Y. A. Mamarde & Ors Vs. Authority under
The Minimum Wages Act  INSC 106 (12 April 1972)
CITATION: 1972 AIR 1721 1973 SCR (1) 161 1972
SCC (2) 108
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.
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 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 162 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.
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 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.
163 (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.
(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
(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.
(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 164 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." 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
"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, 165 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, 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.
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 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.
167 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
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
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 employees
of the corporation are already being paid much 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
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 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 minimum
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
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.