Subramonian Poti, J.
1. These writ appeals arise from the judgments in O.P. 1940 of 1974, 1951 of 1974 and 2025 of 1974. The original petitions were disposed of by a common judgment along with a number of other petitions where in also the same questions arose. The appeals before us have been referred by a Division Bench of this Court for hearing by a Full Bench in view of the importance of the questions raised. Three minimum wage notifications in regard to employees in tea and rubber, coffee and cardamom plantations in the State are under challenge. In O.P. 1940 of 1974 the petitioner challenged the notification Ext. P20 which concerned the revision of minimum wages for employees in tea and rubber plantations. O.P. 1951 of 1974 concerned the minimum wage revision regarding cardamom that being the notification under Ext, P22 in O.P. 1940 of 1974. In O.P. 2025 of 1974 the petitioner was concerned with the challenge to the fixation of minimum wages in regard to coffee, the notification being Ext. P21 in O.P. 1940 of 1974. For the sake of convenience we are referring to these notifications with reference to O.P. 1940 of 1974. These notifications so revising/ fixing minimum wages were under the provisions of the Minimum Wages Act 1948 (hereinafter called the 'Act'). All these notifications issued by the Government of Kerala were of the date 20-3-1974. The appellants seek declarations by the Court that the notifications impugned by them are ultra vires the powers of the Government and they also seek directions or orders to the Government of Kerala restraining them from enforcing the said notifications.
2. For the employees in the tea and rubber plantations in the Travancore-Cochin area of the State minimum wages were fixed for the first time under Ext. P1 notification dated 30th June, 1952 This was on the basis of a report of a committee appointed under Section 5(1)(a) of the Act. The then Government of Madras had similarly fixed the minimum wages operative in the Malabar area of the Kerala State under Ext. P2 notification, dated 20th March, 1952. This too was on the consideration of a report of a committee appointed under Section 5(1)(a). This notification covered tea, rubber and coffee plantations.
3. By an amendment introduced to item 4 in the schedule to the Act by the State of Kerala cardamom plantations were brought under the purview of the Act. The first respondent, by notification, Ext. P3 (a), dated 17-3-1958 fixed the minimum rates of wages for the workmen employed in the cardamom plantations of the State of Kerala. This was so issued following the procedure prescribed under Section 5(1)(a) of the Act. The Government of India appointed Central Wage Boards for tea, coffee and rubber plantations for recommending the wage structure for the employees in these industries. The Wage Boards made their recommendations and these were accepted by the Government. By Ext. P4(l), dated 19-9-1965 the recommendation of the Coffee Wage Board were so accepted, by Ext. P4(a), dated 4-6-1966 the recommendations of the Wage Board for tea were accepted and by Ext. P4(b), dated 29-9-1966 the recommendations of the Wage Board for rubber plantations were similarly accepted. The Central Government requested the parties and the State Governments concerned to implement these recommendations. The recommendations of the Wage Board as well as their acceptance by the Central Government did not have any statutory force but were only recommendatory to induce the parties to arrive at settlements in terms of recommendations.
4. In the meantime consistent with the requirement under the Act of periodical revisions of the minimum wages in the industries to which the Act applied, the first respondent, by notification, Ext. P5. dated 21-1-1965 revised the minimum wages payable to employees in tea and rubber plantations. By Ext. P8 notification, dated 25-3-1970 the Government of Kerala again revised the minimum wages for the employees in tea and rubber plantations in the Kerala State. Subsequently there was a conciliation conference at which a settlement relating to terms of wages was reached between the managements and labour in the tea and rubber plantations that settlement being evidenced by Ext. P9, dated 10-6-1971. In that settlement the employers agreed to enhance the Dear-ness Allowance paid to the labour in tea and rubber plantations.
5. It was subsequent to this that proposals were notified by the Government of Kerala for further revision of minimum wages. Ext. P12, dated 2-2-1972, a proposal under Section 5(1)(b) of the Act, was so published in regard to tea and rubber plantations. In the case of coffee similar revision was proposed by Ext. P12(1), dated 18-12-1971 in OP. 2025 of 1974. In the case of cardamom similar notification was by Ext. P12(a), dated 21-1-1972 in OP. 1951 of 1974.
6. Ext. P12 notification indicated that the basic wages proposed thereunder were the same as in the earlier notification Ext. P8 and the earlier Ext. P7 settlement of 1969. This also applied to piece-rates, standard output etc. The only difference in the wages proposed concerned the Dearness Allowance. In answer to the proposals in Ext. P12 series the Association of Planters of Kerala, an Organisation representing the planters filed on behalf of its members Ext. P13 series objections (Ext. P13 in regard to tea and rubber. Ext. P13(i) in regard to coffee and Ext. P13(a) in OP. 1951 of 1974 in regard to cardamom). It is agreed that the Association of the planters of Kerala represented the appellants and, therefore, the objections filed were on their behalf too. It appears that subsequent to the proposals Ext. P12 series, consequent on demand for higher wages and the dispute resulting therefrom the matter came up for discussion in the Plantation Labour Committee which is an industrial relations committee setup by Government of Kerala for assisting in the settlement of disputes between the management and workmen in the Plantation industry following the discussions in the Committee the disputes were settled at a conciliation conference which followed. Ext. P15 settlement was so arrived at on 12-7-1972 in the case of tea and rubber and this was to be effective until 31-12-1974. In the case of coffee the settlement Ext. P15(1) in OP. 2025 of 1974 was reached on 9-11-1972 and in the case of cardamom two settlements Ext. P15(a) and Ext. P15(b) in O P. 1951 of 1974 were reached on 31-10-1972 and 31-10-1973 respectively. Evidently these settlements had no bearing on the proposed revision of the minimum wages which and to be carried out periodically by the appropriate Government. It would appear that the proposals contained in Ext. P12 series were being processed through the Minimum Wages Advisory Board and after receipt of the recommendations of the Board the Government issued notifications revising/ fixing the wages of the plantation workers. This was by Ext. P20 in regard to tea and rubber, Ext. P21 in regard to coffee and Ext. P22 in regard to cardamom plantations which are the notifications under challenge in these petitions. The petitioners aver that even after Ext. P15 series settlements the workmen raised further demands for revision of wages in August, 1973 and though there were a number of meetings of the plantation Labour Committee, the last of which was on 20th and 21st September, 1973 the discussions failed to bring about a settlement and as a consequence the Minister for Labour who was also present at the meeting issued a statement summarised in Ext. P16, to the effect that the conciliation conference had failed and that the Minimum Wages Advisory Board was finalising its recommendations. According to the appellants the revision of the minimum wages soon thereafter was on account of the failure of the conciliation meeting and was with a view to avert the threatened strike. The Labour Commissioner had. sometime after the Minister's statement above referred to, Issued a notice, Ext. P17, on 25-2-1974 to the plantation industries intimating them that the Minister for Labour will be holding a meeting of the representatives of employers in the plantation industry at 3-30 p.m. on 8-3-1974 at Trivandrum -
with a view to discuss the revision of minimum rates of wages for plantation workers.
Their complaint is that when the employers reached Trivandrum on 8-3-1974 they were told that telegrams were issued to them intimating them that the conference was postponed. There was no date to which the matter stood adjourned and they were subsequently never informed of any proposal for a conference. But, all the same the notifications Exts. P20, 21 and 22 were issued soon thereafter revising/fixing the minimum wages for the employees in the plantation industries. This was accompanied by a Press release issued by the Government of Kerala, Ext. P.19, which indicate what was achieved by the revisions made.
7. According to the appellants the notifications impugned were bad for several reasons. They were said to have been issued in violation of the mandatory provisions of the Act and particularly Section 5. The appellants' case is that there was an obligation to fix a definite date for consideration of the proposal and an obligation to give & hearing to the parties that may be affected by the revision of wages and this has not been done in passing the impugned notifications. Exhibits P20 and 22 are revisions of the minimum wages while Ext. P21 has purported to fix the minimum wages. As regards the notification fixing the minimum wages in coffee plantations there was a further contention that the proposal was one to revise the existing minimum wage but what was done was to make an original fixation. The appellants trace the history of revisions of minimum wages and settlement of disputes in the industry with a view to support their case that what were fixed as minimum wages by the impugned notifications were really the fair wages for the industry and if so the machinery under the Minimum Wages Act could not have been employed for fixing such wages. The appellants have a complaint that extraneous considerations having gone into the fixation of the minimum wages the fixation is vitiated. Particular attack is made to certain directions in the notification as incompetent on the part of the Government to issue them. The learned single Judge did not accept any one of the pleas set up, and the notifications were held to be competent and within the powers of the State Government. The petitions were, therefore, dismissed. As we indicated the common judgment related to several similar petitions and appeals have been filed against the judgments in many of those cases. But evidently these three cases have alone been referred to the Full Bench, for, these cases are representative of the controversy in the batch of cases, since as between the three petitioners the notifications concerning the tea coffee, rubber and cardamom plantations are covered.
8. In fixing the minimum rates of wages in respect of any scheduled employment for the first time under the Minimum Wages Act or in revising minimum rates of wages so fixed, the appropriate Government may adopt either of two procedures prescribed under Section 5 of the Act. Section 5(1)(a) provides for the appointment of Committees and sub-committees to hold enquiries and advise the Government in respect of such fixation or revision. Section 5(1)(b) provides for the Government notifying proposals for the information of persons likely to be affected. In the latter case the representations received in response to the proposals are to be taken into account in fixing or revising the minimum rates of wages. If it is a case of acting upon the report of the Committee or the sub-committees appointed under Section 5(1)(b) of the Act, there is no requirement of calling for any representations or taking into account any representations. It is open to the Government to act on its own on the report of such committees or sub-committees. In the event the fixation or revision of minimum wages is to be by the mode contemplated in Section 5(1)(b) the appropriate Government is duty bound to consult the Advisory Board constituted under the Act. In issuing Exts. P20, 21 and 22 notifications resort has been evidently been made to the procedure under Section 5(1)(b). Proposals were notified in the official gazette, representations were received and the Advisory Board was consulted before the Government revised/fixed the minimum wages by the notification Exts. P20, 21, and 22. All the same the procedure is attacked and the impugned notifications are contended to be illegal on the plea that there has been no compliance with the procedure contemplated under Section 5(1)(b) of the Act. The proposals Exts. P12, and P12(a) are said to be not proposals in accordance with the said sub-section since the requirement as to specifying a date not less than 2 months from the date of notification on which the proposals are to be taken into consideration is not satisfied in regard to these proposals. The second attack of the appellants is that though the section does not specifically provide for a hearing on the representations submitted in response to the proposals, the requirement of such a hearing must be read into the provisions of Section 5 and further, in any event, in a case where the proposals have been finalised long after the receipt of representations there should have been occasion for a hearing or for a further representation to be made. These are two of the main contentions raised by learned Counsel Sri P.K. Kurien appearing for the appellants in these cases. We will consider these before we deal with the other questions.
9. Section 5 of the Act reads:
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 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 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.'
Ext. P12 notification provided-Notice is hereby given that the said proposals will be taken up for consideration on or after 1-5-1972 and that any representation that may be received from any person with respect to the said proposal before the expiry of the above date will be considered by Government.
The terms of Ext. P12(1) in O.P. 2025 of 1974 and Ext. P12(a) in OP. 1951 of 1974 are the same so that they need not be repeated here. It is said for the appellants that the requirement of the statute will be met only by specifying a particular date and permitting the parties to file representations up to such a date. The case is that when a notification provides that the proposals will be taken up not on any particular day but either on a particular day or on any day thereafter that does not satisfy the requirement of Section 5(1)(b) of the Act, for, it is said that if there be a right in any person proposing to respond to the notification to file representation up to the time the proposal is taken up that right is lost by failure to specify the date on which the representation is to be so taken up. It is said that the requirement of Section 5(1)(b) is mandatory and in view of the contravention indicated in the proposals which preceded the impugned notifications, that would be sufficient to vitiate the notifications.
10. There is controversy as to the scope and meaning of the relevant provision in Section 5 of the Act. Conflicting decisions have been brought to our notice. The correctness of the view taken in two Division Bench decisions of this Court in Vasudevan v. State of Kerala 1959-II L.L.J. 610 : A.I.R. 1960 Ker. 67 and in Sukumaran v. State of Kerala LL.R. 1972, (2) Ker. 254, has been challenged by counsel for the State. Before referring to the decided cases on the question, we think it will be profitable to advert to the scope of Section 5 as we understand it
11. As we see the section, besides publishing the proposal the further requirements are (1) the appropriate Government has to specify a date on which the proposals are to be taken into consideration, (2) such date shall not be less than 2 months from the date of the notification, (3) the final notification is to be after considering all representations received by the Government before the date specified by the Government, (4) the appropriate Government is to consult with the Advisory Board constituted under Section 7 of the Act. Though the Government is required to specify the date on which the proposals are to be taken into consideration, there is no express mention of any further requirement that once such date is so specified the Government is obliged to take up for consideration the proposals published by it on that date itself and not at any time thereafter. The right of those likely to be affected by the proposals to file representations at any time before the date specified in the notification and the duty of the Government to consider such representations before finally deciding upon the question of fixing or revising the minimum wages appear to us to be the main content of the procedural requirement of Section 5 when resort is made to the procedure prescribed under Section 5(1)(b). Of course, there is the further requirement that the Advisory Board should be consulted. Such consultation must necessarily be on the proposals and therefore that cannot be at a stage prior to the publication of the proposals. There is no reason to assume either on the language of the section or on its scheme that the consultation with the Advisory Board must be prior to the receipt of representations. There is much less reason to assume that the opinion of the Advisory Board which must necessarily reflect the considered views of an expert body, would be available by or before the date specified in the notification. Hence it is difficult to read into Section 5 of the Act the requirement that the Government which is to specify the date on which the proposals are to be taken up for consideration is also obliged to finalise the matter on the said date. While that may be possible in some cases in several others where the representations call for a time canvassing examination either due to their number or due to the importance of the points raised it may not normally be possible for the Government to consider the proposals on the date specified. That is apart from the fact that the Government may not be able to get the benefit of the views of the Advisory Board by that time. We see no reason why we should, notwithstanding the undesirable results indicated, hold that Section 5 obliges the Government to consider the proposals on the date specified when the plain language of the provision does not compel such a construction. To us it appears that the specification of the date is for a different purpose. It is only by way of intimation to those who may be interested in filing representations that they should do so before a particular date and to secure to them a reasonable time for that purpose the minimum period is specified in the section. In cases where the right to file representation is not restricted in the notification to a period of less than the 2 months prescribed in the section there cannot be a violation of Section 5(1)(b). We do not think that the section enables any person to contend that notwithstanding the specification of a date within which the representations have to be filed the notification revising/fixing minimum wages would be bad if the proposals are not taken up for consideration on the date specified. Nor does the section, according to us, provide for a right to file representations till the moment the proposals are actually taken up for final decision. There must necessarily be an interval between the last moment for filing the representations and the final decision, the length of the interval depending upon the nature of the representations, the necessity for deliberations on such representations, the time taken for the proceedings of the Advisory Board and the period that the Government would usually take for reaching a final decision on such matters. The fact that the final notification fixing or revising the minimum wages or the decision of the Government is made on a date subsequent to the specified date does not by itself give any right to any person likely to be affected by the proposal to claim that he is, as of right, entitled to file the representation till the last moment.
12. Exhibit P12 series notifications did specify the date and did call for representations to be received before the expiry of the date. The consideration of the proposals were to be on or after 1-5-1972. The plain meaning of the notification was that any representation received on or before 1-5-1972 will be considered by the Government. We may indicate here that even if the notification had said that all representations received before 1-5-1972 would be considered, that would have been quite in order for Sub-section (2) of Section 5 refers to consideration of representations received by the Government before the date specified in the notification. There is no case that the date 1-5-1972 is not one, not less than 2 months from the date of notification. Therefore there was necessarily the interval required to be provided under Section 5(1)(b) to file representations. The appellants did file representations too through their admitted representative, the Association of Planters of Kerala. One fails to understand how, in these circumstances, the appellants can have a grievance that the notifications finally issued under Section 5(2) are bad on account of non-specification of a proper date as required by Section 5(1)(b). Such a contention cannot have any relevance, at any rate, in a case where there can be no scope for grievance, as for instance, where the persons likely to be aggrieved are really seen to have filed representations. To contend otherwise would be to take too technical a view not warranted by the scheme of the provision. Dehors any decision on the point we would find no reason to doubt the validity of the impugned notifications on the ground that a specific date has not been mentioned in the notifications. We will now examine the decisions to see whether we should be persuaded to take a different view.
13. A Division Bench of this Court in the decision in Vasudevan v. State of Kerala, (supra) was dealing with the propriety of a notification which specified that the proposals will be taken into consideration ' after two months ' of the date of publication of the notification and that any representation received before the expiry of the above period will be considered by the Government, The court found that the notification was defective as one not in compliance with the provision in Section 5(1)(b) of the Act. The reasoning is found in paragraph 6 of the judgment. The relevant passage may be extracted here :
It has to be noted that under Sub-section (2) of Section 5 the right to make representations extends to the date specified in the notification under Section 5(1)(b) and that right cannot be confined to a date anterior to it. In other words, it is not possible for the Government to say that they will receive representations up to a particular date and that the proposals will be taken into consideration not on that date but on some date thereafter.
On a reading of Section 5(2), with great respect, we are unable to agree with the learned Judges that the right to make representations cannot be confined to a date anterior to the date specified as that on which the proposals will be taken into consideration. Sub-section (2) evidently means that only representations received by the Government before the date specified in the notification will be considered. That must necessarily refer to a period anterior to the date specified and not on the date so specified. That further shows that there is no obligation on the part of the Government to consider representations received on the date specified in the notification. There is hence much less indication in the section that representations received even thereafter would be considered. In fact that appears to be against the express language of the section itself. To read unto the section the requirement that the consideration of the proposals must be on the date specified and then to read further that until it is so considered there is a right to file representations is. we are afraid, not warranted both by reason of the language of the section and the anomalous results that may follow such a construction as we have pointed out. With great respect, we must also say that we fail to see the logic in the view taken by the learned Judges of the Division Bench that it is not possible for the Government to say that they will receive representations up to a particular date and that the proposals will be taken into consideration not on that day but some day thereafter. We think, with great respect that the question has not been correctly answered by the Division Bench.
14. We do not think the decision of the High Court of Madhya Pradesh in Narottamdas v. P.B. Gowrikar : (1961)ILLJ442MP , is of any assistance. The question decided in that case was that the provision in P. 5 must be strictly followed. The notification concerning the proposals for revision of minimum wages published by the Government in that case did not specify any date on which the proposals would be taken up for consideration. It only said that the representations may be addressed to the Secretary to Government in the Labour Department ' within a period of two months from the date of the publication ' of the notification. It further said that the ' proposals together with the representations ' will be taken up for consideration after a period of two months. Evidently the notification did not specify a date. It said that the representations submitted within two months will be taken into consideration. Referring to this the court said :
This limitation of time in utter violation of clause (b) is sufficient to invalidate the proposals published on 18th August, 1958 as also the rates of wages determined on its basis by the notification, dated 30th December, 1958.
The case before us is not one where no date was specified. Nor can there be any complaint that those who wanted to object had not the requisite minimum time allowed to them, namely the period of two months. Hence the ratio of the decision may not be applicable to the case before us.
15. The case in Ramakrishna Ramnath v. State of Maharashtra : (1963)IILLJ548Bom , dealt with the situation similar to the one arising before us. The notification in that case, issued under Section 5(1)(b) was contended to be not one in accordance with the section since it mentioned ' notice is hereby given that the said draft will be taken into consideration by the Government of Bombay on or after the 1st day of March, 1958.' Kotval, J., speaking for the court, said:
The argument in the first place strikes us as technical in the extreme, and having regard to the fact that we are construing a piece of legislation for the benefit of the working class, we would avoid a technicality if possible. But it seems to us that it is not necessary to fall back _upon that view of the interpretation at all because, in our opinion, the notification issued directly falls within the terms of Section 5(1)(b) and strictly complies with it. To say that Government will take the draft, proposals into consideration on or after the 1st day of March, 1958 certainly amounts to specifying a date, namely, the 1st March, 1958. That Government added that it would consider them further after the date should, in our opinion, make no difference to the fact that both the parties got an adequate opportunity to know and to represent their cases on the proposals. The whole idea behind specifying a date as required by Section 5(1)(b) is that the persons likely to be affected by the draft proposals should be in opposition to make a representation against the draft proposals and know till what date they have to make it, so that Government is precluded from taking a decision upon the draft proposals until the expiry of the date specified. There is, however, nothing in the statute which requires that Government should consider it on that very date and not thereafter. In fact, it seems to us that it will be impossible for Government to consider all the representations received on one and the same date, namely, the date specified.
We respectfully agree with the view expressed by the learned Judges in that case.
16. The decision of this Court in Vasudevan v. State of Kerala and particularly the passage therein which we have extracted elsewhere in this Judgment was noticed by the learned Judges of the Bombay High Court. Commenting on this the Court said :
Section 5(1)(b) requires that the Government notification should specify a date, not less than two months from the date of the notification.' It was in these circumstances that the Kerala High Court held :
It has to be noted that under Sub-section (2) of Section 5 the right to make representations extends to the date specified in the notification under Section 5(1)(b) and that that right cannot be confined to a date anterior to it. Here again the period of time was short by a day and therefore the notification was struck down, No doubt at the end of paragraph 6 there is a further remark by the Division Bench upon which great reliance was placed by Mr. Manohar :
In other words, it is not possible for the Government to say that they will receive representations upto a particular date and that the proposals will be taken into consideration not on that date but on some other date thereafter. It is upon this remark that all the argument on this point seems to have been really founded. That remark however appears to us an obiter remark because the earlier discussion in paragraph 6 was more than sufficient to decide the point raised before the Kerala High Court and the remark we have quoted, with all respect, seems to have been inadvertently made.
17. With great respect we cannot agree with the above observations. The Bombay High Court seems to agree with the view expressed in the Kerala Case that the right to make representations extends to the dates specified in the notification under Section 5(1)(b) and the right cannot be confined to a date anterior to it. We have indicated that this may not be strictly correct since the period of ' not less than two months' is with reference to the date to be specified whereas the period relevant under Section 5(2) is referred to as 'before the date specified in the notification under Clause (b).' We have also said earlier that there is clear indication that the representations filed on the Specified date is not required to be considered. Therefore when challenge is made to the notification the question is whether the specified date is not less than two months from the date of the publication of the notification and whether provision is made to consider all representations received 'before' the specified date. But this we are observing only incidentally, for, our purpose here is to examine whether the learned Judges were right in commenting upon the latter part of the passage extracted from the Kerala judgment as obiter. We think, with respect, they are not. As the opening words in the passage ' in other words' indicate the reasoning in the Kerala decision that it was not open to the Government to say that representations will be received up to a particular date but this will be considered not on that day but thereafter was, according to the learned judges only another facet of the idea conveyed in the earlier sentence, that the right to make representations extends to the date specified in the notification under Section 5(1)(b) and was not an independent reason. If so, the latter part of the passage which evidently is only an attempt to put the same idea 'in other words ' cannot be said to obiter. We do not feel that the Kerala decision can be explained in the manner attempted by the Bombay High Court. It will be more appropriate to indicate, with great respect to the learned Judges, that Vasudevan v. State of Kerala, (supra) was not rightly decided.
18. A recent Division Bench of this High Court in Sukumaran v. State of Kerala I.L.R. 1972 (2) Ker. 254 had occasion to notice Vasudevan v. State of Kerala (supra) and the decision of the Bombay High Court to which we have adverted. On the facts of the case it was not necessary for the Division Bench to consider whether the specification of the date of consideration of proposals could be as ' on or after' as in the cases before us. In that case the notification relating to the proposal for revision was published on 27th February, 1968 and that proposed consideration of the matter by Government 'on or before 15th April, 1968'. Apart from the fact that the date specified was far within the period of 2 months the notification enabled Government to consider the proposals even before 15th April, 1968. Evidently the notification was objectionable as was found in that case. The only other question then was whether the requirement of a period of two months was mandatory. The Court found that in the circumstances of the case the attempt of the State Government to .justify the notification was patently untenable. No other question was decided though the Court noticed the earlier Kerala decision, Vasudevan v. State of Kerala and also the comment by the Bombay High Court on that decision. Considering the notification that was considered in the Bombay case this Court found that on the facts of the case the Bombay view was justified. We see nothing in the decision of the Division Bench in Sukumaran v. State of Kerala which is against the view taken by us here on this question, though we may not agree with the Division Bench on the further question that was considered by it, a matter that did not arise for decision there. We are referring to the question whether the scheme of Section 5 envisages hearing those who have a right to file representation before final decision is taken by the Government. We will come to it again when we deal with that question.
19. The next ground of attack, again based on the procedure adopted, is the absence of any hearing being given to the appellants to effectively urge their representations before the Government. It may be recalled that the Government took nearly a period of 2 years after the publication of the proposals to finalise the revision of minimum wages. There were settlements during this period evidenced by Ext. P15 series and there were also further disputes for revision of wages and consequently consideration of these disputes by the Plantation Labour Committee. It is agreed that the discussions before the Committee yielded no results and the Minister soon thereafter issued a statement urging the workmen not to resort to other action and indicating to them that the matter was being considered by the Minimum Wages Advisory Board. Ext. P16 is the news item in the Hindu, dated 22-11-1973 adverting to the statement by the Minister for Labour, the news item read :
Mr. Purushothaman, who convened a conciliation conference of the workers and managements of tea, coffee, rubber and cardamom plantations, said no settlement could be reached at the meetings as the managements were against any revision. The Minimum Wages Advisory Board, he said, was now finalising its recommendations. He hoped that the workers would agree to the Government's assurance and would not resort to strike.
It is agreed that the matter was under consideration by the Advisory Board at that time and further that at no time was the proposal commenced by Ext. P12 series dropped or suspended. Therefore the fact that there was Ext. P15 settlement or that there were discussions thereafter in the Plantation Labour Committee and also that the Minister for Labour issued the statement adverted to in Ext. P16 would not be very material. It was after this that the Commissioner for Labour issued notices to the employers intimating them of a proposal to hear them on the question of Minimum wages at the Secretariate, on 8-3-1974. It is agreed that similar notices were sent to the representatives of the workmen, But they were to be heard not on the same day but on 9-3-1974. For reasons which are not quite evident from the records the Minister did not hold any discussion either with the employers or with the workmen. The meetings proposed on the 8th and 9th were adjourned and parties were intimated by telegrams. There was no further conference. The relevant files have been made available for our perusal and we find therefrom that there was a conference of the Labour Secretary, the Minister for Labour and the Labour Commissioner on the 18th March where at the question of revision of Minimum Wages was discussed in the light of the report from the Advisory Board on the proposals. It would appear that the Labour Commissioner, on the afternoon of the same day prepared the minutes of this conference in the form of a letter addressed by him to the Government, referring to the matters discussed at the conference. It is on this that the ultimate notifications by the Government which followed soon thereafter were based. Therefore while it could well be said that the appellants were not heard pursuant to the notices issued to them to appear, it is evident that the Government referred the matter to the Advisory Board and acted on its report. The files made available to us also show that the Advisory Board took considerable time for its deliberations, examined a number of witnesses and sent up its report sometime in January, 1974, The matter was moving all along and there' is nothing to indicate that the Government was at any time persuaded not to proceed with the proposal commenced by Ext. P12 series. The Advisory Board considered the representations of employers and employees and one of them was the Secretary of the Association of Planters of Kerala who had voiced the objections to the proposal in Ext. P12 series on behalf of the plantation industry in Kerala. Therefore, though the appellants have not been heard as such the person through whom they made representations took part in the deliberations of the Advisory Board,
The question is whether this would be inadequate and further whether even in the absence of a specific provision under Section 5 that those who submit representations are to be heard, there is a duty on the part of the Government to hear them. If there is none, the mere fact the Minister proposed a discussion in the matter with the employers and another with the workmen will not make any difference and the appellants cannot base a complaint as to the validity of the notifications merely on the fact that at some time the Minister proposed to hear them. It is pointed out by the appellants that it is not as if the proposals were merely carried out in spite of the objections by the employers. The proposals were even varied to the prejudice of the employers in revising the minimum wages and this, it is said, called for a hearing before the Government took a final decision.
20. Representations contemplated under Section 5(1)(b) could be by the employers as well as by the employees and any modification of the proposal on a consideration of the representations would, therefore, necessarily affect one party or the other. That by itself cannot be taken to mean that there should be a hearing on that account, if, otherwise, it would not be necessary to read into the enactment any such requirement.
21. Section 5(1)(b) or Section 5(2) does not provide in express terms for hearing the parties likely to be affected. An opportunity is provided to them to place their views before the Government and that is by way of making representations. Whether there should be a further opportunity to make representations in person to press or to explain the written representations already submitted is the matter in controversy. Sri T.C.M. Menon, appearing for the State, would say that even that has been satisfied in this case since the Secretary of the Association of Planters in Kerala, who, on behalf of the Planters including the appellants, had filed the representations and who therein had asked for an opportunity to be heard on it, had actually been heard by the Advisory Board of which he was a member and before which he had ample opportunities to effectively present his views. Counsel therefore contends that on the facts of the case the discussion of this question would be academic.
22. Sri P.K. Kurien, counsel for the appellants, fairly conceded that his case is not that in failing to give an opportunity to the appellants by way of a further hearing there has been failure to adopt a fair procedure, but that, on the construction of Section 5(1)(b), the requirement of hearing must be found to be mandatory. If the case had been that in the absence of an opportunity being given to the appellants to make a further representation the procedure should be considered to be unfair and therefore vitiated, the decision of the Supreme Court in Union of India v. J.N. Sinha : (1970)IILLJ284SC , would have been a complete answer, for, the learned Judges said in that case, referring to a plea of contravention of natural justice, thus:
Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak v. Union of India : [1970]1SCR457 , the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law by supplement it, It is true that if a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But, if on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the rules of principles of natural justice then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.
23. Section 5 being silent as to any hearing to be given to those who make the representations it would be proper to assume that by enabling persons who are likely to be affected to file representations to the Government the requirement of this section is satisfied. Nevertheless it is contended by Sri P.K. Kurien Counsel for the appellants that the duty of hearing those who submit such representations is implied in the provision. Advertance is made to the necessity for specification of a date on which the proposals would be taken into consideration by the Government. It is said that this would be without any meaning if it be not for the purpose of giving an opportunity to those who make the representations to be heard in the matter. The answer to this is quite simple. Those who are likely to be affected are told about the date on which the proposals will be taken into consideration by the Government so that any representations they have to make may be submitted before the date so specified. In other words, it is to indicate the outside limit of the time within which they should make representations that the date is specified in the notifications. TO read any further requirement into it is not called for particularly when that will lead to anomalous results. A strict construction in the manner canvassed by counsel would then call for a hearing on the very date itself, the date specified, which would in very many cases be impossible. As the section stands, we are of the opinion that no hearing pursuant to the representations submitted is called for. It makes no difference even if in effecting the fixation or revision is made from the rates proposed. The Supreme Court said-
If it has a power to reduce those rates, as desired by the employers, it is necessarily follows that it has power to enhance them. There is no merit in the contention that the Government must go on publishing proposals after proposals until a stage is reached where no change whatsoever is necessary to be made in the last proposal made' (Vide C.B. Boarding & Lodging v. State of Mysore : (1970)IILLJ403SC .
24. The question whether the duty of the Government in fixing or revising the minimum wages is quasi-judicial or administrative is academic. In either case it makes no difference, for, the principle of natural justice applied to the exercise of administrative powers too. The question of requirement of compliance with the rules of natural justice is to be decided not in the light of the nature of the powers exercised but the consequence of exercise of such power. Dealing with an attack against the provisions of the Minimum Wages Act and particularly Section 5, the Supreme Court observed in the decision in C.B. Boarding & Lodging v. State of Mysore, (supra) thus:
It is unnecessary for our present purpose to go into the question whether the power given under the Act to fix minimum wages is a quasi-judicial power or an administrative power. As observed by this Court in A.K. Karaipak v. Union of India : [1970]1SCR457 , the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. It is further observed therein that principles of natural justice apply to the exercise of the administrative powers as well. But those principles are not embodied rules. What particular rule of natural justice, if any, should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the Tribunal or body of persons appointed for the purpose.
25. Natural justice does not always require that any party who is affected by a decision must necessarily be orally heard. Even where the rules require an opportunity to be given it would be sufficient if such opportunity is given to the person likely to be affected by such persons being allowed to make a representation. Even in a case where that is not provided by the statute but is left to the discretion of a Tribunal that would be the position as observed by the Supreme Court in M.P. Industries Ltd. v. Union of India : [1966]1SCR466 . That was a case of exercise of power by the Central Government in revision against the orders of the State Government in proceedings under the Mines and Minerals (Regulation and Development) Act, 1957 and the Mineral Concession Rules 1960. Dealing with the question, Subba Rao J, as he then was, said thus:
As regards the second contention, I do not think that the appellant is entitled as of right to a personal hearing. It is no doubt a principle of natural justice that a quasi-judicial tribunal cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. Indeed, Rule 55 of the Rules, quoted supra, recognises the said principle and states that no order shall be passed against any applicant unless he has been given an opportunity to make his representations against the comments, if any, received from the State Government or other authority. The said opportunity need not necessarily be by personal hearing. It can be by written representation, Whether the said opportunity should by written representation or by personal hearing depends . upon the facts of each case and ordinarily it is in the discretion of the tribunal. The facts of the present case disclose that a written representation would effectively meet the requirements of the the principles of natural justice. But there is some apparent justification in the submission that the Central Government had taken into consideration an extraneous matter that came into existence subsequent to the filing of the revision, namely, that Messrs, Manganese Ore (India) Ltd., which is a public sector under-taking, had applied for the lease of the area in question on October 5, 1962, for the purpose of mining. The appellant did not allege in its affidavit that this fact was not brought to its notice before the Central Government made the order; indeed, it did not file any reply affidavit to the effect that the said matter was kept back from it. I would have pursued the matter a little further but for the fact that I am refusing to interfere in this appeal on other grounds.
26. Where a statute defines the procedure to be adopted and lays down the mode of giving an opportunity to a party aggrieved that exhausts the requirements which are to; be complied with and there can be no complaint that there was violation of rules of natural justice in the procedure adopted in accordance with such provisions. If Section 5(1)(b) has provided only for written representations to be made as we have found, then there is no scope for insisting upon a further requirement that those who have filed representations must be heard by the State Government and contending that in the absence of such hearing the proceedings which result are vitiated. Of course, it is open to the Government if they feel so inclined to say that they would hear the parties concerned and it may be that in some cases the Government may choose to hear them. But that does not answer the plea raised here that there can be no insistence that there should be such a hearing in every case at the risk of a successful challenge to the revision of minimum wages to follow. We are referring to this aspect of the matter because, according to counsel, in the case which went up to the Supreme Court from the Mysore High Court in C.B. Boarding & Lodging v. State of Mysore-the Mysore case is reported in 1970-II L.L.J. 403 ' A.I.R. 1968 Mysore 156-there was actually a hearing and the Supreme Court had occasion to hold that reasonable opportunity had been given. That does not prove the appellants' point, for, in a case where opportunity for hearing had been given there can be no scope for complaint and if the Court says so it is not the same as saying that a hearing should be given in all cases. We are aware that a Division Bench of this Court in the decision to Which we have already adverted Sukumaran v. State of Kerala had expressed the view that the affected parties ' appear to have a right to be heard.' The learned Judges referred to this aspect of the matter though even according to them they need not have expressed a final opinion on the question since it was ' not necessary for the disposal of these cases.' Nevertheless they proceeded to point out that having regard to the language of Section 5(1)(b) parties appear to have a right to be heard. Evidently this is based on the reasoning that the specification of the date on which the proposals will be! taken into consideration indicates this. The learned Judges further observe that the Government may consider the proposal on that date and on any other dates or even adjourn consideration of the proposals to another date altogether. But according to the learned judges the adjournment will have to be to a specified date. We fail to find any authority for this view in Section 5 of the Act. We think, we need not repeat here what we have said as to the purpose for the specification of the date and there is no reason to attach any more significance to such specification particularly when the consequence would be to read into the section much more than what its plain language indicates. Evidently the view expressed by the learned Judges of this Court in the Division Bench decision was obiter as they themselves indicate. With great respect to the learned Judges, we cannot agree with that view and we think the law has not been correctly stated.
27. It is true that a period of 2 years was taken for the proposals to nature into revisions and it is also likely that during this period conditions might have changed. The minimum wages Act contemplates periodical revisions and there must necessarily be some time lag between the publication of the proposals and the final notification revising the minimum wages. There is no time limit specified in the section for the finalisation of the proposals and normally such period would depend on the speed with which the Advisory Board and the Government deal with the matter. In this case objections had been raised to the proposals and these required a detailed examination by the Advisory Board. The Board is seen to have examined a number of witnesses. We do not think that there is anything in the time element here which, would compel the requirement of hearing in the peculiar circumstances of the case. If the statute does not provide for a hearing on account of delay that cannot be insisted upon by any party concerned. The challenge if at all then should be to the validity of the section and not to the action taken thereunder, so long as it is not contrary to it.
28. Nor are we impressed by the fact that a hearing is called for in a case where the revision results in an enhancement of the wages. We have already adverted to the decision of the Supreme Court where the learned Judges held that enhancement of wages also is a natural consequence of the consideration of the proposal. In these circumstances we find no merit in the attack against the impugned notifications on the ground that the parties: had not been heard by the Government before issuing the final notification revising/fixing the minimum wages.
29. Now we will refer to a contention which applies only to the minimum wage notification for the coffee plantations; The complaint is that Ext. P12(l) notification in OP. 2025 of 1974 proposes a 'revision' whereas Ext. P21 notification 'fixes' the minimum wages. It is seen that in the Malabar area there was an earlier minimum wage notification Ext. P2 of 1952 which covered coffee plantations also but there was no corresponding notification in the Travancore -Cochin area so much so there was no question of 'revision' of minimum wages in regard to coffee plantations as applicable to the Kerala State. That is possibly the reason why the minimum wages were ' fixed' under Ext. P21 notification in regard to coffee plantations. Such fixation appears to be quite proper and there can be no objection on the part of the appellants to this course in view of Ext. P 13(1) objection filed by the appellants in O.P. 2025 of 1974, particularly contending that there was no current fixation of minimum wages. In view of this stand the appellants cannot be heard to contend that there could not have been a fixation for the first time. Hence there is no substance in the contention raised.
30. Now we will pass on to the case of the appellants that what is fixed in the impugned notifications is really fair wages and not the minimum wages. It is true that the Central Wage Board recommended a certain wage structure for the Plantation Industry. These would not automatically become operative as it is not legally binding on the parties. All the same it was open to the parties to respect the recommendations and reach a settlement as was actually done. The assumption of the appellants is that when once wages are so fixed that must be deemed to be fair wages and once fair wages are so fixed revisions periodically made thereafter enhancing such rates of wages would necessarily result in prescribing fair wages as minimum wages. Alternatively counsel contends that the parties having reached Ext. P15 settlement by negotiations it must be deemed that any such settlement reached by conciliation represents fair wages and any wages higher than that so agreed to must be considered as fair wages. We are afraid that there are many assumptions in this line of reasoning and these are not justified or called for. There is no basis to assume that the Central Wage Boards determined fair wages for the plantation industry. Ext. P4(a), P4(b) and P4(l) in O.P. 2025 of 1974 are the resolutions of the Government of India, New Delhi, accepting the recommendations of the Central Wage Boards in regard to tea, rubber and coffee plantations. Ext. P4(c) in O.P. 1951 of 1974 is the proceedings of the Government of Kerala accepting the recommendations of the Joint wage Board for Cardamom plantation for the States of Kerala and Mysore. The managements were requested to implement the recommendations of the wage Boards as accepted by the Government, Terms of reference to these Wage Boards indicated that what they were asked to report on was the wage structure based on the principles of fair wages as set forth in the report of the Committee on Fair wages as 'as far as practicable'. In evolving such wage structure the Board was asked to take into consideration certain matters including 'the needs of industry in a developing economy.' Therefore it cannot be said that what was determined by the Wage Boards could strictly be said to be fair wages in the well accepted sense of that term. Moreover, these fixations were made in 1966 and such wages would not continue to be fair wages for all time thereafter. In the wake of spiralling prices which have been a feature for the last few years fair wages cannot remain static, Therefore, for the mere reason that a wage structure based upon the principle of determination of fair wages but with particular reference to other matters too had been settled will not automatically render any subsequent revisions of minimum wages resulting wages higher than that so fixed as fair wages earlier, bad. The concept of minimum wage has to be dynamic. It is a wage structure above the mere subsistence wage. It takes into account primary amenities such as medical care and education. As standard of living increases there must be a gradual change in the concept of minimum wages in any developing economy, The directive principles enshrined in our Constitution make it the duty of the State to strive to secure living wages for the working class. It is true that this cannot be achieved at one stroke, for, the interests of the industry and its survival are as important as the betterment of the standard of living of the working class. All the same, unless there is a continuous and progressive trend towards securing better living conditions for labour! which would necessarily in its turn call for determination of progressively higher minimum wages it is only likely that the goal may never be reached. Therefore the State is justified in considering minimum wages as an evolutionary concept. We can find no reason to assume that fair wages fixed years ago should continue to be fair wages for all time and any subsequent fixation of minimum wages should be taken not really as minimum wages but as fair wages for the simple reason that it is above the fair wages once fixed. So far as the present case is concerned there is not even scope for the assumption that what was fixed earlier was fair wages.
31. Less relevant is the argument that Ext. P15 settlement reached by conciliation should be taken to represent a fair wage and in the context of such settlement Government had lost its competency to proceed with the fixation of revised minimum wages proposed earlier. We fail to see how any settlement should have a bearing on the question of minimum wages to be fixed or revised. We cannot assume that a settlement reached between the parties always represents fair wages so much so that once a settlement is reached there is no scope for revising minimum wages above the figure of the wages as settled. It may be necessary in this context to indicate what exactly was the scope of the revision of the wages in these industries. In Ext. P15 settlement reached after Ext. P12 series proposals the basic wages agreed to were slightly higher than the wages proposed in Ext. P12. In the final notifications Exts. P20, P21 and P22 what was adopted as basic wages was that settled under Ext. P15. At Ext. P15 settlement Dearness Allowance content of the wage was not revised. The Dearness Allowance continued to be the same as that in Ext. P12. But that was revised in Ext. P20. Such revision was at 1 paise per 5 points above what was proposed in Ext. P12 in regard to tea plantations and 2 paise per 5 points in regard to rubber plantations. This resulted in a little additional benefit to the workmen on account of Dearness Allowance. But the substantial increase concerning which there is serious complaint by the appellants is about the mode of calculation of the Dearness Allowance. In fact after having heard counsel for the appellants we believe that is the main ground or reason for the opposition made to the minimum wage revisions impugned. In Ext. P12 series the proposal was that-.the adjustment of Dearness allowance shall be made from 1st April of every year, on the basis of average Consumer Price Index numbers....
published for the previous calendar year. But in Exts. P20, P21 and P22 this was altered and the provision was that-.the adjustment of Dearness allowance shall be made on first January, first April, first July and First October every year on the basis of the average consumer price index numbers....
published for the previous three months beginning from first July, first October, first January and first April respectively.
The consequence of this would be that the increase in the cost of living index would be reflected in the pay packets earlier than under what was proposed in Ext. P12 resulting in a higher payment to the workmen to adjust the rise in cost of living index earlier than it would be under the proposals Ext. P12 series.
32. We cannot find our way to agree with counsel that whatever is reached at a settlement as to wages to be paid to workmen must be treated as fair wages. We find no authority for this in any of the provisions of the Act much less in the decisions relied on by counsel to support this stand. Reference by counsel is to the decision in Bata Shoe Co. (P) Ltd. v. D.N. Ganguly 1961-I L.L.J. 303 : : (1961)ILLJ303SC . The question that arose in that case does not seem to have any application to the matter before us. Two references which ultimately ended in adjudication before the Industrial Tribunal were challenged on the plea that earlier, a settlement has been arrived at during a conciliation conference and therefore the references were incompetent. It is in this context that the Court considered the scope of conciliation and said-
Section 12 of the Act prescribes duties of the conciliation officer and provides that the conciliation officer shall for the purpose of bringing about settlement of the dispute without delay investigate the dispute and all matters affecting the merits and the right settlement thereof and may do all such things as he may think fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute (vide Section 12(2)). Then comes Section 12(2), which provides, If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the conciliation officer shall send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.'
Reading these two provisions along with Section 18 of the Act, it seems to us clear beyond doubt that a settlement which is made binding under Section 18 on the ground that it is arrived at in the course of conciliation proceedings is a settlement arrived at with the assistance and concurrence of the conciliation officer, for it is the duty of the conciliation officer to promote a right settlement and to do everything he can to induce the parties to come to a fair and amicable settlement of the dispute. It is only such settlement which is arrived at while conciliation proceedings are pending that can be binding under Section 18.
Counsel relying upon this passage contends that whenever there is a settlement in the presence of the conciliation officer what is arrived at must be deemed to be a fair and amicable settlement and a fair and amicable settlement must necessarily be settlement of fair wages. We do not think that it can be seriously urged that a fair settlement on the question of wages means a settlement of fair wages. We also do not want to accede to the proposition that whenever a wage dispute is settled at a conciliation conference it must be taken that what is agreed to is fair wages.
33. There is a further contention for counsel for the appellants and that is that during the currency of a settlement to which the conciliation officer is said to be a party there can be no revision of minimum wages. It is only to be noticed that periodical revision of minimum wages in regard to scheduled employment is a statutory duty of the appropriate Government and the fact that there are settlements in the industry consequent upon conciliation as to wages does not absolve the Government from exercising its statutory duties. Therefore, we shall pass on to the next contention of counsel for the appellants.
34. The next is a two pronged attack against these notifications. Extraneous considerations are said to have vitiated the decision of the Government to revise the minimum wages. One of these is said to be that the power to revise the minimum wages has been utilised by the Minister for Labour for an ulterior purpose and that is to resolve an industrial dispute. The other is that though capacity of the industry to pay is not a relevant criterion in fixing the minimum wages that has been taken into account in passing the impugned notifications Exts. P20, P21 and P22. In elaborating the plea that the Minister for Labour used the machinery of the Minimum Wages Act to settle the claims of the workmen when he found that a settlement could not be reached at the discussion in the plantation Labour Committee in 1973 and consequently issued the statement referred to in Ext. P16, the appellants point to the fact that but for the failure of the talks there would have been no occasion for the revision of the minimum wages. We are afraid Ext. P16 on which considerable reliance is placed by the appellants is itself an answer to the plea. We cannot read anything in the Press statement issued by the Minister which would indicate that any proceedings for revision had been taken up consequent upon the failure of talks. Naturally, when the talks failed workmen might have thought of resorting to a strike and there is nothing wrong if the Minister wanted to avoid such a situation particularly when that would affect a considerable number of workmen in the State and also the Industry in general. In his statement evidently addressed to the workmen he referred to the fact that the Advisory Board was then finalising the recommendations and, therefore, the workers may not resort to a strike. . This would indicate that the Government was not conceiving of any fresh action but only assuring the workmen, of a speedy disposal of the minimum wage revision which had already been proposed and had been pending fairly long with the Advisory Board. It is in this context that we had occasion to peruse the file which showed that the matter had been moving all along, but in the usual way, usual in the sense, the normal delay in such masters is reflected in this also. Regarding the revision in respect of Coffee plantations the Advisory Committee considered the matter of minimum wages even in November, 1972. Regarding tea and coffee plantations Government is seen to have addressed the Labour Commissioner for comments in July, 1972 and they were told in December, 1972 by the Labour Commissioner to get the views of the Advisory Board. The Board was addressed on 24-4-1973 and it was being remined again and again and ultimately in December, 1973 the Board finalised their recommendations. The report is seen to have been sent to the Government in January, 1974. It was in this situation that in November, 1973 the Minister issued the statement. It is thereafter that the report was received and soon the matter was considered at a conference of the Labour Commissioner, the Minister for Labour and the Secretary on the 18th March, 1974 which was followed by the issue of the impugned notifications. We do not think that any extraneous considerations weighed with the Minister in issuing these notifications. We also cannot agree that the notifications are in any way bad for the reason that capacity to pay has been taken note of. It is true that the counter-affidavit indicates that the wages which would have been fixed on the principles adopted by the Government would have been higher but nevertheless they fixed the minimum wages at lower figures than what it should have been, taking note of the fact that the industry may possibly be not able to bear a higher burden. It is true that any industry has an obligation to pay to its workmen minimum wages fixed, for no industry deserves to survive if it cannot meet the primary needs of its employees. What would be the primary needs is itself a matter susceptible to changes, The industry cannot complain that in fixing or revising the minimum wages the appropriate Government has failed to take into reckoning the capacity of the industry to pay and the consequence to the economy of the industry. But if the capacity to pay has been taken into account to reduce the Minimum Wages otherwise payable the complaint cannot be that of the employers. If at all it would then be for the employees to say that what they would have been otherwise entitled to as minimum wages should not have been reduced on a consideration of the capacity of the industry to pay. We ace unable to appreciate the plea by the employers by way of challenge to the notifications, that their capacity has also been taken into account in fixing the minimum wages. This plea is founded not on any data supplied, but evidently on the stand taken by the Government. If so capacity having been taken into account to reduce the minimum wages which should have been fixed, the appellants cannot be heard to complain.
35. We shall pass on to the plea that what were fixed under notifications Exts. P20, 21 and 22 were not minimum wages. We have already considered the case of the appellants that having regard to the history of wage fixation in the plantation industry from time to time the impugned notifications should be taken to have fixed the fair wages and not minimum wages for the industry. We do not agree with this plea and we have indicated our reasons. Nevertheless, we have to consider another aspect of the same plea by the appellants, that is, that at any rate, there are no materials to say that the wages now fixed by Exts. P20, P21 and P22 are minimum wages. It is said that the Government, in purporting to revise/fix minimum wages has taken note of irrelevant considerations. This takes us to the examination of the arguments urged in support of the plea. It is said that the revision of the existing minimum wages is quite unreasonable resulting in considerable financial burden on the managements. The piece rate workers earn more than the time rate workers on the standard output and in the case of women workers as also adolescents and children the rate of. Dearness Allowance increase works out to more than 100 per cent neutralisation towards rise in the cost of living index numbers which according to the appellants would materially alter the character of the wages.
36. To appreciate the case that the impact of the revision is rather serious and these vitally affect the continued functioning of the plantations in an economically viable manner, we were taken through the proposals for revision, the objection, the later settlements and the ultimate revisions in the case of tea, rubber and coffee and fixation in the case of cardamom plantations. We understand the main grievance of the appellants to be (a) the increase in the scale of Dear-ness Allowance for increase of every 5 points in the average price index numbers and (b) the adoption of the average price index numbers for the previous 3 months beginning from First July, first October, first June and first April such adjustment to be made on first January, first April, first July and first October. In truth it is the latter that is said to have hardhit the planters in that the total wage disbursements are said to have been considerably enhanced thereby.
37. In Ext. P12 the scale of Dearness Allowance proposed was as follows:
Tea plantationMen 1.8 paise per day forincrease of every5 points Women 1.8 'Adolescents 1.5 'Children 1.5 'Rubber plantationMen 2.5 'Women 2.4 'Adolescents 2.1 'Children 2.1 '
We have referred in this context to tea and rubber plantations only because counsel for the appellants took us through the Dearness Allowance increase in these plantations to illustrate his point,
38. The basic wages proposed in Ext. P12 series had been altered by making some increase in the subsequent settlements and it is agreed that these have been adopted as basic wages in the minimum wages fixation. Under the settlements Dearness Allowances continued to be at the old rate. In Ext. P20, 21 and 22 it was not the proposal in Ext. P12 series as to Dearness Allowance that was carried out as such. There was a slight increase in the rate pro-posed that being 1 paise per 5 points per day in tea plantations and 2 paise per 5 points in the rubber plantations. Thus the Dearness Allowance of 1.8 paise for increase of 5 points was raised to 1.9 paise per 5 points in regard to tea plantations and 2.4 paise per day for increase of 5 points was enhanced to 2.6 paise per day in the case of rubber plantations. But the appellants' counsel illustrated that substantial increase in the wage commitment of the planters was due to another reason, namely, the adoption of the average price index for the previous three months for fixing the Dearness Allowance. Thus the average price index of July-September, 1973 was to be adopted for fixing the Dearness Allowance for Jan.-March 1974 under the impugned notifications whereas, as proposed and as in force earlier, it would only be the average of the figures for January to December, 1973 that was to be adopted for paying the Dearness Allowance for the period of one whole year from first April, 1974. In a situation where there was phenomenal increase in the cost of living index and this was a continuing feature the adoption of the new method of linking Dear-ness Allowance to rise in cost of living would increase the commitment of the employers. On that there can be no dispute and it is said that it is so substantial that the burden becomes unreasonable enough to justify impugning the fixation as one which is not of minimum wages.
39. We have already indicated that it is open to the appropriate Government in revising minimum wages to enhance the rate of minimum wages proposed. We have adverted earlier to the relevant passage in the decision in C.B. Boarding & Lodging v. State of Mysore.
40. In justification of the enhancement of the Dearness Allowance the State in its counter-affidavit, paragraph 28, stated thus:
28. What is contained in Exts. P15 and P15(a) are negotiated wages and it cannot be said that they came anywhere near the conception of 'fair wages.' Between June. 1972 and February, 1974 there had been considerable increase in the cost of living. The Ernakulam Cost of Living Index increased from 926 points to 1283 points and the Government after taking into consideration this change in the circumstances actually allowed only a marginal increase in the minimum wages and that too from a far . later date, i.e., from 1-4-1974. Then again the Government has got ample powers if the circumstances so warrant to go beyond what has been proposed in the preliminary notifications in finalising the proposals contained in the preliminary notifications. Government is bound not only to take into account the objections from the employers but also the proposals and complaints made on behalf of the workmen and other interested parties. It has also taken into account the opinion expressed by the Minimum Wages Advisory Board and also the opinion of experts who advised the Government on this matter. The Government thereafter considered the totality of the impact of the directive principles contained in Chapter IV of the Constitution and its commitments to the various international bodies like the I.L.O. It is after considering these aspects that a final decision was made regarding the rate of revised wages payable to the workmen employed in the Plantation Industry.
41. The adjustment of Dearness Allowance in accordance with the average price index is for neutralising the rise in costs and to keep the wagepacket the same in terms of real money value. Even if notice need not be judicially taken of the fact that in recent days the rise in cost of living has been rapid spiralling the figures furnished to us amply bear out this fact. In such an economy to adopt the latest available average price index figures for adjusting the Dearness Allowance payable to the employees would be a more realistic approach than to adopt an average for a long period such as the previous year. The very fact that as now worked out by the appellants counsel the adjustment of Dearness Allowance on the basis of the average for the previous calendar year is seen to be much less than the average for a nearer and shorter period of 3 months adopted as the basis in the impugned notifications justifies the adoption of the scheme in Exts. P. 20, 21 and 22. That recognises the realities of the situation. Where during the period of an year there has been considerable and continued rise in prices and services the average of the year will not represent the proper basis for adjusting the dearness allowance. To say that such adjustment should continue for a year irrespective of any rise in the Consumer Price Index numbers in the meanwhile also appears to nullify effectively any scheme of linking Dearness Allowance with cost of living index. The object of such linking being to neutralise the rise in costs that will be defeated if the basis adopted as that for an year is the average figures of a fairly long period of the previous calendar year. In fact we may even venture to think that in the circumstances now prevailing, when regular hike in prices and spiralling rise in the cost of living is not an accidental feature in the country's economy, even a more realistic approach by adoption of the figures of the average price index for the previous month for which the published figures are available would afford a more reasonable basis for linking the Dearness Allowance and therefore we believe even if such adjustments are to be from month to month there can be no scope for complaint. These objections which have been urged With considerable force by counsel Sri P.K. Kurien do not appeal to us. Much less are we impressed that this has any relevance in determining the dispute that what is fixed is not minimum wages. We are afraid the question of unreasonableness may be of relevance only in the context of any attack to the notifications as unconstitutional possibly as violating one or other of the fundamental rights guaranteed under Article 19(1) of the Constitution. We are not faced with such plea here,
42. We do not think that it could reasonably be said that the minimum wages fixed under the impugned notifications are totally unrelated to the minimum, wage structure till then in force in the Industry or to the realities of the situation. Prima facie we think the notifications have fairly fixed the minimum wages. We are tempted to say so particularly in view of the main attack to the rates of the minimum wages being on the Dearness Allowance content, and that too to the new scheme of adopting a shorter and nearer period of 3 months as the basis for linking the Dearness Allowance. On that, we have already said that the Government's stand appears to us to be eminently fair. When we say fair we mean both to the labour and the employers though the result may be that there is some additional commitment on the employers. If capacity of the industry to pay is not a relevant criterion-of course, it is not-there can be no objection merely because a higher burden is imposed on the industry. We are concerned only with the question whether the revisions have been vitiated by irrelevant considerations on the part of the appropriate Government. As to extraneous considerations we have ruled out the plea of the appellants. It is true that the Government has, in the counter-affidavit, mentioned that what has been determined as minimum wages is really less than what it should be that is because the Government took into account, in some measure the capacity of the industry to pay the revised wages. When it found that in the case of rubber plantation it could hear the burden of payment of minimum wages it has fixed the Dearness Allowance as it should be. This cannot be said to be a criterion adopted by the appropriate government to the prejudice of the employers and as we have said earlier we cannot on this ground assume that the notifications are bad by reason of irrelevant approach. Over the years conferences and committees have been deliberating on the question of the content of minimum wages, fair wages and living wages. Even that content, which is now well accepted, must undergo gradual change as the economy of the country progresses, for, it is the directive principle of our Constitution to assure a living wage to its citizen. It is true that it cannot be done overnight. But it must be at some time and that would be possibly only by a dynamic approach to the question of wages, keeping in view the necessity of revising the wages aimed at making life for the working class more livable, with a view to increasing the amenities that go into the content of minimum wages so that one may assure even at the minimum level a higher standard of living, That must be the goal of our social welfare State. It may not be possible for the Court to precisely state what all should go into reckoning in fixing minimum wages. The Court cannot be called upon to decide what should be the minimum wages in any particular industry. It should not be called upon to embark on an investigation into questions which are appropriately the functions of the government. The government is assisted in this process by its own machinery and even more either by the advice of a competent committee under Section 5(1)(a) of the Act or a well informed Advisory Board under Section 5(2). We are making these observations with a purpose. An attempt has been made by counsel for the appellants to invite us to go into the question of the reasonableness of the minimum wages fixed. Apart from the fact that we do not feel that there is sufficient data, to go into it we cannot agree that it is for the Government whenever challenge is made to the fixation or revision of minimum wages to establish that what it has fixed or revised is really the minimum wages for that industry. Possibly that may be necessary in a case where prima. facie the Court considers that the approach by the Government to the question of fixing the minimum wages was manifestly vitiated or unwarranted by the provisions of the Act or it feels that the revision or fixation was based on irrelevant factors. There again the attempt of the Court is not to assess what the minimum wages should be and substitute its own views for that of Government. If prima facie the fixation appears to be fair there is nothing more for the Court to do. If the wage structure prevalent in the industry is more or less in line with the minimum wages fixed from time to time as revised by settlements and there has only been reasonable modification to this structure in the minimum wage revisions it would be difficult to say that prima facie the revisions are bad. This Court exercising its jurisdiction under Article 226 of the Constitution is not sitting as an appellate authority and is not sitting in judgment over the views of the appropriate government. Keeping in view the limited sphere of this Court's jurisdiction, we feel unless jurisdictional error is shown interference may not be possible.
43. We feel the view we have expressed here gains support from the decisions of the Supreme Court.
44. Dealing with the different categories of wage structure Gajendrakadkar, J., in the decision in Crown Aluminium Works v. Their Workmen : (1958)ILLJ1SC thus :
These categories are sometimes described as living wage, fair wage and minimum wage. These terms, or their variants, the comfort or decency level, the subsistence level and the poverty or the floor level, cannot and do not mean the same thing in all countries nor even in different industries in the same country. It is very difficult to define or even to describe accurately the content of these different concepts. In the case of an expanding national economy the contents of these expressions are also apt to expand and vary.
What may be a fair wage in a particular industry in one country may be a living wage in the same industry in another country. Similarly, what may be a fair wage in a given industry to-day may cease to be fair and may border on the minimum wage in future. Industrial adjudication has naturally to apply carefully the relevant principles of wage structure and decide every industrial dispute so as to do justice to both labour and capital.
The learned judge again said in the same decisions thus -
It is quite likely that in underdeveloped countries, where unemployment prevails on a very large scale, unorganised labour may be available on starvation wages, but the employment of labour on starvation wages cannot be encouraged or favoured in a modern democratic welfare state. If an employer cannot maintain his enterprise without cutting down the wages of his employees below even a bare subsistence or minimum wage, he would have no right to conduct his enterprise on such terms.
45. The same learned Judge, speaking for the court, said in the decision in Standard Vacuum Refg. Co. v. Its Workmen : (1961)ILLJ227SC thus :
It would thus be obvious that the concept of a living wage is not a static concept; it is expanding and the number of its constituents and their respective contents are bound to expand and widen with the development and growth of national economy. That is why it would be impossible to attempt the task of determining the extent of the requirement of the said concept in the context of today in terms of rupees, annas and paise on the scanty material placed before us in the present proceedings. We apprehend that it would be inexpedient and unwise to make an effort to concretize the said concept in monetary terms with any degree of definiteness or precision even if a fuller enquiry is held. Indeed, it may be true to say that in an underdeveloped country it would be idle to describe any wage-structure as containing the ideal of the living wage though in some cases wages paid by certain employers may appear to be higher than those paid by others. As observed in its report by the Commission of Enquiry on ' Emoluments and Conditions of Service of Central Government Employees, 1957-58.
Taking a standard family as consisting of four members of whom only one is an earner, the average income of a family at the highest figure during the nine years ending in 1957-58 would work out at Rs. 1,166 per annum or about Rs. 97 per mensem. The minimum wage cannot be of the order of Rs. 125 when on the basis of the national income the average for a family works out only to Rs. 97 per mensem.
Therefore, looking at the problem of industrial wages as a whole, it would not be possible to predicate that our wage-structure has reached even the level of a fair wage. It is possible that even so some employers may be paying a very high wage to their workmen, and in such a case it would be necessary to examine whether the wages paid approximate to the standard of the living wage; but in deciding this question the proper approach to adopt would be to consider whether the wage-structure in question even approximately meets the legitimate requirements of the components constituting the concept of a living wage. For that purpose it may not be essential, and on the material produced before us it is not even possible, first to determine what in terms of money those constituents would denote in the context of today. The learned Attorney-Generars argument that we should first determine independently what amount in terms of rupees, annas and pies would be treated as a living wage today obviously ignores the complexity of the problem and the poverty of the material adduced by the appellant in the present proceedings.
We are particularly noticing the observations of the learned Judge indicating the view of the Court that it is not possible to determine what in terms of money are the constituents of the living wage denoted in the context of the day. That could equally be said of a determination of minimum wages by the Court on the materials in the case.
46. One of the directive principles of State policy enumerated in Article 43 of our Constitution is-
The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way. to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.
Referring to this principle, Bhagwati J. in the Express Newspaper Ltd v. Union of India : (1961)ILLJ339SC , observed-
This is the ideal to which our social welfare State has to approximate in an attempt to ameliorate the living conditions of the workers.
The components of minimum wages were examined by the Supreme Court in the decision in U. Unichoyi v. State of Kerala : (1961)ILLJ631SC , at paragraph 13 the Court said-
It is, therefore, necessary to consider what are the components of a minimum wage in the context of the Act. The evidence led before the Committee on Fair Wages showed that some witnesses were inclined to take the view that the minimum wage is that wage which is essential to cover the bare physical needs of a worker and his family, whereas the overwhelming majority of witnesses agreed that a minimum wage should also provide for some other essential requirements such as a minimum of education, medical facilities and other amenities. The Committee came to the conclusion, that a minimum wage must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the worker, and so it must also provide for some measure of education, medical requirements and amenities. The concent about the components of the minimum wage thus enunciated by the Committee have been generally accepted by industrial adjudication in this country, Sometimes the minimum wage is described as a bare minimum wage in order to distinguish it from the wage structure which is ' sub-sistance plus' or fair wage, but too much emphasis on the adjective 'bare' in relation to the minimum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to cover his bare physical needs and keep himself just above starvation. That clearly is not intended by the concept of minimum wage. On the other hand, since the capacity of the employer to pay is treated as irrelevant, it is but right that no addition should be made to the components of the minimum wage which would take the minimum wage near the lower level of the fair wage, but the contents of this concept must ensure for the employee not only his sustenance and that of his family but must also preserve his efficiency as a worker. The Act contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object of providing sustenance and maintenance of the worker and his family and preserving his efficiency as a worker.
47. We may, in this context refer to a passage from the report of the Committee on Fair Wages appointed by the Central Government. This passage is referred to by the Supreme Court' in Chandra Bhavan Boarding & Lodging v. State of Mysore 1970-II L.L.J. 403. This passage, as extracted in paragraph 8 of the report reads :
The demand for the fixation of the minimum wage arose, in the first instance, out of the clamour for the eradication of the evils of ' sweating.' Thus in the early days, the operation of the minimum wage legislation was confined to employments which paid unduly low wages. There has since been increasing demand for the fixation of minimum wages so as to cover even non-sweated industries particularly those in which labour is unorganised or is only weakly organised. The International Convention of 1928 prescribes the setting up of minimum wage-fixing machinery in industries in which ' no arrangements exist for the effective regulation of wages by collective agreement or otherwise and wages are exceptionally low.' The minimum Wages Act passed by the Indian legislature last year was found necesssary on both these grounds.
In foreign countries, particularly Australia, New Zealand, the Unted States of America and Canada, where the national wealth is high, the living wage forms the primary basis of the minimum wage. In these countries there is not much distinction between the two. The I.L.O. monograph on the maximum Wage-Fixing Machinery contains the following passage on the subjects:
The basis specified in various laws include the living wage basis and that of fixing minimum wages in any trade in relation to the wages paid to workers in the same trades in other districts or in relation to the wages paid to workers of similar grade in other trades. There is a third important basis, namely, the capacity of the individual industry or of industry in general, which, though sometimes not expressly mentioned in minimum wage laws, must always be taken into account in practice.... A close relation exists between them. As a basis for wage-fixing it would be valueless to make an estimate of a living wage beyond the capacity of industry to pay. Here capacity of industry as a whole, and not of each separate industries or branch, is to be understood.
From this analysis of the bases of fixing of the minimum wage, it will be seen that, as a rule, though the living wage is the target, it has to be tempered, even in advanced countries, by other considerations, particularly the general level of wages in other industries and the capacity of industry to pay. This view has been accepted by the Bombay Textiles Labour Inquiry Committee which says that ' the living wage basis affords an absolute external standard for the determination of the minimum' and that 'where a living wage creterion has been used in the giving of an award or the fixing of a wage, the decision has always been tempered by other considerations of a practical character :
In India, however, the level of the national income is so low at present that it is generally accepted that the country cannot afford to prescribe by law a minimum wage which would correspond to the concept of the living wage as described in the preceding paragraphs. What then should be the level of minimum wages which can be sustained by the present stage of the country's economy Most employers and some Provincial Governments consider that the minimum wage can at present be only a bare subsistance wage. In fact, even one important all-India organisation of employees has suggested that 'a minimum wage is that wage which is sufficient to cover the bare physical needs of a worker and his family.' Many others, however, who have replied to our questionnaire, consider that a minimum wage should also provide for some other essential requirements such as a minimum of education, medical facilities and other amenities. We consider that a minimum wage must provide not merely for the bare sustenance of life but for the preservation of the efficiency of the worker. For this purpose, the minimum wage must also provide for some measure of education, medical requirements and amenities.
48. We may advert once again to the decision is U. Unichoyi v. State of Kerala. Gajendragadkar, J., dealing with the attack to the notification made in that case on the merits observed that the determination of minimum wages must inevitably take into account several relevant factors and the decision of this question has been left by the Legislature to the Committee which has to be appointed under the Act. When a committee consisting of the representatives of the industry and the employees considers the problem and make its recommendations and when the said recommendations are accepted by the Government it would ordinarily be not be possible for the Court to examine the merits of the recommendations as well as the merits of the wage structure finally notified by the Government.
49. We think it will be quite pertinent to refer in this context to a plea similar to that urged in this case that an examination of the various proposals made by the Government would clearly show that the Government was out to fix fair wages and not minimum wages. Referring to this plea Justice Hegde, in the decision, to which we adverted earlier Chandra Bhavan Boarding & Lodging v. State of Mysore, said-
Our attention was not drawn to any material on record to show that the minimum wages fixed are basically wrong. Prima facie they appear to be reasonable. We are not convinced that the rates prescribed would adversely affect the industry or even a small unit therein. If they do, then the industry or the unit as the case may be has no right to exist. Freedom of trade does not mean freedom to exploit. The provisions of the Constitution are not erected as the barriers to progress. They provide a plan for orderly progress towards the social order contemplated by the preamble to the Constitution.
50. We think we should also say in this case that the materials on record do not justify holding that the minimum wages fixed in this case were basically wrong and we also feel that prima facie they appear to be reasonable particularly having due to the background to which we have already made reference. We have indicated that possibly there would not have been such serious objection to the notifications but for the manner in which the Dearness Allowance has been linked to the wages. We feel it will bear repetition to state that there can be no objection as to the mode adopted for such linking and in fact it is a more realistic approach to the question of linking Dearness Allowance with average consumer price index numbers.
51. Before closing our discussion on this question, we have necessarily to advert to counsel's argument that piece rate workers earn more on the standard output than the time rate workers,
52. It may not be possible to mathematically equate the wages fixed on piece rates to that on time rate on the standard output as basis and unless it is shown that there is unreasonable difference we do not think that there is any case to doubt the propriety of such fixation. In this context we may refer to Section 3(2) of the Minimum Wages Act which provides-
(2) The appropriate Government may fix-
(a) a minimum rate of wages for time work (hereinafter referred as 'a minimum time rate ');
(b) a minimum rate of wages for piece work (hereinafter referred to as ' a minimum piece rate ');
(c) a minimum rate of remuneration to apply in the case of employees employed on piece work for the purpose of securing to such employees a minimum rate of wages on a time work basis (hereinafter referred to as ' a guaranteed time rate')
(d) a minimum rate (whether a time rate or a piece rate) to apply is substitution for the minimum rate which would otherwise be applicable, in respect of over-time work done by employees (hereinafter referred to as ' overtime rate').
It has not been indicated in the statute that the minimum time rate and minimum piece rates should be linked in the manner contended by appellants' counsel, namely, that the minimum piece rate fixed on the standard output should work out to be the minimum time rate. We are told that in plantations normally time rate and piece rates are adopted for different kinds of work and therefore there is no question of comparing the wages of time rate workers with that of piece rate workers. Possibly so. But we do not want to go into the question further, for, we do not find any vitiating factor in the fixation of piece rates, in view of the provisions in Section 3(2) of the Act.
53. It is said that the revision cannot be said to have determined the minimum wages since Dearness Allowance indicated in the notification works out to more than 100 per cent neutralisation. The contention in this regard taken in the Original Petitions is in ground 'p' in the petitions and this reads:
The provisions of the rates of dearness allowance for categories other than men, result in payment of dearness allowance neutralised at more than 100 per cent on account of the fact that the dearness allowance given to a woman worker, is, for example, the same as that of a male worker whereas the basic wage of a woman worker is less than that of a male worker. In thus providing more than 100 per cent neutralisation, the total wage that is provided is more than the minimum wage and in that view also the Notification is not authorised by the provisions of the Minimum Wages Act.
It is true that the dearness allowance is the same for male and female workers though their basic wages differ. Naturally therefore the dearness allowance works out to a higher percentage of the basic wages in the case of female workers. Though at first sight this may appear to indicate more than 100 per cent neutralisation towards the rise in cost of living in the case of women workers the answer furnished in the counter-affidavit meets the point. It is the case of the State that though traditionally there was a gap between the wages of men and women workers, at-least in employments where the women labour can turn out equal work as the men there is no reason to maintain the gap. There is no reason to assume that the out turn by female labour in tea and rubber plantations would be less than that of the men labour particularly when the women workers attend only to particular items of work such as plucking in tea estates and in these the male workers cannot be said to be more efficient. Hence it is contended for the State that there is no reason to perpetuate the gap in the wages paid to women but all the same the Government, taking due note of the traditional resistance to the idea of equal pay to women and men, was attempting to reduce the gap by gradual degrees, The result was that while the existing differential was retained in the basic wages that was not maintained in the dearness allowance content of the wage packet. It is pertinent to point out that even in Ext. P6 proposal for revision of minimum wages in the tea and lubber plantation industry published in November, 1968 dearness allowance was proposed for workers at the rate of 2 paise per day for every 5 points in excess of 650. No distinction was sought to be made between male and female workers or adolescents and children. The memorandum of settlement, Ext. 17 reached between the labour and the managements regarding the wage rates and other issues relating to the workmen in tea and rubber plantations on the 10th May 1969 continued the existing scheme of dearness allowance with the only difference that there would be no ceilings as there was till then, Ext. P8 minimum wage revision dated 25-3-1970 in the tea and rubber industry also continued the same scheme of dearness allowance. In a later settlement of 10th June, 1971, Ext. P9, the employers agreed that the dearness allowance to tea and rubber will be raised by 28 paise and 30 paise per day respectively. Ext. P15 settlement reached after Ext. P12 series proposals also indicated that while basic wages for adult male worker and adult female worker were different the same dearness allowance rates were adopted both in the tea and the rubber industries and it is further seen that the same dearness allowance rates were adopted in regard to adolescents and children though their basic wages differed. The scheme of 100 per cent neutralisation was evidently not a formula which was ever applied in the industry. We are only referring to this to show that prima facie there does not appear to be anything unreasonable in the mode of dearness allowance fixation. Not that this by itself would be a complete answer. But keeping this in view we are inclined to accept the contention of counsel for the State that for the purpose of considering whether the wages fixed could be said to be higher than the minimum wages it is not the quantum of the different components that matter but the total wage packet the worker ultimately receives. If that exceeds what may be said to be minimum wages there can be cause for complaint. That has not been shown to be so in this case by reference to any data. On the other hand, what is clearly indicated is that the Government has followed the same scheme as in the earlier notifications and settlements, a scheme to which there was evidently no objection over the years possibly because both the employers and the employees considered the total wages payable to the workmen as more relevant than the break-up of such wages. It is not as if there is any statutory provision which prohibits splitting up of wage packets in the manner it has been done and if there is such prohibition we need only consider whether the impact of the revision would result in a wage structure which cannot be characterised as that of minimum wages.
54. In this context it may be pertinent to mention that equal pay for equal work for men and women is a goal which the State must strive to achieve. Our attention has been drawn to resolution No. 100 of the Geneva Convention of the International Labour Orgamsation in 1958 and it is said by counsel for the State that the Government will be only acting rightly in bringing the pay of female workers on a par with that of the male workers in employments where they can turn out the same work as the male workers and since in the case of employment in the tea and rubber plantation that is said to be the case the Government would have been justified even in fixing the same pay for women as that for the men. That, it is said, has not been done only because the State wanted to bring about this change by gradual degrees. That apart, another contention urged by counsel for the workmen appears to us to deserve serious notice. The purpose of dearness allowance being to neutralise the increase in the cost of living it may properly be asked whether irrespective of any difference in wages paid dearness allowance should not be the same for male and female workers and for that matter for adolescents and children. Again in industries where the existing dearness allowance operates at more than 95 per cent neutralisation the question may arise whether the neutralisation already achieved should be protected. The National Commission on Labour with the former Chief Justice of the Supreme Court, Justice Gajendragadkar as its Chairman in its report, signed on 28th August, 1969 had occasion to consider this question at paragraphs 16.48 and 16.49 and we think we may extract this passage with profit.
16.48. As pointed out earlier, minimum wages in non-scheduled industries have been fixed as a result of collective bargaining, arbitration or adjudication. The percentage neutralisation of the rise in the cost of living in non-scheduled industries has been fixed by the same process. We are aware that in some non-scheduled industries and units, dearness allowance is paid to the worker on the basis of neutralising in full the rise in price in case of persons at the minimum level. Our recommendation of 95% neutralisation for minimum wage earners in non-scheduled industries should not be allowed to have any adverse effect on such agreements or on award rates of dearness allowance. The higher rates of neutralisation already achieved should be protected.
16.49. A suggestion that has been before us is that only the quantum of D.A. permissible to the lowest paid employee should be paid to those at higher levels of wages/salaries to whom D.A. may be admissible. The justification for it is sought in its simplicity, and in the argument that the principal aim of D.A. being to compensate only the increase in the prices of essentials, it should not vary with income level. On the other hand, some others argue that payment of a flat amount of D.A. is responsible for a substantial narrowing of wage differentials and such narrowing down acts as a disincentive to improve effort and affects production and productivity, particularly in the case of skilled workers. On this account, it is claimed that while percentage neutralisation may taper off beyond the minimum, at higher levels it need not necessarily result in the payment of same amount of D.A. at all levels. This, however, assumes that the current differentials are justifiable on grounds of productivity and that our commitment to a socialist pattern of society will not eventually abridge these distances. There is little justification for these assumptions, According to our view, the only purpose of dearness allowance is to enable a worker in the event of a rise in cost of living to purchase the same amount of goods of basic necessity as before. This purpose would be served by an equal amount of dearness allowance to all employees irrespective of differences in their emoluments. But those employees, who are at present getting an amount of clearness allowance higher than what is admissible on the basis of our recommendations, will not be deprived of that, though for any additional increase in the cost of living, they will be entitled only to the same amount of dearness allowance as is given to persons receiving the minimum wage.
55. It is sufficient for us to state that on this part of the case the appellants have not succeeded in showing that the impact of the total of the wages paid, that is the basic wages and the dearness allowance together, exceeds the minimum wages. There is no material available to us to hold so. Hence the challenge to the notifications on this ground must fail.
56. Now we come to the last of the contentions and that relates to certain directions in these three notifications which are said to be objectionable. Our attention has been drawn to 4 specific matters in this connection and these are the following Clauses (1) In case the employees in any region are actually in receipt of higher wages than the minimum wages fixed they shall continue to get the benefit of higher wages. (2) The minimum wages notified are based on the assumption that employers will provide work for their workers throughout the year, failing which the workers will be given their minimum wages for the day on which they are involuntarily unemployed. But the obligation of the employer is only to offer some kind of work connected with the plantations and a worker who refuses to accept that work will automatically forfeit his claim to the wages also. (3) Where existing differentials are higher they shall be maintained. (4) The supervisors shall be on a scale of pay.
57. We will now take up the first two 6! the 4 Impugned directions enumerated above. The main attack against the two directions is that they are outside the purview of the Act as the Act enables the appropriate government only to fix the minimum wages and nothing more. Section 3(1) of the Act enables the appropriate Government to fix the minimum wages in the manner provided and to revise such minimum wages at intervals. Sub-section (2) of this section specifies the category of minimum wages that could be fixed, minimum time rate, minimum piece rate, guaranteed time rate and overtime rate. Section 2(A) which was incorporated in the Act by Act 31 of 1961 provides that when, in respect of an industrial dispute relating to rates of wages payable to any of the employees employed in a scheduled employment, any proceeding is pending at the time or an award is in operation, and a minimum wage notification is issued during the pendency of such proceedings or operation of the award, the minimum wages so fixed or so revised shall not apply to those employees during the period when the proceedings are pending and the award made therein is in operation. Sub-section 3 of this section enables different rates of wages to be fixed and different minimum rates to be fixed for different wage periods. The appropriate Government has no authority to travel beyond these provisions. According to the employers the direction that those who were in receipt of higher emoluments will continue to receive them and the provision that the workers will be paid their minimum wages for the days on which they are involuntarily unemployed are beyond the scope of the Act. This contention appears to be attractive. But on a closer examination we cannot find these directions to be outside the purview of the Act and, therefore, incompetent. Even if these directions are incompetent it is agreed that the notifications as such would not be bad as the four impugned directions are severable. But it appears to us that for more reasons than one it cannot be said that any of the directions are beyond the competency of the appropriate Government. When minimum wage notifications fix or revise the minimum wages payable in any industry that would not affect the existing wage structure to the determent of the employees. Wherever wages are higher they would continue to receive the same. The fixation of minimum wages does not enable the employers to claim that they need pay only such wages and not higher wages that were being paid till then. It goes without saying that what is fixed being the minimum those who were receiving higher wages would not be affected by such fixation and if so any provision such as that the employees actually in receipt of higher wages shall continue to get the benefit of higher wages would not really be in the nature of a direction but would only be by way of clarification. According to the State Government there is nothing wrong in making such a provision in the notification by way of clarification and as a measure of abundant caution so as to alert the employers to their legal obligation. Sri T.C.N. Menon, counsel appearing for the State, draws our attention to the fact that apart from the few appellants who have come to the court there are thousands of planters in the State, most of them small holders, and in their case it is necessary or rather desirable to clarify the position and educate them as to their obligation that the fixation of minimum wages notwithstanding they are bound under law to continue to pay higher wages wherever it has been so paid earlier. We find no difficulty to accept this explanation. We see no reason to hold that this is not a clarification when even the State takes its definite stand that it is so. If so, we do not think that it is for this Court to strike down such a direction nor do we find any need to do so. Similar is the case with the direction full employment. We may notice paragraph 31 of the counter-affidavit of the State wherein the reason for such a direction is indicated and that is-
The stipulation in Ex. P20 regarding full employment is intended to ensure that on account of higher wage commitments the employers may not reduce the labour strength. It has been the practice in the industry that whoever such wage rates are given there used to be a tendency to cut down the labour strength and all that the full employment clause in Ext. P20 notification means is that for no fault of the workers they should not be denied employment. The contention that this clause takes away the right of the employers to lay off the workmen under the provisions of the Industrial Disputes Act is misconceived. The concept of full employment has been already accepted in the various judicial pronouncements including a number of decisions of this Honourable Court.
The appellants' apprehension is that this provision is mischievous as it would affect the right of the employers to lay off the labour under the provisions of the Industrial Disputes Act. But there is no scope for this apprehension in view of the categorical stand taken by the State and the Labour Unions appearing in the case representing the workmen. It is common ground now that the provision is not intended to override the provisions of the Industrial Disputes Act or to nullify the right to lay off the workmen if circumstances warrant the same. Subject to such right available to the employers they have been directed to give work to the workmen. It is said for the State as well as the workmen that everyone of the employees is entitled to seek to be employed throughout the year except when there are circumstances justifying the management to-deny employment and therefore the impugned direction conferred to further right on the employees. The provision wag made only to indicate that the minimum wages were fixed taking into account the availability of employment to the workmen throughout the year in the normal course. It is said that without justification they could not be denied employment. Further it is said that there is nothing out of place in such a direction in a notification under the Minimum Wages Act. According to counsel for the Labour Unions representing the workmen in the Plantations of the appellants, Sri M.P. Menon and Sri M.M. Cherian, the consideration of this question is purely academic and has no practical relevance. The practice, over the years, it is said, is to offer employment to those workmen throughout the year and to pay them lay off compensation when circumstances warrant a lay off. Therefore, there is no adverse impact by this clause on the employers or any additional advantages to the workmen. At the hearing the stand taken by counsel for the State is also that this provision was made just to clarify the situation that minimum wages having been fixed assuming the availability of employment to the workmen throughout the year and the obligation of the employer to provide work throughout the year the clause regarding full employment was quite in accordance with the scheme of the Act. We have only to see whether this direction would be beyond the purview of the provisions of the Act, Since the only attack to this clause is on that score we need not go otherwise into the propriety of the direction. We may notice that situations which have bearing on the issue before us have arisen in courts and the courts had occasion to deal with them. When, under a Minimum Wages Notification, wages of the workmen were fixed and provision was made with regard to overtime wages, the question arose whether the notification could be said to be outside the purview of the Act in regard to such fixation of overtime rates when such rate was fixed not with reference to the minimum wages but actual wages. What was fixed there as overtime wages was double the wages and the wages in that context was construed to mean not the minimum wages fixed under the notification but the actual wages that was being received. That would mean that the overtime rates had no relation to the minimum wages prescribed as time rate. The existing rates of wages would vary from person, to person, from employer to employer and from one kind of work to another and when overtime rates are fixed with reference not to any fixed minimum wage applicable to any class of persons in the industry it was said that it was outside the ambit of the Minimum Wages Act. Dealing with such a plea the Supreme Court in Y.A. Mamarde v. Authority under M.W. Act : (1972)IILLJ136SC , held-
This rate, in our opinion, is intended to be the minimum rate for wages for overtime work. The extra strain on the health of the worker for doing overtime work may well have weighed with the rule-making authority to assure to the worker as minimum wages double the ordinary wage received by him so as to enable him to maintain proper standard of health and stamina. Nothing rational or convincing was said at the bar why fixing the minimum wages for overtime work at double the rate of wages actually received by the workmen should be considered to be outside the purpose and object of the Act. Keeping in view the overall purpose and object of the act and viewing it her moniously with the general scheme of industrial legislation in the country in the background of the Directive Principles contained in our Constitution the minimum rates of wages for over time work need not as a matter of law be confined to double the minimum wages fixed but may justly be fixed at double the wages ordinarily received by the workmen as a fact.
Reference may also be made to the challenge to the direction contained in a minimum wage notification that 'the existing tasks and hours of work shall continue until further orders.' There was an existing work load in tea plantations in the State of Assam of 16 seers of tea leaves to be plucked by the male labourers and 12 seers of tea leaves to be plucked by the female labourers. Without referring to this task load the minimum wages for the male and female labourers were fixed at Re, 1 as. 2 ps 0 and Re. 1, respectively. It was in the same notification that the impugned direction was made. The question arose whether this was competent and whether the work load had any bearing when the minimum wages were determined. Dealing with this question the Supreme Court in the decision in A.M. Allisor v. P.L. Sen : (1957)ILLJ472SC , said thus:
It is argued that the continuance of the existing work-load or task which was thus provided for had no relation to the basic wages which were fixed for the male and female labourers respectively but was only intended to prevent the employers from increasing the existing work-load or task with a view to make up for the increase in basic wages. This argument, however, does not take count of the fact that there was existing at the date of the notification a work load or task which was the basis of the payments used to be made to the labourers, the basic wages paid to them being calculated at the rate of 6 ps. per seer of tea leaves plucked by them. The labourers were thus being paid the basic wages of as. 8 for male labourers and as. 6 for female labourers for the workload or task of plucking 16 seers and 12 seers of tea leaves respectively and the sole intention of the Government in issuing the notification was to increase these basic wages of as. 8 and as. 6 to as. 12 and as. 11 respectively while maintaining the same basic workload or task assigned to the male and female labourers. If the intention was not to correlate these basic wages to the basic workload or task which already existed and if the same state of affairs was to continue, viz., that the labourers would continue to be paid the basic wages on the computation of 6 ps. per seer of green leaves plucked by them, there was no sense whatever in increasing the basic wages from as. 8 to as. 12 for male labourers and from as. 6 to as. 11 for female labourers as was sought to be done by issuing the notification in question. The acceptance of the contention of the appellants would mean that no advantage whatever was sought to be conferred by the Government on the labourers engaged in plucking leaves in these tea estates which intention can scarcely be attributed to the Government. We are, therefore, of opinion that what was fixed by the notification was not merely a minimum time rate irrespective of the existing workload or task which used to be performed by the labourers but was a minimum wage which, though fixed for time work, was necessarily correlated to the workload or task then being performed by these labourers so that whatever extra work was done by the labourers in excess of the existing workload or task of plucking 16 seers of tea leaves in the case of male labourers and 12 seers of tea leaves in the case of female labourers had to be paid for in accordance with practice then prevailing, whether it was based on agreement or ticca or custom, at the rate of 6 ps. per seer. The conclusions reached in this behalf both by the Deputy 'Commissioner, Sibsagar, and the High Court are, therefore, correct and cannot be challenged.
We may also refer in this context to a decision of the Supreme Court in Tea Estates' Management v. I.N.T.U.C. Dibrugarh : (1956)IILLJ291SC . On 11-3-1952 the Government of Assam issued a notification in exercise of the powers conferred on it by the Minimum Wages Act and fixed minimum wages of the workers employed in the, Tea Gardens of Assam at certain cash rates. Paragraph 2 of the notification provided-
The rates are exclusive of concessions enjoyed by the workers in respect of supplies of foodstuffs and other essential commodities and other amenities which will continue unaffected. The existing tasks and hours of work may continue until further orders.
There was an obligation on the part of the employers at that time to pay cash compensation to the workmen for reduction in the rice quota. The court held that even assuming that the minimum wages Committee included within its calculation of the minimum wage the cash compensation which was being paid by the employers to the workmen for cut in rice ration, the Government could nevertheless provide that the cash compensation be paid by the employers to the workmen as hithertofore in addition to the minimum wage which was fixed,
58. We may also observe here that the Minimum Wages Committee for Plantations appointed by the Government of Travancore-Cochin by notification dated 29-8-1951 had in its report of 6th March, 1952 dealt with the question of Full Employment as follows:
Full Employment: The minimum wage is based on the assumption that employers will provide work for their labour force throughout the year, failing which the labourers will be given their minimum wages for the days on which they are involuntarily unemployed. But the obligation of employers is only to offer some kind of work connected with the estate and a worker who refuses to accept that work will automatically forfeit his claim to the wage also.
59. This clause accordingly found a place in the Minimum Wages Notification, Ext. P1, of 30-6-1952 and also in the subsequent minimum wages revision notification, Exts. 15 and P8. Therefore it was not anything now that was introduced by the impugned notifications. In the light of our earlier discussion we do not think the direction regarding full employment is beyond the purview of the Minimum Wages Notification. Even assuming it is so it is not necessary to strike it down as it does not in any way add to or alter the obligation of the employers as stated by the respondents in these petitions and is only clarificatory in effect. So is the case with the provision for payment of the existing wages when they are higher.
60. We have now only to deal with two more directions in Exts. P20, P21 and P22 which are impugned. They relate to the provision with regard to the continuance of existing differentials and the provision as to scale of pay of Supervisors. In regard to the former we think that there is no scope for any attack. If, as held by the Supreme Court, pro vision could be made for overtime wages being related to existing wages, we do not think that it will be unreasonable or improper to maintain the existing differentials in the wages. The differential is only in the case of factory workers. With regard to them the provision in the notification is that they shall be paid in addition to the time rates fixed for the respective categories certain differentials that being 27 paise per day for adult male, 20 ps, per day for adult female and 15 ps. per day for adolescents in the tea industry and same in the rubber industry except that the differential in regard to adolescents is 13 ps. per day. Taking into account the more arduous nature of the duties of the factory workers their minimum wages has been fixed with reference to a differential. It is not argued that having regard to the nature of the work there cannot be a higher fixation for the factory workers or that the quantum of the differential notified is bad. Maintaining a differential may be necessary, for, otherwise anomalous results may follow. To cite a simple instance, where the pay of a field worker is Rs. 5 and of a factory worker is Rs. 5.50 and, therefore, there is a differential of 50 ps., if the minimum wage of a field worker is increased to Rs. 5.10, it is only proper to keep up the existing differential in the case of the factory worker which would result in his minimum wage being fixed at Rs. 5.60. If, on the other hand, the differential is to be what is fixed under notification, namely, 27 ps. he would draw Rs. 5.10 + 27 ps., that is Rs. 5,37 per day which would be less than his existing salary. We are referring to this only to indicate how such results may follow unless provision is made to meet the situation. Keeping up the differential after fixing the minimum wages as between the field workers and the factory workers does not appear to be outside the purview of the Act. We also do not see any objection in the scale of pay pro-vided in the case of Supervisors. It is said that their number is quite small and they stand as a category different from the labourers as well as the staff in whose case salary revisions are made by the management from time to time. It has not been shown to us by reference to any provision of the Act that prescribing a scale of wages for supervisors would in any way be beyond the purview of the Act and therefore we do not think that this attack deserves serious consideration.
61. We do not find any reason to a strike down the impugned notifications. We hold that these notifications, Exts. P20, P21 and P22 are within the scope of the powers of the State Government and it has not been shown that these are liable to be successfully attacked as incompetent. Hence we confirm the decision of the learned single Judge and dismiss all the appeals with costs.