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Stanmore Estate and ors. Vs. the Commissioner of Labour and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Reported in(1979)2MLJ97
AppellantStanmore Estate and ors.
RespondentThe Commissioner of Labour and ors.
Excerpt:
- .....rates of dearness allowance for tea and rubber estates in kanyakumari district are linked to 1934 points of consumer price index for nagercoil centre (1939-100)(b) further adjustment of dearness allowance: future adjustment of dearness allowance will be made at the following rates for variations in the average consumer price index for coimbatore centre (1936-100) from the level of 1693 points for all estates in areas other than kanyakumari district and from 1934 points of consumer price index for nagercoil centre (1939-100) in respect of tea and rubber estates in kanyakumari district.the government order gives the rate of variation for every unit of 5 points and states that the adjustment shall be made on the 1st january, 1st may and 1st september of each year based on the four monthly.....
Judgment:

Ismail, J.

1. This batch of writ petitions raises a common question relating to the interpretation of Section 4(1)(i) of the Minimum Wages Act, 1948 hereinafter referred to as the Act, and the Government Notification, dated 18th November, 1976 made in G.O. Ms. No. 1016, Labour and Employment, in exercise of the powers conferred by Clause (b) of Sub-section (1) of Section 3 and Sub-section (2) of Section 5 of the Act, inter alia fixing revised minimum rates of wages (sic) in respect of tea estates and coffee estates in Shevaroy and Palani Hills. The Government Order stated that the Government was revising the rates of wages specified in columns 2 and 3 of the Schedule in respect of the employment in question which is a scheduled employment and having prescribed the basic rate of wages and the fate of dearness allowance, the order of the Government proceeded to state--

The rates of dearness allowance noted above are linked to 1693 points of average consumer price index for Coimbatore Centre 1936-100 in respect of all estates other than those in Kanyakumari District. The rates of dearness allowance for tea and rubber estates in Kanyakumari district are linked to 1934 points of consumer price index for Nagercoil centre (1939-100)

(b) Further adjustment of dearness allowance: future adjustment of dearness allowance will be made at the following rates for variations in the average consumer price index for Coimbatore centre (1936-100) from the level of 1693 points for all estates in areas other than Kanyakumari District and from 1934 points of consumer price index for Nagercoil centre (1939-100) in respect of tea and rubber estates in Kanyakumari District.

The Government Order gives the rate of variation for every unit of 5 points and states that the adjustment shall be made on the 1st January, 1st May and 1st September of each year based on the four monthly averages of the second previous four months prior to the date of revision. This Government Order is fully in accordance with the terms of the statute in Section 4(1)(i) which states--

Any minimum rate of wages fixed or revised by the appropriate Government in respect of scheduled employments under Section 3 may consist of--

(i) a basic rate of wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate Government may direct, to accord as nearly as practicable with fee variation in the cost of living index number applicable to such workers (hereinafter referred to as the 'cost of living allowance').

The petitioners in these writ petitions were 'paying their employees the wages as prescribed by the said Government Order. The consumer price index had gone down to 1420 points, and therefore, the petitioners started paying minimum wages as per the notification giving effect to the adjustment as provided for in the Government Order. Under these circumstances, the petitioners received a communication from the Inspector of Plantations, Yercaud, the second respondent, dated 30th December, 1977 stating that the dear-ness allowance fixed in G.O.Ms. No. 1016, Labour and Employment, dated 18th November, 1976 should not be reduced even if the consumer price index falls below 1693 points (Coimbatore centre) and 1934 points (Nagercoil) and that the arrears of wages may be paid to the workers immediately. This instruction given by the second respondent was based upon a memorandum issued by the Commissioner of Labour, Madras, dated 21st September, 1977. The Commissioner of Labour by that memorandum pointed out that representations had been received from the Trade Unions connected with the employment in plantations and from certain Inspectors of Plantations also seeking clarification in the matter of payment of dearness allowance even if the consumer price index goes 'below the points at which the dearness allowance has been linked to in the notification while revising the minimum rates of wages for the employment in any plantation. The memorandum proceeded to state--

The Inspector of Plantations and the Labour Officers are informed that the Government have instructed that the dearness allowance notified in the G.O. Ms. No. 1016. Labour and Employment, dated 18th November, 1976 should not be reduced, even if the consumer price index falls below 1693 points (Coimbatore) arid 1934 points (Nagercoil). In view of the above, the question of notification of dearness allowance periodically on the basis of the consumer price index as mentioned in the Government Order cited will not arise unless and until there is variation in the consumer price index over and above the level of 1693 points (Coimbatore) and 1934 points (Nagercoil) and then goes below that rise up to the level of 1693 points and 1934 points as stated above. Hence the planters have to pay the notified dearness allowances even if the consumer price index goes below 1693 points (Coimbatore) and 1934 points (Nagercoil) and there is no need to issue a notification by the Government in this regard.

2. The petitioners in these writ petitions pray for the issue of a writ of certiorari to quash the memorandum of the Commissioner of Labour, dated 21st September, 1977 referred to above.

3. According to the learned Counsel for the petitioners, the memorandum of the Commissioner giving the instructions referred to above is illegal and contrary to law. The contention is that both Section 4(1)(i) of the Act and the order of the Government fixing the minimum rates of wages contemplate adjustment of special allowance so as to be in accord as nearly as practicable with the variation in the cost of living index number applicable to such workers and the adjustment or variation cannot be only one way, namely, by way of increase of the special allowance, but it ought to be both ways, namely either increase or decrease, depending upon the cost of living index number going up or coming down.

4. Similarly as a matter of construction of Section 4(1)(i) which we have already extracted and with which the Government Order already referred to is fully in accord, we have to hold that the contention of the learned Counsel for the petitioners is well-founded. The words used in the statute are:

a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate Government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers.

We have already referred to the fact that the Government Order has fixed the rate of adjustment for every 5 points and also at what intervals the revision has to be made. The only question that falls for consideration is whether there is anything in the language of Section 4(1)(i) of the Act or the Government Order to hold that the adjustment and variation contemplated is only adjustment and variation upwards and not downwards. We are clearly of the opinion that the words the variation in the cost of living index' clearly contemplate an alteration or change in general without confining the alteration or change to only one way, namely, increase. The ordinary dictionary meaning of the words 'adjustment' or variation will mean an alteration or change without confining that alteration or change to only one direction. Consequently, simply as a matter of construction of the words used in the section which are simple words whose meaning is clear, we cannot uphold the contention of the Commissioner of Labour that the variation and adjustment contemplate only one direction, namely, upwards and not downwards.

5. The learned Counsel for the Workers' Union which has been impleaded as a party to the writ petitions contended that since what was fixed by the Government is the minimum rates of wages, there cannot be anything below what was actually fixed by the Government as dearness allowance, and therefore there can be only an upward revision and there cannot be a downward revision. We are unable to accept this argument. As a matter of fact, Section 4(1) of the Act gives an option to the Government to fix or revise the minimum rate of wages in any one of the methods mentioned in that sub-section, namely, Clauses (i), (ii) or (iii). Further the statute itself contemplates two rates, a basic rate of wages and a special allowance at a rate to be adjusted. In such a context it is impossible to hold that simply because the Act was one dealing with the fixation or revision of minimum rates of wages, we must conclude that the words 'adjustment' and 'variation' must be given a limited or restricted meaning connoting 'adjustment' and 'variation' only upwards and not downwards. The learned Counsel further contended that the G.O. states that 'future adjustment of dearness allowance will be made at the following rates for variation in the average consumer price index for Coimbatore Centre (1936-100) from the level of 1963 points...' and stressed the word 'from' occurring in the above extract for the purpose of contending that the word 'from' denotes that the variation contemplated is only upwards and not downwards. We are unable to accept this argument. A variation either upwards or downwards will have to be with reference to a fixed position or a fixed point, and that is exactly what is contemplated when the Government Notification used the words 'from the level of 1693 points' and there is no question of the word 'from' conclusively showing that the variation contemplated is only upwards and not downwards, because even if the variation it to be downwards, it will be a decrease or coming down 'from' 1963 points, and it is not only a question of increase 'from' or going up 'from' 1963 points. Therefore, the use of the word 'from' does not afford any support to the contention put forward on behalf of the employees. In these circumstances, we are clearly of the opinion that the Memorandum of the Communication of the Commissioner of Labour, dated 21st September, 1977 is contrary to law and beyond his jurisdiction and therefore, we allow these writ petitions and issue a writ of certiorari quashing the same.

6. We must record with regret that even though the action was taken by the second respondent only at the instance of the Commissioner of Labour and the Commissioner of Labour himself has stated in his communication that the Government had instructed that the clearness allowance notified in G.O. Ms. No. 1016, Labour and Employment dated 18th November, 1976 should not be reduced, even if the consumer price index falls below 1693 points (Coimbatore) and 1934 points (Nagercoil), still he had not chosen to file a counter-affidavit in any of these writ petitions to make it clear to the Court on what grounds the Government instructed him as stated above and how he could support either the instructions of the Government or the memorandum issued by him. Even the records relating to the issue of the memorandum were not produced before the Court. There will be no order as to costs.


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