1. All these 28 Writ Petitions are directed against (1) Government of Maharashtra Order, Industries Energy and Labour Department, No. ADV 5781/1652/LAB-2 dated August 12, 1981 referring for adjudication of certain disputes under the Industrial Disputes Act, 1947 to the Industrial Tribunal, Maharashtra, and (2) the Award dated November 12, 1986 passed by the Industrial Tribunal (S. A. Patil) Maharashtra, Bombay in Reference (I.T.) No. 225 of 1981.
2. We are concerned with the road transport industry i.e. business of transport of goods by trucks or lorries. The Government of Maharashtra had already fixed minimum rates of wages for workers engaged in the transport industry (See para 8 of the impugned award). Respondent No. 3 (All India Transport Employees' Association) is a Trade Union, registered under the Trade Unions Act, whose members are some of the workers of some of the units of the road transport industry covered by this writ petition. The third respondent, on behalf of the workers, made certain demands to the management of a number of units of the road transport industry. This was followed by the usual conciliation proceedings under the Industrial Disputes Act. These failed and a report to that effect was made by the Conciliation Officer to Government of Maharashtra. Thereafter, the Government of Maharashtra by Order NO. ADV-5781/1652/LAB-2 dated August 12, 1981, referred the dispute to the Tribunal under the provisions of the Industrial Disputes Act. The dispute related to 10 demands but as the present challenge is to the award of the Tribunal regarding only three demands, namely Demand Nos. 1, 4 and 9, these alone may by reproduced and they are as follows :
'Demand No. 1Wages scales RupeesGrade-I 800-50-1200-75-1500Grade-II 600-40-760-60-1000Grade-III 450-30-570-55-790Grade-IV 325-25-425-35-565 This wages scales should be at the Consumer's Price Indian for Bombay at 200.1060/61 series.
Demand No. 4 : Dearness Allowance
The employees should be paid dearness allowance at the rate of Rs. 1.30 per point rise in Consumer Price Index Number over 200 points.
..............
Demand No. 9 : Transfer
No employee should be transferred from Thane or Bombay Branch. If it is essential, the transfer should be effected in consultation with the All India Transport Employees Association.
..................'
In respect of Demand Nos. 1 and 4 the Tribunal passed award as follows :
'...... I award that the employer involved in this Reference shall pay wages not less than the rate of minimum wages specified below :
Grade I Rs. 410/-Grade II Rs. 360/-Grade III Rs. 270/- These minimum rates of wages shall be payable with effect from January 1, 1985. The workmen shall be entitled to get in addition special allowance per month declared by the Government, from time to time under the Minimum Wages Act for employees working in Shops and Commercial Establishments, Establishments in Bombay/Thane. This special allowance was at the rate of Rs. 387.90 for the period January 1, 1985 to June 30, 1985 and Rs. 395.30 for the period from July 1, 1985 to December 31, 1985.
It is further declared and awarded that for the period from January 1, 1982 till December 31, 1984, all the employees involved in the reference, shall be entitled to receive minimum wages and special allowances payable to the workmen employed in shops and Commercial Establishments, fixed and declared by the Government from time to time in respect of the employment in Shops and Commercial Establishments under the provisions of the Minimum Wages Act, 1948.
It is clarified that those of the workmen who are getting or who have received wages during the period form January 1, 1982 at a rate higher than the minimum awarded herein shall continue to receive the same.
It is clarified that the purpose of this Award is to grant minimum wages and some other minimum benefits to those of the employees who are not getting even these minimum benefits. This Award cannot be interpreted to affect or in any way curtail the right of those of the workmen who are already getting better wages and other benefits including higher benefits than awarded. For example, M/s. Prakash Road Lines (Annexure A/1) is giving 11 paid holidays in a year to their employees and this higher benefit shall continue to be enjoyed by their workmen. Again this Award shall not affect the right of the workmen to secure better terms and conditions in their services by raising industrial disputes against their respective employers.
In order to avoid any confusion and communication is claiming difference in wages under this Award or for ascertaining that the workers are not paid less than the minimum wages plus special allowance granted by this Award, I give some guidelines.
Wages actually received shall not include Tea Allowance in case Tea Allowance is paid but it shall include receipt of cash benefits such as House Rent Allowance, Travelling Allowance and bonus if the concerned employer was/is not liable to pay bonus under the provisions of the Payment of Bonus Act. If the wages actually received fall short of the minimum wages awarded, the concerned workmen would be entitled to claim the difference and the concerned employer shall be bound to pay the amount of difference. Wages awarded means wages inclusive of special allowance granted w.e.f. January 1, 1985 and granted w.e.f. January 1, 1982 for the purpose of claiming the difference ....'
In respect of Demand No. 9 the Tribunal passed Award as follows :
'I direct that no employer shall transfer any of the employees falling in Grades II and III outside the Bombay and/or Thane to any other place except with their consent ....'
3. Regarding transfer (Demand No. 9), the Tribunal disposed of this point in one single paragraph of its judgment (para 14). That paragraph consists of only three sentences and therefore, the entire paragraph may be reproduced here and the same reads as follows :
14. Demand No. 9 is about transfer. The Union demands that no employee should be transferred from Bombay and Thane to any other place. Considering the nature of the industry and the status of the workmen, I direct that no employer shall transfer any of the employees, falling in Grades II and III outside Bombay and or Thane to any other place except with their consent.'
It will be seen that no reasons at all, is given for passing the order regarding transfer. It was necessary for the Tribunal to have considered each case on its merits. While doing that, it should have considered whether any of the employees, and if so which of them, had accepted the employment knowing fully well that their services are liable to be transferred., whether the agreement between the employer and the employee contained any specific terms regarding transfer, and if so whether corresponding benefits were given to the employees, etc. It is true that the Tribunal had the jurisdiction to modify the terms of any such agreement but these should not have been disregarded or omitted to be taken into consideration as relevant factors in the process of reasoning for the order which the Tribunal would then proceed to pass. The Tribunal should have allowed the parties to lead evidence on the question of transfer and then only, after considering all the relevant factors on that point, the Tribunal should have decided that question and passed an Award accordingly having stated the reasons. Under the circumstances the impugned award requires to be struck down so far as the question of transfer is concerned or in other words in respect of Demand No. 9
4. Now I deal with the Demand Nos. 1 and 4 which both together constitute the wage packet which the employee would get under the Award. The Tribunal observed that 'there would be no difficulty in fixing minimum rates of wages so that no employer shall pay less than these minimum rates of wages fixed for Grades I, II and III'. Having said this the Tribunal proceeded to fix minimum rates of wages although, as stated by the Tribunal itself in para 8 of its judgment, the Government of Maharashtra had already fixed minimum rates of wages for workers engaged in the transport industry. The learned Counsel for the employers urged that once minimum rates of wages had been fixed by the appropriate Government under the Minimum Wages Act, 1948, the Tribunal thereafter had no jurisdiction to fix minimum rates of wages.
5. Section 3 of the Minimum Wages Act, 1948, deals with 'Fixing of minimum rates of wages'. It says that the fixing of minimum rates of wages shall be done by the appropriate Government ('appropriate Government' is defined in item (b) of Section 2 of the Minimum Wages Act). Section 3 begins thus :
'3. Fixing of minimum rates of wages .... (1) The appropriate Government shall, in the manner hereinafter provided -
(a) fix the minimum rates of wages payable to employees employed in an employment specified in Part I or Part II of the Schedule and in an employment added to either part by notification under Section 27 :
.................
Sub-section (1) of Section 4 of the Minimum Wages Act may also be read and it is as follows :
'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 of 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) a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates, where so authorised; or
(iii) an all inclusive rate allowing for the basic rate, the cost of living allowance and the case value of the concession, if any.'
Section 5 of the Minimum Wages Act gives the procedure for fixing and revising minimum wages. That reads as follows :
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 may committees and sub-committees 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 expire 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 12 of the Minimum Wages Act provides that 'where in respect of any scheduled employment a notification under Section 5 is in force, the employer shall pay to every employment a notification under Section 5 is in force the employer shall pay to every employee engaged in a scheduled employment under him, wages at a rate not less than the minimum rates of wages fixed by such notification for that class of employees in that employment without any deductions except as may be authorised within such time and subject to such conditions as may be prescribed.'If there is any claim arising out of payment of less than the minimum rates of wages then such a claim has to be made before 'the Authority' referred to in Section 20 of the Minimum Wages Act. Section 22 of the Minimum Wages Act lays down that any employer who pays to any employer who pays to any employee less than the minimum rates of wages fixed for that employee's class of work shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both.
6. When there is an industrial dispute relating to wages and that dispute is referred for adjudication to the Labour Court or Tribunal under the provisions of the Industrial Disputes Act, 1947, then what is the position The answer to this is that in such case the Court or Tribunal adjudicates on the disputes of wages and submits its award to the appropriate Government which then publishes the award and the award so published 'shall be final and shall not be called in question by any Court in any manner whatsoever'. Clearly, the Labour Court or Tribunal does fix a wages structure according to which the employer must pay wages to the workers. These wages are often referred to as 'fair wages'. Thus, whereas it is for the appropriate Government under the Minimum Wages Act, 1948 to fix the 'minimum rates of wages,' it is for the Labour court or Tribunal under the Industrial Disputes Act, 1947 to fix the rates of fair wages.'
7. Now the difference between 'minimum' and 'fair wage' may be noted. In Workmen v. Raptakas, : (1992)ILLJ340SC , it was stated that 'minimum wages' were fixed on the basis of six norms or components. viz. (i) In calculating the minimum wage, the standard working class family should be taken to consist of 3 consumption units for one earner; the earnings of women, children and adolescents should be disregarded, (ii) Minimum food requirement should be calculated on the basis of net intake of calories, as recommended by Dr. Aykroyed for an average Indian adult of moderate activity. (iii) Clothing requirements should be estimated at per capita consumption of 18 yards per annum which would give for the average workers' family of four, a total of 73 yards. (iv) In respect of housing the rent corresponding to the minimum area provided for under Government's Industrial Housing Scheme should be taken into consideration in fixing the minimum wage. (v) Fuel, lighting and other 'Miscellaneous' items of expenditure should constitute 20% of the total minimum wage', and (vi) children education, medical requirement, minimum recreation including festivals/ceremonies and provision for old age, marriages etc., should further constitute 25% of total minimum wage.' It was then stated 'The wage structure which approximately answers the above six components is nothing more than a minimum wage at subsistence level. The employees are entitled to a minimum wage at all times and under all circumstance. An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry.' Thus in order to fix minimum wages the inquiry is restricted to determine the amount required for the worker's basic subsistence. The financial capacity of the employer has not bearing on the question of fixing minimum wages. On the other hand 'fair wages' indicates that the financial capacity of the employer has also to be taken into consideration. It may therefore be higher than minimum wages but never lower than that. In Raptaka's case it was stated - 'Broadly the wage structure can be divided into three categories-the basic. 'minimum wage', and finally the 'living wage' which comes at a comfort level.'
8. When a Labour Court or Tribunal is required to fix the wage structure it fixes 'fair rates of wages'. Since the fair rates of wages cannot bless that the minimum rates of wages, the Court or Tribunal takes into consideration the minimum rates of wages fixed by the appropriate Government. A sort of problem would arise if no 'minimum rates of wages' applicable to the concerned workers have been fixed by the appropriate Government. Such a contingency was considered in the case of Ahmedabad Millowner's Association v. Textile Labour Association, 1966 I LLJ 1, and it was observed (p. 29) 'If what the employer pays to his employees is just the basic subsistence wage, then it would not be open to the employer to contend that even such a wage is beyond his paying capacity. Industrial adjudication has consistently recognised and enforced the principle that social justice requires that an industrial employer must be able to pay his employees a wage structure which can be reasonably regarded as basic minimum wage. No employer can be allowed to pay his employees wages which are below the basic minimum or the subsistence wage. It is well known that, in certain industries, minimum wages are fixed by the statute. Even where minimum wages are not fixed by statue, industrial adjudication can easily determine whether, in a given case, the wage paid is basic minimum or not. In either case, where the wage answers the description of the basic minimum or subsistence wage, it has to be paid by the employer : and if he cannot afford to pay it, he would not be justified in carrying on his industry-vide, Crown Aluminium Works v. Their Workmen : (1958)ILLJ1SC '.
9. From the above discussion it would appear that it is not for the Labour Courts or Tribunals to 'fix the minimum rates of wages' and that while fixing the fair rates of wages the Courts or Tribunals take into consideration the minimum rates of wages fixed by the Government, and where Government has not fixed minimum rates of wages then the Courts or Tribunals ascertain for themselves what would be the minimum rates of wages. However, my attention was drawn to the decision in (i) : (1960)ILLJ262SC , Bijay Cotton Mills Ltd. v. Their Workmen and another; (ii) Ahmedabad Millowners' Association v. Textile Labour Association (supra); (iii) : (1969)ILLJ713SC , Hydro Engineers (P) Ltd. v. Their Workmen; (iv) 1972 II LLJ 244, M/s. Jaydip Industries, Thane v. The Workmen. In addition to these authorities, my attention was also drawn to sub-section (2A) of Section 3 of the Minimum Wages Act. On the basis of these authorities and sub-section (2-A) of Section 3 of the Minimum Wages Act it was urged that it is open for the Industrial Tribunal to determine and to fix the minimum rates of wages.
10. As regards Bijay Cotton Mills case (supra) the facts were as follows : The reference of the dispute was made to the Industrial Tribunal as far as back on December 1, 1950 when no minimum wages had been fixed under the Minimum Wages Act. The workers there had alleged that the payments that were being made by the employer were below the level of the bare subsistence wage. What was referred for adjudication there, was -
'.... (1) that the Mill employees be paid minimum wages and rates for contract works as shown in two statements enclosed, and;
(2) that dearness allowance be paid to all workers at the rate of Rs. 35/- per mensem each and it may be increased or decreased according to rise or fall in prices ....'
The Tribunal consisting of Mr. Roy found himself unable to fix any basic minimum wages and announced an Award on October 5, 1951. That award was challenged by the respondents before the Labour Appellate Tribunal which remanded the matter to Mr. Roy with the direction that the issues as to basic wage and as to the dearness allowance should be specifically determined. The remand order was passed on October 20, 1952. By the time the proceedings were taken up before the Tribunal after remand Mr. Roy was replaced by Mr. Sharma as the Tribunal. Mr. Sharma fixed Rs. 25/- as basic wage and Rs. 10/- as minimum dearness allowance. But this award was subsequently quashed on the ground that his appointment had not been duly published as required by the Industrial Disputes Act. Finally the award was made by Mr. C. Jacob as Industrial Tribunal. He made his award on January 25, 1956. He fixed basic wage at Rs. 5/- per mensem and the minimum dearness allowance at Rs. 10/- per mensem. The award was directed to come into operation as form December 1, 1950. The award was again challenged before the Labour Appellate Tribunal which partly allowed the appeal and increased the basic wage from Rs. 25/- per mensem to Rs. 30/- per mensem, and retained the minimum dearness allowance as Rs. 10/- per mensem. The decision of the appellant Tribunal was announced on December 12, 1956. It is that decision against which the appeal was preferred to the Supreme Court. The notification fixing the minimum wages under the Minimum Wages Act, 1948 was issued on October 7, 1952 and the notification came into force as from January 8, 1953. Under that notification the basic minimum wage was statutorily fixed at Rs. 30 per mensem and dearness allowance at Rs. 26/- per mensem. It was pointed out that 'thus it would be clear that there is no dispute between the parties as to what would be the basic wage and minimum dearness allowance subsequent to January 8, 1953 ....'
This authority therefore does not support the argument that despite the fixation of minimum wages under Minimum Wages Act, the Tribunal can still proceed to fix the minimum wages.
11. Dr. Kulkarni argued that in Bijay Cotton Mills case (supra) the Tribunal fixed minimum wages in respect of period after January 8, 1953 different from the statutory minimum wages fixed under the Minimum Wages Act and for that purpose he relied upon the paragraphs which read as follows : (1960)ILLJ262SC
'Besides, if the Appellate Tribunal thought that more useful assistance can be derived from the statutory fixation of the minimum wage in Ajmer under the Minimum Wages Act, we do not see how we can interfere with the said view in the present appeal. It would not be wrong to assume, as the Appellate Tribunal did, that in fixing the minimum wage in the area, the statutory committee took into consideration all the relevant factors and came to the conclusion that that would be a fair minimum to prescribe. On the other hand, before the Tribunal much relevant or useful evidence was not adduced, and so the Appellate Tribunal could not be said to have committed any error of law in preferring to rely on the statutory notification rather on the other unsatisfactory evidence produced in this case. After all, from January 8, 1953 the minimum basic wage was statutorily fixed, and so, if for a couple of years before that date the same basic wage was awarded by the Appellate Tribunal, it cannot be said that any error of law has been committed, which should be corrected by us in our jurisdiction under Article 136 of the Constitution. Therefore, we are not satisfied that any case for interference has been made out by the appellate on this point ....'
This paragraph reproduced from Bijay Cotton Mills' case does not support Dr. Kulkarni's submissions.
12. As regards Ahmadabad Millowners Associations' case, the observation on which reliance is placed by Counsel on behalf of the workers, have already been reproduced in this judgment earlier. These also do not support Dr. Kulkarni's submissions.
13. As regards Hydro (Enggs) case, there was no minimum rate of wages fixed by the appropriate Government under the Minimum Wages Act.
14. In Jaydeep Industries case, (supra) it is true that it was held that the Tribunal could fix higher minimum wages than that fixed by the Government under Section 3 or Section 3(2a) of the Minimum Wages Act. But this was based on the interpretation of sub-section (2A) of Section 3 of the Minimum Wages Act. The Court was not called upon to decide upon the vires of the said sub-section (2A). Now our Court held in I LLJ I/c 455 (Sic) that sub-section (2A) of Section 3 of the Minimum Wages Act is ultra vires and therefore void.
15. In view of what is discussed above, it is quite clear that where minimum rates wages are fixed by the appropriate Government under the provisions of Minimum Wages Act, then the Labour Court or Tribunals are not to fix minimum rates of wages. If accurate expression is used, then it may be said that 'fixation' of the minimum rates of wages is done only by the Government. Labour Court and Tribunals do not 'fix' minimum rates of wages - they merely ascertain what are the minimum rates of wages for the purpose of deciding 'fair wages'.
16. It is undisputed that in our case Tribunal fixed minimum rates of wages though the Government of Maharashtra had already fixed minimum rates of wages for workers engaged in the transport industry. The Tribunal, in para 16 of its judgment stated what were the minimum rates of wages fixed by the Government for workmen, employed in Transport industry and also stated what were the minimum rates of wages fixed by the Government for employees working in Shops and Commercial Establishments, and further stated that if there was no minimum wage notification for workmen employed in Transport Industry then they would have been entitled to wages plus special allowances under the Minimum Wage Notification for employees working in Shops and Commercial Establishments. Having said this, still higher rates of wages were awarded as 'minimum rates of wages'. Clearly, the Tribunal could not do this without ascertaining the financial capacity of the concerned employers. The award in so far as it relates to Demand Nos. 1 and 4, therefore, must also be struck down.
17. The petitioners have sought the striking down of the Government reference itself on the following grounds - (i) reference is bad because it joins 376 employers in a common reference though the facts in each case differ substantially, (ii) many employers have their offices outside Maharashtra, (iii) the dispute involves a question of National importance and therefore Central Government should have reposed the dispute to the National Tribunal, (iv) the Union which has filed the statement of claim does not represent the workmen of many employers, and (v) in some case, there are already negotiated settlement, and also awards of the Industrial Tribunal. I do not see any of these points as depriving the Industrial Tribunal of the jurisdiction which otherwise it does have. No provision or law was shown to me which takes away the jurisdiction of the Industrial Tribunal because of the existence of any one of the abovesaid grounds.
18. It was urged that all the workmen who would be affected by the judgment in these 28 writ petitions have not been made parties to these writ petitions. Now all the parties that were before the Tribunal have been made parties to these writ petitions. It is true that the impugned Award is a common award and that certain employers who are covered by the common award have not filed writ petitions and they are not parties to the 28 writ petitions that are filed here. It was observed in AIR 1963 SC 930 that benefit given of an order under the said circumstances will go only to those who have filed the appeal. That does not render the appeal proceedings as invalid. On the same footing the proceedings of these writ petitions cannot be held to be invalid because other employers have not filed writ petitions. Further it is necessary to point out that notices of these writ petitions were given by the petitioner in newspapers and in the circumstances of the matter these proceedings cannot be held to be invalid.
19. From the above discussion it is clear that the Industrial Tribunal has not gone through the proper procedure at all for making its award in respect of the Demand Nos. 1, 4 and 9. As regards Demand Nos. 1 and 4 it has gone on the wrong track altogether-instead of fixing the fair rates of wages, it has fixed the minimum rates of wages, and as regards Demand No. 9 it should have considered each case on its merits as pointed out earlier in this judgment. Under the circumstances the matter will have to be remanded to the Industrial Tribunal. Hence, the following order :
ORDER
The impunged order dated November 12, 1986 is quashed and set aside so far as it relates to Demand Nos. 1, 4 and 9 and the matte is remanded back to the tribunal for decision on Demand Nos. 1, 4 and 9 in the light of discussion made in the body of this judgment and rule is made absolute accordingly.
The Trial Court to dispose of the matter within one year form today. Writ to go down immediately.
Certified copy is expedited.
Rule made absolute.