JUDGMENT
D.P. Wadhwa, J.
1. In this batch of seven writ petitions, the petitioners, who are engaged in the business of stone quarrying, have challenged the validity of the Notification dated September 27, 1985, issued by the Government of India in the Ministry of Labour, under clause (a) of Section 3(1) read with clause (iii) of Sec. 4(1) and Sec. 5(2) of the Minimum Wages Act, 1948 (for short ‘the Act’). By this notification the Central Government fixed minimum piece rate of wages of the employees doing the work of stone breaking or stone crushing at the rate of Rs. 71/- for a truck load of 150 cubic feet. The notification was limited to the size of the broken stone between 5 inches to 8 inches. The petitioners contended that the notification has not been issued in terms of the requirements of the Act and further that the same is discriminatory and violative of Articles 14 and 19(1)(g) of the Constitution, and, thus, beyond the competence of the Central Government.
2. At the time when these writ petitions were admitted, this court, on the application of the petitioners seeking interim relief, passed the following order on August 20, 1986 :-
“The grievance of the petitioner is that the impugned Notification issued by the Central Government is restricted to Faridabad only, and in the adjoining areas the minimum wages contemplated is only Rs. 17/- whereas in Faridabad it is fixed at Rs. 47/-. In the circumstances, the operation of the impugned Notification dated September 27, 1985 is stayed on the condition that the petitioner will continue to pay the minimum wages as per the earlier Notification dated February 12, 1985.”
3. We are not quite sure as to how the figure of Rs. 47/- per day has been arrived at. Though the notification fixed the wages on piece rate basis, the interim order talks of minimum wages on daily basis. We were, however, told by the learned Counsel for the petitioners that two laborers would be able to break stones of the size mentioned in the notification of the volume of 200 cubic ft. in a day and if wages of Rs. 71/- was fixed for the volume of 150 cubic ft., for 200 cubic ft. the amount of wages would be Rs. 94/-, meaning thereby that each labourer would be getting Rs. 47/- for his labour each day. This, however, did not appear to us to be quite appropriate as the wages fixed on piece rate basis cannot be equated with daily wages as piece rate worker may work more to earn more and he need not be confined to any specific hours of work. The impugned notification recites that earlier as per the provisions of the Act a notification had been published for information and for inviting objections and suggestions from all persons likely to be affected thereby. These objections and suggestions were duly considered, and thereafter the impugned notification was made. The notification fixes minimum rates of wages payable to the employees for piece work done by them in stone mines in the Faridabad District in the State of Haryana. The notification came into force of the date of its publication in the Official Gazette.
4. The petitioners have contended that the notification is discriminatory in nature and singles out the licensees/lessees of stone mines in the Faridabad District imposing on them a higher burden by way of minimum wages vis-a-vis the licensees/lessees in the same region in the Union Territory of Delhi and the State of Rajasthan. They say the economic conditions and standard of living are same in Faridabad District and the adjacent areas in Delhi and the State of Rajasthan. The petitioners also say that minimum wages fixed by the notification are arbitrary and are in fact more than even the fair wage fixed anywhere in the country. Petitioners say that if they have to pay minimum wages as per the impugned notification, their finished mine products would be much expensive as compared to others in the adjacent areas and would, therefore, not be able to compete with them, and this imposes restriction on them to carry on trade. Principal contention of the petitioners, however, is that provisions of the Act have not been complied in issuing the impugned notification.
5. Respondents deny that there is violation of any constitutional right of the petitioners and they say that under the Act different rates could be fixed for different areas and even for different localities. They say the rate fixed under the notification was in fact what was determined by the Industrial Tribunal as the minimum wage in the stone quarrying industry in an industrial dispute between the mine workers and the employers. The award was given by the Presiding Officer, Central Govt. Industrial Tribunal, Chandigarh. The respondents they say that a direction had been issued by the Supreme Court in Bandhua Mukti Morcha v. Union of India (C.M.P. 1452/85) decided on April 24, 1985 whereby the Court said that it expected the Government of India to take necessary steps to issue a notification fixing the wage determined by the Industrial Tribunal as the minimum wage for the stone quarrying industry. The dispute which had been referred to the Industrial Tribunal resulting in the aforesaid award was as under :-
“Whether the demand of the workers of Pali (Stone), Pali (Sand) and Badkhul Stone Quarries of M/s. A.G. & Co., Faridabad for raising the present rate of Rs. 71/- per 150 cu. ft. stone per truck to Rs. 100/- per truck is justified ? If so, to what relief are the workmen concerned entitled ?”
6. It is then stated than the Central Government Industrial Tribunal gave similar awards in two other identical disputes is respect of workmen employed by two other quarries, namely, Katan Stone Quarry of M/s. Pioneer Crushing Company and Mewla Maharajpur Stone Quarry of M/s. G.S.C. & Co. in Faridabad District. The respondents heavily rely on various directions issued by the Supreme Court in justification of issuing the impugned notification. It appears all these writ petitions and perhaps some more in other High Courts were transferred to Supreme Court. On the interim application the Supreme Court, on May 7, 1987, passed the following order :-
“Stay granted by the Delhi High Court in Notification No. 32015/2/85WC(MW) dated September 27, 1985 fixing minimum wages for workers engaged in the stone-breaking or stone-crushing industry in the Faridabad District is vacated until further orders.”
7. Thereafter, the batch of the present writ petitions was sent back to this Court by order dated July 21, 1988 which is as under :-
“After hearing learned Counsel for the parties, we are of the opinion that this case should go back to the High Court for decision. The order dated March 31, 1987, transferring the case from the High Court to this Court is recalled and the writ petition is transferred back to the High Court. The records of the case shall be transmitted forthwith to the High Court. We trust that the High Court will find it possible to take up the case at a very early date and dispose it of.
Having regard to the circumstances for the case, we reinstate the order dated August 20, 1986 of the High Court. It will, however, be open to the High Court to vary or revoke the order.
The transferred case is disposed of accordingly.”
8. The Preamble of the Act shows that the Act has to provide for fixing the minimum rates of wages in certain employments. Under Section 3 of the Act, the appropriate Government shall fix minimum wages payable to employees employed in the scheduled employment as per the procedure prescribed. Categories of scheduled employments are given in the Schedule and employment in stone breaking or stone crushing is one of such scheduled employments. Under sub-section (3) of this Section, minimum rates of wages can be fixed for different localities; for different scheduled employments; and for different classes of work in the same scheduled employment. Section 4 prescribes as to what would be the minimum rate of wages. Section 5 prescribes the procedure for fixing and revising minimum wages. This section may be reproduced as under :-
Procedure for fixing and revising minimum wages – (1) In fixing 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 sub-committees 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 locally to be affected thereby and specify a date, not less than two months from the date of the notification, on which the proposals will 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 case 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 proposes to revise the minimum rates of wages by the mode specified in clause (b) of sub-section (1), the appropriate Government shall consult the Advisory Board, also.
9. Advisory Boards are constituted under Sections 7 and 8 of the Act and composition of committees is that given section 9. Rules have been framed under the Act. Chapter II of the Rules pertains to members and staff and meetings of the Board, Committee and Advisory Committee; Chapter III deals with summoning of witnesses by the Committee, Advisory Committee and Board and production of documents; and Chapter IV deals with computation of payment of wages, hours of work and holidays, etc.
10. In the present case, the Central Government followed the procedure for revising minimum wages as contained in clause (b) of sub-section (1) of Section 5. It published its proposal for information by notification dated May 23, 1985. Objections were filed by the petitioner. The Advisory Board held its sitting on August 28, 1985 to consider the proposal for fixation of minimum piece rate of wages for the employees for piece work done by them in stone mines in Faridabad District in the State of Haryana. The Board approved the proposal as given in the proposed notification. The relevant minutes of the Advisory Board are as under :-
Item No. 3 :- Proposals for fixation of minimum piece rate of wages for the employees for piece work done by them in stone mines in the Faridabad District in the State of Haryana.
Before the discussion on this item started, the Secretary of the Board explained at length to the members the circumstances leading to the publication of the notification proposing fixation of minimum piece rate of wages for the employees engaged in stone mines in the Faridabad District in the State of Haryana. The Secretary also drew the attention of the Board’s members towards the various objections/suggestions received in response to the aforesaid proposal notification. After this, detailed discussions on this item took place in which Dr. Ghanshyam, N. Singh, S/Sh. K. A. Dhan, J. N. Bhardwaj, M. Kalyanasundaram, Dr. R. Nirdoshi and D. K. Rao participated. A letter sent by Shri N. L. Rungta, member of the Board, related to this item was also read by the Chairman.
After detailed discussions on this item the Board approved the proposal notification in question. While approving the proposal under this item, in view of various objections received by the Government, the Board recommended as below :-
(a) Govt. may consider and examine the size and or weight of stone add in the final notification.
(b) Similar rates may be extended in due course to other stone quarries of the country.
The Central Government then issued the impugned notification.
11. As seen above, a detailed procedure had been prescribed for revising the minimum wages. We agree with the submission of the petitioners that the Advisory Board hastened to approve the proposed notification without in any way discussing the objections raised by the petitioners. The minutes reproduced above do not show as to how the Advisory Board considered various objections of the petitioners. In our view there has not been proper consideration of the relevant circumstances including the objections filed by the petitioners to the proposed increase in minimum wages by the impugned notification by the Advisory Board. The action of the Advisory Board appears to be rather arbitrary. It is not for us to see whether the proposed revision in minimum wages is fair or reasonable, but the minutes of the Advisory Board should have reflected as to how it had applied its mind to all the relevant considerations to say the least. We feel, perhaps the Advisory Board was under too much pressure both on account of various Supreme Court orders and the award of the Central Government Industrial Tribunal and was rather overwhelmed on that account. Whatever may be, the Advisory Board had to perform its statutory functions in a manner which would appear to be fair, reasonable and just. The impugned notification issued on the basis of any such recommendation or opinion of the Advisory Board cannot, therefore, stand.
12. The petitioners contended that the Industrial Award which was taken into consideration to fix the minimum wages under the notification was an ex parte award. They said lease/license of mining contract in respect of that award of the employer terminated on March 31, 1984 and the award was given on September 10, 1984 showing that the employer was not all interested to contest the reference. They said there was no justification in the award for fixing rate at Rs. 71/- per 100 cubic. ft. minus deductions. In the award though the demand of the employees for raising the minimum wages to Rs. 100/- per 150 cubic ft. it was, however, rejected. The petitioners said that this aspect of the matter was not considered by the Advisory Board at all and in this connection they also referred to the demand raised by the employees which led to the reference and ultimately the award being made. This is how the Assistant Labour Commissioner (C), Chandigarh, opined to refer to Industrial Tribunal the disputes as contained in demand No. 1 of the employees :-
“Demand No. 1. The present rate of Rs. 71/- per 150 cubic ft. stone per truck, should be raised to Rs. 100/- per truck, with proportionate increase if the quantity of stone is more in the truck.
The Stone Breaking and Stone Crushing is a scheduled employment, for which the minimum rate of wages, as fixed/revised by the Haryana Govt., is Rs. 13.69 per day, which is applicable to the workers employed by the quarry in question. A truck load of stone on an average is a produce of one day of two labourers for which Rs. 71/- are paid. After deduction of expenses towards blasting, drilling, earth removal etc., the net income/- wages of two workmen comes to Rs. 39/- which if divided into two, will come to Rs. 19.50 per workman per day.
Thus the demand of the Union for further increase, over the above the minimum wages, needs to be examined in relation to the capacity of Industry to pay. Since the management did not participate in conciliation proceedings, I am of the opinion that this issue may be referred to the Industrial Tribunal for Judicial verdict with the following terms of reference :-
“Whether the demand of the workers of Pali (Stone), Pali (Sand) & Badkhul Stone Quarries of M/s. A.G. & Co., for raising 150. cubic feet for truck rate from Rs. 71/- to Rs. 100/- is justified ? If yes, to what relief the workers are entitled ?”
To an extent the plea of the petitioners would appear to be correct, but we will not say any further on the subject because of the view which ultimately we are taking.
13. We, however, find no substance in the submission of the petitioner that in the adjoining areas the minimum wages are far less than what is fixed by the impugned notification. As seen above, the Act envisages fixing of different rates for different localities. We do not see how the constitutional rights of the petitioners as guaranteed by Articles 14 and 19(1)(g) have been infringed. It could be that the rates of minimum wages fixed in the adjacent localities is below than what should have been fixed under the Act and the Rules. That certainly can be no consideration not to revise the rates in the District Faridabad. When rates in Faridabad District are fixed in accordance with the Act and the Rules, it would be for the workers in the adjoining area to contend discrimination and not for the petitioners to do so. That, however, does not conclude the matter. We cannot just set aside the notification and leave things in vacuum, as now it was stated before us that another notification was issued by the Government of India in the Ministry of Labour on September 17, 1991 fixing minimum piece rate of wages for employees in scheduled employment of stone breaking and stone crushing. This notification applies to employees employed in stone mines in whole of the country.
14. During the course of hearing it was brought to our notice that an agreement was entered into between the petitioners as employers and various trade unions of the mine workers in Faridabad District. This was on September 30, 1987 and the terms of settlement were to come into force on the same date. The terms of settlement agreed to are as under :-
“1. It is agreed by the parties that the rate of wages for the size of stone below 5″ size will be paid at the rate of Rs. 160.00 (Rs. One hundred and sixty) per 200 Cu. Ft. measurement broken into sizes below 5” by hand/manually.
2. It is agreed by the parties that the rates of wages for the size of stone from 5″ to 8″ will be paid to the workman in accordance with the rates of wages as notified by the Government of India, Ministry of Labour, vide Notification No. S-32015/2/85-WC(MW) dated September 27, 1985. This clause of settlement is without prejudice to the rights of the employers who have challenged the above said notification in the Court of Law.
3. It is agreed by the parties that the rates of wages for the size of stone of above 8″ of 12″ will be paid at the rate of Rs. 55.00 (Rs. Fifty five) plus Rs. 10.00 (Rs. Ten), if the workmen put the hole for blasting by themselves for 200 C.ft. (Two hundred cubic feet) of measurement.
4. It is agreed by the employers that no deductions whatsoever from the abovementioned piece rate wage on account of cost of explosives, detonator, removal of soil, de-watering charges, etc., will be made from the wages of the workmen.
5. It is agreed by the parties that the above mentioned terms of settlement will be binding on the parties till the expiry of the contract with the State Government of respective employers.
6. The parties have agreed that the terms of this settlement will also be binding on their contractors, if engaged any.”
15. On the basis of the aforesaid terms of settlement, between the parties, we enquired from the respondents as to what would be the rate of wages for the size of stone of 5″ to 8″ and we were informed that it would be at the rate of Rs. 88/- per 200 cubic feet. We were also told that ratio of work-in-put for breaking stones of the categories 1, 2 and 3 in the terms of settlement would be 12:7:5. On that basis the rate of wages for the stones of the size of 5″ to 8″ would be Rs. 66/- per 150 cubic feet. We will note that during the course of arguments Mr. Rohtagi, learned Counsel of the petitioners, stated that petitioners were prepared even to pay Rs. 28/- per day as daily wages to the employees or Rs. 71/- per truck load of 200 cubic ft. We do not think we will accept either of the suggestions as in the first case when work has been done on piece rate basis payment on daily basis will not be right and in the second case we do not find any basis for fixing rate of Rs. 71/- per 200 cubic ft. While, therefore, we quash the impugned notification and would give liberty to the respondents to issue a fresh notification for whole of the period during which the impugned notification was in operation, in accordance with law, and, in the meanwhile, we will direct that petitioners shall make payment at the rate of Rs. 66/- per 150 cubic feet for whole of this period without making any deduction whatsoever and as if Rs. 66/- per 150 cubic feet was prescribed in the impugned notification. Petitioners shall, however, be entitled to deduct whatever wages have been paid so far on account of the interim order granted by this Court and the stay thereon operating for a short a period thereto by the Supreme Court. The balance amount of wages shall be paid within two months from today with interest at the rate of 12% per annum from the dates the wages became due and till payment. There shall be no default and petitioners shall file a complete list of wages so paid containing full particulars with the respondents who shall have full right to enforce the payments as ordered under the provisions of the Act and the Rules. All such payments shall further be subject to adjustment when notification, if any, is issued covering the relevant period. To that extent, the rule is made absolute. There will be no order as to costs.