1991 Supreme(Bom) 35

IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
"Arbuda Bhuvan" and others.... Petitioners.
Versus
State of Maharashtra and another.... Respondents
Writ Petition No. 2503 of 1985, decided on 21-1-1991.
Advocates appeared :
G.M. Kothari, with A.G. Kothari, for petitioners.
A.R. Shinde, for respondent No. 1.
R.J. Kochar, for respondent No. 2.

Headnote:"The appellant did not acquire drink, but has acquired dried tea-leaves from which a drink can be made. No one sits down to eat tea and it is not accurate to say that anyone drinks tea. What on drinks, is, not the tea, but the water which has passed through the tea leaves so as to make an infusion which is known as tea."

       "Tea is not in itself a food in the sense that it is not nutritious that you cannot live on it, that it will not increase the amount of tissue in a Person as the drinking of milk Would food may he solid food or liquid food-it is not simply because it is a drink that tea is not a food, that is an entire mistake-supposing tea were capable of adding to the tissues as milk will do, then it would be quite right to call it simply a food. Tea appears to be nothing in the world but a stimulant".

       One does not know the context in which there observations were made by the learned Judge for Mr. Kothari bas produced before me only "Words and Phrases Judicially defined", Volume V, printed in 1945 at page 262 That apart, the excerpts indicate an unusually sophisticated view of the matter which is not applicable to the conditions prevailing in India. Be that as it may, the second except admits of tea being a stimulant and a refreshment covered by Section 2 (25) of the Shops Act, would cover a stimulant. Now it is not necessary that ever atom or fragment of a particular industry to which the Act is proposed to be mad. applicable, should have sectional representation so as to make the Committee or Sub-Committee representative. In any event, and, assuming the worst against the Government, it was not under an obligation to even constitute a Committee. Learned Counsel argues that Government was under an obligation to act reasonably. The tea shops in Greater Bombay constitute nearly l/3rd of the total number of hotel and eating houses. Their economics are totally different. To ignore so large a proportion of employers in a matter of vital concern to them was to act unreasonably and irrationally. The interests representating the employers in the Jain Committee had no acquaintance with the conditions prevailing amongst those who run tea shops. They had no care or concern for tea shops. The Government on as its own thought it necessary to take advice from representatives of guest houses eating houses and restaurants. The need for advice having been established by the appointment of such a Committee it amounted to an admission on the part of the Government that it required advice for fixation of minimum wages. That being the position it was not absolved from the responsibility to take advice from genuine representatives of tea shops. That two options were open to the Government under Section 5 (1) of the Act, was conceded. But responsible Government is expected to act in a responsible fashion, and thus viewed, the Governments decision to omit representatives of tea shops from the Committee vitiated the subsequent draft notification as also the impugned notification. Section 5 gives Government the option to constitute a Committee or invite objections to a proposal in the form of a notification setting out the minimum wages it proposes to impose. Either course may be adopted by the Government and in some cases there may be a mixture of both Petitioners submission that no representative of theirs was taken would not mean that there was no proper exercise of power under Section 5 (I) (a) of the Act. A representative specimen of the employers was taken and too fine a distinction cannot be made in such matters, for there would be no end to the c1amour for sectional interests, wherever it be possible to concede that all fragments should have a place in the Committee constituted to advise Government under Section 5 (1) (a) of the Act. Mr. Kothari argues that even it the State Government was free to dispense with the appointment of a Committee to advise it on the matter of fixation of minimum wages, it was not absolved of the obligation to consider the representations made against the draft notification by affected interests. The impugned notification was a word-to-word reproduction of the draft notification, showing that there had been no consideration of the objections lodged by amongst others the representatives of the tea shop owners of Greater Bombay. The impugned notification shows that all representations had been considered by the State Government. It is not necessary for the State Government to discuss the pros and cons of points taken in representations to establish ah application of mind. When the final notification recites that representations received had been considered, it will have to he accepted that such consideration had taken place and that the recital represents what really transpired.

       The next contention advanced by Mr. Kothari is that the notification does not cover tea shops. This, learned counsel tries to establish by first pointing to the great so he says difference between a tea shop and a restaurant or an eating house as set out in Section 2 (25) of the Shops Act. There is no distinction except in relation to the size of the establishment, the location thereof, the facilities provided and the Dumber and class of employees working in such establishments. A tea .hop is a smaller version of a restaurant or an eating place Next, learned Counsel referred to the absence of any category of employees working in a tea shop vis-a-vis those listed in the impugned notification. A tea maker and tea hays are included in the class of employees skilled semi-skilled and unskilled. Therefore, this would not be an indication that tea shops are outside the purview of the impugned notification.

       Article-14.

       See Minimum Wages Act, 1948 Section 5 (1) (a).

       MINIMUM WAGES ACT, 1948

       Section 5 (1) (a)-Constitution of India, Article 14-Notification by State Government-Minimum wages fixed for workers employed In residential hotel, restaurant or eating house as defined in Bombay shops and Establishments Act, 1948-Whether economic capacity of trade or industry can be taken into account in fixing minimum wages-Held-Economic capacity of trade of industry is of no consequence in fixing minimum wages-What alone is german, is wage required by employees to survive-No violation of article 14 of Constitution in Jumping together employees of teashops with employ- of residential hotels, restaurants or eating houses.

       Section 5 (1) (a), Schedule Part 1 & Part II-Minimum Wages (Maharashtra Amendment) Act, 1960-Part 1 of Schedule amended to Include residential hotels etc as defined In Bombay shops and Establishments Act 1948-Committee appointed for revision of minimum wages-Report submitted In 1983 Challenged by Owners of tea shops-Ground-No representative of persons running tea shop In the Committee-Held-Not necessary that every smallest Section of a particular industry to which Act proposed to be made applicable, should have sectional representative so as to make Committee representatives Even Constitution of Committee is at option of Government.

       Section 5 gives Government the option to constitute a Committee or invite objections to a proposal in the form of a notification setting out the minimum wages in proposes to impose. Either course may be adopted by the Government and is some cases there may be a mixture of both. Petitioners submission that no representative of theirs was taken would not mean that there was no proper exercise of power under Section 5 (1) (a) of the Act A representative specimen of the employers was taken and too fine a distinction cannot be made in such matters, for there would be no end to the clamour for sectional interests, whatever it be possible to concede that all fragments should have a place in the Committee constituted to advise Government under Section 5 (1) (a) of the Act.

       MINIMUM WAGES (MAHARASHTRA AMENDMENT) ACT, 1960 Part I of Schedule.

       See Minimum Wages Act, 1948

       Section 5 (1) (a), Schedule Part I and Part II.