A.C. Sen, J.
1. The present application under Article 227 of the Constitution is directed against the award given by Sri P. K. Sarkar, Judge, Second Industrial Tribunal published by the Governor in the Gazette by Notification No. 1225-I.R./IR/14L-20/60 dated 14th March, 1961.
2. The Chairman, Panihati Municipality is the petitioner before us and the Panihati Municipal Labour Welfare Union representing the workers is the Opposite Party.
3. Three issues were referred to the Tribunal for adjudication, namely: -
1. Whether the dismissal of seven workers mentioned in the Order of Reference is justified. To what relief, if any, are they entitled?
2. Whether the seventeen workmen named in the Order of Reference are entitled to the difference of wages fixed under the Minimum Wages Act and the wages paid to them for the period from 1st November 1958 to 30th June 1959?
3. Whether the nine workmen mentioned in the Order of Reference are entitled to retrenchment compensation. If so, what should be the amount of compensation in each case?
4. All the issues were decided In favour of the workmen represented by the Union. We propose to take up the issues one after another.
5. So far as the first issue is concerned the Tribunal has decided that out of the seven workmen, six are entitled to be reinstated, as their dismissal was not justified.
6. It is contended on behalf of the Municipality that the Industrial Disputes Act, in so far as it authorises the Tribunal to interfere with the power of the Chairman of a Municipality under Section 66(2) of the Bengal Municipal Act to appoint and dismiss the municipal employees is ultra vires. The material portion of Section 66(2) of the Bengal Municipal Act runs thus:
'Subject to the scale of establishment approved by the Commissioners under Sub-section (1), the Chairman shall have power to appoint such persons as he may think fit, and' from time to time to remove such persons and appoint others in their places.'
7. Then follows provisos limiting the power to some extent,
8. The Tribunal in directing reinstatement ofthe six out of the seven workers dismissed by theChairman has certainly trespassed upon the powerof the Chairman.
9. In 1947 when the Industrial Disputes Act was passed the distribution of legislative power between the Centre and the Provinces was regulated by the Government of India Act, 1935. The subject relating to the 'Constitution and powers ofMunicipal Corporation' was included in item 13 of the Provincial List, namely List II. The subject of 'Industrial disputes' on the other hand was included in Item 29 of the Concurrent Legislative List, that is to say List III. Sub-section (3) of Section 100 of the Government of India Act, 1935 provided that in respect of any of the matters enumerated in List II, that is to say, in the Provincial Legislative List, the Provincial Legislature had, and the Federal Legislature had not the power to make laws for a province or any part thereof.
10. The argument is that by a Provincial Act, namely the Bengal Municipal Act, the Chairman has been empowered to appoint and dismiss employees and by reason of Item 13 of List II of the Seventh Schedule to the Government of India Act, 1935 there can be no interference with these powers except by the Provincial or State Legislature. The powers of a Municipality, it is contended, is not a matter upon which the Central Legislature can legislate at all.
11. The Industrial Disputes Act, 1947 was passed by the Central Legislature. An adjudicator under the Industrial Disputes Act has jurisdiction to order the reinstatement of workmen lawfully dismissed. In the present case the award directs the Municipality to reinstate the six employees who were dismissed by the Chairman apparently in accordance with the rules. There is, therefore, a clear interference with the powers of the Chairman and of the Municipality and it is argued on behalf of the Municipality that the Central Legislature had no power to pass any law interfering with the powers of the Municipality.
12. It should be remembered that the main object of the Industrial Disputes Act is the settlement of disputes between an employer and his employees in the interest of industrial peace, and it does not purport to be an Act dealing with thepowers of the Municipality. In dealing with industrial disputes it does trespass to some extent upon a Provincial subject, namely the powers of a municipality. But from this it cannot be inferred that the Industrial Disputes Act, in so far as it empowers the Tribunal to interfere with the powers of the Chairman to appoint or dismiss employees, is void and inoperative.
13. In deciding the question raised by the Municipality we must apply the 'pith and substance' doctrine neatly enunciated by the Privy Council in Prafulla Kumar v. Bank of Commerce Ltd. Khulna, 51 Cal WN 599: (AIR 1947 PC 60)and followed by a Division Bench of our High, Court in The Municipal Commissioner of BudgeBudge Municipality v. P.R. Mukherjee, : AIR1950Cal457 . Does the Industrial Disputes Act deal in pith and substance with industrial disputes? If it does, is it valid though it incidentally trenches upon matters reserved for the Provincial Legislature?
14. There cannot be any manner of doubt that the Industrial Disputes Act, 1947 it pith and substance deals with industrial disputes included in Item 29 of the Concurrent Legislative List in the Seventh Schedule to the Government of India Act, 1935. Therefore even if it incidentally trenches upon a matter reserved for the Provincial Legislature, namely, powers of Municipal Corporation, it must be regarded as valid. If any authority is needed for this purpose reference may be made to the decision of a Division Bench of this Court in the case of the Budge Budge Municipality, : AIR1950Cal457 noted above. In the said case too the Tribunal gave direction for the reinstatement of the two employees dismissed by the Chairman in valid exercise of his powers under the Bengal Municipal Act. The direction for reinstatement was held to be good. In the instant case too the order of the Tribunal directing the reinstatement of the six employees cannot be challenged on the ground that the Industrial Disputes Act, in so far as it trenches upon the powers of the Chairman of the Municipality, is void and ultra vires. On merits we find no reason to interfere with the decision of the Tribunal on the first issue dealing with the question of reinstatement.
15. In deciding the second issue the member of the Tribunal observed as follows:
'I hold accordingly that the 15 workmen in question are entitled to the difference between the wages they received and the minimum wages forthe period from 1st November 1958 to the dates upto which they were in service of the Municipality...........'
It is argued on behalf of the Municipality that it is for the Authority under the Minimum Wages Act and not for the Industrial Tribunal to decide whether a particular worker is entitled to the prescribed minimum rate of wages. Therefore, it is contended, the Tribunal acted without jurisdiction in awarding the difference between the minimum wages and the wages actually paid.
16. Section 20, Sub-section (1) of the Minimum Wages Act, 1948 provides as follows:
'The appropriate Govt. may..... appoint any Commissioner for workmen's compensation...... onany other officer with experience as a Judge...... oras a stipendiary Magistrate to be the Authority to hear and decide for any specified area all claims arising out of payment of less than, the minimumrates of wages to employees employed or paid in that area.'
Therefore, all claims arising out of payment of less than the minimum rates of wages are to be decided by the Authority appointed by the Government under Section 20 of the Minimum Wages Act. Subsection (2) says that an employee having any claim arising out of payment of less than the minimum rate of wages, the employee himself or any of the persons mentioned in the said sub-section may apply to the competent Authority praying that the employer may be directed to pay the difference between the minimum rate of wages and the amount actually paid together with such compensation as the Authority may think fit. Therefore the application is to be made by the employee or his authorised agent.
17. What will be the position if an industrial dispute is raised over the question of payment of the minimum rate of wages to a number of workers, getting less than the minimum rate? In an industrial dispute of this nature the claim is made by the workers not individually but in concert or through the Union. The settlement of such dispute, though it involves a claim to the minimum rate of wages, is within the exclusive jurisdiction of the Tribunal under the Industrial Disputes Act.
18. A dispute may very well arise when minimum wages are claimed by the workers and the claim is resisted by the employer. There is no reason to think that such a dispute is not an industrial dispute. The provisions of the Industrial Disputes Act are wide enough to include such a dispute. The third Schedule to the said Act mentions the matters within the jurisdiction of Industrial Tribunals. The first item of the Third Schedule is as follows: 'Wages, including the period and mode of payment.' The expression 'wages' is wide enough to include 'minimum wages'. Therefore an industrial dispute arising out of payment of less than the minimum rate of wages is certainly within the competence of an Industrial Tribunal. Again, it has been pointed out by the Madras High Court in South India Estate Labour Relations Organisation v. State of Madras, (S) : AIR1955Mad45 that the provisions of the Minimum Wages Act, 1948 are not so inconsistent with or repugnant to those of the Industrial Disputes Act, 1947, an earlier enactment, as to lead to the conclusion that the latter has been impliedly repealed by the former.
19. It is needless to point out that a dispute may arise between the employer and his workmen over the payment of the minimum rate of wages even when the employer does not dispute his liability to pay at the minimum rate. For instance, in the case before us, the demand of the Union is that the workmen in question should have been given the minimum rate fixed by the Government with effect from 1st November, 1958 and that they should now be paid the difference between the minimum rate and the wages actually paid to them upto the dates of termination of their services, and the case for the Municipality is thatthese employees are not entitled to claim the minimum wages as when the Municipality gave effect to the minimum wages they were no longer in the service of the Municipality. Therefore the Municipality does not dispute the validity of the Government order fixing the minimum rate of wages; what it disputes is the eligibility of the workers in question to claim the minimum rate of wages.
20. Similarly, a dispute may arise as to the method of calculating the minimum wages. There is no reason to hold that such disputes, simply because they are connected with the payment of minimum wages, cannot be referred by the appropriate Government under Section 10 of the Industrial Disputes Act to a Tribunal for their settlement.
21. In support of this view reference may be made to the decision of the Supreme Court in Bidi, Bidi Leaves and Tobacco Merchants Association, Gondia v. State of Bombay, : (1961)IILLJ663SC . In that case the Bombay Government by a notification prescribed the revised minimum rates of wages for workers in Bidi industry. Clauses 3 to 7 of the said notification also laid down the manner in which the employee should make payment for discarded bidis. It was contended on behalf of the employers that as the said clauses, namely, Clauses 3to 7 purported to make provisions for the settlement of disputes between the employer and the employee concerning an industrial matter they were outside the purview of the respondents' power under the Minimum Wages Act. This contentionwas accepted by the Supreme Court. Their Lordships observed as follows:
'it is true that a large section of the workers in the bidi trade is illiterate, uneducated and unorganised; and there can be no doubt that their grievance on the ground of improper rejection of the bidis deserves to be redressed, but in our opinion, the procedure adopted by the respondent in redressing the said grievance is outside the scope of the Act and therefore beyond the powers conferred on it by Section 5. The proper remedy in such a case may be to make a comprehensive reference of the dispute to the competent industrial tribunal and invite the tribunalto make a proper award in that behalf.'
22. These observations of the Supreme Court suggest that if any dispute arises in implementing the direction for minimum wages on the ground of improper rejection of good bidis, the dispute is to be decided by an industrial tribunal under the Industrial Disputes Act. Similarly, it may be said that in the case before us the tribunal is quite competent to decide the dispute as to the eligibility of the workers in question to claim the minimum wages. We are therefore of opinion that the decision of the tribunal awarding the difference between the minimum rate of wages and the wages actually paid cannot be challenged on the ground that the tribunal acted without jurisdiction is making the award. On merits too we find no reason to interfere with the decision of the tribunal.
23. So far as Issue No. 3 is concerned no argument has been advanced before us challenging the decision of the Tribunal.
24. The validity of the Minimum Wages Act was challenged on behalf of the Municipality onthe ground that it trenches upon the power of the Commissioners under Section 66(1) of the Bengal Municipal Act to fix the salaries and allowances of their employees. The Minimum Wages Act was passed for the welfare of labour, which is included in item 27 of the Concurrent Legislative List in the Seventh Schedule to the Government of India Act, 1935. The pith and substance of the Act is to provide for the welfare of labour and not to legislate upon Municipal Corporations; therefore the Act cannot be impugned on the ground that it incidentally interferes with the power of the Municipal Commissioners to fix the salaries and allowances of their employees. if the Industrial Disputes Act is a valid piece of legislation even though it impinges upon the powers of the Chairman of a Municipality to appoint and remove the municipal employees,--and it has been held to be valid by the High Court in the case of the Municipal Commissioner of the Budge Budge Municipality, : AIR1950Cal457 ,--there is no reason why the Minimum Wages Act should not be held to be a valid piece of legislation. It may be noted that the validity of the two Acts, namely the Industrial Disputes Act and the Minimum Wages Act was not challenged before the Tribunal.
25. The validity of the Minimum Wages Act was sought to be challenged before us also on the ground of unfettered delegation of legislative authority to the executive. In the case before us the minimum rate of wages was fixed under Section 5 of the Act, and the contention of the Municipality is that uncontrolled and arbitrary power has been conferred upon the State Government and that therefore Section 5 is void and inoperative on that ground. Similar question arose before the Supreme Court in the case of Bhikusa Yamasa Kshatriya v. Sangamner Akola Taluka Bidi Kamgar Union, : (1962)IILLJ736SC . There the validity of Section 3(3)(iv) was challenged on the ground that by that Section arbitrary and uncontrolled power has been conferred upon the State Government to fix rates of minimum wages in respect of certain localities and has thereby enabled the Government to discriminate against the employers carrying on their business in those localities. The Supreme Court repelled the argument as, in the opinion of the Supreme Court, 'by entrusting authority to the appropriate Government to determine the minimum wages for any industry in any locality or generally, the legislature has not divested itself of its authority, nor has it conferred uncontrolled power upon the State Government.' This opinionof the Supreme Court applies with greater force to Section 5 of the Minimum Wages Act. Therefore it cannot be said that by Section 5, the legislature has delegated its essential functions to the State Government.
26. As we have rejected all the arguments advanced by the Municipality we find no reason to interfere with the award of the Tribunal.
27. An objection was taken on behalf of the Labour Union on the ground of defect of parties. The individual workers who have been benefited by the award have not been impleaded; they are being represented before us by the Union. It is contended on behalf of the contesting opposite party that the petition is liable to be dismissedfor not impleading them as opposite parties. The workers were represented before the Tribunal by the Labour Union; the present petition under Article 227 of the Constitution being nothing but a continuation of the proceeding before the Tribunal, the same representation on behalf of the workers should continue. It has been laid down by the Supreme Court in Ram Prasad Vishwakarma v. Chairman, Industrial Tribunal, Patna, : (1961)ILLJ504SC that when a dispute concerning an individual workman is taken up by the Union as a matter affecting the workmen in general the individual workman cannot ordinarily claim to be heard independently of the Union. We therefore overrule the objection on behalf of the Union, the contesting respondent.
28. In the result the application under Article 227 of the Constitution is dismissed with costs and the Rule is discharged. Hearing fee is assessed at 2 gold mohurs.
29. All interim orders stand vacated. The opposite party will be at liberty to withdraw the amount deposited pursuant to the Order passed by this Court dated the 19th June, 1961.
30. I agree.