Full Judgment Text
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PETITIONER:
THE PABBOJAN TEA CO. LTD., ETC.
Vs.
RESPONDENT:
THE DEPUTY COMMISSIONER, LAKHIMPUR, ETC.
DATE OF JUDGMENT:
18/08/1967
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
WANCHOO, K.N. (CJ)
CITATION:
1968 AIR 271 1968 SCR (1) 260
CITATOR INFO :
RF 1969 SC 78 (19,21,35)
RF 1975 SC2238 (22)
ACT:
Minimum Wages Act, 1948 (11 of 1948), s. 20--Orders of
Authority--Civil Court’s jurisdiction, if barred--Lettera
Challan Workers, if "ordinary unskilled labour".
HEADNOTE:
By a notification under the Minimum Wages Act minimum wages
were fixed for ’ordinary unskilled labour’ in certain Tea
Plantations in Assam. The respondent-Deputy Commissioner
issued notices to the appellants that a number of employees
were not paid in accordance with the prescribed rate, and
required them to pay the outstanding wages with requisite
amount of delayed compensation to the employees in
conformity with s. 20(3) of the Act. The appellants denied
the liability stating that these employees were Lettera
Challan-workers who were incapable of performing a full
normal working day’s work, so they were ’not ordinary
unskilled labour’. The authority did not hold any enquiry
or receive any evidence beyond meeting the managers of the
appellants where the Government, Labour Officer was present
and it held that in the absence of an order of exemption
under s. 26, Lettera Challan Labour (in spite of the amount
of work performed) was to be treated as ordinary labour..
The appellants filed civil suits which the Subordinate Judge
dismissed holding that under the Minimum Wages Act the
orders of the Authority. were final and suits were barred.
The High Court upheld the decision of the Subordinate Judge.
Held: The appeals must be allowed
Determination of the question whether the jurisdiction of
civil courts is excluded or not depends on the terms of the
particular statute under construction. Exclusion of
jurisdiction is not to be readily inferred but such
exclusion must either be explicitly expressed or clearly
implied. On an analysis of the provisions of the Act under
consideration, it is clear that although the Act provides
that it is the duty of the authority to give proper hearing
to the parties ..allowing them to tender such evidence as
they think proper before making an order which may have far-
reaching consequences and which is final under s. 20(6) of
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the Act, the Act is not a complete Code, as there no
provision for appeal or revision from the direction of the,
authority under s. 20(3); nor is any further scrutiny
provided by any higher authority against the imposition of
penalty,. The Act in terms does not bar the employer from
instituting a suit when his claim is that he has been called
upon to pay wages and compensation to persons who are not
governed by the notification under the Act. In such
circumstances it is impossible to hold that the legislature
meant to exclude the jurisdiction of civil court. [265B;
266E-F; 271E; 271H-272H]
Secretary of State v. Mask & Co. 67 I.A. 222 Wolverhampton
New Water Works Co. v. Hawkesford, [1859] 6 C.B. (N.S.) 336,
Pyx Granite Co. Ltd. v. Ministry of Housing and Local
Government [1960] A.C. 260, Raleigh Investment Co. Ltd. v.
Governor General in Council, 74 I.A, 50, Firm and Illuri
Subbayya Chetty & Sons v. The State of Andhra Pradesh [1964]
1 S.C.R. 752, Kala Bhandar v. Municipal 260
261
Committee, [1965] 3 S.C.R. 499, Kamala Mills Ltd. v. State
of Bombay, [1966] 1 S.C.R. 64, K. S. Venkataraman & Co. v.
State of Madras, [1966] 2 S.C.R. 229 and Firm Radha Kishan
(deceased) represented by Hari Kishan v. Administrator,
Municipal Committee, Ludhiana, [1964] 2 S.C.R. 273, referred
to.
"Lettera Challan" workers do not fall within the expression
"Ordinary unskilled workers" which means such unskilled
workers as work for the prescribed period of a full day. On
the evidence adduced it is clear that the "lettera challan"
labour only works for half the day and is unwilling to work
for the prescribed period of full day. Such a case is
covered by the proviso to s. 15 and such labour is not
entitled to wages for a full normal working day. [272F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 288-291 of
1966.
Appeals by special leave from the judgment and order dated
December 7, 1962 of the Assam High Court in First Appeals
Nos. 16-19 of 1967.
P. K. Goswami and R. Gopalakrishnan, for the appellants
(in all the appeals).
H. R. Gokhale, Naunit Lal and B. P. Singh, for respondent
No.1 .(in all the appeals).
The Judgment of the Court was delivered by
Mitter, J. The central question in these appeals is, whether
the civil court had jurisdiction to entertain the suits and
grant the reliefs claimed.
The facts are as follows:-By a notification dated March 11,
1952 the Governor of Assam fixed the minimum wages which
were to come into force with effect from March 30, 1952,
consisting of basic wages and dearness allowance in terms of
cl. (i), sub-s. (1) of s. 4 of the Minimum Wages Act, 1948,
at the rates specified in the Schedule to the notification
payable to the employees employed in tea plantations in the
different districts of Assam. Under the notification, the
rates were to be exclusive of concessions enjoyed by the
workers in respect of supplies of food-stuff and other
essential commodities and amenities which were to continue
unaffected. Further, the existing tasks and hours of work
were to continue until further orders. The Schedule shows
that the notification was to apply to "ordinary unskilled
labour" which was again sub-divided into three classes,
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namely, (a) adult male (16 years and above); (b) adult and
female (16 years and above) and (c) working children (below
16 years and above 12 years). The rates were again to be
different in the different districts of Assam which were,
broadly speaking, divided into three sections. On April 16,
1952 the Government of Assam published the Minimum ’Wages
Rules which fixed the number of hours in the case of an
adult for a normal working day to nine hours, subject to a
maximum of 48 hours in a, week, On June 2, 1953, the Deputy
Commissioner of Lakhimpur served a notice on the manager of
one
262
of the appellants, Borhapjan Tea estate to the effect that
the minimum wages prescribed had not been paid to a number
of employees in accordance with the prescribed rate. The
addressee was required to pay the outstanding amount of
wages with the requisite amount of delayed compensation to
the employees in conformity with s. 20(3) of the Minimum
Wages Act and report compliance on or before the 10th of
June, 1953. The manager was further directed to show cause
why prosecution should not be sanctioned for violation of
the provision of the said Act. A list of the employees with
their names was given showing 24 men labourers, 58 women
labourers and one girl labourer. Similar notices were
issued to the managers of the other tea estates. The
managers submitted written replies to the authority denying
liability for payment of the amount claimed in the notice.
By order dated June 2, 1954 the above mentioned authority
directed the different tea estates to pay the difference
between the full minimum wages and the amounts actually paid
to the labourers. It does not appear that the authority
concerned held any inquiry or received any evidence beyond
meeting the managers of the four tea estates at the premises
of the Doom-Dooma Club where the Government Labour Officer
was also present. He however recorded an order dated June
2, 1954 to the effect that the contention of the managements
of the tea estates that the Lettera Challans who by reason
of their old age, infirmity and physical defects etc. were
incapable of performing a full normal working day’s work
could not be accepted. According to the order, "the point
for decision was, whether a Lettera Challan worker was
entitled to the same rate of wages as ordinary labour
working full normal working days". From the order, it
appears that the authority concerned knew of the employment
of this kind of sub-normal workers by various tea estates
but he held that, in the absence of an order for exemption
by the Government in terms of S. 26 of the Minimum Wages
Act, he had to guide himself by the notification mentioned.
He held further that under the Act and the Rules, Lettera
Challan labour, in spite of the amount of work (time or task
rate) performed by them was to be treated as ordinary labour
entitled to wages for a full normal day. He therefore
directed that the tea estates should pay the difference
between the full minimum wages and the amount actually paid,
together with compensation which he fixed at three times the
amount payable to each worker. The tea estates filed four
separate suits for a declaration that the orders of the
Deputy Commissioner, Lakhimpur dated June 2, 1954 were
illegal and void and without jurisdiction and a further
declaration that the employees mentioned (sub-normal
workers) were not entitled to full minimum wages without
performing a normal day’s task of without working the
prescribed number of working hours. The Subordinate Judge
framed a, number of issues including one regarding the
maintainability of the suits, heard evidence and came to the
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conclusion that the decision or orders of the Deputy Com-
missioner were all final in terms of the Minimum Wages Act
and the suits were barred "under the provisions of the Act".
The
263
learned Judges of the High Court of Assam, by a majority,
upheld the decision of the Subordinate Judge.
The evidence of the managers of the tea estates was to the
effect that in each tea garden there was a number of workers
described as Lettera Challans who were unwilling to perform
the normal tasks which were available to them as normal
labourers, that they worked for only half the day and were
unwilling to work for the full day as other labourers.
In order to determine whether a suit challenging the
decision of the authority under the Act is maintainable or
not, it is necessary to take a, note of the object of the
Act and its provisions in general. The Act was clearly
aimed at providing for fixing minimum rates of wages in
certain employments which were defined as scheduled
employments. An ’employee’ meant any person who was
employed for hire or reward to do any work, skilled or
unskilled, manual or clerical, in a scheduled employment in
respect of which minimum rates of wages had been fixed. S.
3 empowered the appropriate government to fix the minimum
rates Of Wages payable to, employees employed in an
employment specified in Part I or Part II of the Schedule
and in an employment added to either Part by notification
under s. 27. Under sub-s. (2) of s. 3 Government might fix
a minimum rate of wages for time work, a minimum rate of
wages for piece work, a minimum rate of remuneration in the
case of employees employed on piece work for the, purpose of
securing to such employees a minimum rate of wages on a time
work basis, and a minimum rate (whether a time rate or a
piece rate) to apply in substitution for the minimum rate
which would otherwise be applicable in respect of overtime
work done by employees. The section also empowered the
Government to fix different minimum rates in respect of
different scheduled employments as also different classes of
work in the same scheduled employment for adults,
adolescents, children and apprentices as also for different
localities. Under s. 4 the minimum rate of wages fixed
might consist of basic rate of wages and a special allowance
at a rate to be adjusted or a basic rate of wages with or
without the cost of living allowance. S.12 made it
obligatory on the employer to pay to every employee engaged
in a scheduled employment Wages at a rate not less than the
minimum rate of wages fixed by the notification. Under s.13
it was open to the appropriate government to fix the number
of hours of work which were to constitute a normal working
day in regard to any scheduled employment. S. 15 provided
as follows:
"If an employee whose minimum rate of wages
has been fixed under this Act by the day works
on any day on which he was employed for a
period less than the requisite number of hours
constituting a normal working day, he shall,
save as otherwise hereinafter provided, be
entitled to receive wages in respect of work
done by him on
264
that day as if he had worked for a full normal
working day:
Provided, however, that he shall not be
entitled to receive wages for a full normal
working day-
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(i) in any case where his failure to work is
caused by his unwillingness to work and not by
the omission of the employer to provide him
with work, and
(ii) in such other cases and circumstances as
may be prescribed."
S. 20 with the marginal note "claims" is divided into seven
subsections. Sub-s. (1) empowers the appropriate government
to appoint a person of the qualifications mentioned to be
the authority to hear and decide all claims arising out of
payment of less than the minimum rates of wages. Sub-s. (2)
provides for the application to the said authority for a
direction under sub-s. (3) in all cases where an employee
has any claim of the nature referred to in sub-s. (1). Such
application may be made inter alia by the employee himself
or any legal practitioner or any official of a registered
trade union. Sub-s. (3) runs as follows:-
"When any application under sub-section (2) is
entertained, the Authority shall hear the
applicant and the employer, or give them an
opportunity of being heard, and after such
further inquiry if any, as it may consider
necessary, may, without prejudice to any other
penalty to which the employer may be liable
under this Act, direct-
(i) in the case of a claim arising out of
payment of less than the minimum rates of
wages, the payment to the employee of the
amount by which the minimum wages payable to
him exceed the amount actually paid, together
with the amount of such compensation as the
Authority may think fit, not exceeding ten
times the amount of such excess-,
(ii) in any other case, the payment of the
amount due to the employee, together with the
payment of such compensation as the Authority
may think fit, not exceeding ten rupees, and
the Authority may direct payment of such
compensation in cases where the excess or the
amount due is paid by the employer to the
employee before the disposal of the
application."
Sub-s. (4) empowers the authority to levy a penalty not
exceeding Rs. 50/- if he is satisfied that the application
was either malicious or vexatious. Sub-s. (5) prescribes
for the manner of recovery of the amount directed to be paid
under the section. Under sub-s. (6) "every direction of the
Authority under this section shall be final".
265
Sub-s. (7) clothes every Authority appointed under sub-s.
(1) with the powers of a civil court under the Code of Civil
Procedure for the purpose of taking evidence and of
enforcing the attendance of witnesses and compelling the
production of documents etc. S. 24 contains an express
provision for the bar of suits of certain kinds. It reads:
"No Court shall entertain any suit for the
recovery of wages in so far as the sum so
claimed-
(a) forms the subject of an application
under section 20 which has been presented by
or on behalf of the plaintiff,or
(b) has formed the subject of a direction
under that section in favour of the plaintiff,
or
(c) has been adjudged in any proceeding
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under that section not to be due to the
plaintiff, or
(d) could have been recovered by an
application under that section".
Under s. 25 any contract or agreement by which an employee
relinquishes or reduces his right to a minimum rate of wages
etc, is to be null and void. Sub-s. (1) of s. 26 empowers
the appropriate government, subject to such conditions as it
may think fit to impose, to direct that the provisions of
the Act shall not apply in relation to the wages payable to
disabled employees.
Our task is to ascertain whether the above provisions of the
Act impose a bar on the institution of suits of the nature
described in this case either expressly or impliedly. The
question of maintainability of civil suits to challenge
actions purported to have been taken under certain special
statutes has engaged the attention of this Court in a number
of cases in recent years as also of the Judicial Committee
of the Privy Council before the establishment of this Court.
Under s. 9 of the Code of Civil Procedure "the courts have
jurisdiction to try all suits. of a civil nature excepting
suits of which their cognizance is either expressly or
impliedly barred". In Secretary of State v. Mask & Co.(1)
the question was, whether the order of the Collector of
Customs on an appeal under s. 188 of the Sea Customs Act
from a decision or an order passed by an officer of Customs
as to rate of duty leviable under a tariff excluded the
jurisdiction of the civil court to entertain a challenge on
the merits of the decision of the Officer of Customs. It
was pointed out that the determination of the question
depended on the terms of the particular statute under
construction and decisions on other statutory provisions
were not of material assistance except in so far as general
principles of construction were laid down. The Board relied
upon the exposition of law by Willes, J. in Wolverhampton
New Waterworks Co. v. Hawkesford(2) that-
"where a liability not existing at common law
is created by a statute which at the same time
gives a special and particular remedy for
enforcing it"
(1) 67 I.A. 222, 237.
(2) [1859] 6 C.B. (N.S.) 336.
266
the party must adopt the form of remedy given by the
statute. S. 188 of the Sea Customs Act was one of a number
of sections contained in Chapter XVII of the Act headed
"Procedure relating to offences, appeals etc." and included
ss. 169 to 193. S. 182 provided for liability to
confiscation or increased rates of duty in certain cases.
S. 188 laid down that any person deeming him-self aggrieved
by any decision or order passed by an officer of Customs
under the Act may, within three months from the date of such
decision or order, appeal therefrom to the Chief Customs
Authority, or, in such cases as the Local Government directs
to any officer of Customs not inferior in rank to a Customs-
Collector and empowered in that behalf by name or in virtue
of his office by the Local Government. Such officer or
authority may thereupon make such further enquiry and pass
such order as he thinks fit, confirming, altering or
annulling the decision or order appealed against and every
order passed in appeal under this section was to be, subject
to the power of revision conferred by s. 191, final.
According to the Judicial Committee ss. 188 and 191 contain-
ed a precise and self-contained code of appeal in regard to
obligations which were created by the statute itself, and it
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enabled the appeal to be carried to the supreme head of the
executive government. The Board observed:
"It is difficult to conceive what further
challenge of the order was intended to be
excluded other than a challenge in the civil
courts."
The well known dictum of this judgment to be found at p. 236
is that the exclusion of the jurisdiction of the civil
courts is not to be readily inferred, but such exclusion
must either be explicitly expressed or clearly implied and
even if jurisdiction was excluded the civil courts would
still have jurisdiction to examine into cases where the
provisions of the Act had not been complied with, or the
statutory tribunal had not acted in conformity with the
fundamental principles of judicial procedure.
In Pyx Granite Co. Ltd. v. Ministry of Housing and Local
Government(1) Viscount Simonds observed:
"It is a principle not by any means to be
whittled down that the subject’s recourse to
Her Majesty’s courts for the determination of
his rights is not to be excluded except by
clear words."
In Raleigh Investment Co. Ltd. v. Governor General in Coun-
cil(2) where the plaintiff-appellant had filed a suit
claiming a declaration that certain provisions of the Indian
Income-tax Act purporting to authorise the assessment and
charging to tax of a non-resident in respect of dividends
declared or paid outside British India, but not brought into
British India, were ultra vires the legislative powers of
the Federal Legislature and for repayment
(1) [1960] A.C. 260, 286. (2) 74 I.A. 50, 62.
267
of the sums mentioned, the Judicial Committee observed,
while dismissing the appeal, that
"In construing the sections it is pertinent,
in their Lordship’s opinion, to ascertain
whether the Act contains machinery which
enables an assessee effectively to raise in
the courts the question whether a particular
provision of the Income-tax bearing on the
assessment made is or is not ultra vires. The
presence of such machinery, though by no means
conclusive, marches with a construction of the
section which denies an alternative
jurisdiction to inquire into the same subject
matter."
The Judicial Committee examined the different provisions of
the Indian Income-tax Act in some detail including s. 67 of
the Act and came to the conclusion that as the machinery
provided by the Act could be effectively adopted by the
assessee complaining of ultra vires assessment "jurisdiction
to question the assessment otherwise than by use of the
machinery expressly provided by the Act would appear to be
inconsistent with the statutory obligation to pay arising by
virtue of the assessment."
It must be noted at once that the above extreme proposition
of law has not found favour here. This Court was not
prepared to accept the dictum in the judgment to the effect
that even the constitutional validity of the taxing
provision would have to be challenged by adopting the
procedure prescribed by the Income-tax Act-see Firm and
Illuri Subbayya Chetty & Sons v. The State of Andhra
Pradesh(1). In this case, the Court had to examine whether
s. 18-A of the Madras General Sales Tax Act, 1939 excluded
the jurisdiction of civil courts to set aside or modify any
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assessment made under the Act. S. 18-A there provided that
no suit or other proceeding shall, except as expressly
provided in this Act, be instituted in any court to set
aside or modify any assessment made under this Act. It was
common ground that there was no express provision made in
that Act under which the suit could be said to have been
filed. It was there emphasised that:
"..............while providing for a bar to
suits in ordinary civil courts in respect of
matters covered by s. 18-A, the legislature
has taken the precaution of safeguarding the
citizens’ rights by providing for adequate
alternative remedies. Section 11 of the Act
provides for appeals to such authority as may
be prescribed; s. 12 confers revisional
jurisdiction on the authorities specified by
it, s. 12-A allows an appeal to the appellate
Tribunal; s. 12-B provides for a revision by
the High Court under the cases specified in
it; s. 12-C provides for an appeal to the High
Court; and s. 12-D lays down that petitions,
applications and appeals to High Court should
be heard by a Bench of not less than two
Judges...... It could thus be seen that any
dealer who
(1) [1964] 1 S.C.R. 752, 760.
268
is aggrieved by an order of assessment passed’
in respect of his transactions, can avail
himself of the remedies provided in that
behalf by these sections of the Act. It is in
the light of these elaborate alternative
remedies provided by the Act that the scope
and effect of S. 18-A must be judged."
In Kala Bhandar v. Municipal Committee(1)-a suit for refund
of excess tax purported to be recovered under the Central
Provinces and Berar Municipalities Act (2 of 1922)-this
Court examined the principles laid down in the above cases
and said:
"Further, one of the corollaries flowing from
the principle that the Constitution is the
fundamental law of the land is that the normal
remedy of a suit will be available for
obtaining redress against the violation of a
constitutional provision. The court must,
therefore, lean in favour of construing a law
in such a way as not to take away this right
and render illusory the protection afforded by
the Constitution."
The Court found that there was no machinery provided by the
Act for obtaining a refund of tax assessed and recovered in
excess of the constitutional limit and that the machinery
actually provided by the Act was not adequate for enabling
an assessee to challenge effectively the constitutionality
or legality of assessment or levy of a tax by a municipality
or to recover from it what was realised under an invalid
law.
In Kamala Mills Ltd. v. State of Bombay(2) this Court had to
examine the question whether a suit filed by the Mills
challenging assessments made under the Bombay Sales Tax Act,
1946 was barred under the provisions of s. 20. The said
section read as follows:
"Save as is provided in S. 23, no assessment
made and no order passed under this Act or the
rules made thereunder by the Commissioner or
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any person appointed under s. 3 to assist him
shall be called into question in any civil
court, and save as is provided in sections 21
and 22, no appeal or application for revision
shall lie against any such assessment or
order."
After examining the various sections of the Act including S.
5 the charging section, s. 10 imposing an obligation on
dealers to make returns, s. 11 dealing with the assessment
to tax and the procedure to be followed in respect thereof,
s. 11-A dealing with turnover which had escaped assessment
and the right to prefer an appeal and a revision under ss.
21 and 22 of the Act, the Court said:
"It would thus be seen that the appropriate
authorities have been given power in express
terms to examine the
(1) [1965] 3 S.C.R. 499. (2) [1966] 1 S.C.R. 64, 75.
269
returns submitted by the dealers and to deal
with..the question as to whether the
transactions entered into by the dealers are
liable to be assessed under the relevant
provisions of the Act or not. In our opinion,
it is plain that the very object of
constituting appropriate authorities under the
Act is to create a hierarchy of special
tribunals to deal with the problem of levying
assessment of sales tax as contemplated by the
Act. If we examine the relevant provisions
which conferred jurisdiction on the
appropriate authorities to levy assessment on
the dealers in respect of transactions to
which the charging section applies, it is
impossible to escape the conclusion that all
questions pertaining to the liability of the
dealers to pay assessment in respect of their
transactions are expressly left to be decided
by the appropriate authorities under the Act
as matters falling within their jurisdiction.
Whether or not a return is correct; whether or
not transactions which are not mentioned in
the return, but about which the appropriate
authority has knowledge, fall within the
mischief of the charging section; what is the
true and real extent of the transactions
which are assessable; all these and priate
authorities themselves............ The
whole activity of assessment beginning with
the filing of the return and ending with an
order of assessment, falls within the
jurisdiction of the appropriate authority and
no part of it can be said to continue a
collateral activity not specifically:and
expressly included in the jurisdiction of the
appropriate authority as such."
it was in the light of these provisions of the Act that s.
20 had to be examined and this Court held that "the words
used were so wide that even erroneous orders of assessment
made would be entitled to claim its protection against the
institution of a civil suit"-see [1966] 1 S.C.R. at page
78. To quote the words of the judgment itself :
"In every case, the question about the
exclusion of the jurisdiction of civil courts
either expressly or by necessary implication
must be considered in the light of the
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words used in the statutory provision on which
the plea is rested, the scheme of the relevant
provisions, their object and their purpose."
The Court further said:
"Whenever it is urged before a civil court that its
jurisdiction is excluded either expressly or by necessary
implication to entertain claims of a civil nature, the court
naturally feels inclined to consider whether the remedy
afforded by an alternative provision prescribed by a special
270
statute is sufficient or adequate. In cases
where the exclusion of the civil courts’
jurisdiction is expressly provided for, the
consideration as to the scheme of the statute
in question and the adequacy or sufficiency of
the remedies provided for by it may be
relevant but cannot be decisive. But where
exclusion is pleaded as a matter of necessary
implication, such considerations would be very
important, and in conceivable circumstances,
might even become decisive. If it appears
that a statute creates a special right or a
liability and provides for the determination
of the right and liability to be dealt with by
tribunals specially constituted in that
behalf, and it further lays down that all
questions about the said right and liability
shall be determined by the tribunals so
constituted, it becomes pertinent to enquire
whether remedies normally associated with
actions in civil courts are prescribed by the
said statute or not. The relevance of this
enquiry was accepted by the Privy Council in
dealing with s. 67 of the Income Tax Act in
Raleigh Investment Co.’s case(1) and that is
the test which is usually, applied by all
civil courts."
We may also note the case of K. S. Venkataraman & Co. v.
State of Madras(2) where the above authorities were again
examined at some length. Here too the main question was,
whether the suit was not maintainable under s. 18-A of the
Madras General Sales Tax Act, 1939. It was held by a
majority of this Court that the validity of an order by an
authority acting under the provision of a statute which was
ultra vires would be open to challenge in a civil court.
Referring to the case of Firm Radha Kishan (Deceased)
represented by Hari Kishan v. Administrator, Municipal Com-
mittee, Ludhiana(3) it was said that:
" a suit in a civil court will always lie to
question the order of a tribunal created by a
statute, even if its order is, expressly or by
necessary implication made final, if the said
tribunal abuses its power or does not act
under the Act but in violation of its
provisions."
There can be no question in this case that the minimum Wages
Act cuts across the contract between the employer and the
employee and wherever applicable the employer is obliged to
pay the minimum wages or take the consequences of failure to
pay it. Any employee who feels himself aggrieved by the
refusal of the employer to pay the minimum wages fixed under
the Act has the right to make a complaint either by himself
or through the prescribed agents to the Authority mentioned
in the Act. Under sub-s. (3) of s. 20, the Authority has to
hear the applicant and the employer or give them an
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opportunity of being heard and could ,straightaway give a
direction as regards the alleged non-payment
(1) I.A. 50. (2) [1966] 2 S.C.R. 229.
(3) [1964] 2 S.C.R. 273.
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of the minimum rates of wages and such compensation as he
thinks fit not exceeding ten times the amount of the excess
of the minimum wages over that which was paid. It is true
that the sub-section provides for a further inquiry but such
inquiry is to be at the discretion of the authority. The
nature and scope of the inquiry would depend on the exact
controversy raised in the case. If it be of a trivial
nature, the tribunal can probably deal with it in a summary
manner, but where it is alleged that the notification under
the Act is not applicable to a. certain class of workers it
is the duty of the authority to give a proper hearing to the
parties allowing them to tender such evidence as they think
proper before making an order which may have far-reaching
consequences. The authority in this case instead of
recording any evidence and properly hearing the matter,
disposed of it in a perfunctory manner which could hardly be
called a hearing. As a matter of fact, the only inquiry
which took place in this case was a, very informal one in
the premises of the Doom-Dooma club for the space of half an
hour or so when the Authority had a talk with the managers
of the tea estates. There is no provision for appeal or
revision against the direction of the Authority although he
may levy a penalty to the extent of ten times the amount by
which the minimum wages overtop the payment actually made.
Whatever he says is the final word on the subject. All this
can but lead to the conclusion that s. 20 was not aimed at
putting a, seal on the adjudication, if any, under it. It
was to be of a nature which suited the discretion of the
officer concerned although he was given the powers of a
civil court in certain respects. In such a situation, it is
impossible to hold that the legislature meant to exclude the
jurisdiction of civil courts to go into the question of non-
payment of minimum wages claimed as final. In our opinion,
sub-s. (6) of s. 20 merely shows that the discretion of the
Authority could not be questioned under any provision of the
Act. It does not exclude the jurisdiction of the civil
court when the challenge is as to the applicability of the
Act to a certain class of workers.
It is pertinent to note that s. 24 of the Act creates an
express bar in respect of a particular kind of suits,
namely, suits for recovery of wages in certain
eventualities. The obvious intention was that a poor
employee was not to be driven to fit-- a suit for the
payment of the deficit of his wages but that he could avail
himself of the machinery provided by the Act to get quick
relief. It does not in terms bar the employer from
instituting a suit when his claim is that he has been called
upon to pay wages and compensation to persons who are not
governed by the notification under the Minimum Wages Act.
On an analysis of the provisions of the Act, we find (1)
suits of the nature to be found in this case are not
expressly barred by the Act; (2) there is no provision for
appeal or revision from the direction of the authority given
under s. 20(3) of the Act; and (3) the authority acting
under s. 20(3) might levy a penalty which might be as high
as ten times the alleged deficit of payment which
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again is not subject to any further scrutiny by any higher
authority. In view of our findings as above, as also the
fact that the authority in this case disregarded the
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provision as to hearing and inquiry contained in the Act for
all practical purposes, we hold that the civil court had
jurisdiction to entertain the suits.
The question next arises as to whether the plaintiff’s made
out any case for relief. In our view, the plaintiffs were
clearly entitled to relief. The notification dated March
11, 1952 was clearly applicable only to "ordinary unskilled
labour". The word ’ordinary’ has in our opinion, some
significance. It means "usual, not exceptional". In other
words, ordinary unskilled labour must mean unskilled labour
prepared to work and working in the ordinary way. If under
r. 24 of the rules framed under this Act the period of work
is fixed at nine hours a day, a labourer who cannot work for
more than half of it, does not fall within the category of
ordinary unskilled labour. A lettera challan cannot work
due to his incapacity, old, age, infirmity, etc. According
to’ the evidence of the ’managers of the tea gardens, they
were unwilling to work for more than half the day because of
their physical condition. It was due to their want of
physical strength to work for nine hours a day and not the
inability or unwillingness of the employer to find
employment for them for a full day. Take for instance the
’facts in Pabbojan Company’s case. According to the
evidence of its manager, the labour force in the estate
consisted of 1650 labourers while the number of sub-normal
workers was 83 before March 30, 1952. It cannot be
suggested that if the tea garden could provide work for 1567
labourers working nine hours a day, it could not do so for
an additional number of 83 persons. As the manager said,
these persons were unwilling to perform the normal tasks
which were available to them as normal labourers. The
manager also said that lettera challans (sub-normal
workers) always go off at 11 or 12 midday. Take again the
evidence of Bairagi, a worker of the Rupai Tea Estate. He
said that some years before he was examined in court, he
used to work as a carpenter. As a result of a fall from a
house, he had pain on his chest and approached the doctor
and requested him to enter his name as lettera challan. He
frankly admitted that he got into lettera challan because he
could not complete the full task. The evidence of the
managers and of this the only witness on this point on
behalf of labour establishes beyond doubt that lettera
challan could not work a full day and as such they were not
ordinary unskilled labour. As such their case would be
covered by the proviso to S. 15 and they would not be
entitled to receive wages for a full normal working day,
because of their unwillingness to work. It does not matter
whether some of the lettera challans could also be said to
be disabled employees who would come within the purview of
S. 26(1) of the Act. From the evidence of the managers, it
is clear that the system of lettera challans had been in
force for very many years. The record does not show nor are
we in a position to guess why an exception was not made in
their case in the notification. But
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even in the absence of any mention of lettera challans in
the notification, sub-normal workers who are unwilling to
work for more than half a day are not entitled to receive
what ordinary unskilled labourers working nine hours a day
get. The object of the Act is to ensure some sort of
industrial peace and harmony by providing that labour cannot
be exploited and must at least be provided with wages which
are fixed at certain minimum rates. It would go against
such a principle if the courts were to uphold that persons
who cannot work for more than half a day should receive what
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others working a full day get. However, that is a matter
which the appropriate government may consider.
We therefore hold that the orders of the defendant No. 1
dated June 2, 1954 were not binding on the plaintiffs-
appellants. We declare that the subnormal workers of the
tea estates (commonly known as Lettera challans) were not
entitled to full minimum wages without performance of a
normal day’s task or without working the prescribed number
of hours. We also direct a perpetual injunction to issue
against the defendant No. 1 restraining him from enforcing
the orders dated June 2, 1954. The appeals are therefore
allowed’ and the decrees passed by the Subordinate Judge and
the High Court of Assam are set aside. There will be no
order as to costs.
Y.P. Appeals allowed.
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