Govindaram Jhunjhunwalla vs State of Orissa and Another

R.N. Misra, J.—Petitioner is the managing partner of a firm by name M/s. Surajmal Kashiprasad which runs a shop in the town of Cuttack. The Scheduled Employments under the provisions of the Minimum Wages Act of 1948 (hereinafter referred to as the ''Act'') have been specified in the Schedule, to the Act. The State Government in exercise of its powers u/s 27 of the Act has by notification dated 8th of January, 1962, added to the Schedule several items numbered as 12-A to 12-L. Item No. 12-E is "Employment in Hotels, Eating Houses and Restaurants" while item No. 12-G is "Employment in Shops and Establishments". Item No. 12-I is "Employment in Cinema Industry". With a view to fixing minimum wage as provided by the Statute, the State Government in exercise of powers u/s 5(1)(a) of the Act appointed a Committee to hold enquiries and advise the Government by notification dated 1sr of February. 1968. The Scheduled Employments were described as "Employment in Cinema Industries, Hotels, Eating Houses and Restaurants and shops and commercial establishments", The Committee, as would appear from Annexure-2, consisted of

(1) Assistant Labour Commissioner, Orissa, - Chairman Bhubaneswar

(2) Proprietor, Orissa Hotel, Cuttack -Member

(3) Sri U. Samantarai, Proprietor, Grand Cinema, Cuttack-Member

(4) Sri R. K. Samantarai, Oriya Bazar, Cuttack-Member

(5) Sri Ramanath Das, Advocate, Military Line, Berhampur, Ganjam - Member

On the basis of recommendations of the Committee, the State Government by notification dated 15th of March. 1974, (Annexure-I) prescribed the minimum rates of wages for employment in shops and commercial establishments, The Petitioner challenges the prescription of rates and contends that the statutory requirements u/s 5(1)(a) of the Act having not been followed, the prescription is bad and should not operate. Counsel for the Petitioner places reliance on a Bench decision of this Court in the case of Messrs Town Bidi Faotory and Ors. v. State of Orissa and Ors. ILR 1975 Cutt 808.

In the counter affidavit filed by the Deputy Secretary to Government in the Labour and Housing Department, the action taken has been supported. Petitioner thereafter has filed a rejoinder.

Section 5(1) of the Act provides:

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.

Admittedly action in this case was taken u/s 5(1)(a) of the Act. This Court in the reported decision has held:

Reading Section 5(1) and Section 9 together we are inclined to agree with the view expressed by the Madras decision referred to above. The purpose of the Committee u/s 5(1) is to investigate and advise the appropriate Government in the matter of fixation and revision of rate of wages. As indicated by the Supreme Court the problems are peculiar to each trade and, therefore, the legislative purpose under the statutes can be best fulfilled only when in consonance with the requirements of Section 9 adequate number of persons are drawn from ''the respective scheduled employments both on the side of the employer as also on the side of the employees. In view of the admitted position that the Committee set up u/s 5(1)(a) did not satisfy this requirement it would follow that there was a statutory default in the constitution of the committee....

Reliance had been placed by the Court on the observations of the Supreme Court in the case of The Edward Mills Co. Ltd., Beawar and Others Vs. The State of Ajmer and Another, , and in the case of Bhikusa Yamasa Kahatriya Vs. Sangamner Akola Taluka Bidi Kamgar Union, . In view of the aforesaid decisions, learned Additional Government Advocate did not try to contend that the legal requirement was otherwise but tried to justify the constitution of the Committee by contending that Sri U. Samantarai, Proprietor, Grand Cinema, Cuttack, was also a shop owner. In the original notification of 1968 (Annexure-2), the second member from the side of the employers had been described as Proprietor, Private Cinema, Cuttack. On 14th of August, 1970, the notification was modified and Sri U. Samantarai, Proprietor, Grand Cinema, was substituted in place of Proprietor, Private Cinema. In paragraph 8 of the counter affidavit, it was pleaded that Sri U. Samantarai was not only an employer in the Cinema Industry but was also an employer being a partner of a cycle shop at Bhubaneswar. In the said paragraph it was conceded that Sri R. K. Samantarai and Sri Ramanath Das were not representatives of the employees of Shops but were representatives of employees in Establishments. Counsel for the Petitioner contends that Sri Samantarai had not been taken on the Committee to represent Shop owners. Though shops and establishments have been put together, there is no dispute that shops and establishments are two categories in the commercial field and problems in the field of employment in the two are widely different. The legislative scheme being that persons versed with problems, trade practices and other aspects of employment should be in the Committee so that the investigation may be complete and appropriate advise may be tendered, unless the Committee constituted by the appropriate Government is properly manned, the scheme under the Act would not operate. We are inclined to agree with counsel for the Petitioner that the Committee in question was not appropriately constituted keeping the conclusions of this Court in the reported decision in view and we would accordingly hold that the final notification under Annexure-1 is not a legally enforceable one.

We would accordingly allow the application, quash the notification under Annexure-1 and leave it open to the Government to take appropriate steps in accordance with law for determining minimum wages. There would be no order for costs.

K.B. Panda, J.

I agree.

Application allowed.