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HIGH COURT OF BOMBAY
KOTVAL, WAGLE, JJ.
Ramkrishna Ramnath, Nagpur
Versus
State of Maharashtra
Special Civil Appln. No. 317 of 1962
Decided On : 10-04-1963
MINIMUM WAGES ACT, 1948 - Fixation of minimum wages - Consultation with Advisory Board - Constitution of Advisory Board - Independent persons - Government servants - Whether can be appointed as independent persons - Irregularities in the constitution of Advisory Board - Whether vitiate the notification fixing minimum wages - Specification of date for taking proposals into consideration - Whether notification should specify a date or a period - Fixation of minimum wages for a part of the State - Whether permissible.
Fact of the Case:
The petitioner challenged a notification issued under Section 5 of the Minimum Wages Act, 1948, revising the minimum rates of wages in respect of employment in tobacco (including bidi making) manufactory in the Vidarbha region of the State of Bombay. The challenge was on the grounds that the notification was issued without compliance with the provisions of Section 5 read with Sections 7, 8 and 9 of the Act as to consultation by the State Government with an Advisory Board to be set up, that the notification in the Official Gazette publishing its proposals for the information of the persons likely to be affected by the revision of minimum rates of wages did not comply with Section 5(b) of the Act, and that the wage structure as revised by the impugned notification should have been for the entire State and not merely for the Vidarbha area of the State of Bombay as mentioned in the impugned notification.
Finding of the Court:
The Court held that the notification was not bad for any of the reasons alleged by the petitioner. It held that the State Government was bound to consult the Advisory Board before revising the minimum rates of wages, but the attack in the instant case was not that there was no consultation by Government with the Advisory Board. The attack was that the constitution and composition of the Advisory Board was bad and not in accordance with law and the error was such that it must be held that there was no Board and no consultation at all under law and consequently the notification issued was bad. The Court further held that the provisions of the Minimum Wages Act did not prescribe that a Government servant could not be a member of the Advisory Board or that if he was a member he could not be considered to be an "independent person" within the meaning of Section 9. The Court also held that the notification issued by the State Government specifying a date for taking the proposals into consideration was not bad under the provisions of Section 5(1)(b) or any other provision relating to the issuance of that notification. Lastly, the Court held that the State Government had the power to apply the revised rates of wages only to a part of the State when it was reviewing and revising the minimum rates of wages once fixed for the first time and were only being reviewed and revised.
Issues: 1. Whether the notification was issued without compliance with the provisions of Section 5 read with Sections 7, 8 and 9 of the Minimum Wages Act, 1948, as to consultation by the State Government with an Advisory Board to be set up? 2. Whether the notification in the Official Gazette publishing its proposals for the information of the persons likely to be affected by the revision of minimum rates of wages complied with Section 5(b) of the Act? 3. Whether the wage structure as revised by the impugned notification should have been for the entire State and not merely for the Vidarbha area of the State of Bombay as mentioned in the impugned notification?
Ratio Decidendi: 1. The State Government was bound to consult the Advisory Board before revising the minimum rates of wages, but the attack in the instant case was not that there was no consultation by Government with the Advisory Board. The attack was that the constitution and composition of the Advisory Board was bad and not in accordance with law and the error was such that it must be held that there was no Board and no consultation at all under law and consequently the notification issued was bad. 2. The provisions of the Minimum Wages Act did not prescribe that a Government servant could not be a member of the Advisory Board or that if he was a member he could not be considered to be an "independent person" within the meaning of Section 9. 3. The notification issued by the State Government specifying a date for taking the proposals into consideration was not bad under the provisions of Section 5(1)(b) or any other provision relating to the issuance of that notification. 4. The State Government had the power to apply the revised rates of wages only to a part of the State when it was reviewing and revising the minimum rates of wages once fixed for the first time and were only being reviewed and revised.
Final Decision: The petition was dismissed with costs.
KOTVAL, J. :- In this petition there is challenged a notification No. M.W.A. 1557-J, dated the 11th June 1958 issued under Section 5 of the Minimum Wages Act, 1948 (No. 11 of 1948), by the then Government of Bombay. The notification is at annexure-D and it has had an unenviable record of litigation arising from it. The notification was as follows :
"No. M.W.A. 1557-J. In exercise of the powers conferred by Sub-Section (2) of Section 5 read with clause (b) of Sub-Section (1) of that section of the Minimum Wages Act, 1948 (11 of 1948), and after consulting the Advisory Board and in supersession of the former Government of Madhya Pradesh Labour Department Notification No. 564-451-XXIII, dated the 23rd February 1956, the Government of Bombay hereby revise the minimum rates of wages in respect of the employment in any tobacco (including bidi making) manufactory in the Vidarbha region of the State of Bombay as mentioned in the Schedule hereto annexed and directs that this notification shall come into force with effect from 1st July 1958.
Schedule
Subject to the other provisions of this Schedule, the revised minimum rates of wages payable to employees per thousand bidis (when leaves are supplied by the employer) shall be as follows :
Area Revised rate in Rs
(i) Nagpur District 1.69
(ii) Bhandara District 1.62
(iii) Chanda, Akola, Buldhana, Yeotmal, Amraoti and Wardha District. 1.56
2. For all bidis in which 7 chataks or more of tobacco mixture is used and for those bidis which are known as Hatnakhum bidis, there shall be an increase of 12 Naye Paise per 1000 bidis in the rates mentioned above in alt the areas.
3. It shall be within the discretion of the employer to decide which are chhat bidis or bad bidis, up to 5 per cent, of the bidis, prepared by the employee. If the employer decides that any bidis are chhat or bad the chhat or bad bidis up to 5 per cent, shall be destroyed forthwith by the employee and whatever tobacco is recovered from them shall be retained by the employer. If, however, the employer wants to retain these chhst or bad bidis, he shall pay full wages for the same to the employee.
4. If chhat or bad bidis are more than 5 per cent, but less than 10 per cent, and if there is any dispute between the employer and the employee as to whether the chhat or bad bidis is done properly or not equal number of representatives of the employer and the employees shall inspect (sic.) the chhat is done properly or not. If there is any difference of opinion among the representatives of the two sides, the majority opinion shall prevail. If the opinion is equally divided and the employer wants to retain the chhat bidis, he shall pay wages for chhat bidis between 5 per cent to 10 per cent at half the rates fixed above. If the employer does not want to retain these bidis, the employee shall destroy them forthwith.
5. The employer shall nominate his representatives and the employees shall elect their representatives.
6. In the case of chhat above 10 per cent the employee shall be entitled to full wages. It shall however be open to the employer to take suitable action against the employee if the chhat is more than 10 per cent for 6 continuous working days in a calendar month.
7. The chhat shall be made once in a day only at any premises within a distance of not more than 2 miles from the premises where bidis are manufactured.
Explanation : For the purposes of this Schedule the expression employer includes his thekedar, contractor or agent as the case may be."
(2) Before we deal with the present challenge to the notification it is necessary to state a few facts as to its past history in Courts of law. That will tend to show what part of the notification still survives and the nature of the present attack upon it.
(3) After the notification was issued, it first came to be challenged before this Court in. Bidi, Bidi Leaves arm Tobacco Merchants Association, Gondia v. State of Bombay, 61 Bom LR 890, and a Full Bench of this Court by a majority
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