The Pabbojan Tea Co. Ltd., Vs. The
Deputy Commissioner, Lakhimpur [1967] INSC 179 (18 August 1967)
18/08/1967 MITTER, G.K.
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 farreaching consequences and which
is final under s. 20(6) of 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]
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, 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 conclusion that the decision or orders of the Deputy Commissioner
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(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 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 there from 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
CustomsCollector 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 contained a precise and self-contained code of appeal in regard to
obligations which were created by the statute itself, and it 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 Council(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 assessment made under the Act. S. 18-A their 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 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 printe 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 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 Committee,
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
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.
271 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 nonpayment 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 272 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 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 273 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 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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