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PETITIONER: Y.   A. MAMARDE AND ORS.

       Vs.

RESPONDENT: AUTHORITY UNDER THE MINIMUM WAGES ACT(SMALL CAUSES COURT) NA

DATE OF JUDGMENT12/04/1972

BENCH: DUA, I.D. BENCH: DUA, I.D. VAIDYIALINGAM, C.A. MITTER, G.K.

CITATION:  1972 AIR 1721            1973 SCR  (1) 161  1972 SCC  (2) 108

ACT: Minimum  Wages Act, 1948-S. 20-Whether the workmen  entitled to  double  the wages with regard to overtime work  done  by Them on weekly rest days under Rule, 25 of the M.P.  Minimum Wages Rules, 1951.

HEADNOTE: Nine employees of the octroi department, 13 employees of the water  works.  department  and  a  time  keeper  of   Nagpur Corporation applied under s. 20 of the Minimum Wages Act  to the  Small Causes Court of Nagpur for overtime wages at  the rate  of double the wages for the period they worked  beyond prescribed hours and holidays. The  authority raised several issues but they  were  decided against   the   applicants  and  their   applications   were dismissed.    Being  aggrieved  the  said   decision,   four applications were presented before the High Court under Art. 227  of the Constitution and the High Court also upheld  the view of the authority. It  was  contended by the appellants that under Rule  25  of M.P.  Minimum  Wages Rules, 1,1951, they  were  entitled  to overtime wages at double the ordinary rate of wages for  the period  they  worked beyond prescribed hours  and  holidays. For their claims they relied on 2 minimum wages notification one dated 21-2-51 and the other dated 23-2-56. On behalf of the appellants the only point canvassed  before this  Court was the rejection of their claim with regard  to overtime  work  done by them and work done  on  weekly  rest days. The  respondent  contended  that as  the  employees  of  the Corporation  were paid higher wages than those  fixed  under the  Act as minimum wages, the Act did not operate, and  the employer  could  not  be compelled  to  pay  higher  wages.. Secondly,  the  second notification did  not  supersede  the first notification-which only applied to unskilled labour as to, cover all employees skilled or unskilled.  Further,  the provision  inquiring payment at double the ordinary rate  of wages contained in Rule 25 must be read as the ordinary rate of minimum wages fixed.  Allowing the appeal, HELD : (i) Rule 25 contemplates overtime work at double  the rate of wages, which the worker actually receives, including

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the  casual requisite and other advantages mentioned in  the explanation.  By using the phrase "double the ordinary  rate of  wages",  the  rule making authority  intended  that  the worker  should be the recipient of double  the  remuneration which  he, in fact, ordinarily receives, and not double  the rate  of minimum wages fixed for him under the Act.  Had  it been intended to provide for merely double the minimum  rate of  wages  fixed under the Act, the  rule  making  authority could have so expressed its intention in clear and  explicit words.   The  word "Ordinary" used in rule 25  reflects  the actuality rather than the workers’ minimum entitlement under the Act.  169A-D] (ii) The  second  notification  was not  applicable  to  all categories of labour as wrongly held by the High Court.  The second notification has to be read in the background of  the first notification with the result that 162 the later notification must also to,-be held to be  confined to  unskilled labour in so far as it varies revises some  of the   rates  fixed  in  the  earlier  notification   without extending  its operational boundaries by deleting  the  word "unskilled" from the explanation "unskilled labour". [170G] Union  of India v B. D. Rathi, A,.  I. R . 1963,  Bom,.  54, referred to and distinguished.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: C.A. No. 1704  and  1937  of 1967. Appeals  by special leave from the judgment and order  dated ,August  19, 1966 of the Bombay High Court, Nagpur Bench  in Special  Civil  Applications  No.  853 and  941  of   1965 respectively. H.   W. Dhabe and A. G. Ratnaparkhi, for the appellants  (in both the appeals). W.   S.  Barlingay and P. C. Bhartari, for respondent No.  2 (in both the appeals). The Judgment of the Court was delivered by- Dua, J.-These two appeals by special leave (C.  As Nos. 1704 and  1937 of 1967) are directed against the, judgment  of  a Division  Bench  of the Bombay High Court dated  August  19, 1966  ,dismissing  four applications under Art. 227  of  the Constitution  arising  out of orders made by  the  Authority under  the Minimum Wages Act 11 of 1948 (hereinafter  called the  Act)  in respect of claims made by employees  of-  ’the ’City   of  Nagpur  Corporation’  (hereinafter  called   the Corporation)   working   in  various  Departments   of   the Corporation. On  July  13, 1964 Sitaram Madhorao, Chaukidar and  9  other employees of the Octroi Department of the Corporation  filed an application under s. 20 of the Act in the Court of  Small Causes  at Nagpur, which was the Authority. appointed  under the .Act.  The application was presented through the General Secretary  of the Nagpur Corporation Employees’  Association which  was  a registered trade union.   The  application  is brief and, therefore, we consider it proper to reproduce its material parts in its own words               "The  applicants above named beg to submit  as               under               (1)   That   the  applicants   are   employees               working   in  non-applicant  No.   1,   Nagpur               Corporation  in  Department of School  &  ors.               The Minimum wages notification has been issued               in  respect of this industry by Government  on

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             21-2-1951  and the minimum rates of wages  are               fixed 1-12 per day for eight hours.               (2)   That  the applicants have not been  paid               overtime  wages, for this period  though  they               are  entitled-to get double the wages as               they  are required to work  beyond  prescribed               hours and holidays.                163               (3)   That  the applicants have been  required               to  work overtime for 30, 65, 8 and  51  hours               every week during the period from 1-1-1964  to               30-6-1964  and  total claim are shown  in  the               annexure.  The  total amount- claimed  is  Rs.               8670.18.               (4)   That  the applicants estimate the  value               of the relief sought by them of the sum of Rs.               8670.18.               (5)   Applicants pray that a direction may  be               issued  under section 3 of the Section 29  for               (a)  payment  of the  difference  between  the               wages due according to mini-mum rate of  wages               fixed  by job and wages actually  paid  amount               overtime wages Rs. 8670.18.               (B)   Compensation amounts to Rs. 100.00.               (6)   That  demand  has  been  made  for  this               overseer claim from 1-1-1964 to 30-6-1964." Earlier  on June 26, 1964 T. R. Khante, Time-keeper  and  13 other  employees  of  the  Water  Works  Department  of  the Corporation  had  similarly applied under s. 20 of  the  Act through  B.  M.  Mahale, General  Secretary  of  the  Nagpur Corporation Employees’ Association.  This application  reads :               "The applicants above named bee., to submit as               under               (1)   That   the  applicants   are   employees               working   in  non-applicant  No.   1,   Nagpur               Corporation in Department of Water Works.  The               minimum wages notification has been issued  in               respect  of  this industry  by  Government  on               21-2-1951  and the minimum rates of wages  are               fixed 1-12 per day for eight hours.               (2)   That  the applicants have not been  paid               overtime wages for this period though they are               entitled  to to get double the wages  as  they               are  required to work beyond prescribed  hours               and holidays.               (3)   That  the applicants have been  required               to work overtime for 8 hours every week during               the  period  from 1-8-63 to  31-1-64  and  the               total  claim are shown in the  annexure.   The               total amount claimed is Rs. 1987.48.               (4)   That  the applicants estimate the  value               of the relief sought by them of the sum of Rs.               1047.48.               (5)   Applicants  pray that direction  may  be               issued under section (3) of the section 29 for               (a) payment of               164               the difference between the wages due according               to the minimum rate of wages fixed by the  job               and wages actually paid amount overtime  wages               Rs. 1047.48.               (6)   That compensation amounts to Rs. 140.00.               (7)   That demand has been made for this claim               from 1-8-63 to 31-8-64."

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On  November 10, 1964 some preliminary objections raised  by the  Corporation  were disallowed by the Authority  and  the applications were directed to be tried on the merits. On  February  17, 1965 the Authority made an  order  on  the following four issues which arose out of the claims made  by the employees :               "1. Whether the applicants employed as a time-               keeper,  wireman  and lineman  belong  to  the               category of unskilled workers ?               2.    Whether the applicants who belong to the               category of skilled or semi-skilled labour can               apply  under section 20 of the  Minimum  Wages               Act ?               3.    Whether  the applicants have  worked  on               weekly days of rest (Sundays) ?               (a)   If  so,  whether they  are  entitled  to               wages for work done on the weekly days of rest               ?               4.    Whether the Chowkidars and Motor-drivers               have  worked in excess of the number of  hours               constituting a normal working day ?               (a)   If  so, to what wages for overtime  work               are they entitled?" Under  issue  no.  1 the wireman was held to  be  a  skilled worker  and  the  time-keeper  and  lineman,   semi-skilled, disagreeing with their contentions that they were  unskilled workers.   Under  issue no. 2 the Authority  held  that  the second  notification of 1956 only provided for  the  minimum rates  of wages of unskilled labour including casual  labour in.  the employment of the City of Nagpur Corporation.   The applicants mentioned in issue no. 2 who had worked on weekly days of rest i.e., Sundays were accordingly held disentitled to claim wages for work done on those days in the absence of any  provision made by the State Government under s. 13  (1) (c) of the Act.  Rule 25 of the M.P. Minimum Wages Rules was held  not to provide for payment for work on a day  of  rest envisaged  by s. 13 (1 ) (c) of the Act.  Though in view  of this decision under issue no. 2 issue no. 3 was held not  to survive, still a decision on issue no. 3 was also  recorded, the details of which,  165 are not necessary to mention.  Under issue no. 3 (a), in the absence of a provision by the State Government under s. 1  3 (1) (c) of the .Act for payment for work done on weekly days of rest the applicants were held disentiled to claim payment under  the Act.  Issue No. 4 and 4(a) were  decided  against the chowkidars and the motor driver concerned.  All the four applications were accordingly dismissed with costs. Feeling aggrieved by the order of the Authority four special civil applications were presented in the Bombay High  Court, Nagpur Bench, under Art. 227 of the Constitution.  The  High Court  disagreed  with  the view of  the  Authority  on  the interpretation of the second notification and held that  the second notification was intended to, apply to all  employees and  was not confined only to unskilled workmen as  was  the case with the notification of 1951.  It, however, upheld the view   of  the  Authority  that  ordinary  rate   of   wages contemplated by r. 25 means ordinary minimum rate of  wages, considering  this  view to be in accordance  with  the  view taken  by the Bombay High Court in the Union of India v.  B. D. Rathi(1). On  behalf  of the appellants the  only  point.canvassed  in these two appeals arises out of the rejection of their claim with  regard to overtime work done by them and work done  by them  on  weekly rest days.  On behalf of  the  respondents,

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however,  it was contended that the High Court was wrong  in the construction placed by it, on the notification of 1956. Minimum  Wages  were fixed by the Government by means  of  a notification  under  s. 5 of the Act on February  21,  1951. According to this notification the Government fixed "minimum rates of wages for unskilled labour including casual  labour in  respect  of  scheduled  employments"  mentioned  in  the schedule  in that notification.  The item which concerns  us is  item  No. 2 which reads as "employment under  any  Local Authority".  Various rates were fixed for certain categories of employees against this item.  This notification so far as relevant reads : "Nagpur, the 21st February, 1951. No.  848-1758-XXIII  of  1950-In  exercise  of  the   powers conferred  by sub-section (2) of s. 5 of the  Minimum  Wages Act  1948 (XI of 1948) the State Government are  pleased  to fix  the  following  minimum rates of  wages  for  unskilled labour  including casual labour in respect of the  scheduled employments  as  mentioned in the schedule below,  the  same having been previously published as inquired by clause  (b) of sub-section (1) of (1)  A.I.R. 1963 Bom. 54. 166 the said section and further to direct that they shall come, into force at once:               Schedule of the Minimum rates of Wages               Serial No. and name  of Schedule employment :               Minimum  rates of wages for  unskilled  labour               (including casual labour)               2.    Employment  under any local authority               Re. 12/- per day for adult female labour  at               all other centres.               Re. 1 /- Per day for adult male at Nagpur town               and in Bhandara and Balaghat Districts.               Re. /14/- in Wardha, Buildara, Akola,  Nimar,               Hoshangabad  and Nagpur  districts  (including               Nagpur town).               Re. /13/- in Jabalpur, Katni, and Sagar towns               and  places  within 10 miles radius  of  these               towns.’  Re. /12/-  in  Amravati,  Yeotamal,               Betul and chanda Districts.               In this notification minimum wages in  respect               of  some other categories of employees.  which               do not concern us were also fixed.               On February 23, 1956 the Government issued the               following notification fixing, revised minimum               rates of wages in supersession of those  fixed               under the notification of 1951 :               "No. 566-451-XXIII.-In exercise of the  powers               conferred  by clause (b) of subsection (1)  of               section 3 read with sub-section (2) of section               10  of  the Minimum Wages Act,  1948  (?(I  of               1948)   and  after  consulting  the   Advisory               Committee  and the Advisory Board as  required               by  sub-section (1) of section 5 thereof,  the               State  Government  are pleased to  revise  the               minimum  rates  of  wages in  respect  of  the               scheduled employment as mentioned in  schedule               below  in  supersession of those  fixed  under               this  department  notification  no.  484-1758-               XXIII  of 1950 dated the 21st  February,  1951               and  to further direct that the minimum  rates               of  wages so revised shall come into force  at               once                                  SCHEDULE

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             Name  (if scheduled employment:   (Employment               under any local authority).               Minimum rates of wages : Re. 1/2/- per day for               adult  male  and Rs. /12/- for  adult  female               labour  at  Nagpur, Jabalpur and  Akola.   Re.               -/14/-  per day for adult male and  Re. /9/-               for adult female labour in all other centres.                167               The  above  rates are  inclusive  of  dearness               allowance  or  compensatory  cost  of   living               allowance  and  are subject  to  reduction  on               account of concessions in respect of  supplies               of  essential commodities at concession  rates               supplied  by the employer when  so  authorised               under section II of the said Act." As  observed  earlier, the respondents raised  the  question that.  second  notification did not  supersede  the  earlier notification  as  to take within its fold all  employees  as held  by  the  High,  Court but  it  was  only  confined  to unskilled  labour including casual labour the minimum  rates of   whose   wages  were  determined   under   the   earlier notification of 1951.  To this aspect we will revert later. The point strenuously canvassed on behalf of the appellants. relates to the construction to be placed on r. 25 of the  M. P.  Minimum Wages Rules, 1951 made under s. 30 of  the  Act. That, rule provides for extra wages for overtime and reads :               "25.  Extra wages for overtime : When a worker               works  in  an employment for  more  than  nine               hours  on any day or for more than  fifty-four               hours  in  an week, he: shall, in  respect  of               overtime work, be entitled to wages-               (a)   in    the   case   of   employment    in               agriculture,  at  one  and  a  half  time  the               ordinary rate of wages-,,               (b)   in  the  case  of  any  other  scheduled               employment,  at  double the ordinary  rate  of               wages.               Explanation.-The expression ’ordinary rate  of               wages’   means  the  basic  wage   plus   such               allowances  including the cash  equivalent  of               the    advantages   accruing    through    the               concessional  sale to the person  employed  of               food-grains  and other articles as the  person               employed is for the time being entitled to but               does not include bonus.               (2)   A  resister  showing  overtime  payments               shall be kept in Form IV.               (3)   Nothing in this rule shall be deemed  to               affect  the provisions of the  Factories  Act,               1948." It  is  common ground between the parties that’  Sunday  has been  declared  to be a day of rest and the  normal  working hours  per  day  are  9 hours a day  or  54  hours  a  week. According to Shri Dhabe the appellants’ learned counsel  the words "at double the ordinary rate of wages" used in cl. (b) of  r. 25 mean double the rate of wages which  are  actually being  paid  to the employees concerned and not  double  the rate of wages fixed under the Act as minimum wages,  whereas according   to  Dr.  Barlingay,  learned  counsel  for   the respondent, the Act is only concerned with providing 168 for  minimum  wages and if an employee is being  paid  more, than minimum wages so provided, the Act does not operate and the  employer cannot be compelled to pay higher wages.   The em-ployees  of the corporation are already being  paid  much

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higher wages than those fixed under the Act as minimum wages and,  therefore,  so contended Dr. Barlingay,  there  is  no legal  obligation on the employer to pay higher wages.   The provision  requiring payment at double the ordinary rate  of wages   contained   in  r.  25,  must,  according   to   the respondent’s  argument,  be read as "the  ordinary  rate  of minimum wages fixed." Let  us  first deal with this question.  The Act  which  was enacted, in 1948 has its roots in the recommendation adopted by the International Labour Conference in 1928.  The  object of  the  Act  as stated in the preamble is  to  provide  for fixing  minimum  rates of wages in certain  employments  and this   seems   to  us  to  be,  clearly   directed   against exploitation  of  the  ignorant,  less  organised  and  less privileged  members of the society by the capitalist  class. This  anxiety on the part of the society for  improving  the general  economic  condition of some of  its  less  favoured members  appears to be in supersession of the old  principle of absolute freedom of ’contract and the doctrine of laissez faire  and  in recognition of the new principles  of  social welfare  and  common good.  Prior to our  Constitution  this principle   was  advocated  by  the  movement  for   liberal employment  in  civilised countries and the Act which  is  a pre-Constitution measure was the offspring of that movement. Under  our present Constitution the State is  now  expressly directed  to  endeavour to secure to  all  workers  (whether agricultural,   industrial  or  otherwise)  not  only   bare physical  subsistence  but a living wage and  conditions  of work  ensuring a decent standard of life and full  enjoyment of leisure.  This Directive Principle of State Policy  being conducive  to  the  general  interest  of  the  public  and, therefore, to the healthy progress of the nation as a whole, merely  lays  down the foundation  for  appropriate,  social structure  in  which  the  labour will  find  its  place  of dignity, legitimately due to it in lieu of its  contribution to  the progress of national economic prosperity.   The  Act has  since its enactment been amended on  several  occasions apparently  to make it more and more effective in  achieving its  object which has since secured more firm  support  from the Constitution.  The present rules under s. 30, it may  be pointed  out, were made in October, 1950 when the State  was under  a  duty to apply the Directive Principles  in  making laws.   No  doubt the Act, according to  its  preamble,  was enacted  to provide for fixing minimum rates of  wages,  but that  does not necessarily mean that the language of  r.  25 should  not  be construed according to its  ordinary,  plain meaning,  provided  of  course,  such  construction  is  not inconsistent with the provisions of the Act and there is  no other   compelling   reason   for   adopting   a   different construction.   A preamble though a key to open the mind  of the Legislature, cannot be  169 used  to  control  or qualify the  precise  and  unambiguous language  of the enactment.  It is only in case of doubt  or ambiguity  that  recourse may be had to  the,  preamble  to, ascertain the reason for the enactment in order to discover the  true  legislative  intendment.   By  using  the  phrase "double   the  ordinary  rate  of  wages"  the   rule-making authority  seems  to  us to have intended  that  the  worker should be the recipient of double the remuneration which he, in  fact,  ordinarily receives and not double  the  rate  of minimum  wages  fixed for him under the Act.   Had  it  been intended  to provide for merely double the minimum  rate  of wages  fixed  under the Act the rulemaking  authority  could have so expressed its intention in clear and explicit  words

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like "double the minimum rate of wages fixed under the Act". This  intendment  would certainly have been  stated  in  the explanation  added  to r. 25 (1 ) in  which  the  expression "ordinary  rate  of  wages" has  been  explained.  The  word "ordinary" used in r. 25 reflects the actuality rather  than the  worker’s minimum entitlement under the Act.  To  accept Dr.   Barlingay’s  suggestion  would  virtually  amount   to recasting  this  phrase  in  r. 25  for  which  we  find  no justification.   This rule calls for practical  construction which should. ensure to the worker an actual increase in the wages which come into his hands for his use and not increase calculated  in  terms  of the amount assured  to  him  as  a minimum wage under the Act.  The interpretation suggested on behalf of the respondents would have the effect of depriving most  of the workers who are actually getting more than  the minimum wages fixed under the Act of the full benefit of the plain  language  of  r. 25 and in  case  those  workers  are actually  getting more than or equal to double  the  minimum wages  fixed, this provision would be of no benefit at  all. This  construction not only creates a mere illusory  benefit but  would  also deprive the workers of  all  inducement  to willingly  undertake overtime work with the result  that  it would to that extent fail to advance and promote the,  cause of increased production.  We are, therefore, clearly of  the view  that r. 25 contemplates for overtime work  double  the rate of wages which the worker actually receives,  including the casual requisites and other advantages mentioned in  the explanation.   This rate, in our opinion, is intended to  be the  minimum  rate for wages for overtime work.   The  extra strain  on the health of the worker for doing overtime  work may  well  have weighed with the rule  making  authority  to assure  to the worker as minimum wages double  the  ordinary wage received by him so as to enable him to maintain  proper standard  of  health  and  stamina.   Nothing  rational   or convincing was said at the bar why fixing the minimum  wages for  overtime  work at double the rate  of  wages  actually, received  by the workmen should be considered to be  outside the  purpose  and object of the Act.  Keeping  in  view  the overall  purpose  and  object  of the  Act  and  viewing  it harmoniously   with   the  general  scheme   of   industrial legislation  in  the  country  in  the  background.  of  the Directive Principles contained in our. -1208SupCI/72 170 Constitution  the minimum rates of wages for  overtime  work need  not  as  a matter of law be  confined  to  double  the minmium  wages fixed but may justly be fixed at  double  the wages  ordinarily received by that workmen as a  fact.   The Bombay High Court has no doubt held in Union of India v.  B. D.  Rathi(1) that "or dinary rate of wages" in r.  25  means the  minimum rate for normal work fixed under the Act.   The learned  Judges sought support for this view from S.  14  of the  Act  and  r.  5  of  the  Railway  Servants  (Hours  of Employment)  Rules, 1951.  The workers there were  employees of  the Central Railway.  With all respect we are unable  to agree  with the approach of the Bombay High Court.   Section 14 of the Act merely lays down that when the employee, whose minimum rate of wages is fixed by a prescribed wage  period, works  in excess of that period the employer shall  pay  him for  the  period so worked in excess at  the  overtime  rate fixed under the Act.  This section does not militate against the view taken by us.  Nor does a provision like r. 5 of the Railway Rules which merely provides for 54 hours  employment in  a week on the average in any month go against our  view. The  question is not so much of minimum rate  as  contrasted with the contract rate of wages as it is of how much  actual

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benefit in the form of receipt of wages has been intended to be  assured to the workman for doing overtime work so as  to provide adequate inducement to them willingly to do overtime work  for increasing production in a peaceful atmosphere  in the  industry.  The problem demands a liberal  and  rational approach  rather than a doctrinaire or technical  legalistic approach.   The  contract  rate is  not being  touched  by holding  that  r. 25 contemplates double the rate  of  wages which  actually come into the workman’s hands any more  than it is touched by fixing the minimum rate of wages under  ss. 3,  4  and 5 of the Act.  The decision of  the  Mysore  High Court  in  Municipal Borough, BiJapur v. Gundawan  (M.N.)  & ors.(2)  and  of the Madras High Court in  Chairman  of  the Madras  Port Trust v. Claims Authority & ors. (3) also  take the  same view as the Bombay High Court does.  We need  not, therefore, deal with them separately. Coming   now   to  the  notifications,  in  our   view   the notification  dated February 23, 1956 has to be read in  the background of the notification dated February 21, 1951  with the result that the later notification must also be held  to be  confined to unskilled labour.  It is no doubt true  that the  notification of 1951 dealt with several  categories  of employees.   But  that  in our  opinion  does  not  militate against  the construction that the. second notification  has only  to  be  adjusted  with  and  fitted  into  the   first notification  in so far as it varies or revises some of  the rates  fixed in the earlier notification  without  extending its operational boundaries by deleting the word  "unskilled" from the expression "unskilled labour".  The (1)  A.I.R.  1963  Bom. 54. (2) A.I.R. 1965  Mys.  317.  (3) A.I.R. 1957 Mad- 69  171 High  Court was, therefore, not right in holding the  second notification  to be applicable to all categories of  labour. The result, therefore, is that both the appeals are  allowed and the case is sent back to the Authority under the Minimum Wages Act for a fresh decision in accordance with law and in the  light  of the observations made above.   Dr.  Barlingay undoubtedly  desired  us to go into various  claims  of  the employees  but in our view it would be more in the  interest of  justice  that  the  matter  is  remitted  back  to   the Authority,  for a fresh decision.  The appellants would  get their costs in this Court. S.N. Appeals allowed. 172