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PETITIONER: A.   M. ALLISON

       Vs.

RESPONDENT: B. L. SEN(and connected appeal)

DATE OF JUDGMENT: 21/12/1956

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P. DAS, S.K.

CITATION:  1957 AIR  227            1957 SCR  359

ACT: Minimum  basic wages-Basic work-load--Extra wages  for  work done in excess of basic work-load-Writ of certiorari-When to be granted-Minimum Wages Act, 1948 (XI Of 1948), ss. 3. 5(2) and 20-Constitution of India, Art. 226.

HEADNOTE: The labourers were being paid the basic wages of as. 8/- for male  labourers  and as. 6/- for female  labourers  for  the work-load or task of plucking 16 seers and 12 seers of green tea leaves respectively each day.  If the labourers  plucked larger  quantities of leaves they were paid extra  wages  at the  rate  of 6 Ps. per seer in excess of 16  seers  and  12 seers  respectively.  The Government issued  a  notification under  S.  3 read with S. 5 (2) of the  Minimum  Wages  Act, 1948, increasing the rates of basic wages to as.  I2/and as. 11/-  respectively.   The management thereafter  refused  to make any extra payment to the labourers at the rate of 6 Ps. per seer unless the leaves plucked by them exceeded 24 seers and 22 seers respectively. Held,  that the sole intention of the Government in  issuing the  notification  was  to increase the  basic  wages  while maintaining the same basic work-load or task assigned to the labourers,  so  that  whatever extra work was  done  by  the labourers  in  excess of the existing work-load or  task  of plucking 16 seers and 12 seers of tea leaves by the male and female  labourers respectively, bad still to be paid for  at the rate of 6 Ps. per seer. Quaere:   Whether the claim for the extra wages amounts to a claim  arising out of the payment of less than  the  minimum rates  of  wages  within the meaning of s.  20  (2)  of  the Minimum Wages Act, 1948.  A  writ of certiorari cannot be had as a matter of  course. The  High  Court  is entitled to refuse the writ  if  it  is satisfied that there was no failure of justice.  The Supreme Court declines to interfere, in appeal, with the  discretion of the High Court unless it is satisfied that the justice of the case requires such interference.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 279 and 280 of 1955. Appeal from the Judgment and Order dated July 7 1953, of the Assam High Court in Civil Rules Nos. 147 and 148 of 1952, 47 360 C.   K. Dophtary, Solicitor-General of India, P. K. Goswami, S.  N. Mukherji and B. N. Ghosh, for the appellants in  both appeals. Purshottam Tricumdas and Naunit Lal, for respondent No. 2 in C.A. No. 280/56. Naunit Lal, for respondent No. I in both Appeals. 1956.  December 21.  The Judgment of the Court was delivered by BHAGWATI J.-,These two appeals with certificates under  Art. 133  (1)  (c)  of the Constitution are  directed  against  a judgment of the High Court of Judicature in Assam dismissing the  appellants’ application under Art. 226 challenging  the orders  -of  the  first respondent Shri B.  L.  Sen,  Deputy Commissioner, Sibsagar, whereby he allowed the  applications filed  on behalf of the labourers employed in the  Teok  Tea Estate  and  the Dalim Tea Estate under section  20  of  the Minimum  Wages  Act,  1948 (Act  XI  of  1948),  hereinafter referred to as the Act. On  March 11, 1952, the Government of Assam, in exercise  of the powers conferred by s. 3 read with sub-s. (2) of s. 5 of the Act issued the following notification: " No. GLR. 352/51/56.-In exercise of the powers conferred by section  3  read with sub-section (2) of section  5  of  the Minimum  Wages  Act,  1948 (XI of  1948),  as  amended,  the Governor  of  Assam,  having considered the  advice  of  the committee  appointed under clause (a) of sub-section (1)  of section 5 of the said Act, is pleased to fix minimum  wages, which will come into force with effect from the 30th  March, 1952,  consisting of basic wages and dearness  allowance  in terms  of  clause (1) of sub-section 1 of section 4  of  the said  Act, at the rates as specified in the schedule  hereto annexed payable to employees employed in tea plantations  in the different districts of Assam. 2.   These rates are exclusive of concessions enjoyed by the workers  in  respect  of supplies of  foodstuffs  and  other essential   commodities  and  other  amenities  which   will continue unaffected. -The existing                             361 tasks and hours of work may continue until further orders.                          SCHEDULE. 1.   ORDINARY -UNSKILLED LABOUR Adult  male.  Adult female. (16 years & above) (16  years  & above) Basic      D.A.      Total.   BasicD.A.Total. wage.     wage. (p.d.)    (p.d.)    (p.d.)(p.d.)(p.d.)(p.d.) 2. Rest                Rs.                    Rs. of Assam  As.12/-As.6/-1 /21-As. 11/-As. 5- Valley. By notification No. GLR. 44/51, dated the 16th April,  1952, the  said  Government  introduced the  Minimum  Wages  Rules which, inter alia, provided: "Rule     24.    Number  of  hours  of  work   which   shall constitute     a normal working day.- (1)  The number of hours which shall constitute      normal working day shall be- (a)in the case of an adult, 9 hours; subject to a  maximum

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of 48 hours in a week;  ..................................................." By another notification No. GLR. 352/51 dated May 12,  1952, the  said  Government  explained  that  the  word  "  may  " mentioned  in  the notification dated March 11,  1952,  will have the force of " shall ". The result was that in cl.  (2) of  the  said notification, the last sentence ran  as:  "The existing  tasks  and  hours of  work  shall  continue  until further orders. Prior  to the fixation of the minimum wages  (consisting  of basic  wages  and  dearness  allowance  as  aforesaid,   the labourers  engaged  in  plucking tea leave,%  in  these  tea estates  used to be paid basic wages for male  labourers  at as.  8/- per day for plucking 16 seers of green  leaves  and for  female  labourers at as. 6/- per day  for  plucking  12 seers  of green leaves.  This was the work-load or  task  in respect  of  which-the basic wages of as. 8/-  and  as.  6/- respectively  were  paid to these labourers apart  from  the dearness allowance in addition to such basic wages.  If  the labourers  plucked  larger quantities of green  leaves  they used to be 362 paid  by way of ticca extra wages at the rate of 6  ps.  per seer  in excess of 16 seers and 12 seers  respectively.   It may  be noted that -the payment of basic wages on the  above computation also worked out at the rate of 6 ps. per seer of green leaves plucked by the labourers. Even  after  the fixation of the minimum wages by  the  said notification, the managers of these tea-estates continued to pay to the labourers wages at the rate of 6 ps. per seer  of green leaves plucked by them.  They, however, in view of the fact that as. 12/- per day were fixed as the basic wages for the male labourers and as.  II /- per day as the basic wages for the female labourers, refused to make any extra  payment to  them  on the basis of 6 ps. per seer  unless  the  green leaves  plucked  by  them exceeded 24  seers  and  22  seers respectively, thus maintaining their old standard of payment on  the  basis of 6 ps. per seer.  The  labourers  contended that the existing work-load or task at the date of the  said notification  was 16 seers for male labourers and  12  seers for  female labourers and they were entitled to  such  extra payment at the rate of 6 ps. per seer for leaves plucked  by them  in excess of -the 16 seers and 12 seers  respectively. There  was a difference thus in payment, of as. 4/- per  day in  the  case of male labourers and as. 51- per day  in  the case of female labourers and they claimed that the  managers of  the tea estates should pay them the basic wages  of  as. 12/per day and as.  I I/- per day respectively for the work- load or task of 16 seers for male labourers and 12 seers for female  labourers and extra wages at the rate of 6  ps.  per seer   of  leaves  plucked  by  them  in  excess  of   those quantities. This   claim  of  theirs  was  the  subject-matter  of   the applications  filed  on  their  behalf  before  the   Deputy Commissioner,  Sibsagar,  under s. 20(2) of  the  Act.   The applicants  asked  for  directions under  a.  20(3)  to  the managers,  of the tea estates for payment of the  difference between  the minimum wages fixed by the Government  and  the wages  actually paid to them from March 30, 1952, which  was the  date from which the notification came into force.   The managers of the                             363 estates contested these applications mainly on two  grounds; viz., (1) that the applications were not maintainable  under s.  20 of the Act, and (2) that there was no fixed  workload

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or task in respect of plucking for earning daily basic wages before  the introduction of the minimum wages.   The  Deputy Commissioner,  Sibsagar,  who was  the  authority  appointed under the Act to hear the claims arising out of the  payment of less than the minimum rates of wages to these  labourers, entertained  the applications, recorded evidence  and  heard arguments addressed to him by both the parties. As  regards  the  first  objection, he  held  that,  if  the applicants’  version  was  true there was a  clear  case  of payment  of  less  than  the  minimum  wages  fixed  by  the Government  and the applications were maintainable under  s. 20 of the Act.  As regards the second objection, he came  to the  conclusion  on the evidence recorded  before  him  that there was a work-load or task of 16 seers for male labourers and  12 seers for female labourers in respect of  the  daily basic  wages of as. 8/- and as. 6/- respectively  earned  by them  before the fixation of the minimum wages by  the  said notification,  that such work-load or task was the basis  of the fixation of the minimum wages consisting, inter alia, of the  basic wages of as. 12/- per day for male labourers  and as.   II/-  per  day  for  female  labourers  and  that  the labourers  were,  therefore, entitled to extra  payment  for green  leaves plucked by them in excess of 16 seers  and  12 seers  respectively  at  the rate of 6  ps.  per  seer.   He accordingly ordered that the managers must pay the labourers engaged  in plucking tea leaves the minimum basic  wages  at the  rate of as. 12/- per day to the male labourers  for  16 seers  of  green leaves and as. 11/- per day to  the  female labourers  for 12 seers of green leaves and extra  wages  at the  rate  of  6 ps. per seer for green  leaves  plucked  in excess of those quantities. The  managers  of the estates thereupon  filed  applications under Art. 226 of the Constitution before the High Court  of Judicature in Assam raising the -same contentions which  had been  negatived by the Deputy Commissioner,  Sibsagar.   The High Court dismissed 364 these  applications and granted the certificates under  Art. 133(1)(c) and that is how these appeals come before us. It  is  urged in the first instance  that  the  notification dated March 11, 1952, fixed only I a minimum time rate’  and no more.  Under s. 3 (2) of the Act it was competent to  the Government to fix (a) a minimum rate of wages for time  work (called " a minimum time rate"), (b) a minimum rate of wages for  piece work (called " a minimum piece rate ") or  (c)  a minimum rate to be applied in the case of employees employed on piece work for the purpose of securing to such, employees a  minimum  rate of wages on a time work basis (called  "  a guaranteed time rate-") and what was done by the  Government was to fix " a minimum time rate" within the meaning of s. 3 (2)  (a)  so that the labourers were to be  paid  the  basic wages mentioned in the Schedule regardless of their out-turn of work.  If this contention is correct, the labourers would not  be  entitled to any extra wages for the  quantities  of green leaves plucked by them in excess of the 16 seers or 12 seers per day which was alleged to be the existing work-load or task at the date of the notification.  It is, therefore’, urged that prior to such fixation of minimum wages there was no  work-load or task for the labourers engaged in  plucking tea leaves.  This contention is obviously unsound.  Both the Deputy Commissioner, Sibsagar, and the High Court found as a fact  that  before  the fixation of the  minimum  ’wages  as above,  there was a basic work-load or task of 16  seers  of leaves for the male labourers and 12 seers of leaves for the female  labourers.  This was proved by the evidence  of  the

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Hazira Moharers of these estates and this was recognized  by the  Government  itself when it stated in  the  notification that  " the existing tasks and hours of work shall  continue until further orders." If the minimum basic wages were fixed irrespective  of  existing work-load or task  and  what  was fixed  was  "  a minimum time rate "  as  contended  by  the appellants there was no need whatever to mention this in the notification.   The direction that the existing workload  or task was to continue until further orders on the                             365 contrary goes to show that the basic wages mentioned in  the Schedule  were correlated to the existing workload  or  task and  as.  12/- for the male labourers and as. 11/-  for  the female labourers were fixed in regard to the existing  work- load or task of 16 seers of tea leaves to be plucked by  the male  labourers and 12 seers of tea leaves to be plucked  by the female labourers. It is argued that the continuance of the existing  work-load or  task which was thus provided for had no relation to  the basic  wages  which  were  fixed for  the  male  and  female labourers respectively but was only intended to prevent  the employers  from  increasing the existing work-load  or  task with  a  view to make up for the increase  in  basic  wages. This argument, however, does not take count of the fact that there  was existing at the date of the notification a  work- load or task which was the basis of the payments used to  be made  to the labourers, the basic wages paid to  them  being calculated  at  the  rate of 6 ps. per seer  of  tea  leaves plucked  by  them.  The labourers were thus being  paid  the basic  wages  of as. 8/- for male labourers  and  as.  6/for female  labourers for the work-load or task of  plucking  16 seers  and 12 seers of tea leaves respectively and the  sole intention of the Government in issuing the notification  was to  increase these basic wages of as. 8/and as. 6/-  to  as. 12/-  and as.  II/- respectively while maintaining the  same basic  work-load  or task assigned to the  male  and  female labourers.   If  the intention was not  to  correlate  these basic  wages  to the basic work-load or task  which  already existed  and if the same state of affairs was  to  continue, viz., that the labourers would continue to be paid the basic wages  on the computation of 6 ps. per seer of green  leaves plucked  by them, there was no sense whatever in  increasing the basic wages from as. 8/- to as. 12/- for male  labourers and  from as. 6/- to as.  II/- for female labourers  as  was sought  to be done by issuing the notification in  question. The  acceptance  of the contention of the  appellants  would mean  that no advantage whatever was sought to be  conferred by  the  Government  on the labourers  engaged  in  plucking leaves in these tea estates which intention can scarcely be 366 attributed to the Government.  We are, therefore, of opinion that  what was fixed by the notification was not merely "  a minimum time rate" irrespective of the existing work-load or task which used to be performed by the labourers- but was a’ minimum  wage  which,  though  fixed  for  time  work,   was necessarily  correlated to the work-load or task then  being performed by these labourers so that whatever extra work was done by the labourers in excess of the existing work-load or task of plucking 16 seers of tea leaves in the case of  male labourers  and 12 seers of tea leaves in the case of  female labourers had to be paid for in accordance with the practice then prevailing, whether it was based on agreement or  ticca or  custom, at the rate of 6 ps. per seer.  The  conclusions reached  in  this behalf both by  the  Deputy  Commissioner, Sibsagar,  and  the High Court are, therefore,  correct  and

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cannot be challenged. The appellants, however, contend that this is not a case  of payment  of  less than the minimum rates of  wages  and  the claims, if any, of the labourers do not fall within s. 20 of the Act.  The tea estates in question have never refused  to pay and are in fact paying to the labourers the basic  wages of  as. 12/- per day for male labourers and as.  II  /-  per day  for female labourers and the grievance, if any, of  the labourers  is that they have not been paid the  extra  wages calculated  on  the basis of 6 ps. per seer for  tea  leaves plucked by them in excess of the basic work-load or task  of 16  seers  for  male  labourers  and  12  seers  for  female labourers.  This claim of the labourers, therefore,  amounts to a claim for extra wages over and above the basic wages of as. 12/- and as.  II/- per day respectively which are  being paid  to them and, therefore, is not a claim arising out  of the  payment of less than the minimum rates of wages  within the  meaning  of  s.  20(1)  of  the  Act  and  the   Deputy Commissioner,  Sibsagar,  had no jurisdiction  to  entertain such claim. Section 20 so far as is material for our purposes provides: " 20.  Claims.- (1)The  appropriate Government may, by notification  in  the official Gazette, appoint any Commissioner                             367 for Workmen’s Compensation or other officer with  experience as  a Judge of a Civil Court or as a stipendiary  Magistrate to  be  the Authority to hear and decide for  any  specified area  all  claims arising out of payment of  less  than  the minimum  rates  of wages to employees employed or  paid  in. that area. (2)Where an -employee is paid less than the minimum rates of wages  fixed  for  his class of work  under  this  Act,  the employee himself, or any legal practitioner or any  official of a registered trade union authorised in writing to act  on his behalf, or any Inspector, or any person acting with  the permission of the Authority appointed under sub-section (1), may  apply  to  such Authority for a  direction  under  sub. section (3):............... (3)When   any   application   under   sub-section   (2)   is entertained, the Authority shall hear the applicant and  the employer  or  give them an opportunity of being  heard,  and after  such  further  enquiry  if any  as  it  may  consider necessary,  may, without prejudice to any other  penalty  to which the employer may be liable under this Act, direct  the payment  to the employee of the amount by which the  minimum wages  payable  to  him exceed the  amount  actually  paid,, together  with  the  payment of  such  compensation  as  the Authority may think fit, not exceeding ten times the  amount of such excess and the Authority may direct payment of  such compensation  in  cases  where the excess- is  paid  by  the employer  to  the  employee  before  the  disposal  of   the application. (6)  Every  direction of the Authority  under  this  section shall be final. It -is argued that the authority appointed under s. 20(1) of the Act is invested with the powers of hearing and  deciding claims  arising out of the payment of less than the  minimum rates  of wages and is authorised to hear the applicant  and the  employer  or give them an opportunity of  being  heard, and,  after  such  further  enquiry,  as  it  may   consider necessary,  to  give directions under s. 20(3)  of  the  Act which directions are final and not subject to any appeal or 368 revision by any higher authority.  Such drastic powers could

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not  have  been  meant  to  be  exercised  when  there   are complicated questions of law or fact but could be  exercised only  in cases where the, quantum of minimum wages fixed  by the  notification  in question could be  determined  by  the authority  on a plain reading of the terms,  thereof.   Then and  -then  only would the authority  have  jurisdiction  to entertain  such  claims and give the  necessary  direction,% having  the  attribute of finality.  In  the  instant  cases before  us,  not only did the  matters  involve  complicated questions  of fact which required recording of  evidence  by the authority but they also involved the construction of the notification which was by no means felicitously worded.  The existing  tasks which were to continue until further  orders were not at all patent and if the determination thereof  had to be made by the authority appointed under s. 20(1) of  the Act,  it  would involve, in cases of dispute,  recording  of considerable evidence and an adjudication of the same  after a  consideration  of  the  arguments  advanced  before   the authority by both the parties. There is in the instant cases moreover a further  difficulty and  it is that there are two rival contentions  which  can, with  equal force, be urged by the respective parties.   The appellants contend that they have all throughout been paying to  the  laborers,  after the date of  the  notification  in question,  basic wages at the rate of as. 12/- per  day  for male  labourers  and  as.  1 1 /- per  day  for  the  female labourers  and there is no instance which has been cited  on behalf  of  the respondents where, anything  less  then  the minimum  basic wages thus fixed by the Government  has  ever been  paid.  The claim of the labourers comes to  this  that they  have not been paid the extra wages for plucking  green leaves in excess of the basic work-load or task of 16  seers and  12  seers  respectively.  Such claim  for  extra  wages certainly  does  not amount to a claim arising  out  of  the payment of less than the minimum rates of wages.  It is,  on the other hand, contended on behalf of the respondents  that the  basic wages of as. 12/. per day for male labourers  and as.  II/- per                             369 day  for female labourers fixed under the  notification  are correlated  -to the existing work-load, or task of  plucking green leaves weighing 16 Beers and 12 seers respectively and if they are entitled to the payment of these basic wages  on their  putting forward that much quantity of work, the  non- payment by the managers.of these tea’ estates to them of any extra  wages on the computation of 6 ps. per extra seer  un- less  they  plucked 24 seers and 22 seers  of  green  leaves respectively  is  tantamount to nonpayment of  the;  minimum basic  wages of as. 12/- and as. 11/- respectively as  fixed in the notification. "We do not, propose to decide this question of  jurisdiction as  in  the  instant  cases we  have,  in  addition  to  the determination  of  the Deputy  Commissioner,  Sibsagar,  the adjudication of the main disputes between the parties by the High  Court itself.  I Whatever infirmities  might  possibly have   attached   to  the  orders  passed  by   the   Deputy Commissioner,   Sibsagar,   on   the  score   of   want   of jurisdiction, we feel that having regard to the circumstance that  the matters have been pending since  September,  1952, right up to the end of the year 1956, no useful purpose will be  served by our interfering at this stage, as  the  Deputy Commissioner, Sibsagar, and the High Court both came to  the same  conclusion, a conclusion which we also  have  endorsed above, that the labourers are entitled to be paid the  basic wages of as. 12/-per day,for male labourers and as. 11/- per

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day  for  female  labourers for the work.:load  or  task  of plucking 16 seers and 12 seers of green leaves  respectively and--  they are -entitled to extra wages for every  seer  of green  leaves  plucked  by.  them I  over  and  above  these quantities  of 16 seers and 12 ,seers respectively, at  the. computation of 6 Ps. per seer. There  are  moreover  special  reasons  why  we  should  not interfere  with  the  orders  of  the  Deputy  Commissioner, Sibsagar,  in these appeals.  The matters do not come to  us by  way  of appeal directly from the orders  of  the  Deputy Commissioner, Sibsagar.  They were the subject, in the first instance, of proceedings under Art. 226 of the  Constitution in the High Court 370 of  Assam.   Proceedings  by way of certiorari  are  not  of course  ".  (Vide  Halsbury’s  Laws  of  England’,  Hailsham Edition, Vol. 9, para 1480 and 1481, pp. 877-878).  The High Court  of Assam had the power to refuse the writs if it  was satisfied that there was no failure of justice, and in these appeals which are directed, against the orders of the  High. -Court  in applications under Art. 226, we could  refuse  to interfere  unless we are satisfied that the justice of  the, case  requires it.  But we are not so satisfied. We  are  of opinion  that, having regard to the merits which  have  been concurrently foundint favour of the respondents both by  the De-Duty  Commissioner,,  Sibsagar, and the High  (Court,  we should decline to interfere. This being the point of substance which has been decided  in favour  of the respondents, we are of the opinion  that  the appeals are liable to be dismissed.  We accordingly  dismiss them but having regard to the particular circumstances which we  have adverted to before, we order that each  party  will bear and pay its own costs of these appeals. Appeals dismissed.