Karnataka High Court
Karnataka Rajya Sarakari Grameena ... vs State Of Karnataka on 21 April, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
®
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.22420 OF 2017 (L-MW)
BETWEEN:
KARNATAKA RAJYA SARAKARI GRAMEENA
GRANTHALAYAGALA NOWKARARA SANGHA (REGD),
HEAD OFFICE, SHIMOGA,
REPRESENTED BY ITS PRESIDENT,
SRI. K.V.SATHYANARAYANA,
AGED ABOUT 52 YEARS,
RESIDENT OF KODANAKATTE VILLAGE,
HOSABALE POST, SORABA TALUK,
SHIMOGA DISTRICT-577 043.
...PETITIONER
(BY SRI S.R.HEGDE HUDLAMANE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY,
PRIMARY AND SECONDARY EDUCATION DEPARTMENT,
M.S. BUILDING,
BANGALORE-560 001.
2. PUBLIC LIBRARY DEPARTMENT
REPRESENTED BY ITS DIRECTOR,
VISVESWARAIAH TOWER,
BANGALORE-560 001.
3. DEPUTY DIRECTOR
DISTRICT CENTRAL GRANTHALAYA,
K.T. SHAMAIAH GOWDA ROAD,
SHIMOGA-577 221.
4. ADDITIONAL SECRETARY TO LABOUR DEPARTMENT
VIKASA SOUDHA, DR. AMBEDKAR VEEDHI
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI DHYAN CHINNAPPA, ADDL. AG A/W
SRI G.V.SHASHIKUMAR, AGA FOR R1 TO R4)
Retyped and Replaced vide Court order dated: 21.06.2022
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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
GOVERNMENT NOTIFICATION, GOVERNMENT ORDER DTD
22.4.2017 PASSED BY THE R-1 VIDE ANNEXURE-K AND ETC.
THIS W.P. COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner - Karnataka Rajya Grameena Granthalayagala Noukarara Sangha is said to be a registered Society, comprising of employees and workers of the Grama Panchayaths in the State of Karnataka. This petition is filed in respect of library supervisors working in the Grama Panchayaths.
2. Briefly stated, the facts giving rise to the present petition as contended by the petitioner are as follows:
2.1 The petitioner contends that the library supervisors working in the Grama Panchayath comprising of more than 6,000 persons were appointed for the purpose of supervision of libraries established at various Grama Panchayaths. At the time of their appointment, the honorarium of Rs.300/- per month was fixed, which was 3 subsequently increased from time to time and in the year 2012, they were being paid Rs.2,500/- per month.
2.2 It is contended that the library supervisors approached this Court in W.P.No.17744/2012 and connected matters seeking various reliefs including directions to enhance the honorarium and bring the same on par with the wages paid under the Minimum Wages Act, 1948 (for short "the said Act of 1948") and for other reliefs.
By final order dated 17.08.2012, the learned Single Judge of this Court disposed of the said petition directing the writ petitioners to file a consolidated appropriate representation reiterating all the details including their qualification, number of years of service, nature of duties discharged by them and the daily duration for which they are engaged. It was further directed that if such a representation was given, the Government shall consider the same for continuity of the petitioners in the same position and for payment of reasonable honorarium/wages with due regard to the cost of living and other circumstances within a period of three months from the date of receipt of the said representation of the petitioners.
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2.3 Pursuant to the aforesaid order passed by this Court, the said petitioners submitted representation to the respondents. In pursuance thereof, the State Government passed an order dated 15.05.2013 directing the honorarium payable to library supervisors to be increased from Rs.2,500/- per month to Rs.5,500/- per month. Since the said order was neither given effect to nor implemented and enhanced honorarium was not paid to the petitioners, the representations were given in this regard and thereafter on 27.05.2015, the Director of Public Library Department addressed a communication to the Chief Secretary, Primary and Higher Education Department, requesting to take necessary steps to pay the enhanced honorarium to the library supervisors.
2.4 Aggrieved by the inaction on the part of the respondents in failing to comply with the directions issued by this Court as well as the aforesaid Government Order dated 15.05.2013, petitioners have preferred W.P.No.45576/2015 seeking suitable directions. This petition is pending adjudication before this Court. 5
2.5 In the meanwhile, by Notification dated 22.05.2015 (for short "the preliminary notification") issued under Section 3(1)(b) and 5(1)(b) of the said Act of 1948 published in the official gazette on 30.07.2017, the State Government notified and fixed minimum wages in respect of the employees working in urban local bodies and town and rural panchayath bodies in the State of Karnataka including the librarians, chemists and supervisors (sanitary) working in the Grama Panchayaths.
2.6 The library supervisors as well as the petitioner- Sangha submitted their objections to the said preliminary notification dated 22.05.2015. So also, the State Government appointed a Committee/Board for looking into the matter for the purpose of fixing the minimum wages for said employees as provided under Section 5(1)(a) of the said Act of 1948.
2.7 Subsequently, after considering the objections, suggestions, proposals etc., of the petitioners and other similarly situated employees including library supervisors of the Grama Panchayaths and also after obtaining the advice and recommendation from the Committee/Board, the State 6 Government issued a notification dated 05.08.2016 (for short "the final notification") under Section 5(2) of the said Act of 1948. As per the said final notification, which was published in the Official Gazette on 06.08.2016, both librarians as well as library supervisors were entitled to receive minimum wages under the said Act of 1948.
2.8 The aforesaid final notification dated 05.08.2016 was neither implemented nor given effect to by the respondents despite representations submitted by the petitioner-Sangha and other library supervisors. Instead, the State Government issued an order dated 29.07.2016 proposing to reduce the working hours of the Library Supervisors to only four hours per working day i.e., from 9.00 a.m. to 11.00 a.m. and 4.00 p.m. to 6.00 p.m. However, the said order dated 29.07.2016 was suspended and kept in abeyance as per the Circular dated 08.08.2016, which was communicated to the Chief Secretary vide Letter dated 09.08.2016 and consequently, the said order dated 29.07.2016 reducing the working hours to only four hours per working day was neither implemented nor given effect to by the State Government.
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2.9 As stated supra, the final notification fixing the minimum wages payable to library supervisors working in the Grama Panchayaths was neither implemented nor given effect to by the State Government. Under these circumstances, petitioner-Sangha approached this Court in W.P.No.4355/2017 on 30.01.2017 seeking appropriate directions to the respondents to implement the said final notification immediately and without any further delay, since the same was resulting in great financial hardship and prejudice to the library supervisors. During the pendency of the said petition, the State Government passed an order dated 22.04.2017 directing the honorarium payable to library supervisors and Ayas of Grama Panchayaths to be enhanced and increased with effect from 01.05.2017. In the said order, in addition to increasing and enhancing the honorarium, the State Government reiterated the aforesaid order dated 29.07.2016 fixing the working hours at four hours per day and by canceling the aforesaid circular dated 08.08.2016.
2.10 Aggrieved by the aforesaid order dated 22.04.2017, the petitioner-Sangha preferred 8 W.P.No.22420/2017 on 23.05.2017 seeking quashing of the said order dated 22.04.2017 and for appropriate direction and other reliefs. During the pendency of the said W.P.No.22420/2017, the State Government issued one more notification dated 04.09.2017 under Section 26(2) of the said Act of 1948 purporting to withdraw the earlier final notification dated 05.08.2016. Accordingly, the petitioner- Sangha got the petition amended and has challenged the said order dated 04.09.2017 and put forth necessary pleadings in this regard. The legality, validity and correctness of the aforesaid order dated 22.04.2017 as well as the aforesaid notification dated 04.09.2017 have been challenged by the petitioner-Sangha in W.P.No.22420/2017.
3. The respondents have filed their Statement of Objections opposing the petition inter alia contending that the library supervisors are not regular employees and are not government servants and since they are appointed only on honorarium basis, the various claims and contentions put forth in the present petition are liable to be rejected. It 9 is contended that even in the earlier round of litigation in W.P.No.17744/2012 filed by the library supervisors, the various claims and contentions put forth by them as regards their right of regularisation and payment of minimum wages has been rejected by this Court and on this score alone, petitioner is not entitled to any relief in the present petition. The respondents have contended that if the notification dated 05.08.2016 is given effect to and implemented, there will be a huge financial loss and burden to the respondents. It is pointed out that library supervisors were not included in the preliminary notification dated 22.05.2015 and as such, the question of including them in the final notification dated 05.08.2016 does not arise. It is submitted that library supervisors are not covered under the provisions or the schedule to the said Act of 1948, which is inapplicable to them. Accordingly, though library supervisors were included in the final notification dated 05.08.2016, after realizing its mistake and the fact that the said notification was contrary to the provisions of the said Act of 1948, the respondents have withdrawn the same by 10 issuing the impugned notification dated 04.09.2017, which does not warrant interference in the present petition.
3.1 The respondents have contended that the petitioners were neither appointed on a regular basis nor any specific permanent employment was assured to them and having regard to the fact that Grama Panchayath Libraries serve a small population in rural areas and are poorly financed with meager collection/stock of books and there was no requirement or need to keep the libraries open for more than four hours and the same was accordingly reduced by issuing the impugned order dated 22.04.2017, which also does not warrant interference in the present petition. Under these circumstances, the respondents have reiterated their defence and have sought for dismissal of the petition by denying the various contentions and claims put forth in the petition.
4. Heard Sri. S.R.Hegde Hudlamane, learned counsel for the petitioner and Sri. Dhyan Chinnappa, learned Additional Advocate General along with Sri. G.V. 11 Shashikumar, Additional Government Advocate on behalf of the respondents and perused the material on record.
5. In addition to reiterating the various contentions urged in the petitions and referring to the material on record, learned counsel for the petitioner submits that the impugned order dated 22.04.2017 and the impugned notification dated 04.09.2017 are illegal, arbitrary and an unreasoned and non-speaking order and notification without following the prescribed procedure and providing an opportunity to the petitioners being opposed to the principles of natural justice and the same having resulted in depriving the library supervisors of Grama Panchayaths of their right to claim minimum wages under the said Act of 1948 deserves to be quashed. It is contended that in the light of the well settled principle of law that rights of parties get crystallized as on the date of institution of the lis, the impugned order dated 22.04.2017 passed after institution of W.P.No.4355/2017 and the impugned notification dated 04.09.2017 issued after institution of the said petition as well as the present petition 12 W.P.No.22420/2017 are vitiated since they are post-litem documents which have come into existence when this Court was in the seisin of the lis between the parties are illegal and vitiated on this ground also. It is contended that the impugned order dated 22.04.2017 issued by the respondents unilaterally and arbitrarily with malafide intentions and ulterior motives by reducing the working hours is impermissible in law in view of the final notification dated 05.08.2016 fixing minimum wages in respect of library supervisors and consequently, the impugned order is liable to be quashed on this ground also.
5.1 It is contended that even as per the Karnataka Grama Panchayath Libraries (Administrative and Technical) Regulations, 2006, librarians and library supervisors stand on the same footing and consequently, both of them would be entitled to minimum wages under the said Act of 1948. It is further contended that before issuance of the impugned notification dated 04.09.2017, it was incumbent upon the respondents to follow the mandatory procedure prescribed under Sections 3, 4 and 5 of the said Act of 1948 and the impugned notification which 13 has been issued without doing so is illegal and deserves to be quashed on this ground also. It is also contended that having issued the final notification dated 05.08.2016 fixing the minimum wages in respect of library supervisors also, the impugned notification dated 04.09.2017 purporting to withdraw the final notification is barred by the principles of legitimate expectation and promissory estoppel.
5.2 Lastly, it is contended that Section 26 (2) of the said Act of 1948 which has been invoked by the respondents for the purpose of issuing the impugned notification has no application to the facts of the instant case and the same could not have been invoked by the respondents. So also, neither Section 10 of the said Act of 1948 which only permits correction of clerical or arithmetical errors nor Section 21 of the General Clauses Act can be relied upon by the respondents in support of their defence, particularly when the mandatory procedure prescribed under Sections 3, 4 and 5 of the said Act of 1948 has not been followed before issuance of the final notification which has been issued in violation of the 14 principles of natural justice. It is therefore contended that the impugned notification deserves to be quashed.
5.3 In support of his contentions, learned counsel for the petitioner relies upon the following decisions:
a) Kamla Prasad Khetan and Anr. V. Union of India
- AIR 1957 SC 676;
b) Chandra Bhavan Boarding and Lodging, Bengaluru v. State of Mysuru - AIR 1970 SC 2042;
c) State of Arunachal Pradesh v. Nizon Law House Association - AIR 2008 SCW 3211;
d) Tamil Nadu Electricity Board and Anr. v. Status Spinning Ltd., - AIR 2008 SCW 4694;
e) NAL Layout Residence Association Ltd. V. Bengaluru Development Authority and Ors., - 2018 (2) KCCR 1801 (SC);
f) Private Hospital and Nursing Homes Associations Vs. Secretary, Labour Department and others - (2020) SCC Online KAR 443.
6. Per contra, learned Additional Advocate General, in addition to reiterating the various contentions urged in the Statement of Objections and referring to the material on record submits that the notification dated 05.08.2016 was erroneous and contrary to the provisions of the said Act of 1948 and as such, the same was withdrawn by issuing the 15 notification dated 04.09.2017. It is contended that library supervisors were not the regular employees of the Grama Panchayaths and they were appointed only on honorarium basis and their service cannot be termed or treated as a scheduled employment under the Schedule to the said Act of 1948. It is pointed out that no notification has been issued under Section 27 of the said Act of 1948 including library supervisors to the Schedule to the Act and in the absence of the said persons working in a scheduled employment under the said Act of 1948, the question of fixing their minimum wages under Section 5 was impermissible and did not arise and consequently, the said error which had crept into the final notification dated 05.08.2016 has been correctly withdrawn by issuing the impugned notification dated 04.09.2017, which is perfectly legal and proper. So also, the impugned order dated 22.04.2017 does not suffer from any illegality or infirmity warranting interference by this Court in the present petition. It was therefore contended that there is no merit in the petition and that the same is liable to be dismissed. In support of his contentions, learned Additional Advocate 16 General relied upon the decision of the Apex Court in the case of State of Uttar Pradesh Vs. Sudhir Kumar Singh - AIR 2020 SC 5215
7. I have given my anxious consideration to the rival submissions and perused the material on record.
8. The following points arise for consideration in the present petition:
"(i) Whether the impugned order dated 22.04.2017 issued by the respondents is just and proper?
(ii) Whether the impugned notification dated 04.09.2017 issued by the respondents is just and proper?"
Re-Point No.(i):
9. The material on record discloses that as stated supra, the petitioner and other similarly situated persons were appointed as library supervisors for a duration of 6½ hours per working day. The said library supervisors have been working and performing their duties from the year 1988-89 onwards for the aforesaid duration of 6½ hours per working day. This duration continued up to 29.07.2016 17 when for the first time, the State Government reduced the working hours from 6½ hours to 4 hours per working day i.e., from 9.00 a.m. to 11.00 a.m. and from 4.00 p.m. to 6.00 p.m. 9.1 Pursuant to the said order dated 29.07.2016, the State Government issued a Circular dated 08.08.2016. However, on the same day, another order dated 08.08.2016 was passed suspending and keeping in abeyance the reduction/decrease in the working hours and consequently, the earlier order reducing/decreasing the working hours to only four hours per day remained suspended and kept in abeyance and the working hours continued to remain as 6½ hours per working day as it stood earlier.
9.2 In this context, it is relevant to state that on 22.05.2015, a preliminary notification was issued under Section 5(1)(b) of the said Act of 1948 fixing the minimum wages for employees of Grama Panchayaths including librarians; however, library supervisors were not included in the said preliminary notification.
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9.3 Subsequently, on 05.08.2016, after considering the objections, suggestions, proposals etc., submitted by the library supervisors and other employees as well as upon obtaining the recommendation/report of the committee constituted under Section 5(1)(a) of the said Act of 1948, the State Government issued a final notification dated 05.08.2016 fixing the minimum wages for employees of Grama Panchayaths including library supervisors also.
9.4 The aforesaid facts and circumstances clearly indicate that prior to issuance of the impugned order dated 22.04.2017, the State Government had already issued the final notification dated 05.08.2016 fixing minimum wages under the said Act of 1948 in respect of library supervisors also. As on 22.04.2017, the final notification dated 05.08.2016 fixing minimum wages in respect of library supervisors was in force and was applicable to them. It cannot be gainsaid that for the purpose of fixing minimum wages under the said Act of 1948, the duration of working hours per day for library supervisors cannot be reduced to only 4 hours per working day. In the face of the final notification dated 05.08.2016, which was applicable to 19 library supervisors, the impugned order dated 22.04.2017 is illegal, arbitrary and vitiated not only being contrary and violative of the said notification dated 05.08.2016 but also to the provisions of the said Act of 1948. Under these circumstances, I am of the considered opinion that in the light of the final notification dated 05.08.2016 being valid and subsisting and applicable to library supervisors, the question of duration of their working hours being reduced to only 4 hours per working day does not arise and the respondents did not have jurisdiction or authority of law to pass the impugned order dated 22.04.2017, which is liable to be quashed on this ground.
9.5 It is trite law that in so far as substantive rights of parties are concerned, the same would get crystallized as on the date of institution of the lis between the parties. In this context, it is an undisputed fact that since the State Government did not implement or give effect to the final notification dated 05.08.2016 and the petitioner-Sangha had preferred W.P.No.4355/2017 on 30.01.2017 seeking directions in this regard. In the case of Shankarlal Nadani Vs. Sohanlal Jain - (2022) SCC Online SC 442, the Apex 20 Court has reiterated the aforesaid principle and held as under:
"20. Out of the various judgments referred to by the learned counsel for the appellants, the judgment relied upon in Rajender Bansal v. Bhuru (Dead) through Legal Representatives [(2017) 4 SCC 202] was dealing with Haryana Rent Act. The landlords were the appellants who had filed suit for eviction of the respondents, their tenants. The suit was filed in the civil court. The premises in question were outside the ambit of rent legislation on the day the suit was filed. However, during the pendency of the suit and before it could be finally decided, the area in question was brought within the sweep of rent legislations by requisite notifications. This Court concluded the issue against the tenants wherein it was held as under:
"18. From the aforesaid discussion in Atma Ram Mittal [Atma Ram Mittal v. Ishwar Singh Punia, (1988) 4 SCC 284], Vineet Kumar [Vineet Kumar v. Mangal Sain Wadhera, (1984) 3 SCC 352], Ram Saroop Rai [Ram Saroop Rai v. Lilavati, (1980) 3 SCC 452], Ramesh Chandra [Ramesh Chandra v. III Addl.
District Judge, (1992) 1 SCC 751] and Shri Kishan [Shri Kishan v. Manoj Kumar, (1998) 2 SCC 710] cases, the apparent principles which 21 can be culled out, forming the ratio decidendi of those cases, are as under:
18.1. Rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the law applicable on the date of filing of the suit will continue to apply until the suit is disposed of or adjudicated.
18.2. If during the pendency of the suit, the Rent Act becomes applicable to the premises in question, that would be of no consequence and it would not take away the jurisdiction of the civil court to dispose of a suit validly instituted.
18.3. In order to oust the jurisdiction of the civil court, there must be a specific provision in the Act taking away the jurisdiction of the civil court in respect of those cases also which were validly instituted before the date when protection of the Rent Act became available in respect of the said area/premises/tenancy.
18.4. In case the aforesaid position is not accepted and the protection of the Rent Act is extended even in respect of suit validly instituted prior in point of time when there was no such protection under the Act, it will have the consequence of making the decree, that is obtained prior to the Rent Act becoming 22 applicable to the said area/premises, unexecutable after the application of these Rent Acts in respect of such premises. This would not be in consonance with the legislative intent.
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23. When we apply the principles laid down above to the instant case, we find that this case would fall in the category of Atma Ram Mittal [Atma Ram Mittal v. Ishwar Singh Punia, (1988) 4 SCC 284] and Mansoor Khan [Mansoor Khan v. Motiram Harebhan Kharat, (2002) 5 SCC 462], etc. as under the scheme of the Rent Act, no protection to the ex- tenants is provided and no provision is made excluding the jurisdiction of the civil courts in respect of pending cases, expressly or impliedly. On the other hand, in the facts of the present case, it needs to be highlighted again that the respondents had not only sublet the premises but had not paid rent for a period of 14 years. His defence was struck off by the civil court and ultimately the suit was even decreed. It is only during the pendency of the appeal that the notification was issued covering the area where the suit premises are situate under the Rent Act. It will be travesty of justice if the appellant landlords are deprived of the fruits of the said decree.
24. We are, thus, unable to accept the view taken by the High Court. Accordingly, this appeal is allowed and the judgment of the first appellate court as well 23 as the High Court is set aside. As the only contention which was taken by the respondents before the first appellate court, challenging the decree of the trial court, was that the civil court ceased to have jurisdiction, the said first appeal preferred by the respondents stands dismissed thereby restoring the decree passed by the trial court. There shall, however, be no order as to costs."
9.6 In the instant case, the right to claim benefit under the notification dated 05.08.2016 had accrued and fructified in favour of the library supervisors after expiry of a period of three months from 05.08.2016 as contemplated under Section 5(2) of the said Act of 1948 viz., from 05.11.2016 onwards; the said right having ripened, fructified and stood crystallized in favour of the library supervisors from 05.11.2016 onwards was available in their favour as on 30.01.2017 when W.P.No.4355/2017 was filed by them. Under these circumstances, in the light of the vested right having been created and crystallized in favour of the library supervisors as on the date of the filing of W.P.No.4355/2017, the said right cannot be sought to be nullified or diluted by passing the impugned order dated 24 22.04.2017 that too after the said writ petition was filed and during its pendency. Viewed from this angle also, the impugned order dated 22.04.2017 deserves to be quashed.
9.7 The undisputed material on record also discloses that all library supervisors have been working for a duration of 6½ hours right from the inception and from the date of their appointment for more than 25 years continuously and without any interruption. While it is true that the services of the library supervisors had not been regularised as on 22.04.2017, the aforesaid long and continuous service of the library supervisors with the duration of their working hours being 6½ hours per working day clearly militates against the impugned order dated 22.04.2017, which attempts to reduce the working hours to only 4 hours per working day. In this context, it is relevant to state that though the State Government attempted to reduce the working hours to 4 hours per day on an earlier occasion, i.e., 08.08.2016, the undisputed fact that the said circular was immediately kept in abeyance is clearly a pointer to the fact that the impugned order purporting to 25 reduce the working hours is clearly illegal and arbitrary and vitiated on this ground also.
9.8 A perusal of the impugned order dated 22.04.2017 will also indicate that the same is a non- speaking and laconic order without any application of mind. Except stating that they are not regular/full time employees, no other valid or cogent reason is assigned in the said order to reduce the working hours to only 4 hours per working day. This undisputed fact in the backdrop of the library supervisors having worked without being regularised for more than 25 years, is yet another circumstance which vitiates the impugned order which is liable to be quashed on this ground also.
9.9 A perusal of the impugned order dated 22.04.2017 will indicate that the working hours of library supervisors are sought to be reduced to only 4 hours per day without assigning cogent, valid or proper reasons as required in law and without providing any opportunity of being heard to the affected and aggrieved parties including the library supervisors also. Viewed from this angle also, the impugned order being an unreasoned and non- 26 speaking order, which has been issued without assigning proper or valid reasons is violative of principles of natural justice and deserves to be quashed.
9.10 In view of the aforesaid facts and circumstances, I am of the view that the impugned order dated 22.04.2017 is illegal, arbitrary, discriminatory and violative of principles of natural justice and the same deserves to be quashed.
Point No.1 is accordingly answered in favour of the petitioner.
Re-Point No.(ii)
10. The next question that arises for consideration is with regard to the legality, validity and correctness of the impugned notification dated 04.09.2017, under which the respondents seek to withdraw the earlier final notification dated 05.08.2016, by which minimum wages have been fixed in respect of library supervisors also. In my considered opinion, the impugned notification dated 04.09.2017 is illegal, arbitrary and opposed to principles of natural justice for the following reasons: 27
(i) As stated supra, the well settled principle with regard to crystallization of rights of the parties at the time of the institution of the lis as held hereinbefore in relation to the impugned order dated 22.04.2017 applies to the impugned notification also as held by the Apex Court in Shankarlal Nadani's case supra. Undisputedly, the petitioner had already filed W.P.No.4355/2017 on 30.01.2017 seeking enforcement and implementation of the Final Notification dated 05.08.2016; so also, the present petition seeking to enforce their rights had also been preferred by the petitioner on 23.05.2017. It is therefore clear that the rights of the library supervisors to seek enforcement and implementation of the final notification dated 05.08.2016 had already stood vested and accrued in their favour on 30.01.2017 and 23.05.2017, on which dates the petitions were filed before this Court. Consequently, the impugned notification dated 04.09.2017 issued during the pendency of the petitions when this Court had seisin of the lis between the parties and subsequent to the rights of the library supervisors having been crystallized and fructified is clearly a post-litem notification, which cannot 28 affect or nullify the rights crystallized as on the date of filing the writ petitions and as such, the impugned notification deserves to be quashed.
(ii) A perusal of the final notification dated 05.08.2016 will clearly indicate that minimum wages have been fixed under Section 5(2) of the said Act of 1948 in respect of library supervisors also. A plain reading of Section 5(2) of the said Act of 1948 indicates that unless the final notification indicates the date on which the same would come into force, it shall come into force on the expiry of three months from the date of its issue. In the instant case, the final notification was issued on 05.08.2016 without specifying or providing the date on which it shall come into force; consequently, by virtue of the provisions contained in Section 5(2) of the said Act of 1948, the final notification dated 05.08.2016 came into force on 05.11.2016 in terms of the said provision. As a corollary, it follows therefrom that immediately upon the final notification coming into force on 05.11.2016, a valuable legal right to claim minimum wages has been created in favour of library supervisors by operation of law; the said valuable right was 29 sought to be enforced, implemented and given effect to on behalf of the library supervisors in W.P.No.4355/2017 and the present petition W.P.No.22420/2017, which were filed prior to the impugned notification dated 04.09.2017. Under these circumstances, in the light of the vested right that had been created and stood accrued in favour of the library supervisors from 05.11.2016 onwards as stated supra, the impugned notification which seeks to nullify and take away the vested/accrued rights is clearly illegal and vitiated and deserves to be quashed.
(iii) A perusal of the impugned notification will indicate that the same purports to have been issued under Section 26(2) of the said Act of 1948; in this context, it is necessary to extract the said provision which reads as under:
"Section 26 - Exemptions and exceptions-
(1) xxxx (2) The appropriate Government may, if for special reasons it thinks so fit, by notification in the Official Gazette, direct that Subject to such conditions and] for such period as it may specify the provisions of this Act or any of them shall not apply to all or any class of employees employed in any 30 scheduled employment or to any locality where there is carried on a scheduled employment.
(iv) The aforesaid provision empowers the State Government to issue a gazette notification specifying the applicability of the provisions of the said Act of 1948 or any part thereof to all or any class of employees employed in any scheduled employment or to any locality where there is carried on a scheduled employment. Section 26(2) clearly does not empower or enable the State Government to withdraw/revoke/cancel a final notification issued under Section 5(2) of the said Act of 1948. It is therefore clear that Section 26(2) is wholly inapplicable to the impugned notification dated 04.09.2017 and the said provision could not have been invoked or applied by the respondents to issue the impugned notification which is vitiated on this ground also.
(v) It is sought to be contended by the respondents that Section 10 of the said Act of 1948 permits them to issue the impugned notification and mere citing/quoting a wrong provision will not vitiate the impugned notification which is to be treated and construed as having been issued 31 under Section 10 of the said Act of 1948. Before adverting to the said contention, it is necessary to extract the said provision which reads as under:
"Section 10 - Correction of errors.
(1) The appropriate Government may, at any time, by notification in the Official Gazette, correct clerical or arithmetical mistakes in any order fixing or revising minimum rates of wages under this Act, or errors arising therein from any accidental slip or omission.
(2) Every such notification shall, as soon as may be after it is issued, be placed before the Advisory Board for information."
(vi) A plain reading of Section 10 referred to supra will clearly indicate that the same merely enables and empowers the respondents to correct only clerical or arithmetical errors arising from any accidental slip or omission; the provision does not enable or empower the State Government to withdraw the final notification dated 05.08.2016, particularly when the impugned notification does not refer to any clerical or arithmetical error arising from any accidental slip or omission, as a result of which the final notification is sought to be withdrawn. The scope 32 and ambit of Section 10 came up for consideration before the Apex Court in the case of Gomanthak Mazdur Sangh Vs. State of Goa and another - (2022) SCC Online SC 587, wherein it was held as under:
"16. Vide Notification dated 23/24.05.2016, the State Government determined the minimum wages, which included the basic rates of wages and the special allowance. The notification specifically stated that the said notification has been issued in exercise of powers conferred by clause (b) of sub-section (1) of section 3 read with clause (i) of subsection (1) of Section 4 and sub-section (2) of Section 5 of the Act, 1948. As can be seen from the contents of the said notification, the said notification was issued in consultation with the Minimum Wage Advisory Board and thereafter the minimum wages were revised. Thus, the minimum wages were revised under clause (i) of sub-section (1) of Section 4 after following the due procedure as required under Section 5. Sections 4 and 5, which are relevant for our purpose are extracted as under:--
"4. Minimum rate of wages.--(1) Any minimum rate of wages fixed or revised by the appropriate Government in respect of scheduled employments under Section 3 may consist of--33
(i) a basic rate of wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate Government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the "cost of living allowance");
or
(ii) a basic rate of wages with or without the cost of living allowance, and the cash value of the concessions in respect of supplies of essential commodities at concession rates, where so authorised; or
(iii) an all-inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions, if any.
(2) The cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates shall be computed by the competent authority at such intervals and in accordance with such directions as may be specified or given by the appropriate Government.
5. Procedure for fixing and revising minimum wages.--(1) In fixing minimum rates of wages 34 in respect of any scheduled employment for the first time under this Act or in revising minimum rates of wages so fixed, the appropriate Government shall either--
(a) appoint as many committees and sub-
committees as it considers necessary to hold enquiries and advise it in respect of such fixation or revision, as the case may be, or
(b) by notification in the Official Gazette, publish its proposals for the information of persons likely to be affected thereby and specify a date, not less than two months from the date of the notification, on which the proposals will be taken into consideration. (2) After considering the advice of the committee or committees appointed under clause (a) of sub-section (1) or, as the case may be, all representations received by it before the date specified in the notification under clause (b) of that sub-section, the appropriate Government shall, by notification in the Official Gazette, fix, or, as the case may be, revise the minimum rates of wages in respect of each scheduled employment, and unless such notification otherwise provides, it shall come into force on the expiry of three months from the date of its issue:
35
Provided that where the appropriate Government proposes to revise the minimum rates of wages by the mode specified in clause (b) of sub-section (1), the appropriate Government shall consult the Advisory Board also."
17. Therefore, once the minimum wages were revised and determined, which included the basic rates of wages and the special allowance as per Section 4(1)(i) of the Act, 1948, thereafter it cannot be said that there was any clerical and/or arithmetical mistake in mentioning clause (i). The minimum wages were revised and determined even after consultation with the Minimum Wage Advisory Board as required under Section 5 of the Act, 1948. Therefore, once there was no mistake, the same could not have been corrected in exercise of powers under Section 10 of the Act, 1948.
18. Even as per Section 10, only the clerical or arithmetical mistakes in any order fixing or revising minimum rates of wages can be corrected. Section 10 of the Act, 1948 reads as under:--
"10. Correction of errors.--(1) The appropriate Government may, at any time, by notification in the Official Gazette, correct clerical or arithmetical mistakes in any order fixing or revising minimum rates of wages 36 under this Act, or errors arising therein from any accidental slip or omission.
(2) Every such notification shall, as soon as may be after it is issued, be placed before the Advisory Board for information."
19. What can be said to be an arithmetical or clerical error has been dealt with and considered by this Court in the case of Master Construction Co. (P) Ltd. (supra). It is observed and held that an arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless or inadvertent mistake or omission unintentionally made.
20. In the present case, as observed hereinabove, a conscious decision was taken by the State Government after consultation with the Minimum Wage Advisory Board and thereafter the minimum wages were revised and determined in exercise of power under Section 4(1)(i). Therefore, it cannot be said that there was any arithmetical and/or clerical mistake, which could have been corrected in exercise of powers under Section 10 of the Act, 1948.
21. At this stage, it is required to be noted that in the Errata Notification dated 14.07.2016, as such 37 nothing has been mentioned as to under which provision of law, the said notification has been issued. Only from the submission on behalf of the State before the High Court, the State has come out with a case that there was a clerical mistake, which is corrected by the Errata Notification. Therefore, we presume that the Errata notification has been issued in exercise of powers under Section 10 of the Act, 1948. As observed hereinabove, as such, there was no clerical mistake at all and a conscious decision was taken while issuing the notification dated 23/24.05.2016 and therefore, the same could not have been corrected in exercise of powers under Section 10 of the Act, 1948."
(vii) As held by the Apex Court, Section 10 is restricted to correction of only clerical or arithmetical mistakes or errors arising from any accidental slip or omission and the same cannot be invoked to withdraw any notification issued under Section 5 of the said Act of 1948. In the instant case, it is an undisputed fact that the final notification dated 05.08.2016 has been issued under Section 5(2) of the said Act of 1948; it is also not in dispute that the impugned notification dated 04.09.2017 seeks to withdraw the final notification dated 05.08.2016 and does not purport to correct any clerical or arithmetical error or 38 mistake arising from any accidental slip or omission, as is clear from the reasons assigned in the impugned notification; consequently, in view of the law laid down by the Apex Court in Gomanthak's case supra, I am of the considered opinion that no reliance can be placed upon Section 10 of the said Act of 1948 by the respondents to validate the impugned notification.
(viii) Alternatively, it is sought to be contended that even assuming that there is no specific provision in the said Act of 1948 which permits or enables the State Government to withdraw the final notification dated 05.08.2016 issued under Section 5(2), the respondents were well within their powers to withdraw the final notification by issuing the impugned notification in view of Section 21 of the General Clauses Act. The power, jurisdiction and authority of law on the part of the respondents to withdraw any notification issued under Section 5 of the said Act of 1948 was also dealt with by the Apex Court in Gomanthak's case supra, wherein after considering the specific contention in this regard, the Apex Court held as under:
39
"24. Even by applying Section 21 of the General Clauses Act and assuming that the State was having power to amend, vary or rescind the notification, in that case also such power can be exercised in a like manner, namely after following the procedure, which was followed while issuing the original notification. Therefore, in the present case, assuming that the State was having the power to amend, vary or rescind the notification in exercise of powers under Section 21 of the General Clauses Act, in that case also, when the earlier notification dated 23/24.05.2016 was issued after following the due procedure as required under Sections 4 and 5 of the Act, 1948, the same procedure ought to have been followed even while varying and/or modifying the notification. Hence, the notification dated 23/24.05.2016 could not have been modified by such an Errata Notification which was issued in purported exercise of Section 10 of the Act, 1948.
25. Therefore, we are of the opinion that the Errata Notification dated 14.07.2016 was wholly without jurisdiction and contrary to the relevant provisions of the Minimum Wages Act, 1948, which ought to have been set aside by the High Court. The High Court has erred in dismissing the writ petition challenging the Errata Notification dated 14.07.2016 by accepting the case on behalf of the State that there was a clerical mistake, which is subsequently corrected by the Errata Notification.40
26. In view of the above and for the reasons stated above, present appeal succeeds. The impugned judgment and order passed by the High Court dismissing the writ petition is hereby quashed and set aside. The subsequent Errata Notification dated 14.07.2016 is hereby quashed and set aside and the earlier notification dated 23/24.05.2016 revising and determining the minimum wages, which included the basic rates of wages plus special allowance is hereby restored."
(ix) As held by the Apex Court, the power of the State Government to issue the impugned notification by tracing the source of power to Section 21 of the General Clauses Act is circumscribed, restricted and limited to do so only by following the due procedure/process prescribed under Sections 4 and 5 of the said Act of 1948. In the said judgment, it has been categorically held that any notification under Section 21 of the General Clauses Act seeking to withdraw a notification under Section 5 of the said Act of 1948 would necessarily have to follow the due procedure/process enjoined under Sections 4 and 5 of the said Act of 1948 and consequently, in the facts of the instant case, the impugned notification dated 04.09.2017 41 which has been unilaterally issued without following the prescribed procedure under Sections 4 and 5 of the said Act of 1948 is clearly illegal and vitiated on this ground also. Under these circumstances, I am of the considered opinion that so long as the procedure prescribed under Sections 4 and 5 of the said Act of 1948 had not been followed by the respondents prior to issuance of the impugned notification, the same is without jurisdiction and deserves to be quashed.
(x) The relevance and importance of following the procedure prescribed under Sections 4 and 5 of the said Act of 1948 before withdrawing any notification issued under Section 5 has been reiterated by the Apex Court in Gomanthak's case supra; it has been held that following the mandatory procedure is a sine qua non for withdrawing any notification issued under Section 5 of the said Act of 1948 and any withdrawal done without following the mandatory procedure suffers from the vice of procedural impropriety which would vitiate the impugned notification. It is well settled that judicial review of administrative action/act which suffers from procedural impropriety is 42 permissible by this Court in the exercise of its jurisdiction under Article 226 of the Constitution of India. Viewed from this angle also, the impugned notification which suffers from procedural irregularity is vitiated and deserves to be quashed.
(xi) The scope and ambit of Section 21 of the General Clauses Act qua Sections 3, 4 and 5 of the said Act of 1948 also came up for consideration before the Division Bench of this Court in the case of Private Hospital and Nursing Homes Associations Vs. Secretary, Labour Department and others - (2020) SCC Online KAR 443, wherein it was held as under:
45. The most relevant section for our consideration is Section 5 of the said Act of 194 8 which reads thus:
"5. Procedure for fixing and revising minimum wages. -- (1) In fixing minimum rates of wages in respect of any scheduled employment for the first time under this Act or in revising minimum rates of wages so fixed, the appropriate Government shall either-
(a) appoint as many committees and sub-
committees as it considers necessary to hold enquiries and advise it in respect of 43 such fixation or revision, as the case may be, or
(b) by notification in the Official Gazette, publish its proposals for the information of persons likely to be affected thereby and specify a date, not less than two months from the date of the notification, on which the proposals will be taken into consideration.
(2) After considering the advice of the committee or committees appointed under clause (a) of sub-section (1), or as the case may be, all representations received by it before the date specified in the notification under clause (b) of that sub-section, the appropriate Government shall, by notification in the Official Gazette, fix, or, as the case may be, revise the minimum rates of wages in respect of each scheduled employment, and unless such notification otherwise provides, it shall come into force on the expiry of three months from the date of its issue:
Provided that where the appropriate Government proposes to revise the minimum rates of wages by the mode specified in clause (b) of sub-section (1), the appropriate Government shall consult the Advisory Board also."
46. The word 'either' used in sub-Section (1) of Section 5 clearly indicates that there are two 44 options provided to the Appropriate Government under Clause (a) and (b). The Appropriate Government has a discretion either to take recourse to Clause (a) or Clause (b) of sub-
Section (1) of Section 5. Under Clause (a), the Appropriate Government has an option for appointing a Committee or sub-Committees to hold an enquiry and advise the Government in respect of fixation of minimum wages or its revision. The Appropriate Government has a choice of the aforesaid of two options. If the option under Clause (b) is opted for, the Appropriate Government has to publish its proposals of fixation of minimum wages for the information of the persons likely to be affected thereby. When Clause (b) is adopted, it is mandatory for the Appropriate Government to consult the Advisory Board. When recourse is taken to Clause (a) of sub-Section (1) of Section 5, still the Advisory Board has some role to play in view of Section 7 which provides that the said Board has the responsibility of coordinating the work of Committees and Sub-Committees appointed under Clause (a) of sub-Section(1) of Section 5 of the said Act of 1948.
53. In the case of Chandra Bhawan Boarding, (supra), the challenge was to Clauses (a) and (b) of sub-Section (1) of Section 5 of the said Act of 1948 on the ground that the same infringe the 45 fundamental rights guaranteed by Article-14 of the Constitution of India. It was urged that Section 5 confers unguided and uncontrolled discretion on the Government to follow one of the two procedures prescribed under Clause (a) and (b) of sub-Section (1) of Section 5 of the said Act of 1948 to enquire into the matter of fixing the minimum rates of wages. If recourse to Clause (a) is not taken, then it will amount to fixing the minimum wages arbitrarily. Further, it was contended that fixation of minimum wages is quasi judicial act and therefore, the principles of natural justice must be followed. In the said case, the power of the appropriate Government to fix the different minimum wages for different industries and its power to fix the different rates of minimum wages for different zones was also questioned. In paragraph-9, the Apex Court negatived the challenge on the ground that the decision taken by the Government under sub-Section (1) of Section 5 cannot be termed as either unguided or arbitrary. Paragraph-9 of the decision of the Apex Court read thus:
"9. We have earlier noticed the circumstances under which the Act came to be enacted. Its main object is to prevent sweated labour as well as exploitation of unorganised labour. It proceeds on the basis that it is the duty of the State to see that at least minimum wages are paid to the employees irrespective of the capacity of the industry or unit to pay the same. The mandate of Article 43 of the Constitution is that the State 46 should endeavour to secure by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. The fixing of minimum wages is just the first step in that direction. In course of time the State has to take many more steps to implement that mandate. As seen earlier that resolutions of the Geneva Convention of 1928, which had been accepted by this country called upon the covenanting States to fix minimum wages for the employees in employments where the labour is unorganised or where the wages paid are low. Minimum wages does not mean wage just sufficient for bare sustenance. At present the conception of a minimum wage is a wage which is somewhat intermediate to a wage which is just sufficient for bare sustenance and a fair wage. That concept includes not only the wage sufficient to meet the bare sustenance of an employee and his family, it also includes expenses necessary for his other primary needs such as medical expenses, expenses to meet some education for his children and in some cases transport charges etc. see Unnicheyi v. State of Kerala,. [(1962) 1 SCR 946] The concept of minimum wage is likely to undergo a change with the growth of our economy and with the change in the standard of living. It is not a static concept. Its concomitants must necessarily increase with the progress of the society. It is likely to differ from place to place and from industry to industry. That is clear from the provisions of the Act itself and is inherent in the very concept. That being the case it is absolutely impossible for the legislature to undertake the task of fixing minimum wages in respect of any industry much less in respect of an employment. That process must necessarily be left to the Government. Before minimum wages in any employment can be fixed it will be necessary to collect considerable data. That cannot be done by the legislature. It can be best done by the Government. The legislature has determined the legislative policy and formulated 47 the same as a binding rule of conduct. The legislative policy is enumerated with sufficient clearness. The Government is merely charged with the duty of implementing that policy. There is no basis for saying that the legislature had abdicated any of its legislative functions. The legislature has prescribed two different procedures for collecting the necessary data, one contained in Section 5(1) (a) and the other in Section 5(1) (b). In either case it is merely a procedure for gathering the necessary information. The Government is not bound by the advice given by the committee appointed under Section 5(1) (a). Discretion to select one of the two procedures prescribed for collecting the data is advisedly left to the Government. In the case of a particular employment, the Government may have sufficient data in its possession to enable it to formulate proposals under Section (5) (1) (b). Therefore it may not be necessary for it to constitute a committee to tender advice to it but in the case of another employment it may not be in possession of sufficient data. Therefore it might be necessary for it to constitute a committee to collect the data and tender its advice. If the Government is satisfied that it has enough material before it to enable it to proceed under Section 5(1) (b) it can very well do so. Which procedure should be adopted in any particular employment depends on the nature of the employment and the information the Government has in its possession about that employment. Hence the powers conferred on the Government cannot be considered as either unguided or arbitrary. In the instant case as seen earlier the question of fixing wages for the various categories of employees in residential hotels and eating houses was before the Government from 1960 and the Government had taken various steps in that regard.
It is reasonable to assume that by the time the Government published the proposals in pursuance of which the impugned notification was issued it had before it adequate material on the basis of which it could formulate its proposals. Before 48 publishing those proposals, the Government had consulted the advisory committee constituted under Section 7. Under those circumstances we are unable to accede to the contention that either the power conferred under Section 5 (1) is an arbitrary power or that the same had been arbitrarily exercised".
68. It must be noted here that by the said three withdrawal Notifications dated 30th December, 2017, the rates of minimum wages fixed there under were made effective from the date of publication of the said notifications. Thus, in the writ petition subject matter of Writ Appeal No. 1520/2019, the issue raised was regarding the existence of power vesting with the State Government to withdraw a final notification as well as a draft notification. The submission of the appellants is that a vested right was created in favour of the employees with effect from 30th December, 2017, as the employees became entitled to minimum wages fixed under the three final notifications with effect from 30th December, 2017 and said vested rights could not be taken away nearly three months thereafter by issuing the impugned notification on 22nd March, 2018.
69. The Learned Single Judge negatived the challenge to the impugned notification of withdrawal for the reasons contained in paragraph-25 of the impugned judgment. Firstly, the Learned Single Judge held that by exercising 49 power under Section-21 of the General Clauses Act, 1897 or Section-21 of the Mysore General Clauses Act, 1899, the notifications could not have been withdrawn, as the same created a vested right in the employees. However, the Learned Single Judge, by referring to the power of the State Government under Clause (b) of sub- Section (1) of Section-3 of the said Act of 1948 which empowers the Government to review the minimum wages fixed, held that as the impugned notification/order mentioned the reasons necessitated for such review, the withdrawal of the said notifications amounts to review and it was a step in aid of revising the minimum wages. The Learned Single Judge held that the power to fix the minimum wages is not a quasi judicial power and such exercise of fixing the minimum wages is a Legislative/Quasi Legislative function. Therefore, there was no question of giving an opportunity of being heard to the employees affected by such withdrawal.
71. Section-21 of the said Act has been judicially interpreted in several decisions of the Apex Court and those decisions were considered by a Division Bench of this Court, in the case of Land T Komatsu Ltd., (supra). After considering large number of the decisions of the Apex Court, in paragraph-38, the Division Bench summarized the law as under:
50
"38. From the aforesaid discussion it is clear that Section 21 of the General Clauses Act applies only when in an enactment there is no specific provision providing for what is provided in Section 21 of the Act. In order to find out whether such a provision exists, the scheme of the Act is to be scrutinized. If there is no indication of any such power expressly or by implication then Section 21 of the General Clauses Act has to be read into the said enactment. If an order is passed under a particular statute and if it is given effect to, acted upon consequential further steps are taken in accordance with law, and third party interests are created, then rescinding or revoking such an order, at that stage, would have serious consequences. Then in those circumstances it cannot be said that the power to issue notification includes the power to rescind or revoke. In the absence of a specific provision providing for such recession or revocation and an express or implied bar for such recession or revocation, Section 21 of the General Clauses Act applies, and such a power is to be read into such enactment. Otherwise, the very object of enacting this piece of Legislation becomes redundant. Ultimately the applicability of Section 21 of the Act depends on the scheme of the Act, the nature of power conferred, the object sought to be achieved and the language employed in the said provision. Broadly stated. Section 21 of the Act, applies as a rule, non application is an exception To exclude the application of the general rule, there must be an exceptional circumstance. Section 21 is based on the principle that power to create includes the power to destroy and also the power to alter what is created. The power to rescind a notification is inherent in the power to issue the notification without any limitations or conditions. Section 21 embodies a rule of construction. The nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification. When a power is conferred on an authority to do a particular act, such power can be exercised from time to time and carries with it the 51 power to withdraw, modify, amend or cancel the notifications earlier issued, to be exercised in the like manner and subject to like conditions, if any, attached with the exercise of the power. This legal position is in no way denuded merely because the notification issued under an enactment was the subject matter of litigation and the validity of such notification has been upheld by a Court."
72. As held by the Division Bench of this Court, Section-21 will apply only when in a statute, there is no specific provision providing for what is provided in Section 21. Section 21 provides that when there is a power to issue notifications or orders, such power includes a power to vary or rescind such notifications or orders. However, the said power to vary or rescind is exercisable in the like manner and subject to like conditions, on which, the notifications or orders are issued. The decision of the Division Bench holds that power conferred under Section 21 can be exercised only when there is no specific provision to do what can be under Section-21 of the said Act of 1897. The exception to the exercise of power under Section 21 of rescinding notifications or orders is in a case where an order passed under a particular statute is already given effect and third party interests are created. The reason is that in such a case, the exercise of the power of rescinding the notifications or orders will have serious consequences. In such contingency, it cannot be said that the power to issue notifications includes the power to rescind or revoke the same.
52
73. Therefore, we will have to ascertain whether under the said Act of 1948, there is a power to do what can be done under Section-21 of the said Act of 1897. Under Clause (b) of sub-Section (1) of Section-3 of the said Act of 1948, which is already quoted above, the appropriate Government is empowered not only to fix the rates of minimum wages but also to revise the rates of minimum wages, if necessary. As can be seen from sub- Section (2) of Section-5, it confers on the appropriate Government, a power to fix the rates of minimum wages in respect of the scheduled employment and power to revise such rates of minimum wages. In the case on hand, the statute has itself conferred a power on the appropriate Government to review/revise the rates of minimum wages and such power also includes power to increase or reduce the rates of minimum wages. Therefore, when a final notification is issued under sub-Section (2) of Section-5 of the said Act of 1948 of fixing or revising the rates of minimum wages in respect of a scheduled employment, the power to revise the same either by enhancing the rates or reducing the rates vests with the Appropriate Government. There is a power to revise the rates of minimum wages even by reducing the same by exercise of power conferred under sub-Section (2) of Section-5, after following the procedure under sub-Section (1) of Section-5. The power to review or revise the minimum wages 53 fixed, however, can not be exercised by withdrawing the final notifications. Hence, the act of withdrawal of the final notifications cannot be termed as a step in aid of revision of the rates. The revision can be made only by following the procedure prescribed in Section 5 of the said Act of 1948. Therefore, in case of a final notifications fixing the rates of minimum wages under sub- Section (2) of Section-5, there is a specific power conferred on the government to review or revise the same and therefore, in case of final notifications issued fixing the rates of minium wages, for revising or reviewing the same, recourse to Section 21 of the said Act of 1897 cannot be taken. However, in case of a notification published under Clause (b) of sub-Section (1) of Section-5 of the said Act of 1948, by which, the proposals of the State Government are published, the legal position may be different which we are discussing separately.
74. Even assuming that the power under Section- 21 of the said Act of 1897 can be exercised for rescinding the final notifications issued fixing the rates of minimum wages, as provided in Section- 21, the procedure prescribed under Section 5 of said Act of 1948 which is required to be adopted for revising the rates of minimum wages will have to be followed. Therefore, the action of the withdrawing the notifications could not have been 54 taken only on the basis of the report of the Labour Commissioner, but the State Government was required to follow the procedure prescribed by Section-5 which is applicable for fixing the rates of minimum wages either for the first time or for revising the same. Therefore, even assuming that the State Government could have invoked Section 21 of the said Act of 1897, the State Government was required to follow the procedure under Section 5 of the said Act of 1948 by taking recourse either to Clause (a) or Clause (b) of sub- Section (1) of Section-5 before rescinding the final notifications. In the case in hand, that was admittedly not done.
75. Even assuming that the power under Section- 21 of the said Act of 1897 could be exercised for rescinding the final notifications issued for fixing the rates of minimum wages, in the facts of the case, the three Notifications dated 30th December, 2017 which came into force on 30th December, 2017 vested a right in the employees of the concerned industries in respect of which notifications were issued, entitling them to get the minimum wages at the rates fixed by the said three notifications. Hence, the vested right created in the employees to get the wages as per the rates fixed under the three final notifications could not be taken away without revising the rates as provided under Section 3 read with Section 5 the 55 said Act of 1948. The vested right could not have been taken away by taking recourse to Section 21 of the said Act of 1897. Therefore, as held by the Division Bench of this Court, in the case of Land T Komatsu, (supra), the three notifications could not be rescinded by exercising the power under Section-21 of the said Act of 1897, as the right vested in employees cannot be taken away by exercise of such power. Hence, the action of withdrawal of the said three notifications is ultra vires the provisions of the said Act of 1948 as well as the said Act of 1897 and is liable to be set aside.
(xii) A perusal of the aforesaid judgment will indicate that this Court has also held that any notification issued under Section 5 of the said Act of 1948 cannot be withdrawn by invoking Section 21 of the General Clauses Act without following the mandatory procedure prescribed under Sections 3, 4 and 5 of the said Act of 1948; needless to state that it is trite law that Section 21 of the General Clauses Act is not capable of being invoked unrestrictedly by the State Government nor does the said provisions clothe them with the unfettered or unbridled power to nullify or withdraw any order or notification unconditionally. To put 56 it differently, the general power conferred under Section 21 is subject to several restrictions, conditions etc., depending on the facts of a particular case. Under these circumstances, the contention of the respondents that an omnibus power exists under Section 21 of the General Clauses Act in the State Government to issue the impugned notification is clearly untenable and misconceived and the same cannot be accepted and consequently, the impugned notification deserves to be quashed on this ground also.
(xiii) As stated supra, from 05.11.2016 onwards, a valuable vested right had accrued in favour of library supervisors by virtue of the final notification dated 05.08.2016; the said vested right stood crystallized and fructified in favour of the library supervisors on 30.01.2017 and 23.05.2017 when W.P.No.4355/2017 and W.P.No.22420/2017 were filed by the petitioner. Undisputedly, the petitioner-Sangha represents all employees of the Grama Panchayaths including library supervisors and their vested rights were sought to be enforced in the said petitions. It is also an undisputed fact 57 that though the objections, representations, proposals etc., submitted by the petitioner and other library supervisors were considered and taken into account by the respondents before issuing the final notification dated 05.08.2016, no opportunity was provided to anyone including the petitioner-Sangha or other library supervisors before issuing the impugned notification dated 04.09.2017. Under these circumstances, in view of the valuable legal rights to claim minimum wages having accrued and vested in favour of the library supervisors from 05.11.2016 onwards which were crystallized and fructified in their favour by filing of the aforesaid writ petitions, it was incumbent upon the respondents to provide reasonable and sufficient opportunity to them and all other affected parties before issuing the impugned notification and the same having been issued without doing so is clearly violative of principles of natural justice warranting interference by this Court in the present petition.
(xiv) A perusal of the final notification dated 05.08.2016 will indicate that the respondents have not only considered and taken into account the objections, 58 proposals and representations of all persons but have also relied upon the recommendations of the committee constituted under Section 5(1)(a) of the said Act of 1948 before issuing the impugned notification under Section 5(2); in other words, the final notification is based on not only the objections, proposals, representations etc., received after issuance of the preliminary notification dated 22.05.2015 as contemplated under Section 5(1)(b), but the final notification also additionally places reliance upon the report/recommendation of the committee constituted under Section 5(1)(a) of the said Act of 1948.
(xv) Under these circumstances, as rightly contended by the learned counsel for petitioner, even alternatively assuming that the final notification could not have included library supervisors who were not included in the preliminary notification, in the light of the constitution of the committee and obtaining its recommendation as provided under Section 5(1)(a) as is clear from the final notification dated 05.08.2016, mere absence of library supervisors in the preliminary notification dated 22.05.2015 cannot be made the basis by the respondents in order to contend that the 59 final notification is illegal and contrary to the said Act of 1948 and that the same was correctly withdrawn by issuing the impugned notification and consequently, even this contention urged by the respondents cannot be accepted.
(xvi) Learned counsel for the petitioner is also correct in his submission that in the light of a vested right having accrued in favour of the libarary supervisors with effect from 05.11.2016 and the same having been crystallized and fructified in their favour upon institution of W.P.No.4355/2017 and W.P.No.22420/2017, the impugned notification purporting and seeking to withdraw the final notification dated 05.08.2016 and nullify/efface the said vested/accrued rights is also barred by the principles of legitimate expectation and promissory estoppel and on this score also, the impugned notification deserves to be quashed.
(xvii) In so far as the contention of the respondents that since library supervisors were not a part of the scheduled employment, Section 5 of the said Act of 1948 was not applicable and accordingly, since the library supervisors were erroneously and illegally included in the 60 final notification dated 05.08.2016, respondents were fully justified in withdrawing the same by issuing the impugned notification is concerned, it is relevant to state that the issue that arises for consideration in the present petition is only with regard to the legality, validity and correctness of the impugned withdrawal notification including whether prescribed process/procedure was followed by the respondents before issuing the impugned notification.
(xviii) In the facts of the instant case, though several contentions have been urged by both sides with regard to the legality, validity and correctness of the final notification dated 05.08.2016, the said issue does not arise for consideration for the purpose of adjudication or determination of the legality and validity of the impugned withdrawal notification dated 04.09.2017; accordingly, the question with regard to legality, validity and correctness of the final notification dated 05.08.2016 as contended by the respondents is kept open and no finding is recorded on the same or the rival contentions urged by both sides; so also, in view of my finding above that the impugned withdrawal notification dated 04.09.2017 suffers from procedural 61 impropriety and illegality coupled with the fact that the same is vitiated since the mandatory procedure prescribed has been bypassed and given a go-bye by the respondents by issuing the same contrary to the provisions of the said Act of 1948, the validity of the final notification dated 05.08.2016 does not fall for adjudication/determination in the present petition and consequently, the various contentions urged by the respondents in this regard cannot be accepted.
(xix) Reliance is placed by the respondents upon the decision of the Apex Court in the case of State of Uttar Pradesh Vs. Sudhir Kumar Singh - AIR 2020 SC 5215 in order to contend that unless prejudice caused to the library supervisors is established, non-observance of natural justice would not vitiate the impugned notification. This contention urged by the respondents is also fallacious in the light of the undisputed fact that the final notification dated 05.08.2016 having fixed minimum wages in favour of library supervisors, the impugned notification seeking and purporting to withdraw the said benefit clearly causes huge and enormous prejudice and financial loss to the library 62 supervisors, thereby making it incumbent upon the respondents to provide them sufficient and reasonable opportunity and hear them before issuing the impugned notification which had to necessarily comply and fulfill the requirements of the principles of natural justice, which are conspicuously absent in the instant case and as such, this contention urged by the respondents also cannot be accepted.
(xx) A perusal of the impugned withdrawal notification dated 04.09.2017 will indicate that the final notification dated 05.08.2016 is sought to be withdrawn without assigning cogent, valid or proper reasons as required in law for the purpose of invoking Section 21 of the General Clauses Act. Viewed from this angle also, the impugned notification being a unreasoned and non- speaking notification, which has been issued without assigning proper or valid reasons is violative of principles of natural justice and deserves to be quashed.
11. In view of the aforesaid facts and circumstances obtaining in the instant case, I am of the view that the 63 impugned notification dated 04.09.2017 is illegal, arbitrary and without jurisdiction or authority of law and the same deserves to be quashed.
Point No.2 is accordingly answered in favour of the petitioner.
12. In the result, I pass the following:-
ORDER
(i) Petition is hereby allowed.
(ii) The impugned order at Annexure-K dated 22.04.2017 as well as the impugned notification at Annexure-P dated 04.09.2017 are hereby set aside.
(iii) Liberty is reserved in favour of the respondents to issue and pass appropriate / suitable orders, directions, circulars, notifications etc., in accordance with law.
SD/-
JUDGE Srl.