Bombay High Court
Arbuda Bhuvan Tea Shop And Ors. vs State Of Maharashtra And Ors. on 21 January, 1991
Equivalent citations: 1991(2)BOMCR129, [1991(62)FLR530], (1992)ILLJ807BOM
JUDGMENT
1. This petition under Article 226 of the Constitution takes various contentions in respect of Notification dated October 31, 1985 annexed at Ex.E being annexure to the petition.
2. Petitioners are owners of what is described as 'tea shop' and an association of such owners doing business in the preparation, distribution and sale of the beverage tea in Greater Bombay. The Minimum Wages Act, 1948 - hereinafter referred to as the 'Act' - is a piece of legislation enabling fixing of minimum rates of wages in certain employments. At the time the Act was introduced, it had a Schedule consisting of two parts, being know as 'Part I' and 'Part II'. These parts did not include employment in hotels, restaurants and eating houses. By the Minimum Wages (Maharashtra Amendment) Act, 1960 Part I of the Schedule was further amended to include :-
"Employment in any residential hotel, restaurant or eating house as defined in the Bombay Shops and Establishments Act, 1948. (shops Act)"
"Restaurant or eating house" has been defined in the Shops Act as -
"means any premises in which is carried on wholly or principally the business of the supply of meal or refreshments to the public or a class of public for consumption on the premises."
The minimum wages for workers employed in residential hotels, restaurants or eating houses were fixed for the first time in the year 1976. There came up the question of revising the said minimum wages and the State Government in exercise of the power vested in it under Section 5(1)(a) of the Act appointed a Committee to hold an enquiry and advise it in respect of the revision. The Committee was headed by Mr. Kevalchand Jain, then being a Member of the Legislative Council, and having a certain number of representatives of the employers as also employees. The employer's representatives did not include any representative of persons running tea shops in the strict sense of that expression. This Committee submitted a report in the year 1983. The Hotel Mazdoor Sabha purporting to represent a large number of employees employed in hotels etc. moved Writ Petition No. 1977 of 1983 taking exception to the proposed exclusion of various categories of hotel employees from the purview of the proposed revision of minimum wages. The petition was directed against the State of Maharashtra and after hearing Counsel, the learned Single Judge - Pendse J. - delivered a judgment on October 11, 1984. The operative part of the order passed by Pendse J. reads thus :-
".... rule is made absolute in terms of prayer (a). The State Government should consider whether it is advisable to appoint a fresh committee under Clause (a) of sub-section (1) of Section 5 of the Act to consider revision of the minimum rates of wages or to extend the provisions of the Notification dated August 1, 1984 applicable to the employees in canteen and clubs to the employees of hotel and restaurant industries."
The decision was followed by a draft notification issued on January 31, 1985 which is at Ex.A intimating the Government's view that different categories of employees in the annexure were entitled to certain specified minimum wages. The affected persons were called upon to submit their responses - if any - to the proposal incorporated in the draft notification. One of the objectors was the fifth petitioner represented by its President. The objection submitted by him on March 26, 1985 is to be found at Ex.B. The State Government on October 31, 1985 issued the impugned notification reciting therein that the same had been issued after a due consideration of "all the representations received". It is that notification which is impugned in the present petition.
3. Learned Counsel representing the petitioners has made three submissions. First he contends that the prescribed procedure for the issue of a notification fixing the minimum wage in an employment was not followed by the State Government before the issue of the impugned notification. Secondly, he submits that the notifications as issued does not cover employment in tea shops. Third is the submission that in case the notification be deemed to cover employees working in tea shop, the same is arbitrary inasmuch as it purports to treat unequals as equals. There is no merit in any of the contentions raised and the petition is dismissed for the reasons given below.
4. The first contention of Mr. Kothari is that the State Government should have appointed a Committee or Sub-Committee to go into the viability of tea shops and their owners to pay a minimum wage to employees working therein. True, the Kevalchand Jain Committee was appointed by the Government. But the said Committee could not be said to represent tea shops. The employers' representatives of the Committee were those who represented dealers of articles that went into the preparation of edibles, hotel owners doing business on a large scale and/or representatives of eating houses. By no stretch of imagination could these representatives be said to cover owners of tea shops. Tea shops had nothing in common with the categories which employers' representatives could or did represent in the Committee constituted to revise minimum wages. It is not possible to agree with this submission. The employers' representatives did represent - broadly speaking - all those who did business in the preparation and sale of food and victuals. Whether or not tea is a food remains to be considered and to that aspect of the matter I shall be coming a little later. The argument that tea shops cannot be covered by the expression "restaurant or eating house" occurring in the Shops Act remains to be examined. Tea may not be a meal in the popular sense of the word, but it is certainly a refreshment. Faced with this Mr. Kothari says that even it tea be a refreshment the requirement of serving the beverage on the premises for the customers' consumption is still not met in the case of tea shops. Now I do not see why it should be so. If a customer goes to a tea shop, he will not be refused service on the ground that the premises are not meant for serving of tea to customers. It is a different matter that the size of the establishment i.e. the premises, is so small that the major portion of the customers of tea shops are those who are served through tea boys at places of their choice rather than the premises where tea shops are located. The extreme stand that tea is neither a food not a drink is based upon extracts from Darling J.'s views reported in Hindu v. Allmond 1918-87 LJKB. 803 and Sanisbury v. Saunders 1918-88 LJKB. 441. The extracts read as follows :-
"The appellant did not acquire drink, but has acquired dried tea - leaves from which a drink can be made. No one sits down to eat tea, and it is not accurate to say that any one drinks tea. What one drinks is, not the tea, but the water which has passed through the tealeaves so as to make an infusion which is know as tea."
"Tea is not in itself a food in the sense that it is not nutritious, that you cannot live on it, that it will not increase the amount of tissue in a person as the drinking of milk would - food may be solid food or liquid food - It is not simply because it is a drink that tea is not food; that is an entire mistake - supposing tea were capable of adding to the tissues as milk will do, then it would be quite right to call it simply food. Tea appears to be nothing in the world but a stimulant."
One does not know the context in which these observations were made by the learned Judge for Mr. Kothari had produced before me only "Words and Phrases Judicially Defined" Volume V. Printed in 1945 at Page 262. That apart, the excerpts indicate an unusually sophisticated view of the matter which is not applicable to the conditions prevailing in India. Be that as it may, the second excerpt admits of tea being a stimulant and a refreshment covered by Section 2(25) of the Shops Act, would cover a stimulant. Now it is not necessary that every atom or fragment of a particular industry to which the Act is proposed to be made applicable, should have sectional representation so as to make the Committee or Sub-Committee representative. In any event, and, assuming the worst against the Government, it was not under an obligation to even constitute a committee. Learned Counsel argues that Government was under an obligation to act reasonably. The tea shops in Greater Bombay constitute nearly 1/3rd of the total number of hotels and eating houses. Their economies are totally different. To ignore so large a proportion of employers in a matter of vital concern to them was to act unreasonably and irrationally. The interests representing the employers in the Jain Committee had no acquaintance with conditions prevailing amongst those who run tea shops. They had no care or concern for tea shops. The Government on its own thought it necessary to take advice from representatives of guest houses, eating houses and restaurants. The need for advice having been established by the appointment of such a Committee, it amounted to an admission on the part of the Government that it required advice for fixation of minimum wages. That being the position it was not absolved from the responsibility to take advice from genuine representatives of tea shops. That two options were open to the Government under Section 3(1) of the Act, Was conceded. But responsible Government is expected to act in a responsible fashion, and thus viewed, the Government's decision to omit representatives of tea shops from the Committee vitiated the subsequent draft notification as also the impugned notification. Section 5 given Government the option to constitute a Committee or invite objections to a proposal in the form of a notification setting out the minimum wages it proposes to impose. Either course may be adopted by the Government and in some cases there may be a mixture of both. Petitioners' submission that no representative of theirs was taken would mean that there was no proper exercise of power under Section 5(1)(a) of the Act. A representative specimen of the employers was taken and too fine a distinction cannot be made in such matters, for there would be no end to the clamour for sectional interests, wherever it be possible to concede that all fragments should have a place in the Committee constituted to advice Government under Section 5(1) of the Act Mr. Kothari argues that even if the State Government was free to dispense with the appointment of a Committee to advise on the matter of fixation of minimum wages, it was absolved of the obligation to consider the representations made against the draft notification by affected interests. The impugned notification was a word to word reproduction of the draft notification, showing that there had been no consideration of the objections lodged by, amongst others, the representative of the tea shop owners of Greater Bombay. The impugned notification shows that all representations had been considered by the State Government. It is not necessarily for the State Government to discuss the pros and cons of points taken in representations to establish an application of mind. When the final notification recites that representations received had been considered, it will have to be accepted that such consideration had taken place and that the recital represents what really transpired.
5. The next contention advanced by Mr. Kothari is that the notification does not cover tea shops. This, learned Counsel tries to establish, by first pointing to the great - so he says difference between a tea shop and a restaurant or an eating house as set out in Section 2(25) of the Shops Act. There is no distinction except in relation to the size of the establishment, the location thereof, the facilities provided and the number and class of employees working is such establishments. A tea shop is a smaller version of a restaurant or an eating place. Next, learned Counsel referred to the absence of any category of employees working in a tea shop vis-a-vis those listed in the impugned notification. A tea maker and tea boys are included in the class of employees skilled, semi-skilled and unskilled. Therefore this would not be an indication that tea shops are outside the purview of the impugned notification.
6. Next learned Counsel contended that inclusion of tea shop employers within the impugned notification is a classic case of unequals being treated as equals. There is no comparison between residential hotels, restaurants and eating houses on the one hand and the tea shops on the other. Therefore the wages payable to persons working in the first class cannot be the same as those paid to employees working in the second class. Article 14 is violated where totally different classes are grouped together as if they constitute an universal class. The argument has an element of plausibility, but no more. Reliance is placed upon certain data furnished alongside the petition. These are one-sided presentations and cannot be accepted as reflective of the true position. Even if they be assumed to be true, what should not be lost sight of is the fact that the economic capacity of a trade or industry is of no consequence when the question is of fixing minimum wages. In the matter of fixation of minimum wages, it is well-settled that the economic capacity of the trade or industry is irrelevant, for, what alone is germane, is the wage required by the employees to survive.
7. It was argued that in the absence of a return on the part of the respondents whatever is stated in the petition - at least in so far as the factual aspect is concerned - should be taken as the truth. This is stating too broad proposition. Failure of respondents to file a return would have some consequences where judicial notice cannot to be taken recourse to by a Court of law. But here the questions that have been raised are of a general nature which can be resolved by taking judicial notice of various aspects of the matter. No such adherence to the proposition is required in the instant case.
8. It was argued that the impugned notification is the result of collusion between the Government and labour. In support of this contention reliance is placed upon Ex.J. This is a pamphlet issued by the second respondent advertising its success in prevailing upon the Labour Minister to accept certain wages for hotel workers. Mr. Kothari argues that Ex. J. establishes the Government's succumbing to labour pressure and this without notice or hearing being given to the industry or trade. With respect to learned Counsel, I do not see how Ex. J. can be taken as evidence of pressure. First, it represents a one-sided bragging by Respondent No. 2. Even if it represents the possible truth, that does not seem that the Government cannot act upon certain suggestions made by representatives of workers and this without hearing employers. How to fix minimum wages is laid down in Section 5 of the Act. First, the Government can act upon the advice of a Committee constituted by it for that purpose. Next, it can issue a draft incorporating its proposal as to what should be the minimum wage and await a response from the affected interests. Representations if any received from the latter are to be considered. Here, all that has been done and it was not necessary to give a further hearing to the employers merely because the Labour Minister had received a delegation of workers. The omission of the Hotel Mazdoor Sabha to implied the hotel industry and the failure of the Government to bring their interest in the matter to the notice of Pendse J, are cited as proof of mala fides. It is difficult to understand why this should be so. The Hotel Mazdoor Sabha's grievance was against the Government and the Government was not representing the employers to bring to the notice of the Court the employers' interest in the matter. In any case, nothing stopped the employers from seeking a review of the order passed by Pendse J, or taking exception to the said order in appeal as persons aggrieved.
9. The result of the foregoing discussion is that the petition fails. Rule discharged with parties being left to bear their own costs.