BENODE BEHARI SAHA AND ANOTHER Vs. THE STATE OF WEST BENGAL AND OTHERS
LAWS(CAL)-1975-7-48
HIGH COURT OF CALCUTTA
Decided on July 25,1975

Benode Behari Saha Appellant
VERSUS
STATE OF WEST BENGAL Respondents


Referred Judgements :-

CALCUTTA ELECTRIC SUPPLY CORPORATION LTD. V/S. CALCUTTA ELECTRIC SUPPLY WORKERS UNION [REFERRED]
BENGAL MOTION PICTURES EMPLOYEES UNION V/S. KOHINOOR PICTURES PVT. LTD. [REFERRED]
DELHI CLOTH & GENERAL MILLS CO. LTD. V/S. THE WORKMEN [REFERRED]


JUDGEMENT

- (1.)This is an application under Article 226 of the Constitution by two petitioners, namely Benode Behari Saha and West Bengal Printers Association Ltd. Both the petitioners are employers of printing establishments in Calcutta. There are numerous other employers of the printing establishments in Calcutta and Howrah, who it is claimed, are equally interested in the reliefs sought for in this petition under Article 226 of the Constitution but inasmuch as their numbers are too large all of them could not be joined as petitioners. In order to appreciate . the controversy in this case it would be relevant to refer to certain facts. On the 11th of May, 1948 an award was made by the Printing Press Industry Tribunal. The said award was published in the Calcutta Gazette on the 1st of March, 1951. On the 17th of June, 1962 the Government of West Bengal appointed a Committee consisting of employers and employees to enquire into the conditions of employment in the Printing Press Industries. The said Committee recommended unanimously a consolidated wage inclusive of clearness allowance for different categories of employee. On the 30th of September, 1965 notification was published by the Government fixing the minimum rates of wages payable to the employees employed in the Printing Press Industries in West Bengal. The notification, it is claimed on behalf of the petitioners, created certain confusions as it did not mention about the normal hours of work for which the minimum rates as per the notification would be payable. On the 19th of October, 1965 there was another order of the Government of West Bengal fixing for the employees in the printing press, the hours of work constituting a normal working day inclusive of the period of interval of rest, the day of rest and overtime rate, in exercise of the powers conferred by Sections 13 and 14 of the Minimum Wages Act, 1948 . The aforesaid order provided, inter alia, that eight working hours should constitute a normal working day provided that no employee should work for more than five hours unless he had an interval of rest for at least half an hour. The aforesaid notification dated 30th September, 1965 was published in the Calcutta Gazette on the 21st of October, 1965 and the notification or order dated 19th of October, 1965 was published in the Calcutta Gazette on the 30th November, 1965. On the 2nd of December, 1965 the petitioners submitted a representation contending inter alia, that different presses observed different normal working hours. Therefore, it was necessary to have different normal working hours in a day of a month for which the minimum wages would be required to be paid. The petitioners wanted to know whether the notification dated 30th of September, 1965 which according to the petitioners did not specify the normal working hours of work constituting a normal working day would validate the announcement of the mimmum wages as mentioned therein and if so, from what date the same would be effective. There was another representation on the 28th of December, 1965 on behalf of the petitioners whereby it was submitted that the notification prescribing the minimum wages could not be implemented before the 1st of December, 1965 as the said notification was published in the Calcutta Gazette on the 30th of November, 1965 and the same could not have retrospective effect. On the 1st of April, 1967 an order of reference was made under Section 10 of the Industrial Disputes Act, 1947 and the following issue was referred to the First Industrial Tribunal for adjudication "Whether, the workmen are entitled to get the minimum rates of wages fixed by the Government Notification No. 2465-I dt. the 30th September, 1965 on the basis of the working hours which were in the existence in the- printing presses before the 1st of November, 1965. If not, what should be the minimum rates of wages for their working less than 48 hours per week - On the 9th of June, 1967 another order was made by the Government of West Bengal Labour Department under Section 10 (5) of the Industrial Disputes Act, 1947 including establishments as mentioned in the said order in the earlier order of reference dated the 1st of April, 1967. Thereafter adjudication proceedings were transferred to the file of the Seventh Industrial Tribunal on the 14th of August, 1967. After written statements had been filed the respondent No. 3 namely the workmen engaged in the printing presses represented by their unions submitted a petition for framing the following additional issues: "(11 Whether, the workmen are entitled to get the 'cost of living allowance', a constituent of the minimum rates of wages fixed under the Government Notification dated the 30th of September, 1965 as may rise or fall from time to time, irrespective of their basic wages or total wages per month. (2) Whether, the workmen are entitled to minimum rates of wages fixed under the Government Notification dated the 30th September, 1965 with effect from 1st November, 1965." Thereafter, on the 25th of August, 1971 the petitioners filed their petition of objection to the framing of the additional issues before the Tribunal. The Tribunal allowed the prayer of the respondent for framing additional issues with regard to issue No, 2 referred to hereinbefore. On the 21st of July, 1972 an award was made and the award made by the Tribunal is the subject-matter of challenge in this application under Article 226 of the Constitution.
(2.)On behalf of the workmen two main contentions were urged before the tribunal, namely, that the Government Notification dated the 30th September, 1965, which is Ext. 'A' and which was issued in exercise of the powers conferred by clause (a) of sub-section (1) of Section 3 read with sub-section (2) of Section 5 of the Minimum Wages' Act, 1948 was an independent Notification and must be implemented as such. The Notification, dated the 19th October, 1965, issued under Sections 13 and 14 of the Minimum Wages Act, 1948, did not fix, according to the workmen, the minimum hours of work to be worked in the said presses. It was, secondly, contended that the two different components, namely, the basic wage and the dearness allowance, were separately mentioned in the Government Notification being Ext. A and they had to be given effect to separately. It was contended on behalf ot fhe employers that there was no provision of the Minimum Wages Act, 1948 to treat the cost of living allowance as a separate entity distinct from the basic wage. It was submitted that the statute provided for fixation of minimum rates of wages which consisted of basic wages and cost of living allowance but there was no provision of law for fixation of minimum wages for each component. It was submitted that the employers were liable to pay the total minimum wages as fixed under the said Notification dated the 30th September, 1965, on the basis of the working hours under the Notification dated the 19th October, 1965, prospectively i.e., the 1st of December, 1965 and thereafter. It was urged on behalf of the employers that the minimum wages were liable to be reduced proportionately on the basis of lesser number of working hours for those employees who worked for lesser hours than 8 hours a day or 48 hours a week. The employers submitted that so far as the Omnibus Printing Press Award was concerned only a few printing press establishments in Calcutta and Howrah were parties to the said award. The Notification fixing the hours of work under the Minimum Wages Act, 1948 was, however, applicable to all printing press establishments in West Bengal. The employers submitted that the employers were within their rights to claim 8 hours a day or 48 hours per week from the workmen employed in the establishments on payment of total minimum wages as prescribed by the Notification and to pay proportionately less to the workmen who did not work for full working hours. On behalf of the workers it was submitted that because of the serious strain involved in the printing presses and hazardous risk involved in printing work the printr ing industry had accepted by far and large 42 hours or less in a week as the period of working hours. Besides the presses mentioned in the order of reference it was urged that there were many printing presses where the existing working hours were less than 40 hours a week. The Award of the Printing Press Industry Tribunal in West Bengal published in the Calcutta Gazette on the 11th May, 1948, also provided for 42 hours' work a week taking everything into consideration and the awarded wages were paid accordingly. After that Award there was another reference in 1951 for inter alia, revision of scales of pay on the basis of the said 42 hours of work in a week and the Award of the said Tribunal was published in the Calcutta Gazette on the 1st March, 1961. Since then, it was alleged, that by long lapse of time as well as by expressed terms and by implication of the conduct of the parties the said 1951 Award stood terminated. Fresh efforts were made on fixation of the minimum wages under the Minimum Wages Act, 1948 and otherwise through negotiations, conciliation or adjudication. According to the workmen who are the respondents here the West Bengal Government made the said Notification and the substance the same was intended to mean that the basic wage introduced and for the existing working hours for 42 hours a week or in other words on the existing working hours in different presses (sic). Secondly the cost of living allowance as before was a distinct and separate entity. Thirdly the flat cost of living allowance for all categories irrespective of pay and categories for Calcutta and Howrah was same and would vary in consideration of the rise in price index number. So far as the exhibit A-1, subsequent notification is concerned, it was urged on behalf of the workers that eight hours inclusive of half of an hour recess were intended to cover those presses where no working hours had been fixed or where the working hours fixed in a day were more than that. It was, further, submitted that where the working hours were less, that should be the working hours for the establishments where the minimum wages were fixed. The said working hours in a day were not relevant for earning of the day's minimum wages but for checking exploitation of human labour and that was the uppermost ceiling fixed so that overtime wages at overtime rate would become due for the work beyond the said period. To hold that the minimum basic wage was for 8 hours or 71/2 hours' work in a day, would mean reduction in the existing wages in many cases instead of serving the purposes and would thus lead to absurdity, according to workmen. It was, further, urged that the Minimum Wages Act, 1948 did not contemplate or empower the Committee to fix any working hours far less to change the same to the prejudice of the workmen. The object and purpose of the Minimum Wages Act, 1948 was to ensure the minimum wages for a worker's family for its bare subsistence and to give proportionate wage for less working hours would be self-defeating and would cause failure of objective. Therefore, the workmen submitted, that the Tribunal should answer the issue in favour of the workmen holding that the Government notification on Minimum Wages dated the 30th September, 1965, was on the basis of working hours which were in existence in the printing presses before the 1st November, 1965 and grant them the said wages retrospectively with effect from the 1st. November, 1965, with a direction that the basic wages and cost of living allowance were two separate entities and the cost of living allowance should be available to all the workmen irrespective of the basic wages or total wages one might earn.
(3.)The Tribunal after discussing the relevant contentions came to the conclusion on evidence on record that weekly working hours mentioned in the order of reference were less than 48 hours prior to the 1st November, 1965. The Tribunal was of the opinion that the question for consideration was whether the workmen would be entitled to get the minimum rates of wages fixed under the Government notification dated the 30th September, 1965, on the basis of the working hours which were in existence in the printing presses before the 1st November, 1965. If the answer to this question was in the affirmative, then the second part of the issue No. 1 did not arise for decision according to the Tribunal. If, however, the answer to the question was in the negative, the Tribunal was to consider what should be the minimum rates of wages for their working less than 48 hours in a week. The Tribunal was of the opinion that the special order under Section 13 (1) of the Minimum Wages Act, 1948 would govern the conditions of service in the schedule of employment. In the instant case according to the Tribunal the said special order is the notification which is exhibit A-l. Section 12 made it obligatory for the employer to pay wages at the rate not less than the minimum ra'e of wages fixed by the notification, Ext. A without any reduction except as might be authorised within such time and subject to such conditions as might be prescribed. It was for the Government, according to the Tribunal, to make appropriate rules by virtue of the provisions of Section 30 (2) (h). of the Minimum Wages Act, 1948 providing for the cases and circumstances where an employee employed for a period less thah the requisite hours of work constituting a normal working day, would not be entitled to receive wages for a full normal working day. Until and unless the appropriate Government made rules under the provisions of Section 30 (2) (h), of the Act it was not open, according to the Tribunal, for the employer in the instant case to make proportionate reduction of the minimum rates of wages fixed by the notification, Ext. A on the ground that the workmen were working less than the hours fixed by the notification which is Ext. A-1. Similarly according to the Tribunal, the Tribunal was not competent to make any reduction in the minimum rates of wages fixed by the notification, Ext. A on the ground that the workmen were working less than 48 hours a week. Therefore, the Tribunal was of the opinion that unless the rules were framed by the Government in accordance with the provisions of Section 30 (2) (h) of the Minimum Wages Act, 1948 the employers and the Tribunal could not make any reduction of the minimum rates of wages. In view of the provisions of the Minimum Wages Act, 1948 and in the absence of the relevant rules under Section 30 (2) (h) of the Act, it must be held according to the Tribunal that the workmen would be entitled to get the minimum rates of wages fixed under the notification No. 2465-1 dated the 30th September, 1965, on the basis of the working hours which were in existence in the Printing Presses before the 1st November, 1965. Accordingly, the Tribunal held that the second part of the issue No. 1 did not arise for decision. 'So far as the additional issue was concerned, it was contended by the Unions that in view of the provisions of the Government Notification dated the 30th September, 1965, Ext. A, the workmen would be entitled not only to the minimum basic wages, but also to the cost of Irving allowance as mentioned in the said Notification. The Tribunal for the reasons mentioned in the Award upheld this contention and was of the opinion from the evidence on record that dearness allowance had been treated separately by the employers and employees. In view of the provisions of the Notification, Ext. A, cost of living allowance should be adjusted as mentioned therein.


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.