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Judgment
G.P. Singh, C.J.—The petitioners, whe are bidi manufacturers, by this petition under Article 226 of the Constitution, challenge the notification dated 19th December 1979 (Annexure-B) issued under sections 3 and 5(2) of the Minimum Wages Act, 1948 fixing rates of minimum wages for certain classes of employees.
The proposal to fix minimum wages for three classes of employees, namely, Munim, Chowkidar and Cook (Rasoiya) was published on 25th June 1979. The notice publishing the proposal stated that the proposal will be taken into consideration after the expiry of two months from the date of publication of the notification in the Madhya Pradesh Gazette. It further stated that any objection or suggestion which may be received from any person with respect to the said proposal within the said period will be considered by the State Government. The proposal notified in so far as relevant was as follows:
SCHEDULE
Classes of Employees Proposal rates of Minimum Wages.
1
2
Zone I. Rs. P.
Zone II. Rs P.
Per month
Muneem�
225.00
200.00
Chokidar�
145.00
115.00
Chook (Rasoiya)�
240.00
200.00
EXPLANATION
For the purpose of this Notification:--
1 (a) Zone I shall comprise of cities/towns with a population of 50,000 and above, including an area of 8 kms, from the Municipal Corporation/Municipality limits and where such Muncipal Corporation [Municipality does not exist with such area shall also include area of 8 kms. from the limits of such city/town.
(b) Zone II shall comprise of all the places not included in Zone I mentioned above.
The petitioners submitted their objections within two months of the date of the notification of the proposal and they were heard. After consultation with the Advisory Board, the impugned notification dated 19th December 1979 was issued The rates of minimum wages fixed by the impugned notification are as follows:
SCHEDULE
Classes of Employees.
Rates of Minimum Wages.
1
2
Munim /Accountant /Cashier Store Keeper /Head Clerk.
...Rs. 275 00 per month.
Typist/Bill-man, etc.
...Rs, 250-do
Chowkidar
...Rs. 150.00 �do-
Rasoiya
...Rs. 225.00-do
Worker doing the work of tobacco mixture and grinding operations.
�Rs. 200 00 -do-
Unskilled employee for which minimum rates of wages have not been fixed after its classification else where.
�Rs. 150.00-do-
The first contention raised by the learned counsel for the petitioners is that the notification issued u/s 5(1)(b) containing the proposal did not specify the date on which the proposal was to be taken into consideration and that this defect invalidated the final notification fixing the rates of minimum wages. The learned counsel for the petitioners relied upon Narottamdas Harjiwandas Vs. P.B. Gowarikar, Inspector, Minimum Wages, Assistant Labour Commissioner''s Office and Others, in support of this contention. This case does support the contention of the petitioners that specification of the date on which the proposal is to be taken into consideration has to be specified in the notification and that all representations submitted till that date can be considered on the date so specified before finally fixing the rates of minimum wages In the instant case, however, it does not appear that any prejudice was caused to the petitioners. The petitioners do not say that they failed to file any objection which they wanted to file to the proposal because of non-specification of the date in the notification issued u/s 5(1)(b). The petitioners were noticed before the consideration of the representations and were actually heard before the finalisation of rates of minimum wages. In the special circumstances of this case, non specification of the date has resulted in no prejudice whatsoever and it would be a mere technicality if the final notification fixing the rates of minimum wages is quashed on the ground that the notification u/s 5(1)(b) was defective as it did not specify the date on which the proposal was to be taken into consideration.
It was next contended that the rates of minimum wages fixed u/s 3 read with section 5(2) cannot be higher than the rates stated in the proposal. Section 5(1)(b) provides that in fixing minimum rates of wages or in revising minimum rates of Wages so fixed, the appropriate Government shall 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. Section 5(2) then provides that after considering all representations received by it before the date specified in the notification u/s 5(1)(b), the appropriate Government shall, by notification in the Official Gazette, fix or revise the minimum rates of wages. There is a proviso to section 5(2) which says that Where the Government proposes to revise the minimum rates of wages by the mode specified in section 5(1)(b), it shall consult the Advisory Board also. The Advisory Board is Constituted u/s 7 for the purpose of advising the Government generally in the matter of fixing and revising minimum rates of wages. The Board consists of persons to be nominated by the Government representing employers and employees in the scheduled employment. A perusal of the scheme of the sections mentioned above will go to show that the proposal made by the Government u/s 5(1)(b) is not addressed to the employers alone for making representations. The proposal is for the information of persons likely to be affected by the fixation or revision of minimum wages. The employers and the employees are both ''persons likely to be affected'' by the fixation or revision of minimum wage within the meaning of section 5(1)(b). Just as the employers can come forward and say that the rates proposed are high, the employees, can make representations and say that the rates are low. It is after considering all such representations that the Government finally fixes the minimum wage u/s 3 read with section 5(2). The Advisory Board is also to be consulted in this matter. The Board, as already noticed, includes the representatives of employees also. From the scheme of these provisions it is difficult to infer that the rates of minimum wages fixed by the notification u/s 5(2) cannot be higher than the rates proposed u/s 5(1)(b). There is no such express limitation contained in the provision and no such implied limitation can be inferred from the scheme of these provisions. The argument of the learned counsel that the employers will have no right to make representations relating to the rate fixed if it is higher than the proposed rate overlooks the scheme that the Government after publication of the proposal u/s 5(1)(b) can receive representations even for increasing the rates fixed in the proposal. If the Government cannot finally fix minimum wage at a rate higher than What is proposed, no useful purpose will be served in allowing the employees or their representatives to represent against the proposal. The learned counsel for the petitioners argued that if the Government feels on the representation of the employees that the rate of minimum wage should be higher than what is initially proposed, then it should issue another proposal and invite fresh representations. Such a procedure, in our opinion, will lead to endless prolongation of the fixation of fates of minimum wages. The scheme u/s 5 does not envisage such a procedure, The object of the notification u/s 5(1)(b) is to intimate to all concerned, i.e. employers and employees, that the Government proposes to fix rates of minimum wages for a particular industry and for particular categories of workman and that it tentatively proposes particular rates. The representations received may show that the proposed rates are low or that they are higher. The final decision is taken by the Government after considering the representations and consulting the Advisory Board. There is no limitation on the power of the Government to fix a higher rate than proposed in the notification u/s 5(1)(b). In our opinion, the contention of the learned counsel that as the rates of wages fixed finally are higher than those proposed, the notification is invalid cannot be accepted.
It was lastly contended by the learned counsel that the proposal related to only three categories of employees, namely, Munim, Chowkidar and Cook whereas the final notification has fixed the rates of minimum wages of many other categories. In our opinion this contention must be accepted A comparison of the notifications u/s 5(1)(b) and section 5(2) will show that Accountant, Cashier, Store-keeper, Head-Clerk who have been included with Munim at serial No. 1 were not mentioned in the proposal. Similarly, Typist Bill-man etc. mentioned at serial No. 2 do not at all find place in the proposal. The same is the case with respect to the workers and employees mentioned at serial Nos. 5 and 6. In our opinion, it is necessary that the proposal must indicate the class or classes of employees for which the Government proposes to fix rates of minimum wages. If a particular class of employees is not indicated in the proposal, neither the employers nor the employees will have any opportunity to make any representation in the matter of fixation of rates of minimum wages for that category and the object behind section 5(11)(b) would be entirely defeated. In this view of the matter, notification u/s 5(2) cannot have application for those classes of employees which are not mentioned in the notification u/s 5(1)(b) The learned Government Advocate submitted that Accountant/Cashier/Store-keeper/Head-Clerk who are included at serial No 1 can be included in the same category as Munim. It is difficult to accept this contention. The work of a Munim may have some resemblance with the work of an Accountant or a Cashier or even a Head-Clerk, but there is no material to hold that in the bidi industry the employees known by these names have to do same or similar work. Moreover, so far as the Store keeper is concerned, it cannot be said that he falls under the same category as Munim. The workers and employees at serial Nos. 5 and 6 are not at all mentioned in the original notification. The final notification u/s 5(2) cannot, in our opinion, be given effect to except in respect of Munim, Chowkidar and Cook who are mentioned in the notification u/s 5(1)(b).
The petition is partly allowed. We direct that the notification dated 19th December 1979 (Annexure B) issued u/s 5(1)(b) will have effect only for (I) Munim. (2) Chowkidar, and (3) Cook, and not for other employees mentioned in it. To that extent, the notification is quashed. There will be no order as to costs. Security be refunded to the petitioner.