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Judgment
These two writ petitions being WP(C)No.363 of 2018 [Luxmi Tea Company Pvt. Limited and Others versus State of Tripura and Others] and WP(C)No.1095 of 2018 [Fortuna Agro Plantations Ltd. versus State of Tripura and Others] are consolidated for disposal by a common judgment, inasmuch as, the challenge in those writ petitions is identical and in respect of the notification No.F.22(15)-LAB/TEA/MW/91/36-66 dated 04.01.2018 [Annexure-8 to the writ petition being WP(C)No.363 of 2018 and Annexure-3 to the writ petition being WP(C)No.1095 of 2018].
At the outset, it is essential to be noted that the writ petitioner in WP(C)No.1095 of 2018 namely Fortuna Agro Plantations Ltd. had approached this court earlier by filing a writ petition being WP(C)No.85 of 2015 to challenge the constitution of the Advisory Board notified by the State Government, Department of Labour on 04.01.2012 contending that the constitution was not in conformity to the provisions of Rule 55 of the Tripura Plantations Labour Rules, 1954. Hence, it was urged in the said writ petition that all actions as taken by that Advisory Board are to be interfered with. In that writ petition, the government has, however, contended that the said notification dated 04.01.2012 was perfectly in conformity to Rule 54 of the Tripura Plantations Labour Rules, 1954 and as such, the constitution of the Advisory Board was sustainable.
Rules 54 and 55 of the Tripura Plantations Labour Rules, 1954 provides as under :
"54. CONSTITUTION OF ADVISORY BOARD .- The State Government shall, by notification in the official Gazette constitute an Advisory Board for consultation in regard to matters connected with housing.
Composition of Advisory Board-(1) The Advisory Board shall consist of:-
(i) the Secretary to the State Government in the Department concerned, who shall be the Chairman of the Board.
(ii) two officials, to be nominated by the State Government; and
(iii) three representatives each of the employers and workers nominated in consultation with the interest concerned.
(2) No act or proceedings of the Advisory Board shall be invalid on the ground on the ground of any defect in the constitution of, of any vacancy in, the Board."
In that writ petition being WP(C)No.85 of 2015, the controversy that was raised hinges on whether there were three representatives of the employers within the meaning of Rule 55 (Clause-iii) of Tripura Plantations Labour Rules, 1954 while constituting the Advisory Board or whether in absence of notice of attendance of one of the members, the recommendation made by the Advisory Board can be sustained or not. These objections were not entertained by this court by the order dated 13.09.2018 as passed in WP(C)No.85 of 2015. The writ petitioner in WP(C)No.85 of 2015 has filed a fresh writ petition being WP(C)No.1095 of 2018 almost on a similar premises in respect of subsequent constitution of the Advisory Board for recommending the minimum wages of the tea workers.
There is no dispute that the Government of Tripura by the notification dated 13.09.2017 [Annexure-1 to the writ petition being WP(C)No.363 of 2018] constituted a committee under Section 5 (1)(a) read with Section 9 of the Minimum Wages Act, 1948 with the following members to advise the State Government in revising the minimum basic rates of wages for the workers/employees employed as the Tea Plantation Workers in Tripura:
A) Independent Persons/Officials
Sri Madhab Chandra Saha ...Chairman Vill. Rajarbag P.O. + P.S.-Radhakishorepur, Udaipur, Gomati Tripura
The Joint Labour Commissioner, Labour Directorate, Agartala ...Member Secretary
B) Employers' representatives
Sri P.K. Sarkar, Secretary & Labour Advisory, Tea Association of India, Tripura Branch Agartala ...Member
The Managing Director, Tripura Tea Development Corporation, Agartala ...Member
The Senior Manager, Manuvalley Tea Estate, P.O.Manuvalley, North Tripura. ...Member
The General Manager, Ranibari Tea Estate, P.O. Satsangam, Unokati District ...Member
C) Employees' representatives
Sri Sankar Datta, General Secretary, C/o. CITU Office, Office Lane, Agartala, ...Member Tripura West
Sri Nibaran Debnath, Secretary, Tripura Tea Workers' Union, C/o CITU Office, Office Lane, Agartala ...Member
Sri Kanu Ghosh, Vice President, Tripura Tea Workers' Union, C/o CITU Office, Office Lane, Agartala ...Member
Sri Nirode Baran Das, Secretary General, Tripura Cha Mazdoor Union, Krishna Nagar, Natun Pally, Agartala ...Member
The terms of reference or factors as made to that committee are to take into consideration all aspects while recommending for revising or minimum rates of wages of the workers/employees employed in the employment of Tea Plantation in Tripura. The committee was also asked to consider all sorts of existing schedules of works having bearing upon the revision of minimum rates of wages. The term of the committee was declared to be six months from the date of issue of the notification dated 12.09.2017 within which the Chairman of the committee will submit his recommendation to the Government.
It is not in dispute that the said committee had its meeting on 06.11.2017 and upon consideration of the views offered in the meeting and on prolonged discussion with the members representing the employers or the employees engaged in the employment of Tea Plantation, by majority opinion, it was decided to recommend increase of minimum wages at par with the National Floor Level Minimum Wages of Rs.176. It is apparent from the records that the said committee met twice and came out with the recommendation for minimum wages of the tea garden workers from existing rate of Rs.105-176/- keeping a parity with National Floor Level Minimum Wages rate as reflected in the communication made by the Minister of State (Independent Charge), Labour and Employment, Governemt of India on 07.06.2017 [Anenexure-5 to the writ petition being WP(C)No.363 of 2018]. The relevant text of the said letter is extracted hereunder :
"As you are aware, in order to have a uniform wage structure and to reduce the disparity in minimum wages across the country, National Floor Level Minimum Wage(NFLMW) is fixed which also required to be revised from time to time on the basis of rise in Consumer Price Index for Industrial Workers (CPI-IW). The NFLMW was last revised from Rs.137 to Rs.160/- per day with effect from 01.07.2015 as intimated vide this Mole D.O.No.P-11012/1/2015-WC dated 07.07.2015.
While reviewing the movement of CPI-IW during April, 2016 to March 2017 over the period April, 2014 to March, 2015, it was observed that the 12 monthly average CPI-IW has risen to 275.92 from 250.83. Accordingly, the NFLMW has been revised upwards to Rs.176/- per day from existing Rs.160/- w.e.f. 01.06.2017.
I request you for fixation/revision of the minimum rates of wages in respect of all scheduled employments in your State/UT note below the NFLMW of Rs.176/- per day w.e.f. 01.06.2017.
I would also request you to ensure implementation of various provision of the Minimum Wages Act, 1948 so that the objective ensuring Minimum wages to workers is fulfilled."
From the records as procured by disclosure under Right to Information Act, the recommendations/suggestions of the said committee appointed by the State Government for revision of the minimum rates of wages for the workers/employees engaged in Tea Plantation in Tripura it appears was formulated a meeting held on 06.11.2017 and the minutes were signed on 15.11.2017 [Annexure-11 to the writ petition being WP(C)No.1095 of 2018]. The crux of the recommendation has been referred hereinbefore. It appears further from the said minutes that in the meeting held on 06.11.2017, Sri Madhab Chandra Saha [MLA and the Chairman of the said committee] chaired the said meeting, Sri Sankar Datta [General Secretary, CITU, Tripura State Committee Member of Parliament], Sri Kanu Ghosh [Vice President, CITU, Tripura State Committee], Sri Nibaran Debnath [Secretary, Tripura Tea Workers‟ Union], Sri Nirode Baran Das [Secretary General, Tripura Cha Mazdoor Union remained present to represent the workers and Sri P.K. Sarkar [Secretary, Tea Association of India, Tripura Branch], the Managing Director, Tripura Tea Development Corporation and the Senior Manager [Manu Valley Tea Estate, North Tripura] and General Manager [Ranirbari Tea Estate], to represent the employers present in the said meeting. As stated earlier, after discussion, by way of majority opinion, the minimum wage at Rs.176/- was accepted and recommended. According to the writ petitioners, the minutes of the meeting was not supplied to them and as a result, by the communication dated 06.01.2018 [Annexure-6 to the writ petition being WP(C)No.363 of 2018] they raised the following objection :
"During the said meeting, the undersigned and other members were assured that a copy of the same would be sent to us but I regret to state that till date we have not received it. As a matter of fact we are unaware as to what exactly has been recommended by the MWC to the government. As we had categorically expressed our stand and views on the matter and had expressed our inability to pay anything beyond Rs.116.00 in cash (as wages) worth around Rs.100.00 is already being paid in kind to the workers and also given a written submission-MB-121/1189-190 dated 11.11.2017."
Similarly, the writ petitioner in WP(C)No.1095 of 2018 by a demand notice issued on 10.09.2018 [Annexure-14 to the writ petition being WP(C)No.1095 of 2018] had asked the respondents to take into consideration the non-cash wage which is part of the wages within the meaning of Section 2(h) of the Minimum Wages Act, 1948. According to them, the tea garden workers are allowed highly subsidised food grains not only for each worker but also for all the dependents in their family. The workers get 3.266 kg and each non-worker dependent gets 2.88 kg of food grains per week. Such food grains used to be purchased by the employers at Rs.22 per kg and distributed at 66 paisa per kg. The subsidy as paid for the said non-cash wages shall be made part of the wage meaning Rs.21 has to be added with the wage. Even the workers get free dry tea leaves amounting to Rs.1.15 per day. That apart, the cash value against the allotted land would come to Rs.10 per day. But without considering those factors, by the notification dated 04.01.2018, the State Government has revised the daily rate of wages for daily workers. The text of the said notification dated 04.01.2018 is extracted hereunder as a whole :
GOVERNMENT OF TRIPURA LABOUR DEPARTMENT
No.F.22(15)-LAB/TEA/MW/91/36-66 Dated 4th January, 2018
NOTIFICATION
In exercise of the powers conferred by Clause(b) of Sub-section(1) of Section-3 of the Minimum Wages Act, 1948 (Act 11 of 1948) read with Sub-Section(2) of Section 5 of the said Act and after considering the advice of the Committee appointed under Clause(a) of Sub-Section(1) of Section-5 of the said Act, the Governor of Tripura is pleased to revise the basic rates of minimum wages of the employees/workers engaged in the employment of TEA PLANTATION in Tripura. The rates of wages specified in column-2 of the schedule below shall be payable to the different categories of schedule below shall be payable to the different categories of workers/employees engaged in the aforesaid employment in the State of Tripura as specified in the corresponding entries in column No.1 of the schedule.
The revised minimum rates of wages shall come into force with effect from the date of publication.
SCHEDULE
Category of employees
Minimum rates of wages per day
1
2
(a) Adult (Male and Female)
Rs.176/- per day.
(b) Non Adult (Male and Female)
Rs.88/- per day.
The above rates are not including the value of concessional rated ration and other benefits etc.
Not illegible
Deputy Secretary to the Government of Tripura
Be it noted that the recommendation was placed before the Council of Minister for consideration following the procedure and it further appears that the recommendation was considered in the Law Department before the same was placed before the Council of Ministers. After consideration, the Law Department opined that the proposed revised rates of minimum wages at par National Floor Level Rates may be introduced by notification in the Official gazette after the cabinet approved. In the meeting of the Council of Ministers held on 02.01.2018, the proposal for approval of the revision of minimum rates of wages in the employment of Tea Plantation was considered and the recommended rate was approved.
The petitioners have asserted that after the recommendation was formulated, they were not supplied with a copy thereof and as a result, they had been deprived of in making further representation about the difficulties that they would face. According to the petitioners, no decision was taken in the meeting held on 06.11.2017 but from the communication dated 06.01.2018, it appears that such decision was taken, notwithstanding the reservation expressed by one of the petitioners. The petitioners have further stated that there was no agreement, inasmuch as, there was no discussion in the meeting in respect of non-cash benefits which are supposed to be the part of the wages. According to the petitioners, from the various components including the cash wages as demonstrated under Para-2.7 of the writ petition being WP(C)No.363 of 2018, the total wages comes to Rs.199.62 in terms of Section 11 of the Minimum Wages Act, 1948. According to the petitioners, the standardised National Floor Level Wages at Rs.176 per day with effect from 01.06.2017 is contrary to the provision of Section 11 of the Minimum Wages Act, 1948. The minutes in the meeting was not circulated to the petitioner, even, the petitioners have failed to gather a copy of the proceeding minutes. For non-circulation of the proceeding minutes, the petitioners have asserted that the entire wage determination process had been rendered perverse and illegal. Thus, the notification dated 04.01.2018 as published in the Tripura Gazette on 20.01.2011 is unsustainable. The said minimum wages as revised in terms of the notification dated 04.01.2018, has come into effect from 20.01.2018. But again according to the petitioner, the effect has been given from 18.01.2018.
In response to the allegation made in the writ petition, the respondents No.1, 2 and 3 have stated that as per the provisions of Section 5(a) and 5(b) of the Minimum Wages Act, 1948, the State may fix or revise in any scheduled employment and accordingly, those respondents have caused revision of wages of the tea plantation workers from time to time. The respondents have acceded that on the previous occasion, the minimum wages for the tea plantation was settled by tripartite agreement in consultation with the employers and the employees‟ representatives. They have also mentioned that Variable Dearness Allowance (VDA) have been introduced in all the scheduled employments as per the decision of the Council of Ministers dated 18.12.2012. The Variable Dearness Allowance (VDA) has been adopted in the scheduled employment having due regard to the Consumers Price Index (CPI) from the time with effect from 01.01.2013. They have denied the allegation that there was any infraction in the process at all. The respondents have further contended that the final decision was taken on the basis of the recommendation made by the committee. In para-11 of the reply filed by the respondents No.1, 2 and 3, it has been averred as under:
"11. That with reference to the statements made in paragraphs 2.7 of the Writ Petition, I say that the contentions raised by the Petitioner in this paragraph are not correct besides being unwarranted in Law. I say that the official records show that the decision was taken in the meeting as per law. I say that Rs.199.62 is the total daily wages when minimum cash wages was Rs.105/-, other benefits beyond cash wage are statutory benefits and those are in no way relevant for the purpose of fixation of minimum wages. I say that as proposed by the Committee i.e. @ Rs.176/- per day for adults (male & female) and Rs.88/- per day for non adults (male & female) are not inclusive of ration commodities, that is, ration commodities are to be provided separately to the Tea plantation workers by the garden authorities in addition to the minimum wages. However, Plantation Labour Act, 1951 (under Section) provides for certain in-kind benefits to be provided to workers which includes amongst others, housing, education facilities, medical facilities, sickness benefit, leave with wage, recreation, welfare facilities, maternity benefits etc. Non-statutory benefits are also extended to the tea plantation workers in the form of fringe benefits like free dry tea, fuel, concessional ration etc.
It is to further stated that bonus, provident fund and Gratuity are not included with the wages. Bonus will be provided by the employer as per provisions of the Payment of Bonus Act, 1965, provident fund will be provided by the employers as per the provisions of the provisions of the Employees Provident Funds Act, 1952 and Gratuity will be provided as the Payment of Gratuity Act, 1972 and those are not the components of minimum wages."
According to the respondents, the impugned notification has been issued observing all procedural and legal requirement of the Minimum Wages Act, 1948, the Plantations Labour Act, 1951 and the rules made thereunder. They have thus denied the entire wage determination process to have been perverse and illegal.
It is to be noted that in response to the similar averments raised in WP(C)No.1095 of 2018, the respondents, despite their plea of difference in fact as reflected in the order dated 05.02.2019 [WP(C)No.1095 of 2018] simply adopted the reply filed in WP(C)No.363 of 2018.
It is essential to note that by the order dated 16.04.2018, passed in WP(C)No.363 of 2018 while this court had declined to grant interim relief, it was observed as under :
"Let the petitioner may comply the impugned notification dated 04.01.2018 and it will remain subject to the final outcome of the writ petition."
Similar observation was made in WP(C)No.1095 of 2018 by the order dated 28.11.2018 in the following words :
"Implementation of the impugned order shall be subject to the outcome of the writ petition, which fact shall be made known to each one of the employees."
Mr. R. Datta, learned counsel appearing for the respondents No.1, 2 and 3 has produced the records in relation to fixation/revision of minimum rates of wages of tea plantation workers under File No.22(15)-LAB/TEA/MW/91(Loose).
Mr. S. Mitra, learned senior counsel appearing for the petitioner in WP(C)No.363 of 2018 has referred to the memorandum of last tripartite settlement between the employers and the employees, arrived on 25.11.2015 in presence of the Conciliation Officer of the Labour Department, Government of Tripura. Terms of settlement were made valid for three years with effect from 01.05.2015. It was agreed by way of that memorandum of settlement [Annexure-3 to the writ petition being WP(C)No.363 of 2018] that the daily wages would be enhanced to Rs.83 from Rs.71 for adult male and female Tea Plantation Workers. The rate was enhanced to Rs.41.50 from Rs.35.50 for non-adult plantation workers. This is obviously in exclusion of non-cash benefits. Since, the said memorandum of settlement expired on 30.04.2018, the State had set up the committee, as stated above, for revising the rate or to recommend the rate for the plantation workers.
Mr. Mitra, learned senior counsel has taken this court to the various provisions of the Plantation Labour Act, 1951 and the Minimum Wages Act, 1948. Section 11 of the Minimum Wages Act provides in respect of wages in kind. In terms of Section 11 of the Minimum Wages Act, 1948 it has been recognised that minimum wages payable under the Minimum Wages Act, 1948 shall be paid in cash. But where it has become the custom to pay wages wholly or partly in kind, the appropriate Government being of the opinion that it is necessary in the circumstances of the case may, by notification in the Official Gazette, authorise the payment of wages either wholly or partly in kind. If the appropriate Government is of the opinion that provision should be made for the supply of essential commodities at concessional rates, the appropriate Government may, by notification in the Official Gazette, authorise the provision of such supplies at concessional rates. In that event, the cash-value of wages in kind and of concessions in respect of supplies of essential commodities authorised under Sub-sections (2) and (3) shall be estimated in the prescribed manner.
In that context, Mr. Mitra, learned senior counsel has drawn attention of this court to the representation of the petitioner dated 11.11.2017 where it has been asserted that the petitioner has been providing concessional rations and thus, the cash-value of such rations is likely to be added to the minimum wage in terms of Section 11 of the Minimum Wages Act, 1948. But no gazette notification has been referred or placed before this court prescribing the method of estimating the cash-value of the concessional provisions made to the plantations workers.
Even, in the memorandum of last tripartite settlement, there is no reference to such provisions or its conversion as part of the real wages.
Mr. Mitra, learned senior counsel in his erudite exposition of law has referred to Section 3 of the Minimum Wages Act, 1948 where the provision has been made for fixing the minimum rates of wages in respect of the employees, employed in an employment specified in Part-II of the Schedule appended to the said Act. Part-II of the Schedule covers the following employments:
"Employment in agriculture, that is to say, in any form of farming, including the cultivation and tillage of the soil, dairy farming, the production, cultivation, growing and harvesting of any agricultural or horticultural commodity, the raising of live-stock, bees or poultry, and any practice performed by a farmer on a farm as incidental to or in conjunction with farm operations (including any forestry or timbering operations and the preparation for market and delivery to storage or to market or to carriage for transportation to market of farm produce)."
According to Mr. Mitra, learned senior counsel, in the meeting of the committee, the minimum rate of wages has been decided per majority but by completely brushing aside the reasons as placed for recommendation of a realistic minimum rate of wages. Mr. Mitra, learned senior counsel has further pointed out that the reasons for dissent are not even reflected in the memorandum of the minutes [Annexure-6 to the writ petition being WP(C)No.363 of 2018] whereas the claims for the employees have been reflected, even though briefly. So far the views of employers are concerned, those got recorded in the following manner :
"But Sri P.K. Sarkar, the Senior Manager, Manu Valley Tea Estate and General Manager, Ranirbari Tea Estate did not agree with the suggestion."
The suggestion as referred in the excerpts was for accepting the National Floor Level Minimum Rate of Wages at Rs.176/- per day.
Mr. Mitra, learned senior counsel has quite emphatically submitted that the object and purpose of constitution of the said committee has been entirely frustrated by the respondents for non-consideration of relevant facts and aspects. According to him, the reply filed by the respondents is grossly inappropriate, inasmuch as, the decision making process has been tainted by arbitrariness. Mr. Mitra, learned senior counsel has also laid adequate emphasis on the aspect that there was no effective representation from the employers. Thus, he has contended that by any stretch of interpretation of the relevant law, the recommendation as made by the committee cannot be held valid. Mr. Mitra, learned senior counsel has, in order to buttress his submission, relied on series of decisions of the apex court on various aspects. For example when Mr. Mitra, learned senior counsel has been referring to procedure for fixing and revising minimum wages [Section 5 of the Minimum wages Act, 1948], he has given emphasis on the provision of Sub-section 2 which provides that after considering the advice of the committee or committees 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. By a proviso below Sub-section(2), it has been provided that when the appropriate Government proposes the minimum rates of wages by the modes specified in Clause-(b) of Sub-section (1), the appropriate government shall also obtain the advice of the Advisory Board.
Even though, Mr. Mitra, learned senior counsel has quite emphatically stated that adequate representation having been absent in the process for not extending the further opportunities to the employers, the entire exercise has become vitiated in law. But this court is of the view that when a committee was constitute to tender their advise in fixing the minimum rates of wages in respect of the scheduled employment, the mode as prescribed by Section 5(i)(b) of the Minimum Wages Act, 1948 is not required to be followed. Even, the consultation with the Advisory Board as constituted under Section 7 of the Minimum Wages Act, 1948 is not prescribed.
Mr. Mitra, learned senior counsel has raised serious objection in respect of composition of the committee. According to him, no independent person has been nominated in the committee. Sri Madhab Ch. Saha who has been appointed as the Chairman "as the independent person" cannot be accepted as such. Mr. Mitra, learned senior counsel has however fairly admitted while responding to a query by the court that no stake holders, be it the employers or the employees of the scheduled employment had raised any objection at any point of time on that aspect. As it appears, even in the representation dated 11.11.2017, the petitioner in WP(C)No.363 of 2018 did not raise any objection in respect of the composition. In that representation, the aspect that was emphasized was to determine the cash-value of the essential materials as supplied to make the same as part of the wages and accordingly to determine the wages to be paid in cash.
Mr. Mitra, learned senior counsel has further submitted that the provisions of Section 15 of the Minimum Wages Act, 1948 was not taken care of and there had been no determination in respect of employees whose minimum rate of wages are fixed for any day on which they are employed less than the requisite number of hours constituting a normal day. One employee would be entitled to receive the wages on that day if he had worked for the full normal working day. But if he had not worked the full normal working days, he shall not be entitled to receive the wages for the full normal working day. In this regard, Mr. Mitra, learned senior counsel has referred to Section 17 of the Minimum Wages Act, 1948 to contend that unless, the minimum time rate wages for a piece work is determined, there will be no rate to provide such workers who are employed on piece work. Thus, not making any recommendation for minimum time rate, this recommendation is incomplete and prejudicial to the employers.
Finally, Mr. Mitra, learned senior counsel has submitted that there was no meaningful appreciation by the concerned authority of the recommendation and that will be evident from the records that has been produced. A "rubber-stamp approach" has been adopted in breach of the obligation created by the statute. Reference has been made in this regard to a decision of the apex court in Jagannath Mishra versus State of Orissa reported in (1966) 3 SCR 134 where it has been observed as follows :
"6. Now we have pointed out that the order of detention in this case refers to six out of eight possible grounds on which a person can be detained under s. 3(2)(15). Of these eight grounds under s. 3(2)(15) one refers to foreigners i.e., of being of hostile origin. Therefore in the present case the order really mentions six out of seven possible grounds which can apply to an Indian whose detention is ordered under s. 3(2)(15). We do not say that it is not possible to detain a citizen on six out of the seven possible grounds under s. 3(2) (15); but the if that is done it is necessary that the authority detaining a citizen should be satisfied about each one of the grounds that the detention is necessary thereon. But if it appears that though the order of detention mentions a large number of grounds the authority concerned did not apply its mind to all those grounds before passing the order, there can in our opinion be no doubt in such a case that the order was passed without applying the mind of the authority concerned to the real necessity of detention. In the present case as we have already pointed out six grounds out of the possible seven grounds on which a citizen can be detained have been mentioned in the order; but in the affidavit of the Minister we find mention of only two of those grounds, namely, safety of India (which may be assumed to be the same as public safety) and the maintenance of public order. In these circumstances there can be little doubt that the authority concerned did not apply its mind properly before the order in question was passed in the present case. Such a discrepancy between the grounds mentioned in the order and the grounds stated in the affidavit of the authority concerned can only show an amount of casualness in passing the order of detention against the provisions of s. 44 of the Act. This casualness also shows that the mind of the authority concerned was really not applied to the question of detention of the petitioner in the present case. In this view of the matter we are of opinion that the petitioner is entitled to release as the order by which he was detained is no order under the Rules for it was passed without the application of the mind of the authority concerned.
There is another aspect of the order which leads to the same conclusion and unmistakably shows casualness in the making of the order. Where a number of grounds are the basis of a detention order, we would expect the various grounds to be joined by the conjunctive "and" and the use of the disjunctive "or" in such a case makes no sense. In the present order however we find that the disjunctive "or" has been used, showing that the order is more or less a copy of s. 3(2)(15) without any application of the mind of the authority concerned to the grounds which apply in the present case. Learned counsel for the State however relies on the word "etc." appearing in the affidavit. His contention is that as the order of detention had already been mentioned in an earlier part of the affidavit of the Home Minister, the word "etc." used in the later part of the affidavit means that though the affidavit was only mentioning two grounds, namely, the safety of India and the maintenance of public order, it really referred to all the grounds mentioned in the order. We are not prepared to accept this. If anything, the use of the words "etc." in the affidavit is another example of casualness." [Emphasis added]
Mr. Mitra, learned senior counsel making reference to the said report has contended that even though, those observation are made in a different context (the preventive detention), but the manner of appreciation required has been quite succinctly culled out in the said report by clearly observing that the authority concerned has to apply its mind properly before the final call is taken. In the present exercise, the appropriate Government (the Council of Ministers) has taken a casual approach coming to the inference. Thus, the consideration cannot be held valid on the touchstone of requirement of comprehensive application of mind with utmost seriousness.
The apex court in Union of India versus Mohan Lal Capoor and Others reported in (1973) 2 SCC 836 has further obligated the authorities to record reasons for drawing the inference in the process. The following passage has been referred in particular :
"27. We next turn to the provisions of Regulation 5(5) imposing a mandatory duty upon the Selection Committee to record "its reasons for the proposed supersession". We find considerable force in the submission made on behalf of the respondents that the "rubber-stamp" reason given mechanically for the supersession of each officer does not amount to "reasons for the proposed supersession". The most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. This apology for reasons to be recorded does not go beyond indicating a conclusion in each case that the record of the officer concerned is not such as to justify his appointment "at this stage in preference to those selected."
The said principle cannot be doubled so far the formation of the opinion by the state government is concerned. As pointed out by Mr. Mitra, learned senior counsel it is an important facet to weigh the validity of the process. The term consider‟ means to think over‟. It connotes that there should be active application of the mind. In other words, the term consider‟ postulates consideration of all the relevant aspects of the matter.
It has been observed in Bhikhubhai Vithlabhai Patel and Others versus State of Gujarat and Another reported in (2008) 4 SCC 144 that a plain reading of relevant provisions suggests that the State Government may publish the modifications only after consideration that such modification have become necessary. The word necessary‟ means in-dispensable, requisite, indispensably requisite, useful, incidental or conducive, essential, unavoidable, impossible to be otherwise, not to be avoided and inevitable. The word necessary‟ must be construed in connection in which it is used. Thereafter, it has been observed as follows:
"26. The formation of the opinion by the State Government should reflect intense application of mind with reference to the material available on record that it had become necessary to propose substantial modifications to the draft development plan."
In Bhikhubhai Vithlabhai Patel(supra), the apex court in the context of consideration of draft development plan had occasion to observe, as undernoted, to hold that the court can examine the process of formation of the opinion :
"33. The Court is entitled to examine whether there has been any material available with the State Government and the reasons recorded, if any, in the formation of opinion and whether they have any rational connection with or relevant bearing on the formation of the opinion. The Court is entitled particularly, in the event, when the formation of the opinion is challenged to determine whether the formation of opinion is arbitrary, capricious or whimsical. It is always open to the court to examine the question whether reasons for formation of opinion have rational connection or relevant bearing to the formation of such opinion and are not extraneous to the purposes of the statute.
In the affidavit in reply filed on behalf of the State Government in the High Court, it was averred what weighed with the State Government to exercise its power under Section 17(1)(a)(ii) of the Act was public interest at large. The State government thought it fit to classify the lands in question for educational use so that there is a specific pocket of educational institutional area in the fast developing city of Surat where its population in the last decade, has almost doubled. If such educational institutional pockets in the adjoining land, where there already exists the complex of South Gujarat University, are not ensured in the development plan of the city like Surat, then, in that case, land would not be available in future. This would resultantly make people to travel long distance from the city area for educational purpose. Public interest parameter is undoubtedly a valid consideration that could have been taken into account by the State Government. But this aspect of the matter is stated for the first time in the affidavit in reply and is not born out by the record. There is nothing on record suggesting as to what public interest parameter weighed with the State Government. The question is: was there any material available on record in support of what has been pleaded in the reply affidavit ?
Be that as it may, the impugned preliminary notification itself does not reflect formation of any opinion by the State Government that it had become necessary to make substantial modifications in the draft development plan and, for that reason, instead of returning in the plan, decided to publish the modifications so considered necessary in the Official Gazette along with the notice inviting suggestions or objections with respect to the proposed modifications. It is very well settled, public orders publicly made, in exercise of a statutory authority, cannot be construed in the light of explanations subsequently given by the decision making authority. Public orders made by authorities are meant to have public effect and must be construed objectively with reference to the language used in the order itself. (See - Gordhandas Bhanji : 1952 1 SCR 135 and Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi: 1978 2 SCR 272 ."
On the aspect of affording reasonable opportunity of hearing which according to Mr. Mitra, learned senior counsel was not afforded to the petitioners, a celebrated decision of the apex court in A.K. Kraipak and Others versus Union of India and Others reported in (1969) 2 SCC 262 has been relied on. In A.K. Kraipak(supra) the apex court had occasion to observe as follows :
"20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala and Ors. : 1969 1 SCR 317 the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the Constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case." [Emphasis added]
But Mr. Mitra, learned senior counsel has not denied the fact that the equal representation of the employers was accommodated while constituting the committee and there is no allegation that they were denied to participate in the proceeding of the committee. The grievances are substantively related to the process of consideration of the recommendation and to the determination of the minimum rate of wages as according to the petitioners, the required components were not taken into consideration. According to the petitioners, the decision of the committee was a pre-determined action and the process is brought to its finality by the appropriate Government without appropriate consideration of the recommendation. According to the petitioners, there were considerable data before the authority. The Government can take resort to Section 5(1)(a) of the Minimum Wages Act, 1948 while there is quantifiable data with the Government. The power that has been given to the Government under Section 5 of the Minimum Wages Act, 1948 to resort to either of the mode is not unguided but it has to be taken on the basis of availability of the quantifiable data on the minimum rate of wages, it cannot be done on whim. According to the petitioner, the plantation workers stand on a different category as the Plantation Labour Act, 1951 has create an obligation for the employer to provide additional and supplemental amenities. Unless, such amenities as provided are taken into consideration while determining the wages that would cause serious prejudice to the employers. In paras-3.5 and 3.6, the petitioner in WP(C)No.363 of 2018 has elaborated those aspects of the matter.
Mr. Mitra, learned senior counsel has submitted that the state government has failed to act in accordance with the statute which saddles with a bound duty and that cannot be shirked off at whim. The state government has failed to observe the statutory mandate while determining the mode under Section 5 of the Minimum Wages Act, 1948. Reference has been made in this regard to a decision of the Privy Council, which is considered a classisus, in Nazir Ahmed versus King Emperor reported in AIR 1936 PC 253. In Nazir Ahmed(supra), it has been observed as follows :
"To this contention it was answered that there was no ground for reading the word " may " in Section 164 as meaning " must" on the principle described in Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214. There is no need to call in aid this rule Of construction-well recognised in principle but much debated as to its application. It can hardly be doubted that a Magistrate would not be obliged to record any confession made to him if, for example, it were that of a self-accusing madman or for any other reason the Magistrate thought it to be incredible or useless for the purposes of justice. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts-Taylor v. Taylor (1875) 1 Ch. D. 426, 431 and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a judicial officer, and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to Section 164."
Nazir Ahmed(supra) has been followed in Ramchandra Keshav Adike (Dead) versus Govind Joti Chavare and Others reported in AIR 1975 SC 915 having referred Taylor V. Taylor(supra) and observed as follows:
A century ago, in Taylor v. Taylor [1876] Ch. D. 426, Jassel M. R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor : AIR 1936 PC 253(2) and later by this Court in several cases Shiv Bahadur Singh v. State of U.P.: 1954 Cri LJ 910: Deep Chand v. State of Rajasthan: [1962]1 SCR 662, to a Magistrate making a record under Sections 164 and 364 of the CrPC, 1898. This rule squarely applies "where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell's Interpretation of Statutes, 11th Edn., pp. 362-363." The rule will be attracted with full force in the present case because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non-est for the purpose of Section 5(3)(b)."
In Central Coal Fields Limited and Another versus SLL-SML (Joint Venture Consortium) and Others reported in (2016) 8 SCC 622 the apex court has reaffirmed and restated the law as settled in Nazir Ahmed(supra) in the following terms :
"52. There is a wholesome principle that the Courts have been following for a very long time and which was articulated in Nazir Ahmad v. King Emperor: AIR 1936 PC 253 namely
"Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. It must follow from the application of the principle laid down in Nazir Ahmed that if the employer prescribes a particular format of the bank guarantee to be furnished, then a bidder ought to submit the bank guarantee in that particular format only and not in any other format. However, as mentioned above, there is no inflexibility in this regard and an employer could deviate from the terms of the bid document but only within the parameters mentioned above." [Emphasis added]
Finally, Mr. Mitra, learned senior counsel has submitted that non-compliance of the impugned notification dated 04.01.2018 [Annexure-8 to the writ petition in WP(C)No.363 of 2018] will invite civil consequences which shall inevitably push the petitioner to the brink of collapse. In this premises, Mr. Mitra, learned senior counsel has urged to interfere with the notification dated 04.01.2018 and to direct the state government to initiate a fresh process in strict adherence of the statutory provisions as provided under Section 5 of the Minimum Wages Act, 1948.
Mr. S.M. Chakraborty, learned senior counsel appearing for the writ petitioner in WP(C)No.1095 of 2018 has submitted that the notification dated 04.01.2018 and the letter dated 06.04.2018 are under challenge. Mr. Chakraborty, learned senior counsel has, however, contended that the petitioner in WP(C)No.1095 of 2018 will adopt the submission advanced by Mr. Mitra, learned senior counsel who has appeared for the petitioner of the writ petition being WP(C)No.363 of 2018. In order to supplement, Mr. Chakraborty, learned senior counsel has contended that the respondents, in the course of determining the minimum rate of wages for the tea workers or the employees, did not observe Rule 20 of the Minimum Wages (Central) Rules, 1950. Rule 20 provides the mode of computation of wages. The retail price at the nearest market is required to be taken into account in computating the cash-value of the wages paid in kind and of essential commodities supplied in concessional rates. This computation shall be made in accordance with the direction as may be issued by the Central Government from time to time.‟ Mr. Chakraborty, learned senior counsel has however not placed his reflection on the National Floor Level Minimum Wages at Rs.176 per day. As referred earlier, it appears from the record that the minimum rate of wages for the workers/employees engaged in the tea plantation in the national level has been determined at on the basis of the recommendation made by the National Commission on Rural Labour (NCRL). The National Floor Level Minimum Wages has been fixed at Rs.176/- per day. Further, Mr. Chakraborty, learned senior counsel has not reflected on the notification dated 13.09.2017 whereby the committee was constituted for revising minimum basic rates of wages for the workers/employees employed in the employment of "Tea Plantation" inasmuch as, it has been clearly referred that the said committee was constituted under Section 5(1)(a) of the Minimum Wages Act, 1948. Mr. Chakraborty, learned senior counsel has, however, emphatically asserted from the averments of the writ petition being WP(C)No.1095 of 2018. It has been averred as under :
"9. That your petitioner states that the records of Notes as forwarded under Right to Information clearly indicates that all the exercise of increasing the minimum wages at the prepoll of Tripura was a political agenda and in violation of Model Code of Conduct issued by the Election Commission of India for the guidance of the political parties and candidates. In order to achieve political gain, the respondent authorities mooted a device for fixation of minimum wages on the basis of uniform wage structure, a concept of National Floor Level Minimum Wage adopted on the recommendation of National Commission on Rural Labour (NCRL).
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Mr. Chakraborty, learned senior counsel has further contended that the petitioner in WP(C)No.1095 of 2018 did not get any opportunity to have his say, inasmuch as, no public notification was issued inviting comment from the employer who might be affected by the decision on the minimum rates of wages.
In reply, Mr. A.K. Bhowmik, learned Advocate General appearing for the respondents has stoutly defended the process and submitted that the contention of the petitioners are totally unacceptable inasmuch as, the mode under Section 5(1)(a) of the Minimum Wages Act, 1948 has been initiated on the basis of Central Government‟s direction to adopt National Floor Level Minimum Wage in the employment of tea plantation and hence, there had been substantive compliance of Rule 20 of the Minimum Wages (Central) Rules, 1950. Further, he has contended that when the mode under Section 5(1)(a) of the Minimum Wages Act, 1948 is adopted, there was no requirement to issue public notice on the proposal, for having response of the persons likely to be affected by the notification and to consider the proposals from the said category of persons. Even, the petitioners are aware that the National Floor Level Minimum Wages has been recommended by an expert commission called National Commission on Rural Labour (NCRL) and according to that Commission, the National Floor Level Minimum Wages is required to be adopted throughout the country uniformly for eradicate the severe wage-deficit. The committee as constituted by the state government has adopted that National Floor Level Minimum Wages per majority and the committee recommended accordingly for its approval by the state government.
There is no infirmity in the process and the recommendation has been made in compliance to the statutory requirement. Four employers represented the interest of all employers and equal number of representatives from the labour represented the interest of the workers. The objection as raised by one of the employers, as referred above, is in respect of the cash-value of the provisions made to the tea workers and the employees. According to Mr. Bhowmik, learned Advocate General, these are the amenities created by the Plantation Labour Act [see Chapter-IV]. Those are the amenities mandatorily to be provided by the employers.
Mr. Bhowmik, learned Advocate General has further stated that the petitioner in WP(C)No.1095 of 2018 had earlier challenged the constitution of the Advisory Board by filing the writ petition being WP(C)No.85 of 2015 in order to stall the revision of the minimum rates of wages. But this court did not entertain such challenge by its order dated 13.09.2019 on observing that there is no defect in the constitution of the Advisory Board and the Board is competent to carry on transaction and discharge its obligation.
Mr. Bhowmik, learned Advocate General has continued to contend that the Central Government by the letter dated 07.06.2017 under signature of the Union Minister of State for Labour and Employment (Independent Charge) had directed the State Government to fix the rate of minimum wages not below the National Floor Level Minimum Wages i.e. Rs.176/-(for adult workers). He has further stated that the report of the said committee was examined by the Law Department before the same was placed to the Council of Ministers and on 02.01.2018, the Council of Ministers had approved the recommendation with clarification. It has been asserted by the respondents that in absence of any informed dissent and any violation of statutory provisions, the petitioners cannot have any lawful grievance. As stated earlier, the records have been produced for inspection of this court, where a copy of the letter dated 07.06.2017 [Annexure-4 to the reply filed by the respondents] are also available.
Having scrutinised the records, this court finds that several tea workers‟ Associations were pressing hard to revise the minimum rates of wages. In the meeting of the Council of Ministers held on 02.01.2018, the proposal note prepared by the Labour Department for revisions of the minimum rates of wages in the employment of tea plantation, under file No.F.22(15)-LAB/TEA/MW/01(Loose)/16123-42 dated 01.02.2018, has been approved. For purpose of appreciation, the relevant part of the said note is extracted hereunder :
"The rates of wage of the workers/employees engaged in the Tea Plantation was last revised on 25.04.2015 by a Tripartite settlement and was notified vide Memo dated 27.04.2015. The said rates are effective up to April, 2018 (Annexure-I).
According to clause-(a) of Sub-section-1 of Section-5 of the Minimum Wages Act, 1948, a Committee was constituted to advise the State Government regarding revision of wage rates for the workers employed in Tea Plantation. Accordingly, after careful consideration of all aspects, the Committee submitted its report on 15.11.2017 with a proposal to increase the minimum rates of wages for the workers/employees of Tea Plantation @ Rs.176/- per day, at par National Floor Level Minimum Wages(NFLMW) Rats.(Annexure-II).
In order to have a uniform wage structure and to reduce the disparity in minimum wages across the country, the concept of National Floor Level Minimum Wages was mooted and first introduced during 1996 at Rs.35/- per day. The rate was revised from time to time and now it is at Rs.176/- per day w.e.f.01.06.2017.
The main purpose of this proposal is to alleviate the poor financial condition and to raise the standard of living of the workers/employees engaged in Tea Plantations substantially. Accordingly, a Notification has been drafted by the Department (Annexure-IV). The proposed rates are not including the value of concessional rated ration and other benefits." [Emphasis added]
It is a no denying fact that the inquiry was abandoned by the committee as they had adopted to recommend the revision of minimum rates of wages for the workers/employees for tea plantation at Rs.176/-per day at par National Floor Level Minimum Wages (NFLMW) Rates. It has been also observed in the memorandum for the Council of Minister dated 01.01.2018 that in order to have a uniform wage structure and to reduce the disparity of minimum wages across the country, the concept of National Floor Level Minimum Wages was mooted and first introduced during 1996 at Rs.35/- per day and the rate was revised from time to time and the said rate stands at present at Rs.176/- per day with effect from 01.06.2017. It has been categorically observed that the said rate is not inclusive of the value of the concessional ration and other benefits. On a scrutiny of the recommendation made by the committee, it has surfaced that the committee had unequivocally made their observation and recommendation in the following words :
"After careful consideration of the views as offered in the meeting and prolonged discussion with the members from the parts of the employees/employers, it was apparent that majority of the members of the committee constituted for revising minimum rates of wages for the workers/employees engaged in the employment of Tea Plantation was in favour of increasing the Minimum Wages @ Rs.176/- as per the National Floor Level Minimum Wages of Rs.176/-. Owing to the demand of the majority of the members of the committee, it was opined by Sri Madhab Chandra Saha, Chairman of the said Committee that the minimum wages for the tea plantation workers in the state should be increased as the majority of the members of the Committee are in view with it and it should be increased keeping a parity with the National Floor Level Minimum Wages, i.e. @ Rs.176/- per day.
The Chairman of the Committee concluded with a view that the issue of Minimum Wages of Tea Plantation workers may be sent to the Government of Tripura with a request for taking appropriate action in this regard."
This court does not find any infraction of the procedure as alleged. Even the plea as raised that no opportunity was afforded to the petitioners for meaningful representation is not acceptable to this court, inasmuch as, the very mode adopted under Section 5(1)(a) of the Minimum Wages Act, 1948 does not saddle any obligation to invite proposal from the persons likely to be affected either by the inquiry or by the decisions taken by the said committee as constituted. Moreover, the four representatives of the employers from the employment of tea plantation, equal in number to the workers representative, were so nominated to represent the interest of the employers. The representatives of the petitioner in WP(C)No.363 of 2018 was the member of the said committee. It can therefore be assumed that he had placed the proposal of the employers even if, that was not accepted by the committee. Therefore, denial of opportunity cannot be held correct. The petitioner in WP(C)No.1095 of 2018 does not have any indefeasible right to represent when the inquiry was restricted to acceptance of the National Floor Level Minimum Wages. This court is in agreement with the submission of Mr. Bhowmik, learned Advocate General appearing for the respondents that acceptance of National Floor Level Minimum Wages is in itself compliance of Rule 20 of the Minimum Wages (Central) Rules, 1950.
What Mr. Mitra, learned senior counsel appearing for the petitioner in WP(C)No.363 of 2018 has raised that no reason has been recorded either by the committee or by the Council of Minister is on the face of the record is unacceptable. For this purpose, the reproduction from the minutes of the committee and the memorandum of the Council of Minister has been made. What Mr. Mitra, learned senior counsel has submitted that the approach adopted by the state government reflects a sheet casualness in coming to inference as regards the rates is again not acceptable, inasmuch as, the Council of Minister on examination of the recommendation has clarified that the said National Floor Level Minimum Wages is invariably exclusive of the value of the concessional ration and other benefits. Therefore, the allegation of adopting "rubber-stamp‟ approach is negated. The minimum rate of wages per day even for the non-adult member (male and female) has been determined having regard to the minimum rate of wages per day (National Floor Level Minimum Wages).
Further, this court is not inclined to accept that any prejudice has been caused to the petitioners or there had been any infraction of principle of natural justice, inasmuch as, the statute has provided a particular manner of doing the revision of the rates and that method has been scrupulously adopted and followed, as the other methods of performance are necessarily forbidden [see Nazir Ahmed].
Having observed thus, this court does not find any merit in these writ petitions and accordingly, both the writ petitions stand dismissed.
However, in the circumstances, there shall be no order as to costs.