates of wages for the employees of private educational institutions and, therefore, the Prescribed Authority acted without jurisdiction in passing the impugned order on the basis of the report of the Inspector. I find from Annexure C1, to the counter affidavit of Smt. Shakuntala Devi that the State Government issued a notification dated December 1, 1984 under Sections 3 and 4 of the Minimum Wages Act, 1948 and thereby fixed minimum rates of wages in respect of adult employees in private coaching schools, private schools, including nursery schools and private technical institutions. This notification provides that fourth class peon, cleaner and other unskilled workers shall be entitled to Rs. 299 per month as minimum wage and also special allowance as indicated therein. Certain other conditions are also specified and one of these conditions is that the employees whose hours of work including interval of rest are less than six hours a day or thirty six hours a week, will be treated as parttime employee and their hourly rate shall not be less than l/6th of the corresponding daily wage. The petitioners have submitted that the said notification has been rescinded by another notification dated June 1, 1989, a copy of which has been filed as Annexure R10, to the rejoinder affidavit. The effect of the notification dated June 1, 1889 is that after that date there is no minimum wage payable to the employees of private schools. But at the time when the Inspector submitted his report on October 26, 1987 and for the period September 1986 to June 1987 for which the claim was made in the report of the Inspector the notification dated December 1, 1984 was in force, the Prescribed Authority could have jurisdiction to proceed on the basis of the said report. But the question which would arise and would fall to be determined by the Prescribed Authority before issuing any direction under Section 20 of the said Act shall be whether the case of Smt. Shakuntala Devi is covered by the notification dated December 1, 1984 and if so, to what rate of minimum wage she is entitled for the relevant period.
16. It has been noticed that the impugned order is an ex parte order and that the attempt of the petitioners for recall of that order has failed. The petitioners have stated in the application for recall that they have no knowledge of the proceedings culminating in the passing of the impugned order and they came to know about it on June 1, 1989 when the Tahsil staff arrived at the spot for making attachment in pursuance of the impugned order. The application for recall was not disposed of by the Prescribed Authority on merits. He rejected that application by order dated November 16, 1989 on the ground that he had no jurisdiction to review the earlier order. In taking this view the Prescribed Authority overlooked the provisions of Rule 30 (4) of the U.P. Minimum Wages Rules, 1952 which provides that an exparte order may be set aside on sufficient cause being shown by the defaulting party within one month of the date of the said order and the application shall be reheard after service of notice. It is true that the application for recall was evidently not given within one month of the date of the impugned order as prescribed under Rule 30(4) of the U.P. Minimum Wages Rules. 1952. But the petitioners made a definite allegation that they acquired knowledge of the impugned order only on June 1, 1989 and gave an explanation for delay in making the application. So it was the duty of the Prescribed Authority to consider the application on merits and to condone the delay in accordance with the law if he was satisfied that the allegations made by the petitioners were correct.
17. It is, however, remarkable that in this case there is not only the question of applicability of the notification dated December 1, 1984 but also several other questions on the determination of which the jurisdiction of the Prescribed Authority to issue a direction under Section. 20 of the Act depends. The petitioners have alleged that Smt. Shakuntala Devi was appointed on parttime basis and in support of this allegation they have relied on the terms of the appointment letter dated July 15, 1973 which was issued to her. They have also alleged that the duty hours of Smt. Shakuntala Devi in R.D.S.O. School were 8 a.m. to 12.15 p.m. and afterwards she worked as ''Aaya'' in another school, Manak Vidyalaya. The respondents have contested these facts and have asserted that Smt. Shakuntala Devi worked in R.D.S.O. School from 9.30 a.m. to 5 p.m. and was a wholetime employee. The matter has been so hotly contested that the respondents have taken the further plea that it is not open to this Court to determine disputed question of fact under Article 226 of the Constitution. The determination of this question is essential for the exercise of jurisdiction under Section 20 of the Act in a lawful manner and for issuing appropriate directions, Apart from this the petitioners have also challenged the correctness of the impugned order on the ground that the Prescribed Authority has erred in directing payment of wages for nine months instead of six months and has also committed arithmetical error in calculating the amount. In view of all these circumstances it is necessary for the ends of justice that the matter is remitted to the Prescribed Authority for reconsideration and to decide the same after giving opportunity of being heard to the concerned parties and also to lead evidence if any, in support of their respective contentions. The writ petition deserves to be disposed of in this light.
18. The result is that Writ Petition No. 10301 of 1990 is allowed and the order dated May 17, 1987 passed by the Prescribed Authority and the recovery certificate dated April 21, 1990 issued by the Tahsildar, Tahsil Sadar Lucknow as contained in Annexures 1 and 7 respectively, to the writ petition and all proceedings in pursuance of the said recovery certificate are hereby quashed.
19. Writ Petition No. 888 of 1990 is allowed and the impugned notice dated November 28, 1989 issued by the Prescribed Authority, contained in Annexure1, is hereby quashed and a writ of mandamus is issued that the Prescribed Authority shall not proceed with P. W. Case No. 402 of 1989.
20. Writ Petition No. 889 of 1990 is allowed and the impugned orders dated September 28, 1989 and November 16, 1989 contained in Annexures1 and 2 to the writ petition, are hereby quashed and it is directed that the Prescribed Authority shall rehear the matter and decide the same according to law after giving the parties an opportunity of being heard and of producing evidence, if any, and in the light of the observations made in the judgment. The parties shall, however, bear their own costs of the proceedings in this Court.
