Madras High Court
The Southern India Mills Association vs The State Of Tamil Nadu on 11 December, 2009
Author: D.Murugesan
Bench: D.Murugesan
IN THE HIGH COURT OFJUDICATURE AT MADRAS
Dated: 11.12.2009
Coram:
The Honble Mr.H.L.GOKHALE, CHIEF JUSTICE
and
The Honble Mr.Justice D.MURUGESAN
W.A.Nos. 957, 992 & 993 of 2009
and
M.P.Nos. 1+1+1 of 2009
------
W.A.No.957 of 2009
The Southern India Mills Association,
41, Race Course,
Coimbatore 641 018
Rep. by its Chairman Appellant
vs.
1. The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Labour & Employment J1 Department,
Fort.St.George, Chennai 600 009.
2. The Union of India,
Rep. by its Secretary to Government,
Ministry of Labour,
New Delhi.
3. Tamil Nadu Joint Action Council of Textile
Trade Unions, No.381, Anuparpalayagam,
Coimbatore 641 009.
4. Coimbatore District Mill Workers Union,
(CITU), No.127, Anuparpalaygam,
Coimbatore 641 009.
5. Coimbatore (East) District Panchalai
Thozhilalar Sangam,
Thiyagi Palanisamy Nilayam,
No.447, Avinashi Road,
Tiruour 641 602.
6. Labour Progressive Federation,
Rep. by its General Secretary,
Mr.M.Shanmugam,
No.25, Thyagarayar Street,
North Usman Road,
T.Nagar, Chennai- 17. Respondents
W.A.No.992 of 2009
The Southern India Small Spinners Association,
8/732, Avinashi Road,
Coimbatore 641 018.
Rep. by its President. Appellant
vs.
1. The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Labour & Employment J1 Department,
Fort.St.George, Chennai -600 009.
2. The Union of India,
Rep. by its Secretary to Government,
Ministry of Labour,
New Delhi.
3. Tamil Nadu Joint Action Council of Textile
Trade Unions, No.381, Anuparpalayagam,
Coimbatore 641 009.
4. Coimbatore District Mill Workers Union,
(CITU), No.127, Anuparpalaygam,
Coimbatore 641 009.
5. Coimbatore (East) District Panchalai
Thozhilalar Sangam,
Thiyagi Palanisamy Nilayam,
No.447, Avinashi Road,
Tiruour- 641 602. Respondents
W.A.No. 993 of 2009
Tamil Nadu Spinning Mills Association,
No.24, 11th Cross Street,
Thiruvalluvar Nagar,
Spencer Compound, Dindigul,
Rep. by its Chief Advisor,
K.Venkatachalam Appellant
vs.
1. The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Labour & Employment Department,
Fort.St.George, Chennai 600 009.
2. Coimbatore District Mill Workers Union,
(CITU), No.127, Anuparpalaygam,
Coimbatore 641 009.
3. Coimbatore (East) District Panchalai
Thozhilalar Sangam,
Thiyagi Palanisamy Nilayam,
No.447, Avinashi Road,
Tiruour 641 602.
4. Tamil Nadu Joint Action Council of Textile
Trade Unions,
Rep. by its Secretary,
No.27, Mosque Street,
Chepauk,
Chennai 600 005.
5. The District Anna Panchalai Thozhilalar Sangam
(Regd.No.14/Anna),
Rep. by its District Secretary,
ThiruV.Jayaraman
Having Office at 4D, Scheme Road,
Dindigul 1.
6. The Kovai District Panchalai Anna Thozhilalar
Sangam (Regd.No.292/76),
Represented by its President,
Thiru V.K.Dhanagopalan.
7. The Coimbatore District Textile Workers
Union (HMS)
Represented by its General Secretary,
No.2212, Trichy Road,
Singanallur, Coimbatore 641 005.
8. Coimbatore District Mill Workers Union
(AITUC), represented by its Secretary,
No.99, RK Street, Kattor,
Coimbatore 641 009.
9. Indian National Trade Union Congress,
(Tamil Nadu Branch)
Represented by its Vice President,
No.45, Royapettah High Road,
Chennai 600 014.
10. Kovai Mavatta Panchallai,
Anna Thozhilalar Sangam,
Rep. by its President,
No.102, Grey Town,
Colimbatore 641 018.
11. Coimbatore Periyar Districts
Dravida Panchalai Thozhilalar Munnetra Sangam,
Rep. by its General Secretary,
No.59, Tatabad Street-3,
Coimbatore 641 012.
12. District Panchalai Marumalarchi
Thozhilalar Munnani,
Rep. by its General Secretary,
(Regn.No.112/Anna) No.49G,
East Arocikamatha Street,
Nagal Nagar Post,
Dindigul 624 003. Respondents
Appeals filed under Clause 15 of the Letters Patent against the common orders passed in W.P.Nos.28782/2008, 28805/2008 & 28741/2008 dated 30th April, 2009 on the file of this Court.
For Appellant in
W.A.No.957/2009 ::: Mr.A.L.Somayaji,
Senior Counsel
For M/s.T.S.Gopalan & Co.
For Appellant in
W.A.No.992/2009 ::: Mr.Sanjay Mohan for
M/s.Ramasubramanian Associates
For Appellant in
W.A.No.993/2009 ::: Mr.Vijay Narayan
Senior Counsel
for M/s.R.S.Pandiaraj
For Respondent 1
in all the appeals ::: Mr.P.S.Raman,
Advocate General
Assisted by
Mr.J.Raja Kalifulla, Govt.Pleader
For Respondents
3 & 4 in
W.A.No.957/2009
& W.A.No.992/2009
& Respondents ::: Ms.D.Nagasaila
2 & 3 in
W.A.No.993/2009
For Respondent 4
in W.A.No.993/2009::: Mr.N.G.R.Prasad
for M/s.Row & Reddy
For Respondents
5&6
in W.A.No.933/2009::: Mr.Anand Kumar
J U D G M E N T
THE HONBLE CHIEF JUSTICE These three appeals arise out of a common judgment and order dated 30th April, 2009 whereby a learned single Judge of this Court dismissed the writ petitions filed by the appellants herein challenging the notification dated 7th November, 2008 issued by the Labour and Employment Department of the first respondent/State of Tamil Nadu fixing the minimum wages for the apprentices engaged in the employment in Textile Mills including Composite Mills, Spinning Mills, Weaving Mills, Open Ended Mills and the various processes in the above mills at the rate of Rs.110/- per day, apart from the Dearness Allowance, as laid down in the said notification. The notification is stated to have come into force with effect from the date of publication thereof in the Tamil Nadu Government Gazette Extraordinary dated 7th November, 2008.
2. The appellant in W.A.No.957 of 2009 i.e., The Southern India Mills Association had filed two writ petitions before the learned single Judge. One was W.P.No.28782 of 2008, which challenged the aforesaid notification. The other was W.P.No.28783 of 2008 challenging the vires of this notification. The challenge to the vires was repelled by the learned single Judge and that challenge is not re-canvassed before us by filing any appeal.
3. The appellant in W.A.No.992 of 2009 i.e., The Southern India Small Spinners Association, Coimbatore, and the appellant in W.A.No.993 of 2009 i.e., The Tamil Nadu Spinning Mills Association, Dindigul had filed W.P.Nos.28805 of 2008 and 28741 of 2008 respectively for the very same purpose i.e., challenging the aforesaid notification. As stated above, all these petitions are rejected by the impugned common judgment.
4. There was no stay of this notification during the pendency of the writ petitions nor has there been any stay during the pendency of these appeals. With the consent of the parties, the appeals have been heard finally at the admission stage itself.
5. Some of the facts leading to these appeals are as follows:-
(i) A scheme appears to have been developed during last few years by some of the textile mills in the State of Tamil Nadu, under which un-married young girls are engaged as apprentices for a period of about three years, and at the end of that tenure they are paid a certain lumpsum amount to meet their marriage expenses. This scheme is conducted under various names, one of which being Sumangali Marriage Scheme. The submission of the workers unions appears to be that this is an exploitative scheme and that there have been cases of sexual harassment as well. As against that, it has been the refrain of the mill-owners that this is a good scheme for the benefit of the unmarried young girls.
(ii) The fact, however, appears that in view of the representations of the Federation of the State Textile Workers, the State Government issued a preliminary notification on 8th August, 2006 for inclusion in Part-I of the Schedule to the Minimum Wages Act, 1948 (for short the Act), the employment in Textile Mills including Composite Mills, Spinning Mills, Weaving Mills, Open Ended Mills and the various processes in the above said Mills like Blow Room, Carding, Drawing, Fly Frames, Spinning, Winding, Doubling, Reeling, Packing, Warping-sizing and other processes in the Textile Mills whether carried out singly or together.
(iii) Objections were invited to this notification. They were considered and subsequently, the preliminary notification was confirmed without any modification by the Labour and Employment (J2) Department in its G.O.Ms.No.1 dated 3rd January, 2007. Accordingly, the notification was published in the Tamil Nadu Government Gazette including employment in Textile Mills at Sl.No.88 in Part-I of the Schedule to the Act by way of an amendment thereto. This was in exercise of the powers conferred under Section 27 of the Act. It is material to note that the Tamil Nadu Spinning Mills Association challenged this addition of employment in Textile Mills by filing W.P.No.9182 of 2007, which was dismissed by a Division Bench by an order dated 31st October, 2007.
(iv) In the meanwhile, the Chief Inspector of Factories had sent a report on 14th February, 2007 to the Government of Tamil Nadu wherein he described the aforesaid system as Camp Coolie System. He stated that some Mills were engaging almost 60% to 80% of their work force through employment of such young women. The Report led the State Government to appoint a Committee on 30th March,2007 to look into this problem in three Districts of Erode, Coimbatore and Dindigul. On a complaint being made to the National Human Rights Commission, the Commission also sent a notice to the State Government on 10th April, 2007 which led the State Government to constitute a Committee for 17 Districts on 22nd June, 2007 including the earlier mentioned three Districts.
(v) Public Interest Petitions were filed by the Trade Unions challenging the constitution of these two Committees by the State Government bearing W.P.Nos. 21868 and 27362 of 2007, which led the High Court to widen the Committee and to constitute a District Monitoring Committees comprising of District Collector, Deputy Chief Inspector of Factories and Deputy Labour Commissioner, one representative of the District Legal Authority and one women NGO. The Committee was to carry surprise inspection of the Textile Mills and to give a report.
(vi) This led the State Government to issue a draft notification dated 16th May, 2008 proposing to fix Minimum Rates of Wages to the Apprentices in Textile Mills at Rs.110/- per day apart from the Dearness Allowance. The appellants herein and some other organizations and representatives of the Textile Mills as well as some Trade unions submitted their objections and suggestions. The Government after carefully considering the objections and the suggestions rejected the same by its G.O. (2D) No.61, Labour and Employment (J1) Department dated 7th November, 2008 confirming the draft notification dated 16th May, 2008.
(vii) Paragraphs 3 to 5 of this final notification spells out the process by which the Government arrived at the decision.
3. The Government have carefully examined the objections/suggestions received from the Southern India Mills Association, the South India Small Spinners Association, Tamil Nadu Spinning Mills Association, the Employers' Federation of Southern India, 302 individual mills and few Trade Unions and also the report of the Commissioner of Labour in this regard. The Government have examined, considered and decided to reject the objections/suggestions made by individual mills, Employers' Associations and Trade Unions. Accordingly, the Government confirm the above preliminary notification.
4. The Government by fixing minimum rates of wages to apprentices in textile mills have acted upon the direction of the Division Bench of the Hon'ble Madras High Court in the interim order dated 3.10.2007 in a writ petition filed by certain Trade Unions in W.P.No.27362 of 2007, to the authorities to take steps to ensure that these apprentices receive wages as per the law.
5. The Government have taken into consideration of various factors like the existing low wages paid to apprentices, the rapid changes in the consumer price index adversely affecting the living conditions of workers, representations made by various trade unions to the Government regarding the plight of apprentices, notice issued by the National Human Rights Commission in this issue and the direction by the Division Bench of the Hon'ble Madras High Court to the authorities to take steps to ensure that these apprentices receive wages as per the law."
(viii) The final notification reads as follows: -
"In exercise of the powers conferred by clause (a) of sub-section (1) of section 3 and clause (b) of sub-section (1) of section 5 of the Minimum Wages Act, 1948 (Central Act XI of 1948), the Governor of Tamil Nadu hereby fixes the minimum rate of wages payable to the apprentices engaged in the Employment in Textile Mills, including Composite Mills, Spinning Mills, Weaving Mills, Open Ended Mills and the various processes in the above said mills like Blow Room, Carding, drawing, fly frames, spinning, winding, doubling, reeling, packing, warping-sizing and other processes in the Textile Mills, whether carried out singly or together, in the State of Tamil Nadu, as Rs.110/- (Rupees one hundred and ten only) per day, the draft of the same having been previously published as required by clause (b) of sub-section (1) of section 5 of the said Act and objections and suggestions received having been considered under sub-section (2) of section 5 of the said Act.
EXPLANATIONS:-
(1) In addition to the minimum rate of wages fixed above, the apprentices shall be paid dearness allowance as specified below:-
(i) The dearness allowance is linked to the average of Chennai City Consumer Price Index for the year 2000 i.e., 475 points with base 1982 = 100 and for every rise of one point over and above 475 points, an increase of 23 paise (Twenty three paise only) shall be paid as dearness allowance per day.
(ii) The dearness allowance shall be calculated every year on the 1st April on the basis of the average of the indices for the preceding 12 (Twelve) months, that is, from January to December.
(iii) The first calculation shall thus be effective from the date of publication of this Notification in the Tamil Nadu Government Gazette based on the Average Consumer Price Index number for the previous year.
(2) Where the nature of work is the same, no distinction in the payment of wages shall be made as between men and women apprentices.
(3) To arrive at monthly wages, the daily wages shall be multiplied by 30.
(4) Wherever the existing wages are higher than the minimum wages fixed herein, the same shall be continued to be paid.
2. This Notification shall come into force with effect on and from the date of publication in the Tamil Nadu Government Gazette Extraordinary, dated the 7th November 2008."
(ix) The notification was challenged by filing the aforesaid writ petitions before the learned single Judge, and various grounds were raised before him. The learned single Judge dealt with the grounds of objections, considered the response of the State Government and the Trade Unions and came to the conclusion that the notification was perfectly valid and dismissed the writ petitions.
6. We have heard Mr.A.L.Somayaji, Mr.Sanjay Mohan and Mr.Vijay Narayan, learned senior counsel, in support of these appeals. Mr.P.S.Raman, learned Advocate General along with Mr.J.Raja Kalifulla, learned Government Pleader, has defended the notification on behalf of the State of Tamil Nadu. Mr.N.G.R.Prasad and Ms.D.Nagasaila, learned counsel, have appeared for the contesting Trade Unions and opposed these appeals.
7. Although, a number of grounds have been canvassed in support of the challenge to the notification, principally they can be looked into under the following heads, namely,
a)The State has no power to fix the minimum wages for the apprentices.
b)Assuming that the State has any such power, the procedure prescribed by law for fixing the minimum wages was not followed.
c)In any case, in view of the pendency of a reference of an industrial dispute concerning this issue, the State was barred from issuing such notification.
d)In the facts of the present case, no such notification was required and that it is a colourable exercise of power.
8. Before we deal with the submissions advanced by all the learned senior counsel, it will be desirable to refer to some of the provisions of the Act with reference to which these submissions have been advanced. They are concerning the definition of Employee in Section 2(i), the power of the State Government for fixing of Minimum Rates of Wages given in Section 3, and the procedure for fixing and revising the Minimum Wages as laid down in Section 5. As far as Section 3 is concerned, Section 3(1)(a), (2A) and Sub-section (3) are relevant for our purpose. Hence, for ready reference only Section 2(i), Section 3(1)(a), (2A) and Sub-section (3) and Section 5 of the Act are re-produced herein below: -
Section 2: Interpretation:
2(i) "employee" means any person who is employed for hire or reward to do any work skilled or unskilled manual or clerical in a scheduled employment in respect of which minimum rates of wages have been fixed; and includes an out-worker to whom any articles or materials are given out by another person to be made up cleaned washed altered ornamented finished repaired adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of that other person; and also includes an employee declared to be an employee by the appropriate government; but does not include any member of the Armed Forces of the Union.
3. Fixing of minimum rates of wages -
(1) 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 Party 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;
(2A) Where in respect of an industrial dispute relating to the rates of wages payable to any of the employees employed in a scheduled employment any proceeding is pending before a Tribunal or National Tribunal under the Industrial Disputes Act 1947 (14 of 1947) or before any like authority under any other law for the time being in force or an award made by any Tribunal National Tribunal or such authority is in operation and a notification fixing or revising the minimum rates of wages in respect of the scheduled employment is issued during the pendency of such proceeding or the operation of the award then notwithstanding anything contained in this Act the minimum rates of wages so fixed or so revised shall not apply to those employees during the period in which the proceeding is pending and the award made therein is in operation or as the case may be where the notification is issued during the period of operation of an award during that period; and where such proceeding or award relates to the rates of wages payable to all the employees in the scheduled employment no minimum rates of wages shall be fixed or revised in respect of that employment during the said period.
(3) In fixing or revising minimum rates of wages under this section -
(a) different minimum rates of wages may be fixed for -
(i) different scheduled employments;
(ii) different classes of work in the same scheduled employment;
(iii) adults adolescents children and apprentices;
(iv) different localities;
(b) minimum rates of wages may be fixed by any one or more of the following wage periods; namely :
(i) by the hour
(ii) by the day
(iii) by the month or
(iv) by such other larger wage-period as may be prescribed;
and where such rates are fixed by the day or by the month the manner of calculating wages for a month or for a day as the case may be may be indicated :
Provided that where any wage-periods have been fixed under section 4 of the Payment of Wages Act 1936 (4 of 1936) minimum wages shall be fixed in accordance therewith.
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 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 committee 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.
9. State has no power to fix Minimum Wages for the Apprentices As far as this ground of attack is concerned, the submission was the apprentices are not specifically included in the definition of employee. It is contended that where the legislature intended to include apprentice into the concept of an employee or workman, it has specifically done it so. Thus, the definition of workman under the Industrial Disputes Act, 1947 specifically includes an apprentice, as against which, the definition of an employee under this Act does not specifically include apprentice. Reliance was placed in this behalf on the judgment of the Apex Court in E.S.I Corporation v. Tata Engg. & Loco. Co. reported in 1976 (1) L.L.J 81 wherein in para-7 of the report, the Apex Court has referred to the above proposition namely, where the legislature intended to include the apprentice in the definition of a workman, it has expressly done so in the Industrial Disputes Act, 1947. The other observations of the Court in that judgment were also pressed into service. In para-4, the Apex Court has observed as follows: -
4. The word apprentice is not defined in the Act (i.e., E.S.I Act) nor is it specifically referred to in the definition of employee by either inclusion or exclusion. We are unable to hold that in ordinary acceptation of the term apprentice a relationship of master and servant is established under the law. In para-5 of the said judgment, the Apex Court has observed as follows: -
5. The heart of the matter in apprenticeship is, therefore, the dominant object and intent to impart on the part of the employer and to accept on the part of the other person learning under certain agreed terms. That certain payment is made during the apprenticeship, by whatever name called, and that the apprentice has to be under certain rules of discipline do not convert the apprentice to a regular employee under the employer
10. Now what is material to note is that in that matter, the Apex Court was concerned with the question, is an apprentice an employee under the Employees State Insurance? That is now the judgment begins and the definition of employee under Section 2(9) of the Employees State Insurance Act is quoted and then it was observed as follows: -
9. We may, therefore, turn to the definition of employee under S.2(9) of the Act. So far as it is material, S.2(9) reads as follows: -
employee means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and
(i)who is directly employed by the principal employer on any work of, or incidental or preliminary to or connected with the work of the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere; or.
It is clear that in order to be an employee a person must be employed for wages in the work of a factory or establishment or in connection with the work of a factory or establishment
11. Thus, we have to read the observations of the Apex Court in the context of the question that was there before the Court. As far as the definition of employee with which we are concerned goes, it specifically includes even a out-worker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of that other person. Thus, the definition under the Minimum Wages Act covers not merely the contract of employment, but a contract for employment and includes even such out-worker. Besides, at the end of it, the Section states that it does not include any member of the Armed Forces or Union. On the other hand, the Section reserves the power with the Government to include an employee declared to be an employee by the appropriate government in this behalf.
12. The other judgment which is pressed into service, with much emphasis, is the one in the case of U.P.State Electricity Board v. Shiv Mohan Singh and another reported in 2004 (8) SCC 402. In this case, the Apex Court examined the nature and status of Apprentice appointed under the Apprentices Act, 1961 as distinguished from a workman under the U.P.Industrial Disputes Act, 1947, the provisions of which are pari materia with the Industrial Disputes Act, 1947. Section 18 of the Apprentice Act, 1961 was pressed into service, which reads as follows: -
18. Apprentices are trainees and not workers Save as otherwise provided in this Act, --
(a)every apprentice undergoing apprenticeship training in a designated trade in an establishment shall be a trainee and not a worker; and
(b)the provisions of any law with respect to labour shall not apply to or in relation to such apprentice. After considering the relevant provisions, the Apex Court held in para-51 that by virtue of Section 18 the apprentice trainees are not workers. It clearly lays down that if an apprentice trainee is undergoing apprenticeship training in a designated trade in an establishment, he shall be a trainee and not a worker. It further contemplates that the provisions of labour laws shall not apply in relation to such apprentice.
13. Now, what is material to note is that, as stated above, the above judgment was rendered in the context of the Apprenticeship Act, 1961. The respondent therein namely, Shiv Mohan Singh was appointed as an Apprentice Boiler Attendant under the Apprenticeship Act, 1961 by the appellantU.P.State Electricity Board for a period of three years, at the end of which he was awarded a certificate of proficiency as a Boiler Attendant, and his services were terminated. He contended that he had been retrenched and sought benefit of Section 25-F of the Industrial Disputes Act, 1947 or Section 6-N of the U.P.Industrial Disputes Act, 1947, which benefit obviously could not be given.
14. (i) The matter before us is concerned with the power of the State Government to fix the Minimum Rates of Wages. The Preamble of the Act states that it is an Act to provide for fixing Minimum Rates of Wages in certain employments. Now that is no longer an issue since an amendment has been brought into force in the Schedule to the Act by the State of Tamil Nadu to include the employment in Textile Mills therein, and the challenge to this inclusion was also repelled by this Court. Once, the employment in Textiles is a scheduled employment, it comes amongst those employments for which minimum rates of wages can be fixed. Section 3 of the Act gives the power to the State to fix the minimum rates of wages and sub-section 3 thereof specifically lays down that in fixing or revising minimum rates of wages under the Section, different minimum wages may be fixed, and amongst categories of persons for whom these wages can be fixed, adults, adolescents, children and apprentices are specifically covered under sub-section (iii) of Section 3(3)(a) of the Act. Thus, apprentices are specifically mentioned in Section 3(3)(a)(iii) of the Act with respect of whom, the State Government has been given the power to fix the minimum wages. The Minimum Wages Act is a specific Central Act governing the subject of framing of minimum wages for certain employments. Section 18(b) of the Apprentices Act, 1961 which provides that the provisions of any law with respect to labour shall not apply to or in relation to the apprentices cannot be read to take away the specific provision and the power of the State Government to provide minimum wages for the apprentices when they are specifically covered under Section 3(3)(a)(iii) of another Central Act. The judgment in U.P.State Electricity Board (supra) has been rendered in the context of a dispute arising out of the claim of apprentices that they were retrenched. The issue does not discuss nor does it deal or refer to the application of minimum wages to the apprentices. The observations of the Apex Court in para-51 of the judgment, which is referred to above, will have to be read in this context.
(ii) The power to fix the minimum wages given to the State by a specific Act in 1948 cannot be said to be whittled down by the phrase provisions of any law with respect to labour occurring in Section 18(b) of the Apprentices Act which is passed in 1961. Such an intention cannot be attributed to Parliament in making the provisions in Apprentices Act, 1961. The Minimum Wages Act is applicable since 15th March, 1948 and it specifically gives the power to the State under Section 3(1) read with Section 3(3)(a)(iii) of the Act to fix minimum wages for apprentices. The minimum wage is supposed to be just sufficient to meet the bare necessities of a family. The responsibility to fix the minimum wages flows from the directive principles contained in Article 43 of the Constitution of India as held by a Constitution Bench in Bijay Cotton Mills v. State of Ajmer reported in AIR 1955 SC 33 wherein the Court specifically held that an employer cannot be heard to say that he will engage the labourers for wages less than minimum. In para-4, the Court observed as follows: -
It can scarcely be disputed that securing of living wages to labourers which ensure not only bare physical existence but also the maintenance of health and decency, is conducive to the general interest of the public. This is one of the Directive Principles of State Policy embodied in Article 43 of our Constitution. It is well known that in 1928 there was a Minimum Wages Fixing Machinery Convention held in Geneva and the resolutions passed in that convention were embodied in the International Labour Code. The Minimum Wages Act is said to have been passed with a view to give effect to these resolutions. Vide South India Estate Labour Relations Organisation v. State of Madras, AIR 1955 Mad 45 at p.47; 1954-I Mad LJ 518 (A).
If the labourers are to be secured in the enjoyment of minimum wages and they are to be protected against exploitation by their employers, it is absolutely necessary that restraints should be imposed upon their freedom of contract and such restrictions cannot in any sense be said to be unreasonable. On the other hand, the employers cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers, on account of their poverty and helplessness, are willing to work on lesser wages The parliament will have to be held as aware of this legal position. The provision in Section 18(b) enacted in 1961 to exclude application of labour laws to apprentices cannot be read as taking away the power of the State. Here, we are concerned with the responsibility and the power of the State under Section 3 of the Act It cannot be held to be curtailed by this position in the Apprentices Act, 1961.
15. The procedure contemplated under the Act has not been followed : -
The next ground of attack raised by the appellants was that the procedure contemplated under the Act for fixing minimum wages has not been followed. As far as this submission is concerned, it is submitted that normally the State Government appoints Committees under sub-section (1)(a) of Section 5 of the Act, while fixing the minimum rates of wages for the first time. Even when the minimum rates of wages are fixed by the other method of inviting objections, when it comes to revision of the minimum rates of wages, the State Government consults the Advisory Board. Section 9 of the Act requires equal representation of the employees and the employers in such Committees as well as in the Advisory Boards and the views of such bodies are given due weightage. According to the appellants in the instant case, it has not been so done while fixing minimum wages and the method adopted is bad.
16. Now as far as this submission is concerned, it is clear from Section 5(1) of the Act that even when minimum rates of wages are being fixed for the first time there are two methods which are available to the State Government. One is, of course, appointment of Committees as laid down in sub-section 1(a). The other method provided under sub-section 1(b) is to issue a notification publishing the proposal for the information of the affected persons two months in advance before the proposal is taken into consideration. Sub-section (2) of Section 5 of the Act empowers the State Government to fix the minimum wages by notification, after considering the representations, which are received subsequent to the publication of the proposal. In the instant case, such objections have been considered by the State and thereafter, the impugned notification has been issued. It is true that when it comes to revising the minimum wages even by the method prescribed under sub-section 1(b), the State Government has to consult the Advisory Board as laid down in the proviso to Section 5(2). However, as far as fixing the minimum wages on the first occasion is concerned, the State Government does have the liberty to proceed by the notification method under sub-section (1)(b) and at that stage, the Advisory Board does not come into picture. In the circumstances, there is nothing wrong in the procedure adopted by the State Government. It has also been laid down by the Apex Court in Chandra Bhawan Boarding and Lodging v. State of Mysore reported in AIR 1970 SC 2042 that it is the discretion of the Government to choose any of the two methods which are available under Section 5(1) of the Act.
17.State was barred from fixing minimum wages in view of Section 3(2A) of the Act: -
It is submitted on behalf of the appellants that, in the instant case, a reference of the demands of the workmen for revision of their wages was pending before the Industrial Tribunal. The demands were referred for adjudication on 15th September, 2001 and Demand No.16 thereof was as follows: -
Demand No.16. Whether the demand that the workmen should be classified as permanent and learners only; that permanent complement of workmen should be fixed based on the number of machines, that there should be leave reserve of 10% of permanent complement and that the learners should be paid Rs.50/- per day for the first three months and increased by Rs.10/- per day once in 3 months is justified? If not, to what relief they are entitled? It is contended that in view of the pendency of this demand before the Industrial Tribunal, the State was barred from issuing a minimum wage notification under sub-section 2A of the Act, and therefore, the final notification dated 7th November, 2008 was bad in law as it would amount to overreaching the Tribunal, which is not permissible under the Statute.
18. (i) In this context, as can be seen from this demand, it sought a decision on the question whether the workmen should be classified as permanent and learners. The demand was that the permanent complement of workmen should be fixed based on the number of machines and that there should be leave reserve of 10% of permanent complement and further that the learners should be paid Rs.50/- per day for the first three months and increase by Rs.10/- per day once in three months. It is material to note that these demands were made way back in the year 1999 and thereafter they were referred for adjudication by reference order dated 13th September, 2001. Mr.Prasad and Ms.Nagasaila appearing for the Trade Unions representing the Apprentices pointed out that the draft notification proposing to fix minimum wages at Rs.110/- per day for the apprentices was issued by the State Government on 16th May, 2008. The demand for payment of Rs.50/- per day for the first three months to the learners made way back in the year 1999 had lost its relevance, in view of the long pendency of the reference. Further, in view of the State Government proposing to revise the minimum rate of wages to the apprentice at the rate of Rs.110/- per day on 16th May, 2008, the trade unions were expected to respond to that notification. Once the minimum wages were fixed by the State Government, it would become obligatory for the employers to pay them and it was no longer necessary for the workmen to canvass the demand for Rs.50/- per day raised in 1999 before the Tribunal. The Unions therefore applied to the Tribunal for withdrawal of this demand on 3rd July, 2008. The workmen have supported the fixing of minimum rates of wages in their representations to the State Government in response to the draft notification. The proposed fixation of minimum wages was opposed by the employers associations and only after considering all the representations the final notification was issued on 7th November, 2008. When the State was offering Rs.110/- per day, there was no reason to seek wage of Rs.50/- per day in the year 2008, which was the demand made way back in the year 1999.
(ii) The judgment of the Apex Court in the case of Shivraj Fine Arts Litho Works v. State Industrial Court, Nagpur and others reported in AIR 1978 SC 1113 is relevant in this behalf. A reference for fixation of fair wages for certain industrial concerns was pending before the Tribunal since 1961. The notification fixing the minimum wages in this matter came to be published on 31st December, 1964, and a reference to the Industrial Court for some more concerns including the petitioner came to be made just a few days later on 7th January, 1965. From paragraphs 17 & 18 of the judgment, it is clear that the dispute pending before the Tribunal was for fixing the fair wages, yet the Government was requested by the employees to fix the minimum wage. On the facts of that case, the Supreme Court did approve the classification made by the Industrial Court as upheld by High Court. However, in para-30 of the judgment, the Apex Court specifically dissented with the view of the High Court that an industrial minimum should be fixed by the Tribunal, even though it was fixed by the Government under the Act.
19. It will have to be seen that in the facts of the instant case, the demand of the workmen for the minimum wage of Rs.50/- per day was pending for a very long time from the year 1999 and in view of the draft notification being issued by the State Government revising the minimum wages at a higher rate of Rs.110/- per day, the workmen placed an application before the Industrial Tribunal stating that they are not pressing the demand of Rs.50/- per day before the Tribunal any longer. This being the position, the State could not be faulted in issuing the notification fixing the minimum wages on 7th November, 2008 nor can the employees be denied the benefit of the minimum wages fixed by invoking the provision under Section 3(2A) of the Act.
20. In the facts of the present case, no such notification was required and that it is a colourable exercise of power.
(i) The last ground of attack of the appellants has been that all throughout the wages in the Textile Mills in Tamil Nadu have been framed by various agreements and awards from time to time. Mr.Vijay Narayan, learned senior counsel appearing for the Tamil Nadu Spinning Mills Association (Appellant in W.A.No.993/2009) informed us that historically wages have been fixed bilaterally and they have been revised from time to time depending upon the number of spindles on which the workmen were required to work. He also informed us that there have been awards of the Tribunals from time to time and therefore, fixing of minimum wages by a notification was not called for.
(ii) It was also submitted on behalf of the appellants that there are certain parameters which are required to be taken into consideration while fixing the minimum wages as laid down by the Apex Court in the case of Workmen of Reptakos Brett and Co. Ltd v. Management, 1992 (1) LLJ 340. It was submitted that under this judgment a distinction has been made between the minimum wage, which is for bare subsistence and is at poverty-line level. A little above minimum wage is the fair wage and thereafter the living wage. Reference was also made to the wages fixed in other industries and other employments in the State of Tamil Nadu and other States. It was submitted that Rs.110/- per day would be a fair wage and not a minimum wage. It was also submitted that fixing of wages has taken place because of the pressure of the Trade Unions and a wrong picture being given about the Sumangali Marriage Scheme and that this was a colourable exercise of power of the State. The learned Advocate General has stoutly refuted all these allegations. He has placed the material on record to explain as to how Rs.110/- per day was justified as minimum wage after considering all relevant factors, and we also do not see the fixation of minimum wages at that rate as in any way unreasonable. The learned Advocate General pointed out that the term Camp Coolie has been accepted by the High Court in its order on the two writ petitions referred to earlier. It was, in fact, being pointed out that these female workers are treated as bonded labourers. Almost 60% of the work force in the textile industry in the State is engaged by this method and the State Government had to therefore act. We have to keep in mind that Article 23 of the Constitution prohibits traffic in human beings and beggar and other similar forms of labour and the Apex Court did refer to the mandate of this Article and Minimum Wages Act while dealing with bonded labour in Bandhua Mukti Morcha v. Union of India reported in 1984 (3) SCC 161. The problem faced by the apprentices, which included mostly the girls bonded in a particular manner, had to be attended and which is what the State has done by giving them the minimum rates of wages through the impugned notification so that they dont have to enter into any such arrangement under the Scheme.
(iii) In this connection, we must note that fixing of the minimum wages is in the nature of a legislative exercise as has been decided by a Division Bench of the Andhra Pradesh High Court in Tourist Hotel v. State of Andhra Pradesh reported in 1975 (1) LLJ 211 and therefore, no such motive can be attributed to such legislative exercise nor can we call it a colourable exercise in the facts of the case. Besides, as held by the Apex Court in Bijay Cotton Mills Ltd. (supra) it is a mandate of Article 43 of the Constitution that the State 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. Fixing of minimum wages is just a first step in that direction. Besides what should be the minimum wage for an employment is for the State to decide and in the present case the State has justified its notification on facts. As observed in Ministry of Labour and Rehabilitation v. Tiffins Barytes Asbestos and Paints Ltd., reported in 1985 (2) LLJ 412, the notification fixing the minimum wages cannot be lightly interfered with in exercise of writ jurisdiction by the High Court, except on most substantial grounds. Action taken pursuant to social welfare legislations to further the directive principles of State policy cannot be struck down on mere technicalities. The employer has to pay the minimum wages fixed by the State after following the due procedure of law. As observed in para-13 of Reptakos Brett and Co. Ltd (supra) if he cannot pay minimum wages he has no right to engage labour and no justification to run the industry.
21. The learned single Judge has dealt with the objections raised by the appellants in an elaborate and well considered judgment. For the reasons stated above, we are in entire agreement with him and we have no reason to interfere with the impugned judgment. In our opinion, fixing of minimum wages at Rs.110/- per day for the Apprentice by the impugned notification dated 7th November, 2008 is quite timely and fully justified. All the appeals are therefore dismissed. Consequently, miscellaneous petitions are closed. There will be no order as to costs.
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Copy to:
1. The State of Tamil Nadu, Rep. by its Principal Secretary to Government, Labour & Employment J1 Department, Fort.St.George, Chennai 600 009.
2. The Union of India, Rep. by its Secretary to Government, Ministry of Labour, New Delhi