(1) This application under Article 226 of the Constitution in effect prays for a writ of mandamus to the State Government of Madhya Pradesh directing it to prosecute respondents 2 and 3 for offences under Section 22, Minimum Wages Act (11 of 1948).
(2) It is necessary to state the following facts for the determination of the points raised in this case.
Petitioner No. 1 is the Nagpur Glass Works, Limited, and the second petitioner is the Central Glass Factory, Nagpur. Respondents 2 and 3 respectively are the Swastik Glass Works, Chanda, and the Onama Glass Works Limited, Jabalpur. They are factories manufacturing and dealing in articles of glass. By a gazette notification dated 21-8-1950 the State Government fixed the minimum rate of wages payable to employees in glass factories under the provisions of Section 5(2), Minimum Wages Act (which for the sake of brevity shall be referred to in this Judgment as 'the Act').
In pursuance of the notification the State Government issued instructions to the petitioners as well as to respondents 2 and 3 directing that the minimum rates of wages so fixed for the glass industry shall come into effect immediately.
The petitioners' grievance is that though they have brought into effect the minimum rates fixed as aforesaid by the Government in their factories, respondent No. 2 has not enforced the prescribed minimum wages and respondent No. 3 has not done so in respect of his employees at Jabalpur, though he has done so in respect of those in his factories at Gondia. The petitioners further state that they have been paying the minimum rates of wages fixed by the Government to their employees and respondents 2 and 3 have been benefiting themselves by a large sum of money by not paying the minimum rates of wages to their employees as aforesaid.
The petitioners also aver that the State Government so far had failed to take any steps to compel the enforcement by respondents 2 and 3 of the minimum rates of wages thus fixed. Thus, the petitioners assert, the failure of the State Government to compel the enforcement of the minimum wages fixed by it
amounts to a flagrant denial of the petitioner's fundamental right to equality before the law under Article 14 of the Constitution and its enforcement against the petitioners alone amounts to a denial of free occupation and trade under Article 19 (1) (g) of the Constitution of India.
(3) Respondents 2 and 3 have filed separate returns raising similar pleas in bar of the present application.
Their contentions are that the provisions of Section 5 (2) of the Act had not been complied with and that therefore the minimum wages fixed really at the instance of the first petitioner were not binding on the industry as a whole; that the respondents had incurred large losses during the years 1948 to 1952 on the working of their factories, which showed that the industry could not bear the weight of the so called minimum wages purported to have been fixed under the Act; that the minimum wages were fixed at the instance of petitioner No., 1 at unremunerative levels from the point of view of the employers, of factories located at places other than Nagpur; that the first petitioner was chiefly responsible for such high wages being fixed in order to crush the other competitors in the manufacturing business; that respondents 2 and 3 had submitted memorials to the State Government for a revision of those rates on the ground that they could not be borne by the industry outside the city of Nagpur; that the labour at Nagpur is much more skilled and efficient than elsewhere in Madhya Pradesh; that as a result of those representations the State Government have on 20-8-1953 issued a notification to the effect that an advisory committee had been appointed by the Government to revise the rates of minimum wages already fixed; that this application was intended to serve not the interests of the industry as a whole but only the interests of the petitioners as against the interests of the other manufacturing units situated outside the city of Nagpur; and that no 'writ' or direction should issue under Article 226 of the Constitution In the very special circumstances of this case, and particularly because a 'writ' is not meant to compel proceedings being taken against any individuals.
(4) The Act is a law enacted by the Central Legislature, but its provisions are meant to be enforced by State Governments, except in relation to any scheduled employment carried on by or under the authority or the Central Government. It is for the State Government to fix within a specified time minimum rates of wages payable to employees 'in all scheduled employments'.
Section 5 lays down the procedure for the fixing of such minimum wages.
Section 10 provides for a revision of minimum rates of wages; Section 11 enjoins that minimum wages fixed under the Act shall be payable in cash; and Section 12 lays down that an employer shall not pay to his employees wages at a rate less than the minimum rate of wages fixed by the notification Under Section 5 (2) of the Act.
Section 18 provides for the maintenance of certain registers and records containing such entries relating to work done by employees and the wages paid to them, in such form as may be prescribed.
Section 19 provides for the appointment by Government of Inspectors, who shall be entitled to enter premises of the employers where employees may be working, to examine such registers and record of wages and to examine any persons who may be employed under the employer so as to collect information necessary for the enforcement of the provisions of the Act.
Section 20 provides for the appointment of the Authority to hear and decide claims arising out of payment of less than the minimum rates of wages. Sub-section (2) of that section enables the employer himself or any legal practitioner or any official of a registered trade union duly authorized or any Inspector or any person acting with the permission of the Authority to apply to such Authority for a direction to the employer for payment to the employee of his full wages according to the minimum wages fixed under the Act, together with such compensation as the Authority may think fit, subject to certain limitations.
(5) It will thus appear that Section 20 contains a complete machinery providing for the remedy under the Act for enforcement of the provisions relating to minimum wages. It also specifies the persons or authorities which may move the machinery thus provided and the scope of the remedy available if the Authority on a proper enquiry came to the conclusion that the minimum wages so prescribed were not being paid to employees. It also provides the mode in which such payments may be enforced and recoveries made.
(6) Section 22 provides for penalties against an employer who pays to his employees less than the minimum rates of wages fixed under the Act It also provides for penalties in respect of other infringements of the Act, not necessary to be mentioned in this case. But Sub-sections (3), (4), (5) of Section 22 lay down conditions to be fulfilled before any Court could take cognizance of a complaint of an infringement of the Act. It is provided that no cognizance shall be taken of any complaint of underpayment unless an application Under Section 20 of the Act has been granted wholly or in part and the Authority granting such' an application has sanctioned the making of the1 complaint and unless the complaint is filed with-' in one month of the grant of the said sanction.
(7) It will thus appear that one of the conditions precedent to the launching of a complaint in respect of an infringement of the Act is that the prescribed Authority must be moved by any one of the persons or agencies contemplated in Sub-section (2) of Section 20 and that Authority after making such enquiry as it thinks necessary has come to the conclusion that there has been an underpayment and that such Authority has naturally after considering all the circumstances granted sanction for the making of the complaint.
In other words the Act has created certain rights in favour oi. certain classes of employees and corresponding obligations on their employers. It has also provided for the recovery of the amounts which should have been paid according to the provisions of the Act, and besides that it has been made an offence to pay by way of wages less than the minimum rate of wages fixed under the Act. It has specified the persons or agencies which can move the machinery laid down for the enforcement of the provisions of the Act, and it has also provided for certain safeguards against malicious or vexatious applications.
(8) In this case neither any employee himself under respondents 2 and 3 nor any legal practitioner or official of a registered trade union duly authorized nor any other agency recognized by Section 20 (2) has moved the Authority complaining of underpayment. Hence, assuming for the purposes of this case that there have been underpayments as complained by the petitioners, neither the persons immediately concerned nov their real or supposed well-wishers have moved the machinery provided by the Act itself. Furthermore, neither the Inspector, who is a Government official, nor the Government itself has thought fit to move the prescribed machinery for enforcement of the provisions of the Act. On the other hand, it has not been denied that about the time of the making of the application the State Government has appointed an advisory I committee under the provisions of Section 10 of the I Act with a view to revising the minimum wages already prescribed. Apparently, therefore, the State Government is taking steps under the Act,
(9) In these circumstances the question naturally arises whether this Court should exercise its special powers to issue a 'writ of 'mandamus' calling upon the Government to enforce the provisions of the Act at the instance of the petitioners. The enforcement in the instant case must take the shape of a prosecution under the provisions of the Act, as aforesaid. Does a 'mandamus' issue for such a purpose?
(10) It has been contended on behalf of the petitioner that this 'writ' is of right and that this Court cannot refuse to issue it. This argument cannot be accepted in view of the following statement of the law in Halsbury's Daws of England, Hailsham Edition, Volume IX, paragraph 1270, pp. 744-746:
The grant of a writ of mandamus is, as a general rule, a matter for the discretion of the Court. It is not a writ of right and it is not issued as a matter of course ... and, on the other hand, the writ may be refused, not only upon the merits, but also by reason of the special circumstances of the case.
It has also been stated in the last portion of paragraph 1270 quoted above that 'a writ of mandamus will not lie to compel a person to institute legal proceedings.
Reference is made to the case of - R. v. Southampton Port Commissioners'. (1870) LR 4 HL 449 (A). In support of this proposition reference has also been made to - 'Elwood v. Belfast Corporation', (1923) 57 ILT 138 (B), where it is said
the Court refused to issue a mandamus against a local authority to compel it to institute legal proceedings for contravention of a local Act.
(11) In view of this clear authority against the contention of the petitioners it is not necessary to refer to a number of decisions quoted by them, which do not bear directly on the point in controversy in this case.
(12) For the reasons aforesaid, in our opinion, the application is misconceived and must be dismissed with costs to respondents 2 and 3. Hearing fee Rs. 150 to each Advocate.