Orissa High Court
Essel Mining & Industries Limited And ... vs Union Of India (Uoi) And Ors. on 4 December, 1998
Equivalent citations: (1999)IILLJ316ORI
JUDGMENT Susanta Chatterji, J.
1. The present writ application at the instance of M/s. Essel Mining & Industries Limited, a company registered under the Companies Act, 1956, together with one of its shareholders of the company seeks the following reliefs:-
" ..... that this Hon'ble Court may be graciously pleased to issue a Rule Nisi calling upon the opposite parties to show cause as to why the impugned notification, vide Annexure-1 dated July 12, 1994 ought not to be quashed/set aside;
And If the opposite parties will fail to show cause or show false or inadequate cause, make the said Rule Nisi absolute;
And Pass writ in the nature of Mandamus and/or any other appropriate writ(s) as may be deemed just and proper;
And Pass such further order(s) as this Hon'ble Court may deem necessary for granting your petitioner complete relief."
2. In fact, the petitioners challenge the Notification No. S.O.514 (E) dated July 12, 1994 of the Government of India, Ministry of Labour in exercise of the powers conferred under Section 3(1)(b) read with Section 4(1)(iii) and Section 5(2) of the Minimum Wages Act, 1948. A copy of the said Notification has been filed as Annexure-1 to the writ application. This Notification has been published in the Gazette of India, Extraordinary, Part- II, Section 3(2). It is contended in the writ application that there were earlier Notification being Nos. S.O.955 (E) to 977 (E) dated October 25, 1988 revising the minimum rate of wages as specified in the schedule annexed thereto and the said Notifications have been given effect from the aforesaid date. Subsequently, the Union of India by Ministry of Labour Notification No. S.O.377(E) dated June 11, 1993 notified that it intended to review the minimum wages, vide the said Notification and declared its draft proposal seeking objections and suggestions from persons or organisations with respect thereto within two months of publication of the said Notification in the Official Gazette. The said Notification further declared that the Central Government would consider such objections or suggestions. A copy of the said Notification No. S.O. 377(E) dated June 11, 1993 has been filed as Annexure-2 to the writ application.
3. The petitioner acting through its association, the Federation of Indian Mineral Industries, vide its letter No. C/31/93/684 dated August 9, 1993 and letter No. C/31/93/705 dated August 10, 1993 brought to the notice of the Government of India its various suggestions and objections to the draft Notifications. The said letters of the petitioner have been filed as Annexure-3 series to the writ application. Thereafter the impugned Notification Annexure-1 was allegedly issued.
4. The present writ application is confined to the exception taken specially with regard to the Explanation for the purpose of the Notification where the minimum rates of wages have been earmarked for the workers being categorised. In para-7 of the said Explanation it has been stated:
"A person working or employed in or in connection with a mine is said to be working or employed "below ground" if he is working or employed:-
(i) in a shaft which has been or is in the course of being sunk; or
(ii) in any excavation which extends below superjacent ground; or
(iii) in an open cast working in which the depth of the excavation measured under its highest to its lowest point exceeds six metres."
5. The writ petitioners have strongly challenged the categorisation and/or classification of the employees working in an open cast mine entitling them to minimum wages for those engaged below the ground, the depth of the excavation from the highest to lowest point being exceeding six metres. The grounds of objection of the petitioners have been elaborated in the writ petition. For better appreciation, it is averred that so far as the Labour Legislation is concerned pertaining to mines it is stated as follows:-
(a) hours of work;
(b) shift working;
(c) entitlement period for leave;
(d) overtime;
(e) allowance, etc.;
separately for open cast and underground mines.
6. In order to appreciate different aspects, the relevant legislations may be looked into, such as, Mines Act; Mines Rules; Metalliferous Mines Regulations and the Legislations that differentiation is maintained between the workers working in open cast mines irrespective of the depth and the workers working in underground mines.
7. Objections have been taken that an attempt has been made by the opposite party authorities to merge two categories of employees together by providing the Explanation to the Notification which is wholly violative of Article 14 of the Constitution. Besides, an attempt has been made to make two unequals as equals. There are various averments in the writ petition that the acts done and/or caused to have been done by the opposite party authorities concerned in issuing the impugned Notification providing the Explanation to create a new classification which is not found to be reasonable and have no nexus to the object it proposes to achieve and such an artificial classification is de hors the Statute. The spirit of the impugned Notification is alleged to be otherwise contrary to and inconsistent with the statutory provisions as elaborated in the writ petition as also the rejoinder in particular its paras-8 and 11.
8. Precisely Mr. Nanda, learned senior counsel appearing for the petitioner, has developed his argument inter alia that Section 3 of the Minimum Wages Act provides for fixation of minimum rates of wages. It is indicated that the appropriate Government shall in the manner hereinafter provided-
(a) fix the minimum rates of wages payable to employees employed in an employment specified in Part I or Part II of the Schedule and in an employment added to either Part by Notification under Section 27;
Provided that the appropriate Government may, in respect of employees employed in an employment specified in Part II of the Schedule, instead of fixing minimum rates of wages under this clause for the whole State, fix such rates for a part of the State or for any specified class or classes of such employment in the whole State or part thereof;
(b) review at such intervals as it may think fit, such intervals not exceeding five years, the minimum rates of wages so fixed and revise the minimum rates, if necessary;
Provided that where for any reason the appropriate Government has not reviewed the minimum rates of wages fixed by it in respect of any scheduled employment within any interval of five years, nothing contained in this clause shall be deemed to prevent it from reviewing the minimum rates after the expiry of the said period of five years and revising them, if necessary, and until they are so revised the minimum rates in force immediately before the expiry of the said period of five years shall continue in force.
9. He has further argued that Sub-section (2) of Section 3 provides that the "appropriate Government" may fix,-
(a) a minimum rate of wages for time work;
(b) a minimum rate of wages for piece work;
(c) a minimum rate of remuneration to apply 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; and
(d) a minimum rate (whether a time rate or a piece rate) to apply in substitution for the minimum rate which would otherwise be applicable, in respect of overtime work done by employees.
10. Mr. Nanda has laid much emphasis for appreciation of the Scheme and object of the Act and the powers given to the legislative authority. Further he has drawn attention of the Court to the Mines Act, 1952. Attention has also been drawn specifically to the definition of "Mine". Section 2(1)(j) says that "mine" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes-
(i) all borings, bore holes and oil wells;
(ii) all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not;
(iii) all levels and inclined planes in the course of being driven;
(iv) all open cast workings;
(v) all conveyors or aerial ropeways provided for the bringing into or removal from a mine of minerals or other articles or for the removal of refuse therefrom;
(vi) all adits, levels, planes, machinery, works, railways, tramways and siding, in or adjacent to and belonging to a mine;
(vii) all workshops situated within the precincts of a mine and under the same management and used solely for purposes connected with that mine or a number of mines under the same management;
(viii) all power stations for supplying electricity solely for the purpose of working the mine or a number of mines under the same management;
(ix) any premises for the time being used for depositing refuse from a mine, or in which any operation in connection with such refuse is being carried on, being premises exclusively occupied by the owner of the mine;
(x) unless exempted by the Central Government by notification in the Official Gazette, any premises or part thereof, in or adjacent to and belonging to a mine, on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is being carried on.
11. He has also drawn attention of the Court to Section 2(1)(kk) with regard to the definition of "open cast working". It means a quarry, that is to say an excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, not being a shaft or an excavation which extends below superjacent ground.
12. Mr. Nanda has also drawn attention of the Court to Sub-section (2) of Section 2 of the Mines Act which lays down that a person working or employed in or in connection with a mine is said to be working or employed:-
(a) "below ground" if he is working or employed
(i) in a shaft which has been or is in the course of being sunk; or
(ii) in any excavation which extends below superjacent ground, and
(b) "above ground" if he is working in an open cast working or in any other manner not specified in Clause (a)
13. To find force in his submissions, Mr. Nanda has developed his point drawing attention of the Court to the Mineral Conservation and Development Rules, 1988, In Rule 15 thereof it is provided:
"15. Open cast working:- (1) In open cast working the benches formed shall be so arranged that the benches in ore/mineral and overburden are separate so as to avoid mixing of waste with the ore/minerals.
(2) The benches in overburden shall be kept sufficiently in advance so that their working do not interfere with the working of ore/minerals.
(3) Orientation of the workings and sequence of mining operations shall be such that different grades of ore/minerals can be obtained simultaneously for blending with a view to achieve optimum recovery of ore/minerals from the deposit."
14. Mr. Nanda has pointed out that under Rule 17 of the Mineral Conservation and Development Rules, 1988 there is indication as Ho underground mining operations and has submitted for appreciation of the Court that the concept is clear about open cast mining operations and underground mining operations. Statute has also always distinguished the two operations accordingly.
15. In chapter XI of the Metalliferous Mines Regulations, 1961 under Regulation 106 there is provision for open cast workings. It is provided that in opencast workings, the following precautions shall be observed, namely:-
(1) In alluvial soil, morum, gravel, clay, debris or other similar ground-
(a) (i) the sides shall be sloped at an angle of safety not exceeding 45 degrees from the horizontal or such other angle as the Regional Inspector may permit by an order in writing and subject to such conditions as he may specify therein.
Thus, under this Regulation there are provisions as to safety measure, precautionary measure and statutory guidelines for working of open cast mines to avoid hazards or other eventualities. Similarly, Regulation 107 is there with regard to underground workings. Under this Regulation it is provided that in every mine worked by a system of working below ground, the provisions as enumerated therein shall have effect.
16. Mr. Nanda has submitted that there should be clear concept that no Notification can be made by merging or amalgamating the two types of workings as aforesaid which are independent of their own and statutory recognition is there in the proper perspective. In the impugned Notification and in particular the Explanation portion, para -7 last clause, an attempt has been made to confuse the issue and create a class or category of employees making them entitled to certain benefits as if they are employed below ground. The concept of "below ground" according to Mr. Nanda is always to be appreciated while there will be working in a shaft which has been or is in the course of being sunk; or in any excavation which extends below superjacent ground. There cannot be a new classification as the workers employed below ground would be construed to be working in open cast mine in which the depth of the excavation measured from its highest to its lowest point exceeds six metres.
17. He has highlighted the objection of the petitioner Company. It is stated that the petitioner did not take exception to any increase of the minimum wages of the employees concerned, but takes serious exception to creation of a new and artificial classification of employees who are to be construed to be working below ground in case of open cast mine in which the depth of the excavation measured from its highest to its lowest point exceeds six metres. This Explanation in the impugned Notification by way of an executive order is completely absent in the Scheme of the Mines Act, the Scheme of the Minimum Wages Act and the Scheme of other legislations as indicated above.
18. Mr. Nanda has submitted for appreciation of this Court that unless there is a source of power conferred by legislation to the advisory authority, the exercise of administrative power however beneficial it may look is wholly unwarranted and uncalled for. The Court should not permit exercise of such power without any authority therefor being granted by way of legislation.
19. Attention of the Court has been drawn to the decision reported in A.I.R. 1968 S.C. 1379 (State of A.P. v. P. Sagar) wherein the Apex Court considered the scope of Article 15(4) of the Constitution of India in respect of Andhra Government Notification reserving seats for backward classes in Medical Institutions - List of backward classes ex facie based on caste - Validity - Assertion by State that list is prepared after full consideration of relevant materials and not solely on caste basis. No material was actually placed before the Court to determine truthfulness of assertion. In that case the Notification was held invalid. In that case the decision reported in A.I.R. 1968 A.P. 165 was approved. In para-9 of the said decision, the Apex Court has observed:
"On behalf of the State it was merely asserted that an enquiry was in fact made with the aid of expert officers and the Law Secretary and the question was examined from all points of view by the officers of the State, by the Cabinet Sub-Committee and by the Cabinet. But whether in that examination the correct criteria were applied is not a matter on which any assumption could be made especially when the list prepared is ex facie based on castes or communities and is substantially the list which was struck down by the High Court in P. Sukhadev's case. 1966-I Andh. W.R.294. Honesty of purpose of those who prepared and published the list was not and is not challenged, but the validity of a law which apparently infringes the fundamental rights of citizens cannot be upheld merely because the law maker was satisfied that what he did was right or that he believes that he acted in manner consistent with the constitutional guarantees of the citizen. The test of the validity of a law alleged to infringe the fundamental rights of a citizen or any act done in execution of that law lies not in the belief of the maker of the law or of the person executing the law, but in the demonstration by evidence and argument before the Courts that the guaranteed right is not infringed."
20. Mr. Nanda has highlighted more that while the Notification in question has conferred certain benefits on the employees, he questions the source of power of the administrative authority to issue such Notification creating an artificial classification and complication not permitted within the parameters of the statutory guidelines. Developing further, he has referred to another decision reported in State of Haryana v. Piara Singh (1993-II-LLJ-937) (SC) which is oft quoted. He has drawn attention to para-13 of the said decision. It was found by the Apex Court that the validity of the ordinance was questioned in that case on the ground that the fixation of the date June 25, 1975, was arbitrary and had been chosen only because that was the date on which internal emergency was proclaimed. It was also submitted that the further requirement that the lecturer appointed should be continuing as such on the date of commencement of the ordinance (June 12, 1978) is an equally arbitrary and unreasonable condition. Both these contentions were rejected by the Supreme Court. The Court negatived the contention that the prescription of the said date and the further requirement of being in service on the date of ordinance have the effect of excluding persons who have put in long years of service but were not continuing on the date of ordinance, making the said conditions discriminatory. Such possibilities, it was held, were not enough to castigate the said condition as arbitrary. It was observed that there was no evidence to show any attempt on the part of the Government to separate or penalise pre-emergency appointees or for that matter any particular class of appointees. In this context, we must remember that what is in issue is not the wisdom of the executive in issuing a particular order or orders but the validity thereof.
21. Mr. Nanda has laid emphasis on the observation of the Apex Court that in considering the impugned Notification and in particular the Explanation portion to which exception has been taken is by way of an executive order or administrative order where wisdom is lacking. May be there is good intention, or may be the wisdom is demonstrated either expressly or impliedly. But the safeguard is that there should not be any benevolent despotism. There exists administrative, executive and legislative powers which are creatures of law. One is not contradictory to the other and rather they are complementary to each other. The source of power of the administrative heads is the legislation which is made under the strict terms of the Constitution of our country. The Constitution gives power to the Judiciary as check valve in respect of administrative actions, whether the same is permitted under law. In the present case, Mr. Nanda has argued that there should not be any emotional aspect that a class of employees are being exploited by a class of employers. But here not the wisdom of authority is questioned, but the validity of the Notification is questioned which creates an artificial classification with regard to the class of employees working in an open cast mine construing them as employees working below the ground which may create many complications for the employees working in mines other than open cast mines and consequently industrial peace would be disturbed.
22. He has further referred to another decision reported in Bhikusa Y. Kshatriyav. S.A. Taluka Bidi Kamgar Union (1962-II-LLJ-736) (SC). Here a judgment of the Bombay High Court on appeal came to be decided by the Apex Court and the case related to Minimum Wages Act, 1948 in particular Sections 3(3)(iv), 5,6,7,9 and 10. It was held that the provisions of Section 3(3)(iv) of the Act do not confer arbitrary or uncontrolled power on the appropriate Government. Constitution of the Advisory Board under Section 7 read with Section 9 of the Act need not contain representative of employers from each of the scheduled employments. In the said case the impugned Notification was held constitutional and valid.
23. More emphasis was laid that the Act does not confer any unbridled power. The power of the administrative authority to issue any Notification is strictly within the scope and object of the legislation. There is clear definition of "open cast workings". There are definitions of "below ground" and "above ground". So far as "below ground" is concerned, it relates to mines other than open cast workings. The concept of "below ground" has been brought with regard to open cast workings in a mine or quarry and a distinction has been made where the depth of the excavation measured under its highest to its lowest point exceeds six metres. The cumulative effect of Mr. Nanda's argument is that regard being had to the averments in the writ petition and in the rejoinder to the counter-affidavit and considering the scope of the legislative enactment as also the reported decisions referred to above, this Court may appreciate the problems highlighted and grant relief by striking down the Explanation portion of the Notification as already indicated.
24. Learned Senior Standing Counsel appearing for the Union of India has on the other hand, strongly argued justifying issuance of the impugned Notification. He has submitted to visualise the entire facts and circumstances as also the back-ground of the case. He has submitted that for the impugned Notification, objections and suggestions were invited. There was participation of all concerned including the Federation representing the petitioner's management or the employers. There was participation by the worker force. There was participation by others concerned also. After considering all the aspects, there was a tripartite settlement whereafter the impugned Notification was made. The appropriate Government has taken note of all hazards of working in different mines. If regard being had to the various factors and taking note of the expert views the Notification has been made providing some benefit to the people who are asked to work in hazardous situation in the mines, this Court should appreciate that the Notification does not suffer from any illegality or infirmity. The Notification provides for minimum wages for the employees who would be asked to work even in open cast mines below six metres' depth measured from the highest point to the lowest point of excavation. If such employees are given a new classification which is reasonable one, the administrative authority is at liberty to issue the impugned Notification and creation of such a reasonable classification is permitted by the statute itself. If the constitution itself permits creation of a reasonable classification and after taking into consideration the scope, the principles and object of the Minimum Wages Act as also the Mines Act the impugned Notification has been made, defining such type of employees who are asked to work below the ground in open cast mines, the same is not to be found to have any bar and/or impediment under law. He submits that the arguments advanced on behalf of the petitioners are fallacious as the Notification in question has been made in terms of the powers exercised under the Minimum Wages Act read with the Mines Act. So nothing has been done beyond the statutory provisions and the acts done and/or caused to have been done being not without following the statutory guidelines, interference of this Court is not called for.
25. This Court permitted the North Orissa Workers' Union to intervene in the case in terms of the order dated November 12, 1998, as it was found to be a necessary and proper party in such an adjudication regarding minimum wages pertaining to interest of the workers. The learned counsel for the Workers' Union has supported the contention of the learned Senior Standing Counsel, Union of India. He has submitted that by a previous Notification objections and suggestions were invited as to revision of minimum wages. The employers also participated and taking note of the objections and suggestions a beneficial order has been made by the impugned Notification and on a proper scrutiny this Court may not interfere with it and the Notification in question is not otherwise bad in law.
26. Patiently we have heard the submissions made on behalf of the respective parties as indicated above. Diligently we have considered the pleadings in the writ petition, counter affidavit and rejoinder. We have taken note of the points of law raised by the parties as would appear from the arguments made by the learned counsel. We have tried to understand the point involved in the case whether the Explanation portion in the impugned Notification Annexure-1 is valid or otherwise. We have precisely noted that the entire Notification is not challenged. The background is also not disputed. It is submitted on behalf of the petitioners that similar objections as taken in the writ application were also taken before the Advisory Board. As we have appreciated, the petitioner has taken exception only to Para-7 of the Explanation to the impugned Notification as at page 38 of the writ petition as to the nature of working, namely, the persons working or employed in or in connection with a mine and emphasis is made on the words "below the ground". Clause-iii of Para-7 of the impugned Notification is to the effect that a person working or employed in or in connection with a mine is said to be working or employed "below the ground" if he is working or employed in an open cast working in which the depth of the excavation measured under its highest to its lowest point exceeds six metres.
27. We have examined this point. We have found that there is a clear definition of "mine" under the Mines Act, 1952. The definition we have already quoted earlier to which attention of the Court was drawn by Mr. Nanda. The definition of "mine" is having its own perspective. In the definition of "open cast workings" in a mine, it is clearly stipulated that it means a quarry, that is to say, an excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, not being a shaft or an excavation which extends below superjacent ground. There is no difficulty in understanding the definition of "open cast working" which means an excavation not being a shaft or an excavation which extends below superjacent ground. In the said definition section, Sub-section (2) makes the position clear. One is given to understand what is meant by the words "below ground" and what is meant by "above ground". "Below ground" relates to a person if he is working or employed in a shaft which has been or is in the course of being sunk. This certainly does not relate to open cast mine. Secondly, this relates to a person working in any excavation which extends below superjacent ground which is applicable to open cast mine. These two aspects have been clearly emphasised in open cast working "Above ground" is referred to a person working in an opencast working or in any other manner not specified in Clause (a) which relates to "below ground". Clause (a) relates two aspects, one is shaft and the other is excavation. These relate to opencast. Clause (b) of Sub-section (2) deals with working "above ground". Going through the definitions of "mine" and "open cast working" together with the Metalliferous Mines Regulations, 1961, which in Chapter XI provides the nature of mine working. Regulation 106 is clear about open cast working and Regulation 107 indicates underground working. If open cast working and underground working are quite different in nature, it is not appreciated by this Court that by Para-7 of the Explanation to the Notification attempt has been made to declare a person working or employed in or in connection with a mine to be -working below ground, both in underground mine and aboveground mine, i.e., open cast working.
28. We find sufficient force in the submission of Mr. Nanda. When the Legislature has taken abundant precaution to understand the working in mines, so far as underground mines and aboveground mines are concerned, which are quite different from each other, it is not appreciated by this Court how the administrative authority while issuing the impugned Notification overlooking the absence of source of power of its own would indicate the meaning of "working below ground" being applicable to both the classes of employees, i.e., the employees working in underground mine and the employees working in open cast mine. The employees working in the above two different classes of mine would be entitled to their respective minimum wages. But there cannot be any notification that the two classes of employees would be merged together and a separate class would be created. Therefore, we find substance in the submission of Mr. Nanda that a case is made out where this Court should interfere in the matter.
29. Considering all these aspects, we are of the view that the impugned Notification Annexure-1 only with regard to Clause-iii of Para-7 to the Explanation creating classification of the workers in open cast mine in which the depth of the excavation measured under its highest to its lowest point exceeds six metres is unknown to any statutory guidelines and such artificial classification is not permissible in law. Therefore, the administrative authority has exceeded its limit which can be checked and the Court should interfere.
30. We dispose of the writ application holding that the impugned Notification, Annexure-1, remains in force but that clause-iii of Para-7 of the Explanation thereto is non est in the eye of law and no effect should be given to the same. We however observe that this judgment will not prevent the authority concerned to issue other Notification granting minimum wages to the concerned employees in any other form consistent with the power under the statute. We make no order as to costs.
D.M. Patnaik, J.
I agree.