GAGANENDRA KUMAR GHOSE Vs. STATE OF WEST BENGAL
LAWS(CAL)-1976-9-48
HIGH COURT OF CALCUTTA
Decided on September 08,1976

GAGANENDRA KUMAR GHOSE Appellant
VERSUS
STATE OF WEST BENGAL Respondents




JUDGEMENT

- (1.)The petitioners, who are all Oil Mill owners have, in this Rule, challenged the notification dated June 3, 1975 issued by the Government of West Bengal, Labour Department under Sec. 5 (2) of the Minimum Wages Act, 1948 , hereinafter referred to as the Act. By that notification, the Government has fixed on revision the monthly rates of wages payable to the different categories of employees employed in the Oil Mills in the State of West Bengal with effect from January 1, 1975. Prior to this notification, another notification dated November 1, 1974 was issued by the Government of West Bengal under Section 5 (1) (b) of the Act proposing the minimum monthly rates of wages payable to the employees employed in the Oil mills in West Bengal, The petitioners and other Oil Mill owners submitted their representations against the proposed minimum rates of wages. After considering the said representation, the Government published the impugned notification revising the minimum rates of wages......
(2.)Employment in any oil mill is a scheduled employment under the Act and it is not dispute 1 that the provisions of the Act will apply to such employment. Under Section 3 of the Act, the appropriate Government shall in the manner provided therein fix, review and revise the minimum wages of scheduled employments. Section 4 provides as follows:
"(1) Any minimum rate of wages fixed or revised by the appropriate Government in respect of scheduled employments under Section 3 may consist of

(i) a basic rate of wages and a special allowance at a rate to be adjusted, at such interval and in such manner as the appropriate Government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers (hereinafter referred to as the cost of living allowances); or

(ii) a basic rate of wages with or without the cost of living allowance, and the cash value of the concession in respect of supplies of essential commodities at concession rates where so authorised; or

(iii) an all-inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions, if any.

(2) The cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates at such intervals and in accordance with such directions as may be specified or given by the appropriate Government."

A competent authority has been defined in clause (c) of Section 2 of the Act as meaning the authority appointed by the appropriate Government by notification in its official Gazette to ascertain from time to time the cost of living index number applicable to the employees employed in the scheduled employments specified in such notification. Under clause (d) of Section 2 "cost of living index number" in relation to employees in any scheduled employment in respect of which minimum rates of wages have been fixed means the index number ascertained and declared by the competent authority by notification in the official Gazette to be the cost of living index number applicable to employees in such employment. Section 5 of the Act provides as follows:

"(1) In fixing the minimum rates of wages in respect of any scheduled employment for the first time under this Act or in revising minimum rates of wages so fixed, the appropriate Government shall either:

(a) appoint as many committees and subcommittees as it considers necessary, to hold enquiries and advise it in respect of such fixation or revision, as the case may be, or,

(b) by notification in the official Gazette, publish its proposals for the information of persons likely to be affected thereby and specify a date, not less than two months from the date of the notification, on which the proposals would be taken into consideration.

(2) After considering the advice of the committee or committees appointed under clause (a) of sub-section (1), or as the rase may be, all representations received by it before the date specified in the notification under clause (b) of that sub-section, the appropriate Government shall, by notification in the official Gazette, fix, or, as the case may be, revise the minimum rates of wages in respect of each scheduled employment, and unless such notification otherwise provides, it shall come into force on the expiry of three months from the date of its issue;

Provided that where the appropriate Government proposed to revise the minimum rates of wages by the mode specified in cl- (b) of sub-section (1), the appropriate Government shall consult the Advisory Board also."

(3.)In assailing the impugned notification under Section 5 (2), the following contentions have been made on behalf of the petitioners:
(1) It is incumbent on the Government to appoint a competent authority under Section 2 (c) of the Act to ascertain the cost of living index of the scheduled employment. But the Government not having appointed any competent authority as provided and consequently no cost of living index having been fixed by the competent authority for the scheduled employment, the fixation of minimum wages by the impugned notification is illegal.

(2) The Government not having fixed the minimum wages as proposed by it in the notification dated November 1, 1974 under Section 5 (1) (b), but having increased the rates of wages by the impugned notification without giving a further opportunity to the petitioners to submit fresh representation before such increase, the impugned notification and the fixation of minimum wages by it are illegal.

(3) The provision of Section 5 (2) is prospective and no.t retrospective and the Government having given retrospective operation to the rates of wages fixed by it by the impugned notification, the same is illegal, inoperative and void.

;


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