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The Vadakkekara Karshaka Samajom and ors., Vs. the State of Kerala - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1971)IILLJ252Ker
AppellantThe Vadakkekara Karshaka Samajom and ors., ;The Anthicaud Furka Cherukida Kera Karshaka Sangom, ;ezh
RespondentThe State of Kerala
Cases ReferredRamakrishna Ramnath v. State of Maharashtra
Excerpt:
.....was accordingly issued on 27-12-1968. 3. the first contention raised by counsel for the petitioners is that the above notification is bad, in so far as it enhanced the rates of wages mentioned in the notification dated 9-2-1968 issued under section 5(1)(b) of the act. 4. the second contention is that the notification fixing the minimum wages is bad, since the previous notification dated 9-2-1968, which published the proposal to revise the rates of wages, did not satisfy the requirements of section 5(1)(b) of the act. section 5(1)(b) clearly states that the notification should specify a date not less than two months from the date of the notification, on which the proposal would be taken into consideration......the government of kerala in exercise of the powers conferred by clause (b) of section 3(1) of the minimum wages act, 1948, read with section 5(2) thereof, revising the rate of minimum wages payable to persons employed in agricultural operations in the state.2. this notification was attacked before my learned brother, govindan nair, j. in o.p. nos. 814, 1074, 1099 and 1430 of 1969, who by a common judgment dated 4th june, 1971, rejected the contentions raised against the validity of the said notification and dismissed those petitions. two of the contentions advanced before him were alone pressed before me. in order to appreciate those contentions, it is necessary to read section 5 of the act, and state a few facts leading to the issue of the said notification:5. procedure for fixing and.....
Judgment:

M.U. Isaac, J.

1. These four writ petitions seek to quash a notification dated 27th December, 1968 issued by the Government of Kerala in exercise of the powers conferred by Clause (b) of Section 3(1) of the Minimum Wages Act, 1948, read with Section 5(2) thereof, revising the rate of minimum wages payable to persons employed in agricultural operations in the State.

2. This notification was attacked before my learned brother, Govindan Nair, J. in O.P. Nos. 814, 1074, 1099 and 1430 of 1969, who by a common judgment dated 4th June, 1971, rejected the contentions raised against the validity of the said notification and dismissed those petitions. Two of the contentions advanced before him were alone pressed before me. In order to appreciate those contentions, it is necessary to read Section 5 of the Act, and state a few facts leading to the issue of the said notification:

5. Procedure for fixing and revising minimum wages.--

(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 considers necessary to hold inquiries 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 than two months from the date 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 (b) of that subsection 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 such 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:

Provided that where the appropriate Government proposes to revise the minimum rates of wages by the mode specified in Clause (b) of Sub-section (1), the appropriate Government shall consult the Advisory Board also.

On the basis of the advice given by the committee appointed by the Government under Section 5(a) of the Act, the Government had fixed the minimum wages payable to agricultural workers by two notifications both dated 21-9-1964. One related to the Travancore-Cochin area and the other related to the erstwhile Malabar district. With a view to revise the rates prescribed under these notifications, the Government in exercise of its powers under Section 5(1)(b) of the Act issued a notification dated 9th February, 1968, publishing a proposal to revise the said rates in the manner indicated therein and calling for representations with respect to the said proposal for the consideration of the Governments This notification reads:--

GOVERNMENT OF KERALA

HEALTH & LABOUR (H) DEPARTMENT

NOTIFICATION

No. 52846/H1/67/HLD

Dated. Trivandrum, 9th February, 1968.

The following proposals regarding the revision of minimum wages which the Government of Kerala propose to make in exercise of the powers conferred by Clause (b) of Sub-section (1) of the Section 5 of the Minimum Wages Act, 1948 (Central Act II of 1948) as payable to the employees engaged in the employment in agriculture in the State is hereby published as required by said Clause (b) of Sub-section (1) of Section 5 of the Act.

Notice is hereby given that the proposal will be taken up for consideration on or before 15-4-1968 and that any representation that may be received from any person with respect to the said proposal before the expiry of the above date will be considered by the Government. All representations shall be addressed to the Secretary, Health and Labour Department, Secretariat, Trivandrum.

(The Schedule is omitted).

Several persons, employers and employees filed representations; and the whole matter was considered by the Advisory Board, appointed under Section 7 of the Act. The Government, after receiving the advise of the board which recommended much higher rates of wages than those given in the above notification, convened a conference of the employers and employees. A large number of persons throughout the State were invited to the conference; and the Government after hearing their views, accepted the recommendation of the Board, as the Government was satisfied that the said recommendation was reasonable in view of the high cost of living. The impugned notification was accordingly issued on 27-12-1968.

3. The first contention raised by counsel for the petitioners is that the above notification is bad, in so far as it enhanced the rates of wages mentioned in the notification dated 9-2-1968 issued under Section 5(1)(b) of the Act. Counsel contended that when the Government proposes a certain rate of wages, and calls for representations in the matter, there is scope for any representation being made by an employer only if the proposed rate is high, that no representation would be made if the proposed rate is satisfactory, and that, if under such circumstances, the proposed rate is enhanced, it would be an enhancement without giving an opportunity to make any representation against the said enhancement. In my view, this is a fallacious argument. There are two parties likely to be affected by the fixation of the minimum wages, the employer and the employee. The scheme of Section 5 of the Act is that the Government makes the proposal, inviting representations of the said parties. The employer may object to the proposed rate on the ground that it is too high, while the employee may object stating that it is too low. The Government decides the question after consulting the Advisory Board and after considering the representations. The fact that the employer did not file any objection since he considered that the proposed rate was satisfactory, does not affect the jurisdiction or scope of function of the Government under Section 5 of the Act in fixing the minimum wages. In doing so the Government is as free to enhance the proposed rate as it is free to reduce the said rate. A similar contention was advanced before the Supreme Court in C.B. Boarding & Lodging v. State of Mysore : (1970)IILLJ403SC . The contention was repelled summarily; and in doing so, the Court said :--

We saw no substance in the contention that the Government is not competent to enhance the rate of wages mentioned in the proposals published. If it has power to reduce those rates as desired by the employers, it necessarily follows that it has power to enhance them. There is no merit in the contention that the Government must go on publishing proposals after proposals until a stage is reached where no change whatsoever is necessary to be made in the last proposal made.

I, therefore, agree with my learned brother in rejecting the above contention.

4. The second contention is that the notification fixing the minimum wages is bad, since the previous notification dated 9-2-1968, which published the proposal to revise the rates of wages, did not satisfy the requirements of Section 5(1)(b) of the Act. Section 5 provides two methods for fixing or revising the rates of minimum wages. One is to appoint as many committees and sub-committees, as the Government considers necessary to hold enquiries and advise it in respect of such fixation or revision, and then fix or revise the same after considering the advice of the committee or committees so appointed. The appointment of committees and sub-committees for the above purpose is provided for in Section 5(1)(a). The other method is to publish by notification the proposals of the Government in the matter for the information of persons likely to be affected thereby and specify a date, not less than two months from the date of the publication on which the proposals will be taken up for consideration, and then fix or revise the rates of minimum wages after considering all representations received before the date fixed in the said notification. Publication of the proposals for the fixation or revision is provided for in Section 5(1)(b). If the fixation or revision is made according to this method, the Government shall also consult the Advisory Board. The revision of the rates of minimum wages was made in this case by the mode specified in Section 5(1)(b). The notification issued under this provision is attacked on two grounds. First, it did not specify a date on which the proposal would be taken into consideration. Secondly, the notification did not give not less than two months for filing representations against the proposal. Section 5(1)(b) clearly states that the notification should specify a date not less than two months from the date of the notification, on which the proposal would be taken into consideration. Section 5(2) further shows that persons likely to be affected by the proposal are entitled to have the said period of two months for making their representations, and that the Government is bound to consider all representations received before the said date before fixing or revising the rates of minimum wages.

5. Regarding the specification of the date, what the notification states is that the proposal would be taken up for consideration 'on or before 15-4-1968'. I am inclined to accept the contention that this does not amount to specifying a date for consideration. It also appears to me that specifying a date for consideration implies that the interested persons would be entitled to be heard on that date. If the Legislature did not intend that, there was no need to specify a date for taking up the proposals for consideration. It would have been sufficient to specify the date within which the representations have to be filed ; and the Government may consider them at any time thereafter. Specifying a date for consideration, therefore, means that the interested persons are entitled to have a hearing on that date. Of course, it would be open to the Government, if necessary, to adjourn the date of consideration from time to time.

6. The notification issued under Section 5(1)(b), though it is dated 9-2-1968, was published in the Kerala Gazette only on 27-2-1968. Even assuming that 15-4-1968 is a date specified for consideration of the proposal, the said date is much less than two months from the date of publication of the notification. It does not, therefore, satisfy the requirement of Section 5(1)(b) in this respect. It was faintly argued by the learned Government Pleader that the period of two months is to be reckoned not from the date of publication of the notification but from the date the notification bears. This argument, if accepted, would lead to unreasonable, if not absurd, results; and I am, therefore, unable to accede to it.

7. Then the question for consideration is whether the non-compliance with the requirements of Section 5(1)(b) of the Act would vitiate the revision of the rates of minimum wages made by the Government. It seems to have been argued before my learned brother that the Government adopted the method under Section 5(1)(a) as well as the one provided under Section 5(1)(b) in revising the minimum wages, that the Government can adopt only one of the two methods, and that the revision was bad as both methods were adopted. If two methods are provided for doing a thing, the thing done does not become invalid by reason of the fact that both methods were adopted for doing it. It would not be necessary to adopt both methods, as one alone is sufficient. My learned brother, therefore, rightly held that the fact that the method adopted under Section 5(1)(b) of the Act did not satisfy the requirements of the said section does not affect the validity of the revision of the minimum wages made by the Government, since it was done after adopting the method under Section 5(1)(a). Unfortunately this assumption was wrong. The Government had not really adopted the method provided under Section 5(1)(a) for revising the minimum wages. That would be clear from the following statements contained in the counter-affidavit filed on behalf of the Government in O. P. 682 of 1969. In paragraph 10, it is stated,--

In the present case, the Government adopted the notification method as provided under Section 5(1)(b) of the Act, and there is nothing illegal in the method adopted by the Government. A committee was not constituted as stated by the petitioner for revision of the minimum wages in this employment. Government adopted only the notification method as per Section 5(1)(b) of the Act.

Again paragraph 11 of the counter-affidavit states,--

'Government adopted only the notification method as provided under Section 5(1)(b) of the Act for revision of minimum wages in this employment. Government have not constituted any committee for revision of minimum wages in this employment.

The attack against the validity of the revision of the minimum wages made in this case cannot, therefore, be rejected on ground stated by the learned Judge.

8. Counsel for the petitioners relied on a Division Bench decision of this Court in Vasudevan and Ors. v. State of Kerala A.I.R. 1960 Ker. 67, which held that Section 5(1)(b) is mandatory, and its non-compliance would vitiate the fixation of the rates of minimum wages. This decision was cited before my learned brother. He seems to have doubted its correctness in the light of a Division Bench decision of the Bombay High Court in Ramakrishna Ramnath v. State of Maharashtra : (1963)IILLJ548Bom , which according to him has expressed a different view. He observed that if the matter had to be considered by him, he would have referred the case to a Division Bench of this Court; and he did not do so for the reason that this question did not arise as Section 5(1)(a) of the Act had been complied with, before the revision of the minimum wages was made by the Government. This, as I have already pointed out, was a wrong assumption; and the question whether Section 5(1)(b) is mandatory, and its non-compliance would vitiate the fixation or revision of the minimum wages does not arise in this case.

9. The decision of this Court referred to above is binding on me. With respect, I also agree with the view that Section 5(1)(b) of the Act is mandatory, and its non-compliance would vitiate the fixation or revision of minimum wages, if it is done by adopting the methods provided under the said section. I have not found any contrary opinion expressed in the Bombay case. All that the learned Judges of that Court have said about the Kerala decision is that one remark appearing in that decision, which was relied on before the Bombay Judges, appeared to them to be obiter and to have been made inadvertently. That remark has been extracted in the Bombay decision ; and in my view it has no relevancy to the question whether Section 5(1)(b) of the Act is mandatory or not.

10. The learned Government Pleader argued that it has not been established in those cases that the non-compliance with Section 5(1)(b) of the Act has caused any prejudice to any of the petitioners, since the revision of minimum wages was made by the Government after consulting the Advisory Board and hearing a large number of employers and employees and their representatives and after considering all the relevant facts and circumstances. I am unable to accept this contention. Under Section 5(1)(b), every person likely to be affected by the proposal of the Government for the fixation or revision of minimum wages has got a right to make a representation before a date not less than two months from the date of publication of the proposal. This is a most important right that the statute has given to such persons. Non-compliance with the requirements of Section 5(1)(b) is a deprivation of that right, and it obviously prejudices the persons affected by the fixation or revision of the minimum wages.

11. On the whole I am unable to agree with the decision that my learned brother has come to regarding the validity of the notification impugned in these cases. I, therefore, adjourn these cases for being heard by a larger Bench of this Court.


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