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T.P. Sokkalal Ramsait Factory Private Limited by Its Managing Partner T.P.S.H. Selva Saroja Vs. the Government of Madras by the Secretary, Department of Industries, Labour and Housing - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Reported in(1969)2MLJ366
AppellantT.P. Sokkalal Ramsait Factory Private Limited by Its Managing Partner T.P.S.H. Selva Saroja
RespondentThe Government of Madras by the Secretary, Department of Industries, Labour and Housing
Cases ReferredIn Gairkhatta Tea Co. v. State of West Bengal
Excerpt:
- .....under the act is also questioned.3. by g.o. ms. no. 5539, labour, dated 26th november, 1965, a minimum wages. advisory committee was constituted to consider the revision of the minimum wages for employment in tobacco including beedi making manufactory. the committee submitted its report on 15th may, 1967, recommending the revision of minimum wages for various classes of workers employed in beedi making. after considering the report of the committee, the government of madras by a notification issued in g.o. ms. no. 2098, industries, labour and housing (labour) dated 30th may, 1968, fixed the minimum rates of wages to various classes of employees in the said industry to be effective from 30th may, 1968.4. the challenge to the validity of the fixation of minimum wage is resisted on the.....
Judgment:
ORDER

P.S. Kailasam, J.

1. This Writ Petition is filed by Messrs. T.P. Sokkalal Ramsait Factory (Private) Limited, Mukkudal, by its Managing Partner for the issue of a writ of certiorari to declare as ultra vires the notification of the Government of Madras by the Secretary, Department of Industries, Labour and Housing, Fort St. George, published in the Fort St. George Gazette (Extraordinary) dated 31st May, 1968, G.O. Ms. No. 2098, Industries, Labour and Housing (Labour) II--I No. 2448 of 1968 and to quash the same.

2. The notification published on 31st May, 1968, and which provides that it shall come into force on the 30th May, 1968, is challenged as ultra vires and unconstitutional. It is contended that the respondent has no power to fix the minimum wage retrospectively even by a day, and inasmuch as the impugned notification purports to do so, it is illegal and liable to be struck down. It is further contended that the fixation of scales of wages for types of beedies alone without taking into account the conditions and cost of living obtaining in different parts of the State violates Article 14 of the Constitution and throws an unequal burden on manufacturers in different parts of the State. The failure to take into account the capacity to pay of the different employers, it is submitted, is contrary to law. The relationship of the employer and the employee relating to the persons entitled to the benefits under the Act is also questioned.

3. By G.O. Ms. No. 5539, Labour, dated 26th November, 1965, a Minimum Wages. Advisory Committee was constituted to consider the revision of the minimum wages for employment in tobacco including beedi making manufactory. The committee submitted its report on 15th May, 1967, recommending the revision of minimum wages for various classes of workers employed in beedi making. After considering the report of the committee, the Government of Madras by a notification issued in G.O. Ms. No. 2098, Industries, Labour and Housing (Labour) dated 30th May, 1968, fixed the minimum rates of wages to various classes of employees in the said industry to be effective from 30th May, 1968.

4. The challenge to the validity of the fixation of minimum wage is resisted on the ground that wages were fixed taking into account the conditions and cost of living and the circumstances under which the products were manufactured in different parts of the State. The plea that the fixation of the minimum wages throws an unequal burden on manufacturers in different parts of the State cannot be accepted. In determining the minimum wages, the capacity of the different employers to pay need not be taken into account, as the employers are bound to pay minimum wages as provided for in the Act. The question as to the relationship between the employer and employee has been the subject-matter of a, number of decisions of the Supreme Court, and the position has been clearly stated in the decision in D.C. Dewan Mohideen Sahib & Sons v. United Bidi Workers' Union (1964) 2 L.L.J. 633. Learned Counsel for the petitioner was unable to say how he can contend that the relationship does not exist.

5. The only point that was stressed by the learned Counsel for the petitioner was that the notification dated 31st May, 1968, was given retrospective effect from 30th . May, 1968, and as such was unconstitutional. Section 5 (2) of the Minimum Wages Act, 1948 provides that after considering the advice of the committee or the representations, the appropriate Government may 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 otherwise provides, it shall come into force on the expiry of three months from the date of its issue. The effect of the sub-section would be that the notification in the Official Gazette will come into force on the expiry of three months from the date of its issue, unless otherwise provided for. The impugned notification which is dated 30th May, 1968, and which was published in the Fort St. George Gazette dated 31st May, 1968, provides that the notification will come into force on 30th May, 1968. The notification contemplated in the section is the publication of the notification in the Official Gazette. As the publication in the Gazette is dated 31st May, 1968, though the notification is dated 30th May, 1968, the notification for the purpose of Section 5 (2) of the Act will only be on 31st May, 1968. The question is how far this notification can be regarded as modifying the general rule that the notification will come into force on the expiry of three months from the date of its issue. It cannot be disputed that the Government has power to provide that the notification will come into effect before the expiry of three months. It is settled law that the rule making authority cannot give effect to any notification retrospectively unless the enactment specifically provides for it. The Supreme Court in Indramani v. W. R. Natu : [1963]1SCR721 , has held that . a statute which could validly enact a law with retrospective effect could in express terms validly confer upon a rule-making authority a power to make a rule or frame a bye-law having retrospective operation. Such power can also be conferred not only by express words, but by necessary intendment of the Act. The Minimum Wages Act, 1948 does not confer on the rule making authority power to give effect to any notification retrospectively either by express words or by necessary intendment. Giving the natural meaning to Section 5 (2) of the Act, it is clear that the Government may provide that the notification will come into force earlier than three months, but the section cannot be read as giving an implied power to the Government to enact a rule retrospectively. So far as the notification provides that it shall come into force on 30th May, 1968, when the notification was published in the Official Gazette on 31st May, 1968, it is retrospective in operation, and it cannot be upheld.

6. The next question that arises is whether the provision that the notification shall - come into force on 30th May, 1968, will have the effect of modifying the rule that the notification shall come into force on the expiry of three months from the date of its issue. It was contended by the learned Counsel for the petitioner that as the provision that the notification shall come into force on 30th May, 1968, is inoperative the notification can come into force only on the expiry of three months from the date of issue. On the other hand, it was contended by the State that the notification even if it had no retrospective effect should be construed as having come into force on the date of its publication in the Official Gazette on the 31st May, 1968. The answer to this question will depend upon whether the retrospective element in the impugned notification is easily severable from the rest of the provision, and construed as taking effect from the date of notification in the Official Gazette. In Stewart v. Brojendra Kishore : AIR1939Cal628 , the notification dated 12th January, 1938, provided that the Act shall come into force from 5th November, 1937. In that case, the retrospective operation was held to be not valid. In discussing the question as to when the Act took effect, it was held that where a statutory order is made on a certain date, Courts can sever it and give effect to it as and from a subsequent date on the ground that it was not known to the public until the latter date. The Court held that the impugned Act was not known to the public as having been in force until 12th January, 1938, and therefore on the above principle, it can be given effect to as and from that date instead of 5th November, 1937, which was the date mentioned in the notification. In Punjab Province v. Daulat Singh , the Privy Council held that:

the retrospective element in the impugned Act is easily severable, and by the deletion of the words 'either before or' from the early part of Sub-section (1). of the new Section 13-A, enacted by Section 5 of the impugned Act, the rest of the provisions of the impugned Act may be left to operate validly.

The Supreme Court in Jeevaratnam v. State of Madras (1967) 1 M.L.J. 67 : (1967) 1I A.W.R. 67 : (1967) 1 S.C.J. 404, had to consider the effect of an order which directed the dismissal of a public servant with effect from the date of his suspension, and the retrospective operation of the order from the date of the suspension was found to be invalid. The Court held that the two parts of the order were clearly severable. The Court was of the view that the order in substance was an order of dismissal as from the date of the order with the super-added direction that the order should operate retrospectively from the date of suspension of the civil servant concerned. The order dated 17th October, 1950, directing that the appellant be dismissed from service with effect from the date of his suspension, that is to say, from 20th May, 1949, was construed as directing, (1) that the appellant be dismissed, and (2) the dismissal do operate retrospectively as from 20th May, 1949. Holding that the two parts of the order are separable, the Court held that the first part of the order operates as & dismissal of the appellant as from 17th October, 1950, and it could be given effect to.

7. There is some difficulty in invoking the decision cited above in favour of the Government, for, the impugned notification which provides that ' the notification shall come into force on the 30th May, 1968,' after severing the invalid part ' on the 30th May, 1968,' would read that 'the notification shall come into force.' The notification may validly come into force from the date of publication in the Official Gazette if it is so provided. But in order to modify the rule in Section 5 (2) that the notification shall come into force on the expiry of three months from the date of its issue, there must be words to that effect. It is difficult to read the words ' the notification shall come into force ' as otherwise having the effect of modifying the rule that the notification shall come into force on the expiry of three months from the date of its issue. The intention that the notification shall come into force on the date of publication in the Gazette cannot be read into the severed portion. Courts arc not empowered to legislate involving an amendment of the notification, which is beyond the competence of the Courts. The impugned notification cannot be read in the way in which the order before the Supreme Court in Jeevaratnam v. State of Madras (1967) 1 M.L J. 67 : (1967) 1 A.W.R. 67 : (1967) 1 S.C.J. 404, was read, where it could be read as dismissing the public servant from the date of the order. In Edward Mills Co. v. State of Ajmer A.I.R. 1953 Ajm. 65, the notification which directed that it shall be deemed to have come into force with effect from 1st September, 1952 was found to be in excess of the powers and was expunged, and the notification was found to come into force in terms of Section 5 (2) of Act XI of 1948 on the expiry of three months from the date of its issue. In Narottamdas v. P. B. Gowarikar : (1961)ILLJ442MP , the notification dated 30th December, 1958, was found to suffer from the defect that it gave retrospective operation to the rates of wages fixed by it. As the notification dated 30th December, 1958, was published in the Gazette on 1st January, 1959, it was held, severing the invalid portion, the notification would bring into force the minimum rates of wages on the expiry of three months from the date of its issue. In Gairkhatta Tea Co. v. State of West Bengal : (1961)IILLJ20Cal , the Court took the view that restrospectivc operation is not Valid, but that the notification would be good so far as prospective operation is concerned.

8. On a consideration of the cases cited, I am of the view that the severed portion of the notification will not have the effect of ' otherwise providing for and therefore the notification can come into force only after the expiry of three months from the date of its issue. The writ petition is allowed to this limited extent, and in other respects it is dismissed. There will be no order as to costs.


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