(1) In this petition under Article 226 of the Constitution, the petitioners have prayed that two notifications under the Minimum Wages Act, as locally amended, should be quashed.
(2) Acting under section 3 read with section 5(2) of the Minimum Wages Act, the State of Maharashtra issued a notification on the 9th of September 1963 whereby the minimum wages for skilled, semi-skilled and unskilled labourers employed in residential hotels, restaurant or eating house were fixed. On the 1st of October 1963, the State Government issued another notification under section 30(2)(c) of the Minimum Wages Act for determining the computation of the cash value of the wages which are permitted to be paid in kind to these works. The petitioner No. 1 is the Nagpur Hotel Owners' Association and the petitioners No. 2 and 3 are owners of hotels which are run at Nagpur. These three petitioners contend that the said notifications are ultra vires of the powers vested in the Government and, therefore, they ought not to be enforced. the State of Maharashtra have contended that the notifications are perfectly valid and there is no reason or ground to interfere with them.
(3) Before we proceed to consider the submissions of the respective Advocates in this connection, it will be useful to trace the history of the legislation. 'Minimum Wages Act,' so far as it concerns the employees in residential hotels, restaurants or eating houses. The Central Act No.11 of 1948 was passed to provide for fixing minimum rates of wages in certain employments. This subject of the enactment was under entry No. 27 in the Concurrent Legislative List (List No.III) in the Government of India Act, 1935. Initially, only twelve classes of employment were mentioned in the first part of the schedule. Under section 27 of the Minimum Wages Act, the State Government were given power to include in this rates of wages could be fixed. According the residential hotels, restaurant or eating house' as defined in the Bombay Shops and Establishments Act, 1948, as item No. 13 in Schedule 1, Part 1, on the 26th of August 1954. Under the original Minimum Wages Act, section 3(1) had three subclauses (I), (ii) and (iii) with respect to the employments specified in Part I of the Schedule, employments specified in Part II of the Schedule and employments added subsequently under S. 27, of Section 3(1) with respect to employments specified in Part II of the Schedule (which relate mostly to agricultural employments) the State Government were given power of fixing minimum rates of wages under that sub-clause either for the whole State or for a part of the State, but no such proviso was added to the other two sub-clause of section 3(1) in the original Act.
(4) This subject of minimum wages, which falls under the heading 'Welfare of Labour', falls under item No.24 in the Third (Concurrent) List in the Seventh Schedule of the Constitution. Therefore the Parliament, as also the State Legislature, have power to make laws with respect to this subject. Accordingly, the Maharashtra State Legislature passed the Amending Act No.10 of 1961, and after receiving the President's assent it came into force on the 15th of February 1961. By section 2 of this Amending Act, the original section 3 in the Central Act No. 11 of 1948 was amended and provisos permitting the fixation of minimum wages for the whole State or for a part of the State were added to all the three sub-clauses of Section 3. With this amendment, the State Government was given the power to fix minimum wages for employments including employment in hotels, restaurant etc. either for the whole State or for a part of the State. Shortly aft this local Amending Act was passed, the Parliament enacted Act No. 31 of 1961 for amending the Minimum Wages Act No.11 of 1948. By this amendment, the three clauses to section 3 were consolidated into one and the proviso permitting the fixation of wages for a part of the State was added only with respect to employments mentioned in Part II of the Schedule which related mostly to agricultural employments. It is not disputed that this Amending Central Act No. 31 of 1961 had the effect of abrogating and repealing the Maharashtra Amending Act No. 10 of 1961.
(5) Thereafter the Maharshtra State Legislature again enacted Act No. 3 of 1963. By this new Amending Act, the provisos to section 3, as incorporated by the Central Act No. 31 of 1961, were substituted by the following proviso:
'Provided that, the State Government may, instead of fixing minimum rates of wages under this clause for the whole State, fix such rates for a part of the State or for any specified class of classes of such employments in the whole of the State or any Part thereof; and in the case of an employment under any local authority, the State Government may fix such rates for any specified local authority, or class of local authorities.'
This Act. No. 3 of 1963 was reserved for the consideration of the President and it received his assent on the 9th of January 1963 and came into force on the 14th January 1963. It is under this Act that the impugned notifications have been issued.
(6) According to Mr. Phadke, Advocate for the petitioners, the impugned notifications are un-sustainable because Act No. 3 of 1963 under which they have been issued, is itself ultra vires of the powers of the State Legislature. He did not dispute that under Art. 254(2) of the Constitution, the State Legislature had power to enact Act No. 10 of 1961. However, he contended that once the Parliament itself had virtually repeated or abrogated the Maharashtra Act No. 10 of 1961 by passing Act No. 31 of 1961 under the proviso to Article 254(2) of the Constitution, the power of the State Legislature was repugnant to the Central Legislation and to reserve that legislation for the consideration of the Parliament, came to an end and, therefore, this subsequent Act No.3 of 1963, though it had received the assent of the President, was entirely beyond the powers of the State Legislature. In his opinion, once the Parliament took the filed by ousting the Maharashtra Amending Act. No.10 of 1961, it was no longer open to the State Legislature to purport to re-enact another law, which had been superseded by the Parliament itself, and the assent of the President would not give validity to an Act which was prima facie beyond the powers of the Legislature. According to Mr. Mudholkar, Additional Government Pleader, on the other hand, the powers given to the State Legislature by Article 254(2) were not intended to be exhausted on being used only once. While not disputing that the Parliament always had power under the proviso to Article 254(2) to override an Amending Act by the State Legislature, Mr. Mudholkar contended that the power of the State Legislature to pass an enactment on matters in the Concurrent List in the Seventh Schedule always remained intact subject to the President giving his assent to such an amendment.
(7) While elucidating his argument Mr. Phadke was submitting that Article 254(1) enunciated the main provision, namely, that though both the Parliament and the State Legislature had power to enact laws with respect of matters stated in the concurrent List, the law passed by the Parliament was to prevail and the law passed by the State Legislature was to be void to the extent to which it was repugnant to the existing law passed by the Parliament. He then submitted that Article 254(2) of the Constitution, which authorised the State Legislature to get over the repugnancy with respect to the law passed by the Parliament by passing am Amending Act with the assent of the President, was only by way of a proviso and, in that view, he did not dispute that the Maharashtra State Legislature had acted entirely within its power under Article 254(2) in obtaining the assent of the President. His main contention, however, was that after the Maharashtra State Legislature had passed the Amending Act No. 10 of 1961, the Parliament had intervened with intent to undo the provisions made by the with Maharashtra Amending Act and has passed Act No. 31 of 1961, the Parliament had intervened Article 254(2) of the Constitution. Having thus ousted the law made by the Amending Act passed by the state Legislature, the Parliament had taken the field, and therefore, the powers of the State Legislature to again pass a second Amending Act on the lines of the first Act, which had been superseded by the parliamentary amendment, must be deemed to have come to an end and consequently, the Amending Act No. 3 of 1963 ought to be considered illegal and ultra vires of the powers of the State Legislature.
(8) In advancing this argument Mr. Phadke was assuming that once the Parliament has exercised its power under the proviso below Article 254(2) to amend or to override a legislation passed by the State Legislature under Article 254(2), the Legislation came to an end and it could not act for a second lime to pass any legislation with respect to the matters covered by the Parliament's legislation under the proviso to Article 254(2). However, there did not seem to be any warrant for making any such assumption. The wordings in Article 254(2) or the proviso thereunder do not lend to such an interpretation of the provisions. There is nothing therein to limit the powers of the State Legislature so as to preclude it from enacting on the same point again after the Parliament has once acted under the proviso to override an earlier amendment made by the State Legislature under Art. 254(2). While not disputing that the wordings of the Article itself do not provide such a meaning, Mr. Phadke was submitting that if his interpretation were not accepted, there would be an unhealthy competition between the Parliament and the State Legislature and each one would try to override the other. We do not think that such a fear is well founded. If a Legislature and the Parliament try to enter into this sort of a competition in passing contradictory legislations, the matter will immediately be put a stop to by the President by withholding his assent or refusing to give his assent under Article 254(2).
Though the State Legislature has power to enact a legislation on a subject in a Concurrent List so far as its own area is concerned, the assent of the President is always essential and we are not prepared to subscribe to the fear of Mr. Phadke that due care would not be taken while resorting to Article 254(2). Mr. Phadke was also not right in assuming that the President's act was only an executive act. the heading of Part XI of the constitution in which this Article 254 comes is 'Distribution of Legislative Powers' and consequently the act of the President in giving his assent under Article 254(2) would not be merely an executive act but would be a part of the legislative powers which ultimately made such a few valid.
(9) The argument of Mr. Phadke would also virtually amount to saying that though a State Legislature has power to enact on matters in the Concurrent List, its legislative power with respect to a particular subject would come to an end or would become exhausted the moment the Parliament passes a legislation on that subject under the proviso to Article 254(2). we do not think that that was the intention of the framers of the constitution. If that was the intention, three was nothing to prevent the framers of the constitution from saying go so, in so many words. The Central Act No. 31 of 1961 certainly does not specifically say that it has been passed for repealed. It will be seen from Zaverbhai v. State of Bombay, : 1SCR799 , paragraph 7 that even when the Parliamentary legislation does not expressly state that a particular law is repeated, the State law will be void if it conflicts with a later law by the Parliament with respect to the same matter. though the State Act No. 10 of 1961 has thus been repealed by the Parliamentary Act No. 31 of 1961, the power of the State Legislature to pass a fresh legislation with respect to the repugnancy in accordance with the proviso to Article 254(2) of the Constitution, still remains intact and that power has been properly exercised after reserving the Act for the consideration of the President. It is not disputed that the President has accorded his assent to the Maharashtra Act No. 3 of 1963, which was validly passed by the State Legislature. Consequently the impugned notifications, which were issued under Act No. 3 of 1963 cannot be challenged.
(10) The next contention of Mr. Phadke was with respect to the fixation of rates for skilled, semiskilled and unskilled labourers. According to him, these rates were arbitrarily fixed at a very high level as compared to the rates prevalent for other employment's falling under the Minimum Wages Act. the learned additional Government Pleader, however, pointed out that the rates in other employments mentioned in the petition were already revised in accordance with the procedure laid down by the Minimum Wages Act and were duly published in the Gazette. In view of that statement of the learned Additional Government Pleader, Mr. Phadke did not press this ground of attack.
(11) The last contention of Mr. Phadke was that the State government had acted illegally and arbitrarily in fixing the cash value of the payment s to be made to the employees in kind. According to him, rule 20 mandatorily required that the Government should take into consideration the prevailing market rates before fixing the cash value fixed by the government in to the Notification on the 1st of October 1963 had no relation whatsoever to the prevailing market value and, therefore, he wanted us to interfere with those rates. the contention of the petitioners that the Government had not considered the prevalent market rates did not appear to be well founded. In paragraph 12 of the return, the State Government had denied this allegation of the petitioners. It was the case of the Government that the Committee duly appointed under the Act had considered all relevant factors including the considered all relevant factors including the prevailing market rates. We have no material before us to say that the market rates were not considered, as was the case of the petitioners. We do not think that there was any question of taking judicial notice of the prevailing market rates and to hold that the rates, as fixed by the Government are ridiculously low as compared to those rates. After all, the prevailing rates in the market would be the rates charged to an individual consumer, whereas the rates considered by the Committee were apparently on the basis of the cost to the employer. In any case, there is no material on which we could interfere with the rates as fixed by the Government.
(12) The petition is dismissed with costs.
(13) Petition dismissed.