D.N. Sinha, J.
1. In these two applications, which have been heard together, the petitioners are, or represent, certain tea estates in West Bengal, which employ various classes of employees working in their respective tea plantations. The question that arises here is a question under the Minimum Wages Act, 1948 (Act XI of 1948), the object of which is to provide for fixing minimum rates of wages in certain employments. Under Section 3 of the said Act, the appropriate Government may, in the manner provided therein, fix the minimum rates of wages payable to employees employed in employments specified in the schedule to the Act. This schedule is from time to time altered. The Government can, by notification, fix the minimum rates of wages payable to such employees and may, from time to time, review the Minimum Rates of Wages so fixed, at intervals not exceeding five years. Section 3(3) (a) of the said Act is important and is set out below-
'(3) In fixing or revising minimum rates of wages under this section.--
(a) different minimum rates of wages may be fixed for --
(i) different scheduled employments;
(ii) different classes of work in the same scheduled employment;
(iii) adults, adolescents, children and apprentices;
(iv) different localities;'
2. By a notification dated September 5, 1951, the Government of West Bengal, acting, under the provisions of the said Act, fixed the minimum rates of wages payable to the employees employed in tea plantations in which the petitioners in these two applications are interested. By subsequent notifications dated March 1952, February 1953, April 1954 and May 1954, the minimum rates of wages so fixed were revised from time to time under Section 3(1)(b) of the said Act. In 1955, by an agreement between the employers and the workers of the tea plantations, the employers agreed to pay to the workers, wages in excess of these notified by Government as minimum wages. This agreement was subsisting in August 1959. By a notification dated August 20, 1959, published in the Calcutta Gazette (Extraordinary) dated August 24, 1959, the State of West Bengal purported to revise the minimum rates of wages once more. A copy of the said notification is Ext. A to the petition. It is not necessary for the purposes of these applications to refer to other parts of the said notification. The only relevant Clauses are (2) and (3) which run as follows:-
'(2) The existing basic monthly wages of the subordinate staff shall be increased by a minimum of Rs. 3.75 nP.
3. The minimum increase in existing monthly wages of the clerical employees shall be Rs. 6/- split up as shown below:-
Basic wages ... Rs. 4.00 nP.Dearness allowance ... Rs. 2.00 nP.'
3. It is these two items in the notification, which are challenged. There was another notification dated August 31, 1959, in which certain mistakes were rectified but we are not really concerned with that. With regard to these two clauses, several objections have been raised. The first objection which is formulated by Mr. Gupta is that in these two clauses the minimum rates of wages have not been laid down at all, but what has been done is to fix the wages which the employer should pay to the employee. He argues that this is not the object of the Act at all. He points out that the minimum rate of wages fixed by the Act, is not the rate at which the employer is bound to pay his workers. It is a rate, below which he may not pay. He may, however, pay any wage he likes which is in excess thereof. It does seem that the wording of Clauses (2) and (3) is singularly inappropriate to the fixation of rates of minimum wages and, on the face of it, it seems to be a fixation of what wages an employer should pay to his employee. Secondly, Mr. Gupta argues that under the Act, the Government has nothing to do with the rates of wages which an employer may be paying to the employee, by agreement of parties. All that the Government can do is to fix a rate of minimum wage, and after a specified interval alter the rate so fixed. He argues that the words 'existing wages' Can only refer to the last minimum wage that had been fixed. On this point, however, there is considerable doubt. The object of fixing the minimum wage and to revise the same, is undoubtedly the fixation of a quantum, which is fixed after taking into consideration all kinds of factors. But in fixing the minimum wage, I do not see why Government cannot refer to the existing wage, even if it is based upon an agreement between the par ties. It might be said that the revision is not really of the rates fixed by agreement, but is a mode of quantifying the rate of minimum wage, which Government is entitled to fix. So far as these two points are concerned, a charitable view as regards interpretation could be taken, and if these were the only objections raised, the action of Government could be sustained,
4. I now come to an objection which in my opinion, appears to be fatal. As I have pointed out above, the rate of minimum wages can be fixed, not as regards all classes of employment, but in cases which have been Categorised. In other words, a minimum wage can be fixed for a grade or class, provided it comes within the Categories or classes mentioned in Section 3(3). For our purpose, what is important is Section 3(3)(a) and the relevant point to be considered is as to whether the rates of minimum wages that have been laid down, have any reference to any of the grades or classes mentioned therein. For this purpose, a supplementary affidavit has been filed, which shows that the rates of existing wages paid by agreement of parties, differ from plantation to plantation and even in the same plantation it differs from individual to individual. This statement has not been denied by the petitioners. Therefore, if effect is to be given to the two clauses viz., Clauses (2) and (3), as framed, it will mean that different rates of minimum wages are being fixed for different plantations and for different individuals. For example, it has been stated that in the different plantations, different wages are paid to people in the same class but with different seniority. Therefore, in giving effect to the two clauses viz., clauses Nos. (2) and (3), people in the same class or grade, as specified in Section 3(3)(a) will be getting different rates of minimum wages, which is not permissible. This, in my opinion, would not be in accordance with law and, therefore, Clauses (2) and (3) as worded cannot be sustained.
5. The next point that has arisen in these two cases is the question of the retrospective operation of the impugned notification. The notification was issued on August 24, 1959, but it is stated that ill shall be deemed to have come into force with effect from June 1, 1959. The accepted principle of interpretation is that unless a statute has been made expressly retrospective it must be taken to be prospective. Mr. Masud, appearing on behalf of the Government, has attempted to justify it under Section 5(2) of the said Act, which runs as follows:-
'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 sub-section, 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 each schedule employment, and unless such notification otherwise provides, it shall come into force on the expiry of three mouths from the date of its issue:.....'
6. Mr. Masud argues that since we have the expression 'unless such notification otherwise provides', it was open to the Government to provide otherwise and to make it operative from any date it liked, even if it was retrospective, I am unable to accept this argument. It is true that Government is given a discretion, but this would be perfectly consistent with the exercise of that discretion prospectively. In other words, the period fixed is three months, but it could make the period less or more, but it does not follow that it could make it retrospective. We cannot 'by inference introduce the power of making a statute retrospective. That is against all accepted canons of interpretation.
7. Next, Mr. Masud argues that even if the retrospective operation is bad, still, it would be good so far as the prospective operation is concerned. To that extent, I think, the argument should be accepted.
8. The result is that these two Rules must be made absolute and Clauses (2) and (3), in the notification dated August 24, 1959, must be quashed and/or set aside by a writ in the nature of certiorari and there will be a writ in the nature o mandamus directing the respondents not to give effect to the same. I am making it clear that I am saying nothing in this order with regard to the rest of the notification, save and except that it can only apply prospectively and not retrospectively.
9. It is pointed out to me that during the pendency of these applications, the tea plantations had been paying at a rate, not in accordance with the notification but in accordance with the agreement with the parties. But this was under orders of Court. It is pointed out that it may be urged later on that an offence or offences have been committed, since the notification has been given a prospective operation, excepting as to Clauses (2) and (3), I do not think the question of committing an offence arises, as the payments were made under orders of Court.
10. There will be no order as to costs. Interim orders, if any, are vacated.