- (1.) THIS Rule is directed against a proceeding this is pending before the learned Sub Divisional Judicial Magistrate, midnapore Sadar under section 22a of the Minimum wages Act for violation of the provision of section 18 (1) of the Minimum Wages act, 1948 and Rule 23 (5) of the West bengal Minimum Wages Rules, 1951.
(2.) THE petitioner is an agriculturist and according to him, his sole income is from the lands which he has inherited from his father and he cultivates these lands personally with the help of hired labourers on wages payable in kind and cash and he makes payment to his labourers according to rate payable in the area where the land are situated. It is contended on behalf of the petitioner that the petitioner comes under the provisions of the Land Reforms Act and as such, he is not to maintain any registers for wages under the West Bengal Minimum Wages Act, 1948. Under section 2 clause (8) "personal cultivation" has been defined as meaning cultivation by a person of his own land on his own account- (c) by servants or labourers on wages payable in cash or in kind or in both. According to minimum Wages Act, "wages" has been defined under section 2 (h) meaning all remunerations, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment and includes house rent allowance "employee" has been defined in section 2 (i) meaning any person who is employed for hire or reward to do any work, skilled or. un skilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed. "employer" has also been defined under section 2 (e) meaning any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this act. It is contended on behalf of the petitioner that under the Minimum wages Act no' provision is made for payment in kind and, there fore, since payment is made by him to his labourers in kind, he would not come within the provisions of the said Act, and moreover, the provisions of the Act would not apply to agricultural labourers. I am unable to accept this contention of the learned Advocate for the petitioner. By notification No. 2350-WI4wi2w-1168 1000/lwtlw/2w/72 dated 12. 12. 68 the Minimum Wages have been fixed for employees employed in agricultural lands and the same was revised subsequently on 30th September, 1974 which was further revised by Notification No. 1259-L. W. dated 6th April, 1976. It is, then contended by the Advocate for the petitioner that even if it is assumed that Minimum wages Act, 1948 applies to agricultural labourers the last Notification that is notification dated 6th April 1976 is invalid for non-compliance with the provisions of section 5 (a) and (b) of Minimum Wages Act and hence it should be struck down and therefore, there is no question of keeping wage registers in accordance with the said Notification. To deal with this point it is necessary to look into the provisions of section 5 of the Act. Section 5 provides that in fixing minimum rates of wages in respect of any scheduled employment for the first time under this Act or in revising rates and wages so fixed the procedure laid down in section 5 (a) or (b) should be followed and where the appropriate government proposes to revise the minimum rates of wages by the mode specified in clause (b) of Sub-section (1), the appropriate. Government shall consuit the advisory Board also. The previous Notification of 1974 revising the rates and wages fixed by the Notification of 1968 followed the procedure laid down under section 5 (1) (b) of the Act and the said Notification has fixed rates of wages, in consultation with the said advisory Board. So far as this Notification of 1974 is concerned, the same would be challenged on that ground by the learned Advocate for the petitioner. The Notification of 1975 in paragraph 3 runs as follows : "now, therefore, in pursuance of the terms laid down in item Nos. 5 and 6 of the aforementioned Notification, the Governor is pleased to announce that the Minimum rates of wages of both daily rated and monthly rated workers shall be as shown in the Schedule below, with effect from the 1st October, 1974. The Notification of 6th April, 1976 has laid down in paragraph 3 of the said Notification that in pursuance of the item Nos. 5 and 6 of the Notification dated 30th September, 1974 the minimum rates of wages have been fixed with effect from 1st October, 1975. Item Nos. 5 and 6 of Notification of 30th September, 1974 run', as follows : item No. 3.-The Minimum rates of wages so revised above are on the basis of Agricultural CPI (1960-61=100) for 1972-73 at 233 point. The minimum rates of wages will be adjusted at the rate of 62 paisa per month per Pont rise or fall of the CPI Number above 233-point for the adults and at the rate of 45 paisa per point for the children but in any case the minimum rate? of wages will not be less than the rates mentioned above. Item No. 6.-The minimum rates of wages will be adjusted each year with effect from 1st October on the basis of annual average. Agricultural CPI Number of the previous year (July to June ). The learned Advocate for the petitioner contends that a Notification regarding rates and wages can only be revised according to the provisions of section 6 (a)and (b) of the said Act and cannot be revised in the manner as stated in the Notification of 1975-76. Accordingly these latter two Notifications are liable to be struck down for violation of provisions of section 5 of the. Act. In this connection he has referred me to several cases reported in AIR, 1969 Assam page 33, Vijay v. State: of Assam, 1963 Madras page 138 Basha v. State of Madras 1972 Labour industrial cases page 398, I. L. R, 1972 Andhra Pradesh page 495 and. lastly AIR 1970 SC page 2042 Chandra bhawan Boarding v. State of Mysore, the case reported in 1972 labour Industrial case is a case where a notification issued by the kerala Government revising the rates of wages for that State u/s 5 (1) and (b) of the Minimum wages Act and date fixed was "on or before 15. 4. 68 that the proposal would be taken up for consideration this date was much less than two months from date of publication of Notification which was dated 9. 2. 68. It did not, therefore, satisfy the requirements of section 5 (l) (b)of the Act and therefore, that Notification was held to be bad as section 5 (1) (b) of the Act is mandatory and non-compliance would vitiate the fixation or revision of minimum Wages Act, the other cases also relate to non-compliance with the provisions of section 5 (a)and (b) in the matter of revision of wages. " The learned Advocate for the State has drawn my attention to the provisions of section 3 (1) (b) proviso on the basis of which he argues that if it is held that the impugned notification is bad then the notification immediately in force before the expiry of 5 years shall continue in force. Accordingly, in any event, the petitioner will have to maintain wage registers as the Notification of 1974 would be in force even if the subsequent Notification of 1975-76 are held to be bad. The petitioner is prosecuted for not maintaining wage registers for his employees in accordance with the Act, The Land Reforms Act does not fix the wage of employees employed by an Agriculturist. The fixation of rates of wages for employees is made under the Minimum Wages act only. The petitioner will have; to maintain the registers under that Act. He cannot escape the liability to maintain the same. Looking into the Notifications of 1975-76 it seems to me that those Notification are not made in accordance with the provisions of section 5 (a) or (b) of the Act as provisions for revising rates of wages are laid down in section 5 of the Act only and there is no provision for adjusting the wages as provides by the norm laid down in a previous notification, as has been done in the present case. I hold that these notifications have no force of law. Accordingly i hold that the petitioner is not liable to follow the same. Be that as it may, the petitioner cannot escape the liability for maintaining the wage registers under the Notification of 1974 which will remain in force in spite of that fact that the subsequent Nonfictions are held to be bad. Accordingly the prosecution of the petitioner for non-maintenance of the registers will lie. The Rule is accordingly disposed of. Rule discharged;