The State Government is entitled to revise the minimum rate of wages retrospectively as provided under S.5(2) of the Minimum Wages Act, and failure to fix or revise minimum wages constitutes a breach of fundamental rights under Art.23 of the Constitution of India.

P. Shanmugam, J.

The Association of Planters of Kerala and a member of the said Association have filed the Original Petition seeking for a direction to direct the respondent to withdraw Ext. P2 notification dt.19.11.1995. The said notification is a draft preliminary notification issued under CI, (b) of sub S.(1) of S.5 of the Minimum Wages Act, 1948 (for short 'the act). The petitioners have also prayed for a writ of prohibition to prohibit the Slate Govt. from taking any further steps pursuant to the said notification.

2. The facts of the case briefly stated are as follows: The Govt. of Kerala issued a draft preliminary notification containing proposals regarding the revision of minimum wages payable to the classes of employees employed in Tea, Rubber, Coffee and Cardamom' plantations in the State with effect from 1.4.1995. It is stated that approximately four lakhs of employees employed in various plantations in Kerala, The last wage revision was made in the year 1988. As per S.3 of the Act, the appropriate Govt. is required to review the minimum rates of wages at intervals not exceeding five years. Hence, a proposal in the form of draft preliminary notification dt.18.11.95 was issued for the information of all persons who are likely to be affected calling upon them to submit their objections and suggestions on or before 20.1.1996. In pursuance to the said notification, the petitioners have tiled their objections on 16.1.1996. The Govt. is yet to issue the final notification. Contending that the said notification suffers from jurisdictional error apparent on the face of the records, the above writ petition is filed.

3. Learned Senior Counsel appearing on behalf of the petitioners submits that the issuance of Ext. P2 notification in exercise of jurisdiction conferred on the State as a delegate is ultra vires of the provisions of the Act and Rules, arbitrary, unreasonable and against public interest and violative of Art.14 and 19(1)(g) of the Constitution of India. In reference to Ext. P2 notification he formulates the following objections: viz:

(i) giving retrospective effect from 1.4.95 to the minimum rates of wages;

(ii) fixation of the minimum rate for over-kilos over and above the standard output and incorporate the same as part of minimum wages;

(iii) fixation of service weightage and job differentials for workers.

4. In support of these contentions he relied on the decisions in M/s. T.P. Sokkalal Ramsait v. Government of Madras (1969(2) MLJ 366), Gairkhatta Tea Co. v. State of West Bengal (AIR 1961 CnlcM&420), Narottamdas v. P.B. Gowarikar (AIR 1961 M.P.182) zenith Mahendra Chandra v. State (AIR 1971 Tri. 32) and prays for the relief sought for in the Original Petition. I heard counsel and gone through the decisions.

5. S.3 of the Act provides for the fixing of minimum rates of wages. Every State Govt. is directed to review the rates that had been fixed at such intervals not exceeding five years. S.5 of the Act outlines the procedure for fixing and revising minimum wages. Before revising the minimum rates of wages the State Govt. has to by notification publish the proposals (draft preliminary notification) for the information of persons likely to be affected thereby and after considering the objections the State Govt. shall revise the minimum rates of wages (by final notification). The said final notification, unless otherwise provides, shall come into force on the expiry of 3 months from the date of its issue.

6. The argument on behalf of the petitioners is that if the proposal, viz, the draft preliminary notification, proposing to give effect to the revision from 1.4.1995 is approved and a final notification is issued, it would be ultra vires of S.5 of the Act. Therefore, they are questioning the proposal (draft notification itself) inasmuch as the Govt. cannot propose to revise the minimum rates of wages from an anterior date.

7. The petitioners have filed their objection dt.16.1.1996 raising all these issues. The