HIMACHAL CHAMBERS OF COMMERCE AND INDUSTRIES v. STATE OF H. P.
1997-04-08
A.L.VAIDYA, M.SRINIVASAN
body1997
DigiLaw.ai
JUDGMENT M Srinivasan, C J—M/s. Himachal Chambers of Commerce and Industries has filed this writ petition to quash a notification issued by the Government fixing the minimum rates of wages of unskilled workers employed in the scheduled employment mentioned specifically therein. 22 industries are set-out in that schedule and the minimum wage fixed therein is Rs 45.75 per day or Rs 1,373 per month. The notification excludes employment in agriculture and tea plantations. The notification was to come into force from 1st of March, 1996. The prayer in the writ petition is to quash the notification and direct the respondents to clarify while granting the minimum wages at Rs. 45.75, the employers are entitled to deduct the various allowances in the shape of bonus, P. F. Gratuity, E.S I, contributions, washing facilities, holidays, etc. etc. by the members of the petitioner company. 2. Even when the case was taken up on the last occasion, we pointed out that a writ petition at the instance of the Chambers of Commerce is not maintainable to challenge the notification fixing minimum wages for different industries set out in the notification. The learned Counsel has answered that objection by saying that the petitioner is a Company and it is legal person and therefore entitled to maintain a writ petition under Article 226 of the Constitution of India. But that will not be an answer to the objection. What is pointed out by us is that with regard to each Industry the relevant facts will differ and the Chambers of Commerce in which several private Industrial Units may be members cannot make a claim on behalf of all those Units wholesale against the entire notification. In fact, in the petition no details are set-out as to which Industrial Units being represented by the petitioner, nor is it set-out in the petition as to the amount which are being paid out by each Industrial Unit to its employees.
In fact, in the petition no details are set-out as to which Industrial Units being represented by the petitioner, nor is it set-out in the petition as to the amount which are being paid out by each Industrial Unit to its employees. In fact, in paragraph 4 it is stated that most of the Industrial Units were given washing allowance, soap allowance, house rent allowance, conveyance allowance, and various other facilities and allowance which are not being paid by the Government to the P W O. workers Even that averment will show that the writ petition cannot be sustained on behalf of all the Industrial Units as one entity by the Chambers of Commerce, In order to maintain the challenge against the notification fixing minimum wages, it is absolutely necessary for each Industrial Unit concerned to come out with the relevant facts and figures and point out how the minimum wage fixed is irrational or arbitrary and illegal. That aspect of the matter has been completely over-looked and it is not brought out in the petition filed by the Chambers of Commerce. 3 Apart from that, we do not find any merit in the challenge to the notification of the Government. What is urged before us is that the minimum wage was being revised periodically Learned Counsel has pointed out that in 1990 under Annexure P/2 the minimum wage was fixed at Rs. 20 per day with regard to certain categories of unskilled workers and then Rs. 24 per day with regard to certain categories of semi-skilled workers. Under Annexure P/3 of dated 30th March, 1991 it was increased to Rs. 22 per day or Rs. 660 per month under Annexure P/4 dated 2M0 1993 the minimum wage was increased to Rs 14 per day or Rs. 720 per month Under Annexure P/5 dated 27-1-1995 the minimum wages were increased to Rs 26 per day or Rs.780 per month for unskilled workers and Rs. 868 p m. for semi-skilled workers. Under the present notification it has been increased to Ks 45.75 per day or Rs. 1,373 per month in respect of the 22 scheduled employments set-out therein. 4. Learned Counsel contends that a perusal of cost of living index shows that such an increase is not warranted at all.
868 p m. for semi-skilled workers. Under the present notification it has been increased to Ks 45.75 per day or Rs. 1,373 per month in respect of the 22 scheduled employments set-out therein. 4. Learned Counsel contends that a perusal of cost of living index shows that such an increase is not warranted at all. According to learned Counsel, the increase in the cost of living index is much less than the proportion of increase in the minimum wages Under Annexure P-10, figures have been furnished for the years from January 1992 to January 1996. It was 217 in January 1992 as against the base of 100 in 1982. In January 1996, the cost of living index was 281, but even in Annexure P-10, it is seen that during September, October and November, 1995, it exceeded 300. 5. But nothing has been shown to us as to how the cost of living index is relevant for the purpose of fixing the minimum wages under the provisions of the Act. There is no provision in the Act or the Rules, which compels the concerned Government to take into account the cost of living index as the basis for fixing the minimum wage The Act defines the cost of living index under section 2 (d). That expression is used in section 4. Under section 4, minimum rate of wages fixed or revised by the appropriate Government in respect of scheduled employment may consist of a basic rate of wages and 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. Thus, it is only for the purpose of section 4 that the cost of living index number is relevant and that is in connection with the special allowance or the allowance which is set out in section 4. Section 5 does not make any reference whatever to the cost of living index. 6. Under section 5, the procedure for fixing and revising minimum wages is set out. There are two procedures either of which can be adopted by the Government for fixing or revising the minimum wages.
Section 5 does not make any reference whatever to the cost of living index. 6. Under section 5, the procedure for fixing and revising minimum wages is set out. There are two procedures either of which can be adopted by the Government for fixing or revising the minimum wages. The first one is to appoint as many committees and subcommittees as it considers necessary to hold inquiries and advise the Government in respect of such fixation or revision The second one is to issue a 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 mouths from the date of the Notification, on which the proposal will be taken into consideration. Under sub-section (2) of section 5, the Government after considering the advice of the committee or the committees so appointed under clause (a) of sub section (i), shall by Notification, fix or revise the minimum rates of wages in respect of each scheduled employment. 7. Learned Counsel submits that in this case, an Advisory Board was appointed by the Government by a Notification dated 9 2-1996 vide Annexure P-6. It is seen that the Chairman of the Board is Financial Commissioner-euro-Secretary, Labour. The other members are Financial Commissioner-cum Secretary, Finance and Labour Commissioner, and employees representatives, six in number, such as Engineer in Chief, HPPWD, Managing Director, HRTC, Shri Kailash Azad, Vice President, Malwan Cotton Spinning Mills Ltd., Paonta Sahib, Shri Harsh Baijee, Baljees Restaurant, Shimla, Capt Aiok Sharma, Geaeral Secretary, Parwanoo Industries Association, at Parwanoo and the Chief Engineer (Operation South) HPSEB, Shimla. There were representatives of the employees, six in number, representing some of the trade unions Nothing has been stated as to any infirmity in the constitution of the committee as such Nothing has been alleged against any member of the committee. The committee was directed to submit its report in respect of the revision of minimum wages of all the categories of employees within a period of 15 days from the date of the Notification The committee held a meeting on 12-2-1996 vide Annexure P-7. it is seen from the minutes that the committee considered various proposals from different organisations and after taking note of all the representations, the committee decided that th5 revised minimum wages will be Rs.
it is seen from the minutes that the committee considered various proposals from different organisations and after taking note of all the representations, the committee decided that th5 revised minimum wages will be Rs. 45 75 per day and that the same may be enforced w e.f. 1-3-1996 It is argued before us that the committee took note of the proposals and representations made to the Government prior to the constitution of the committee and, therefore, the procedure adopted by the committee in considering the proposals is against the provisions of law We are unable to accept this contention. There is nothing in law which prevents are the committee from taking note of various proposal or representations even though they haze been made before the constitution of the committee. It is only because there were different kinds of proposals and representations, the Government constituted a committee to consider the same and advise it as per the provisions of section 5. There is no illegality or irregularity whatever either in the procedure adopted by the Government or the procedure adopted by the committee. 8. In the reply filed by the respondents, it is stated that the minimum wages hardly covers the subsistence level of the workers and they are to be paid by all the employers irrespective of the fact whether they allow any other benefit under the Statute or not. It is also stated that minimum wages have no link with other benefits and facilities It is stated in para 5 that in view of the price level, the minimum wages at Rs 45 75 per day are quite reasonable and the workers with minimum wages are hardly in a position to afford the basic necessities of life, what to speak of other necessities It is also pointed out in the reply that the price index of the industrial workers, paying capacity of the employers and all suggestions and objections of the private organisations likely to be affected are taken into consideration before any decision to revise minimum wages is arrived at by the Government. 9. The contention that while paying the minimum wages the employers are entitled to deduct the various allowances in the shape of bonus, provident fund, gratuity, ESI, medical facility etc is wholly unsustainable.
9. The contention that while paying the minimum wages the employers are entitled to deduct the various allowances in the shape of bonus, provident fund, gratuity, ESI, medical facility etc is wholly unsustainable. In sub-section (h) of section 2 of the Act, it is provided as under : "wages means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, by payable to a person employed in respect of his employment or of work done in such employment, but does not include — (i) the value of— (a) any house-accommodation, supply of light, water, medical attendance; or (b) any other amenity or any service excluded by general or special order of the appropriate Government ; (ii) any contribution paid by the employer to any Pension Fund or Provident Fund or under any scheme of social insurance ; (iii) any travelling allowance or the value of any travelling concession ; (iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or (v) any gratuity payable on discharge.” The definition itself makes it clear that the wages will not include the value of other benefits such as those mentioned in that sub-section. Hence the contention that the employer should be allowed to deduct those allowances from the minimum wage is wholly unsustainable and against the specific provisions of the Act, 10 As we have already stated that the second part of the prayer of the petitioner is to direct the respondents to clarify that the employers are entitled to make certain deductions of allowances mentioned therein During the pendency of the writ petition a corrigendum was issued by the Financial Commissioner-cum-Secretary by which the line "revised rates are inclusive of all allowances" from paragraphs 6 and 2 of the notifications dated 28-2-1996 and I6-M996 were deleted. Thus, according to the corrigendum the revised rates of minimum wage, were exclusive of those allowances The petitioner filed CM P. No 278/97 for amending the writ petition so as to challenge the validity of the notification as well as the corrigendum.
Thus, according to the corrigendum the revised rates of minimum wage, were exclusive of those allowances The petitioner filed CM P. No 278/97 for amending the writ petition so as to challenge the validity of the notification as well as the corrigendum. We have already pointed out that the petitioner has not made out a case for challenging the validity of the main notification and also pointed out that as per the definition of wages the allowances are excluded Thus, what is done by the corrigendum is to bring the original notification in accordance with the provisions the Act. Hence, the corrigendum cannot be challenged as illegal. Hence, we hold that both Annexures P/l and P/11 are valid and in accordance with law. Though the C M. P. is allowed hereby and we grant the prayer for amendment, the amended prayer in the C.W.P. is refused. 11. It has been held by the Supreme Court in Chandra Bhavan Boarding and Lodging v. The State of Mysore and another, 1969 (3) SCC 84, that the principles of Natural Justice do not apply in this case and they 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 frame work of the law under which the inquiry is held and the constitution of the Tribunal or body of persons appointed for the purpose. It is in that background one must see whether it is possible for a Chamber of Commerce to maintain the writ petition without bringing out the facts and circumstances pertaining to each Industry which it claims to represent 12. In Ministry of Labour and Rehabilitation and another v. Tiffins Barytes Asbestos and Paints Ltd and another, (1983) 3 SCC 59 , the Court held that a notification fixing the minimum wages, in a country where wages are already minimal should not be interfered with under Article 226 of the Constitution of India except on the most substantial of grounds and that the Minimum Wages Act is a social welfare legislation undertaken to further the Directive Principles of State Policy and action taken pursuant to it cannot be struck down on mere technicalities.
The Court also said that under Article 226 there shall be no interference with the notification under the Act on the ground of some irregularities in the Constitution of the Committee or in the procedure adopted by the Committee, In such circumstances, we have no hesitation to hold that there is no merit whatever in this writ petition and it is dismissed. No costs. Interim order, if any, is vacated. Writ petition dismissed.