BENODE BEHARI SAHA Vs. STATE OF WEST BENGAL
LAWS(CAL)-1976-7-34
HIGH COURT OF CALCUTTA
Decided on July 25,1976

Benode Behari Saha Appellant
VERSUS
STATE OF WEST BENGAL Respondents


Referred Judgements :-

BENGAL MOTION PICTURES EMPLOYEES UNION V/S. KOHINOOR PICTURES PVT. LTD. [REFERRED TO]
CALCUTTA ELECTRIC SUPPLY CORPORATION LIMITED VS. CALCUTTA ELECTRIC SUPPLY WORKERS UNION [REFERRED TO]
DELHI CLOTH AND GENERAL MILLS COMPANY LIMITED VS. WORKMENIN ALL THE [REFERRED TO]


JUDGEMENT

Sabyasachi Mukherjee, J. - (1.)This is an application under Article 226 of the Constitution by two Petitioners, namely, Benode Behari Sana and the 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 in as much 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 May 11, 1948, an award was made by the Printing Press Industry Tribunal. The said award was published in the Calcutta Gazette on March 1, 1951. On June 17, 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 dearness allowance for different categories of employees. On September 30, 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 October 19, 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 Ss. 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 September 30, 1965, was published in the Calcutta Gazette on October 21, 1965 and the notification or order dated October 19, 1965, was published in the Calcutta Gazette on November 30, 1965. On December 2, 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 September 30, 1965, which according to the Petitioners did not specify the normal working hours of work constitution a normal working day, would validate the announcement of the minimum wages as mentioned therein and if so, from what date the same would be effective. There was another representation on December 28, 1965, on behalf of the Petitioners whereby it was submitted that the notification prescribing the minimum wages could not be implemented before December 1, 1965, as the said notification was published in the Calcutta Gazette on November 30, 1965 and the same could not have retrospective effect. On April 1, 1967, an order of reference was made under Sec. 10 of the Industrial Dispute 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 June 9, 1967, another order was made by the Government of West Bengal Labour Department under Sec. 10(5) of the Industrial Disputes Act, 1947, including establishments as mentioned in the said order in the earlier order of reference dated April 1, 1967. Thereafter, adjudication proceedings were transferred to the file of Seventh Industrial Tribunal on August 14, 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:

(1) 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.

(2.)Thereafter, on August 25, 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 July 21, 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.
(3.)On behalf of the workmen two main contentions were urged before the tribunal, namely, that the Government Notification dated September 30, 1965, which is Ex. 'A' and which was issued in exercise of the powers conferred by Clause (a) of Sub -section (1) of Sec. 3 read with Sub -section (2) of Sec. 5 of the Minimum Wages Act, 1948, was an independent Notification and must be implemented, as such. The Notification dated October 19, 1965, issued under Ss. 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 Ex. A and they had to be given effect to separately. It was contended on behalf of the 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 September 30, 1965, on the basis of the working hours under the Notification dated October 19, 1965, prospectively, i.e. December 1, 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 printing industry had accepted by 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 May 11, 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 March 1, 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 for fixation of 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 was for the existing working hours for 42 hours a week or in other words on the existing working hours in different presses. 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 Ex. A -1, subsequent notification is concerned, it was urged on behalf of the workers that eight hours inclusive of half 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 wage was fixed. The said working hour in a day was 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 basis wage was for 8 hours or 7 1/2 hours' work in a day, would mean reduction in the existing wages in many cases instead of serving the purpose and would thus lead to absurdity, according to workmen. It was, further, urged that the Mini mum Wages Act, 1948, did not contemplate or empower the committee to fix any working hours far less to charge 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 September 30, 1965, was on the basis of working hours which were in existence in the printing presses before November 1, 1965 and grant them the said wages retrospectively with effect from November 1, 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.
;


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