A. Sattar Salehmohammad v. Raghubir Thakur — 1962 DIGILAW 117 (PAT)

Judgment Untwalia, J. 1. This is an application under Sec.115 of the Code of Civil Procedure filed on behalf of the Mutipur Zamindari Co. (Private) Ltd. against 26 of its employees challenging the order dated the 22nd August, 1959, of the Presiding Officer of the Labour Court, North Bihar, Muzaffarpur, who is the authority appointed under the Minimum Wages Act, 1948 (Central Act 11 of 1943), hereinafter referred to as the Act. 2. Twentynine workmen filed an application under Sub-section (3) of Sec.20 of the Act in the Court below for a direction to the Chief Executive Officers or the Company to pay to them their wages for the tour Sundays of the month of April, 1959, together with compensation. Their case was that they were entitled to wages for the said 4 weekly holidays by virtue of notification No. VI/W3-1088/59 L-4068 dated the 4th March, 1959, published in the Bihar Gazette of the 1st April, 1959, fixing the minimum rates of wages for agricultural employment in the district of Muzaffarpur, read with Rule 23 of the Bihar Minimum Wages Rules, 1951, hereinafter referred to as the Rules. The notification dated the 4th of March, 1959, was exhibited and marked Ex. 1 in the Court below. 3. On behalf of the employer, the application was resisted on the ground that it was not legally maintainable and the workers were not entitled to wages for the alleged weekly holidays as the Government of Bihar had not issued notification providing for a day of rest as required by Sec.13 (1) of the Act subsequent to the issuance of the notification (Ext. 1). Its (employers) further case was that none of the applicants had been doing the work which had been specified in the schedule attached to Ext. 1 and as such it could not be said that the Government of Bihar had fixed minimum rates of wages for the kind of work done by them, in the Court below, the last stand taken on behalf of the management was that, the normal working hours of the applicants being 9 hours per day as fixed in the notification, they could not be entitled to any rest day as they work only for 48 hours in a week, that is to say, at the rate of 8 hours a day for the 6 days of the week. 4. 4. The Labour Court has held that the 26 of the applicants engaged in agriculture were entitled to a rest day or a weekly holiday and to payment of wages for such days but 3 of them were not so entitled for the reasons mentioned in the 6th paragraph of its order. It has also held that the duty performed by the said 25 applicants was such as was covered by the notification (Ext. 1). The last contention put forward on behalf of the management that the applicants were not entitled to wages for the weekly holidays because they had worked only for 48 hours in a week, has also been rejected by the Court. 5. On behalf of the petitioners, with reference to the various provisions of the Act and the Rules, it was argued that the opposite parties are not entitled to any wages for the 4 Sundays in question as the State Government did not provide for a day of rest and for payment for work on a day of rest for the employees, as required by Sec.13 of the Act. A supplementary affidavit was field on behalf of the petitioners stating that the Government of Bihar in its Department of Labour by notification no. 111/DL-1001/57-13354 dated the 29th July, 195/, referred certain disputes including rates of wages for adjudication by the Industrial Tribunal, Bihar, A copy of the said notification is annexure A to the supplementary affidavit. Reference Case 17 of 1957 started on the said reference under Sec.10(1) of the Industrial Disputes Act, 1947, is still pending. Items 1 and 3 of the said reference relate to the questions as to whether the workmen be allowed weekly rest day, leave and holidays; if so, what should be the amount and procedure for granting the same; and what should be the wages of each of the categories of workmen, etc. This supplementary affidavit was filed and a new point has been taken in this revision because of the introduction of Sub-section (2A) in Sec.3 of the Act by Act 31 of 1961, which came into force sometime in August, 1961, that is to say, long after the assailed decision of the Labour Court. This supplementary affidavit was filed and a new point has been taken in this revision because of the introduction of Sub-section (2A) in Sec.3 of the Act by Act 31 of 1961, which came into force sometime in August, 1961, that is to say, long after the assailed decision of the Labour Court. It has been submitted on behalf of the petitioners that, in view of the said new provision of law, during the pendency of the reference under the Industrial Disputes Act embracing within its scope the very point which has been decided by the Labour Court in the present proceeding, the opposite parties cannot be held entitled to any weekly rest day or any payment of wages for such day. On behalf of the workmen opposite parties, Mr. Ranen Roy combated both the points urged by Mr. A. B. N. Sinna on behalf of the petitioners. The Additional Government Pleader, who probably appeared on behalf of the State, supported the case of the workmen and also raised a preliminary objection that, after coming into force of the Constitution on the 26th of January, 1950, the proper and appropriate remedy for challenging such decision as the one in question is under Article 226 or 227 of the Constitution as the Labour Court or the authority appointed under the Act is not a Court subordinate to the High Court within the meaning of Sec.115 of the Code of Civil Procedure. On the facts and in the circumstances of this case, we did not think it necessary to go into this preliminary objection raised as the case was before a Division Bench and it could be dealt with and disposed of even under the said provisions of the Constitution. In this view of the matter, the learned Additional Government Pleader did not press his preliminary objection and I need not decide this in this case. 6. Although, from the point of amount of wages claimed in the case, it is a small one, the points urged for our consideration have presented some difficulty and have got to be decided with reference to the various provisions of the Act and the Rules. Under Sec.3(1)(a) of the Act the appropriate Government shall, in the manner hereinafter provided : "......... Under Sec.3(1)(a) of the Act the appropriate Government shall, in the manner hereinafter provided : "......... .fix the minimum rates of wages payable to employees employed in an employment specified in Part I or Part II of the Schedule and in an employment added to either Part by notification under Sec.27; Provided that the appropriate Government may, in respect of employees employed in an employment specified in Part II of the Schedule, instead of fixing minimum rates of wages under this clause for the whole State, fix such rates for a part of the State or for any specified class or classes of such employment in the whole State or part thereof." Employment in agriculture is specified in Part II of the schedule appended to the Act and what is employment in agriculture is also enumerated therein. In Section 5 is provided the procedure for fixing and revising minimum wages. After following such procedure, the appropriate Government shall, by notification in the Official Gazette, fix. ....... .the minimum rates of wages in respect of each scheduled employment. Sec.12(1) provides: "Where in respect of any scheduled employment a notification under Sec. 5 is in force, the employer shall pay to every employee engaged in a scheduled employment under him wages at a rate not less than the minimum rate of wages fixed by such notification tor that class of employees in that employment without any deductions except as may be authorised with such time and subject to such conditions as may be prescribed." I shall now quote Section. 13 : "(1) In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act, the appropriate Government may :- (a) fix the number of hours of work which shall constitute a normal working day, inclusive of one or more specified intervals; (b) provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment ct remuneration in respect of such days of rest; (c) provide for payment for work on a day of rest at a rate not less than the overtime rate. (2) The provisions of Sub-section (1) shall, in relation to the following classes of employees, apply only to such extent and subject to such conditions as may be prescribed : (a) employees engaged on urgent work, or in any emergency which could not have been foreseen or prevented; (b) employees engaged in work in the nature of preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working in the employment concerned; (c) employees whose employment is essentially intermittent; (d) employees engaged in any work which for technical reasons has to be completed before the duty is over; (e) employees engaged in a work which could not be carried on except at times dependent on the irregular section of natural forces. (3) For the purposes of Clause (c) of Sub-section (2), employment of an employee is essentially intermittent when it is declared to be so by the appropriate Government on the ground that the daily hours of duty of the employee, or if there be no daily hours of duty as such for the employee, the hours of duty, normally include periods of inaction during which the employee may be on duty but is not called upon to display either physical activity or sustained attention." Sec.30 of the Act empowers the appropriate Government to make rules for carrying out the purpose of the Act by notification in the official gazette, subject to the condition of previous publication. Without prejudice to the generality of the power conferred by Sub-section (1) of Sec.30, Sub-section (2) says : ".... .such rules may :- XXXXX (f) provide for a day of rest in every period of seven days and for the payment of remuneration in respect of such day; "(g) prescribe the number of hours of work which shall constitute a normal working day; etc." In exercise of the powers conferred by Sec.30 of the Act, the Governor of Bihar was pleased to make the Rules by a notification dated the 12th of November, 1951. Rules 23 and 24 run thus : "23. .... Rules 23 and 24 run thus : "23. .... .(1) Unless otherwise permitted by the State Government, no worker shall be required or allowed to work in a scheduled employment, on the first day of the week (hereinafter referred to as the said day) except when he has or will have a holiday for the whole day on one of the three days immediately before or after the said day, for which he shall receive payment equal to his average daily wages during the preceding week : Provided that the weekly holiday may be substituted by another day: Provided that a worker shall be free to work on a day of rest, but not so as to work for more than 10 days consecutively without a holiday for a whole day. (2) Where in accordance with the provision of sub-rule (1) any worker works on the said day and has had a holiday on one of the three days immediately preceding it, the said day shall, for the purpose of calculating his weekly hours of work, be included in the preceding week. Explanation--For the purposes of this rule week shall mean a period of seven days beginning at mid-night on Saturday night. (3) A worker shall be entitled for work on the day of rest to overtime payment at the rate prescribed in Rule 25." 24. ..... .(1). The number of hours which shall constitute normal wording day shall be : (a) In the case of an adult, 9 hours; (b) in the case of child 4 1/2 hours; "(c) in the case of an adolescent 6 2/3. Provided that the number of hours of work which shall constitute a normal working day for employment in any mica works, any lac manufactory or any tea plantation shall be, in the case of an adult, 1 hour. (2) The working day of an adult worker shall be so arranged that inclusive of the intervals for rest, if any, it shall not spread over more than twelve hours on any day. (3) An Inspector appointed under the Act may require the employer to get an employee, whose age cannot be ascertained by mere appearance, examined by any medical officer, or Administrative Medical Officer employed under the Employees State Insurance Corporation who will certify the age of the employee. Such medical officer shall be entitled to charge a fee of Rs. (3) An Inspector appointed under the Act may require the employer to get an employee, whose age cannot be ascertained by mere appearance, examined by any medical officer, or Administrative Medical Officer employed under the Employees State Insurance Corporation who will certify the age of the employee. Such medical officer shall be entitled to charge a fee of Rs. 4 (four rupees) for examining each such employee and that shall be paid by the employer. (4) Where an employee has worked for less than a normal working day, wages proprotionate to the hours or work done by him shall be paid to him to the nearest anna : Provided that if such person has worked for more than three quarters of a normal working day, he shall be deemed to have worked for the full day. (5) The provision of Sub-rules (1) to (4) shall, in the csse of workers in agriculture employment, be subject to such modifications as may, from time to time, be notified by the State Government. (6) Nothing in this rule shall be deemed to affect the provisions of the Factories Act, 1948 (LXIII of 1949)." (Wrongly printed as 4 and 6 hours respectively in Clauses (b) and (c) of Sub-rule (1) of Rule 24 in the non-official publications placed before us.) 7. Mr. A. B. N. Sinha stressed the argument that, in respact of the scheduled employment in question minimum rates of wages were for the first time fixed under Sections 3 and 5 of the Act by the notification issued on the 4th of March, 1959, which came into force on the 1st of April, 1959, and, in absence of any other notification or order issued thereafter providing for a day of rest or for payment for work on a day of rest as required by Sec.13(1)(b) and (c), the opposite parties were not entitled to them, on the strength of Rule 23 of the Rules. He further submitted that the opposite parties holding employment in agriculture are necessarily employees whose employment is essentially intermittent or employees engaged in "a work which could not be carried on except at times dependent on the irregular action of natural forces within the meaning of Clauses (c) and (e) of Sub-section (2) of Sec.13 of the Act. He further submitted that the opposite parties holding employment in agriculture are necessarily employees whose employment is essentially intermittent or employees engaged in "a work which could not be carried on except at times dependent on the irregular action of natural forces within the meaning of Clauses (c) and (e) of Sub-section (2) of Sec.13 of the Act. But, realising his difficulty in pressing his point under Clause (c) in the absence of a declaration by the appropriate Government under Sec.13(3), Mr. Sinha did not pursue his argument on the basis of the said clause. But he persisted in contending that, extent and conditions not having been prescribed by the Government for the application of the provision of Sub-section (1) of Sec.13 in respect of the employees in question, they were not entitled to any day of rest or payment for work on that day. Learned counsel for the petitioners also drew our attention to the provisions of Sub-section (1) of Sec.20 of the Act which provides: "The appropriate Government may, by notification in the Official Gazette, appoint any Commissioner for Workmens Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region, or any officer of the State Government not below the rank of Labour Commissioner or any other Officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the Authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under Clause (b) or Clause (c) of Sub-section (1) of Sec.13 or of wages at the overtime rate under Sec.14, to employees employed or paid In that area." and submitted that the said provision also lends support to his argument that, in absence of an order or notification under Sec.13, the Labour Court could not be said to have been authorised to entertain the claim of the opposite parties in respect of the payment of remuneration for days of rest or for work done on such days under Clause (b) or (c) of Sub-section (1) of Sec.13 of the Act. 8. 8. 1 have no hesitation in rejecting the argument put forward on behalf of the petitioners with reference to Clause (e) of Sub-section (2) of Sec.13 of the Act. No facts were pleaded or placed before, nor have they been found by, the Labour Court to show that the opposite parties are employees engaged in a work which could not be carried on except at times dependent on the irregular action of natural forces. On the other hand, while deciding the point about the nature of duties performed by the opposite parties in order to find out whether they were engaged In employment for agriculture, the Labour Court has found the nature of their duties to be such as indicate that they are not the employees of the kind mentioned in Clause (a) of Sub-section (2) of Sec.13 of the Act. From the findings arrived at in the order under revision, it appears to me that the opposite parties are employees engaged in regular work of agriculture and their work is carried on constantly and regularly. In this view of the matter, I think that the argument put forward or behalf of the petitioners that, unless and until the extent and conditions were prescribed for the application, of the provisions of Sub-section (1) of Sec.13 under Sub-section (2) or the said section, the opposite parties were not entitled to claim their wages for the days of rest, has got no substance and must be rejected. 9. The point, which presents some difficulty in the decision of this case, is as to what is the nature and scope of the power of the appropriate Government under Sec.13(1) and Sec.30(2) (f) and (g) of the Act. It is not indicated as to how and in what manner the power under the former provision is to be exercised by the appropriate Government. It is, however, clear that the rule-making power under Sec.30 is a delegated legislative power of the Government and has got to be exercised in the manner provided in Sec.30, and, if exercised by the Central Government, also in the manner as provided in Sec.30-A of the Act. The power under Sec.13(1) may be exercised by the issuance of an executive order. The power under Sec.13(1) may be exercised by the issuance of an executive order. The two powers seem to be concurrent as would appear on reference to the provisions of Clauses (a), (b) and (c) or Sub-section (1) of Sec.13 and Clauses (f) and (g) of Sub-section (2) of Sec.30 of the Act. A question, therefore, arises as to whether, in absence of the exercise of the special power under Sec.13(1) after the fixation of the-minimum rates of wages in regard to any scheduled employment, the rules framed in exercise of the general powers under Sec.30(2) (f) and (g) would govern the conditions of service in such scheduled employment. My answer is in the affirmative. In regard to any particular scheduled employment, The minimum rates of wages in respect of which are fixed under sections 3 and 5 of the Act, it is open to the appropriate Government to fix and provide for special number of hours of work which shall constitute a normal working day, a day of rest in every period of 7 days, payment of remuneration of such days of rest and payment for work on a day of rest at a rate not less than the overtime rate, and, if such an order is made by the appropriate Government under Sec.13(1), the special order will govern the conditions of service in the said scheduled employment. But, if, after the fixation of minimum rates of wages, no special order is issued under Section 13(1), the general rules framed under Sec.30 of the Act will govern the conditions of service in respect of any scheduled employment. 10. Sub-sections (2) and (3) were introduced in sec. 13 of the Act by Section 10 of the amending Act 30 of 1957 and the following words were also added to Sec.20(1) of the Act by Sec.12 of the said amending Act- "or in respect of the payment of remuneration for days of rest or for work done on such days under Clause (b) or Clause (c) of Sub-section (1) of Section 13 or of wages at the overtime rate under Sec.14". In Associated Cement Company, Ltd. V/s. Labour Inspector (Central), Coimbatore, (1960) 1 Lab LJ 192 : ( AIR 1961 Mad 77 ) on a complaint of failure to pay wages for the period -- March, 1956 to June, 1956 --filed before the authority constituted under Sec.20 of the Act as it stood before the amendment of 1957, an objection was raised before the Tribunal that it had no jurisdiction to entertain any application relating to failure to make payment in respect of remuneration for days of rest be-fore the amendment came into force and, that, since on the date covered by the complaint, as also the date when the petition was filed, the amendment had not come into force, the Tribunal could only exercise the powers under the unamended Sec.20(1) of the Act. The Tribunal overruled this objection by stating that the amendment was declaratory and, therefore, retrospective. Rajagopala Ayyangar, J., of the Madras High Court, attuning this view, held- "The payment of remuneration for a day of rest would, therefore, be wages payable to a person employed in respect of his employment within the definition of Sec.2(b). If such a payment constituted remuneration, and therefore, wages, it appears to me that even on Sec.20(1) as it originally stood a payment for a day of rest would fall within the scope of Sec.20(1) of the Act. In this view the interpretation placed by the tribunal on the purpose of. The amendment effected to Sec.20(1) by Central Act XXX of 1957 would appear to be well founded." I am in respectful agreement with the view expressed by the Madras High Court in the case aforesaid. If a special order is made under Sec.13(1) of the Act in regard to scheduled employment in respect of which minimum rates of wages have been fixed, the declaratory and the special provision introduced in the latter part of sub-section (1) of Sec.20 by the amending Act of 1957 may, in terms, be attracted. If a special order is made under Sec.13(1) of the Act in regard to scheduled employment in respect of which minimum rates of wages have been fixed, the declaratory and the special provision introduced in the latter part of sub-section (1) of Sec.20 by the amending Act of 1957 may, in terms, be attracted. In absence of a special order under Sec.13(1), I have no doubt that the authority appointed under Sec.20(1) of the Act has got power to give relief to the claimant under the general authority conferred upon it to decide all claims arising out of payment of wages less than the minimum rates, which would include claims emanating from the application of the rules framed under Sec.30(2) (f) and (g) of the Act after the fixation of the minimum rates of wages. 11. Mr. Sinha also submitted with reference to note (iv) appended to the notification dated the 4th of March, 1959 that, as to what the word day should mean, provisions of Rule 24 were specifically adopted and engrarted by the said note while the provisions of Rule 23 were not so adopted and engrafted in the notification. I find no substance in this argument either. The said note was appended as a matter of abundant precaution in view of Sub-rule (5) of Rule 24 of the Rules quoted above. 12. The second point urged on behalf of the petitioners on the strength of the supplementary affidavit filed because of the introduction of Sub-section (2A) in Sec.3 of the Act by the amending Act 31 of 1961 has also got to be rejected. The point was not, as it could not be, taken before the Labour Court and neces-sary facts for the application of the provisions of Sub-section (2A) were neither placed before, nor have been found by the Labour Court. It is not known with certainty as to whether all the opposite parties are parties to the Reference which is pending before the Tribunal. It is not known with certainty as to whether all the opposite parties are parties to the Reference which is pending before the Tribunal. Sub-section (2A) of Sec.3 provides--- "Where in respect of an industrial dispute relating to the rates of wages payable to any of the employees employed in a scheduled employment, any proceeding is pending before a Tribunal or National Tribunal under the industrial Disputes Act, 1947, or before any like authority under any other law for the time being in force, or an award made by any Tribunal, National Tribunal or such authority is in operation, and a notification fixing or revising the minimum rates of wages in respect of the scheduled employment is issued during the pendency of such proceeding, or the operation of the award, then, notwithstanding anything contained in this Act, the minimum rates of wages so fixed or so revised shall not apply to those employees, during the period in which the proceeding is pending and the award- made therein is in operation or, as the case may be where the notification is issued during the period of operation of an award, during that period ; and where such proceeding or award relates to the rates of wages payable to all the employees in the scheduled employment, no minimum rates of wages shall be fixed or revised in respect of that employment during the said period." It is no doubt true that from the annexure appended to the supplementary affidavit it appears that the question as to what should be the wages of the different categories of workmen of the company was referred to the industrial Tribunal for adjudication and the proceeding is still pending. But I am doubtful whether the Industrial Tribunal will be competent to fix wages less than the minimum rates of wages fixed by the notification dated the 4th of March, 1959, since that notification was issued prior to coming into force of the said new provision of law. But I am doubtful whether the Industrial Tribunal will be competent to fix wages less than the minimum rates of wages fixed by the notification dated the 4th of March, 1959, since that notification was issued prior to coming into force of the said new provision of law. Even assuming that in view of the provision of law contained in Sub-section (2A) of Sec.3 of the Act, the minimum rates, of wages fixed by the said notification shall not apply to the petitioners employees during the period in which the proceeding is pending and the award made therein is in operation, I have no doubt in my mind that Rules 23 and 24 of the Rules framed in exercise of the powers of the State Government under Sec.30 of the Act would apply to them, whatever may be the rates of wages payable. 13 For the reasons stated above, I hold that this application must fail and is dismissed with costs; hearing fee Rs. 64A. Ramaswami, J. 14 I agree.