The capacity of the employer to pay is not relevant in fixing minimum wages.

Judgment

GAJENDRAGADKAR, J. : The Government of Kerala appointed a Committee in exercise of its powers conferred by cl.(a) of sub-s. (1) of S. 5 of the Minimum Wages Act, 1948 (Act XI of 1948) (hereafter called the Act), to hold enquiries and advise the Government in fixing minimum rates of wages in respect of employment in the industry and nominated eight persons to constitute the said Committee under S. 9 of the Act. This notification was published on August 14, 1957. The Committee made its report on March 30, 1958. The Government of Kerala then considered the report and issued a notification on May 12, 1958, prescribing minimum rates of wages as specified in the schedule annexed thereto. This notification was ordered to come into effect on May 26, 1958. On that date the present petition was filed under Art. 32 by the nine petitioners who represent six tile factories in Feroke. Kozhikode District, challenging the validity of the Act as well as the validity of the notification issued by the Government of Kerala. The State of Kerala is impleaded as respondent to the petition.

2. The petitioners allege that the minimum wage rates fixed by the notification are very much above the level of what may be properly regarded as minimum wages and it was essential that before the impugned wage rates were prescribed the employer s capacity to pay should have been considered. Since this essential element had not been taken into account at all by the Committee as well as by the respondent the notification is ultra vires and inoperative. According to them the burden imposed by the notification is beyond the financial, capacity of the industry in general and of their individual capacity in particular, and this is illustrated by the fact that nearly. 62 tile factories in Trichur closed soon after the notification was published. The petitioners seek to challenge the validity of the Act on several grounds set out by them in clauses (a) to (g) of paragraph 21 of the petition. It is urged that the Act does not define what the minimum wage is to comprise or to comprehend and as such confers arbitrary authority on the appropriate Governments to impose unreasonable restrictions on the employers. The law conferring such arbitrary power is violative of Art. 19(1)(g) of the Constitution. Since the Act empowers the fixation of a wage which may disable or destroy the industry it cannot be said to be reasonable and as such is beyond the purview of Art. 19(1) and (6) of the Constitution. The Act does not lay down any reasonable procedure in the imposition of restrictions by fixation of minimum wage and so authorises any procedure to be adopted which may even violate the principles of natural justice. It is also alleged that the Act is discriminatory in effect inasmuch as it submits some industries to its arbitrary procedure in the matter of fixation of minimum wages and leaves other industries to the more orderly and regulated procedure of the Industrial Disputes Act. It is on these grounds that the validity of the Act is impugned.

3. The petitioners impugn the validity of the notification also for the same reasons. Besides, it is urged that the notification has in effect fixed not minimum wages but fair wages and so it was essential that the capacity of the employers to bear the burden proposed to be imposed ought to have been considered. Failure to consider this essential aspect of the matter has, it is urged, rendered the notification void. That in substance is the nature of the case set out by the petitioners in their present petition.

4. The respondent has traversed all these allegations. It is urged that the validity of the Act is no longer open to challenge since the question is concluded by the decisions of this Court; and it is alleged that what the notification purports to do is to fix the minimum wage and no more and as such the capacity of the employer to pay such a minimum wage is irrelevant. It is further alleged that decisions of this Court have