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Vasudevan and ors. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 491, 503, 510, 526, 529, 530, 531, 534, 557, 558, 565, 569, 588, 618 and 623 of 1958
Judge
Reported inAIR1959Ker67a; (1959)IILLJ610Ker
ActsMinimum Wages Act, 1948 - Sections 5 and 5(1); Constitution of India - Article 226
AppellantVasudevan and ors.
RespondentState of Kerala
Appellant Advocate T.C. Raghavan, Adv.,; B. Pocker,; K.M. Seethy and;
Respondent AdvocateGovernment Pleader
DispositionPetitions allowed
Cases ReferredPunchiri Boat Service Ltd. v. State of Travancorc
Excerpt:
labour and industrial - notification - section 5 of minimum wages act, 1948 and article 226 of constitution of india - petition challenging validity of notification issued under minimum wages act - notification not in consonance with section 5 as it does not specify date on which proposals will be taken into consideration - held, notification unsustainable. - - 7. the general rule cannot be better stated then in the words of lord penzance in howard v. 203) we see no reason why in a case like this a command to do a thing in a particular manner should not imply a prohibition to do it in any other manner......validity of a notification of the government of kerala dated 26-2-1958 under section 3(1)(a)of the minimum wages act, 1948 (central act xi of 1948). that notification was published in the kerala gazette on 4-3-1958 and (omitting the schedule thereto) reads as follows :'in exorcise of the powers conferred by cl. (a) of sub-sec. (1) of section 3 of the minimum wages act, 1948 (central act xi of 1948) government are hereby pleased to fix the minimum rotes of wages payable to the employees in agricultural operations in the territories referred to in section 5(2) of the states reorganisation act, 1956 (central act xxxvii of 1956) as malabar district, the same having been previously published as required by cl. (b) of sub-section (1) of section 5 of the said act. this notification shall come.....
Judgment:

M.S. Menon, J.

1. These petitions wore heard together. They challenge the validity of a notification of the Government of Kerala dated 26-2-1958 under Section 3(1)(a)of the Minimum Wages Act, 1948 (Central Act XI of 1948). That notification was published in the Kerala Gazette on 4-3-1958 and (omitting the schedule thereto) reads as follows :

'In exorcise of the powers conferred by cl. (a) of sub-sec. (1) of Section 3 of the Minimum Wages Act, 1948 (Central Act XI of 1948) Government are hereby pleased to fix the minimum rotes of wages payable to the employees in Agricultural Operations in the territories referred to in Section 5(2) of the States Reorganisation Act, 1956 (Central Act XXXVII of 1956) as Malabar District, the same having been previously published as required by cl. (b) of Sub-section (1) of Section 5 of the said Act.

This notification shall come into force with effect from the date of this notification.'

2. The territories which constitute the Main-bar District in the State of Kerala under Section 5(2) of the States Reorganisation Act, 1956, are the territories comprised in the old Malabar District of the Madras State, excluding the islands of Laccadi-ves and Minicoy and the Kasargod Taluk of the South Kanara District.

3. Sub-section (1) of Section 5 of the Minimum Wages Act, 1948 provides :

'In fixing the 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 considers 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 persons likely to be affected thereby and specify a date, not less then two months from the date of the notification, on which the proposals will be taken into consideration'

and sub-sec. (2) (omitting the proviso thereto) :

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

4. The methed adopted by the Government before issuing the notification dated 26-2-1958 was not to appoint committees and sub-committees under Sub-section (1) (a) of Section 5 but to publish a notification under Sub-section (1)(b) in the Kerala Gazette dated 24-12-1957. The notification is dated 17-12-1957 and (omitting the schedule thereto) reads as follows :

'The following proposal regarding minimum! wages which the Government of Kerala proposed to fix in exercise of the powers conferred by cl. (a) of Sub-section (1) of Section 3 of the Minimum Wages Act, 1948 (Central Act XI of 1948) as payable to the employees engaged in employment in Agriculture in the territories referred to in Section 5(2) of the States Reorganisation Act, 1956 (Central Act XXXVII of 1956) as Malabar District, is hereby published for the information of all persons likely to be affected thereby as required by cl. (b) of Sub-section (1) of Section 5 of the said Minimum Wages Act.

Notice is given that the proposal will be taken into consideration after two months from the dateof publication of this notification and that any representation that may be received from any person with respect to the said proposal before the expiry of the above period will be considered by the Government.'

5. The first contention urged before us on behalf of the petitioners is that this notification is not in consonance with Section 5(1)(b) of the Act as it does not specify the date on which the proposals will be taken into consideration. We have come to the conclusion that the contention has to be up-held,

6. All that the notification says is that the proposals will be taken into consideration 'after two months' from the date of the publication of the notification and that any representation that may be received before the expiry of the said period will be considered by the Government. This is certainly not compliance with the provisions of. Section 5(1)(b) which directs that the notification should 'specify a date not less then two months from the date of the notification' on which the proposals will be taken into consideration. It has to be noted that under Sub-section (2) of Section 5 the right to make representations extends to the date specified in the notification under Section 5(1)(b) and that that right cannot be confined to a date anterior to it. In other words, it is not possible for the Government to say that they will receive representations up to a particular date and that the proposals will be taken into consideration not on that date but on some date thereafter.

7. The general rule cannot be better stated then in the words of Lord Penzance in Howard v. Bodington :

'I believe, as far as any rule is concerned, you cannot safely go further then that in each case you must look to the subject-matter, consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to he secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.' ((1877) 2 P.O. 203)

We see no reason why in a case like this a command to do a thing in a particular manner should not imply a prohibition to do it in any other manner.

8. Sutherland puts the matter thus : 'Where autherity is granted to public officers to do a thing in a certain way, the manner of doing the thing is mandatory, or jurisdictional, and, a limitation on the, autherity of the officer, even though, the doing of the thing in the first place may be discretionary.' (Statutory Construction, Volume 3, p. 89).

9. Crawford quotes the following passage from, an American decision:

'It is a rule of statutory construction that where a statute is framed in terms of command and there is no indication from the nature of wording of the Act or the surrounding circumstances that it is to receive a permissive interpretation, it will be construed as peremptory.'

and says that it embodies a succinct summary of an established rule (Statutory Construction, page 516). We are unable to see any indication in the nature or wording of the Act before us or the surrounding circumstances which would suggest anything other then that the Legislature intended a strict compliance with the provisions of Sub-section (1) (b) of Section 5 of the Minimum Wages Act, 1948.

10. If the notification of 17-12-1957 is defective in the manner indicated above, it must follow that the notification of 4-3-1958 is unsus-tainable and that these petitions have to be allowed-Judgment accordingly, though in the circumstances of the case without any order as to costs.

11. In the view we have taken, it is unnecessary to consider the other, contentions advanced on behalf of the petitioners and they are not considered in this judgment.

12. It was suggested by the learned Government Pleader that the fixation of minimum rates of wages under the Act is only an administrative act and is not hence amenable to the jurisdiction of this court under Article 226 of the Constitution. As stated in Punchiri Boat Service Ltd. v. State of Travancorc-Coehin, 1955 Ker LT 686: ((S) AIR 1955 Trav-Co. 97):

'The fixation of minimum rates of wages in respect of any scheduled employment by the ap-propriate Government is, no doubt, an administrative act which is final, and is not subject to judicialreview on the question of the quantum of thewages fixed. If, however, the fixation by the Government is ultra vires their powers under the Act itadmits of being so declared and corrected by the court under Article 226 and/or 227 of the Constitution.'


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