PETITIONER:
A. M. ALLISON
Vs.
RESPONDENT:
B. L. SEN(and connected appeal)
DATE OF JUDGMENT:
21/12/1956
BENCH:
BHAGWATI, NATWARLAL H.
BENCH:
BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
SINHA, BHUVNESHWAR P.
DAS, S.K.
CITATION:
1957 AIR 227 1957 SCR 359
ACT:
Minimum basic wages-Basic work-load–Extra wages for work
done in excess of basic work-load-Writ of certiorari-When to
be granted-Minimum Wages Act, 1948 (XI Of 1948), ss. 3. 5(2)
and 20-Constitution of India, Art. 226.
HEADNOTE:
The labourers were being paid the basic wages of as. 8/- for
male labourers and as. 6/- for female labourers for the
work-load or task of plucking 16 seers and 12 seers of green
tea leaves respectively each day. If the labourers plucked
larger quantities of leaves they were paid extra wages at
the rate of 6 Ps. per seer in excess of 16 seers and 12
seers respectively. The Government issued a notification
under S. 3 read with S. 5 (2) of the Minimum Wages Act,
1948, increasing the rates of basic wages to as. I2/and as.
11/- respectively. The management thereafter refused to
make any extra payment to the labourers at the rate of 6 Ps.
per seer unless the leaves plucked by them exceeded 24 seers
and 22 seers respectively.
Held, that the sole intention of the Government in issuing
the notification was to increase the basic wages while
maintaining the same basic work-load or task assigned to the
labourers, so that whatever extra work was done by the
labourers in excess of the existing work-load or task of
plucking 16 seers and 12 seers of tea leaves by the male and
female labourers respectively, bad still to be paid for at
the rate of 6 Ps. per seer.
Quaere: Whether the claim for the extra wages amounts to a
claim arising out of the payment of less than the minimum
rates of wages within the meaning of s. 20 (2) of the
Minimum Wages Act, 1948.
A writ of certiorari cannot be had as a matter of course.
The High Court is entitled to refuse the writ if it is
satisfied that there was no failure of justice. The Supreme
Court declines to interfere, in appeal, with the discretion
of the High Court unless it is satisfied that the justice of
the case requires such interference.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 279 and 280
of 1955.
Appeal from the Judgment and Order dated July 7 1953, of the
Assam High Court in Civil Rules Nos. 147 and 148 of 1952,
47
360
C. K. Dophtary, Solicitor-General of India, P. K. Goswami,
S. N. Mukherji and B. N. Ghosh, for the appellants in both
appeals.
Purshottam Tricumdas and Naunit Lal, for respondent No. 2 in
C.A. No. 280/56.
Naunit Lal, for respondent No. I in both Appeals.
1956. December 21. The Judgment of the Court was delivered
by
BHAGWATI J.-,These two appeals with certificates under Art.
133 (1) (c) of the Constitution are directed against a
judgment of the High Court of Judicature in Assam dismissing
the appellants’ application under Art. 226 challenging the
orders -of the first respondent Shri B. L. Sen, Deputy
Commissioner, Sibsagar, whereby he allowed the applications
filed on behalf of the labourers employed in the Teok Tea
Estate and the Dalim Tea Estate under section 20 of the
Minimum Wages Act, 1948 (Act XI of 1948), hereinafter
referred to as the Act.
On March 11, 1952, the Government of Assam, in exercise of
the powers conferred by s. 3 read with sub-s. (2) of s. 5 of
the Act issued the following notification:
” No. GLR. 352/51/56.-In exercise of the powers conferred by
section 3 read with sub-section (2) of section 5 of the
Minimum Wages Act, 1948 (XI of 1948), as amended, the
Governor of Assam, having considered the advice of the
committee appointed under clause (a) of sub-section (1) of
section 5 of the said Act, is pleased to fix minimum wages,
which will come into force with effect from the 30th March,
1952, consisting of basic wages and dearness allowance in
terms of clause (1) of sub-section 1 of section 4 of the
said Act, at the rates as specified in the schedule hereto
annexed payable to employees employed in tea plantations in
the different districts of Assam.
2. These 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
361
tasks and hours of work may continue until further orders.
SCHEDULE.
1. ORDINARY -UNSKILLED LABOUR
Adult male. Adult female. (16 years & above) (16 years &
above)
Basic D.A. Total. BasicD.A.Total.
wage. wage.
(p.d.) (p.d.) (p.d.)(p.d.)(p.d.)(p.d.)
2. Rest Rs. Rs.
of Assam As.12/-As.6/-1 /21-As. 11/-As. 5-
Valley.
By notification No. GLR. 44/51, dated the 16th April, 1952,
the said Government introduced the Minimum Wages Rules
which, inter alia, provided:
“Rule 24. Number of hours of work which shall
constitute a normal working day.-
(1) The number of hours which shall constitute
normal working day shall be-
(a)in the case of an adult, 9 hours; subject to a maximum
of 48 hours in a week;
……………………………………………”
By another notification No. GLR. 352/51 dated May 12, 1952,
the said Government explained that the word “ may ”
mentioned in the notification dated March 11, 1952, will
have the force of ” shall “. The result was that in cl. (2)
of the said notification, the last sentence ran as: ”The
existing tasks and hours of work shall continue until
further orders.
Prior to the fixation of the minimum wages (consisting of
basic wages and dearness allowance as aforesaid, the
labourers engaged in plucking tea leave,% in these tea
estates used to be paid basic wages for male labourers at
as. 8/- per day for plucking 16 seers of green leaves and
for female labourers at as. 6/- per day for plucking 12
seers of green leaves. This was the work-load or task in
respect of which-the basic wages of as. 8/- and as. 6/-
respectively were paid to these labourers apart from the
dearness allowance in addition to such basic wages. If the
labourers plucked larger quantities of green leaves they
used to be
362
paid by way of ticca extra wages at the rate of 6 ps. per
seer in excess of 16 seers and 12 seers respectively. It
may be noted that -the payment of basic wages on the above
computation also worked out at the rate of 6 ps. per seer of
green leaves plucked by the labourers.
Even after the fixation of the minimum wages by the said
notification, the managers of these tea-estates continued to
pay to the labourers wages at the rate of 6 ps. per seer of
green leaves plucked by them. They, however, in view of the
fact that as. 12/- per day were fixed as the basic wages for
the male labourers and as. II /- per day as the basic wages
for the female labourers, refused to make any extra payment
to them on the basis of 6 ps. per seer unless the green
leaves plucked by them exceeded 24 seers and 22 seers
respectively, thus maintaining their old standard of payment
on the basis of 6 ps. per seer. The labourers contended
that the existing work-load or task at the date of the said
notification was 16 seers for male labourers and 12 seers
for female labourers and they were entitled to such extra
payment at the rate of 6 ps. per seer for leaves plucked by
them in excess of -the 16 seers and 12 seers respectively.
There was a difference thus in payment, of as. 4/- per day
in the case of male labourers and as. 51- per day in the
case of female labourers and they claimed that the managers
of the tea estates should pay them the basic wages of as.
12/per day and as. I I/- per day respectively for the work-
load or task of 16 seers for male labourers and 12 seers for
female labourers and extra wages at the rate of 6 ps. per
seer of leaves plucked by them in excess of those
quantities.
This claim of theirs was the subject-matter of the
applications filed on their behalf before the Deputy
Commissioner, Sibsagar, under s. 20(2) of the Act. The
applicants asked for directions under a. 20(3) to the
managers, of the tea estates for payment of the difference
between the minimum wages fixed by the Government and the
wages actually paid to them from March 30, 1952, which was
the date from which the notification came into force. The
managers of the
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estates contested these applications mainly on two grounds;
viz., (1) that the applications were not maintainable under
s. 20 of the Act, and (2) that there was no fixed workload
or task in respect of plucking for earning daily basic wages
before the introduction of the minimum wages. The Deputy
Commissioner, Sibsagar, who was the authority appointed
under the Act to hear the claims arising out of the payment
of less than the minimum rates of wages to these labourers,
entertained the applications, recorded evidence and heard
arguments addressed to him by both the parties.
As regards the first objection, he held that, if the
applicants’ version was true there was a clear case of
payment of less than the minimum wages fixed by the
Government and the applications were maintainable under s.
20 of the Act. As regards the second objection, he came to
the conclusion on the evidence recorded before him that
there was a work-load or task of 16 seers for male labourers
and 12 seers for female labourers in respect of the daily
basic wages of as. 8/- and as. 6/- respectively earned by
them before the fixation of the minimum wages by the said
notification, that such work-load or task was the basis of
the fixation of the minimum wages consisting, inter alia, of
the basic wages of as. 12/- per day for male labourers and
as. II/- per day for female labourers and that the
labourers were, therefore, entitled to extra payment for
green leaves plucked by them in excess of 16 seers and 12
seers respectively at the rate of 6 ps. per seer. He
accordingly ordered that the managers must pay the labourers
engaged in plucking tea leaves the minimum basic wages at
the rate of as. 12/- per day to the male labourers for 16
seers of green leaves and as. 11/- per day to the female
labourers for 12 seers of green leaves and extra wages at
the rate of 6 ps. per seer for green leaves plucked in
excess of those quantities.
The managers of the estates thereupon filed applications
under Art. 226 of the Constitution before the High Court of
Judicature in Assam raising the -same contentions which had
been negatived by the Deputy Commissioner, Sibsagar. The
High Court dismissed
364
these applications and granted the certificates under Art.
133(1)(c) and that is how these appeals come before us.
It is urged in the first instance that the notification
dated March 11, 1952, fixed only I a minimum time rate’ and
no more. Under s. 3 (2) of the Act it was competent to the
Government to fix (a) a minimum rate of wages for time work
(called ” a minimum time rate”), (b) a minimum rate of wages
for piece work (called ” a minimum piece rate “) or (c) a
minimum rate to be applied 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 (called ” a
guaranteed time rate-”) and what was done by the Government
was to fix ” a minimum time rate” within the meaning of s. 3
(2) (a) so that the labourers were to be paid the basic
wages mentioned in the Schedule regardless of their out-turn
of work. If this contention is correct, the labourers would
not be entitled to any extra wages for the quantities of
green leaves plucked by them in excess of the 16 seers or 12
seers per day which was alleged to be the existing work-load
or task at the date of the notification. It is, therefore’,
urged that prior to such fixation of minimum wages there was
no work-load or task for the labourers engaged in plucking
tea leaves. This contention is obviously unsound. Both the
Deputy Commissioner, Sibsagar, and the High Court found as a
fact that before the fixation of the minimum ‘wages as
above, there was a basic work-load or task of 16 seers of
leaves for the male labourers and 12 seers of leaves for the
female labourers. This was proved by the evidence of the
Hazira Moharers of these estates and this was recognized by
the Government itself when it stated in the notification
that ” the existing tasks and hours of work shall continue
until further orders.” If the minimum basic wages were fixed
irrespective of existing work-load or task and what was
fixed was “ a minimum time rate “ as contended by the
appellants there was no need whatever to mention this in the
notification. The direction that the existing workload or
task was to continue until further orders on the
365
contrary goes to show that the basic wages mentioned in the
Schedule were correlated to the existing workload or task
and as. 12/- for the male labourers and as. 11/- for the
female labourers were fixed in regard to the existing work-
load or task 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.
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 work-load 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. II/- respectively while maintaining the same
basic work-load or task assigned to the male and female
labourers. If the intention was not to correlate these
basic wages to the basic work-load 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. II/- 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
366
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 work-load 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 work-load or task then being
performed by these labourers so that whatever extra work was
done by the labourers in excess of the existing work-load 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 the 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.
The appellants, however, contend that this is not a case of
payment of less than the minimum rates of wages and the
claims, if any, of the labourers do not fall within s. 20 of
the Act. The tea estates in question have never refused to
pay and are in fact paying to the labourers the basic wages
of as. 12/- per day for male labourers and as. II /- per
day for female labourers and the grievance, if any, of the
labourers is that they have not been paid the extra wages
calculated on the basis of 6 ps. per seer for tea leaves
plucked by them in excess of the basic work-load or task of
16 seers for male labourers and 12 seers for female
labourers. This claim of the labourers, therefore, amounts
to a claim for extra wages over and above the basic wages of
as. 12/- and as. II/- per day respectively which are being
paid to them and, therefore, is not a claim arising out of
the payment of less than the minimum rates of wages within
the meaning of s. 20(1) of the Act and the Deputy
Commissioner, Sibsagar, had no jurisdiction to entertain
such claim.
Section 20 so far as is material for our purposes provides:
” 20. Claims.-
(1)The appropriate Government may, by notification in the
official Gazette, appoint any Commissioner
367
for Workmen’s Compensation or 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 to employees employed or paid in.
that area.
(2)Where an -employee is paid less than the minimum rates of
wages fixed for his class of work under this Act, the
employee himself, or any legal practitioner or any official
of a registered trade union authorised in writing to act on
his behalf, or any Inspector, or any person acting with the
permission of the Authority appointed under sub-section (1),
may apply to such Authority for a direction under sub.
section (3):……………
(3)When any application under sub-section (2) is
entertained, the Authority shall hear the applicant and the
employer or give them an opportunity of being heard, and
after such further enquiry if any as it may consider
necessary, may, without prejudice to any other penalty to
which the employer may be liable under this Act, direct the
payment to the employee of the amount by which the minimum
wages payable to him exceed the amount actually paid,,
together with the payment of such compensation as the
Authority may think fit, not exceeding ten times the amount
of such excess and the Authority may direct payment of such
compensation in cases where the excess- is paid by the
employer to the employee before the disposal of the
application.
(6) Every direction of the Authority under this section
shall be final.
It -is argued that the authority appointed under s. 20(1) of
the Act is invested with the powers of hearing and deciding
claims arising out of the payment of less than the minimum
rates of wages and is authorised to hear the applicant and
the employer or give them an opportunity of being heard,
and, after such further enquiry, as it may consider
necessary, to give directions under s. 20(3) of the Act
which directions are final and not subject to any appeal or
368
revision by any higher authority. Such drastic powers could
not have been meant to be exercised when there are
complicated questions of law or fact but could be exercised
only in cases where the, quantum of minimum wages fixed by
the notification in question could be determined by the
authority on a plain reading of the terms, thereof. Then
and -then only would the authority have jurisdiction to
entertain such claims and give the necessary direction,%
having the attribute of finality. In the instant cases
before us, not only did the matters involve complicated
questions of fact which required recording of evidence by
the authority but they also involved the construction of the
notification which was by no means felicitously worded. The
existing tasks which were to continue until further orders
were not at all patent and if the determination thereof had
to be made by the authority appointed under s. 20(1) of the
Act, it would involve, in cases of dispute, recording of
considerable evidence and an adjudication of the same after
a consideration of the arguments advanced before the
authority by both the parties.
There is in the instant cases moreover a further difficulty
and it is that there are two rival contentions which can,
with equal force, be urged by the respective parties. The
appellants contend that they have all throughout been paying
to the laborers, after the date of the notification in
question, basic wages at the rate of as. 12/- per day for
male labourers and as. 1 1 /- per day for the female
labourers and there is no instance which has been cited on
behalf of the respondents where, anything less then the
minimum basic wages thus fixed by the Government has ever
been paid. The claim of the labourers comes to this that
they have not been paid the extra wages for plucking green
leaves in excess of the basic work-load or task of 16 seers
and 12 seers respectively. Such claim for extra wages
certainly does not amount to a claim arising out of the
payment of less than the minimum rates of wages. It is, on
the other hand, contended on behalf of the respondents that
the basic wages of as. 12/. per day for male labourers and
as. II/- per
369
day for female labourers fixed under the notification are
correlated -to the existing work-load, or task of plucking
green leaves weighing 16 Beers and 12 seers respectively and
if they are entitled to the payment of these basic wages on
their putting forward that much quantity of work, the non-
payment by the managers.of these tea’ estates to them of any
extra wages on the computation of 6 ps. per extra seer un-
less they plucked 24 seers and 22 seers of green leaves
respectively is tantamount to nonpayment of the; minimum
basic wages of as. 12/- and as. 11/- respectively as fixed
in the notification.
“We do not, propose to decide this question of jurisdiction
as in the instant cases we have, in addition to the
determination of the Deputy Commissioner, Sibsagar, the
adjudication of the main disputes between the parties by the
High Court itself. I Whatever infirmities might possibly
have attached to the orders passed by the Deputy
Commissioner, Sibsagar, on the score of want of
jurisdiction, we feel that having regard to the circumstance
that the matters have been pending since September, 1952,
right up to the end of the year 1956, no useful purpose will
be served by our interfering at this stage, as the Deputy
Commissioner, Sibsagar, and the High Court both came to the
same conclusion, a conclusion which we also have endorsed
above, that the labourers are entitled to be paid the basic
wages of as. 12/-per day,for male labourers and as. 11/- per
day for female labourers for the work.:load or task of
plucking 16 seers and 12 seers of green leaves respectively
and– they are -entitled to extra wages for every seer of
green leaves plucked by. them I over and above these
quantities of 16 seers and 12 ,seers respectively, at the.
computation of 6 Ps. per seer.
There are moreover special reasons why we should not
interfere with the orders of the Deputy Commissioner,
Sibsagar, in these appeals. The matters do not come to us
by way of appeal directly from the orders of the Deputy
Commissioner, Sibsagar. They were the subject, in the first
instance, of proceedings under Art. 226 of the Constitution
in the High Court
370
of Assam. Proceedings by way of certiorari are not of
course ”. (Vide Halsbury’s Laws of England’, Hailsham
Edition, Vol. 9, para 1480 and 1481, pp. 877-878). The High
Court of Assam had the power to refuse the writs if it was
satisfied that there was no failure of justice, and in these
appeals which are directed, against the orders of the High.
-Court in applications under Art. 226, we could refuse to
interfere unless we are satisfied that the justice of the,
case requires it. But we are not so satisfied. We are of
opinion that, having regard to the merits which have been
concurrently foundint favour of the respondents both by the
De-Duty Commissioner,, Sibsagar, and the High (Court, we
should decline to interfere.
This being the point of substance which has been decided in
favour of the respondents, we are of the opinion that the
appeals are liable to be dismissed. We accordingly dismiss
them but having regard to the particular circumstances which
we have adverted to before, we order that each party will
bear and pay its own costs of these appeals.
Appeals dismissed.