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Judgment
These two writ petitions impugn the same notification issued under the provisions of the Minimum Wages Act, 1948, and can, therefore, be disposed of by a common judgment. The impugned notification is dated 29th Jan., 1985 and revises the minimum rates of wages payable to employees in hospitals which are not run by a local authority.
Entry 23 of the Schedule to the Minimum Wages Act, 1948 (hereinafter called "the Act") relates to "employment in any hospital not falling under entry 6 in this schedule". Entry 6 deals with "employment under any local authority". The explanation to Entry 23 reads thus:
"Employment in any hospital not falling under entry 6 in this Schedule
Explanation:- For the purpose of this entry, hospital means any institution for the reception and treatment of persons suffering from illness or mental defectiveness, any maternity home, and any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation, and includes clinics, dispensaries and outpatient departments maintained in connection with any such institution or home as a foresaid."
Under Section 3 of the Act, the appropriate Government (the 1st respondent in this case) is empowered, in the manner thereafter provided, to fix minimum rates of wages payable to employees in employments specified in the Schedule and in employments added to the Schedule by notifications u/s 27. Section 4(1) reads thus:
"4. Minimum rate of wages (1) Any minimum rate of wages fixed or revised by the appropriate Government in respect of scheduled employments under 3 may consist of......
(i) a basic rate of wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate Government may direct to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the "cost of living allowance'''')".
Section 5 prescribes the procedure for fixing and revising minimum wages. Sub-section (1) thereof empowers the appropriate Government, in fixing minimum rates of wages in respect of any scheduled employment for the first time or in revising rates of wages so fixed to either 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 to publish by notification in the Official Gazette proposals for the information of persons likely to be affected thereby and specify a date upon which the proposals would be taken into consideration. The appropriate Government is required by Sub-section 2 of Section 5, "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, to fix or revise, by notification in the Official Gazette, the minimum rates of wages in respect of each scheduled employment. Section 9 provides for the composition of the committees and requires that they shall consist in equal numbers of persons representing the employers and the employees in the scheduled employments concerned and independent persons not exceeding one-third of the total number of members.
In 1972-73 notifications were issued fixing the rates of minimum wages for employees of hospitals falling under Entry 23 for the Greater Bombay, Vidarbha, Aurangabad and Pune regions. On 1st Sept., 1981 the 1st respondent appointed a committee to advise it in the matter of revision of the minimum rates of wages payable to such hospital employees. The committee submitted its report on 20th Dec., 1983. On 29th Jan., 1985 the impugned notification was issued.
4a. The impugned notification fixes the rates of minimum wages at rates other than those recommended by the committee in its report. It does not give any reason for so doing.
The principal contention raised on behalf of petitioner is that the impugned notification is bad because there was, in the issuance of it, non-application of mind by the 1st respondent, principally to the recommendations in the report of the committee.
The committee is required to be appointed under the Act to hold inquiries and advise the appropriate Government in respect of the fixation or revision of the minimum rates of wages. The appropriate Government is obliged by Sub-section 2 of Section 5 to consider the advice of the committee. Due consideration of the committee''s report by the appropriate Government is, therefore, a sine qua non. Non-consideration of the committee''s report would invalidate a notification fixing minimum wages.
In the affidavit filed on behalf of the respondents in reply to the petitions it is "submitted that the recommendations made by the committee were duly considered and only thereafter the impugned notification was issued. There is specific mention to that effect made in the said notification. The reasons for the Government''s decision are recorded at appropriate place". In a further affidavit on behalf of the respondents it is asserted that the impugned notification was issued "after carefully considering the recommendations of the committee...".
The impugned notification recites that the committee was appointed to advise the 1st respondent in the matter of revision of the minimum rates of wages and that the committee had submitted its report. It does not state that the Government had considered the report.
Mr. Gangal, learned Assistant Government Pleader, was asked to produce the reasons for the 1st respondent''s decision which were recorded at an appropriate place. He has tendered a zeroxed copy thereof (which has been marked Exh. 1.). It is this document which must reveal whether the 1st respondent applied its mind and gave due consideration to the report of the committee before issuing the impugned notification.
The first portion of this document is the submission. It states that "a comparative statement showing the position regarding minimum wages in hospitals and dispensaries" had been prepared. A copy of the 1st respondent''s notification dated 1st Dec., 1984 revising minimum rates of wages in respect of employees in dispensaries was also placed for consideration. The submission states that it was for the consideration of the 1st respondent which of the alternatives suggested in the comparative statement should be adopted while fixing revised minimum rates of wages in respect of hospital employees.
The decision taken by the Minister of State for Labour for and on behalf of the 1st respondent, which is the latter part of the document, Exhibit 1, reads thus:
"An application was moved by the Assistant Government Pleader, Nagpur, before the Bench at Nagpur of the High Court of Judicature Bombay, for extension of time. I am told by the Asstt. Government Pleader that one month''s more time has been granted. I have studied the file and the issues involved. As per the observations of the High Court in Writ Petition No. 1977 of 1983 in respect of the disparity in the minimum rates of wages in the two different scheduled employments, i.e. Canteens and Hotels, it will not be proper to have much difference in the minimum rates of wages fixed for employees in dispensaries, vide Notification, dated 1.12.1984 and those in hospitals. The activities and nature of duties of employees working in dispensaries and hospitals is no doubt identical and, therefore, it would not be desirable to fix the minimum wages for employees in the hospitals at lower rates than fixed for dispensaries. In case there is disparity, the same will not stand to judicial scrutiny.
I am, therefore, of the view that the same rates of wages, including special allowances, for different categories of employees and for different zones, as fixed for employees in dispensaries as per Notification of 1.12.19 8 4 be fixed for employees employed in hospitals also, and the same be made effective from 26th January 1985".
There is in the decision taken by the Minister of State for Labour on behalf of the 1st respondent not even a mention of any of the recommendations of the report made by the committee. There was, therefore, no application of mind to and no due consideration thereof. I shall assume that the comparative statement prepared as aforestated set out the figures of the minimum wages recommended by the committee in its report. Rejection of these figures without consideration of the reasons which moved the committee to recommend them is not due consideration of the recommendations of the committee.
It is patent from the decision that the impugned notification was issued only upon the basis of the 1st respondent''s notification dated 1st December 1984 fixing minimum wages for dispensary employees and that this was done on the interpretation of a judgment of this court.
The reference in the decision is to the judgment of a learned single judge of this court in O.O.C.J. Writ Petition No. 1977 of 1983. The judgment dealt with the minimum rates of wages for employees in residential hotels, restaurants and eating houses (item 13) on the one hand and in canteens and clubs (item 27) on the other. Prior to the notifications under challenge in that writ petition the 1st respondent had treated employees in hostels and restaurants on a par with employees in canteens and clubs. The notifications under challenge differentiated between them. The petitioner''s contention was that there was no reason to make the differentiation. The learned judge noted that the 1st respondent had, therefore, treated the two classes of employees alike. In his judgment too, they did not stand on a different footing. The 1st respondent had not stated why the differentiation had been made in the notifications under challenge. Accordingly, the learned judge struck down these notifications and ordered the 1st respondent either to appoint a fresh committee to recommend revised minimum rates of wages or to extend the provisions of the notification fixing minimum rates of wages for employees in clubs and canteens to employees in hotels and restaurants.
There can be little doubt that if there are workers in different employments whose duties and functions are similar, they should be similarly treated in the matter of minimum wages, given their employers'' capacity to pay.
The question is whether the duties and activities of hospital employees and of dispensary employees are similar. There appears from the decision to have been no application of mind to this question.
The observation in the decision that "the activities and nature of duties of employees working in dispensaries and hospitals is, no doubt, identical" would appear to have been the ipse dixit of the Minister unsupported by data or inquiry. Those employed in hospitals and those employed in dispensaries are covered by separate entries in the Schedule to the Act. Those employed in dispensaries had heretofore been treated by the 1st respondent differently from those employed in hospitals. The 1st respondent had constituted separate committee for recommending revisions in wages payable to hospital employees and to dispensary employees. There was no other material upon which it could be found that the activities and nature of duties of hospital employees and dispensary employees were identical. In finding that their activities and nature of duties were "no doubt identical'''', the 1st respondent displayed non-application of mind.
Mr. Gangal relied upon the fact that the categorisation of staff employed in hospitals under the impugned notification and in dispensaries under the notification dated 1st December 1984 was similar. This dispensaries notification fixes minimum wages for such employees in dispensaries as nurses doing dialysis, nurses working in Intensive Cardiac Care units, physicists, laboratory technicians, X-ray technicians, clerks and cooks. We asked Mr. Gangal whether the report of the committee appointed to advise the 1st respondent in respect of the revision of wages of dispensary employees indicated that that committee had in the course of its inquiries come across any dispensary which employed such staff or had such facilities. Mr. Gangal stated that the report did not so indicate. In fact, the report mentions that, most of the dispensaries have only one employee. It referees to a dispensary in Shegaon which employs a larger complement of staff but even that complement does not include such specialised staff as is mentioned above. It would appear then, that the dispensary committee recommended minimum wages for such staff upon no data.
There might be something to be said for fixing the minimum wages of classes of employees in dispensary who are more normally employed in hospitals upon the basis of the recommendations of the hospital committee. There is nothing to be said for fixing the minimum wages of classes of employees who are more usually employed in hospitals upon the basis of recommendations of the dispensary committee, though accepted by the 1st respondent and issued in the form of a notification.
The impugned notification was issued by the 1st respondent ignoring the report of the committee which it had constituted to advise it is which had made the necessary inquiries in hospitals all over the State. It was issued exclusively upon the basis of the notification issued by it fixing the minimum rates of wages for dispensary employees. The impugned notification must, therefore, be quashed and set aside.
Our attention was drawn to the judgment of the S.C. Ministry of Labour and Rehabilitation and Another Vs. Tiffin''s Barytes Asbestos and Paints Ltd. and Another, . The Supreme Court emphasised that notifications fixing minimum wages were not to be lightly interfered with under Article 226 on the ground of some irregularities in the constitution of the committee or in the procedure adopted by the committee. It had to be remembered that the committee acted only as a recommendatory body and the final notification fixing minimum wages had to be issued by the appropriate Government. A notification fixing minimum wages in a country where wages were already minimal should not be interfered with except on the most substantial grounds. The legislation was a social welfare legislation undertaken to further the Directive Principles of State Policy and action taken pursuant thereto could not be struck down on mere technicalities.
What we have here are not irregularities in the constitution of the committee or in the procedure adopted by it or mere technicalities. We have a most substantial ground, a breach of a requirement of the Act, namely, that the appropriate Government shall take into consideration the recommendations made by the committee appointed by it under the Act to advise it in the matter of revision of minimum wages.
It was submitted that powers under Article 226 should not be exercised in this case. Failure by the appropriate Government to give due consideration to the report of the committee might in a given case adversely affect employees. If we do not interfere here because it might benefit employers, we shall sanction a course of conduct that has no legal justification and that might in future adversely affect employees.
It was contended, and not disputed, that the rate of neutralisation in the special allowance fixed by the impugned notification exceeded the minimum permissible 100 per cent and that the notification had to be struck down on that account. The Supreme Court in C.V.K.U. Sahakari Mandi v. G.S. Barot, (1979) II LLJ 385 noted that an employer was entitled to complain if the neutralisation exceeded 100 per cent. An award of more than 100 per cent would in effect give the worker an increased wage. The Supreme Court struck down the award which provided for dearness allowance of more than 100 per cent neutralisation and directed that it would be confined to 83 paise for an increase of one point, i.e., limited it to cent per cent neutralisation.
Mr. Gangal relied strongly upon the modification of the award made by the Supreme Court and suggested that we should modify the impugned notification to confine it to cent per cent neutralisation. We arc not here dealing with an award or a notification issued qua a single employer. We are dealing with a notification which covers all hospitals in the State other than those run by local authorities. It would not be possible, in the circumstances, to modify the impugned notification by means of a judgment and order. The notification would have to be struck down and the 1st respondent ordered, when it issues a fresh notification, to ensure that the neutralisation does not exceed 100 per cent.
Another point has been argued on behalf of the petitioners but I do not find it necessary to consider it, having regard to what I have held above.
In the result, the notification dated 29th January 1985 revising the minimum rates of wages of employees in hospitals in the State, other than those run by the local authorities is quashed and set aside. The 1st respondent is ordered to issue, within a period\\ of three months from today, a fresh notification revising such minimum wages. The fresh notification shall be issued after due consideration has been given by the 1st respondent to the report of the committee appointed to advise it in this behalf and to this judgment. In fixing the minimum wages the 1st respondent shall take into account the increase in the Consumer Price Index between the dale upon which the committee made its report and the date upon which it issues the fresh notification. In the fresh notification the special allowance shall be fixed by the 1st respondent upon the basis that neutralisation shall of not at any point of lime exceed 100 percent.
Rule absolute accordingly.
No order as to costs.