C.A. Vaidialingam, J.
1. In this proceeding under Article 226, Sri K.P. Abraham, learned Counsel for the petitioner, contests the award of the Industrial tribunal, Trivandrum, Ex.P. 2, dated 4 December 1958 and published in the State Gazette on 23 December 1958.
2. The main contention that is urged by Sri Abraham is that the order of reference on the question of the payment of wages to the tappers of the two estates at piece-rate and the adjudication of the tribunal on this question are both without jurisdiction and as such cannot be sustained.
3. The various other issues decided by this award are not the subject of attack in these proceedings and therefore do not arise for consideration.
4. It will be seen that issue 1 that was referred for adjudication by the Government to the industrial tribunal was as follows:
Should the tappers of the Karimpanal and Korongode estates be paid wages at piece-rates
5. On this point the industrial tribunal has, in my opinion, more or leas based its conclusion on the provisions of Section 3 of the Minimum Wages Act as also the notification issued under the Act by the Government in 1952. I will have to refer to the said provision in the Minimum 'Wages Act as well as the notification a little later.
6. After considering the provisions of Section 3 as well as the various matters mentioned in the notification issued by the Government on 30 June 1952, the tribunal comes to the conclusion that the time-rate system now in vogue in the two estates must be changed into piece-rates as demanded by the union.
7. It is this award that is very strongly attacked by the learned Counsel, Sri K.P. Abraham on the ground that neither the provisions of the Minimum Wages Act nor the notification of 1952 strongly relied upon by the industrial tribunal give any jurisdiction whatsoever to the latter to adjudicate in the manner it has done as against the petitioner estates.
8. The learned Government Pleader found considerable difficulty in supporting the award in so far as it is based upon the Provisions of Section 3 of the Minimum Wages Act or the Government notification, dated 30 June 1952. No doubt, he attempted to support this reasoning of the industrial tribunal also. But the learned Government Pleader tried to support the award, as it is, on an alternative basis, namely, that once issue 1 in the manner in which it has been framed has been referred to the industrial tribunal for adjudication, the latter has got ample jurisdiction in law, functioning under the provisions of the Industrial Disputes Act, to adjudicate on this question and in so adjudicating, it has come to the conclusion that the time-rate system now in vogue in the estates must be changed into piece-rate system as demanded by the union. Whether this award can be supported for the reasons given by the tribunal based upon the provisions of the Minimum Wages Act or the notification dated 30 June 1952, it is the contention of the learned Government Pleader that it can certainly be said to have been passed within its jurisdiction on the alternative basis.
9. So far as the alternative basis that has been placed before me by the learned Government Pleader is concerned, it is very difficult for me to accept this contention because the tribunal does not give any indication in the various reasons given by it for changing over the time-rate system to that of piece-rate to show that it has considered this question independently and apart from the provisions of Section 3 of the Minimum Wages Act and the notification dated 30 June 1952.
10. Assuming that the order of reference is valid and also assuming that the industrial tribunal can approach the question on an alternative basis, namely, by virtue of jurisdiction vested in it under the provisions of the Industrial Disputes Act, the question then will arise whether the industrial tribunal had really materials before it to come to the conclusion that it did. As I mentioned earlier, Sri Abraham, learned Counsel, contends that the award has been passed, not by virtue of any independent evidence placed before it so as to justify the exercise of a jurisdiction, assuming it has got jurisdiction under the provisions of the Industrial Disputes Act.
12. Even here I should say that the tribunal cannot be considered to have had in mind when it passed the award under attack that it is acting on the basis of a jurisdiction vested in it under the Industrial Disputes Act. Even apart from it, there is absolutely no material, which the industrial tribunal has considered to come to the conclusion, that the time-rate system now in vogue must be changed into piece-rate as demanded by the union. For the purpose of this application I will proceed on the basis that the Government have got jurisdiction to refer a question like question 1 as they have done in this case. It is not really necessary for me to go into the larger question as to whether under these circumstances, In a proper case, the industrial tribunal has got jurisdiction under the Industrial Disputes Act to decide to change the time-rate system into piece-rate system in a proper case. As I mentioned, it does not arise because the tribunal itself has not purported to give an award on the basis of such a power vested in it.
13. Therefore, the question falls in a very short compass, namely, whether the tribunal has exercised a jurisdiction vested in it in law when it gave the award in question, mainly based upon the provisions of Section 3 of the Minimum wages Act and the Government notification dated 30 June 1952. I will show presently that neither the provision in the Minimum Wages Act nor the notification dated 30 June 1952 gives any jurisdiction to the Industrial tribunal to change the time-rate system into a piece-rate system, however much desirable, it may be taking into consideration various other circumstances in the interests of workers so as to accord with the practice that may obtain in respect of the other Industries.
14. Section 2, Clause (h) of the Minimum Wages Act, 1948, defines wages as
'Wages' means all remuneration capable of being expressed in terms of money, which would, If the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed, in respect of his employment or of work done in such employment and includes house rent allowance....
15. The emphasis that is laid on this definition by Sri K.P. Abraham is that the various 'matters mentioned therein must be contained in the terms of contract of employment. In this case, Sri Abraham contends that the terms of contract of employment is that the tappers will be paid not on a piece-rate basis but on time-rate basis. Section 3, Sub-section 2 of the Act provides
The appropriate Government may fix--
(a) a minimum rate of wages for time-work (herein after referred to as 'minimum time-rate');
(b) a minimum rate of wages for piecework (hereinafter referred to as ' minimum piece-rate');
(c) a minimum rate of remuneration to apply in the case of employees employed on piece-work for the purpose of securing to such employees a minimum rate of wages on a time-work basis (hereinafter referred to as' a guaranteed time-rate').
16. Clause (d) I am omitting as it is not really necessary for the present purpose.
17. It will be seen that Sub-section 2 of Section 3 extracted above gives power to the appropriate Government to fix minimum wages for time-work or piece-work and also a minimum rate of remuneration to be applied to the employees employed on piece-rate for the purpose of securing such employees a minimum wage on the basis of time-work. It is the contention of Sri K.P. Abraham that the various matters regarding the 'payment of minimum at time-rate and payment of minimum at piece-rate are kept more or less on a sort of compartmental basis by virtue of Sub-section 2 of Section 3.
18. Therefore, Sri K.P. Abraham, learned Counsel contended that it may be open to the Government to fix or refix or make limitations in the rate of wages for time-work or piece-work but there is no power to change a payment of wages which is on a time basis into a payment of wages on piece-work basis. There is an error, according to Sri Abraham that has been committed by the industrial tribunal in this case when it proceeded on the basis that under Section 3, Sub-section (2), the Government has got a jurisdiction to change the payment on a time-rate basis into payment on a piece-work basis.
19. It will be seen that there was a notification issued by virtue of the powers conferred by Clause (a) of Sub-section (1) of Section 3 read with Clause (3) of Sub-section (1) of Section 4 of the Minimum Wages Act, 1948. It will be seen that that notification is issued on 30 June 1952. The schedule provides:
(1) the minimum time-rates;
(2) guaranteed time-rates; and
(3) the minimum piece-rates.
Under heading 1, namely, 'minimum time-rates,' there are three classes of workers contemplated, namely,
(a) field workers,
(b) factory workers, and
Under the heading 'guaranteed time-rates,' there are three classes again, namely,
(b) women, and
Under the group in piece-rates, there are two classes,
(a) pluckers in tea estates, and
(b) tappers in rubber estates
and so far as tappers in rubber estates are concerned, there again there are four subclasses, namely, classes 1, 2, 3 and 4 dealing with the yield of the various estates. It is not necessary to go into the various details mentioned therein.
20. The point to be noted is that the notification makes a very broad and compartmental distinction between the minimum time-rates, the guaranteed time-rates and the minimum piece-rates. According to Sri Abraham, learned Counsel, the term 'field workers' mentioned in Clause (a) under the heading 'minimum time-rates' will take in all the people who are actually employed in the field and in that expression the tappers in particular in the rubber estates will also be taken. Sri K.P. Abraham also pressed the contention that under the heading 'minimum piece-rates' in Para. 3 of the notification only two types of employees have been taken, namely, pluckers in tea estates and tappers in rubber estates. Therefore, Sri K.P. Abraham contended that so long as the contract between the parties subsists, they are bound to pay only on the basis of either a time-rate or a piece-rate. No doubt, if they are paying under one or the other of the headings, the minimum rates fixed under the schedule in this notification dated 30 June 1952 will have to be complied with and in this case, the tappers, who under the contract, are entitled to be paid only on a minimum time-rate can get only the wages given for field workers, according as they are men, women or children, as mentioned in Sub-clause (1) of Para. 1 of the schedule.
21. To complete the narration of events, one other notification that was made in 1956 can also be adverted to.
22. In 1956 another notification was issued on 28 June by which certain minor amendments were made to the notification issued on 30 June1952 to which I have already referred-There are two amendments made in this notification. It will be seen that under the amendment one more group of people, women tappers, is also added along with men, women and children under Sub-clause (a) of Para. (1) of the schedule in the notification, dated 30 June 1952 and it is provided that women tappers will be paid at the rate of Rs. 1-6-6 per day. 'The second amendment that WAS made to the notification, dated 30 June 1952 is this: In Para. 3 of the original notification dealing with the minimum wages rates, Clause (c) was added to the effect:
In the rubber estates where the average productivity of a tapper per day is 3 lb. of rubber or more, the tappers will be paid on piece-rate basis.
23. It was also stated that these new amendments will come into force on 15 July 1956.
24. The significant fact to be noted is that women tappers alone are brought along with men, women and children under the heading in Sub-clause (a) of Para. 1, namely, field workers. Notwithstanding the fact that tappers in rubber estates are already dealt with under Sub-clause (6) of Para. 3, it is rather significant to note that only women tappers were brought under the heading 'fieldworkers' in Sub-clause (a) of Para. 1 of the minimum time-rate in the said schedule.
25. The second addition that was made to the notification of 1952 incorporating an additional Clause (c) under Para. 3 was the subject of an attack before my learned brother Justice Sri M.S. Menon in O.P. No. 220 of 1956. That decision is in Thomas v. Travancore-Cochin State 1957--II L.L.J. 53. The learned Judge observes at p. 54 as follows:
The Act does not appear to confer any power on the Government to insist that an employer employing workers on time-rates should pay them on piece-rates. The petitioner employs his workmen on time-rates and what the provision impugned does is to direct him to pay them on piece-rates whenever the average productivity of a tapper per day in his estate is three pounds of rubber or more.
The learned Government pleader is unable to point out any provision of the Minimum Wages Act, 1948, which can sustain the said provision, namely:--
In the rubber estates where the average productivity of a tapper per day is three pounds of rubber or more, the tappers will be paid on the piece-rate basis.and I must declare the same to be ultra vires the powers of the Government under the Act.
26. If I may say so with great respect, the learned Judge emphasizes the position that the Minimum Wages Act does not appear to confer any power on the Government to insist that an employer employing workers on time-rates should pay them at piece-rates. Therefore, the reasoning of the industrial' tribunal in this case that the State by virtue of a notification under Section 3 has got a similar power, cannot certainly be sustained in view of this decision of my learned brother. I am only adverting to this decision because it will clearly show that there is no power vested in the Government to issue any notification on the basis of Section 3 by which they can make an alteration of the payment of time-rate into one on a piece-rate basis.
27. In this connexion certain observations made by the Madras High Court in the decision in Madras Port Trust v. Claims Authority 1956--II L.L.J. 490 are also worthy of notice. Justice Sri Rajagopalan and Justice Sri Rajagopala Ayyangar observe at p. 494 as follows:
Section 3 directs that the minimum unites of wages shall be fixed by the appropriate Government for the different classes of employees. When those rates are fixed and notified under Section 5(2) of the Act, the employee's right is to be paid at the minimum rate applicable to him and the employer's duty, as defined by Section 12(1) is to pay at that minimum rate to the employee. Except for that liability, the contract between the employee and the employer is left intact. If, for instance, the contract rate of wages is higher, the statutory right and obligation do not come into play. The statutory right of the employee itself is to receive wages at a rate not lower than the notified minimum rate.
28. If I may say so with great respect, the learned Judges have emphasized that the contract between the employer and the employee is not in any way affected by the provisions of Section 3 of the Minimum Wages Act or any notification that may be issued by the Government on the basis of the same.
29. The learned Judges also emphasize at the same page:
What is payable, as we have said, is wages at the contract rate or wages at the prescribed minimum rate, whichever is higher.
30. In this case, as pointed out by Sri K.P. Abraham, the contract between the employer and the employee is that the latter is to be paid on a time-rate basis and that certainly cannot be affected by any notification issued by the Government. No doubt, it may be open to the Government to fix the minimum rate payable in respect of either time-rate or in respect of persons who are governed by the piece-rate basis. The learned Judges again consider this question with reference to Section 4(1) of the Act. The learned Judges observed at p. 495:
What is permitted under Section 4(1) of the Act has to be gathered with reference to what is declared permissible under Section 3(2) of the Act. Neither is exhaustive of the primary obligation cast upon the appropriate Government by Section 3(1) of the Act. What the Government did in this case when 16 issued the notification, dated 12 November 1951, was to fix a minimum on the time basis, a monthly basis. Did it imply that the employees need not be paid thereafter the piece-work wages they were entitled to under contract? Per contra, could it be maintained that the piece-work wages paid to the employee should be ignored in deciding whether he was paid at the minimum rate prescribed by the notification? The answer to both the questions, in our opinion, should be in the negative.
31. The learned Government Pleader places some considerable reliance upon the Division Bench ruling of Justice Sri M. S. Menon and Justice Sri Varadaraja Ayyangar reported in Bethany Rubber Estate v. Industrial Tribunal and Ors. 1958--II L.L.J. 74. It will be seen that the question that was referred for decision of the industrial tribunal was' should the time-rate of system of payment of wages to the workers now prevalent in the estate be changed.' The attack in that case appears to have been that even in respect of the time-rate itself, the Government have no jurisdiction to refer the question to the industrial tribunal and that the industrial tribunal has no jurisdiction to raise the rate which was already paid by the employers. According to the learned Government Pleader, the decision of my learned brothers will conclude the case of Sri K. P. Abraham in that they have held that the tribunal has got a jurisdiction to change the time-rate system into a piece-rate system. In my opinion, it is not possible to accept this contention of the learned Government Pleader baaed upon the decision of the learned Judges. After setting out the question that has been referred for adjudication, the learned Judges observe at p. 75:
The tribunal considered the question in Paras. 22 to 25 of the award dated 30 September 1957, and found the issue in favour of the workmen.
32. If as a matter of fact the tribunal has considered the question of its right to change the time-rate into piece-rate and this has found approval at the hands of the learned Judges, it cannot be gainsaid that the present-question will have to be decided against Sri K.P. Abraham. But the question is whether the tribunal in that case in the paragraphs referred to by the learned Judges, namely, Paras. 22 to 25, has really come to the conclusion that it has jurisdiction to change the time-rate of payment into piece-rate of payment.
33. If I may Bay so with great respect, as no indication about the findings of the tribunal had been incorporated in the judgment of the learned Judges, I called for the original records in O.P. No. 32 of 1958 including the award of the industrial tribunal which was the subject of attack; I have carefully gone through the paragraphs mentioned by the learned Judges in the award, namely, Paras. 22 to 25. No doubt, it will be seen that, the union in the cases demanded that the payment of wages should be linked to production of latex and must be on the basis of piece-rate. The tribunal goes into the other evidence adduced on behalf of the union.
34. The management in opposing the request of the union has also stated that a change to piece-rate system would cause serious hardship to the management inasmuch as the tappers would resort to Slaughter tapping to make more latex from the comparatively old trees and more frequent supervision would cause additional burden to the management. After mentioning all these circumstances and the points urged before, the tribunal ultimately holds in Para. 25 that the superintendent of the estate in that case does not admit in clear terms that the present system of payment is passed on time-rate. Further the tribunal itself records the finding to the effect in that case:
Hence it strikes me that the method of payment of wages is not strictly based on time rate and admittedly it is not based on piece-rate.
35. After having observed thus, it considers various other matters regarding the proper wages that have to be fixed in that case and comes to the conclusion--
Hence I feel that a change in the payment of wages is absolutely necessary.
36. Therefore, it will be seen that Paras. 22 to 25 which have met with the approval of the learned Judges in the decision referred to does not in any way enable him to come to the conclusion that the tribunal in that case was effecting a change over of the payment of wages from time-rate basis to a piece-rate basis. On the other hand, the tribunal in that case definitely holds that the management was not paying on time-rate basis and therefore ultimately what it does was a change in the actual rate of payment of wages as fixed by the tribunal. This cannot certainly be considered to mean that the tribunal was really changing the time-rate basis into a-piece-rate basis. Therefore the decision of the learned Judges will have to be correlated to the various findings of the tribunal and understood in that light; in my opinion, the learned Judges cannot be considered to have laid down that an industrial tribunal has got jurisdiction to alter the time-rate basis into one on piece-rate basis. In fact, in my opinion, the learned Judges had no occasion or necessity to consider this matter directly. The attack, as I mentioned earlier, appears to be that even on the basis of time-rate or piece-rate, the tribunal has no power to increase the minimum wages that has been already fixed by the Government and was being paid by the management in that case. Therefore, this decision in my opinion does not at all support the contentions of the learned Government Pleader. The learned Government Pleader also attempted to get some feeble support from this decision for his contention that even under the provisions of the Industrial Disputes Act the tribunal has got always an inherent jurisdiction to revise the wage-structure. In my opinion, no support could be found even for this contention in the judgment of the learned Judges. No doubt, ultimately on the materials and facts placed before the learned Judges, they have come to the conclusion that neither the order of reference nor the award passed by the industrial tribunal as such in that case. suffered from any infirmity.
37. The learned Government Pleader, as I mentioned earlier, attempted to support the award on an alternative basis, namely, that the industrial tribunal in circumstances like this has got always a jurisdiction and power to revise the rate of wages payable when a dispute arises and is referred for adjudication. In support of this contention, the learned Government Pleader also referred to a decision of the Madras High Court in India Estate Labour Relations Organisation 1954--I L.L.J. 8 of the learned Chief Justice and Justice Sri Venkatarama Ayyar. No doubt, if I may say so with great respect, the learned Judges have very exhaustively considered the functions of the industrial tribunal under the provisions of the Industrial Disputes Act. In my opinion, it is not necessary at all for me to consider the applicability or otherwise of the decision because I am satisfied that in this case the tribunal has not purported to exercise any jurisdiction that it may be considered to have in law under the provisions of the Industrial Disputes Act.
38. The main reasoning of the industrial tribunal is contained in Paras. 6 and 7 of the award. Para. 6 practically concerns only with the provisions of Section 3 of the Minimum Wages Act as also the notification issued by Government, dated 30 June 1952. I have already pointed out that neither Section 3 of the Act nor the Government notification of 30 June 1952 give any authority or power either to the Government or any authority to change the payment of wages from what is once a time-rate into a piece-rate. No doubt, there is jurisdiction in the Government to fix the minimum wages payable in respect of these types of employment.
39. I am not able to find in the discussion in Para. 7 that the tribunal has in any way acted and given the award de horse the provisions of Section 3 of the Minimum Wages Act or the Government notification, dated 30 June 1952. If the tribunal was exercising its inherent jurisdiction and power, assuming that it has got that jurisdiction there was duty on the part of the tribunal to collect the necessary materials before it and consider the wages that were being paid in similar industries and evidence will have to be adduced on this aspect by both the parties. In this case there is absolutely no evidence adduced in respect of that matter and reliance is placed by the tribunal on some memorandum submitted to the Minimum Wages Committee by the Association of Planters of Travancore. That by itself will not in any way conclude the position against the management in this case. But even there, in my opinion, the tribunal has greater regard to the notification issued by the Government in 1952 when it deals with Sub-clause (6) of Para. 3 of the notification and ultimately it comea to the conclusion that the defence raised by the management is only to ' deny the tappers of their legitimate rights under the minimum wages notification itself.' Once I come to the conclusion that the Industrial tribunal has no jurisdiction whatsoever either under the provisions of Section 3 of the Minimum Wages Act or the notification issued by the government in 1952, it follows that the award as passed by the Industrial tribunal on issue 1 has to be set aside.
40. Accordingly, I set aside the award in so far as it has recorded a finding on issue 1, The petitioner is entitled to get costs from the respondent.