Civil Appeal No 355 of 1958
Appeal by special leave from the decision dated December 12 1956 of the Labour Appellate Tribunal 983 of India Bombay in Appeal Bom Nos
77and 103 of 1956
A V Viswanatha Sastri section N Andley J B Dadachanji and Rameshwar Nath for the appellant
B D Sharma for respondent No 1 1960
February 12
The Judgment of the Court was delivered by GAJENDRAGADKAR J
The industrial dispute between the Bijay Cotton Mills Ltd hereinafter called the appellant and their workmen hereinafter called the respondents which has given rise to this appeal by special leave has gone through a protracted and tortuous course
The respondents claimed that the scale of minimum wages and rates for contract works should be fixed for them because it was alleged that the payments made by the appellant were below the level of the bare subsistence wage
The appellant did not accede to the demand thus made by the respondents and so on December 1 1950 the present dispute was referred for adjudication to the Industrial Tribunal consisting of Mr D N Roy under section 101 read with section 125 of the Act XIV of 1947 hereinafter called the Act
Amongst the items thus referred for adjudication the first two were 1 that the mill employees be paid minimum wages and rates for contract works as shown in the two statements enclosed and 2 that dearness allowance be paid to all workers at the rate of
Rs 35 permensem each and it may be increased or decreased according to rise or fall in prices
In the present appeal we are concerned with the minimum wages
It appears that Mr Roy found himself unable to fix any basic minimum wage and to support his view that it would be inexpedient to fix any minimum basic wage in the proceedings pending before him he referred to the fact that the question of fixation of the basic wage had been rendered enormously difficult by the state of industrial development in the State of Ajmer and by the unsteady and frequent fluctuations in prices
Even so be considered several items of dispute referred to him and announced his award on October 5 1951
125 984 This award was challenged by the respondents before the Labour Appellate Tribunal
The appellate tribunal there upon remanded the matter to Mr Roy with a direction that the issues as to the basic wage and as to dearness allowance should be specifically determined and appropriate directions issued on those two items
This remand order was passed on October 20 1952
By the time the proceedings were taken up before the tribunal on remand Mr Roy was not available because he had ceased to be a District Judge in Ajmer
In his place Mr Sharma was appointed
Mr Sharma then made his award on September 8 1953
He fixed Rs 25 as basic wage and Rs 10 as minimum dearness allowance
It appears that the award thus made by Mr Sharma was subsequently quashed on the ground that his appointment had not been duly published as required by the Act
This order was passed on May 25 1955
Mr C Jacob was then appointed Industrial Tribunal
He made his award on January 25 1956
By this award Mr Jacob in substance agreed with the view taken by Mr Sharma and fixed the basic wage at Rs 25 per mensem and the minimum dearness allowance at Rs 10 per mensem
This award was directed to come into operation as from December 1 1950
This award was again challenged before the Labour Appellate Tribunal and the appellate tribunal has partly allowed the appeal preferred by the respondents and increased the basic wage from Rs 25 per mensem to Rs 30 per mensem
The amount of the minimum dearness allowance has been affirmed at Rs 10 permensem
This decision was announced by the appellate tribunal on December 12 1956
It is this decision that has given rise to the present appeal by special leave
It is common ground that a Statutory Committee was appointed under Act XI of 1948 in respect of Ajmer on January 17 1952
Its report was submitted on October 4 1952 and a notification was issued in pursuance of the said report on  October 7 1952
This notification has come into force as from January 8 1953 and in 985 consequence the basic minimum wage is now statutorily fixed at Rs 30 per mensem and dearness allowance at Rs 26 per mensem
Thus it would be clear that there is no dispute between the parties as to what would be the basic wage and the minimum dearness allowance subsequent to January 8 1953
It appears that Mr Jacob who fixed the basic minimum wage at Rs 25 per mensem relied upon the fact that the said rate represented the basic minimum wage on the industry cum region basis
He has observed that the basic minimum wage of an unskilled worker in the textile mills in Bombay was Rs 30 per mensem while at other places it varies from Rs 22 to Rs 30 per mensem
Then he has also referred to the two charts Exhibits 4 A and 4 B produced by the respondents where the minimum basic wages were shown to range between Rs 21 to Rs 30 in Rajasthan
According to him in Rajasthan minimum basic wages were Rs 26 per mensem and in Beawar which is the nearest centre from Bijaynagar the minimum wages for an unskilled textile worker in 1950 were Rs 25 per mensem
That is one fact on which the tribunal relied
The other fact on which reliance was placed was that there was an agreement between the parties in December 1949 under which the respondents were willing to work on the minimum wage of Rs 27
In fact it appears that both the appellant and the respondents had moved this Court for striking down the notification issued by the Ajmer Government by which the basic wage had been fixed at Rs 30 from January 8 1953
In Bijay Cotton Mills Ltd vs The State of Ajmer 1 it was urged on their behalf jointly that the relevant provisions of the were ultra vires and that it would be in the interests of the employer and the employees as well to strike down the impugned notification
This Court rejected the said contention and upheld the validity of  the Act as well as of the notification
That however is another matter
The agreement on which the respondents were prepared to work for the appellant was pressed into service by the appellant before the tribunal
The tribunal was 1 19551 SCR 752
986 influenced by that fact in finally determining the amount of basic wage
Two other facts may also have weighed
The appellant started its textile business in 940 and had to face a serious calamity in 1943 as a result of which it suffered great loss and incurred liability to the tune of nearly rupees thirty lakhs
Besides it was urged before the tribunal that a large section of the respondents belonged to the agricultural class and they can supplement their income from agricultural sources
It is presumably on these grounds that Mr Jacob fixed the basic wage at Rs 25 per mensem
The Labour Appellate Tribunal on the other hand has held that in the absence of satisfactory evidence on the record the statutory notification issued under the affords  the best and safest guide in the matter of fixation of minimum wage 
It has observed that even though the notification can have no application prior to January 8 1953 still  they were of opinion that the scales of wages fixed thereunder should not be departed from even for the period now in question
That was all the more so because not much useful material was available on the record to fix 
the said wage 
It is on this ground that the appellate tribunal has increased the basic wage from Rs 25 to Rs 30 as prescribed by the notification
It is this modification that is challenged before us by Mr A V Viswanatha Sastri on behalf of the appellant
Mr Sastri contends that the method adopted by the tribunal was a scientific method it took into account a basic wage deducible on the industry cum region basis and this should not have been reversed by the appellate tribunal
It however appears that in ascertaining the wages which labour in comparable trades was getting in the relevant region the tribunal has completely lost sight of the fact that in addition to the basic wages of Rs 26 Rs 43 was the average minimum dearness allowance paid to the workers and that made a very large difference in the total earnings of the workmen
In determining the minimum basic wage the fact that a large amount of dearness allowance was being paid to employees in 987 other comparable occupations in the same region should not have been ignored by the tribunal and that is one infirmity on which the appellate tribunal was entitled to comment
Besides if the appellate tribunal thought that more useful assistance can be derived from the statutory fixation of the minimum wage in Ajmer under the  we do not see how we can interfere with the said view in the present appeal
It would not be wrong to assume as the appellate tribunal did that in fixing the minimum wage in the area the Statutory Committee took into consideration all the relevant factors and came to the conclusion that that would be a fair minimum to prescribe
On the other hand before the tribunal much relevant or useful evidence was not adduced and so the appellate tribunal could not be said to have committed any error of law in preferring to rely on the statutory notification rather than on the other unsatisfactory evidence produced in the case
After all from January 8 1953 the minimum basic wage was statutorily fixed and so if for a couple of years before that date the same basic wage was awarded by the appellate tribunal it cannot be said that any error of law has been committed which should be corrected by us in our jurisdiction under article 136 of the Constitution
Therefore we are not satisfied that any case for interference has been made out by the appellant on this point
The next contention raised by Mr Sastri is that the appointment of Mr Jacob who made his award on January 25 1956 was invalid and Mr Sastri suggests that the said award as well as the decision of the appellate tribunal should be set aside and the matter should be sent back to Mr Sharma for disposal in accordance with law
The argument is that Mr Sharma s appointment as Industrial Tribunal made on December 31 1954 was subsisting at the time when Mr Jacob was appointed on June 17 1955 and it is urged that when the same industrial dispute had already been referred to Mr Sharma it was not competent to the appropriate authority to refer the same dispute to Mr Jacob
In support of this argument reliance is placed on the decision of this Court in The 988 State of Bihar vs D N Ganguly  Ors 1
In our opinion there is no substance in this argument
The notification on which the whole of the argument is based was issued on December 31 1954 for the sole purpose of correcting the error which had crept into the appointment of Mr Sharma by reason of the fact that his earlier appointment made on May 4 1953 had not been duly published and notified as required by the Act
Indeed it was because of this infirmity that the award made by Mr Sharma on September 8 1953 had been quashed on May 25 1955
In reading the later notification this fact must be borne in mind
No doubt the notification  purports to refer to Mr Sharma for his adjudication the matter referred to him by the Labour Appellate Tribunal on remand it however appears as pointed out by the appellate tribunal that at the time when the proceedings after the remand commenced Mr Sharma s services were not available as he was apparently not in the service of the State and it was impossible to refer the matter to him for his adjudication
That is the finding made by the appellate tribunal and this finding is fully justified
Therefore since Mr Sharma s services were not available to the appropriate Government it was perfectly competent to the said Government to fill in the vacancy and appoint Mr Jacob in his place to take up the work of adjudication
Therefore there is no substance in the contention that the decision of Mr Jacob is invalid in law
The last contention urged is that the reference is invalid inasmuch as the Chief Commissioner of Ajmer was not competent to refer the present dispute for adjudication under section 101 read with section 125 of the Act
The argument is that the Textile Industry has been included at serial No 23 in the First Schedule to the Industrial Development and Regulation Act 1951 Act 65 of 1951 and as such the Chief Commissioner of Ajmer was not the appropriate Government under section 2ai of the Act
It is urged that the present dispute could have been validly referred for adjudication to the industrial tribunal only by the Central Government
Section 2ai inter alia defines the 1 989 appropriate Government as meaning in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or by a railway company or concerning any such controlled industry as may be specified in this behalf by the Central Government the Central Government
The question which arises is has the textile industry been specified as controlled industry in this behalf by the Central Government  It is true that the textile industry is controlled by the provision of Act 65 of 1951 and in that sense it is controlled industry but that would not be enough to attract the application of section 2ai of the Act
What this latter provision requires is that the Central Government must specify  in this behalf  that the industry in question is a controlled industry  in other words the specification must be made by the Central Government by reference to and for the purpose of the provisions of the Act in order that the Central Government may itself become the appropriate Government qua such industry under s 2ai of the Act
It is conceded by Mr Sastri that no such specification has been made by the Central Government
Indeed we ought to add in fairness to Mr Sastri that he did not very seriously press this point
The result is the appeal fails and is dismissed with costs
Appeal dismissed


Summary:
A mortgage was executed by several persons on the 28th July 1931
The term of the mortgage namely six years expired in July 1937 the mortgagees instituted a suit in May 1938 and a decree was passed in March 1939
An applica tion for relief under the UP Debt Redemption Act XIII of 1940 was made on 11th April 1942 and this application was resisted on the ground that S one of the mortgagors had been assessed to income tax and was therefore not an agri culturist and the suit was not consequently a suit to which the Act applied
 The evidence showed that S was earning a monthly salary of Rs 90 and that from February 1932 he had been assessed to income tax till the year 1936
The High Court held relying on the Full Bench ruling in Ketki Kunwar vs Ram Saroop ILR 1943 All 35 that under sec
21 of the Act the mortgage money could be recovered only from the mortgaged property and not personally and that the proviso to sec
2 9 of the Act had therefore no application and the question whether S was an agriculturist on the date of the mortgage was immaterial
As S was admit tedly an agriculturist on the date of the suit the High Court held that the judgment debtors were entitled to relief under the Act
On appeal Held that assuming that the proviso to sec
2 9 applied and that in order to be a loan within the meaning of the Act it must be shown that the advance was made to one who at the date of the advance was an agriculturist S was not an agriculturist on the 28th
July 1931 as the Indian Finance Supplementary and ExtendingAct of 1931 which reduced the taxable minimum from Rs 2000 to Rs 1000 was passed only in November 1931 and income tax was first deducted from his salary only in February 1932
Quaere Whether the Full Bench decision in Ketki Kuwar vs Ram Saroop ILR 1943 All 35 is correct