Full Judgment Text
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PETITIONER:
Y. A. MAMARDE AND ORS.
Vs.
RESPONDENT:
AUTHORITY UNDER THE MINIMUM WAGES ACT(SMALL CAUSES COURT) NA
DATE OF JUDGMENT12/04/1972
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
VAIDYIALINGAM, C.A.
MITTER, G.K.
CITATION:
1972 AIR 1721 1973 SCR (1) 161
1972 SCC (2) 108
ACT:
Minimum Wages Act, 1948-S. 20-Whether the workmen entitled
to double the wages with regard to overtime work done by
Them on weekly rest days under Rule, 25 of the M.P. Minimum
Wages Rules, 1951.
HEADNOTE:
Nine employees of the octroi department, 13 employees of the
water works. department and a time keeper of Nagpur
Corporation applied under s. 20 of the Minimum Wages Act to
the Small Causes Court of Nagpur for overtime wages at the
rate of double the wages for the period they worked beyond
prescribed hours and holidays.
The authority raised several issues but they were decided
against the applicants and their applications were
dismissed. Being aggrieved the said decision, four
applications were presented before the High Court under Art.
227 of the Constitution and the High Court also upheld the
view of the authority.
It was contended by the appellants that under Rule 25 of
M.P. Minimum Wages Rules, 1,1951, they were entitled to
overtime wages at double the ordinary rate of wages for the
period they worked beyond prescribed hours and holidays.
For their claims they relied on 2 minimum wages notification
one dated 21-2-51 and the other dated 23-2-56.
On behalf of the appellants the only point canvassed before
this Court was the rejection of their claim with regard to
overtime work done by them and work done on weekly rest
days.
The respondent contended that as the employees of the
Corporation were paid higher wages than those fixed under
the Act as minimum wages, the Act did not operate, and the
employer could not be compelled to pay higher wages..
Secondly, the second notification did not supersede the
first notification-which only applied to unskilled labour as
to, cover all employees skilled or unskilled. Further, the
provision inquiring payment at double the ordinary rate of
wages contained in Rule 25 must be read as the ordinary rate
of minimum wages fixed. Allowing the appeal,
HELD : (i) Rule 25 contemplates overtime work at double the
rate of wages, which the worker actually receives, including
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the casual requisite and other advantages mentioned in the
explanation. By using the phrase "double the ordinary rate
of wages", the rule making authority intended that the
worker should be the recipient of double the remuneration
which he, in fact, ordinarily receives, and not double the
rate of minimum wages fixed for him under the Act. Had it
been intended to provide for merely double the minimum rate
of wages fixed under the Act, the rule making authority
could have so expressed its intention in clear and explicit
words. The word "Ordinary" used in rule 25 reflects the
actuality rather than the workers’ minimum entitlement under
the Act. 169A-D]
(ii) The second notification was not applicable to all
categories of labour as wrongly held by the High Court. The
second notification has to be read in the background of the
first notification with the result that
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the later notification must also to,-be held to be confined
to unskilled labour in so far as it varies revises some of
the rates fixed in the earlier notification without
extending its operational boundaries by deleting the word
"unskilled" from the explanation "unskilled labour". [170G]
Union of India v B. D. Rathi, A,. I. R . 1963, Bom,. 54,
referred to and distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: C.A. No. 1704 and 1937 of
1967.
Appeals by special leave from the judgment and order dated
,August 19, 1966 of the Bombay High Court, Nagpur Bench in
Special Civil Applications No. 853 and 941 of 1965
respectively.
H. W. Dhabe and A. G. Ratnaparkhi, for the appellants (in
both the appeals).
W. S. Barlingay and P. C. Bhartari, for respondent No. 2
(in both the appeals).
The Judgment of the Court was delivered by-
Dua, J.-These two appeals by special leave (C. As Nos. 1704
and 1937 of 1967) are directed against the, judgment of a
Division Bench of the Bombay High Court dated August 19,
1966 ,dismissing four applications under Art. 227 of the
Constitution arising out of orders made by the Authority
under the Minimum Wages Act 11 of 1948 (hereinafter called
the Act) in respect of claims made by employees of- ’the
’City of Nagpur Corporation’ (hereinafter called the
Corporation) working in various Departments of the
Corporation.
On July 13, 1964 Sitaram Madhorao, Chaukidar and 9 other
employees of the Octroi Department of the Corporation filed
an application under s. 20 of the Act in the Court of Small
Causes at Nagpur, which was the Authority. appointed under
the .Act. The application was presented through the General
Secretary of the Nagpur Corporation Employees’ Association
which was a registered trade union. The application is
brief and, therefore, we consider it proper to reproduce its
material parts in its own words
"The applicants above named beg to submit as
under
(1) That the applicants are employees
working in non-applicant No. 1, Nagpur
Corporation in Department of School & ors.
The Minimum wages notification has been issued
in respect of this industry by Government on
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21-2-1951 and the minimum rates of wages are
fixed 1-12 per day for eight hours.
(2) That the applicants have not been paid
overtime wages, for this period though they
are entitled-to get double the wages as
they are required to work beyond prescribed
hours and holidays.
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(3) That the applicants have been required
to work overtime for 30, 65, 8 and 51 hours
every week during the period from 1-1-1964 to
30-6-1964 and total claim are shown in the
annexure. The total amount- claimed is Rs.
8670.18.
(4) That the applicants estimate the value
of the relief sought by them of the sum of Rs.
8670.18.
(5) Applicants pray that a direction may be
issued under section 3 of the Section 29 for
(a) payment of the difference between the
wages due according to mini-mum rate of wages
fixed by job and wages actually paid amount
overtime wages Rs. 8670.18.
(B) Compensation amounts to Rs. 100.00.
(6) That demand has been made for this
overseer claim from 1-1-1964 to 30-6-1964."
Earlier on June 26, 1964 T. R. Khante, Time-keeper and 13
other employees of the Water Works Department of the
Corporation had similarly applied under s. 20 of the Act
through B. M. Mahale, General Secretary of the Nagpur
Corporation Employees’ Association. This application reads
:
"The applicants above named bee., to submit as
under
(1) That the applicants are employees
working in non-applicant No. 1, Nagpur
Corporation in Department of Water Works. The
minimum wages notification has been issued in
respect of this industry by Government on
21-2-1951 and the minimum rates of wages are
fixed 1-12 per day for eight hours.
(2) That the applicants have not been paid
overtime wages for this period though they are
entitled to to get double the wages as they
are required to work beyond prescribed hours
and holidays.
(3) That the applicants have been required
to work overtime for 8 hours every week during
the period from 1-8-63 to 31-1-64 and the
total claim are shown in the annexure. The
total amount claimed is Rs. 1987.48.
(4) That the applicants estimate the value
of the relief sought by them of the sum of Rs.
1047.48.
(5) Applicants pray that direction may be
issued under section (3) of the section 29 for
(a) payment of
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the difference between the wages due according
to the minimum rate of wages fixed by the job
and wages actually paid amount overtime wages
Rs. 1047.48.
(6) That compensation amounts to Rs. 140.00.
(7) That demand has been made for this claim
from 1-8-63 to 31-8-64."
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On November 10, 1964 some preliminary objections raised by
the Corporation were disallowed by the Authority and the
applications were directed to be tried on the merits.
On February 17, 1965 the Authority made an order on the
following four issues which arose out of the claims made by
the employees :
"1. Whether the applicants employed as a time-
keeper, wireman and lineman belong to the
category of unskilled workers ?
2. Whether the applicants who belong to the
category of skilled or semi-skilled labour can
apply under section 20 of the Minimum Wages
Act ?
3. Whether the applicants have worked on
weekly days of rest (Sundays) ?
(a) If so, whether they are entitled to
wages for work done on the weekly days of rest
?
4. Whether the Chowkidars and Motor-drivers
have worked in excess of the number of hours
constituting a normal working day ?
(a) If so, to what wages for overtime work
are they entitled?"
Under issue no. 1 the wireman was held to be a skilled
worker and the time-keeper and lineman, semi-skilled,
disagreeing with their contentions that they were unskilled
workers. Under issue no. 2 the Authority held that the
second notification of 1956 only provided for the minimum
rates of wages of unskilled labour including casual labour
in. the employment of the City of Nagpur Corporation. The
applicants mentioned in issue no. 2 who had worked on weekly
days of rest i.e., Sundays were accordingly held disentitled
to claim wages for work done on those days in the absence of
any provision made by the State Government under s. 13 (1)
(c) of the Act. Rule 25 of the M.P. Minimum Wages Rules was
held not to provide for payment for work on a day of rest
envisaged by s. 13 (1 ) (c) of the Act. Though in view of
this decision under issue no. 2 issue no. 3 was held not to
survive, still a decision on issue no. 3 was also recorded,
the details of which,
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are not necessary to mention. Under issue no. 3 (a), in the
absence of a provision by the State Government under s. 1 3
(1) (c) of the .Act for payment for work done on weekly days
of rest the applicants were held disentiled to claim payment
under the Act. Issue No. 4 and 4(a) were decided against
the chowkidars and the motor driver concerned. All the four
applications were accordingly dismissed with costs.
Feeling aggrieved by the order of the Authority four special
civil applications were presented in the Bombay High Court,
Nagpur Bench, under Art. 227 of the Constitution. The High
Court disagreed with the view of the Authority on the
interpretation of the second notification and held that the
second notification was intended to, apply to all employees
and was not confined only to unskilled workmen as was the
case with the notification of 1951. It, however, upheld the
view of the Authority that ordinary rate of wages
contemplated by r. 25 means ordinary minimum rate of wages,
considering this view to be in accordance with the view
taken by the Bombay High Court in the Union of India v. B.
D. Rathi(1).
On behalf of the appellants the only point.canvassed in
these two appeals arises out of the rejection of their claim
with regard to overtime work done by them and work done by
them on weekly rest days. On behalf of the respondents,
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however, it was contended that the High Court was wrong in
the construction placed by it, on the notification of 1956.
Minimum Wages were fixed by the Government by means of a
notification under s. 5 of the Act on February 21, 1951.
According to this notification the Government fixed "minimum
rates of wages for unskilled labour including casual labour
in respect of scheduled employments" mentioned in the
schedule in that notification. The item which concerns us
is item No. 2 which reads as "employment under any Local
Authority". Various rates were fixed for certain categories
of employees against this item. This notification so far as
relevant reads :
"Nagpur, the 21st February, 1951.
No. 848-1758-XXIII of 1950-In exercise of the powers
conferred by sub-section (2) of s. 5 of the Minimum Wages
Act 1948 (XI of 1948) the State Government are pleased to
fix the following minimum rates of wages for unskilled
labour including casual labour in respect of the scheduled
employments as mentioned in the schedule below, the same
having been previously published as inquired by clause (b)
of sub-section (1) of
(1) A.I.R. 1963 Bom. 54.
166
the said section and further to direct that they shall come,
into force at once:
Schedule of the Minimum rates of Wages
Serial No. and name of Schedule employment :
Minimum rates of wages for unskilled labour
(including casual labour)
2. Employment under any local authority
Re. 12/- per day for adult female labour at
all other centres.
Re. 1 /- Per day for adult male at Nagpur town
and in Bhandara and Balaghat Districts.
Re. /14/- in Wardha, Buildara, Akola, Nimar,
Hoshangabad and Nagpur districts (including
Nagpur town).
Re. /13/- in Jabalpur, Katni, and Sagar towns
and places within 10 miles radius of these
towns.’ Re. /12/- in Amravati, Yeotamal,
Betul and chanda Districts.
In this notification minimum wages in respect
of some other categories of employees. which
do not concern us were also fixed.
On February 23, 1956 the Government issued the
following notification fixing, revised minimum
rates of wages in supersession of those fixed
under the notification of 1951 :
"No. 566-451-XXIII.-In exercise of the powers
conferred by clause (b) of subsection (1) of
section 3 read with sub-section (2) of section
10 of the Minimum Wages Act, 1948 (?(I of
1948) and after consulting the Advisory
Committee and the Advisory Board as required
by sub-section (1) of section 5 thereof, the
State Government are pleased to revise the
minimum rates of wages in respect of the
scheduled employment as mentioned in schedule
below in supersession of those fixed under
this department notification no. 484-1758-
XXIII of 1950 dated the 21st February, 1951
and to further direct that the minimum rates
of wages so revised shall come into force at
once
SCHEDULE
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Name (if scheduled employment: (Employment
under any local authority).
Minimum rates of wages : Re. 1/2/- per day for
adult male and Rs. /12/- for adult female
labour at Nagpur, Jabalpur and Akola. Re.
-/14/- per day for adult male and Re. /9/-
for adult female labour in all other centres.
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The above rates are inclusive of dearness
allowance or compensatory cost of living
allowance and are subject to reduction on
account of concessions in respect of supplies
of essential commodities at concession rates
supplied by the employer when so authorised
under section II of the said Act."
As observed earlier, the respondents raised the question
that. second notification did not supersede the earlier
notification as to take within its fold all employees as
held by the High, Court but it was only confined to
unskilled labour including casual labour the minimum rates
of whose wages were determined under the earlier
notification of 1951. To this aspect we will revert later.
The point strenuously canvassed on behalf of the appellants.
relates to the construction to be placed on r. 25 of the M.
P. Minimum Wages Rules, 1951 made under s. 30 of the Act.
That, rule provides for extra wages for overtime and reads :
"25. Extra wages for overtime : When a worker
works in an employment for more than nine
hours on any day or for more than fifty-four
hours in an week, he: shall, in respect of
overtime work, be entitled to wages-
(a) in the case of employment in
agriculture, at one and a half time the
ordinary rate of wages-,,
(b) in the case of any other scheduled
employment, at double the ordinary rate of
wages.
Explanation.-The expression ’ordinary rate of
wages’ means the basic wage plus such
allowances including the cash equivalent of
the advantages accruing through the
concessional sale to the person employed of
food-grains and other articles as the person
employed is for the time being entitled to but
does not include bonus.
(2) A resister showing overtime payments
shall be kept in Form IV.
(3) Nothing in this rule shall be deemed to
affect the provisions of the Factories Act,
1948."
It is common ground between the parties that’ Sunday has
been declared to be a day of rest and the normal working
hours per day are 9 hours a day or 54 hours a week.
According to Shri Dhabe the appellants’ learned counsel the
words "at double the ordinary rate of wages" used in cl. (b)
of r. 25 mean double the rate of wages which are actually
being paid to the employees concerned and not double the
rate of wages fixed under the Act as minimum wages, whereas
according to Dr. Barlingay, learned counsel for the
respondent, the Act is only concerned with providing
168
for minimum wages and if an employee is being paid more,
than minimum wages so provided, the Act does not operate and
the employer cannot be compelled to pay higher wages. The
em-ployees of the corporation are already being paid much
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higher wages than those fixed under the Act as minimum wages
and, therefore, so contended Dr. Barlingay, there is no
legal obligation on the employer to pay higher wages. The
provision requiring payment at double the ordinary rate of
wages contained in r. 25, must, according to the
respondent’s argument, be read as "the ordinary rate of
minimum wages fixed."
Let us first deal with this question. The Act which was
enacted, in 1948 has its roots in the recommendation adopted
by the International Labour Conference in 1928. The object
of the Act as stated in the preamble is to provide for
fixing minimum rates of wages in certain employments and
this seems to us to be, clearly directed against
exploitation of the ignorant, less organised and less
privileged members of the society by the capitalist class.
This anxiety on the part of the society for improving the
general economic condition of some of its less favoured
members appears to be in supersession of the old principle
of absolute freedom of ’contract and the doctrine of laissez
faire and in recognition of the new principles of social
welfare and common good. Prior to our Constitution this
principle was advocated by the movement for liberal
employment in civilised countries and the Act which is a
pre-Constitution measure was the offspring of that movement.
Under our present Constitution the State is now expressly
directed to endeavour to secure to all workers (whether
agricultural, industrial or otherwise) not only bare
physical subsistence but a living wage and conditions of
work ensuring a decent standard of life and full enjoyment
of leisure. This Directive Principle of State Policy being
conducive to the general interest of the public and,
therefore, to the healthy progress of the nation as a whole,
merely lays down the foundation for appropriate, social
structure in which the labour will find its place of
dignity, legitimately due to it in lieu of its contribution
to the progress of national economic prosperity. The Act
has since its enactment been amended on several occasions
apparently to make it more and more effective in achieving
its object which has since secured more firm support from
the Constitution. The present rules under s. 30, it may be
pointed out, were made in October, 1950 when the State was
under a duty to apply the Directive Principles in making
laws. No doubt the Act, according to its preamble, was
enacted to provide for fixing minimum rates of wages, but
that does not necessarily mean that the language of r. 25
should not be construed according to its ordinary, plain
meaning, provided of course, such construction is not
inconsistent with the provisions of the Act and there is no
other compelling reason for adopting a different
construction. A preamble though a key to open the mind of
the Legislature, cannot be
169
used to control or qualify the precise and unambiguous
language of the enactment. It is only in case of doubt or
ambiguity that recourse may be had to the, preamble to,
ascertain the reason for the enactment in order to discover
the true legislative intendment. By using the phrase
"double the ordinary rate of wages" the rule-making
authority seems to us to have intended that the worker
should be the recipient of double the remuneration which he,
in fact, ordinarily receives and not double the rate of
minimum wages fixed for him under the Act. Had it been
intended to provide for merely double the minimum rate of
wages fixed under the Act the rulemaking authority could
have so expressed its intention in clear and explicit words
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like "double the minimum rate of wages fixed under the Act".
This intendment would certainly have been stated in the
explanation added to r. 25 (1 ) in which the expression
"ordinary rate of wages" has been explained. The word
"ordinary" used in r. 25 reflects the actuality rather than
the worker’s minimum entitlement under the Act. To accept
Dr. Barlingay’s suggestion would virtually amount to
recasting this phrase in r. 25 for which we find no
justification. This rule calls for practical construction
which should. ensure to the worker an actual increase in the
wages which come into his hands for his use and not increase
calculated in terms of the amount assured to him as a
minimum wage under the Act. The interpretation suggested on
behalf of the respondents would have the effect of depriving
most of the workers who are actually getting more than the
minimum wages fixed under the Act of the full benefit of the
plain language of r. 25 and in case those workers are
actually getting more than or equal to double the minimum
wages fixed, this provision would be of no benefit at all.
This construction not only creates a mere illusory benefit
but would also deprive the workers of all inducement to
willingly undertake overtime work with the result that it
would to that extent fail to advance and promote the, cause
of increased production. We are, therefore, clearly of the
view that r. 25 contemplates for overtime work double the
rate of wages which the worker actually receives, including
the casual requisites and other advantages mentioned in the
explanation. This rate, in our opinion, is intended to be
the minimum rate for wages for overtime work. The extra
strain on the health of the worker for doing overtime work
may well have weighed with the rule making authority to
assure to the worker as minimum wages double the ordinary
wage received by him so as to enable him to maintain proper
standard of health and stamina. Nothing rational or
convincing was said at the bar why fixing the minimum wages
for overtime work at double the rate of wages actually,
received by the workmen should be considered to be outside
the purpose and object of the Act. Keeping in view the
overall purpose and object of the Act and viewing it
harmoniously with the general scheme of industrial
legislation in the country in the background. of the
Directive Principles contained in our. -1208SupCI/72
170
Constitution the minimum rates of wages for overtime work
need not as a matter of law be confined to double the
minmium wages fixed but may justly be fixed at double the
wages ordinarily received by that workmen as a fact. The
Bombay High Court has no doubt held in Union of India v. B.
D. Rathi(1) that "or dinary rate of wages" in r. 25 means
the minimum rate for normal work fixed under the Act. The
learned Judges sought support for this view from S. 14 of
the Act and r. 5 of the Railway Servants (Hours of
Employment) Rules, 1951. The workers there were employees
of the Central Railway. With all respect we are unable to
agree with the approach of the Bombay High Court. Section
14 of the Act merely lays down that when the employee, whose
minimum rate of wages is fixed by a prescribed wage period,
works in excess of that period the employer shall pay him
for the period so worked in excess at the overtime rate
fixed under the Act. This section does not militate against
the view taken by us. Nor does a provision like r. 5 of the
Railway Rules which merely provides for 54 hours employment
in a week on the average in any month go against our view.
The question is not so much of minimum rate as contrasted
with the contract rate of wages as it is of how much actual
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benefit in the form of receipt of wages has been intended to
be assured to the workman for doing overtime work so as to
provide adequate inducement to them willingly to do overtime
work for increasing production in a peaceful atmosphere in
the industry. The problem demands a liberal and rational
approach rather than a doctrinaire or technical legalistic
approach. The contract rate is not being touched by
holding that r. 25 contemplates double the rate of wages
which actually come into the workman’s hands any more than
it is touched by fixing the minimum rate of wages under ss.
3, 4 and 5 of the Act. The decision of the Mysore High
Court in Municipal Borough, BiJapur v. Gundawan (M.N.) &
ors.(2) and of the Madras High Court in Chairman of the
Madras Port Trust v. Claims Authority & ors. (3) also take
the same view as the Bombay High Court does. We need not,
therefore, deal with them separately.
Coming now to the notifications, in our view the
notification dated February 23, 1956 has to be read in the
background of the notification dated February 21, 1951 with
the result that the later notification must also be held to
be confined to unskilled labour. It is no doubt true that
the notification of 1951 dealt with several categories of
employees. But that in our opinion does not militate
against the construction that the. second notification has
only to be adjusted with and fitted into the first
notification in so far as it varies or revises some of the
rates fixed in the earlier notification without extending
its operational boundaries by deleting the word "unskilled"
from the expression "unskilled labour". The
(1) A.I.R. 1963 Bom. 54. (2) A.I.R. 1965 Mys. 317. (3)
A.I.R. 1957 Mad- 69
171
High Court was, therefore, not right in holding the second
notification to be applicable to all categories of labour.
The result, therefore, is that both the appeals are allowed
and the case is sent back to the Authority under the Minimum
Wages Act for a fresh decision in accordance with law and in
the light of the observations made above. Dr. Barlingay
undoubtedly desired us to go into various claims of the
employees but in our view it would be more in the interest
of justice that the matter is remitted back to the
Authority, for a fresh decision. The appellants would get
their
costs in this Court.
S.N.
Appeals allowed.
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