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K.T. Appannah Vs. State of Mysore by Its Chief Secretary to Government and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 786 of 1960
Judge
Reported inAIR1962Kant157; AIR1962Mys157; [1962(5)FLR502]; (1962)IILLJ521Kant
ActsMinimum Wages Act, 1948 - Sections 3(1), 5(1), 9
AppellantK.T. Appannah
RespondentState of Mysore by Its Chief Secretary to Government and anr.
Appellant AdvocateE.S. Venkataramiah, Adv.
Respondent AdvocateD.M. Chandrasekhar, Government Pleader
Excerpt:
.....forest act, question of applying the provisions of law of different state and directing the state government to confiscate only 1/4th of the market value of the seized vehicle does not arise. impugned order was quashed. constitution of india -- article 226: [k.l. manjunath, j] writ petition against seizure of vehicle illegally transporting timber amounting to violation of provision of forest act order of the authorised officer to confiscate the truck direction to consider the market value of the vehicle through a proper valuer and confiscate 1/4th of its value to the government and return the remaining sum to the respondent/owner held, when once the vehicle is confiscated, the entire value of such vehicle would go to the state. the fast track court relying upon the..........the proprietor of a hotel in bangalore, challenges the validity of a notification published by the state government on july 16, 1960, fixing under the provisions of section 3 of the minimum wages act, 1948, minimum rates of wages payable to five classes, of employees in residential hotels and eating houses.2. section 3 of the minimum wages act empowers the appropriate government to fix minimum rates of wages payable to employees in the employments specified in parts i and ii of the schedule to that act. residential hotels and eating houses were not included not in the schedule when the minimum wages act was enacted. but section 27 of the act empowered the appropriate government to add to either part of the schedule any employment in respect of which it is of opinion that minimum rates of.....
Judgment:

A.R. Somnath Iyer, J .

1. The petitioner before who is the proprietor of a Hotel in Bangalore, challenges the validity of a notification published by the State Government on July 16, 1960, fixing under the provisions of section 3 of the Minimum Wages Act, 1948, minimum rates of wages payable to five classes, of employees in residential hotels and eating houses.

2. Section 3 of the Minimum Wages Act empowers the appropriate Government to fix minimum rates of wages payable to employees in the employments specified in Parts I and II of the schedule to that Act. Residential hotels and eating houses were not included not in the schedule when the Minimum Wages Act was enacted. But section 27 of the Act empowered the appropriate Government to 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, by the adoption of the procedure prescribed in that section. Under the provisions of that section residential hotels and eating houses were added to Part I of the schedule to the Act, by notification made by the State Government on July 18 , 1959.

(3) There after the State Government published proposals under section 5(1)(b) of the Act for the fixation of minimum of rates of wages payable to employees in residential hotels and eating houses, and after affording an opportunity to the persons likely to be affected by the fixation of minimum rates of wages in that way, it fixed minimum rates of wages in consultation with the Advisory Board constituted under Section 7 of the Act. The minimum rates of wages so fixed were notified in the notification published on July 16, 1960 in which it was specified that those minimum rates of wages were payable to employees in residential hotels and eating houses in the municipal limits of Bangalore, Mysore, Hubli, Mangalore and Belgaum and in the are of the Kolar Gold Fields Sanitary Board. It is this notification which the petitioner assails in this application.

(4) The first challenge made to the notification by Mr. Venkataramiah appearing on behalf of the petitioner is that under the provisions of section 3 of the Minimum Wages Act, the State Government had no power to fix rates of wages for any employment specified or included in the schedule to the Minimum Wages Act so as to be operative in a part of the State and not in the whole of it.

(5) This argument rests on section 3 of the Act which reads:

3. 'Fixing of minimum rates of wages.

(1) The appropriate Government shall, in the manner herein after provided ----

(a) fix the minimum rates of wages payable to employees employed -----

(i) in an employment specified in Part I of the the Schedule at the commencement of this Act, before the 31st day of December, 1959;

(ii) in an employment specified in Part II of the Schedule at the commencement of this Act, before the 31st day of December, 1959;

Provided that the appropriate Government may, instead of fixing minimum of rates of wages under this sub-clause for the whole State, fix such rates for a part of the State or for any specified class or classes of such employment in the whole State or part thereof ; and

(iii) in an employment added to Part I or part II of the Schedule by notification under section 27, before the expiry of one year from the date of Notification. * * * * *'

(6) The argument pressed on us is that under the provisions of this section what the State Government could have done was to fix minimum rates of wages payable to employees in residential hotel and eating houses in the entire State and not in a part of the State .

(7) This incompetence on the part of the State Government is select a part of the State for the fixation of minimum rates of wages, according to Mr. Venkataramiah, is ascribable to the fact that a residential hotel or an eating house is not an employment specified in Part II of the Schedule as it existed at the commencement of the Act, both is an employment added to Part I of the Schedule under section 27 of the Act.

(8) The proviso appearing under sub-clause (ii) of section 3(1)(a) which empowers the appropriate Government to fix minimum rates of wages for a part of the State is a proviso to sub-clause (ii) of section 3(1)(a) not a proviso to sub-clause (i) or sub-clause (iii) of that sub-section. Indeed, the words 'under this sub-clause' occurring in the opening part of that proviso makes that position abundantly clear.

(9) The proviso appearing under sub-clause (ii) of section 3(1)(a) which empowers the appropriate Government to fix minimum rules of wage for a part of the Stale is a proviso to either sub-clause (i) or sub-clause (iii) of that sub-section Indeed, the words 'under this sub-clause', occurring in the opening part of that proviso make, that position abundantly clear.

(10) If therefore power was expressly conferred by the proviso to fix minimum rates of wages for a part of the State only is respect of employments specified (ii) of S. 3(1)(a), it is manifest that power was not one which could be exercised in respect of the employments specified in part 1 of the Schedule as it stood at the commencement of the Act or to an employment added either to part 1 or Part 11 by notification under S. 27.

(11) The position therefore is that it is only in respect of an employment specified in Part 11 of the Schedule as it stood at the commencement of the Act that minimum rates of wages could be fixed by the Government for a part of the State. In respect of every other employment, whether specified in Part 1 at the commencement if the Act or later included in it, or whether it is added to Part 11 if the Schedule under section 27, minimum rates of wages could be fixed only for the entire State and not for a part of it.

(12) That being so, the argument that the impugned notification made in this case is an invalid notification must succeed.

(13) It was next urged that the impugned notification has to be struck down on another ground. It was argued that although under Section 5(1)(b) under which the State Government published its proposals for the minimum rates of wages, a age lead to be specified by the State Government for the consideration of those proposals, no such date was specified, and that what the state did was to proclaim that the proposals would be taken into consideration after the expiry of two months from the date of their publication.

(14) In support of the argument that the provisions of section 5(1)(b) directing the specification of a date are imperative provisions non-compliance with which would lead to a nullification of the notification eventually published under section 3 Mr. Venkataramiah depended on a decision of their Lordships of Madhya Pradesh High Court in Narottamadas v. Gowrikar Inspector, Minimum Wages, Asst, Labour Commr.'s Office, Jabalpur, 1961-I Lab LJ 443 : AIR (1960 Kerala 67).

(15) These two cases do assist the argument advanced by Venkataramiah, but with great respect I must dissent from the view expressed in those two cases.

(16) As pointed out by their Lordships of the Supreme Court in Jagan Nath v. Jaswant Singh, : [1954]1SCR892 : H. N. Rishbud v. State of Delhi, (s) AIR 1955 SC 106 and Hari Vishnu Kamath v. Ahmad Ishaque, (s) : [1955]1SCR1104 , there can be no rule of universal application for the determination of the question whether a provision in a salute is imperative or merely directory, the question in each case being one to be decided on a consideration of the scope, object and nature of the salutatory provisions.

(17) The object, the scope and nature of the provisions of S. 5(1)(b) is to afford to the persons likely to be affected by the proposals published under its provision an opportunity to make representations in respect thereof and if such opportunity has been made available and afforded, even though a specific date was not mentioned in the notification by which the proposals were published and it was stated that the date on which the proposals would be taken into consideration would be fixed after the expire of two months from the date of publication, it would be going altogether too far for any one to suggested that there was an infringement of an imperative salutatory provision so as to justify the annulment of the eventual decision.

(18) The purpose for which section 5(1)(b) was enacted being that the persons who were likely to be affected by the fixation of minimum rates of wages should be heard before those minimum rates of wages are fixed and that therefore they should be intimated the date on which they would be heard, the non-specification of the date on which the proposals would be taken into consideration, in the notification by which the proposals were published would be an immaterial and inconsequential infringement of the provisions of S. 5(1)(b) if that date of consideration was subsequently intimated to the persons who were entitled to be heard. In that view of the matter, in Mysore opinion, that part of S. 5(1)(b) which directs the specification of a date is merely a directory provision and not an absolute or mandatory provision.

(19) A similar view was taken by this Court in A Narayanan Kamath v. State Transport Authority, AIR 1900 Mys 33. That was a case in which under the provisions of section 57(3) of the Motor Vehicles Act the publication to be made under that section had to simultaneously publish the time, place and date of hearing. In that case in which there was no simultaneously publication of the time, place and date of hearing, the permit which was granted by the Regional Transport Authority without such simultaneous publication was assailed on the ground that the proceedings of the Regional Transport authority were vitiated by the omission to strictly adopt the procedure prescribed by section 57 (3) of the Motor Vehicles Act. That contention was repelled on the ground that the procedure prescribed by section 57 (3) for the simultaneous publication of the time, place and date of hearing was merely a directory provision and not a mandatory provision and that its transgression did not nullify the permit granted.

(20) Following that decision by which we are bound we should, in Mysore opinion, hold that the omission to specify a definite date for the consideration of the draft proposals did not in this case vitiate the notification finally made by the State Government.

(21) There remains to be considered only one more point of view which was pressed on us by Mr. Venkataramiah in support of this application.

(22) It was contended that there was no proper constitution of an Advisory Board under s. 7 of the Minimum Wages Act, and that therefore it was not possible for the State Government to fix minimum rates of wages which could be done only in consultation with the Advisory Board properly constituted under S. 7.

(23) Section 7 of the Act Directs the constitution of Advisory Board by the appropriate Government for the purpose of coordinating the work of committees and sub-committees appointed under section 5 and for advising the appropriate Government generally in the matter of fixing and revising minimum rates of wages. It is thus clear that the appointment of an Advisory Board must proceed the fixation of minimum rate of wages.

(24) That an Advisory Board was appointed by the State Government in this case is not disputed.

(25) But what is being pressed on us is that the constitution of that Board was not in accordance with the provisions of section 9 which reads:

9. 'Composition sub-Committees, and the Advisory Board shall consist of persons to be nominated by the appropriate Government representing employees and employees in the scheduled employments who shall be equal in number, and independent persons not exceeding one-third of its total number of members one of such independent persons shall be appointing the Chairman by the appropriate Government'.

(26) According to the argument advanced before us the requirement of section 9 is that there should be on the Advisory Board at least one representative of employees in each of the employments specified in or which may be added to Part 1 or Part 11 of the Schedule to the Minimum Wages Act, and that being so there should have been on the Advisory Board at least one representative of employees owning residential hotels and eating houses.

(27) It is admitted that on the Advisory Board appointed by the State Government in this case there was no representative of the proprieties of residential hotels and eating houses. The question therefore is whether the Advisory Board was therefore not one properly constituted.

(28) The answer to this question would depend upon the construction to be placed ion the words 'representing employees and employees in the schedule employments ' occurring in section 9 of the Act. Do the words ' representing employees' in that part of that section refer to representatives of each one of the employments for which minimum rates wages may be fixed or is title enough if there ate representatives of the entire body of employees owning or conducting the employments referred to in the schedule?

(29) Now section 9 has to be read with section 5, and having regard to the general scheme of the Minimum Wages Act, it becomes clear that whereas when committees or sub-committees are appointed 0000 under section 5(1)(a) of the Act. It is necessary that on that committee or sub-committee so constituted there should be a representative of the particular employment for which minimum rates of wages are proposal to be fixed, it would be unnecessary that there should be any such representative body whose function is the co-ordination of work of the committees and sub-committees appointed under section 5 and the rending of advice to the appropriate Government generally to the matter of fixing or revising minimum rates of wages.

(30) If the Government propose to fix minimum rates of wages under section 5(1)(a) by appointing a committee or a sub-committee for the purpose, it if I think, indisputable that on the committee so constituted there should be at least one representative of the particular employment for which minimum states of wages have to be fixed. If that committee makes its report and on its advice the State Government fixes minimum rates of wages and at that stage it consults the Advisory Board whose duty it is to advise the State Government at that state, it would I think, he unreasonable for any one to suggest that even at that stage there should be a representative of the particular employment for which the minimum rates of wages are proposed to be fixed, on that Body.

It is, I think, reasonably clear that those persons of whom an Advisory Body should be composed should be person conversant with labour conditions generally in the employments specified in the schedule to the Act or which have been subsequently adding to it. Section 9 does not require that there should be on that Body representatives of employees or employees in each of the many employments which were in the schedule or were subsequently added to it. To insist that it should be so would be to make the Advisory Board unmanageable and unwieldy and to make its composition impracticable.

(31) To interpret section 9 in the manner suggested by Mr. Venkataramiah would be, in Mysore opinion, to add to section 9 words not to representatives of each of the employments specified in the schedule to the Act: In Mysore opinion, we should understand section 9 as merely requiring the representatives on the Advisory Body, or the collection body of employees in the group of the employment's specified in the schedule or added to it, and not of the employees in each of the employment's in that group.

(32) The view that I take receive suppose from the pronouncement of the Madhya Pradesh High Court in : (1961)ILLJ442MP , in which Dixit, C. J. Observed at page 451 (of Lab LJ): (at p. 187 of AIR).

Section 9 no doubt does not require that the Advisory Board should consist of representatives of employees and employees in each and every one of the scheduled employments.'

(33) There is thus, in Mysore opinion, to back for the complaint that the Advisory Body established in this case was not properly constituted and the challenge to the notification on that ground must therefore fail to the ground.

(34) Although of the three challenge made to the notification two have not been successful, this writ petition succeeds since as held by the it was not open to the State Government to fix minimum rate, of wages payable to employees is residential hotels and eating houses only in one pat of the State.

(35) The impugned notification is therefore quashed.

(36) In the circumstances , however, there will be no order as to costs.

Mir Iqbal Husain, J.

(37) I agree.

(38) Petition allowed.


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