Judgment:
Dharmadhikari, J.
1. On a difference of opinion between Bharucha and Vaze JJ the following question is referred to me for my opinion.
Whether the Notification dated 19th January 1985 issued under the provisions of the Minimum Wages Act, 1948 in respect of the employment in any hospital not run by a local authority, is vitiated by non-application of mind on the part of the 1st Respondent-Government of Maharashtra? It appears that one of the challenges to the impugned Notification was based upon the non-application of mind by the 1st Respondent in issuance of the Notification, principally to the recommendations of the Committee appointed as required by the Act, to advise in that behalf. Since the whole matter is argued before me afresh, I will prefer to deal with it independently.
2. The impugned Notification is dated 29th January 1985 and was issued to revise the minimum rates of wages payable to the employees in the hospital which are not run by any local authority. Entry No. 23 to the schedule to the Minimum Wages Act, 1948 (hereinafter called as the Act) reads as under:
'Employment in any hospital not falling under entry No. 6 in this schedule:
Explanations for the purpose of this entry, hospital means any institution for the reception and treatment of persons suffering from illness or mental incentive-ness any maternity home, and any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation, and includes clinics, dispensaries and out-patient departments maintained in connection with any such institution or home as aforesaid'.
3. Under Section 3 of the Act, the appropriate Government, in the present case the Respondent No. 1 Government of Maharashtra is empowered, to fix minimum rates of wages payable to employees in employments specified in the Schedule and in employments added to the schedule by Notifications under Section 27. Then come Sections 4 and 5 which read as under:-
'4. Minimum rate of wages : (1) Any minimum rate of wages fixed or revised by the appropriate Government in respect of scheduled employments under Section 3 may consist of :
(i) a basic rate wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate Government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the 'cost of living allowance')' or.
(ii)...
(iii) ...
(2)....
5. Procedure for fixing and revising minimum wages: (1) In fixing minimum rates of wages in respect of any scheduled employment for the first time under this Act or in revising minimum rates of wages so fixed, the appropriate Government shall either:
(a) appoint as many committees and subcommittees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision, as the case may be, or
(b) by notification in the Official Gazette, publish its proposals for the information of persons likely to be affected thereby and specify a date, not less than two months, from the date of the notification, on which the proposals will be taken into consideration.
(2) After considering the advice of the committee or committees, appointed under Clause (a) of Sub-section (1), or as the case may be, all representations received by it before the date specified in the notification under Clause (b) of that sub-section, the appropriate Government shall, by notification in the Official Gazette, fix, or, as the case may be, revise the minimum rates of wages in respect of each scheduled employment, and unless such notification otherwise provides, it shall come into force on the expiry of three months from the date of its issue:
Provided that where the appropriate Government proposes to revise the minimum rates of wages by the mode specified in Clause (b) of Sub-section (1), the appropriate Government shall consult the Advisory Board also'.
Section 9 provides for composition of Committees. In 1972-1973 and 1975 Notifications were issued fixing the rates of minimum wages for the employees of the hospitals falling under entry No. 23 for the Greater Bombay. Vidarbha, Aurangabad and Pune Divisions. Thereafter on 1st of September 1981 Government of Maharashtra appointed a Committee to advise it in the matter of revision of minimum rates of wages payable to the employees working in the hospitals covered by the said entry. The Committee submitted its report on 28th of December 1983 and on 29th of January 1985 the impugned Notification was issued. By the impugned Notification the rates of minimum wages are fixed at the rates other than those recommended by the Committee in its report. It is this revision of rate of minimum wages which was challenged in these two writ petitions. The principal contention raised on behalf of the Petitioners was that the impugned Notification is vi-tiated by total non-application of mind on the part of Respondent No. 1 to the recommendations of the report of the Committee. The impugned Notification reads as under.
''Notification
Industries, Energy and Labour Department, Mantralaya, Bombay 400 032. Dated the 29th January, 1985.
Minimum Wages Act, 1948. No. MWA-5284/5751/Lab-7 whereas in pursuance of the provisions of Clause (a) of Sub-section (1) of Section 5 of the Minimum Wages Act, 1948 (XI of 1948), in its application to the State of Maharashtra (hereinafter referred to as 'the said Act'). The Government of Maharashtra by Government Resolution, Industries, Energy and Labour Department, No. MWA. 5281/4230/Lab-7, dated the 1st September 1981, appointed a Committee to hold enquiries into the conditions prevailing in the employment in any hospital not falling under entry 6 in Part I of the Schedule to the said Act (hereinafter referred to as 'the said Scheduled Employment') in the State of Maharashtra and to advise Government in the matter of revision of the minimum rates of wages fixed by Government Notifications, Industries, Energy and Labour Department. No. (i) MWA-5871/130283/Lab-III-A, dated the 19th July, 1972 (Greater Bombay), (ii) MWA-5871/(Vidarbha) Lab-III-A dated the 23rd May, 1973 (Vidarbha Region), (iii) MWA-5872, Marath-wada/190208/Lab-III, dated the 15th September 1973 (Aurangabad Division) and (iv) MWA/5275/390-I-A/Lab-7, dated the 24th September 1975 (Pune Division) (hereinafter referred to as 'the said Notifications') and for fixation of the minimum rates of wages in the remaining areas of the State of Maharashtra, not included in the aforesaid Notifications in respect of employees employed in the said Scheduled employment;
And whereas, the said committee has submitted its report to the Government of Maharashtra.
Now, therefore, in exercise of the powers conferred by Clause (5) of Sub-section (1) of Section 3, read with Sub-section (2) of Section 5 of the said Act, the Government of Maharashtra after considering the advice of the said committee, hereby revises and fixes with effect from 29th January, 1985, the minimum rates of wages in respect of the employees employed in the said scheduled employment consisting of:
(a) the basic rates of wages inclusive of cash value of concessions, if any, as set out in column 3 of the First Schedule hereto in respect of each zone specified in the same column for the class of employees mentioned against them in column 2 thereof, employed in the said scheduled employment in each zone, and
(b) a special allowance at the rate is to be adjusted as provided in the Appendix
hereto'....'.
From the bare reading of this notification it is quite clear that it was issued by the Government of Maharashtra after considering the advice given by the Committee. In the affidavit filed on behalf of the Respondents, it was submitted that the recommendations made by the Committee were duly considered and only thereafter the impugned notification was issued. In a further affidavit filed on behalf of the Respondents it is reiterated that the impugned notification was issued after carefully considering the recommendations of the Committee. It was also stated therein that the reasons for the Government decision are recorded at its appropriate place. The note recording the reasons for the Government's decision was also produced during the course of hearing. For properly appreciating the controversy raised before me, it will be worthwhile to make a reference and to reproduce the said note in extenso.:
'Discussion with C of L & Dy. Secy. (L)...
Sd/-
10.12.84
IE & I.D.
Resubmitted with reference to M.S. (L) (Shri K)'s instructions dated 10.12.1984.
The proposed discussion was arranged on 12.12.1984, but since the Commissioner of Labour was out of Bombay, the same could not take place on that day. Thereafter discussion could not be held as M-S.(L) could not come to Bombay due to Lok Sabha Election. However, in the meanwhile Dy. Commissioner of Labour (Shri Basak-hetre) discussed the matter with M.S.(L) (Shri K) on telephone when the latter instructed to prepare a comparative statement showing the position regarding minimum wages in Hospitals and Dispensaries. Accordingly Dy. Commissioner of Labour has prepared a comparative statement giving necessary details as desired by M.S.(L). A copy of Govt. Notification dated 1.12.1984 revising the minimum rates of wages in respect of employees employed in dispensaries is placed at page 49-52/Cs. It is for consideration of Govt. which of the alternatives suggested in the comparative statement mentioned above may be adopted while fixing revised minimum rates of wages in respect of employees employed in hospitals.
Incidentally while deciding Writ Petition No. 644/1983, the Nagpur High Court has observed that the Govt. would do well in finalising the report of the Minimum Wages Committee for Hospitals and dispensaries by the end of December 1984, In view of the above position the Asstt. Govt. Pleader, Nagpur is separately being requested to move the High Court to grant extension of time limit by the fortnight to enable Govt. to take a decision in the matter.
sd/-D.S.( R)
An application was moved by the Asstt. Govt. Pleader, Nagpur before the Bench of Nagpur of the High Court of Judicature, Bombay, for extension of time. I am told by the Asstt. Govt. Pleader that one month's more time has been granted. I have studied the file and the issues involved.
As per the observations of the High Court in Writ Petition No. 1977 of 1983 in respect of the disparity in the minimum rates of wages in the two different scheduled employments, i.e. Canteens and Hotels, it 'will not be proper to have such difference in the minimum rates of wages fixed for employees in dispensaries, vide Notification, dated 1.12.1984 and those in the hospitals. The activities and nature of duties of employees working in dispensaries and hospitals is no doubt identical and, therefore, it would not be desirable to fix the minimum wages for employees in the hospitals at lower rates than fixed for dispensaries. In case there is disparity, the same will not stand to judicial scrutiny.
I am, therefore, of the view that the same rates of wages, including special allowances, for different categories of employees and for different zones, as fixed for employees in dispensaries as per Notification of 1.12.1984 by fixed for employees employed in hospitals, also, and the same be made effective from 26th January, 1985.
Sd/-
Minister of State for Law.
Please see the letter dt. 17.1.1985 from the Commr. of Labour regarding draft of Notification to be issued for revision of Minimum Rates of Wages of the employees employed in Hospitals.
He has submitted a revised draft of Notification and has stated that the various suggestions including suggestions from UD, PHD have been taken into consideration. Considering the earlier trend whereby Notification in respect of Hotel etc. was challenged in High Court, it is desirable to keep the Minimum Rates of Wages in Hospitals as far as possible on level with those in Dispensaries. The zoning pattern has been changed in order to make it comparable with Zoning pattern in dispensaries. Slightly higher wages have been recommended for
R.M.O. and Matron in highly skilled category. He has requested to evaluate the draft Notification at Government Level.
It is proposed that the draft notification submitted by the Commissioner of Labour with slight changes may be approved.
The draft Notification put on P.101-110/C if approved will be issued after consultation with L & J.D.
sd/-........'
4. It appears that thereafter the draft Notification was duly approved by the Government and came to be issued. Shri Shrikrishna, learned Counsel appearing for the Petitioners contended before me that the impugned notification is vitiated by total non-application of mind to the recommendations of the appropriate Committee. When a committee is constituted by the Government for advising it for the purpose of fixing and revising the minimum rates of wages, the recommendations of the said committee deserve utmost respect. Giving a total go-by to the recommendations made by the concerned committee and revising the minimum rates of wages solely on the basis of wages fixed for the employees working in the dispensaries vide notification dated 1st December 1984, amounts to total non-application of mind to the recommendations made by the committee constituted for the purpose of revision of minimum rates of wages for the employees working in the hospital, covered by entry No. 23. A separate committee for advising the revision and fixation of minimum rates, of wages so far as the employees working in the dispensaries are concerned, was constituted on 5.3.1982 and it had submitted its report on 15.1.1984 and a final notification fixing the rates of wages for the employees working in the dispensary was issued on 1st December 1984. So far as the revision of minimum rates of wages qua employees working in the hospitals covered by entry No. 23 is concerned, the committee was constituted on 1st of September, 1981. It submitted its report on 20.12.1983 and final notification came to be issued on 29.1.1985.
5. According to the learned counsel, there are two different entries in the schedule for these two distinct employments. So far as the dispensaries are concerned, there is an indpendent entry vide entry No. 40. At no point of time rates of minimum wages in these two employments were identical nor there was any maferial before the Government or the Hon'ble Minister to show that the nature of work carried out by the employees in these two distinct employments was similar. Even otherwise the nature of duties of employees working in the dispensaries are not similar to one working in the hospital, nor the nature of the employments is identical. He also contended that the reliance placed by the respondent No. 1 on the decision of Pendse J in O.O.C.J. Writ Petition No. 1977 of 1983- Hotel Mazdoor Sabha v. State of Maharashtra decided on 11th October 1984 is wholly unwarranted, because that was a case where the learned Judge came to the conclusion that there was hardly any difference between the employees working in the hotel industry and those employed in Clubs and Canteens. He also found that in the year 1976 the State Government extended the provisions of the Notification applicable to the employees in the hotel and restaurant Industry to the employees in the canteen and clubs. A comparative statement was filed before the learned Judge in the said proceedings and in view of the said material, the learned Judge held that the difference made in fixing different minimum rates of wages for these employments was wholly uncalled for. Such is not the case in the present case. According to Shri Shrikrishna there was no material before the State Government indicating that the nature of the duties of the employees working in the dispensaries or in the hospital were similar. Reports of the two committees were also different and distinct and hence on the basis of the notification issued for fixing the minimum rates of wages for the employees working in the dispensaries the State Government could not have fixed the same minimum rates of wages for the employees in the hospital.
6. Though at the first blush there appears to be some substance in the contentions raised by Shri Shrikrishna, in my opinion the said contentions deserve to be rejected. In this context it cannot be forgotten that the report of the Minimum Wages (revision and fixation) Committee for employment in any hospital not falling under entry No. 6 of the Schedule, was before the Government. So also the report of the Committee constituted qua entry No. 40 namely the employment in any dispensary not being dispensaries in any hospital tailing under entry No. 6 or 23 in the schedule. From the notes produced during the course of hearing and referred to hereinabove, it is quite clear that a comparative statement giving the necessary details was also prepared and placed before the Hon'ble Minister. A Writ Petition was filed before the Nagpur Bench of this Court being Writ Petition No. 644 of 1983 wherein the High Court had observed that the Government would do well in finalising the report of the minimum wages committee of hospitals and dispensaries by the end of December, 1984. Further one month's time was granted by the Nagpur Bench for this purpose. The Hon'ble Minister has also made a reference to the observations made by Pendse J. in Writ Petition No. 1977 of 1983. The reports of both the Committees, are also produced before me.
7. Many a time the nature of duties is implicit in the designation or description of the post itself. Sometimes it is a matter of common knowledge. It is not shown that the nature of the duties carried out by the employees working in dispensaries, holding same or similar posts, is so dissimilar, that it is not comparable with the employees working in the hospitals, It cannot be forgotten that in this case we are dealing with fixation of minimum wages. It is by now well settled that minimum wages is a wage which in any event must be paid, irrespective of the extent of profits, the financial condition of establishment or availability of workmen on lower wages. This minimum wage is independent of the kind of industry and applies to all alike, big or small. It sets the lowest limit below which, wages cannot be allowed to sink in all humanity. (See : : (1967)IILLJ55SC Kamani Metals & Alloys Ltd. v. Their Workmen) (It's main object is to prevent sweated labour as well as exploitation of unorganised labour) The Supreme Court further held in Sanjit Roy v. State of Rajasthan : (1983)ILLJ220SC , that even a provision of law which permits payment of less than minimum wage to workmen, is invalid as offending the provision of Article 23 of the Constitution. The object of the Act as well as of fixing minimum wages is also to maintain industrial peace and harmony. Therefore, if the Government took into consideration the minimum wage fixed for dispensaries which employed the employees, similar to those employed by the hospitals, it cannot be held that the said consideration was irrelevant).
8. It cannot also be said that the report submitted by the Committee constituted for advising the revision and fixation of the minimum rates of wages for the dispensaries was not relevant for deciding the question of revising and fixing the minimum rates of wages for the employees working in the hospitals covered by entry No. 23. If entry Nos. 23 and 40 are read together, to some extent they are overlapping. In this context a reference could usefully be made to the views of the employers placed before the committee constituted for the revision and fixation of minimum rates of wages for the employment in the hospitals. While putting up their grievances in the matter of revision of rates of wages a contention was raised on behalf of the employers that the rates fixed were unduly in excess of the rates fixed in other employment. Therefore a comparison between the rates of wages fixed for the hospital employees and the rates of wages fixed for other employment, was brought in service, by the employers themselves. It cannot also be forgotten that the committee constituted under the Act can only tender advice, which is not binding on the Government while fixing the minimum rates of wages or revising it. Though the Government is expected, particularly in the present democratic set up, to take that advice seriously into consideration and act on it, but it is not bound to do so (see State of Andhra Pradesh v. Narayana Velu Bidi . and Ors. : : (1973)ILLJ476SC . From the very entries in the schedule it is clear that entry No. 40 itself contemplates that there can be a dispensary in the hospital also. If this is so then while fixing the minimum rates of wages for the employees working in the hospitals, minimum rates of wages fixed for the employees working in the dispensaries covered by entry No. 40, is taken into consideration, it cannot be said that the fixation is based on an extraneous consideration. As a matter of fact from the note produced before me it is quite clear that after considering the comparative statement the Government thought it desirable to keep the minimum rates of wages in hospitals as far as possible on level with those in dispensaries. Even the zoning pattern has been changed in order to make it comparable with zoning pattern in dispensaries. Slightly higher wages have been recommended for R.M.O. and Matron in highly skilled category. This itself shows that after applying its mind to the reports of both the committees and considering the nature of the employment in the dispensaries and hospitals the minimum rates of wages came to be fixed for the employees working in the hospitals. If the reasons recorded by the State Government in the note produced before the court are read together, it is quite obvious that after applying its mind to the report of the committee and considering the principles of law laid down by Pendse, J. in Writ Petition No. 1977 of 1983, the impugned Notification came to be issued by the State Government. Only because there are two distinct entries in the schedule for these two types of employments, it cannot be held that the minimum rates of wages fixed for one of them cannot be taken into consideration while fixing the minimum rates of wages for the employment covered by another entry. As a matter of fact the wage scales prevailing in a comparable industry within a region, are relevant even for fixing the minimum rates of wages. Recourse to this principle is taken to avoid unfair competition and industrial unrest. The main object obviously is that in comparable units as far as possible the wage structure should not differ widely. The Notification issued under the Minimum Wages Act for fixing the minimum rates of wages cannot be compared with a judgment of the Court. (If from the material placed on record it is apparent that the report of the concerned committee was duly considered by the State Government before issuing the notification, then it cannot be said that the notification is vitiated by total non-application of mind on the part of the State Government, more so when the notification itself states that, the rates were revised after considering the advice of the said Committee.) Therefore, I do not find any substance in the contention raised by Shri Shrikrishna in that behalf.
9. In this context the observations of the Supreme Court in Ministry of Labour & Rehabilitation v Barytes Asbestoes & Paints Ltd. : (1985) 2 LLJ 412 are also pertinent, wherein the Supreme Court has observed that:
'We also wish to emphasise that notifications fixing minimum wages are not to be lightly interfered with under Article 226 of the Constitution on the ground of some irregularities in the constitution of the committee or in the procedure adopted by the committee. It must be remembered that the committee acts only as a recommendatory body and the final notification fixing minimum wages has to be made by the Government. A notification fixing minimum wages, in a country where wages are already minimal should not be interfered with under Article 226 of the Constitution except on the most substantial of grounds. The legislation is a social welfare legislation undertaken to further the Directive Principles of State Policy and action taken pursuant to it cannot be struck down on mere technicalities'
Though the above decision of the Supreme Court was rendered on the question relating to the composition of the Advisory Board under Section 9 of the Act, the circumstances under which powers under Article 226 of the Constitution could be exercised, have been explained by the Supreme Court in the said decision. Therefore, in any case this is not a fit case wherein any interference is called for in the writ jurisdiction of this Court with the impugned Notification on the ground that it is vitiated by non-application of mind.
10, Therefore, I answer the question posed in the negative holding that the impugned Notification is not vitiated by non-application of mind on the part of the Respondent No. 1-State of Maharashtra. The papers be now placed before the appropriate Bench for further orders.