- (1.) Challenge in this appeal is to the judgment rendered by a Division Bench of the orissa High Court quashing Clause-iii of paragraph 7 of the Explanation in Notification no. 514 (E) dated 12. 07.1994 issued by the Government of India, Ministry of labour in purported exercise of powers conferred by Section 3 (1) (b) read with section 4 (1) (iii) and 5 (2) of the Minimum wages Act, 1948 (in short the Act). Stand of the writ petitioners before the High Court in the writ petition was that the inclusion sought to be made was impermissible in the background of what has been stated in The Mines Act, the Mines Rules and other pieces of legislation dealing with mining activities. The relevant portion of the notification reads as follows: explanation FOR THE PURPOSE OF the notification: "a"person working or employed in or in connection with a mine is said to be working or employed "below ground" if he is working oremployed:- i) in a shaft which has been or is in the course of being sunk; or (ii) in any excavation which extends below superjacent ground; or (iii) in an open cast working in which the depth of the excavation measured from its highest to its lowest point exceeds six metres. "
(2.) The High Court held that the authority issuing the Notification overlooked that it did not have the source of statutory power to incorporate such explanation in the Notification as done and, accordingly, as noted above, held that though the Notification was in operation, the clause- (iii) of paragraph 7 of the Explanation is non est.
(3.) Mr. Amarendra Saran, learned additional solicitor general submitted that the High court failed to notice various facets of the act and put unnecessary stress on the statutes relating to mining activities which had no relevance so far as the fixation of minimum wages is concerned. In response, Mr. Dushyant Dave, learned senior counsel appearing for the respondent-company submitted that the classification contained in clauses (i) and (ii) of paragraph 7 of the Notification do not pose any problem but clause- (iii) which was impugned creates a class of employees which is not recognized under any statute relating to mining activities and therefore there is no sanctity in the Notification so far as that part is concerned.;