IMPORTANT POINT
The Supervisory staff, who are part of the Management take appropriate action to ensure that those employees under them are paid the minimum wages. They become employers only vis-a-vis employee, which employee is in their charge; the former being the immediate supervisory staff. This cannot change the essential nature of their relationship with the management or the persons in ultimate charge of the affairs of the establishment. A supervisory staff also vis-a-vis their management is an employee. We also have to pertinently notice that the Parliament while enacting the M.W Act of 1948 had experience of enacting another welfare legislation , a more comprehensive one, The Industrial Dispute Act of 1947 The I.D. Act in its definition of workman excluded any person employed in a supervisory capacity drawing wages beyond a limit. Such an exclusion though could have been made; was consciously not made.

JUDGMENT :

K. VINOD CHANDRAN, J.

1. The writ petition impugn Ext.P7 order, rejecting the objections filed by the petitioner against the proposal made by Ext.P3 notification dated 28.07.2016, fixing the minimum wages of employees in private financial institutions, whom the petitioner Association represents. Though a final notification under Section 5(2) of the Minimum Wages Act, 1948 [for brevity, the M.W. Act] has not been issued, it would be automatic, if the order of rejection is upheld by this Court. We observe so to make it clear that there could be no further challenge against the notification as such, especially since the Government, by the rejection, decided to accept the proposal brought out by Ext.P3 notification; the challenge against which is considered by us here. Ordinarily after consideration of representations, the final notification is brought out. Here an order was necessitated since a consideration of the objections was directed by this Court.

2. Sri. P. Ramakrishnan, ably argued for the petitioner, who was supported by Sri. Ramdas appearing for the addl. 3rd respondent, who got impleaded on their own accord. Sri. K.V. Sohan, State Attorney, put forth contentions for the State supported by Sri. S. Krishnamoorthy, who appears for the 2nd respondent Employees' Association, who was impleaded by us.

3. Sri. Ramakrishnan first took us to the appointment of a Committee under Section 5(1)(a) of the M.W. Act, pursuant to which the notification at Ext.P3 has been brought out. It is his contention that none of the members of the Committee, constituted under the provision had any connection with the Non Banking Financial sector under which is covered the private financial institutions. Neither were the Non Banking Finance Companies [NBFCs] represented nor had the members appointed, even a remote connection with the business of finance. Reliance is placed on Ministry of Labour and Rehabilitation vs. Tiffin's Barytes Asbestos and Paints Ltd. (1985) 3 SCC 594 to urge the proposition that there should be a nexus between the persons appointed to represent the employers with the particular employment, for which minimum wages is prescribed. The proposals made by the Committee, which is in the nature of an advice or recommendation to the Government has been accepted in toto and the notification Exhibit P3 is a verbatim reproduction of the proposals of the Committee. The counter affidavit also indicates that the notification was issued on the advice of the Committee constituted. True, the objections have been considered by the Government, but however the petitioners lost an opportunity to proffer their views before the Committee. The Committee, if comprised of members having nexus to the financial sector would definitely have reached a different conclusion. The entire exercise has to be redone by appointing a Committee from the financial sector and any other sector, which the Government feels has a connection with financial sector.

4. In addition to that, the learned Counsel would take us through the various provisions of the M.W. Act to specifically challenge the prescriptions in Ext.P3 of service weightage, special allowance for extra duty and risk allowance, which, it is argued, is beyond the scope of the Government exercising powers under the M.W. Act. What is permissible is the prescription of a minimum wage adequate to have a decent living, which also has to take in many factors like health, education of children and so on and so forth, but not to the extent of prescribing other amounts, which would be the exclusive premise of the Management and representative unions to be agreed upon in a bilateral settlement. The decisions in Bidi, Bidi Leaves and Tobacco Merchants Association vs. State of Bombay, 1962 Supp. (1) SCR 381 and Hindustan Sanitaryware and Industries Ltd. vs. State of Haryana, AIR 2019 SC 2194, are relied on to canvas the proposition.

5. It is also pointed out that Clause (vii) and (viii) of Ext.P3, take in persons