102 of 1958
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights
M K Nambiar and section N Andley for the petitioners
H N Sanyal Additional Solicitor General of India M P Balagavgadhar Menon and Sardar Bahadur for the respondents
April 14
The Judgment of the Court was delivered by GAJENDRAGADKAR J
The Government of Kerala appointed a Committee in exercise of its powers 948 conferred by cl
a of sub section
1 of section 5 of the Act XI of 1948 hereafter called the Act to hold enquiries and advise the Government in fixing minimum rates of wages in respect of employment in the tile industry and nominated eight persons to constitute the said Committee under section 9 of the Act
This notification was published on August 14 1957
The Committee made its report on March 30 1958
The Government of Kerala then considered the report and issued a notification on May 12 1958 prescribing minimum rates of wages as specified in the schedule annexed thereto
This notification was ordered to come into effect on May 261958
On that date the present petition was filed under article 32 by the nine petitioners who represent six tile factories in Feroke Kozhikode District challenging the validity of the Act as well as the validity of the notification issued by the Government of Kerala
The State of Kerala is impleaded as respondent to the petition
The petitioners allege that the minimum wage rates fixed by the notification are very much above the level of what may be properly regarded as minimum wages and it was essential that before the impugned wage rates were prescribed the employers  capacity to pay should have been considered
Since this essential element had not been taken into account at all by the Committee as well as by the respondent the notification is ultra vires and inoperative
According to them the burden imposed by the notification is beyond the financial capacity of the industry in general and of their individual capacity in particular and this is illustrated by the fact that nearly 62 tile factories in Trichur closed soon after the notification was published
The petitioners seek to challenge the validity of the Act on several grounds set out by them in clauses a to g of paragraph 21 of the petition
It is urged that the Act does not define what the minimum wage is to comprise or to comprehend and as such confers arbitrary authority on the appropriate Governments to impose unreasonable restrictions on the employers The law conferring such arbitrary power is violative of article 191g of the Constitution
Since the Act 949 empowers the fixation of a wage which may disable or destroy the industry it cannot be said to be reasonable and as such is beyond the purview of article 191 and 6 of the Constitution
The Act does not lay down any reasonable procedure in the imposition of restrictions by fixation of minimum wage and so authorises any procedure to be adopted which may even violate the principles of natural justice
It is also alleged that the Act is discriminatory in effect inasmuch as it submits some industries to its arbitrary procedure in the matter of fixation of minimum wages and leaves other industries to the more orderly and regulated procedure of the Industrial Disputes Act
It is on these grounds that the validity of the Act is impugned
The petitioners impugn the validity of the notification also for the same reasons
Besides it is urged that the notification has in effect fixed not minimum wages but fair wages and so it was essential that the capacity of the employers to bear the burden proposed to be imposed ought to have been considered
Failure to consider this essential aspect of the matter has it is urged rendered the notification void
That in substance is the nature of the case set out by the petitioners in their present petition
The respondent has traversed all these allegations
It is urged that the validity of the Act is no longer open to challenge since the question is concluded by the decisions of this Court and it is alleged that what the notification purports to do is to fix the minimum wage and no more and as such the capacity of the employer to pay such a minimum wage is irrelevant
It is further alleged that decisions of this Court have firmly established the principle that in the matter of fixing minimum wages the capacity of the employer to pay need not be considered and that if any employer is unable to pay what can be regarded as minimum wages to his employees he has no right to carry on his industry
It is further pointed out that out of 18 factories in Feroke only six factories have come to this Court and it is suggested that the grievance made by the petitioners that the wage rates fixed are 950 beyond their capacity is not genuine or honest
The respondent also points out that the Committee appointed by it was a representative Committee and its report showed that it had considered the matter very carefully
Alternatively it is urged that the report of the said Committee would show that the capacity to pay had not been ignored by the Committee
The impact of the minimum wage rate suggested by it had been considered by the Committee and so the Committee made its recommendations area wise
In regard to the closure of factories in Trichur the respondent s case was that the said closure was not the result of financial inability of the factories to bear the burden but was probably actuated by political motives
The respondent also put in a general plea that in fact all the factories in the Kerala State except some of the factories in the Trichur area and one of the petitioners had implemented the notification without any objection or protest and so it was argued that there was no substance in the grievance made by the petitioners
That in brief is the nature of the contentions raised by the respondent in reply to the petitioner s case
At this stage it would be relevant to refer briefly to the Committee s report in the order to find out how the Committee proceeded to discharge its task and what is the nature of its recommendations
The Committee consisted of eight members three of whom were the employers  representatives and three the employees  representatives while the Chairman Mr V R Pillai and Mr G SPillai the District Labour Officer were nominated on the Committee as independent members
The Chairman Mr Pillai is a MA M Sc
in Economics of the London University
He is a Professor of Economics in the University College at Trivandrum and has had considerable experience inasmuch as he has served on several such Committees in the past
The Committee issued a questionnaire to all the tile factories in the State and other persons interested considered the replies received from them personally visited certain factories recorded evidence of various associations representing the 951 tile factories as well as of individuals and took into account various facts which the Committee thought were relevant
The report of the Committee shows that subject to minor differences disclosed in the minute of dissent filed by Mr K Subramonia Iyer and the reply to it filed by Mr A Karunakaran the recommendations of the Committee were unanimous and so prima facie we start with the fact that the recommendations of the Committee were approved not only by the two independent members but they secured the concurrence of the representatives of the employers as well as the employees
The report of the Committee consists of five chapters
Chapter 1 deals with the development of the tile industry in Kerala chapter 11 deals with the problem of standardisation in the tile industry chapter III considers the problem of wage structure area wise chapter IV discusses the problem of minimum wage fixation its principles and procedure and chapter V records the conclusions and recommendations of the Committee
In dealing with the problem of wage structure the Committee has observed that the prevailing wage rates in the tile factories in the State show considerable difference from one centre to another and that according to the Committee is partly due to historical factors and partly to the economic status of the workers in the areas concerned
The Committee formed the opinion that there being very little scope for alternative employment except in low paid agricultural occupations the bargaining position of the workers has all along been very weak and wages too have tended to remain at a relatively low level
It is in the light of this background that the Committee naturally proceeded to consider the problem of the fixation of minimum wage rates
The Committee has accepted the observation of the Fair Wages Committee that the minimum wage must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the workers
 Then it examined the food requirements of the employee on the basis of three consumption units recognized in Dr Aykroyd s formula
It then adopted 952 the assessment made by the Planning Commission in regard to the requirements of the employees in cotton textiles and placed the employee s requirement at a per capita consumption of 18 yards per unit then it took into account the requirement of housing and it held that the additional requirements of workers for fuel lighting and additional miscellaneous items of expenditure should generally be fixed at 20 of the total wage in cases where the actual percentage has not been found out by a family budget enquiry
The Committee was conscious that it had to approach the problem from the point of view of the minimum needs of workers in order to maintain a subsistence standard and so it enumerated the requirements of workers in that behalf as food clothing fuel lighting and other miscellaneous items in which are also included rent education medical aid and entertainment
On this basis the Committee formulated the weekly food budget of the employee added to it the requirement of clothing and miscellaneous items
According to the Committee the total weekly expen diture on this basis would be food 1303 clothing 115 and miscellaneous 284 the total being Rs 1702 nP
The Committee then observed calculating on the basis of six days per week a worker should get a minimum of Rs 267 nP per day to maintain a subsistence plus  standard Ultimately the Committee recommended that the minimum basic wage of an unskilled worker in the A region viz Quilon and Feroke should be Re 1
With a cost of living index for the tile Centers at an average figure of 400 and the minimum requirements of the workers at Rs 267 nP this basic wage corresponds to 150 in the cost of living index number
As to dearness allowance the Committee recommended that it should be related to the cost of living index and that the dearness allowance should be fixed at the rate of 1 nP for every two points for all points above 200
Thus when the cost of living index is 400 an unskilled worker will get Re 1 as basic wage and Re 1 as dearness allowance making a total of Rs 2
The Committee added that if the rise in the cost of living had to be completely 953 neutralised he should get Rs 167 nP as dearness allowance but he gets only Re 1 that is to say 100 167 or 60 of the increase in the cost of living
Therefore the extent of the neutralisation of the increase in the cost of living is 60
The Committee recognised regional differences and so introduced five Grades classified as A B C D and E for the purpose of fixing the wage structure
The Committee hoped that the regional differences recommended by it would enable the backward areas to come up by improving the efficiency of production and marketing so that eventually they will be in a position to pay the same wages as advanced areas
The notification issued is substantially on the lines of the recommendations made by the Committee
Employees engaged in the tile industry have been categorised and their minimum wage rates have been classified into clauses A to E
In regard to dearness allowance the notification provides that a flat rate of dearness allowance for all workers irrespective of sex or grade shall be paid at the rate of one naya paisa for every two points in the cost of living index in each year in excess of Rs 200
Thus the notification purports to prescribe the minimum rates of wages in regard to tile industry in the State it is the validity of this notification that is impugned before us by the present petition
Before dealing with the points raised by Mr Nambiar on behalf of the petitioners it is necessary to refer very briefly to the material provisions of the Act
This Act was passed in 1948 because it was thought expedient to provide for fixing minimum rates of wages in certain employments
Under section 3 the appropriate Government is empowered to fix mini
mum rates of wages in regard to employments as therein specified and review the same at such intervals as specified by section 31
Section 33 contemplates that in fixing or refixing minimum rates of wages different minimum rates of wages may be fixed for different scheduled employments different classes of work in the same scheduled employments adults 120 954 adolescents children and apprentices and different localities
Under section 4 any minimum rate of wages fixed or revised may inter alia consist of a basic rate of wages and a special allowance at a rate to be adjusted or a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates where so authorised or an all inclusive rate allowing for the basic rate the cost of living allowance and the cash value of the concessions if any
Section 5 prescribes the procedure for fixing and revising minimum wages
It is under this section that a Committee was appointed by the respondent in the present case
Section 9 makes provision for the composition of the Committee
Such Committees have to consist of equal number of representatives of employers and employees and of independent persons not exceeding
one third of the total number of members
Section 121 imposes on the employer the obligation to pay the minimum rates of wages prescribed under the Act
Section 22 provides for penalties for offences and section 22A makes a general provision for punishment of offences not otherwise expressly provided for
Under section 25 any contract or agreement whether made before or after the commencement of this Act which affects an employee s right to a minimum rate of wages prescribed under the Act shall be null and void so far as it purports to reduce the said minimum rate of wages
Section 27 empowers the appropriate Government after giving notification as prescribed to add to either part of the schedule any employment in respect of which it is of opinion that minimum rates should be fixed and thereupon the schedule shall be deemed to be amended accordingly in regard to that State
In the case of The Edward Mills Co Ltd Beawar  Ors
vs The State of Ajmer 1 the validity of section 27 of the Act was challenged on the ground of excessive delegation
it was urged that the Act prescribed no principles and laid down no standard which could furnish an intelligent guidance to the administrative 1  955 authority in making selection while acting under section 27 and so the matter was left entirely to the discretion of the appropriate Government which can amend the schedule in any way it liked and such delegation virtually amounted to a surrender by the Legislature of its essential legislative function
This contention was rejected by Mukherjea J is he then was who spoke for the Court
The learned Judge observed that the Legislature undoubtedly intended to apply the Act to those industries only where by reason of un organised labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low
He also pointed out that conditions of labour vary under different circumstances and from State to State and the expediency of including at particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by a person who is placed in charge of the administration of a particular State
That is why the Court concluded that in enacting section 27 it could not be said that the Legislature had in any way stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act
In the same year another attempt was made to challenge the validity of the Act in Bijay Cotton Mills Ltd vs The State of Ajmer 1
This time the crucial sections of the Act namely sections 3 4 and 5 were attacked and the challenge was based on the ground that the restrictions imposed by them upon the freedom of contract violated the fundamental right guaranteed under article 191g of the Constitution
This challenge was repelled by Mukherjea J as he then was who again spoke for the Court
The learned Judge held that the restrictions were imposed in the interest of the general public and with a view to carry out one of the directive principles of State policy as embodied in article 43 and so the impugned sections 1  956 were protected by the terms of cl
6 of article 19
In repelling the argument of the employers  inability to meet the burden of the minimum wage rates it was observed that the employers cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers on account of their poverty and helplessness are willing to work on lesser wages and that if individual employers might find it difficult to carry on business on the basis of minimum wages fixed under the Act that cannot be the reason for striking down the law itself as unreasonable
The inability of the employers may in many cases be due entirely to the economic conditions of those employers
 It would thus be seen that these two decisions have firmly established the validity of the Act and there can no longer be any doubt that in fixing the minimum wage rates as contemplated by the Act the hardship caused to individual employers or their inability to meet the burden has no relevance
Incidentally it may be pointed out that in dealing with the minimum wage rate intended to be pre scribed by the Act Mukherjea J has in one place observed that the labourers should be secured adequate living wages
In the context it is clear that the learned Judge was not referring to living wages properly so called but to the minimum wages with which alone the Act is concerned
In view of these two decisions we have not allowed Mr Nambiar to raise any contentions against the validity of the Act
It is true that Mr Nambiar attempted to argue that certain aspects of the matter on which he wished to rely had not been duly considered by the Court in Bijay Cotton Mills Ltd s case 1
In our opinion it is futile to attempt to reopen an issue which is clearly concluded by the decisions of this Court
Therefore we will proceed to deal with the present petition as we must on the basis that the Act under which the Committee  as appointed and the notification was ultimately issued is valid
We have already seen what the Act purports to achieve is to prevent exploitation of labour and for 1  957 that purpose authorises the appropriate Government to take steps to prescribe minimum rates of wages in the scheduled industries
In an under developed country which faces the problem of unemployment on a very large scale it is not unlikely that labour may offer to work even on starvation wages
The policy of the Act is to prevent the employment of such sweated labour in the interest of general public and so in prescribing the minimum wage rates the capacity of the employer need not be considered
What is being prescribed is minimum wage rates which a welfare state assumes every employer must pay before he employs labour
This principle is not disputed Vide Messrs Crown Aluminium Works vs Their Workmen1 it is therefore necessary to consider what are the components of a minimum wage in the context of the Act
The evidence led before the Committee on Fair Wages showed that some witnesses were inclined to take the view that the minimum wage is that wage which is essential to cover the bare physical needs of a worker and his family whereas the overwhelming majority of witnesses agreed that a minimum wage should also provide for some other essential requirements such as a minimum of education medical facilities and other amenities
The Committee came to the conclusion that a minimum wage must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the worker and so it must also provide for some measure of education medical requirements and amenities
The concept about the components of the minimum wage thus enunciated by the Committee have been generally accepted by industrial adjudication in this country
Sometimes the minimum wage is described as a bare minimum wage in order to distinguish it from the wage structure which is subsistence plus or fair wage but too much emphasis on the adjective bare in relation to the minimum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to cover his bare 1  958 physical needs and Keep himself just above starvation
That clearly is not intended by the concept of minimum wage
On the other hand since the capacity of the employer to pay is treated as irrelevant it is but right that no addition should be made to the com ponents of the minimum wage which would take the minimum wage near the lower level of the fair wage but the contents of this concept must ensure for the employee not only his sustenance and that of his family but must also preserve his efficiency as a worker
The Act contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object of providing sustenance and maintenance of the worker and his family and preserving his efficiency as a worker
Mr Nambiar contends that when the statute purports to prescribe a minimum wage in effect it directs the fixation of a statutory minimum wage and as such capacity to pay must be considered before such minimum wage is fixed
His argument is that in any event the impugned notification statutorily prescribes such minimum wage rates for the tile industry in the State of Kerala and as such the rates so recommended do not constitute merely the industrial and economic minimum as understood by industrial adjudication but it constitutes a statutory minimum which can be fixed only after taking into account the employers  capacity to pay the same
In support of this argument Mr Nambiar has strongly relied on some observations made by this Court in the case of Express Newspapers Private Ltd vs The Union of India 1
We will presently refer to the said observations but in appreciating the nature and effect of the said observations it is necessary to recall that in that case the Court was dealing with the problem of fixation of wages in regard to Working Journalists as prescribed by section 9 of the Working Journalists Conditions of Service and Miscellaneous Provisions Act 1955 45 of 1955
Section 9 of the said Act required that in fixing rates of wages in respect of working journalists the Board had to have regard to the cost of living the prevalent 1 959 rates of wages for comparable employments the circumstances relating to newspaper industry in different regions of the country and to any other circumstance which to the Board may deem relevant
It was held that the wage structure contemplated by section 9 was not the structure of minimum wage rates it was a wage structure permitted to be prescribed by that statute after taking into account several relevant facts and the scheme of that Act showed that the wage structure thus contemplated was very much beyond the minimum wage rates and was nearer the concept of a fair wage
That is why the Court took the view that the expression any other circumstance specified by section 9 definitely included the circumstance namely the capacity of the industry to bear the burden and so the Board was bound to take that factor into account in fixing the wage structure
It appeared to the Court that this important element had not been considered by the Board at all and that introduced a fatal infirmity in the decisions of the Board
Thus the wage structure with which the Court was concerned in that case was not the mini
mum wage structure at all
It is essential to remember this aspect of the matter in appreciating the argument urged by Mr Nambiar on the strength of certain observations made by this Court in the course of its judgment
In the course of his judgment Bhagwati J who spoke for the Court has elaborately considered several aspects of the concept of wage structure including the concept of minimum wage
The conclusion of the Fair Wage Committee as to the content of the minimum wage has been cited with approval p 83
Then a distinction has been drawn between a bare subsistence or minimum wage and a statutory minimum wage and it is observed that the statutory minimum wage is the minimum which is prescribed by the statute and it may be higher than the bare subsistence or minimum wage providing for some measure of education medical requirements and amenities p 84
This observation is followed by a discussion about the concept of fair wage and in 960 dealing with the said topic the has also been referred to and it is stated that the Act was intended to provide for fixing minimum rates of wages in certain employments and the appropriate Government was thereby empowered to fix different minimum rates of wages as contemplated by section 33
Then it is stated that whereas the bare minimum or subsistence wage would have to be fixed irrespective of the capacity of the industry to pay the minimum wage thus contemplated postulates the capacity of the industry to pay and no fixation of wages which ignores this essential factor of the capacity of the industry to pay could ever be supported
Mr Nambiar contends that the last part of the observation refers to the minimum wage prescribed by the Act and it requires that before prescribing the said wage the capacity of the industry must be considered
We do not think that this argument is well founded
It would be noticed that in considering the distinction drawn between the minimum wage fixed by industrial adjudication and the minimum wage prescribed by a statute which is called statutory minimum it has been made clear that the latter can be higher than the bare subsistence or minimum wage and as such is different in kind from the industrial minimum wage
We do not think that the observation in question was intended to lay down the principle that whereas a minimum wage can be laid down by an industrial adjudication without reference to an employer s capacity to pay the same it cannot be fixed by a statute without considering the employer s capacity to pay
Such a conclusion would be plainly illogical and unreasonable
The observations on which Mr Nambiar relies do not support the assumption made by him and were not intended to lay down any such rule
Cases are not unknown where statutes prescribe a minimum and it is plain from the relevant statutory provisions themselves that the minimum thus prescribed is not the economic or industrial minimum but contains several components which take the statutorily prescribed minimum near the level of the fair wageand when that is the effect of the statutory provision capacity to pay may no doubt have to be 961 considered
It was a statutory wage structure of this kind with which the Court was dealing in the case of Express Newspapers Private Ltd 1 because section 9 authorised the imposition of a wage structure very much above the level of the minimum wage and it is obvious that the observations made in the judgment cannot and should not be divorced from the context of the provisions with respect to which it was pronounced
Therefore we feel no hesitation in reject ing the argument that because the Act prescribes minimum wage rates it is necessary that the capacity of the employer to bear the burden of the said wage structure must be considered
The attack against the validity of the notification made on this ground must therefore fail
It still remains to consider whether in fact the noti
fication has prescribed a wage structure which is above the level of the minimum wage properly socalled
If the notification has in fact prescribed a wage structure which is nearer the fair wage level and is above the minimum wage structure that no doubt would introduce an infirmity in the notification since it does appear that the capacity of the employer to bear the burden has not been considered either by the Committee or by the Government
This part of the attack against the notification is based on two grounds
Mr Nambiar contends that in making its calculations about the minimum wage rates the Committee has taken into account an item of entertainment and that says Mr Nambiar is clearly inadmissible
He also points out that the Committee has described the daily minimum of Rs 267 nP ultimately deduced by it as intended to maintain the employee s subsistence plus  standard and that again shows that the wage structure is above the minimum standard and goes towards the lower level of the fair wage
We are not impressed by this argument
It would be recalled that amongst the miscellaneous items in respect of which Rs 284 nP are added by the Committee in its calculations are rent education 1 121 962 medical aid and entertainment
The first three are not inadmissible and so the attack is against the inclusion of the last item alone
Even assuming that the last item is inadmissible it is not difficult to imagine that the addition of this last item could not have meant much in the calculations of the Committee and so the grievance made on account of the inclusion of the said item cannot be exaggerated
There are however two other factors which are relevant in this connection
What the Committee has described as the subsistence plus  standard should on its own calculations represent the daily minimum of Rs 284 nP not Rs 267 nP Rs 267 nP is plainly the result of miscalculation so that it can be safely assumed that the said sum which is taken to represent the daily minimum to maintain a subsistence plus  standard in fact does not include an amount which may be attributed to entertainment
Besides it is necessary to remember that what the Committee has ultimately recommended is not the award of Rs 267 nP which according to it represents subsistence
plus  standard but only Rs 2 and that itself shows that what is re commended is below the subsistence plus  standard
There is yet another point which leads to the same conclusion
Even if the whole of the miscellaneous item is excluded and calculations are made on the basis that the total permissible items amount to Rs 1418 nP we would still reach the figure for the daily minimum which is more than Rs 2
Therefore look at it how we may it is impossible to accept the argument that the wage structure ultimately recommended by the Committee is anything higher than what the Committee thought to be the minimum wage structure
Therefore we are not prepared to hold that the notification which is in conformity with the recommendations of the Committee has prescribed wage rates which are higher than the minimum wage structure
If that be so failure to take into account the capacity of the industry to bear the burden can introduce no infirmity either in the recommendations of  the Committee or in the notification following upon them
963 Mr Nambiar no doubt wanted to attack the merits of the notification on the ground that the wage rates fixed by it are unduly high
In that connection he relied on the fact that the minimum wage rates prescribed by the Madras Government by its notification published on February 25 1952 as well as the wage rates prevailing in other industries in Kerala were slightly lower
He also pointed out that the wage rates awarded by industrial adjudication and even the claims made by the employees themselves would tend to show that what has been awarded by the notification is higher than the prescribed minimum wages
It is not possible for us to entertain this contention
The determination of minimum wages must inevitably take into account several relevant factors and the decision of this question has been left by the Legislature to the Committee which has to be appointed under the Act
We have already referred to the composition of the Committee and have reviewed very briefly its report
When a Committee consisting of the representatives of the industry and the employees considers the problem and makes its recommendations and when the said recommendations are accepted by the Government it would ordinarily not be possible for us to examine the merits of the recommendations as well as the merits of the wage structure finally notified by the Government
The notification has accepted the recommendations of the Committee to categorise the workers and that obviously was overdue
The fact that wages paid in other industries in Kerala or in other States in comparable concerns are lower would have been relevant for the Com mittee to consider when it made its recommendations
In appreciating the effect of the prevalence of lower rates it may also be relevant to bear in mind that in some places and in some industries labour is still employed on wages much below the standard of minimum rates
In fact in its report the Committee has pointed out that in Kerala
the bargaining position of the workers has all along been very weak and wages have tended to remain in a deplorably low level
Therefore the fact that lower wages are paid in other 964 industries or in some other places may not necessarily show that the rates prescribed by the notification are unduly high
In any event these are considerations Which ordinarily cannot be entertained by us because obviously we are not sitting in appeal over the recommendations of the Committee or the notification following upon them
That is why the grievance made by Mr Nambiar on the merits of the wage structure prescribed by the notification cannot succeed
There is however one aspect of this problem to which we must refer before we part with this case
It appears that soon after the notification was issued as many as 62 tile factories in Trichur closed their works and that led to unemployment of nearly 6000 employees
In order to resolve the deadlock thus created the respondent referred the industrial dispute arising between the Trichur factories and their employees for industrial adjudication ID 45 of 1958
On this reference an interim award was made and it was followed by a final award on September 26 1960
Both the interim and the final awards were the result of settlement between the parties and the order passed by the tribunal shows that the respondent acting through its Labour Minister left aside the prestige of the Government came to the scene and effected a settlement Mr Nambiar has strongly criticised the conduct of the respondent in permitting a departure from the notification in respect of 62 tile factories at Trichur contrary to the provisions of the Act and in insisting upon its implementation in respect of the other parts of the State
His argument is two fold
He suggests that the settlement reached between the parties in Trichur shows that the minimum prescribed by the notification was above the legally permissible minimum and beyond the capacity of the Trichur factories and that would support his grievance that the rates prescribed are not the minimum but they are such above that level
We are not im pressed by this argument
As we have already observed we would ordinarily refuse to consider the merits of the wage structure prescribed by the notification
Besides the closure of the factories in Trichur may 965 either be because the factories there found it difficult to pay the wage structure or may be for reasons other than industrial
We propose to express no opinion on that point because that is not a point in issue before us and so the settlement can have no bearing on the fate of the present petition but the other argument urged by Mr Nambiar raises a serious question
Under the Act the notification has to apply to all the tile factories in the State and breach of the provisions of the notification is rendered penal under section 22 of the Act
An agreement or contract contrary to the notification would be void under section 25 of the Act
It is to be regretted that the respondent acting through its Labour Minister appears to have assisted in bringing about a settlement contrary to the terms of the Act
If the respon dent thought that such a settlement was necessary in respect of Trichur factories it may consider the question of withdrawing the notification in respect of that area and in fairness may also reconsider the problem in respect of all the other areas and decide whether any modification
in the notification is required
It is not appropriate that the respondent should be associated though indirectly with the settlement which is in breach of the provisions of the Act
We would therefore suggest that the respondent should seriously consider this aspect of the matter and should not hesitate to do what may appear to be just reasonable and fair on an objective consideration of the whole problem
In the result the petition fails and is dismissed
There would be no order as to costs
Petition dismissed


Summary:
The petitioners representing certain tile factories challenged the validity of the  as also the notification issued by the Kerala Government prescribing minimum rates of wages in respect of employment in the tile industry on the report of a committee constituted under the Act and consisting of the representatives both of the employers and employees who agreed with its recommendations
The case of the petitioners was that the notification had in effect fixed not minimum wages but fair wages and since neither the committee nor the Government in fixing them had considered the capacity of the employers to pay the notification was void
Held that in view of the decisions of this Court the con stitutional validity of the Act could no longer be in doubt and any hardship that may be caused to employers by the wages fixed under the Act or their incapacity to pay the same are irrelevant considerations in fixing such wages
947 The Edward Mills Co Ltd vs The State of Ajmer   Bijay Cotton Mills Ltd vs State of Ajmer  and Ms Crown Aluminium Works vs Their Workmen   referred to
While therefore in fixing the minimum wage nothing can be added to its components that may take it near the lower level of the fair wage the minimum wage must ensure not only the sustenance of the employee and his family but also preserve his efficiency as a worker and that is what is contemplated by the Act
It is an error to think that the minimum wage is just what a worker requires to cover his physical needs and to keep himself above starvation
There can be no analogy between the which prescribes the economic and industrial minimum and a statute which prescribes its own minimum that approximates more or less to the fair wage standard and so makes it necessary to consider the employer s capacity to pay
Express Newspapers P Ltd vs The Union of India  explained and distinguished
This Court would ordinarily refuse to consider the merits of the wage structure set up by the Notification on the recommendations of the committee agreed to by the representatives of the employers and the employees
The fact that wages paid in other industries in the State or in other States in comparable concerns are lower does not necessarily show that the rates prescribed by the Notification are unduly high
A notification under the Act must apply to all the factories in the State and the State cannot permit or be associated with a departure from it for that would amount to a contravention of SS 22 and 25 of the Act
If a departure is considered necessary the proper course would be to withdraw the notification in respect of the area concerned or to reconsider and modify it if necessary