M.P. BIDI UDYOG SANGH, SAGAR Vs. STATE OF M.P.
LAWS(MPH)-1980-12-27
HIGH COURT OF MADHYA PRADESH
Decided on December 04,1980

M.P. Bidi Udyog Sangh, Sagar Appellant
VERSUS
STATE OF M.P. Respondents

JUDGEMENT

G.P.SINGH,C.J. - (1.)THE petitioners, who are Bidi manufacturers, by this petition under Article 226 of the Constitution, challenge the validity of notification dated 19th December 1979 by which the rates of minimum wages of certain classes of employees in Bidi industry were revised.
(2.)THE first contention raised by the learned counsel for the petitioners is that the notification issued under section 5(1)(b) of the Minimum Wages Act, 1948 did not fix any date for consideration of their representations There is no merit in this contention. The petitioners did file their objections. They were given a date on which they were heard. There was thus no prejudice whatsoever by not specifying the date in the notification issued under section 5 (1) (b). We have taken a similar view in Misc. Petition No 179 of 1980 which has been heard along with this petition and in which the order is being delivered today.
The second contention raised by the learned counsel for the petitioners is that the revised rates are in some cases in excess of the rates proposed in the notification under section 5(1)(b) It is submitted by the learned counsel that the rates finally fixed under section 5(2) cannot exceed the rates proposed. This contention is also similar to the contention raised in Misc. Petition No. 179 of 1980. For the reasons given in the order we are passing in that petition today, this contention is overruled

(3.)THE last contention raised by the learned counsel is that the notification makes a provision for guaranteed wages and that there is no power under section 3 read with section 5 to fix guaranteed wages. The guaranteed wages to which objection is taken are contained in the "Annexure" to the impugned notification which reads are under:
ANNEXURE

The employees shall be entitled to get at least Rs 4.00 per day (hereinafter referred to as the guaranteed wages) only where the employer fails to supply sufficient quantity of good raw material (including tobacco leaves) to roll 800 bidies per day.

The guaranteed wages shall be inclusive of wages for any day earned by the employee in respect of Bidies actually rolled by him with the quantity of raw material supplied to him by the employer. Where no raw material is supplied by the employer to the employee and the employee is willing to work and reports for duty or for collecting the raw material, the employee shall be entitled to get the full guaranteed wages.

The employee shall not be entitled to get guaranteed wages if he earns less than the amount of guaranteed wages on any day on account of his unwillingness to work for any reason whatsoever.

The employee shall not be entitled to get the guaranteed wages if he fails to make full use of the raw material supplied to him even if the raw material so supplied is not sufficient for rolling 800 Bidies per day.

The employee who works for more than one employer shall not be entitled to get the guaranteed wages for anyone of those employers.

The employee shall not be entitled to get the guaranteed wages if the failure of the employer to supply raw material is due to fire, catastrophy, epidemics, civil commotion or other similar causes which are beyond his control.
1969 (1) LLJ 762, that retrenchment compensation payable under sections 25 -F. 25FF and 25 -FFF of the Industrial Disputes Act, 1947 will fall within the definition of wages as contained in the Payment of Wages Act. Opinion has also been expressed by a learned author that layoff compensation payable under section 25 -C of the Industrial Disputes Act will also fall within the definition of wages as contained in the Payment of Wages Act [see Malhotra: The law of Industrial Disputes, Second Edition, Volume I, Page 699]. But in the absence of any such inclusive definition in the Minimum Wages Act it is not possible to hold that an amount payable in the nature of layoff compensation is included within "wages" as defined in section 2(h). As earlier pointed out by us, the guaranteed wage of Rs. 4 per day payable for the day on which the employee does not work at all because no raw material is supplied to him by the employer is in the nature of layoff compensation and cannot be said to be payable to him as wages if the terms of the contract of employment were fulfilled. In B.B.L. and Tea Merchant's Assocn. v Bombay State AIR 1962 SC 486, the Supreme Court held that the fulfilment of the other terms of the contract is a condition precedent for the payment of wages as defined under section 2(h) and it continues to be such a condition precedent even for the payment of the minimum rates of wages fixed and prescribed by the appropriate Government. It was also pointed out that the Act operates on the wages and does not operate on the other terms of the contract between the employer and the employee. It was further pointed out that if fixing the minimum rates of wages the Government cannot claim wide powers possessed by the Industrial Tribunal under the Industrial Disputes Act. The notification challenged in that case laid down the manner in which the employer should make payment of "chhat" or discarded Bidis and was held to be ultra vires of the powers under sections 3 and 5. The same reasoning applies here. In so far as the "Annexure" makes provision for payment of layoff compensation the notification goes beyond the power conferred by sections 3 and 5. In this view of the matter, the third clause in the "Annexure" has to be held in excess of the powers conferred on the Government and must be declared to be void. 6. The petition is partly allowed. The third clause in the "Annexure" to the notification dated 19th December 1979 is declared to be invalid and void. There will be no order as to costs of this petition. Security be refunded to the petitioners.


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