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Bijoy Krishna Paul Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
Subject;Labour and Industrial
CourtGuwahati High Court
Decided On
Judge
AppellantBijoy Krishna Paul
RespondentState of Assam and ors.
Excerpt:
.....as the requirement, which is mentioned in section 5(1)(6) that 'not less than two months 'from the date of the notification should be given for the purpose, has been flagrantly disobeyed. it is, therefore, clearly necessary that the government in making these notifications, for prescribing the wages under the act, punctiliously follows the letter of the law and strictly complies with all the procedure laid down in the act. in that view of the matter, the two months must be calculated from 22 june 1966, the date of the publication, which should be reckoned as the date of the notification within the meaning of the expression under section 5(1)(b). in the notification, this data is therefore clearly deficient by one day, and it does not fulfil the requirement of not being less than two..........of india directed against the two notifications of the state government promulgated under the minimum wages act, 1948 (11 of 1948), hereinafter referred to as the act.2. the first impugned notification was published in the assam gazette on 22 jane 1968, and it will be useful to quote the same in extenso:no. glr. 634/65/15.-in exercise of the powers conferred by section 3(1)(a) read with section 5(1)(b) of the minimum wages act, 1948 (11 of 1948), as amended, the governor of assam is pleased to publish the following proposed minimum rates of wages to be fixed in respect of the employment in biri-making industry in the whole state of assam.any objection, comment or criticism in this respect is invited and may be received by the government for consideration on or before 20 august.....
Judgment:

P.K. Goswami, J.

1. This is an application under Article 226 of the Constitution of India directed against the two notifications of the State Government promulgated under the Minimum Wages Act, 1948 (11 of 1948), hereinafter referred to as the Act.

2. The first impugned notification was published in the Assam Gazette on 22 Jane 1968, and it will be useful to quote the same in extenso:

No. GLR. 634/65/15.-In exercise of the powers conferred by Section 3(1)(a) read with Section 5(1)(b) of the Minimum Wages Act, 1948 (11 of 1948), as amended, the Governor of Assam is pleased to publish the following proposed minimum rates of wages to be fixed in respect of the employment in biri-making industry in the whole State of Assam.

Any objection, comment or criticism in this respect is invited and may be received by the Government for consideration on or before 20 August 1966.

SCHEDULE

SI. No. Category of All-inclusive

employees minimum rates of

wages

A. 1 (1) Bidi-maker ... Rs. 2.75 per

(2) Cheoker ... 1,000 bldis.

(3) Toaster ... Rs. 75

(4) Packer ... per month.

(5) Gleaner ... Rs. 100

(6) Clerk (non- per month.

matriculats). Rs. 125

(7) Clerk (matrlo- per month.

alate).

The above rates are inclusive of the payment of weekly off-day and no separate payment would be necessary on this account.

The daily wages of the workers should be calculated by dividing the monthly wage by 26.

The above daily rates shall be payable without affecting existing tasks and hours of work....

The second impugned notification was published in the Assam Gazette of 12 October 1966, and may also be set out:

No. 41. Shillong, Wednesday, 12 October 1966

28 September 1966

No. GLR. 634/65/25.-In exercise of the powers conferred by Sub-section (2) of Section 5 of the Minimum Wages Act, 1948 (11 of 1948), the Governor of Assam is pleased to fix the following rates of minimum wages, the same having been previously published with notification No. GLR. 634/65/15, dated 8 June 1966, as required under Clause (b) of Sub-section (1) of the said section in respect of the employment in biri-making industry in the whole State of Assam which shall take effect from the date of publication of this notification.

SI. No. Category of All-inclusive

employees minimum rates of

wages

A. 1 (1) Bidi-maker Rs. 2.75 (rapeea two

(2) Cheoker ... and palse teventy-

(3) Toaster ... flve only) per

(4) Packer ... 1,000 bidis.

(5) Cleaner ... Rs. 75 (rupees seventy-

(6) Clerk (non- flve) per month.

matriculats). Rs. 100 (rapeea

(7) Clerk (matrlo- one hundred) per

alate). month.

Rs. 125 (rupees one

hundred and

twenty-five)

per month.

B. The above rates are inclusive of the payment of weekly off-day and no separate payment would be necessary on this account.

C. The daily wages of the workers should be calculated by dividing the monthly wage by 26.

The above daily rates shall be payable without affecting existing tasks and hours of work.

3. Briefly, the facts are that the Government intended to prescribe minimum wages for bidi-manufactory which is a scheduled employment as enumerated in the Act. It is not disputed by Sri Sen, the learned Counsel for the petitioner, that bidi manufactory is a scheduled employment. That being the position, it is stated by the petitioner that the Government intended to fix the minimum rates of wages for this Industry and with that end in view, wanted to take action under Section 5(1)(a) of the Act and indeed by letter dated 12 August 1965 (annexure D) asked the petitioner-association to send names of their representatives to serve in a committee which will be set up by the Government under Section 5(1)(a) of the Act. In pursuance of such a notice from the Government, the petitioners also conveyed their willingness to co-operate and submit names of representatives to be included in such a committee, by their letter dated 28 August 1966 (annexure E). The petitioner's case is that the Government after some time gave a complete go-by to this intention of theirs and published the first notification (annexare G) dated 8 Jane 1966, whereby they changed their mind and published various proposed minimum rates of wages for this industry in the Assam Gazette and called for representations on or before 20 August 1966.

4. The petitioners having seen this notification immediately reacted to the proposal by their letter dated 9 July 1966 (annexure H), and raised objection to Government's changing their intention in that behalf. The petitioner claimed that the only reasonable way in the circumstances to fix the minimum rates of wages was to constitute a committee under Section 5(1)(a) of the Act and to fix the minimum wages thereafter under Section 5(2) after considering the advice of the committee. Although it would have keen expected that the Government would reply to this letter, the same however, remained unheeded. Instead, the Government came in with the impugned notification dated 28 September 1966 (annexure I), published in the Assam Gazette on 12 October 1966, which has already been quoted above. Sri Sen, the learned Counsel for the petitioner, raises various questions objecting to these notifications and to the wages which are notified in the final notification. It is not necessary to take all those points into consideration, as will be noticed presently, the controversy may be disposed of by a reference to Sections 5(1)(b) and 5(2) of the Act.

5. Sri Sen's argument in this context is that the notification dated 8 June 1966, published on 22 June 1966, is not in conformity with Section 5(1)(b) of the Act. We have, therefore, to read Section 5 of the Act, which is as follows:

5. (1) In fixing minimum rates of wages in respect of any scheduled employment for the first time under this Act or in revising minimum rates of wages so fixed, the appropriate Government shall either-

(a) appoint as many committees and sub-committees as it considered necessary to hold enquiries and advise it in respect of such fixation or revision, as the case may be, or

(b) by notification in the official gazette, publish its proposals for the information of person likely to be affected thereby and specify a date, not less than two months from the data of the notification, on which the proposals will be taken into consideration.

(2) After considering the advice of the committee or committees appointed under Clause (a) of Sub-section (1), or as the case may be, all representations received by it before the date specified in the notification under Clause (6) of that sub-section, the appropriate Government shall, by notification in the official gazatte, fix, or, as the case may be, revise the minimum rates of wages in respect of each scheduled employment, and unless such notification otherwise provides, It shall come into force on the expiry of three months from the date of its issue....

6. Keeping the provisions of Section 5 in the forefront, Sri Sen submits that the notification under Section 6(1)(6) giving the dates for submission of objections on or before 20 August 1966, is bad in law inasmuch as the requirement, which is mentioned in Section 5(1)(6) that ' not less than two months ' from the date of the notification should be given for the purpose, has been flagrantly disobeyed. The learned Senior Government Advocate appearing for the opposite party, submits that although the notice has been published in the Assam Gazatte on 22 June 1966, the date of the notification is 8 June 1966. He relies on the expression 'the date of the notification mentioned in Section 5(1)(b) and submits that all that the law contemplates is that 'not less than two months' time' should be counted from the date of the notification and not from the date of the publication of the same in the Assam Gazette.

7. In order to appreciate the rival submissions in this behalf, it is necessary to remember that the object of the minimum wages legislation is to fix minimum rates of wages for the scheduled industry and in that behalf these wage legislations are more or less reasonable restrictions imposed in the way of the employers in conducting their business. In this view of the matter, an elaborate procedure has been prescribed under the Minimum Wages Act, which has got to be strictly complied with before minimum wages of this description are fixed. It is noteworthy that If the employer, who is under legal obligation to pay the prescribed minimum wages to his employees in accordance with the provisions of the Act, disobeys these directions, he can be prosecuted under the law. It is, therefore, clearly necessary that the Government in making these notifications, for prescribing the wages under the Act, punctiliously follows the letter of the law and strictly complies with all the procedure laid down in the Act.

8. The learned Senior Government Advocate next contends that the two months should be counted in days and the notification being published on the sixtieth day is not invalid in law. Unfortunately, however the words used in the notification are ' not less than two months ' from the date of the notification. 'Month ' under Section 3(35) of the General Clauses Act, shall mean a month reckoned according to the British Calendar. In that view of the matter, the two months must be calculated from 22 June 1966, the date of the publication, which should be reckoned as the date of the notification within the meaning of the expression under Section 5(1)(b). In the notification, this data is therefore clearly deficient by one day, and it does not fulfil the requirement of not being less than two months from the date of the notification. Serious objections could be made by those people who wanted to represent even on the last day if they so wished. Another striking factor in this case is that apart from the final notification dated 12 October 1966, we do not find anything on record that representations were received by the Government which they had the opportunity to consider.

9. It is perhaps for this reason that the final notification does not show that the Government had considered the representations received. The notification is absolutely silent on the point and does not speak about consideration being given to any representation in this behalf. Section 5(2) of the Act, as is noticed earlier requires the Government to take into consideration the representations received by them before the date specified in the notification under Section 5(1)(b). Even in this view of the matter, the notification shows a patent infirmity. We are clearly of the opinion that the notifications of the State Government (annexures G and I) are invalid in law inasmuch as they have not followed the procedure laid down under Sections 5(1)(b) and 5(2) of the Act, and in that view of the matter, these notifications are liable to be quashed in exercise of our powers under Article 226 of the Constitution, and which we hereby do. It will be open to the State Government, if they so desire, either to invoke Section 5(1)(b) as the case may be, and then take into consideration all relevant matters, as may be applicable, in conformity with Section 5(2) of the Act before they come out with a notification prescribing minimum rates of wages for the scheduled

industry.

10. The application is accordingly allowed. The impugned notifications No. GLR. 634/65/15, dated 8 June 1966 and No. GLR. 634/65/25, dated 28 September 1966, are hereby quashed. There will be no order as to costs.

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