Patna High Court
The Imperial Tobacco Co. Of India Ltd. vs The State Of Bihar And Ors. on 9 April, 1969
Equivalent citations: AIR1970PAT193, AIR 1970 PATNA 193, 1970 LAB. I. C. 681
JUDGMENT Wasiuddin, J.
1. This is an application under Articles 226 and 227 of the Constitution for quashing the notification 'Annexure-E' of the petition and the decisions and directions as contained in Annexures M, O/1, O/2, R, P, and T of the petition with regard to applicability of the provisions of the Minimum Wages Act to the Printing Section of the petitioner and refusal of the Government to grant the exemption to the petitioner under the Act.
2. The petitioner is the Imperial Tobacco Company of India Limited which has a factory at Monghyr within the State of Bihar. The Company has been carrying on the business of manufacturing and selling cigarettes and smoking tobacco throughout India and It has a Printing Unit section which is an integral part of and/or ancillary and/or, complementary to the said Cigarette Factory and its Printing Section is situated in the same premises and within the same compound. The Printing Section is exclusively operated to print materials (such as Cartoons, Labels, Tissue paper etc.) which are only used in relation to, or for packing of cigarettes manufactured by the petitioner Company in the said Factory, It is also said that the petitioner does not carry on the business of running and operating a printing press in the said Printing Section and the Printing Section is not meant for and, in fact, has nothing to do with outside printing nor with execution of any outside job/orders. The Cigarette Factory as well as the Printing Section are under the supervision and control of the same Branch Manager and thus the Printing Section has no independent existence, apart from the Cigarette Factory, and its functions and operations consist of process or branch of work of Cigarette Factory.
According to the petitioner the same Standing Orders which have been duly certified under the Industrial Employment (Standing Orders) Act. 1946 are applicable to all the workmen in the Cigarette Factory, including the Printing Section. It is also said on behalf of the petitioner that as a result of enlightened and progressive labour policy adopted and followed by the petitioner Company the terms and conditions of employment of the said workmen have always been settled since 1953 by series of long Term Settlements arrived at, under Section 12 (3), read with Section 18 (3) of the Industrial Disputes Act, 1947, between the petitioner Company on the one hand and Tobacco Manufacturing Workers Union (Opposite party No. 5) on the other. There has always been and there is still one Union representing all the workmen employed in the various Sections or Departments of the Cigarettes Factory including its Printing Section and one statutory settlement negotiated and concluded from time to time with the Union, which governed and governs the terms and conditions of employment of the said workmen, the majority of whom are daily-rated are transferred from the Printing Section to any other Section or Department of the Cigarette Factory. There have always been and still are comprehensive, and common wage scales for respective skilled, semi-skilled and unskilled workmen employed in various Sections or Departments of the Cigarette Factory, including the Printing Section under the terms of the said statutory settlements.
The petitioner Company employs about 2180 workmen in the Cigarette Factory, including 352 workmen in its Printing Section of whom 246 are daily-rated workmen. On 23rd August, 1964 the Union (Opposite party No. 5) representing all the said workmen submitted to the petitioner Company a Charter of Demands, which inter alia, included a demand to the effect that "All employees be made eligible for Sunday leave with pay as is now enforced in "Minimum Wage Factories." The Union, however, abandoned and/or waived the said demand eventually at the time of conciliation and conclusion of the Settlement dated the 25th September, 1965. The disputes arising out of the said Charter of Demands were admitted into conciliation by the Commissioner of Labour and Conciliation Officer, Government of Bihar, and after a protracted tripartite negotiations were finally settled on 25th September 1965, by virtue of a Memorandum of Settlement concluded between the petitioner Company and the Union, in the course of conciliation proceedings under Section 12 (3), read with Section 18 (3) of the Industrial Disputes Act 1947. The aforesaid Settlement is operative for a period of four years and is still in full force and effect and is binding on all the workmen in the Cigarette Factory, irrespective of the Section or Department they are working in.
The terms and conditions embodied in the Memorandum of the Settlement include comprehensive wage structure and schedule of clearness allowance and further substantial monetary and other benefits to the said workmen which are equally applicable to the workmen in the Printing Section as the workmen in any other Section of Cigarette Factory. The Settlement was arrived at on the basis of give and take, the Union having abandoned and/or waived certain claims and demands including the demand in regard to "Sunday leave with pay" and the petitioner Company having conceded in their other claims and demands. The Settlement as such represents a "package deal" and the said workmen and/or the Union have no right to act or to make any demand, in contravention or violation thereof.
3. The Minimum Wages Act 1948 was enacted to provide "for fixation, by the Provincial (State) Governments, of minimum wages for employments covered by Schedule to "the said Act". The items in the schedule are those where sweated labour is more prevalent or where there is a big chance of exploitation of labour". The State Government by a Notification No. W3-1019/51-L-197 dated 12th November, 1951 in exercise of its powers conferred by Section 30 of the Minimum Wages Act framed rules under the Act and the relevant rule in this connection is Rule 23 which provides that unless otherwise provided by the State Government, no worker shall be required or allowed to work in a scheduled employment of the first day of the week for which he shall receive payment equal to his average daily wages during the preceding week. The petitioner's contention is that the Cigarette industry and/or undertaking is not a "scheduled employment" within the meaning of the said Act and as such the Cigarette Factory is not governed by the said Act and/or the said Rules. The opposite party as early as on 24th February 1950 by letter No. W. 301.L/1460 addressed to the Company (vide Annexure-C) had confirmed that the cigarette manufacturing would not be covered by the said Act. The opposite party No. 1 issued a Notification No. VI/W3-1042/59-L-9688 on 25th May, 1959 in exercise of its powers conferred by Section 27 of the Minimum Wages Act and directed by this notification that "Employment in Printing Presses" be added to Part 1 of the schedule appended to the said Act. A true copy of the said Notification is marked as Annexure-D. Opposite party No. 1 then issued a Notification No. VI/W3-105/601/4676 dated 24th May, 1960 in exercise of its powers conferred by Section 3(1)(b), read with Section 5 (2) of the said Act and by this it fixed the minimum rates of wages, specified in the Schedule thereunder, payable to different categories of employees in the Printing Presses. The notification is Annexure-E of the petition. It has been urged by the petitioner that this notification of 1960 was bad, illegal and debars the powers and jurisdiction of the opposite party No. 1 inasmuch as the said notification contravened Section 3(1) (a) of the said Act as it then stood. According to the Notification (Annexure-E) minimum wages have been prescribed for nineteen categories of daily-rated employees but the petitioner Company states that at all material times the petitioner Company did not and does not employ any daily-rated workmen in the Printing Section of the Cigarette Factory in the categories and/or with the designation mentioned in the schedule given in the Notification, save and except unskilled workmen (such as General Workers or Mazdoor), Litho Machinemen and Binders which are covered by Items 12, 17 and 19 of the aforesaid Notification. The petitioner Company has been paying and still pays under the Settlement of 1965 wages at scales which are considerably higher than the minimum rates fixed by the Notification of 1960. According to the charts which have been given in the petition the minimum rate of wages prescribed for unskilled workmen (Darwan, Peon and Mazdoors) is Rs. 45 per month, but according to Settlement of 1965 the petitioner Company has been paying to them at the rate of Rs. 202.91 P. per month. Similarly although the minimum wages prescribed in respect of Litho Machine Men is Rs. 100 per month and for Binder Rs. 50 per month, but the petitioner Company has been paying to them at the rate of Rs. 262.31P, in each case respectively,
4. The petitioner, therefore, has been asserting firstly, that the notifications of 1959 and 1960 are not applicable to the Cigarette Factory and/or its Printing Section, and even assuming that the Printing Section of the Factory is a scheduled employment within the meaning of the said Act/Rules/Notification, the petitioner Company has been paying to the daily-rated unskilled workmen substantially higher contractual wages than the aggregate of the minimum wages fixed by the 1960 Notification and the remuneration for the weekly rest day provided by Rule 23 of the said Rules. The petitioner Company received from the Chief Inspector of Factories, Bihar (Opposite Party No. 2) a Circular No. 3M-52/61-5990 dated the 18th December, 1961 in which direction was given to the petitioner Company to give immediate effect to Rule 23 of the Bihar Minimum Wages Rules 1951 which required that every worker even a daily-rated worker should be paid wages for Sundays including holidays also. The said Circular also contained a threat that any violation of the said rule will be supposed to be a serious offence and will be strongly dealt with. The petitioner Company also received a letter No. 489 dated 19th April, 1962 from opposite party No. 4 the Inspector of Factories, Monghyr circle, Monghyr, in which it was stated that a worker even if he works for one day in a week he becomes entitled for a day off with pay.
The petitioner Company by its letter No. IM/IL.1/A.398 dated the 17th May, 1962 informed the opposite party No. 2 that there was some misunderstanding with regard to the applicability of the said Act, because it had already been clarified by opposite party No. 1 (State of Bihar) on the 24th February, 1950 that the Cigarette Factory was not covered by the said Act. The petitioner Company was informed by the Chief Inspector of Factory (opposite party No. 2) by his letter No. 3M/52/62-2828 dated 24-5-1962 that the said Circular dated the 18th December, 1961 had been sent to such factories also as do not come under the purview of the Minimum Wages Act, as in most of these factories, certain scheduled employments are in existence, like building operations etc., to which the Minimum Wages Act applies. The opposite party further confirmed in this letter that the sending of the circular did not mean or imply that the provisions of Rule 23 of the Bihar Minimum Wages Rules are considered to be applicable to even such factories which are not included in the Schedule attached to the Minimum Wages Act. A copy of this letter is Annexure-1 to the petition. In spite of this confirmation the petitioner Company further received communication from opposite party No. 4 (Inspector of Factories, Monghyr) being letter No. 1380 dated the 31st March, 1963 in which it was stated that the Printing Section in the Cigarette Factory comes under schedule of the said Act and that the said Act and the Rules made thereunder should be implemented in the Printing Section. The petitioner Company was also threatened that on failure to comply, it will be prosecuted as it is a serious offence. The petitioner Company then wrote to the Secretary to Government of Bihar, Labour and Employment Department making submissions therein that the Printing Section of the Cigarette Factory was not a Printing Press, within the meaning of 1960 notification. It was also stated therein that in case the Govt. still considers the said Act is applicable to the Printing Section, the petitioner Company, as a matter of abundant caution applied to be exempted from the provisions of the said Act under Section 26(2A) for the reasons given in the letter such as that the terms and conditions of employment of the workmen, had already a comprehensive wage structure and schedule of dearness allowance which were governed since 1953 by series of statutory settlements and that they in all categories enjoyed wages much in excess of the wages fixed by the 1960 Notification.
It was also contended therein that the Minimum Wages Legislation was intended for the protection of "Sweated labour" who are likely to be exploited, and that the Union operating in the Cigarette Factory was well organised and the very high rate of wages prevailing in the Cigarette Factory was due to the process of continuous collective bargaining for several years. The petitioner thereafter had been reiterating in the representations one after another the grounds for exemption but the Government has been sticking to the position that it was a Scheduled employment. The prayer for exemption was specifically refused when the petitioner received a letter No. VI/W3-1029/67-L and E-256S dated the 27th April 1967 in which it was stated that since the General Secretary, Tobacco Manufacturing Workers' Union. Basdeopur, Monghyr had raised objection to the prayer for grant of exemption to their Printing Factory at Monghyr from the operation of the provisions of the Minimum Wages Act, 1948, the State Government regretted that it was not possible for them to grant exemption prayed for by the Company. It may be stated that this letter did not contain the ground on which the objections were raised by the Union. A copy of this letter is annexure P to the petition. The petitioner Company went on making representations and there were tripartite discussions and meetings but without success and ultimately the prayer for exemption was finally rejected by letter (Annexure '1').
5. The petitioner Company is therefore, under constant fear of illegal threat of prosecution from the opposite party and such illegal and wrongful threats still persist. The industrial relation and peace in the said Cigarette Factory are in serious jeopardy on account of this kind of illegal threat and if the prosecution, is launched the petitioner Company will suffer irreparable loss and injury both monetarily and in its reputation. The industrial harmony in the Cigarette Factory (ensured by the said settlement) will be unsettled and disturbed beyond redemption and the petitioner Company apprehends that it may even have undesirable repercussions on the industrial peace now prevailing in the other Factories of the petitioner Company elsewhere in India. The petitioner Company has been employing more than 8,500 workmen throughout India.
6. In such circumstances, as stated above, the petitioner Company states and contends that the decisions and/or directions and/or Orders of the Opposite parties as contained in the Annexures-M Oil, O/2 and R hereto and/or Notifications (being Annexure-E) are patently illegal, manifestly erroneous, arbitrary and in excess of the powers and jurisdiction vested in the opposite parties and therefore, the prayer in this petition is for quashing of the direction and decisions as mentioned above.
7. Opposite party No. 1 is the State of Bihar, opposite party No. 2 is the Chief Inspector of Factories, opposite party No. 3 is the Deputy Chief Inspector of Factories and opposite party No. 4 is the Inspector of Factories, Monghyr, No counter-affidavit has been filed on behalf of the opposite party Nos. 1 to 4, but at the time of hearing of this petition Mr. Sarwar AH appearing for the State supported the stand which the Government has taken.
8. Opposite party No. 5 as stated above, is Tobacco Manufacturing Workers Union and they have filed a counter-affidavit It has been contended on their behalf that the Printing Factory owned by the petitioner Company was not an integral part of the Cigarette Factory inasmuch as the press is located in a separate building having separate godown etc. and in day to day work also it has no concern with the Cigarette Factory. The Tobacco Factory and the Press are separately registered under the Factories Act and each of these two have been allotted separate registration numbers under the Act. It has also been stated that it was correct that the Press at present does not accept any work other than that of the Company but there is nothing in the Memorandum of Association which prohibits the press from accepting work from outsiders. It has also been stated that according to present Standing Order all the employees under the petitioner Company excepting those who come under Class B are availing Sundays as paid holidays and that Class B employees also are monthly paid like all others. As regards their demand for wages for Sunday it has been asserted that the Union never abandoned and/or waived the demand for Sunday being paid rest day for Class 'B'. All the employees of the press come within the categories mentioned in the schedule of the Notification of 1960 and the settlement nowhere mentions that the employees will not get the benefit of the Notification under the Minimum Wages Act. It has also been urged that the mere fact that the wages which are being given are higher than the wages prescribed in the Notification will not debar them from further benefits to which they may be entitled in law. It has been urged, therefore, that the impugned Notification, directions and decision were all duly passed by the competent authorities and valid in law and cannot be quashed.
9. The first point which has been urged on behalf of the petitioner is that it is not a scheduled employment within the meaning of the relevant provisions of the Minimum Wages Act which hereinafter will be called only as "the Act". The preamble of the Act clearly shows that this Act was passed for the fixation of minimum rates of wages in certain employments. The words employer and the employee have been also defined in the Act under Clauses (e) and (i) of Section 2 of the Act. These definitions also show that they refer only to such employees or employers who will be regarded as a scheduled employment under the Act. Section 2 (g) of the Act defines what a scheduled employment is and it lays down that the scheduled employment means an employment specified in the schedule, or any process or branch of work forming part of such employment. In this connection I may also refer to Section 27 of the Act which empowers the appropriate Government to add to Schedule by notification. The schedule of the Act shows that the employments have been classified in two parts; Part I and Part II. Part II is in respect of employments in agriculture and we are not concerned with such employments in this present case. Part I consists of 12 items and item No. 3 is as follows:
"Employment in any tobacco (including Bidi making) manufacturing". It has been contended on behalf of the petitioner that the petitioner Company does not manufacture tobacco and manufacture of cigarettes will not come within the meaning of item No. 3 because it does not manufacture tobacco. In item No. 3 of the Schedule exception has been made in respect of Bidi making and if the legislatures so desired that cigarettes also should be included, there would have been no difficulty in mentioning cigarettes also. Now as far as the position of the petitioner Company in this respect is concerned there does not seem any dispute on this point that the Government as early as in the year 1950 had decided that the Act will not apply to the petitioner Company and I may refer here to Annexure C which is a copy of the letter from the Under Secretary to the Government addressed to the Labour Liaison Manager, Tobacco Manufacturers (India) Ltd., Mongnyr, dated the 24th February. 1950 and in the concluding portion of this letter it is stated as follows:
"Government are advised that cigarette Manufacturing would not be covered by item 3 of Part I of the Schedule to the Minimum Wages Act, 1948".
It also appears from the submissions made as well as the contention in the petition of the Company that since then no direction or decision of the Government has been communicated showing that the Government considers the Tobacco Manufacturing Company as a Scheduled employment, but the dispute and controversy has been on the point whether the Printing Section of the petitioner Company is a scheduled employment or not, I have already referred above to the definition of scheduled employment as given in Section 2 (g). Section 27 lays down as follows:
"The appropriate Government, after giving by notification in the Official Gazette not less than three months' notice of its intention so to do, may, by like notification, add to either Part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act, and thereupon the Schedule shall in its application to the State be deemed to be amended accordingly".
This section, therefore, confers authority and power on the appropriate Government to add any employment to the Schedule. The Government by notification dated the 25th May, 1959 (vide Annexure D) added four types of employment. It may be mentioned here that the Schedule of the Act contains twelve items under Part I and by addition of four items so far as the opposite party No. 1 (State of Bihar) is concerned there are now sixteen items of employment in the schedule. We are concerned herewith item No. 13 which was added by this notification and it is "Employment in Printing Presses". It is the admitted case of the petitioner that it has a Printing Section in the Factory, but it has been contended that this printing Section has no independent existence of its own and it is an integral part of the Cigarette Manufacturing, and therefore, it cannot be regarded as a scheduled employment.
I may also in this connection refer to another notification issued by the Government dated, the 24th May, 1960 by which minimum rates of wages were fixed in respect of different categories of employees in the Printing Presses added to the Schedule under the Act under Section 27 of the Act. According to the petitioner this Printing Section is only for the purpose of printing cartoons etc. for the purpose of the sale of the cigarettes and as such it is only a Unit or a Section of the Factory and thus it is an integral part of the same. It has also been contended that this Printing Section is located in the same premises and the compound of the Factory. The Printing Press does not accept and it is not supposed to take outside work and the same terms and conditions of employment as prevailing in the Factory are also prevailing in the Printing Section. It has been urged on the other hand by the learned counsel appearing for the opposite party No. 5 that this Printing Section is a separate organization inasmuch as it is separately registered under the Factories Act having separate registration numbers and there is no bar under the Memorandum of Association in the Printing Section undertaking and inviting orders from outside for printing. After filing of the counter-affidavit by the opposite party No. 5, a reply to the affidavit was filed on behalf of the petitioner and from a perusal of the same it is clear that this is not disputed that the factory and the Printing Press are separately registered under the Factories Act, but it has been stated that this was for historical reason.
It is admitted that the ownership of the Printing Press was of another Company, the Printers India Ltd. and in 1954 there was a transfer of the ownership to the Cigarette Factory. It is true that the Cigarette Factory is now the owner of the Printing Press also but nevertheless there is no setting away from this position that both are separately registered under the Factories Act. The nature of the work is also different and it appears to me that the work of printing which is being carried on cannot be said to be an ancillary process to the manufacture of cigarettes and at best it is only to facilitate the sale of cigarettes by the printing of the cartoons labels and packages. This is also worthy of consideration that the word 'employment' has been used both in Section 2 (g) and the schedule. The contention on behalf of the petitioner Company is that since the Cigarette Factory is not a scheduled employment so this Printing Section of this factory cannot be a scheduled employment. The definition as given in Section 2 (g), of Scheduled employment no doubt shows firstly that the employment should be mentioned in the schedule and then it further postulates that any process or branch of work forming part of such employment will also be a scheduled employment.
I think from this the converse cannot be true that if a certain employment is not a scheduled employment then all the other processes or branches of that employment will also not be a scheduled employment. I do not think that this could have been the intention of the legislature because the acceptance of such a meaning will defeat the very object of the Act and also the purpose of embodying Section 27 which empowers the appropriate Government to include and add in the schedule. I may again refer here to the Notification dated the 25th May, 1959 in which item No. 16 is "Employment in brick laying" and this may be read along with viz. Annexure-1 dated the 24th May, 1962 which shows that the Government made the position very clear that the copy of the Notification had been sent to such factories also which do not come within the purview of the Minimum Wages Act as in most of these factories, scheduled employments are in existence like building operations etc. to which the Minimum Wages Act applies. If a narrow interpretation be given as contended by the learned counsel appearing for the petitioner then it would mean that in factories which are not "scheduled employment" such classes of employment as are added under Section 27 will be outside the purview of the Act.
10. The word 'employment' has not been defined in the Act, but according to the Chambers's Dictionary it means an act of employing, that engages or occupies, occupation. It was urged that the word 'employment' which has been used in the Act should mean industry or undertaking, but this contention also does not seem to be correct and it appears that the legislature has purposely used the word 'employment' and has avoided the word 'industry', 'undertaking' or 'establishment'. The statements of objects and reasons as given at the time of passing of the Act are as follows:
"The justification for statutory fixation of minimum wages is obvious. Such provisions which exist in more advanced countries are even more necessary in India, where works' organisations are yet poorly developed and the workers' bargaining power is consequently poor. The Bill provides for fixation, by the Provincial Governments of minimum wages for employments covered by the schedule to the Bill. The items in the schedule are those where sweated labour is most prevalent or where there is a big chance of exploitation of labour. After a time, when some experience is gained, more categories of employments can be added and the Bill provides for additions to the schedule."
11. The aforesaid statements of objects and reasons also clearly show what the legislature intended and as stated above it would be defeating the very objective of the Act if such a narrow interpretation is put as contended by learned counsel appearing for the petitioner. The learned counsel appearing for the petitioner has relied on four decisions and one of these is in the case of the Associated Cement Companies Ltd. v. Their Workmen, AIR 1960 SC 56, in which tests have been laid down to find out what can be considered to be one establishment. But I think this decision will not apply to the facts of the present case because the factors which came up for consideration in that case were quite different and the question for consideration was with regard to meaning of the word 'establishment' as mentioned in the Industrial Disputes Act and Mines Act. But, here as pointed above, the word 'establishment' has nowhere been used in the Minimum Wages Act and the word which has been used is 'employment'. The legislature perhaps advisedly has not used the word 'establishment'.
The second decision on which reliance has been placed is in the case of Madhya Pradesh Mineral Industry Association v. Regional Labour Commr. (1960) 2 Lab, LJ 254 = (AIR 1960 SC 1068). This was no doubt a case under Minimum Wages Act but here also the facts are quite different. The short facts of that case are that the President of India under Article 258 of the Constitution had entrusted the Government of certain States including Government of Madhya Pradesh with their consent the functions of the Central Government under the Act in so far as such functions relate to the fixation of minimum rates of wages in respect of employees employed in stone-breaking or in stone-crushing operations carried on in mines situated within their respective States. The Madhya Pradesh Government issued a notification purporting to act under Section 5 (2) of the Act. Item 8 of the Schedule of the Act is as follows:
"Employment in stone-breaking or stone-crushing". The question which arose for decision in that case was whether employment in stone-breaking or stone-crushing operations carried on in mines as specified in the ambit of notification, amounts to employment in stone-breaking or stone-crushing vide item No. 8 of the Schedule of the Act It may be also mentioned here that the Company in that case was carrying on operations in manganese mines so in that context also the question arose for consideration as to what was the meaning of the word 'stone' as used in item 8, of the Schedule. It was held by the Supreme Court in that case that the scheduled employment as defined in Section 2 (g) of the Act covers the employment specified in the schedule or any process or branch of work forming part of such employment which would include all branches of work which may be incidental to the main scheduled employments and that the impugned notification in that case on the other hand, applied only to the stone-breaking or stone-crushing operations carried on in mines and did not cover other operations connected with the manganese-mining works which position is inconsistent with the scheme of the schedule.
Their Lordships in that case also referred to the meaning of the word 'employment' which means a kind of employment or state of being employed. It was held that item 8 of the Schedule was not intended to cover the breaking or the crushing of stones incidental to the manganese mining operations. Reliance has been placed on the use of the expression 'incidental' and it has been urged that just as in that case the work of the printing was incidental to the manufacture of cigarettes. But I think that this decision will not be helpful because as pointed above the work of printing cannot be said to be an operation incidental to the manufacture of cigarettes. It can best be said to be only a necessary aid in the process of putting the cigarettes on sale.
The learned counsel for the petitioner has relied on two other reported decisions; one was in the case of Edward Mills Co. Ltd. Beawar v. State of Aimer, AIR 1955 SC 25 and the other in the case of Oudh Sugar Mills Ltd. v. Regional Provident Fund Commr., AIR 1957 Bom 149. In the former case a question with regard to a notification under Section 27 of the Minimum Wages Act was being considered and it was laid down that the legislature undoubtedly intended to apply this Act not to all the Industries but to those industries only where by reason of unorganised labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low. It is with an eye to these facts that the list of trades has been drawn up in the schedule attached to the Act but the list is not an exhaustive one and it is the policy of the legislature not to lay down at once and for all time, to which industries the Act should be applied. This decision lays down the general principle and the purpose of Section 27 but it is not on the point whether this Printing Section of the petitioner Company can or cannot be considered to be a scheduled employment.
The latter decision on which reliance has been placed, that is, one reported in AIR 1957 Bom. 149 it was not a case under the Minimum Wages Act but it was under the Employees' Provident Funds Act. The petitioner Company in that case was carrying on the business of vegetable oil and its by-products. The vegetable oil produced by the Company was tinned in the containers fabricated by the Company In the precincts of the oil factory. These tin containers were used only for the purpose of packing vegetable oil and not used for any other purpose. Mudholkar, J. in that case held that the aforesaid Act applies to a unit on the premises of which (i) a manufacturing process is carried on, (ii) in any industry engaged in the manufacture of any of the scheduled products, but this was with reference to the words 'manufacturing process' and 'industry' as contemplated by the Employees' Provident Funds Act, Tambe, J. dissented from this view and he was pleased to observe that it was not correct to say that where the principal object of an industry does not fall within the meaning of the first schedule of the Act, then even If certain scheduled articles for being used in that industry only are manufactured, the provisions of the Act are not attracted. In my opinion, as the considerations in that case were in respect of specific provisions in a completely different Act, so this decision is also distinguishable and will not apply to the facts of the present case.
12. On a consideration of all these facts, I am of the opinion that the Printing Section where printing work was being carried on for the reasons stated above can be regarded as scheduled employment as decided by the Government and communicated to the petitioner Company.
13. It has also been urged that the notification of the year 1960 (Annexure E) was in contravention of the provisions of the Minimum Wages Act. I may refer here to the aforesaid notification which laid down that it was being issued in exercise of the powers conferred by Clause (b) of Sub-section (1) of Section 3 of the Minimum Wages Act. Clause (b) of Section 3 (1) of the Minimum Wages Act refers to a case of review of the rates of minimum wages but in this case the minimum wages had not been previously fixed and were being fixed for the first time. So the fixation could have been under Clause (a) and not under Clause (b). This contention seems to be correct but In my opinion there was just a technical or a clerical error and did not affect the jurisdiction. I may refer here two decisions of the Supreme Court in this connection; one of which is in the case of P. Balakotaiah v. Union of India, AIR 1958 SC 232 where it was held that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if It can be shown to be within its powers under any other rule and that the validity of an order should be judged on a consideration of its substance and not its form.
The other decision is in the case of Hukum Chand Mills Ltd. v. State of Madhya Pradesh, AIR 1964 SC 1329. It was a case with respect to the making of amendments in the Indore Industrial Tax Rules and it was held that the Government had the power to amend the rules under Section 5 (1) read with Section 5 (3), but in the notification instead of Section 5 it was mentioned under Rule 17 and In such circumstance it was held that it would not vitiate the amendment for the mere mistake in the opening part of the notification In reciting the wrong source of power does not affect the validity of the amendments made. In the present case also there was a mistake in the opening part of the notification but this will not in any way affect the validity of the notification of 1960 (Annexure E).
14. The second contention in this connection that has been raised in this case is that the notification of the year 1960 was invalid as it was after the expiry of the period as contemplated by Section 3 of the Act. The Minimum Wages Act was passed in the year 1948 and then there were some amendments in the Act in the years 1954, 1957 and 1961 respectively. The notification (Annexure-E) of 1960 was issued prior to 1961 so naturally it will be governed by the provisions of the Act as it then stood in 1960. Section 3 (1) as it then stood is as follows:
"Section 3 (1) -- The appropriate Government shall, in the manner hereinafter provided-
(a) fix the minimum rates of wages payable to employees employed-
(i) in an employment specified in Part I Of the Schedule at the commencement of this Act, before the 31st day of December, 1959;
(ii) in an employment specified in Part II of the Schedule at the commencement of this Act, before the 31st of December 1959:
Provided that the appropriate Government may, instead of fixing minimum rates of wages under this sub-clause for the whole State, fix such rates for apart of the State or for any specified class or classes of such employment in the whole State or part thereof and
(iii) in an employment added to Part I or Part II of the Schedule by notification under Section 27, before the expiry of one year from the date of the notification;
(b) review at such intervals as it may think fit, such interval not exceeding five years, the minimum rates of wages so fixed and revise the minimum rates, if necessary."
It has been urged, therefore, that under Section 3 (1) (a) the notification fixing the minimum wages should have been made before 31st December, 1959 as far as Part I of the schedule is concerned. Similarly in respect of Part II of the Schedule also but we are not here concerned with Part II as it is in respect of agricultural employment. The notification of 1960 (Annexure-E) as already pointed above was of 24th May. 1960 and so it has been urged that it was after the expiry of the date as laid down in Section 3 (1) (a) of the Act. Section 3 (1) (a) (iii) as quoted above lays down that in an employment added to Part I or Part II of the Schedule by notification under Section 27, the minimum rates of wages payable may be fixed by the appropriate Government before the expiry of one year from the date of notification. The additions to the schedule were made by the Government notification under Section 27 by Annexure-D dated 25th of May, 1959. The notification (Annexure-E) was on 24th of May, 1960 and so it was before the expiry of one year from the date of the notification under Section 27. The position of course would have been different if the rates of minimum wages had been fixed with regard to the Cigarette Factory itself because in that case then according to the section as it then stood it should have been before 31st of December, 1959. But this restriction of period for obvious reasons would not apply to a case where there are additions in the schedule under Section 27 of the Act and in that case the fixation of minimum wages can be made within one year of such notification.
15. The notification (Annexure-E) of the year 1960 in my view for the reasons stated above cannot be said to be invalid.
16. The notification (Annexure E) dated 24th May, 1960 fixed minimum rates of wages for nineteen categories of employees but admittedly we are concerned in this writ petition with only three categories of daily-rated employees and these are as described in items 12, 17 and 19 of the notification. It has been urged on behalf of the petitioner Company that these categories of workers were getting already much higher wages and it was more than 250 to 450 per cent than the minimum wages fixed by the notification in the year 1960.
It wag also contended that even if remuneration for Sunday was allowed, the wages which are being paid would still be much higher than what the workers would be entitled under the notification. It was also contended that they have been getting such high rates by virtue of a settlement which was arrived at in a conciliation proceeding and which was binding on both parties. I will discuss the matter of settlement separately but I will be here discussing only as to how far this contention was correct that the workers were really getting much higher wages than what has been laid down in the notification of 1960 and further what would be the effect of this. It may be mentioned here that neither on behalf of the Government nor on behalf of the Union this position has been challenged or disputed that factually the workers as described in items 12, 17 and 19 of the notification are getting much higher wages. In the writ petition a comparative chart has also been given showing the wages which are being paid and the wages which are payable under the notification of 1960. I may give here below an extract of the comparative chart for the elucidation of the position.
Item of the notification of 1960.
Minimum rates of wages under the Minimum Wages Act of notification of 1960.
Wages actually being paid after settlement in the year 1965.
Remuneration payable for rest day (four Sundays), 1 2 3 4 Iem-12 Unskilled Workmen Darwan, Peon, Majdoor Helper).
Rs. 45 per month.
Rs. 202.91 6,92.
Item-17 Litho Machine men.
Rs. 100 per month.
Rs. 282.31.
15.38.
Item-19 Binder.
Rs. 50 per month.
Rs. 262.31.
7.09.
17. The aforesaid chart, therefore, clearly shows that under the settlement of 1965 the petitioner Company has been paying, which is not disputed, much higher wages than what the workers are entitled to under the notification of 1960. The opposite party has been contending that they are entitled to wages for Sundays also and the chart which I have given above (here given on next page) will show that even if the wages for Sunday are added to the wages laid down in the notification still the wages which are being actually paid are much higher. The learned counsel appearing for the opposite party has contended that this does not make any difference and the Company still is liable to pay for the Sundays also. I will now proceed to examine as to how far this contention is correct. I may again refer here to the preamble of the Act which lays down "whereas it is expedient to provide for fixing minimum rates of wages in certain employments". The object of the Act is, therefore, to prescribe minimum rates of wages and I may again refer here to Section 12 of the Act which can be said to be the charging section under the Act, This section lays down as follows;
"12(1) Where in respect of any scheduled employment a notification under Section 5 ***** is in force, the employer shall pay to every employee engaged in a scheduled employment under him wages at the rate not less than the minimum rate of wages fixed by such notification for that class of employees in that employment without any deductions except as may be authorised within such time and subject to such conditions as may be prescribed.
(2) Nothing contained in this section shall affect the provisions of the Payment of Wages Act, 1936."
The liability under the section is, therefore, to this extent that the employer should pay the minimum rates of wages fixed by the notification. Section 13(b) lays down that the appropriate Government may 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 of remuneration in respect of such days of rest; wages has been defined in Section 2(h) of the Act which is as follows:
"'Wages' means all remunerations, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled be payable to a person employed in respect of his employment or of work done in such employment (and includes house rent allowance) 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;" This definition clearly shows that the word 'wages' as contemplated by the Act has a composite meaning which will include all remunerations as contemplated by this Act read with Rule 23 of the Bihar Minimum Wages Rules. Learned counsel for the petitioner has also relied on three decisions; one of these is of the Madras High Court and the other two of the Bombay High Court and Mysore High Court respectively. In the case of Madras Port Trust v. Claims Authority (1956) 2 Lab LJ 490 = (AIR 1957 Mad 69) it was held by the Madras High Court that basically what the employee is entitled to is wages and the scheme of the Minimum Wages Act is to provide for a minimum wage for each employee. It further also lays down that the Act provides for a payment of a minimum. So long as that minimum is paid, the contractual wage structure is left unaffected and the component parts of the wages could still be regulated by contract, between the employer and the employee, and that the definition of wages postulates a contractual basis express or implied. If the contract rate of wages is higher, the statutory right and obligation do not come into play.
It was also held that the wages paid to the concerned workmen under various heads of monthly wages, dearness allowance, house rent allowance etc. exceeded the minimum rate of wages fixed under the Act, the employer could not be held guilty of contravening the notification, though the particular component of the wage structure, viz. dearness allowance, was at a rate lower than the one fixed under the Act.
A similar question came up for consideration in the case of Union of India v. Rathi, (1962) 2 Lab LJ 655 = (AIR 1963 Bom 54) in which it was laid down that the object of the said Act being to provide minimum wages to the employees according to the nature and the duration of the work done by the employees, one has to find out what is the total liability imposed on the employer in order to achieve that object; as pointed out above, Section 12(1) is the only section which de-lines that liability of the employer as regards the payment of wages. Here in this case also it was held that it is clear that so long as the employer pays the total minimum wages as provided by the Act and the rules thereunder, the employer will not be liable to pay anything more merely because the Act provides for the regulation of the hours of work and because Rule 25 prescribes wages for the over time work at double the ordinary rate of wages. In the third case of Municipal Borough v. Gundawan, 1965-2 Lab LJ 26 = (AIR 1965 Mys 317) Hegde, J. as he then was was pleased to hold that from the scheme of the Act, it is dear, its object was to guarantee to those, who were working in scheduled employment, a minimum rate of wages and if the wages paid by the employer are more than what the employees would have got on the basis of the minimum wages then no relief can be given under the Act.
18. On a consideration of the facts and circumstances, it is clear that the petitioner Company has been actually paying much higher rates of wages to these workmen and in this view of the matter they cannot come within the mischief of Section 12 of the Act. Their liability was only to pay the minimum rates of wages and since they have been paying much more than in view of this section and the object of the Act, the petitioner company cannot be held guilty of infringement of any of the provisions of the Act. It is also obvious that it will be extremely unfavourable to the workers themselves if they seek their rights under the Minimum Wages Act and the employer also pays them only what they are liable to pay under the notification. The workers and the Union will not be satisfied and it will unnecessarily create complication and unpleasantness.
19. It has also been urged that the rates which are being paid are by virtue of a settlement in a conciliation proceeding which has got statutory force and binding against the parties and, therefore, a very anomalous situation has been created and the petitioner company is fared with a serious situation whether to abide and act in accordance with the terms of settlement arrived at in the year 1965 or to give effect to the notification of 1960 as directed by the authorities concerned. It may be mentioned here that this does not seem to be a disputed position that from as early as In the year 1953 the petitioner Company has been receiving charters of demand from the workers and from time to time they have been settling the demands. This position was also not disputed that in the year 1964 the Union, i.e. opposite party No. 5 submitted a charter of demands and one of the demands was as follows:
"All employees be made eligible for Sunday leave with pay as is now enforced in "Minimum Wage Factories."
After the presentation of charter of demands by the Union there was a conciliation proceeding before Shri F. Ahmad, I. A. S., Labour Commissioner and Conciliation Officer, Bihar, Annexure B is the memorandum of settlement and the opening paragraph runs as follows:
"Memorandum of Settlement in an Industrial Dispute between the Imperial Tobacco Company of India Limited. Mon-ghyr, (herein called 'The Company') of the one part and Tobacco Manufacturing Workers Union, Monghyr, representing the workmen employed at the Company's Monghyr Printing Factory (hereinafter called The Union) of the other part at conciliation proceedings held under Section 12(3) of the Industrial Disputes Act 1947, on the 25th September, at Patna".
It has been contended by the learned counsel Mr. Ali Ahmad for the opposite party that there was no settlement with regard to the demand for wages for Sunday and that this demand was never abandoned or waived but it has been urged on the other hand on behalf of the petitioner company that this demand of the Union had either been waived or abandoned. Admittedly the memorandum of settlement does not make any settlement about this demand and so it has to be seen as to how far the contention of the petitioner Company is correct that this demand had either been given up or waived. Learned counsel appearing for the opposite party has relied on Item 23 of the memorandum of settlement with a view to show that the settlement was with regard to only those matters which are specifically mentioned therein. The relevant Item 23 runs as follows:
"The workmen (collectively or individually) shall not during the period of the operation of this settlement make any demand or resort to conciliation, adjudication, go-slow or strike in respect of "merged wages", Dearness Allowance, 'Bonus' and any other aspect of remuneration or other matters covered by this Memorandum of Settlement".
It is true that there is no specific mention therein about Sunday wages but the last portion would clearly include that also which states "any other aspect of remuneration or other matters covered by this Memorandum of Settlement". I may also refer here to item No. 6 of the Memorandum of Settlement which runs as follows:
"All matters arising out of the Charter of Demands dated 23rd August, 1964, annexed as Annexure-III hereto are and shall be deemed to be covered and settled by this Memorandum of Settlement and the parties hereto agree, and confirm that no dispute, matter or demands of whatsoever nature are outstanding between them on the execution of this Memorandum of Settlement".
This clearly shows that all the demands which had been put forward, had been settled by the memorandum of settlement and that no dispute, matter or demands of whatsoever nature then remained outstanding between them on the date of execution of this document. The interpretation of a document has to be made on reading the entire document as a whole. A perusal of Item 23 of the memorandum of settlement along with Item 6 of the memorandum to my mind clearly shows that all the outstanding demands at that time had been settled. It would naturally mean that as far as the remuneration for Sunday or the rest day was concerned this had also been settled inasmuch as it had not, been pressed or the workers were otherwise fully and thoroughly satisfied when they got such high rates of wages. This is apparent from the comparative chart which I have given in this judgment while dealing with the point whether such higher wages were actually being paid or not. In this connection, I may also refer to a decision of the Calcutta High Court in the case of Imperial Tobacco Employees Association v. State of West Bengal, reported in (1963) 1 Lab LJ 601 (Cal.) In this case also the workmen through a trade union which was recognised by the employer presented a charter of demands which inter alia included the question of fixation of working hours. The parties entered into a settlement in the course of a conciliation proceeding and one of the terms of the settlement was that all the demands raised by the workmen and which formed the subject matter of the conciliation proceeding shall be deemed to have been covered by it, that there are no demands or dispute of whatsoever nature pending between the parties. It was held in that case that it may not be unreasonable to hold that under the settlement the workmen gave up all demands which were not specifically covered by the terms of the settlement. In other words the settlement was arrived at on the basis of give and take; the workmen gave up certain claims and demands and the employer-company conceded to their other claims and demands.
20. Now turning again to the memorandum of settlement one of the important terms of settlement is embodied in Item 25 and the relevant portion is as follows:
".....It being agreed that under no circumstances shall this Memorandum of Settlement be so modified or substituted or terminated before 31st December. 1969." The position, therefore, was very clear that there was a settlement in which the Union, i.e., the opposite party was a party and this settlement is in force at present and will be expiring in December. 1969. The question arises as to what would be the legal consequences and effect of such a settlement. I may first of all refer here to Section 25 of the Minimum Wages Act which provides for the contingency of contracting out and this section runs as follows:
"Any contract or agreement, whether made before or after the commencement of this Act, whereby an employee either relinquishes or reduces his right to a minimum rate of wages or any privilege or concession accruing to him under this Act shall be null and void in so far as it purports to reduce the minimum rate of wages fixed under this Act."
It will be thus clear that a contract or agreement shall be null and void only to that extent that it purports to reduce the rate of wages fixed under the Act and so any contract or agreement which confers right to higher wages will not be hit by this section. As a matter of fact, such a contract or agreement should be rather very laudable and welcome under the Scheme of the Act.
21. The next question arises as to how far and against whom such settlement was binding and for this I may refer to the relevant provision under the Industrial Disputes Act. Section 12 deals with the duties of a Conciliation Officer and Sub-section (3) lays down that "if a settlement of the dispute or of any of the matters in dispute is arrived at in the course of the conciliation proceedings the Conciliation Officer shall send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute". This is with regard to the duty of the Conciliation Officer and presumably the Conciliation Officer in this case must have forwarded his report as contemplated by Sub-section (3) of Section 12. Section 19 of the Industrial Disputes Act deals with the period of operation of settlements and award and Sub-section (2) lays down that "such settlement shall be binding for such period as is agreed upon by the parties", and in this case as pointed above the settlement is for a period up to 31st December, 1969. I may now refer here to a decision of the Bombay High Court in the case of Poona Mazdoor Sabha v. Dhutia, (1956) 2 Lab LJ 319 = (AIR 1956 Bom 743). Chagla, C. J. held in that case that when the legislature provides for a particular agreement being binding upon the parties to an industrial dispute, it clearly intends that there is industrial peace with regard to the subject matter of the agreement for the duration of that agreement and it Is obvious that if there is to be an industrial peace for the period contemplated, then neither party to that settlement could be allowed to raise an industrial dispute with regard to that. It was thus clear that neither an industrial dispute could be raised with regard to matters covered by such settlement nor could matters covered by such settlement form the subject matter of conciliation proceedings under. Section 12 of the Act.
22. Now as far as the question against whom such settlement would be binding, I may refer to Section 18 of the Industrial Disputes Act. Sub-section (3) of that section lays down that "where a settlement is arrived at in the course of conciliation proceeding then it shall be binding on all the parties to the industrial dispute." The Union (Opposite Party No. 5) was undoubtedly a party to the dispute and therefore, such a settlement would be binding against the Union and the petitioner Company. Learned counsel appearing for the opposite party has contended firstly that the provisions of the Industrial Disputes Act cannot be applied when dealing with a case under the Minimum Wages Act. But I think this contention does not seem to be correct because when considering matters relating to a conciliation proceeding and the settlement arrived at in such proceeding then naturally the relevant provisions in the Industrial Disputes Act have to be examined and particularly in light of the provisions of the Minimum Wages Act.
It was secondly contended by the learned counsel appearing for the opposite party that even if such a settlement would be binding against the opposite party under Sub-section (3) of Section 18 of the Act, it cannot be binding against the Government which was not a party to the proceeding and, therefore, the Government cannot be stopped from taking action for prosecution of the petitioner company for the infringement of the provisions of the Minimum Wages Act. True, it is that the Government in the technical sense was not a party to the conciliation proceeding but nevertheless a responsible officer of the Government acted as a Conciliation Officer. The settlement was in the nature of a tripartite agreement and as pointed above the settlement must have been brought to the notice of the Government as early as in the year 1965. The Government in such circumstances cannot be allowed to take the plea of being ignorant of such a settlement. The Government cannot also be allowed to ignore such a solemn statutory settlement.
Now if it be held that the settlement is not binding against the parties or that the Government still can take action under the Minimum Wages Act in spite of the fact that after the settlement the petitioner Company has been paying such higher wages then it would mean that the petitioner Company is being placed in a very embarrassing and anomalous position. The petitioner is, therefore, faced with the situation whether to abide by the settlement or to abide by the notification of the year 1960. I think that the settlement was binding not only against the opposite party No. 5 but the settlement was such that it should have been duly taken notice of by the Government before issuing the directions in the impugned orders.
23. The petitioner had been filing several petitions putting forward therein various grounds for exemption but these were of no avail. The prayer for exemption was first of all refused by a letter dated 19th June, 1967. (Annexure P). In this letter the Government in the relevant portion stated as follows:
".....that since the General Secretary Tobacco Manufacturing Workers' Union, Basdeopur. Monghyr has raised objections to the prayer of M/s. Imperial Tobacco Company of India Limited for grant of exemption to their Printing Factory at Monghyr from the operation of the provisions of the Minimum Wages Act, 1948, the State Government regret that it is not possible for them to grant the exemption prayed for by the Company".
The matter was again pressed by the Company and then the Government in its impugned letter (Annexure T) dated 27th February, 1968 informed the Company that the reasons put forward by the Management of the Company do not justify their prayer for grant of exemption of the Printing Factory of the Company under Section 26(2A) of the Minimum Wages Act 1948 and in the circumstances, the State Government regret that it is not possible for them to exempt the Printing Factory of the Company from the operation of the provisions of the said Act. It has been urged that the refusal was on extraneous grounds and as such there was an error of law apparent on the face of record. It has been urged on the other hand both by the learned counsel appearing for the State and the learned counsel appearing for the opposite party firstly, that there is no prescribed authority under the Act for granting exemption and the Government was also not bound to give reasons for refusal to grant exemption. It was also urged that the letter (Annexure T) shows that the Government had also considered the reasons which had been advanced by the Company praying for grant of exemption. I may now first of all refer to the provisions of Section 26(2A) which is as follows:
"The appropriate Government may, if it is of opinion that, having regard to the terms and conditions of service applicable to any class of employees in a scheduled employment generally or in a scheduled employment in a local area (or to any establishment or a part of any establishment in a scheduled employment) it is not necessary to fix minimum wages in respect of such employees of that class (or in respect of employees in such establishment or such part of any establishment) as are in respect of wages exceeding such limit as may be prescribed in this behalf, direct, by a notification in the official Gazette and subject to such conditions, if any, as it may think fit to impose, that the provisions of this Act or any of them shall not apply in relation to such employees".
This section clearly provides and empowers an appropriate Government to grant exemption and it cannot be said that there is no prescribed authority or that the petitioner Company could not ask for exemption because the section is very clear on this point and I may also in this Connection refer to the letter of the Inspector of Factories, Monghyr Circle dated 28th March, 1967 (Annexure M) which is also one of the impugned letters and in this letter also the officer informed the Company that the Factory is advised to pay all the daily-rated workers rest day wages in accordance with the provisions of Rule 23 of the Bihar Minimum Wages Rules, until the factory gets the exemption. This clearly shows that the officer was also conscious of the position that exemption is permissible. The exemption on the first occasion was refused by the Government obviously on a consideration of a matter and contemplated by the section because the only ground of refusal was that an objection had been raised by the Secretary of the Union.
The other letter no doubt while refusing the prayer for exemption (vide Annexure T) also stated that the Government was not satisfied with the reasons advanced by the Company. Section 26 (2A) as pointed above lays down as to what things are to be considered and these are that the Government should consider the terms and conditions of service applicable to any class of employees in a scheduled employment and to see if it is not necessary to fix any minimum wages In respect of such employees as are in receipt of wages exceeding such limit as may be prescribed. This clearly shows that the Government when forming its opinion has to take into consideration all the factors specially mentioned in the section and this in my opinion can be done either suo motu or on a petition being filed by the person concerned. It appears that all these facts had not been considered and the letter also does not clearly show that all these had been considered.
I may in this connection also refer to a decision of the Supreme Court in the case of Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295. It was in respect of Section 237 of the Companies Act, The words occurring in that section are "If in the opinion of Central Government there are circumstances suggesting" and those circumstances are enumerated in the section. It was held in that case that the words "reason to believe" or "in the opinion of" do not always lead to the construction that the process of entertaining "reason to believe" or "the opinion" is altogether a subjective process not lending itself even to a limited scrutiny by the Court that this was not formed on relevant facts or within the limits of the Statute. Here in this case the facts and circumstances which I have discussed would clearly show that undoubtedly there had been a settlement in a conciliation proceeding which by virtue of the agreement between the parties will be in force till 31st of December, 1969. Under the settlement as pointed above much higher wages were being paid to the workmen concerned and prima facie in the subjective process of formation of opinion these facts had not been taken into consideration. I think it is a fit case in which the Government should have granted the exemption under Section 26 (2A) of the Act and, therefore, the impugned letters of the Government (Annexures P and T) refusing to grant exemption and also the letter (Annexure R) holding out threat of prosecution only are hereby quashed and it is held that the petitioner is entitled to exemption. Government is thus directed to pass the necessary order to that effect. The prayer of course, for quashing the notification of 1960 and the decision of the Government that Printing Section of the Factory is a scheduled employment is rejected. In the circumstances of the case no order for costs is being passed.
Misra, C.J.
24. I agree to the order proposed. I reserve my opinion, however, in regard to the application of the provisions of the Industrial Disputes Act as to conciliation proceedings to a matter under the Minimum Wages Act.